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TABLE OF CONTENTS

__________________________________________________________

Acknowledgement....02
Research Methodology.....04
A. Aims and Objectives.....04
B. Statement of Problem...04
C. Research Questions....04
D. Hypothesis.04
E. Method of Research......05
F. Mode of Citation...05

Table of Cases.. . 06
Chapter I: Introduction.....07
Chapter II: Critically analyse Dying Declaration
A. How dying declaration should be.08
B. Objects..08
C. Who may record Dying Declaration...09
Chapter III: Project Topic
A. Important facts to be remembered before recording Dying Declaration10
B. Dying Declaration an exception against the rule of Hearsay10
Chapter IV: Critically analyse Dying Declaration
A. Distinction between English and Indian Law12
B. Relevance of Dying Declaration..12
C. Procedures and Precautions16
D. Judicial guidelines of Dying Declaration21
Chapter V: Conclusion..............24
Bibliography25
Research Methodology

A. Aims and Objectives: The aims and objectives of this project are to understand the
concept of Dying Declaration, the purpose of having Dying Declaration is to
understand the provision laid down in Section 32 (1) of the Indian Evidence Act. The
principle of dying declaration is based on the maxim Nemo moriturus praesumitur
mentire i.e. a man will not meet his maker with a lie in his mouth. The statements
made by a person as to the cause of his death or as to circumstances of the transaction
resulting in his death is called a dying declaration.

B. Statement of Problem: There are various contradictions relating to the topic Dying
Declaration in regards to its admissibility in the court, dying declaration is an
important piece of evidence and conviction can be based solely on a dying
declaration. Its admission in evidence is necessitated by the fact that in many of the
incidents of murder there is usually no eye-witness except the injured victim. Hence,
if his statement about the circumstances in which his death occurred is not admitted in
evidence during the criminal trial, then the only evidence of crime would be lost
resulting into miscarriage of justice. Another ground, on which the admissibility of
dying declaration rests, is the belief that "truth sits upon the lips of dying men."

C. Research Questions: The research question that are related to the topic are:

1. How a dying declaration should be and who may record a dying declaration and
who may record a dying declaration?

2. What are the important facts to be remembered before recording dying


declaration? Also what are the conditions for its admissibility?

3. Distinction of dying declaration between English and Indian Law?

D. Hypothesis: An assumption being made on the research questions, a dying


declaration does not have any specific format of being recorded. It may be in the form
of questions and answers. It may be in a verbal or written form, gestures and in form
of signs, or in the form of narration. However some important facts in regards to
dying declaration is that the declarant must be in the state of giving a dying
declaration and must not be under the influence of another person.

E. Research Methodology: The research methodology in the concerned research clearly


reflects Doctrinal Research. Various books, articles and journals were used to
carefully frame the structure of this research.

F. Mode of Citation
A uniform Blue Book Mode of citation has been adopted throughout the project.

Table of Cases
Atul Gandhia v. State of Assam, 1990 Cri. L. J. 1049 (Gau).
Baburao v. State of Rajasthan, 1993 Cr. L. J. 2696 (Raj)
Dalip Singh v. State of Punjab, AIR 1979 SC 1173 1979 Cri LJ 700.
Gulab Singh v. State, 1995 Cr. L. J. 3180 (Del)
Kishan Lai v. State of Rajasthan, 1999 CriLJ4070 (SC).

Khushal Rao v. State of Bombay, AIR 1958 SC 22 1958 Crj LJ 106.

Laxman v. State of Maharashtra 2002 Cri LJ 4095

Nambhard v.The Queen, (1982) 1 All ER 183 PC.

Panchhi v. State of U.P., 1998 Cri LJ 4044 (SC

Padmaben Shamalbhai Patel v. State of Gujarat, AIR 1991 SCC (1) 744
Queen-Empress vs Abdullah, ILR 7 385.

R v. Jenkins (1869) LR 1 CCR 187.

R. v. Lawson (Raymond), (1998) CriJ L.R. 883 (CA (Crim Div))

R v. Mead (1824) 2 B & C 605

Rambai v. State of Chhattisgarh (2002) 8 SCC 33


Ram Nath Madho Prasad v. State of M.P., AIR 1953 SC 420.
Smt. Paniben v. State of Gujarat AIR 1992 SC 1817.

