By Stuti Hasmukh Oswal
Published on: September 7, 2021, at 19:20 IST
Introduction
The term “dying declaration” means a statement given by a person who is lying on their death bed. Such a statement maybe made in writing or orally. The term dying declaration is recognized by the Indian Evidence Act, 1872. The statement is treated as a dying declaration only after the person is dead.
A dying declaration is admissible in all kinds of civil and criminal proceedings. The dying declaration concept has arisen from the legal maxim “Nemo moriturus praesumitur mentire”, which means that “a man will never meet his maker with a lie in his mouth”.
What are the related provisions under the Indian Evidence Act, 1872?
Section 32 of the Indian Evidence Act, 1872 talks about dying declaration. It states that the cases in which statement made by a person who is dead or missing or cannot be found and to find such a person one will have to spend huge expenses or face delay which the court thinks is unreasonable will be a relevant fact. The section further lays down the section in which such facts will be relevant they are as follows:
- Section 32(1)
This section is referred to in cases when it is related to cause of death. It states that when a statement is made by person in relation with his death or circumstances in which his death may be caused then such statements are relevant. These statements are said to relevant even if they are made by a person who was or was not under hope of living. Such statements are said to be relevant in all kinds of proceedings
- Section 32(2)
This section is referred to in cases where it is made in course of business. A statement made in the ordinary course of business by a person and which involves in discharge of his professional duties, any acknowledgement received written or signed or any such other documents which are written or signed by such person are relevant facts.
- Section 32(3)
This section is referred to in case where such statement made is against the interest of the person making the same. When the claim goes against the person making it or in case the person making it will be exposed or bring himself into a criminal proceeding or be sued for damages then even these states are considered as relevant facts.
- Section 32(4)
This section is referred to in cases when such statements give opinion as to public rights, customs and matters of general interest. When statements are made in relation to the existing public right or practice or on matter of the public interest or the common good.
- Section 32(5)
This section is referred to in cases when it relates to existence of a relationship. The person making the statement was in close relationship and hence while making the statement had complete inside information which was unknown to others.
- Section 32(6)
This section is referred to in case where there is will or deed relating to family affairs. The statement is required to be made before the question in dispute came into existence. Statements made in relation with any existing relationship with the person who is deceased in any will or deed of the family or any place in which such statements are usually made.
- Section 32(7)
This section is referred to in cases when a document relating to a transaction is mentioned.
- Section 32(8)
This section is referred to in cases where several people express their feeling which is relevant to the matter.
How are Dying Declarations recorded?
Dying declarations can be recorded in mainly three forms which are as follows:
- Written
- Oral
- Actions and Gestures
Who Can Record a Dying Declaration?
- Magistrate can record dying declaration and holds the utmost evidentiary value.
- Doctors and Police are also authorized to record dying declaration.
- It can be recorded by other people as well subject to the fact that it was not possible for the person making the dying declaration to reach any official person and that the person to whom such declaration was made has given the exact word to word declaration without any manipulation.
Illustrations
Illustration 1:
A man namely Mr. Manish Mehta was walking down a street in Delhi. One, Mr. Jetha Shah who was an enemy of Mr. Manish Mehta started following him. After walking a few steps Mr. Jetha Shah ran towards Mr. Manish Mehta with a knife and stabbed him in the stomach and ran away. Mr. Manish Mehta was in lot of pain and started crying for help.
Upon hearing screams for help, an inspector who was in a nearby shop rushed to the place where Mr. Manish Mehta was lying on the floor in immense pain. The Inspector then questioned Mr. Manish Mehta “what happened to you?”. Mr. Manish Mehta replied that “I was stabbed with a knife”. Mr. Manish Mehta was then asked by the Inspector again “who has stabbed you?”. Mr. Manish Mehta answered the said question by replying that “Mr. Jetha Shah has stabbed me with a knife in my stomach”.
After the completion of this sentence Mr. Manish Mehta died. Now here, the question that arises is that will the statement “Mr. Jetha Shah has stabbed me with a knife in my stomach” be called as a dying declaration? The answer to this question will be Yes!
Provided that the following conditions are fulfilled:
- There was no possibility of the victim being tutored or prompted.
- The certificate of a doctor is there that mentions that the victim was in a fit state of mind.
- The declaration was recorded by the police officer unless the condition of the deceased was so precarious that no other alternative remedy was available.
It must also be noted that a dying declaration can be made in the form of questions and answers being written in the exact words of the persons that is making the dying declaration. Under these circumstances, when no other evidence is available the courts cannot be too technical about the admissibility of a dying declaration in the form of evidence.
