DYING DECLARATION : AN ANALYSIS OF ITS EVIDENTIARY VALUE

Updated: Jul 16, 2020

A ‘dying declaration’ is the statement of a person who has died explaining the circumstances of his death. It is made admissible under Section 32 (1) of Indian Evidence Act, 1872. Dying declarations have historically been considered an exception to the hearsay rule. The presumption taken is that when a person is confident of his fast dissolution or when he has resigned from the hope of survival, then he would not lie because it is believed that.

  • He has nothing to loose after his death.

  • He has to face his maker, the Almighty

The admissibility of dying declaration is based on the maxim ‘Nemo Moriturus Praesumntur Mentire’ which means a person who is about to die would not lie.[1]


Illustration : If A has been burnt by B by lighting a fire such a person shortly before his death makes a declaration holding B responsible for the injuries inflicted on him. This is a dying declaration provable at the trial against B.

  • It should not be under the influence of any body or prepared by prompting, tutoring or imagination. Even if any one of these points is proved then dying declaration is not considered valid. If it becomes suspicious then it will need corroboration.

  • Dying declaration can also not be discarded only because the death took place after a few days. [2] Where death was caused by pouring kerosene and setting her on fire and she received 99% burn injuries, a dying declaration recorded by the doctor within held by the Supreme Court to be relevant.[3]

  • In Lallubhai Devchand Shah v. State of Gujarat[4], a married woman was burnt to death by her in-laws, her dying declaration was accepted and conviction was based solely on the basis of the declaration. It was held that if the truthfulness of a dying declaration is accepted, it can always form the basis of conviction of the accused.

There is no particular form of dying declaration which is identified or admissible in the eyes of law. But that must be functioning as a piece of evidence with the proper identification.


IMPLICATIONS OF INCOMPLETE STATEMENTS

Incomplete statements are when the dying declaration given by the patient could not be completed or abruptly ends, due to deteriorating condition of the patient. In such a case, this cannot affect the evidentiary value of the dying declaration since it is complete in so far.

Illustration : B makes a dying declaration : A puts kerosene on B and lit fire because….(B dies before he could say something more)

In this case, B has already named the accused but the sentence is incomplete.


In such a scenario two different impacts can be considered :


1. When the main statement has been completed and only other questions remain unanswered which would not have made any difference


If the cause of the death has been revealed by the deceased and the accused or culprit is known, but fails to answer the last formal general question, then declaration can be relied upon.[5] In the above illustration, the victim had revealed the name of the accused and the way she died(burn) and hence this declaration can be considered even if she could not complete the sentence.

2. When the patient dies in the middle of completing the main statement.


Where the condition of the deceased had become grave and a statement made by him in the presence of the doctor was taken down by the police but it could not be completed as he fell into coma due to severe burns and died subsequently, the dying declaration was held to be inadmissible because upon the face of it was incomplete and no one can tell what the deceased was about to add to his main statement.

The Apex Court had held that if a deceased fails to complete the main sentence and dies before declaring the cause of death or the name of the accused, then a dying declaration would be unreliable.


EVIDENTIARY VALUE OF A STATEMENT IF DECLARANT SURVIVES

  • One of the essential conditions of dying declaration is that the person making the statement must have died.

  • Illustration : When the burnt victim survives after giving dying declaration, the same is not statement u/s 32 of the Indian Evidence Act but is a statement in terms of Section 164 of the Code of Criminal Procedure and thus ceases to be a dying declaration, and is therefore inadmissible.[6] The statement may however be used under Section 157 of the Indian Evidence Act,1872 to contradict the credit of the person by whom it was made i.e. the surviving burnt victim. Such a statement can also be used to contradict him under section 145 of the Indian Evidence Act,1872. Further, it can be used to corroborate the evidence in Court under sections 6 and 8 of Indian Evidence Act, 1872.

The whole point of a dying declaration and the importance accorded to it rests upon the assumption that one does not lie prior to their imminent death. It would follow that death of the declarant is an irreplaceable event in it being admissible as a dying declaration.


EVIDENTIARY VALUE OF DYING DECLARATION TOGETHER WITH EXCEPTIONS THEREOF

  • In the case of K.R. Reddy v. Public Prosecutor[7] showed the evidentiary value of dying declaration in which it was observed that the dying declaration is undoubtedly admissible under Section 32 of Indian Evidence Act,1872. Also, it is not being statement on oath could be tested by cross-examination.

