By Athik Saleh
Published on : September 6, 2021 at 16:36 IST
Introduction
“A man will not make his maker with a lie in his mouth” – this is the English translation of the Latin maxim “nemo morituruspraesumiturmentire”. The value ascribed to a person’s last words before they are devoid of life is clear from the aforesaid maxim.
In July 2021, a CBI Court sentenced two policemen for life after being convicted for the custodial death of a man who was arrested in relation to a murder investigation. Before succumbing to injuries, the man had told a judicial magistrate that he was tortured by the police to extract a confession from him. In the same declaration, he also said that the police poured petrol on him. His death was registered as a suicide at first but a magisterial probe unearthed the truth.
The conviction of the policemen was based on the dying declaration of the man. The importance of dying declaration as a piece of evidence cannot be undervalued. In criminal law, statements of the accused and the victim are not considered as truth right away. They have to be corroborated by various pieces of evidence. There is only one instance where a statement of a person despite it being in favor of them is taken at face value as a statement of truth – a dying declaration.
In his poem Sohrab and Rustum, Mathew Arnold wrote something about a dying man’s last words that depicts the way the legal system looks at it as well – “Truth sits upon the lips of dying men, and falsehood, while I lived, was far from mine.” However, an important question must be asked about dying declarations and their validity – Can someone be convicted solely on the basis of a dying declaration? This article is an effort to answer that question.
What does Indian Criminal Law say about Dying Declaration?
The Evidence Act, 1872 is the holy book when it comes to dying declaration in India. However, even the Evidence Act does not have a definition for what a dying declaration is. Section 32 of the Act is the relevant section when it comes to dying declaration.
Section 32(1) of the Indian Evidence Act, 1872 talks about a statement made by a person regarding the cause of their death or about any event that resulted in their death. Such a declaration will be taken into consideration if the cause of the person’s death comes into question.
The provision makes it clear that the condition of the person at the time of making such a statement will not affect the relevancy of the statement. Whether the person was expecting death when they made the statement or not will not be important in determining the evidential value of the statement. However, it is imperative that the person who made such a statement must die for the statement to be considered as a dying declaration.
The validity of the dying declaration is derived from the earlier mentioned Latin maxim – “nemo morituruspraesumiturmentire”. The Supreme Court in Uka Ram Vs The state of Rajasthan[i] talked about the reasoning behind accepting the dying declaration. The Court held that a person giving a dying declaration is in a condition where he has no reason to speak anything but the truth. The Court supported the idea that a “dying man seldom lies”.
It mustn’t, however, be confused with saying that a dying declaration is readily accepted as evidence. It needs to satisfy certain procedural aspects before it is accepted. For instance, a person making a dying declaration must be mentally fit. That doesn’t mean that the mental fitness of a person making such a statement must be certified by a doctor. It is a precaution to make sure that the person making such a statement was fully aware of the consequences of their statement.
Similarly, as far as the mode of giving a dying declaration is concerned, there is no specific acceptable mode. The Allahabad High Court in Queen Empress Vs Abdullah[ii] held that dying declaration can be in the form of conduct, signs, gestures, etc. as well.
A couple of other criteria that come into the picture when the validity of a dying declaration is questioned are – the statement must be complete and that person giving the statement must otherwise be admissible as a witness under Section 118 of the Indian Evidence Act. The importance of a complete statement is that only such a statement will be devoid of any loopholes or doubts.
Now, let’s jump into something that has bothered anyone who has read it till this point. Considering the importance given to a statement who’s waiting (or not) for their impending death, can we assume that a dying declaration is the basis of a conviction? This question will be discussed in the next section.
Dying Declaration and Conviction
We’ve so far discussed what a dying declaration is. Although there isn’t any clear-cut definition for dying declaration in Indian law, we can gather it is a statement made by a person verbally, or through written communication, or signs, etc. while they are on their deathbed or soon before their death.
What is the validity of such a statement though? Can it be really used to convict a person and put them behind bars? The Supreme Court in Lakhan Vs State of Madhya Pradesh[iii] said something important to answer this question of ours. The court held that as long as a declaration is made by a mentally fit person without any compulsion while he made such a statement, the dying declaration can be relied on and will be considered true. The Court also held that if those conditions are fulfilled, a dying declaration can even rely on as the sole basis of a conviction.
Recently, in Jayamma & Anr. Vs State of Karnataka[iv], the Supreme Court addressed the issue of dying declaration being the sole basis of conviction. This judgment of the Court is a significant one considering how it laid down certain important aspects of the dying declaration as evidence. The Court dealt with the questions of whether a dying declaration can form the sole basis of conviction or not and whether it can be a basis of conviction without corroboration or not.
The Court held that to consider a dying declaration as to the basis for conviction, it must fulfill certain criteria.
- For the declaration to have such a huge impact on the conviction, it must not be a product of imagination. This in turn means that any kind of tutoring or prompting must not present when the declaration was given. It must be a statement voluntarily made by the person making it and must be true.
- The state of mind of the person making such a statement must be fit. They must not be mentally unsound. It is also important that the person making such a declaration understand the ramifications of their declaration.
From the aforesaid two judgements, it is clear that the standards a dying declaration must adhere to for it to be considered as the sole basis for conviction. What is important is that the statement made by the person before their death or while on a deathbed must inspire confidence. The statement must be devoid of contradictions and variations. Such a fallacy in the statement will question the veracity and truthfulness of the statement.
This in turn will benefit the accused who can not only question the believability of the dying declaration but also the manner of death. In such a situation, the benefit of the doubt has to be given to the accused.
Similarly, what happens when multiple dying declarations are contradictory at different times? The Court in State of Punjab Vs Praveen Kumar[v] laid down how to test the veracity of such a dying declaration. Accordingly, in such a case, the Court must resort to other more examinations to find out the truth. If the declaration does not match with the facts, other evidence must be resorted to by the Court to determine the truth.
In Sudhakar Vs State of Madhya Pradesh[vi] the Court gave more clarity on the issue of multiple dying declarations that are at variance from each other. The Court held that in such a case, the test of reasonableness must be applied to determine which of the declarations are more corroborated by circumstantial evidence. Again, previously discussed criteria regarding the state of the person making the statement, the truthfulness of the statement, etc. will play an important part in this case well in determining the conviction.
Dying declarations are a delicate matter. They are the words of a person who left their abode on Earth. While examining them, the Court must give the respect they warrant. On the other hand, in a criminal trial, it is important to determine the truth. In such a case, a dying declaration must fulfill the conditions laid down in various judicial pronouncements mentioned above to be the basis of a conviction. If they are doubtful, however, the benefit will be granted to the accused.
References
- Policemen sentenced to life imprisonment for Karnal custodial death
- Supreme Court clarifies law on Dying Declaration
- Dying Declaration Under The Indian Evidence Act, 1872
- No rigid standard for acceptance or rejection of dying declaration: SC
- Dying Declaration
- Dying declaration as a sole reason for conviction: an analysis
[i]Uka Ram Vs State of Rajasthan, AIR 2001 SC 1814
[ii]Queen Empress Vs Abdullah, (1885) ILR 7 ALL 385
[iii]Lakhan Vs State of Madhya Pradesh, Criminal Appeal No. 2297 of 2009
[iv]JayammaVs State of Karnataka, Criminal Appeal No. 758 of 2010
[v]State of Punjab Vs Praveen Kumar, Criminal Appeal No. 633 of 1999
[vi]Sudhakar Vs State of Madhya Pradesh, (2012) 4 SCC 327