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Dying Declaration- Hathras Case.

The appalling gang rape of a nineteen year old Dalit girl sparked an outrage in the populace of the nation. On September 22nd, a week before she succumbed to her injury, informed the magistrate in Aligarh that four men (Ravi Singh, Sandip Singh, Lavkush Singh and Ramu Singh) had physically assaulted and raped her on September 14th.[1] The question in issue, in the present case and for the purpose of this essay is to determine the position of a dying declaration vis-a-vis the facts of this harrowing incident.

Section 32 of the Indian Evidence Act, talks about those statements as ‘relevant fact’, under certain specified circumstances which are made by the person who is dead, or made by someone who cannot be found, or has become incapable of providing evidence or by someone who cannot attend without causing delay or at an unreasonable expense as determined by the court.[2] The circumstance which is of importance in this particular case is laid down under sub section 1 of section 32 of the Act, which states that, “When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.”[3] These kinds of statements are relevant even when the person who made them was not under the expectation that he would definitely die. These statements are commonly known as dying declaration.

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Under this clause, as was held in the case of Emperor vs. Mohammed Shaikh[4] “information would be admissible evidence, which is lodged by a person who died subsequently relating to the cause of his death.” The underlying premise of dying declaration is embedded in the Latin maxim, “nemo moriturus proesumitu mentiri” meaning that a man would not meet his maker with a lie in his mouth[5], well this clearly leaves the atheists out of its scope. The principle has been derived from the English law but it is not applied as it is applicable in the English courts. For instance there, dying declaration is considered only in the situation when the declarant was under the expectation of death[6] which is not the case in India. So if the argument is made on the basis that the victim immediately did not die, would not stand in the Indian context because of the broader and inclusive definition provide in the Act, which is in concurrence with the understanding of the ground reality.

Another, essential feature for a dying declaration is that there should exist a proximate relationship between the circumstances of death and the statement which is made[7] and also that the statement should be about the declarant’s cause of death.[8]in this case both the conditions are fulfilled as the statement made by the victim was about telling who had raped her which was the reason of her dying (she succumbed to the injuries which were a result of the rape) and also the fact that she, the declarant had made the statement in front of the magistrate about her own cause.

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Another question which might arise is, whether the declaration made can be accepted solely, without any other evidence to support it or what is called as corroboration. The answer is in negative, if it is found that the declaration made was not coerce that is it was voluntary and true then there is no further need of supporting evidence.[9]So in the present case the declaration cannot be rejected on the grounds that a declaration can be accepted on its own.

What matters the most while determining the acceptability of a dying declaration is the circumstances of the case, therefore there can be a check list when it comes to dissecting a dying declaration. Special focus has to be made on the facts of the case, the circumstances in which the declaration was made and position of the person making the same. After briefly looking into various facets of a dying declaration and when it is relevant, it can be safely concluded that the dying declaration made by the victim of the gang rape in Hathras, is admissible.


[1] V. Venkatesan, Why the Dying Declaration of the Hathras Victim Is Legally Admissible Evidence, THE WIRE, October 3rd, 2020.

[2] The Indian Evidence Act, No. 1 of 1872, INDIA CODE, (1872), vol.16.

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[3] Ibid.

[4] (1942) 2 Cal. 144.

[5] AVTAR SINGH, THE PRINCIPLES OF THE LAW OF EVIDENCE 195 (23rded. 2018).

[6] R vs. Osman, (1831) 15 Cox. C.C. 1.

[7] Supra 5, at 199.

[8] Ibid, at 200.

[9] Kalawati vs. State of Maharashtra, A.I.R. 2009 S.C. 1932.


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

Aditi Mehta, Dying Declaration- Hathras Case., Ex Gratia Law Journal, (November 26, 2020), https://exgratialawjournal.in/blawg/law-of-evidence/dying-declaration-hathras-case-by-aditi-mehta/.

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Author

Aditi Mehta
Student - Tamil Nadu National Law University