By Samriddhi Thakar
Introduction
Recently, the Supreme Court of India discussed the significance of dying declaration as a solitary piece of evidence in a murder trial.[1] The term dying declaration is self-explanatory. It is a statement that contains circumstances or reasons for the death of a particular person.
A dying declaration is considered as trustworthy evidence as it is based upon a belief that a person may not lie when he is on the deathbed.
Thus, this article explains dying declaration and recent Supreme Court judgement on it.
What is Dying Declaration?
Dying declaration is derived from the word “leterm mortem” which means “words said before death”. It is a statement made by a person before his/her death. It contains the circumstances or the reasons for the death.
Therefore, this statement is called as “Dying Declaration”. It can be in any form i.e. oral or written. This statement is also admissible and treated as evidence in the Court.
This declaration is based on the maxim “Nemo moriturus praesumitur mentire” that basically means that a man will not meet his maker with a lie in his mouth. It simply means that a dying man will never lie.
The admissibility of dying declaration is explained under Section 32(1) of the Indian Evidence Act, 1872 states that:
“When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”
It means that when a person makes a declaration or statements when he is on the deathbed it is admissible and treated as evidence in the Court of law. It is also presumed to be true as a person would not lie while dying.
However, this declaration is an exception to the rule of hearsay evidence. As there is no other person than the victim to the crime, the exclusion of his statement would defeat the end of justice.
What was Supreme Court’s take in recent dying declaration case?
The Supreme Court in the recent case of Jayamma & Anr Vs State of Karnataka,[2] discussed the significance of a dying declaration in a murder trial.
Facts
It was a case where a quarrel took place between appellant no.1 and the deceased where the son of the deceased assaulted and injured the husband of appellant no.1. After the incident took place the appellant went to demand from the deceased Rs.4000 for the medical expenses.
After the heated exchange of words, the appellant doused the deceased- Jayamma in kerosene and set her on fire.
After hearing the wails, the witness took the deceased to the primary health care centre. Further, the Police registered a case against the appellants under Section 504, 307, 114 read with Section 34 of the Indian Penal Code (IPC).
On the death of Jayamma, the police notified the Court to alter the offence from Section 307 read with Section 32 to Section 302 read with Section 34 of the IPC.
After completion of the investigation, the case was submitted to the Court of Additional Session Judge where charges were framed under Section 504, 302, 114 read with Section 34 of the IPC. The Appellants pleaded not guilty to the same and claimed trial.
The High Court reversed the trial court findings and held that the evidence consisting of dying declaration was clinching and sufficient to prove the guilt. The appellants filed an appeal before the Supreme Court challenging the same.
Judgement
The Supreme Court observed that the dying declaration has been recorded in accordance with the law, it gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as a solitary piece of evidence to convict the accused.
The Court further said that Section 32 of the Indian Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence and Clause (1) makes the statement of the decease admissible. The Court further said that a dying declaration is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by motive or malice. Therefore, the declaration is admissible as evidence on the principle that there is very little hope of the survival of the maker, and if found reliable, it can certainly form the basis for conviction. [3]
Further, the Court observed that the litmus test was whether the victim made the statements and if so, whether such statements can be the solitary foundation for the conviction of the appellant.
Hence, the Court referred to various cases regarding the admissibility of the declaration as the victim was suffering from burn injuries and have been under medicines.
The Court in the case of P.V. Radhakrishna Vs State of Karnataka,[4] considered the question of whether the percentage of burns suffered is a determinative factor to affect the credibility of a dying declaration and the probability of its recording.
The Court held that this would depend upon the nature of the burn, part of the body affected, impact of burn on the faculties to think and other relevant factors.
Further, in case of Chacko v. State of Kerala,[5] the Court declined to accept the case based on dying declaration as the deceased was around 70 years old and had suffered 80% burns. Hence, the Court held that it was difficult to accept the detailed declaration after lapse of about 8 to 9 hours of the burning.