  • In the case, the observation made by the apex court has since then become vital precedent for the future cases. For instance, the court held that the scrutiny & the closest circumspection of the statement before acting upon it must be done by the courts trying the cases that involve dying declaration.

  • It was further held that 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.

Therefore, according to the Supreme Court of India the court must be satisfied that the deceased was in a fit state of mind to make the statement after he or she had a clear opportunity to observe & identify his assailants. It must be made sure that the deceased was making the statement without any influence.


EVIDENTIARY VALUE OF DYING DECLARATION BASED ON SUSPICION

  • In suspicious circumstances when the prosecution case is purely based on dying declaration and creates a doubt as to its genuiness, such evidence of dying declaration would hardly be sufficient to maintain the conviction. Such situations might lead to conviction of a person who did no wrong.

  • Illustration : If A makes two different dying declarations, where he says to police that B burnt her in the morning and other to magistrate where he says that she was burnt by someone but she can’t recall then this could create suspicion and may not be admissible.

  • Where two dying declarations were giving contrary versions, one dying declaration duly recorded by the doctor in presence of two other doctors stating that she was burnt by her mother-in-law and husband for failure to bring dowry. Second declaration not proved by competent witness, cannot be relied upon, and accused convicted on the dying declaration recorded by doctor[8]

  • Conviction can be recorded on the basis of the dying declaration alone if the same is wholly reliable. In the event, if there are suspicions as regards to the said dying declaration, the court should look for some corroborating evidences.

  • The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting, confusion or imagination.


EVIDENTIARY VALUE OF A MEDICAL OFFICERS OPINION

  • Medical attention is required during the whole of recording of the declaration. If the patient dies during recording, then doctor should examine and certify the patient to be dead and then the incomplete dying declaration is to be signed by all the concerned.

  • The doctor needs to be ascertain whether there is any hope of recovery of the patient; if not, he will have to assume that the statement should be taken before the patient dies and inform the other person who is recording the statement.

  • The doctor must prove the fit state of mind of the deceased before the declaration is recorded. The doctor should also certify that the mental condition of the patient is sound, so much so that, he is fully able to understand the implication and meaning of what he says or writes and is not confused.

  • Where two doctors examined the victim of burn injuries proving her to be in a fit position to make the statement, her dying declaration could not be rejected merely because of serious burn injuries on her person.[9]

  • The deceased must be in a fit state of mind to make the declaration and must identify the assailants. Certification by the doctor is only a rule of caution.


CONCLUSION AND SUGGESTIONS

The admissibility and acceptability of a dying declaration by burn victims depends on the case and must be recorded very carefully keeping in mind the sanctity which the courts attach to this piece of evidence. Over the years, Indian courts have evolved the principle of caution and have focused on the rule of clarity to ensure that as long as the statement is clear, unambiguous and matches with the prosecution case courts will lean heavily in favor of using the statement.

However, physical or mental weakness consequent upon the approach of death, a desire of self-vindication, or a disposition to impute the responsibility for a wrong to another, as well as the fact that the declarations are made in the absence of the accused, and often in response to leading questions and direct suggestions, and with no opportunity for cross-examination. All these considerations conspire to render such declarations a dangerous kind of evidence which need to be taken into account and rendered upon.

[1] Shakuntala v. State of Haryana 2007 Cr. LJ 3747 (SC) : (2007) 10 SCC 168 : AIR 2007 SC 2709 [2] Maniben v. State of Gujarat 2007 Cr. LJ 3187 (SC) ; AIR 2007 SC 1932 : (2007) 10 SCC 362 [3] Mafabhai Nagarbhai Rowal v. State of Gujarat, (1992) 4 SCC 69. [4] Lallubhai Devchand Shah v. State of Gujarat AIR 1972 SC 1776: 1972 Cr LJ 828 [5] Kusa v. State of Orissa (1980) 2 S.C.C. 207 [6] Ramprasad v. State of Maharashtra AIR 1999 SC 1969: 1999 Cr LJ 2889 [7] K.R. Reddy v. Public Prosecutor AIR 2006 SC 3236 [8] Tahsildar Singh v. State AIR 1958 All 255 [9] Om Prakash v. State of Punjab, AIR 1992 SC 132.