Illustration 2:
A woman named Mrs. Aishwarya Deewan was shot by her arch enemy Mr. Banya Bhai. She was taken to the hospital immediately. She thought she was about to die and hence decided to tell the doctor who shot her. She said “Doctor, I was shot by Mr. Banya Bhai.” The doctors put all their efforts in saving Mrs. Aishwarya Deewan. With the help of the doctor and God’s grace her life was saved and she lived. Will the statement that was given to the doctor amount to dying declaration?
The answer to this question is No!
The statement is said to be a dying declaration only after the person has dies. If the person is about to die but somehow survives the statement made can be recorded as a witness statement in the court of law. While recording a dying declaration it is presumed that the person giving the statement is about to die.
Recent Cases on Dying Declaration
- In the case of Jayamma & Anr Vs State of Karnataka[i] the Supreme Court of India reversed the order of acquittal. It was of the opinion that it is necessary to understand “the significance of a dying declaration as the solitary piece of evidence in a murder trial” the court observed that it was impossible for the victim to give such a detailed accurate narration of the incident.
The victim being illiterate could not have possibly been able to do so. It also observed that the victim was almost 80% burnt and was not fit to give such detailed narration. There was enough time to call for an assistance of Judicial Magistrate but the they failed to do so and hence the court concluded to not rely on the dying declaration.
Though Dying declaration is an important piece of evidence it also acts as an exception to the general rule against the admissibility of hearsay evidence.
- In a recent judgement of Kerela High Court a woman gave a dying declaration to her son, daughter, doctor and the Judicial Magistrate. The opponent made an argument that the dying declaration was give to interested parties.
The Court made an observation on this argument that “the son and daughter of the victim though closely related cannot be termed to be interested witnesses, especially since their interest would be only in bringing to book the assailant of their mother”. It further observed that the woman had made the same dying declaration every time. This consistent and repetitive dying declaration made by the woman was found to be strong and credible evidence.
Case Laws
- Ulka Ram Vs State of Rajasthan[ii]
Definition of dying declaration given
The Supreme Court held that when a person has made a statement as to cause his death or as to any circumstances of transaction which have led to his death and when the cause of his death comes in question is admissible in the form of evidence, such statement in law are compendiously called dying declaration.
- P.V.S Radhakrishna Vs State of Karnataka[iii]
Principle for dying declaration stated
The Apex Court held that the principle on which a dying declaration is admitted as evidence in a Court of law has been indicated in the latin maxim, nemo morturus procsumitur mentri, which literally means that a man will not meet his maker with a lie in his mouth. Information lodged by a person who died subsequently relating to the cause of his death and is admissible in evidence under this clause.
- Queen-Empress Vs Abdullah[iv]
Dying declaration can be made in signs and gestures
The court held that if the person who is dying is unable to speak then a dying declaration can also be made in the form of signs and gestures and they can be admissible in the form of evidence depending on how effective and understandable the nods and gestures were.
- Barati Vs State of UP[v]
Dying declaration made to relatives is also valid if it is proved appropriately
The court held that the dying declaration made to the relatives of the deceased can also be trusted if it has been proved appropriately. The Supreme Court observed that since the dying declaration in the said matter has been recorded by the wife of the deceased the Court did not reject it on the only ground though it added that in such matters, the evidence shall be scrutinized carefully.
- Ramilaben Vs State of Gujrat[vi]
Dying declaration not taken into account
The Court held that the victim had received second degree burns that led to the death of the injured within 7 to 8 hours. During this period, four dying declarations had been recorded in the absence of any medical certificate and due to this, paired with other doubtful features, evidence not taken into account.
Conclusion
A dying declaration is considered to the most important evidence which should be carefully taken into account as it is one of the most influential statements admissible in court which is taken before the death of the victim. The statement taken states the reason and circumstances leading to the death of the victim. It is essential for the courts to make sure that such statement has not been tampered.
In many cases held before the Supreme Court of India it was observed that “the accuracy of the dying declaration must be examined to ensure that there is no inconsistency, as this is a statement that cannot be cross-examined and hence, it is to be carefully examined to be admissible in the court of law.”
Reference
[i] Jayamma & Anr Vs State of Karnataka Criminal appeal 758 of 2010
[ii] Ulka Ram Vs State of Rajasthan (Appeal (crl.) 749 of 2000)
[iii] P.VS Radhakrishna Vs State of Karnataka (Appeal (crl.) 1018 of 2002)
[iv] Queen-Empress Vs Abdullah (1885) ILR 7 All 385
[v] Barati Vs State of UP 1974 AIR 839
[vi] Ramilaben Vs State of Gujrat AIR 2002 SC 2996