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The Concept of Dying Declaration

Nemo Moriturus Praesumitur Mentire

(A person who is about to die would not lie)

INTRODUCTION:

Hearsay evidence, an evidence which is otherwise inadmissible under Indian Law becomes admissible under certain circumstances. One such circumstance is dying declaration. When there is no evidence or witness for a crime committed against a person except that said person who is in a critical condition, his/her declaration recorded at that time is called as dying declaration. The same is held valid in almost all the cases because it is being believed by all that a person, who is about to die will not lie, as in he/she is not going to get benefited out of it. According to law, it is believed that the person on his/her death bed can see the Almighty and for that sake, the person will only say whatever has really happened. So, any declaration made by a person who is about to die is valid in the eyes of law. In Narain Singh v. State of Haryana[1], it was held that Section 32(1) of the Indian Evidence Act is an exception to the general rule laid down in section 60 of Evidence Act that hearsay evidence is no evidence unless it is tested by cross examination and reliance can be placed on it, to form the basis for conviction.[2]

CONDITIONS FOR A VALID DYING DECLARATION:

Justice Eyere in the case of R. v. Woodcack [3], says “Dying declarations are statements made in extremity when the person is at the point of death; when every motive for falsehood is silenced and when every hope of this world is gone and when his mind is induced by the most powerful spiritual considerations to speak the truth.”

There are totally seven conditions to be fulfilled in order to declare a dying declaration admissible. They are:

(A)Declarant must be dead:

In order to validate and execute the declaration, the person who gave the dying declaration must be dead. In case the person giving the declaration survives, then the declaration is no longer a dying declaration, but instead it will be used as a corroborative evidence under Section 157 of the Indian Evidence Act, the same was held in Ranjith Singh v. State of M.P[4][5].

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(B)Injuries must have caused the death:

The person must have succumbed to death due to the injuries caused, not owing to any other external or previously existing factors. [6]

(C) The declaration must be as to the cause of the death or as to any of the circumstances which resulted in the death:

The words “as to any of the circumstances of the transactions which resulted in his death” appearing in Section 32 indicated that even a suicide following certain circumstances can be treated as evidence. In Pakala Narayan Swamy v. King Emperor[7], the deceased was working in King’s ministry. The accused has allegedly borrowed a sum of Rs.3000 from the deceased. Then the deceased got a letter from the accused to come collect the money at certain place, showing the letter to his wife, the deceased leaves the house and never comes back. Few days later his body was fond on a railway track in a trunk severed into 7 pieces. The evidence of the deceased’s wife is admissible here when she accuses the accused as he was the last person to have probably seen the deceased and the circumstance that he owed him money.

(D) The cause of the death of the declarant must be in question.

(E) The Dying Declaration must be complete.

(F) The declarant must be in a fit condition while recording the dying declaration.

(G) Omission to mention the name of one accused is not irrelevant.[8]

EVIDENTIARY VALUE OF DYING DECLARATION:

In order to procure evidentiary value to a dying declaration it has to again fulfill certain criteria[9]. They are:

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(A)The dying declaration must be recorded by a competent Magistrate, but due to any emergency, in that situation if the declaration has been recorded by a doctor or a police officer, it still can be taken into consideration.

(B) The dying declaration must be recorded in the exact words in which it has been made.

(C) The said declaration must be made/recorded as soon as the incident has taken place in order to absorb the exact details and not giving time for the victim to narrate his part of the story or worse, sometimes forget some important details.

(D) The incident being narrated by the declarant should have taken place in a lighted place.

(E) When two or more declarations are being recorded, all the declarations should be identical in order to be admissible, as it is a mere test to see if the declarant is saying nothing but the truth.

ENGLISH & INDIAN LAW DISTINGUISHED:

The option of recording dying declaration has been provided only for criminal cases under English law, but under Indian Law it has been provided for both civil and criminal cases.

Under English law only when death is a hundred percent certain a dying declaration will be recorded and the same was held in R. v. Jenkins [10]. Which is not the case under Indian Laws.

Dying declaration to be made by a competent one under English Law and by a fit one under Indian Law.[11]

CONCLUSION:

When the genuineness of the declaration is at stake, more care is to be given, especially under suspicious circumstances. What happens if a part of the declaration is false and what happens to all the genuine details made by the declarant? If that is the case, the part of the declaration which is false is neglected totally and the remaining parts of the declaration is still held valid. In case the declarant survives, the declaration is no longer valid under Section 32(1) of the Indian Evidence Act but still can be taken as corroborative evidence under section 157 of the same act. In order to make the declaration more pristine, it has to be done in a Q&A format, that way the declarant can answer with a simple yes or no and increase the reliability of the declaration.[12]

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[1] AIR 2004 SC 1616.

[2] V. KRISHNAMACHARI, LAW OF EVIDENCE 234 (7th ed. 2014).

[3] (1789) 1 Leach 500 :168 E.R. 352.

[4] AIR 2011 SC 255.

[5] V. KRISHNAMACHARI, LAW OF EVIDENCE 236 (7th ed. 2014).

[6] Ibid.

[7] AIR 1939 PC 47 : 41 Bom. LR 428 : 18 Pat. 234.

[8] V. KRISHNAMACHARI, LAW OF EVIDENCE 236-72 (7th ed. 2014).

[9] Ibid.

[10] 1869 LR (1) CCR 187.

[11] Supra, n.8.

[12] Ibid.


Cite this article (The Bluebook 20th ed.)-

Gharishma Bashyam, The Concept of Dying Declaration, Ex Gratia Law Journal, (September 23, 2020), https://exgratialawjournal.in/blawg/criminal-law/the-concept-of-dying-declaration-by-gharishma-bashyam/.

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Author

Gharishma Bashyam
Student - School of Excellence in Law, The Tamil Nadu Dr. Ambedkar Law University.