State of UP v Madan Mohan AIR 1989 SC 1519

Surjeet Kaur v. State of M.P. 1994 Cri LJ 1886.

1. INTRODUCTION

Dying declaration is based on the maxim Nemo moriturus praesumitur mentire i.e. a man
will not meet his maker with a lie in his mouth. The statements made by a person as to the
cause of his death or as to circumstances of the transaction resulting in his death is called a
dying declaration. Section 32(1) of the Indian Evidence Act talks about dying declaration.1 A
dying declaration is admissible in evidence even though it has not been given on oath and the
person making it cannot be cross-examined. It is an exception to the rule against hearsay.
This exception, as such dates back as far as the first half of the 1700s, the period when the
hearsay rule was coming to be systematically and strictly enforced. 2 The custom of using
dying declaration probably comes down as a tradition long before the evidence system arises
in the 1500s.3 Admissibility of a dying declaration as a relevant piece of evidence is guided
by the principle of necessity and religious belief of the olden days. The necessity being, that
in cases, where victim is the only eye-witness to the crime, the exclusion of his/her statement
might defeat the ends of justice. The religious sanction behind their admissibility comes from
the belief in the fact, that a sense of impending death produces in a man's mind the same
feeling as that of a conscientious and virtuous man under oath-nemo moriturus praesumuntur
mentiri.4

2.1 HOW A DYING DECLARATION SHOULD BE

There is no particular form of dying declaration. However, the best form of dying declaration
is in the form of questions and answers. However, whenever a dying declaration is being

1
S. 32(1) of the Indian Evidence Act provides that a statement by a person since deceased, as to the cause of his
death or any of the circumstances of the transaction that resulted into his death is relevant, irrespective of the
proceedings in which the cause of his death comes into question.
2
AshutoshSalil, An Analysis of Indian and English Position of Dying Declaration J 297, Cri.L.J.2005.
3
Id.
4
Sudipto Sarkar& V. R. Manohar, Sarkar on Evidence, 15th edn., vol. l.Wadhwa and Co., Nagpur, 1999, p. 633.
recorded in the form of questions and answers precaution should be taken that exactly what
questions are asked and what answers are given by the patient those should be written.

A dying declaration may be in the following forms

1. Written form;

2. Verbal form;

3. Gestures and Signs form. In the case ''Queen vs Abdulla''5, it was held that if the
injured person is unable to speak, he can make dying declaration by signs and gestures in
response to the question.

4. If a person is not capable of speaking or writing he can make a gesture in the form of
yes or no by nodding and even such type of dying declaration is valid.

5. It is preferred that it should be written in the vernacular which the patient understands
and speaks.

6. A dying declaration may be in the form of narrations. In case of a dying declaration is


recorded in the form of narrations, nothing is being prompted and everything is coming as
such from the mind of the person making it.

2.2 OBJECTS:

1. The presumption is '' a person who is about to die would not lie''.

2. It is also said that '' Truth sits on the lips of a person who is about to die''.

3. The victim is exclusive eye witness and hence such evidence should not be excluded.

2.3 WHO MAY RECORD A DYING DECLARATION


1. It is best that it is recorded by the magistrate.

2. If there is no time to call the magistrate, keeping in view the deteriorating condition of
the declarant, it can be recorded by anybody e.g. public servant like doctor or any other
person.

5
Qeen-Empress vs Abdullah, ILR 7 385.
3. It cannot be said that a dying declaration recorded by a police officer is always
invalid.

4. If any dying declaration is not recorded by the competent Magistrate, it is better that
signatures of the witnesses are taken who are present at the time of recording it.

Chapter III

3.1 IMPORTANT FACTS TO BE REMEMBERED BEFORE


RECORDING DYING DECLARATION
1. The declarant was in a fit condition of mind to give the statement when recording
was started and remained in fit condition of mind until the recording of dying declaration is
completed.

2. The fact of fit condition of mind of declarant can be best certified by the doctor.

3. Yet, in case of where it was not possible to take fitness from the doctor, dying
declaration has retained its full sanctity if there are other witnesses to testify that declarant
was in fit condition of the mind which did not prevent him from making dying declaration.

4. However, it should not be under the influence of anybody or prepared by prompting,


tutoring or imagination. If any dying declaration becomes suspicious, it will need
corroboration.

5. If a declarant made more than one dying declarations and if these are not at variance
with each other in essence they retain their full value. If these declarations are inconsistency
or contradictory, such dying declarations lose their value.