The Court also said that it is very difficult to give minute details regarding the motive and the way he suffered the injuries. It also raised grave doubts regarding the genuineness of the document.
In another the case of Sham Shankar Kankaria Vs State of Maharashtra,[6] it was stated that the dying declaration is only a piece of untested evidence and should satisfy the Court that what is stated therein is the absolute truth and safe to act upon it.
In the case of Sampat Babso Kale and Another Vs State of Maharashtra,[7] a dying declaration was made by the victim who was suffering from 98% burn injuries and the statement was recorded after giving painkillers. Hence, there was serious doubt regarding the mental condition of the victim as the painkillers could lead to possible case of delusion.
After reviewing various case-laws the Supreme Court referred those cases to the present case and found that there were only two witnesses i.e. the police officer and the doctor.
Further, the victim was suffering from fourth degree burns and was given painkillers immediately after he was admitted. Hence, it cannot be ruled out that the victim was not delirious and confused while giving the statement. Also, the statement was recorded without taking the fitness certificate of the doctor.
Hence, the Supreme Court found it very difficult to convict the appellants based on the dying declaration and gave the reasons for the same:
Firstly, the Court held that the facts narrated by the victim are so accurate that even a witness in a normal state cannot be expected to narrate them with such accuracy.
The dying declaration is not in question answer format. Hence, we cannot rule out that there can be direct or indirect dominance of the police officer influencing the answers in one direction.
Secondly, the Court held that the victim was an illiterate old person. So, it is highly impossible to narrate the whole incidence in short time with high degree of precision.
Thirdly, there was sufficient evidence on the record that the victim was administered with highly sedative painkillers due to 80% burns over the vital parts of the body. The victim was in pain and agony and hence the possibility of suffering from delusion and hallucination cannot be ruled out.
Also, the fitness certificate was administered after taking the declaration and not before.
The Court also held that the over enthusiasm of the police officer to solve criminal case swayed him so much that he did not take fitness certificate from the doctor before recording the statement. He did not even call the judicial magistrate to record such statement.
Fourthly, there was serious difference of opinion regarding the injuries suffered by the victim on different parts of the body between the police officer and the doctor. It was held by the police officer that the hands of the victim very safe and she could put thumb impression.
On the other hand, it was held by the doctor that the hands of the victim were also burned.
Fifthly, the police officer did not take fitness certificate from the doctor before recording the statement. The Court held that certificate fitness is utmost important in such cases and the importance is explained through various case-laws.
Both the police officer and doctor have tried to cover up this serious lacuna by taking oral fitness certificate of the victim. And later, to secure the legal lacuna, he secured the endorsement of doctor on the available space of the paper.
Sixthly, the motive for the homicidal death is very doubtful. There is no evidence regarding what exactly happened at that time and the prosecution also did not verify the same. Also, the son and daughter-in-law of deceased denied of any such incident took place and rather said that their mother died due to suicide.
Seventhly, the Court held that they would have considered the death of victim as homicidal if the son and daughter-in-law of victim would have witnessed the occurrence of event and lodged a complaint in police station.
The evidence of police officer and doctor specifically mentions that no one from the family of the victim present in the hospital reported such gruesome crime to the police officer. Thus, this unusual behaviour leads to parallel version that the victim might have committed suicide.
Lastly, it was held by the Court that they are reluctant to accept the contents of the dying declaration as the victim was admitted in the hospital way earlier and succumbed to the burn injuries the next day.
The aftermath of recording the declaration is also not mentioned whether she became unconscious or went into coma, no such information is available.
Also, the prosecution had sufficient time to call the judicial magistrate to record the dying declaration. They are generally called upon as such officers are judicially trained to record the declaration in accordance with the requirements and muster additional strength to the prosecution case.
Hence, the Supreme Court held that due to all such situations it is unsafe to convict the appellants on the solitary basis of dying declaration and the appellants are set free.
What can be concluded from the above judgement?
