This post is written by Mehul Jain, a student of Maharaja Agrasen Institute of Management, Rohini.
“Nemo moriturus praesumitur mentire” – a man will not meet his maker with a lie in his mouth.
The concept of the dying declaration is entirely based upon this legal maxim as it is believed any person who is about to die would never lie before meeting his maker. Usually the evidence of hearsay is excluded from the purview of valid evidence as it lacks an authentic source which could prove the originality of the stated fact and also doesn’t give the defence to critically analyse or cross examine the source of such evidence. A written document hence always gives more weightage in an open court of law as it has a more reliability in comparison to an oral evidence. But there is an exception or rather a loophole to this concept of hearsay evidence. The principle of section 32 and 33 of the Indian Evidence Act is that a person who has the first hand knowledge of the facts of the case but who, for the reasons stated in the section, such as death or disability in not able to appear before the court, then his knowledge should be transmitted to the court through some other person. It is said to have a special circumstantial guarantee which renders the evidence to be more trustworthy than hearsay evidence in general.
What is the Dying Declaration?
Section 32(1) incorporates the concept of English law popularly known as ‘dying declaration’. It is admissible in the court and is one of the biggest exceptions in the evidence law as hearsay evidence is no evidence in the eyes of law. Section 32(1) makes admissible the statement of a person who dies provided that the statement relates to the cause of death or the circumstances leading to his/her death.
A dying declaration is a statement oral or written made by a person before his death as to the cause of his death or the circumstances leading to his death. A dying declaration means a statement by a person explaining the cause or circumstances of his/her death. For example A tells his friend B that a person, C has been giving him life threats and 2 days later A dies and C is said to be the alleged accused now the statement given by A to B can be said to be a dying declaration.
There must be proximity of relationship between the fact and cause of death no straight jacket test cannot be made to judge the proximity as the situation may vary from case to case so it is up to the judge of the case if the statement can be admissible as a dying declaration or not.
Essentials for relevancy and admissibility of a Dying Declaration
The provisions of section 32 are in the form of an exception to the general rule of evidence. The burden of proof establishing a statement lies on the party which wishes to avail its benefit, for a valid DD follow things must be established :-
- The declarant must have died.
- The declarant death must be in question.
- He must have died due to circumstances in the declaration.
- Statement must relate to the cause of his death or the circumstances of the transaction which resulted in his death.
- The declaration must be complete and consistent.
- The declarant must be competent and in a fit condition to give a declaration.
Forms of Dying Declaration
There is no particular form or mode of giving a dying declaration, but over the year by the judgments given by courts it can be reduced to these forms:-
- Written form
- Verbal form
- Gestures and Signs form
- A dying declaration may be in the form of narrations. It is preferred that it should be written in the vernacular which the patient understands and speaks.
In Laxman v. State of Maharashtra [1] the SC observed that “a DD can be oral or in writing any adequate method of communication whether by word or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death and are reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to ensure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die.
Evidentiary value of a Dying Declaration
Once the proximity of the closeness of the dying declaration to the facts of the case has been established the very next question that comes is what is the evidentiary value that is to be given to a DD?
In K.R. Reddy v. Public Prosecutor [2], evidentiary value of dying declaration was observed as under:-
“The dying declaration is undoubtedly admissible under section 32 & not being a statement on oath so that its truth could be tested by cross-examination, the court has to apply the scrutiny & the closest circumspection of the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to connect a case as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe & identify his assailants & that he was making the statement without any influence. Once the court is satisfied that the dying declaration is true & voluntary, it can be sufficient to found the conviction even without further corroboration.”[3]
Conclusion
The law does not prescribe any specific mode of making or recording a DD. The authenticity of the DD has to be judged in accordance with the circumstances of the case depending upon many factors which would vary in each case. It is not possible to lay down any hard and fast rule when a DD should be accepted, beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances, but if the court, after taking everything into consideration, is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense.
Bibliography
[1] (2002) 6 SCC 710
[2] (1976) 3 SCC 104
[3]http://www.legalservicesindia.com/article/1682/Dying-Declaration-Section-32(1)-of-Indian-Evidence-Act.html#:~:text=Evidentiary%20Value%20of%20Dying%20Declaration&text=%E2%80%9CThe%20dying%20declaration%20is%20undoubtly,statement%20before%20acting%20upon%20it.