3.2 DYING DECLARATION AN EXCEPTION TO THE RULE


AGAINST HEARSAY
Black's Law Dictionary defines hearsay as A statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted. Hearsay evidence is testimony in Court of a statement made out of the Court,
the statement being offered as an assertion to show the truth of matters asserted therein, and
thus resting for its value upon the credibility of the out of Court asserter.6

The hearsay rule generally disallows the use of out of Court statements as evidence of the
truth of the matters asserted in that statement. Because the person who is giving this evidence
is not telling his experience but that of another person. Dying declaration is one of the
exceptions to the rule against hearsay. The main guiding reason for making dying declaration

6
http://www.lawyersclubindia.com.
an exception to the hearsay rule arises out of necessity. If this evidence not considered very
purpose of justice will be forfeited in certain situation when there may not be any other
witness to the crime except the person who has since died.7 Since, there might arise situations
where someone would have been shot at or inflicted with fatal injuries while no one was
around. In such situations to let the accused go free just because there was no witness to the
crime would result into miscarriage of justice. Hence, to avoid situations like above dying
declaration has been made an exception to the rule against hearsay.

Chapter IV

4.1 DISTINCTION BETWEEN INDIAN AND ENGLISH LAW

Sense of Impending Death

7
Dr. R. K. Gorea, Critical Appraisal of Dying DeclarationJIAFM, 2004, 26(1).
The law relating to dying declaration in India and England differs significantly. In England a
dying declaration should have been made under the sense of impending death, i.e.; the person
making it should have given up all hopes of living (Settled hope less expectation of death).8
Whereas a dying ' declaration in India is relevant whether the person who made it was or was
not, at the time it was made under the expectation of death. Thus, in India it is immaterial
whether there existed any expectation of death at the time of the declaration. In R v. Jenkins9
the deceased made a statement implicating the accused. Her dying declaration included the
words that it was made 'with no hope of my recovery'. While it was being read to her she
sought to amend the same and asked to add 'present' before hope. Thus, her dying declaration
contained the words that it was made 'with no present hope of my recovery'. The Court held,
that the statement could not be received in evidence since, at the time of making it the
deceased I was not under settled hopeless expectation of death and her dying declaration
suggested that at the time of making it she entertained a faint hope of recovery.

Had the same situation arisen in India, it would have been admitted in evidence since in India
any statement made by a person (since deceased) as to the cause of death circumstances of
the transaction resulting in death of that person is admitted in evidence. Thus, her statement
implicating the accused would have sufficed to make it admissible under Section 32(1) of the
Act. The problem with English position is that of ascertaining the existence of knowledge of
approaching death. Since, this ascertainment is to be done by the Judges depending upon the
circumstances of each case; it always leaves the possibility of subjectivity creeping in. 10

Scope of Application

In England the admissibility of a dying declaration is confined only to the cases of homicide
whereas in India a dying declaration will be admissible in any case in which the cause of
death of a person comes into question. In R v. Mead11 the accused was charged with perjury.
He obtained an order for a new trial and shot the deceased before it took place. A dying
declaration made by the deceased concerning the transaction out of which the prosecution for

8
Avatar Singh Principles of the Law of Evidence, 16th ed.2007, Central Law Publication.
9
R v. Jenkins (1869) LR 1 CCR 187.
10
Wigmore observes in ascertaining generally the existence of a knowledge of' approaching death, Courts are
now and ', then making rulings at which common sense revolts. Moved either by declination to allow the
slightest flexibility of rule in applying principles- to circumstances or by a general repugnance to exceptions to
the hearsay rule, they have recorded decisions which can only be desired by-laymen and repudiated by the
profession. C.f; supra, note 2, p. 237.
11
R v. Mead (1824) 2 B & C 605, c.f.; supra, note 8, p. 652.
perjury arose was rejected. The Court held that the dying declarations are only admissible
where the death of the deceased is the subject of the charge, and the circumstances of the
death are the subject of the declaration. For example, in India in a charge of rape, a woman's
dying declaration is admissible even if the death of the deceased is not the subject-matter of
the charge, provided that the question of her death comes in charge of rape. But, in England
such dying declaration is not admissible to prove rape.12 Since, in such cases, the death of the
deceased is not the subject-matter of the charge.

