DYING DECLARATION: A CRITICAL ANALYSIS
This article was written by Toshali Pattnaik a student of National Law University, Assam
Introduction:
The phrase ‘dying declaration’ has not been explicitly used in Section 32 of the Indian Evidence Act. The headnote of the relevant section states as follows, “Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.” By and large, the section deals with the ‘relevant facts’ made by a person who is dead, or who cannot be found or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case appears to the Court unreasonable.[1] However, the essence of the section 32 (1) is described by the phrase ‘dying declaration’. The popularity of this phrase roots from the constant judicial usage and endorsement in a plethora of cases. Seemingly, the hearsay character of dying declaration has attributed its significance as a piece of evidence. Speaking on Indian context, due to unabated occurrence of heinous offences such as dowry deaths and homicides and even suicides[2], the dying declaration, as a very effective means of proving complex and hidden facts has acquired phenomenal importance. The reason why dying declaration is equated with hearsay is that the declarant is not available to depose before the court and the deponent may not have perceived the truthfulness and veracity of the fact stated by the dying declarant.[3]
Dying Declaration under English Law:
In cases of homicide, statements made by a person, since deceased, are admissible to prove the cause and circumstances of the man’s death. Such statements are called ‘dying declarations.’[4] But such statements under the English law should be made when he was in ‘settled hopeless expectation of imminent death.[5]’ The admissibility of dying declaration as an evidence lies on the latin maxim ‘nemo moriturus praesumitur mentire’ which means ‘a man will not meet his maker with a lie in his mouth.’ The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.[6] However, dying declarations ought to be admitted with scrupulous care.[7]
Distinction Between English And Indian Law:
The distinction between English law and Indian law in the ground of dying declaration has been elaborately dealt in Rajindra Kumara v. State.[8] Under English law, the essentials of a dying declaration are:
- The declarant should have been in actual danger of death at the time when they were made.
- He should have had a full apprehension of his
- Death should have ensued.[9]
These conditions must be proved to the satisfaction of the judge before a dying declaration can be received. Both in England and America, dying declaration is not admissible as evidence in any civil case and in criminal cases; it is not admissible upon charges other than homicide, or as to homicides other than that of the declarant.
However, these conditions are not envisaged in sec-32 Of the Indian Evidence Act. It is not required for a maker to be in expectation of an imminent death while making such a declaration[10] nor is it restricted to cases of homicide. Because of this construction, it becomes increasingly necessary to know that the age old adage that the dying person speaks the truth does not have relevance in all dying declarations. Moreover, dying declaration can be considered as relevant evidence in both, criminal and civil proceedings, whenever the cause of his or her death comes into question.
Validity of Dying Declaration under Indian Law:
The provision in Section 32(1) of the Indian Evidence Act, 1872 has been made by the legislature as a matter of sheer necessity, by way of an exception to the general rule that hearsay is no evidence and that evidence which has not been tested by cross-examination, is not admissible. [11] Thus, the legislature has granted a special sanctity to dying declaration. The question of legality or validity of dying declaration as a piece of evidence for convicting a person has been widely debated and analyzed in a catena of cases. In Ram Nath Madhoprasad v. State of Madhya Pradesh[12], it is not safe to convict an accused person merely on the evidence furnished by a dying declaration. In order to pass the test of reliability, a dying declaration should be subject to close scrutiny. However, once the court comes to the conclusion that the dying declaration was true as to the circumstances of the death and assailants of the victim, no further corroboration of evidence is required[13]. Moreover, it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated. As a general proposition, it cannot be stated that dying declaration is a weaker piece of evidence than others. In Emperor v. Premanand Dutt[14] , it was held that it is not permissible to accept a dying declaration in part and to reject the other part and that a dying declaration stood on a widely different footing from the testimony of a witness given in the Court. Thus, on the verge of death, a person is unlikely to make a false statement, unless he has been prompted or tutored to do so.
One of the necessary conditions of admissibility of dying declaration is that the circumstances must have a proximate relation to the actual occurrence. The circumstances of the transaction should be what resulted in the death of the declarant.[15] Thus, it can be concluded that the Indian law has departed considerably from the English law in this regard.
Conclusion:
The admissibility of dying declaration as a piece of evidence for convicting an accused is yet a matter in need of scholastic debates and intellectual interpretation. The circumstances, procedure of recording, the person recording the declaration and the state of mind (consent) of the declarant, give rise to issues in need of further judicial interpretation. However, keeping in mind the opinions of the various courts, it can be concluded that the dying declaration should be recorded scrupulously owing to the sanctity that the courts attach to it. It will retain its full value only if it has been made voluntarily and is true. Convictions can be made on this basis, without the need of any corroboration, if the court is satisfied that the declaration made is true. Moreover, the certificate of the doctor should reflect that the declarant was in a fit state of mind at the time of making the declaration. All these conditions have to be considered while relying on a dying declaration as a piece of evidence.
[1] Indian Evidence Act, 1872, § 32.
[2] Sharad v. State of Maharashtra AIR 1984 SC 1622. See also Kishan Bahadur v. State of Andhra Pradesh 1994 Cr LJ 1418.
[3] 2 Woodroffe and Amir Ali, Law of Evidence 1623 (19th ed. 2013).
[4] 1 Sudipto Sarkar, Sarkar Law of Evidence: In India, Pakistan, Bangladesh, Burma, Ceylon, Malaysia & Singapore 878 (18th e.d. 2014)
[5] R v. Peel 2 F&F 21. See also R v. Gloster 16 Cox 471, R v. Hayward 6 C & P 160, R v. Jenkins LR 1 CCR 92.
[6] R v. Woodcock (1787) 1 Leach 500, 504. See also R v. Perry 1909 2 KB 697, 701, Sham Shankar Kankaria v. State of Maharashtra (2006) 13 SCC 165.
[7] R v. Jenkins LR 1 CCR 92.
[8] Rajindra Kumara v. State AIR 1960 Punj 310.
[9] 1 Sudipto Sarkar, Sarkar Law of Evidence: In India, Pakistan, Bangladesh, Burma, Ceylon, Malaysia & Singapore 878 (18th e.d. 2014)
[10] Pakala Narayanan Swami v. Emperor AIR 1939 PC 47. See also State v. Kanchan Singh AIR 1954 All 153.
[11] 2 Woodroffe and Amir Ali, Law of Evidence 1623 (19th ed. 2013).
[12] Ram Nath Madhoprasad v. State of Madhya Pradesh AIR 1953 SC 420.
[13] Ram Nath Madhoprasad v. State of Madhya Pradesh AIR 1953 SC 420. See also Khushal Rao v. State of Bombay (1958) SCR 552, Tarachand Damu Sutar v. State of Maharashtra (1962) 2 SCR 775, Munnu Raja v. State of Madhya Pradesh 1976 3 SCC 104.
[14]Emperor v. Premanand Dutt ILR 52 Cal 987.
[15] Pakala Narayanan Swami v. Emperor AIR 1939 PC 47. See also Shiv Kumar v. State of Uttar Pradesh 1966 Cr Appeal R SC 281.
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