In India a dying declaration is admissible even in civil suits also. Section 32(1) of the Act
clearly provides that such statements (i.e. statements as to cause of death or as to any .............
his death) are relevant whatever may be the nature of the proceedings in which the cause of
his death comes into question. Thus, in India admissibility of a dying declaration does not
depend upon the nature of the proceedings. But in England a dying declaration is admitted
in evidence only for the criminal cases and that too it is restricted only to those cases where
the death is the subject-matter of the charge.

Evidentiary Value

Another distinction between Indian and English law is with respect to evidentiary value to be
attached to a dying declaration. This difference was pointed out in the case of Plus Jasunga
SoAkumu v. R.13 where the Court emphasized that the weight to be attached to a dying
declaration recorded under S. 32(1) of the Act would be less than the weight to be attached to
a dying declaration under common law rules. The reasoning behind such observation was that
the dying declaration under S. 32(1) would lack that special quality that is thought to
surround a declaration made by a dying man who was conscious of his condition and who
had given up all hopes of survival.

Competency of the Declarant

12
Supra, note 4, p. 634.
13
(1954) 21 EACA 331, c.f., Nambhard v.The Queen, (1982) 1 All ER 183 PC.
Under the English law, the declarant must have been competent as a witness; thus imbecility
or tender age will exclude the declaration. It is however doubtful whether this rule is
applicable in India, though there can be no doubt that declaration of a person not competent
to be a witness will carry little weight.14 In India, a child being a competent witness15, tender
age cannot be a ground for the exclusion of his/her declaration. Judicial pronouncements in
this area, while recognizing competency of a child as a witness have stressed on the need to
evaluate their evidence more carefully and with greater circumspection.16

Thus, there are significant differences between Indian and English law in the area of dying
declaration. English law is not only rigid but also narrower in its scope. The Law
Commission of England in its 245th report on Evidence in Criminal Proceedings Hearsay and
Related Topics has aptly commented that,17

Apart from the dubious psychological foundation for the exception, and the difficulty of
proving that the deceased had a settled hopeless expectation of death, the principal illogicality
of this exception is its restriction to murder and manslaughter. It does not apply to rape or
armed robbery, but there is no logical justification for such a restriction. It is also out of step
with the modern approach to res gestae, in which the emphasis is rightly on probative value.

4.2 RELEVANCE OF DYING DECLARATION

Basis of Dying Declaration How Problematic

Dying declaration is an important piece of evidence and conviction can be based solely on a
dying declaration. Its admission in evidence is necessitated by the fact that in many of the

14
M. Monir, Law of Evidence 7th ed. Universal Law Publishing Co. Allahabad, 2006, p.123.
15
S. 118 of the Indian Evidence Act reads that All persons shall be competent to testify unless the Court
considers that they are prevented from understanding the questions put to them, or from giving rational answers
to those questions, by tender years, extreme old age, disease whether of body or mind, or any other cause of the
same kind.
16
Panchhi v. State of U.P., 1998 Cri LJ 4044 (SC)
17
http www.lawcom.gov.uk74.htm.
incidents of murder there is usually no eye-witness except the injured victim. Hence, if his
statement about the circumstances in which his death occurred is not admitted in evidence
during the criminal trial, then the only evidence of crime would be lost resulting into
miscarriage of justice. Another ground, on which the admissibility of dying declaration rests,
is the belief that truth sits upon the lips of dying men.18 But, by para 2 of Clause (1) of
Section 32 of the Act, the very foundation from which the sanctity of a dying declaration is
born is pulled out from its ethical and religious base and its consequent evidentiary value.19
The paragraph makes it very clear that the person making the declaration' should not
necessarily be under expectation of death. Discarding the English principle of accepting a
dying declaration only when it is made under the settled expectation of death, this section
takes away the sincerity of the statement that is desired.

The traditional argument that, the justification for admitting a dying declaration derives from
the proposition that no one would wish to meet his maker with a lie oil' his lips is slightly
problematic in today's context. It might continue to be true of some God-fearing individuals,
but in modern society it carries little or no conviction where the majority of citizens are
concerned.20 Redfield, C.J., in Greenleaf, Evidence, write! that a dying declaration is not
received upon any other ground than that of necessity, Admission on the ground that the
declarant was under the most solemn sanction to speak the truth is far from presenting the
true ground of admission. The chief grounds of this exception in the law of evidence is the
presumption of there not being equally satisfactory proof of the same facts, and the
consequent probability of crime going unpunished.21

The main problem with dying declaration is not so much one of sincerity or faulty memory,
but one of perception. Motive of hatred and revenge may lead a declarant to make false
statements, even with the approach of death. The declarant may exhibit strong feeling of
hatred and revenge and if he is in such a frame of mind, the supposed guarantee of
trustworthiness fails, and the' declaration should not be admitted.22

Dying declaration has been subject to judicial scrutiny on innumerable occasions; the need of
relying on a dying declaration has been questioned especially in those cases where the killing
was not secret and there were other adequate testimony as to the circumstances of the death.

18
Neha Vijayvarigya, admissibility Of Dying Declaration Whether Justified2006 (1) Cri.LJ, p. 177..
19
M.G. Amin, Assumptions behind sanctity of dying declarations, (1995) 7 NLSJ, p. 88.
20
R. v. Lawson (Raymond), (1998) CriJ L.R. 883 (CA (Crim Div)), c.f. www.westlawinternational.com
21
Supra, note 2.
22
Supra, note 2.
Evidentiary Value to be attached to A Dying Declaration

There doesn't seem to be much controversy as far as, the question of a dying declaration
being a significant piece of evidence is concerned. The divergent and conflicting Judicial
opinion has been with respect to value and importance to be attached to dying declaration in
basing the conviction of an accused The Courts in India have held time and again, that a
dying declaration before it could be relied upon must pass a test of reliability, as it is a
statement made in the absence of the accused and there is no cross-examination of the
declarant to test its genuinity or veracity. Thus, a dying declaration must be subject to close
scrutiny.23A dying declaration in India stands on a different footing than in England. Under
the English law, credence and the relevancy of a dying declaration is important only when
person making such statement is in hopeless condition and expecting an imminent death.24 In
India, the weight to be attached to a dying declaration depends not upon the expectation of
death that is presumed to guarantee the truth of the statement, but upon the circumstances
and surrounding under which it was made, and very much also upon the nature of record that
has been made of it.25

It is almost a question of fact whether a dying declaration should be relied upon or not. In one
of its earliest judgments on dying declaration the Supreme Court had held that, it was not safe
to convict an accused on an uncorroborated dying declaration.26Since then, the Supreme
Court in a catena of cases has held that conviction can be based on an uncorroborated dying
declaration provided that the Court has come to the conclusion that it is true and voluntary.
The most significant being the case of Khushal Rao v. State of Bombay27 where, the Supreme
Court laid down several propositions with respect to dying declarations and these
propositions till date continue to govern the law relating to dying declarations. The Court
held, that there is no absolute rule of law that a dying declaration cannot form the sole basis

23
Supra note 17, p. 125.
24
I 25.Kishan Lai v. State of Rajasthan, 1999 CriLJ4070 (SC). 26. Supra, note 18, p. 413.
25
Supra note 22
26
Ram Nath Madho Prasad v. State of M.P., AIR 1953 SC 420. (Even in this case the above observation of the
Court came in light of the fact that the deceased was shot at during a cloudy, dark night thereby making it highly
impossible for him to recognize the person. Since, there was a possibility of the dying declaration not containing
the truthful account of what happened, the Court insisted on the corroboration of the dying declaration.)
27
Khushal Rao v. State of Bombay, AIR 1958 SC 22 1958 Crj LJ 106.
of conviction unless it is corroborated, nor can it be said that a dying declaration is a weak
piece of evidence. The Court further held that a dying declaration stands on the same footing
as another piece of evidence and has to be judged in the light of surrounding circumstances
and with reference to the principle governing the weighing of evidence. Speaking on the
same line the Supreme Court held in the case of Padmaben Shamalbhai Patel v. State of
Gujarat28 that, a dying declaration is an independent piece of evidence-neither extra strong
nor weak and can be acted upon without corroboration if it is found to be otherwise true and
reliable.

The position with respect to corroboration of a dying declaration in India is similar to that in
England. The position being, that there is no absolute rule of law that prevents an
uncorroborated dying declaration from being admitted in evidence. Courts while admitting
dying declarations need to do a great balancing act between the rights of the accused and
ensuring delivery of justice. Since, the accused cannot cross-examine declarant as to the truth
of his/her declaration; there arises need for a dying declaration that will inspire full
confidence of the Court in its correctness.29

Section 32(1) of the Act makes it clear that the declaration can be admitted only when the
death of the declarant comes into question. Such a construction poses problems in many
situations. For e. g. B and his wife were shot at. Both of them died. Mrs. B. when dying
described the assailant. Her declaration was excluded, because it was not her death but the
death of her husband that was the subject matter of the charge. Wigmore calls this exclusion
the senseless rule of exclusion. In situation such as above the declaration with respect to other
person's death also need to be admitted in order to prevent the miscarriage of justice. The law
commission of India, in its sixty-ninth report on the Indian Evidence Act, 1872 observed that
the language of the Section is even now capable of a wider construction. Accordingly it
recommended that, an explanation II might be added to Sec. 32 (1) on the following lines;

(1) The circumstances of the transaction which resulted in the death may include facts
relating to the death of another person.30

28
Padmaben Shamalbhai Patel v. State of Gujarat, AIR 1991 SCC (1) 744
29
It is neither a rule of law nor prudence that a dying declaration cannot be acted upon without corroboration. If
the Court is satisfied that the dying declaration is true and voluntary it can base a conviction on it, without
corroboration.
30
Supra, note 28, p. 375.
(2) The Court has to scrutinize the dying declaration carefully and ensure that the
declaration is not the result of tutoring, prompting or imagination and the deceased had
opportunity to observe and identify the assailants and was in a fit state to make the
declaration.

(3) Where a dying declaration is suspicious it should not be acted upon without
corroborative evidence.

(4) Normally the Court in order to satisfy whether the deceased was in a fit state of mind
while making dying declaration look up to the medical opinion. But, where the eyewitness
has said that the deceased was in a fit and conscious state to make the dying declaration, the
medical opinion cannot prevail.

4.3 Procedures and Precautions


Section 32(1) of the Act is silent about the person to whom a dying declaration can be made
and the mode of making such a dying declaration. The same has rightly not been provided
since, for someone who is breathing his last, it would be ridiculous to make him/her undergo
several procedures before he/she could get his/her dying declaration recorded. But, the
absence of sued provisions gives rise to several questions, For example, can a dying
declaration made to the only family member present at the time of killing be believed Can an
investigation officer record a dying declaration Will the statement made to a magistrate under
Section 164 of the Code of Criminal Procedure cover a dying declaration as well What
happens in cases where there is no certification by the doctor to the effect that the declarant
was in a fit state of mind while making the declaration There cannot be straight answers to
such questions since, the admissibility of a dying declaration is very fact specific and to a
great extent is determined by the circumstances under which it was made.

Section l62 (l) of the Code of Criminal Procedure provides that any statement made to a
police officer during the course of investigation is inadmissible. But Clause of the same
section makes an exception in favour of dying declaration by providing that, the provisions of
this section shall not apply to statement falling within the provisions of S. 32(1) of the Act.
The Courts have been hesitant to admit dying declarations made to an investigation officer,
for the obvious reason that investigating officers being interested in the success of
investigation might tamper with the dying declaration to tilt the balance in their favour. The
Supreme Court in the case of Dalip Singh v. State of Punjab31 has held that it is better to
leave dying declarations made to police officers- during instigation out of consideration until
and unless prosecution satisfies the Court as to why it was not recorded by a magistrate or
doctor. It further held that such declarations might be relied upon if there was no time or
facility for adopting the better method. Several High Courts have also held that it is not
prudent to base conviction on a dying declaration made to an investigating officer and the
practice of the investigating officer recording dying declaration should not be encouraged.32
It all depends on the facts and circumstances of the case. Thus, where the dying declaration
recorded by the police officer was natural, coherent, truthful, narrating incident without
embellishment and explicitly identifying accused, such dying declaration was held to be
valid.33 But, where the investigating officer had recorded the dying declaration even before
the victim was certified by the doctor to be fit for making a statement and though the victim
survived for two weeks thereafter, the investigating officer made no efforts to get this
statements recorded by a magistrate, it was held, that no reliance could be placed on such
dying declaration.34

In Rambai v. State of Chhattisgarh,35 It was held that if the person recording the dying
declaration is satisfied that the declarant is in a fit medical condition to make a dying
declaration then such dying declaration will not be invalid solely on the ground that the
doctor has not certified as to the condition of the declarant to make the dying declaration.

Similarly, there is no hard and fast rule that a doctor's certificate as to the mental fitness of
the deceased is prerequisite for the admissibility of a dying declaration in evidence. A
constitutional bench of the Supreme Court in the case of Laxman v. State of
Maharashtra36while rejecting the contention of the appellant, that since the certification of
the doctor was not to the effect that the patient was in a fit state of mind to make the
statement, the dying declaration could not form the sole basis of conviction, held, that it
cannot be said that since there is no certification as to fitness of mind of the declarant, the
dying declaration is not acceptable. The Court held that what is essentially required is that
the person who records a dying declaration must be satisfied that the deceased was in a fit

31
Dalip Singh v. State of Punjab, AIR 1979 SC 1173 1979 Cri LJ 700
32
AtulGandhia v. State of Assam, 1990 Cri. L. J. 1049 (Gau), Babura v. State of Rajasthan, 1993 Cr. L. J. 2696
(Raj)
33
I. L, R. (1979) 1 Del. 752, c.f; Deepak Arora, R. S. Dogra&Jaswant Singh, Law of Evidence, vol. 1 Madras
Law journal, Madras, 1998, p. 516.
34
Gulab Singh v. State, 1995 Cr. L. J. 3180 (Del)
35
Rambai v. State of Chhattisgarh (2002) 8 SCC 33
36
Laxman v. State of Maharashtra 2002 Cri LJ 4095
state of mind. The Court further held that a certificate by doctor is essentially a rule of
caution and therefore, the voluntary and truthful nature of the declaration can be established
otherwise. There might arise situations where it would not have been possible to get a
doctor, thus a dying declaration recorded in such situations cannot be rejected merely
because there was no one to certify the fact that the deceased was in a fit state of mind
while making the statement. In such situations the Courts need not reject the dying
declaration but should subject it to strict scrutiny to verify the truth and genuineness of its
contents. Once the Court is satisfied that the dying declaration was recorded without
deceased, being tutored, the same should be accepted and relied upon.37Thus, a dying
declaration should not be rejected merely on the ground that certain formalities were not
complied with. As long as it is truthful and voluntarily made it should be relied upon.

In Smt. Paniben v. State of Gujarat,38 the Supreme Court has laid down in several principles
governing dying declaration, which could be summed up as under

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted
upon without corroboration.

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base
conviction on it, without corroboration.

(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting or imagination. The deceased had an
opportunity to observe and identify the assailants and was in a fit state to make the
declaration.

(iv) Where dying declaration is suspicious, it should not be acted upon without
corroborative evidence

(v) Where the deceased was unconscious and could never make any dying declaration the
evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does contain the details as to the occurrence, it is
not to be rejected.

37
Surjeet Kaur v. State of M.P. 1994 Cri LJ 1886.
38
Smt. Paniben v. State of Gujarat AIR 1992 SC 1817.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the
contrary, the shortness of the statement itself guarantees truth.

(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition
to make the dying declaration look up to the medical opinion. But where the eye-witness said
that the deceased was in a fit and conscious state to make the dying declaration, the medical
opinion cannot prevail.

(x) Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon.

(xi) Where there are more than one statement in the nature of dying declaration, one first
in point of time must be preferred. Of course, if the plurality of dying declaration could be
held to be trustworthy and reliable, it has to be accepted.

In the case of State of UP v Madan Mohan39 court admitted that Conviction can be based on
it without corroboration if it is true and voluntary. Dying declaration becomes unreliable if it
is not as per prosecution version. This has been summed up the Supreme Court

1. It is for the court to see that dying declaration inspires full confidence as the maker of
the dying declaration is not available for cross examination

2. Court should satisfy that there was no possibility of tutoring or prompting.

3. Certificate of the doctor should mention that victim was in a fit state of mind.
Magistrate recording his own satisfaction about the fit mental condition of the declarant was
not acceptable especially if the doctor was available.

4. Dying declaration should be recorded by the executive magistrate and police officer to
record the dying declaration only if condition of the deceased was so precarious that no other
alternative was left.

5. Dying declaration may be in the form of questions and answers and answers being
written in the words of the person making the declaration. But court cannot be too technical.

4.4 JUDICIAL GUIDELINES ON DYING DECLARTION


39
State of UP v Madan Mohan AIR 1989 SC 1519.
Sudhakar v . State of Maharashtra , AIR 2000 SC 2602 (2000) 6 SCC 671

In this case the Honble Supreme Court has laid down following guidelines-

1. Section 32 is an exception of the rule of hearsay and makes admissible the statement
of a person who dies, whether the death is a homicide or a suicide, provided the statement
relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as
indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society
and the diverse nature and character of our people, has thought it necessary to widen the
sphere of section 32 to avoid injustice.

2. The test of proximity cannot be too literally construed and practically reduced to a
cut-and-dried formula of universal application so as to be confined in a straight- jacket.
Distance of time would depend or vary with the circumstances of each case. For instance,
where death is a logical culmination of a continuous drama long in process and is, as it were a
finale of the story, the statement regarding each step directly connected with the end of the
drama would be admissible because the entire statement would have to be read as an organic
whole and not torn from the context. Sometimes statements relevant to or furnishing an
immediate motive may also be admissible as being a part of the transaction of death. It is
manifest that all these statements come to light only after the death of the deceased who
speaks from death. For instance, where the death takes place within a very short time of the
marriage or the distance of time is not spread over more than 3-4 months the statement may
be admissible under section 32.

3. The second part of clause (1) of section 32 is yet another exception to the rule that in
criminal law the evidence of a person who was not being subjected to or given an opportunity
of being cross-examined by the accused, would be valueless because the place of cross-
examination is taken by the solemnity and sanctity of oath for the simple reason that a person
on the verge of death is not likely to make a false statement unless there is strong evidence to
show that the statement was secured either by prompting or tutoring.
4. It may be important to note that section 32 does not speak of homicide alone but
includes suicide also, hence all the circumstances which may be relevant to prove a case of
homicide would be equally relevant to prove a case of suicide.

5. Where the main evidence consists of statements and letters written by the deceased
which are directly connected with or related to her death and which reveal a tell-tale story,
the said statement would clearly fall within the four corners of section 32 and, therefore,
admissible. The distance of time alone in such cases would not make the statement irrelevant.

Chapter V

CONCLUSION -

A dying declaration is indeed an important piece of evidence. So much so that conviction can
be based solely on the basis of a dying declaration. An analysis of both English and Indian
position makes it very clear that dying declarations continue to enjoy sacrosanct status in
evidence. The question that needs to be answered is how relevant dying declarations are in
today's context and how much reliance can be placed on it. The basis for the sacrosanct status
of dying declarations continues to be the good old belief 1 that a man will not meet his maker
with a lie on his lips. This belief presupposes that people are religious and they will not lie on
their deathbed. But, this does not seem to; happen in real life where feelings of hatred,
revenge and many times love take precedence over the urge to speak the truth. This ironically
belies the very principle underlying the admittance of dying declarations, i.e. a man will
not meet his maker with a lie on his lips. The general principle on which this species evidence
is admitted is that they are declarations made in extremity, when the person is at point of
death and when every hope of this world is gone. At that point of time every motive to
falsehood is silenced and the mind is induced by the most powerful consideration to speak the
truth. Such a Solemn situation is considered by the law as creating an obligation equal to
which is imposed by a positive oath administered in a court of justice. The dying declarations
are weak kind of evidence even though they are based on the principle that a person would
not die with a lie in his mouth. The law related to dying declaration need certain changes to
be incorporated into it, so as to make it more relevant in todays context.

BIBLIOGRAPHY

PRIMARY SOURCES

SECONDARY SOURCES

JOURNAL
An Analysis of Indian and English Position of Dying Declaration Ashutosh Salil,
J 297,Cri.L.J.2005
"Admissibility Of Dying Declaration: Whether Justified Neha Vijayvarigya,"2006
(1) Cri.LJ
"Assumptions behind sanctity of dying declarations", M.G. Amin, (1995) 7 NLSJ,
, Law of Evidence, Deepak Arora, R. S. Dogra & Jaswant Singh vol. 1 Madras Law
journal, Madras, 1998

I. BOOKS:
Sudipto Sarkar & V. R. Manohar, Sarkar on Evidence, Lexisnexis
Butterworths Wadhwa 15th edition,2010
Dr.Avatar Singh Principles of the Law of Evidence, Central Law
Publication,16th ed.2007
M. Monir, Law of Evidence, Universal Publications, 7th ed 1999

II. WEBSITES

http:/www.lawyersclubindia.com/articles