From the above case law, we can conclude that to prove dying declaration as solitary piece of evidence it should be recorded by the judicial magistrate as he is the appropriate authority to record the same.
The recording collected by him is considered as impartial and it eliminates any chances of false implication and has evidentiary value. Further, he is empowered to record the dying declaration under Section 164 of the Criminal Procedure Code. But if he is not available then it can be recorded by anyone by taking fitness certificate of the doctor.
Further, the fitness certificate of doctor is very important as it tells about the victim’s mental condition and avoids wrongful conviction. In Kushal Rao Vs State of Bombay,[8] the Supreme Court has stated that the Court should be satisfied with the metal fitness of the victim while giving the declaration.
The victim should not give any statement under influence or in such a state where it is impossible to understand whether what he is saying is true or not.
Thus, this can be concluded from the above judgement.
Let us know a little more about this topic.
How can the dying declaration be recorded?
The dying declaration can be recorded in various forms. However, it is utmost important to test the competency or the fitness of a person making the declaration. As wrong statement can lead to wrongful conviction of the other person.
If there is slightest doubt regarding the mental soundness of the maker of the declaration, it would be unsafe to use that evidence. Following are some of the ways in which the declaration can be recorded:
- Oral
- Written
- Conduct of the parties (signs/gestures)
Oral and Written Statements
The oral or written statements made by a person before his death are said to be dying declaration. However, the declaration should signify the cause of his/her death.
For example, A person was suffering from burn injuries throughout the body and he made an F.I.R for the same shall be considered as oral statement under Section 32.
Signs & Gestures
The statement can also be recorded through the conduct of the parties i.e. in form of signs, gestures etc. In case of Queen Empress Vs Abdullah, [9]the accused had cut the throat of a girl because of which she was unable to speak. But when magistrate mentioned few names, she made gestures affirming the accused.
Hence, the magistrate recorded the statement. So, it was held by the Court that if a person is injured and unable to speak, he may make declaration with the help of signs and gestures.
Further, in case of Nirbhaya Gangrape, the girl herein named as Nirbhaya was brutally injured and was not in the position to speak. Hence, the dying declaration was made by her in form of signs and gestures.
What happens when a person gives incomplete dying declaration?
When a declaration is made by a person narrating reasons it can be admissible as evidence in the Court of law. However, if a person gives incomplete information it cannot be admissible in the Court.
If a person is gravely injured and while making declaration he slips into coma or dies, in this case the declaration will not be admissible in the Court on account of it being incomplete. However, if the declaration is incomplete but making sense, it will be admissible in the Court.
For example, the deceased stated, “I was sitting in my garden and suddenly one person came and stabbed me with a knife” after saying this he died. In this case, the declaration being incomplete cannot be admissible in the Court of law.
In another example, the deceased stated, “I was sitting in my garden and Raju Kumar came and stabbed me with a knife” after saying this he died. In this case, though the declaration is incomplete, but it is making sense as the name of the accused is mentioned and hence admissible in the Court of law.
What is the evidentiary value of dying declaration?
The evidentiary value of dying declaration depends on case to case. Generally, it is an assumed principle that a man will not lie on his deathbed. But this may not be true sometimes.
The Court in case of Kushal Rao Vs State of Bombay,[10] said that dying declaration is not a weak evidence but if the Court is not satisfied with the genuineness of the evidence it can ask for other supporting evidence. Further, it also stated that it is imperative to look at the facts and circumstances of the case in which the dying declaration has been made.
In case of State of UP Vs Madan Mohan And Ors.,[11] it was laid down that the Court should satisfy that there was no possibility of tutoring and prompting. Further, the certificate of doctor should mention that the victim is in fit state of mind.
It was also held that the dying declaration should be recorded by the magistrate. But if the condition of victim is very critical and there is not time to recourse to the magistrate, the police officer can record the statement.
What happens if the declarant doesn’t die?
Dying declaration is generally made when a person has an intuition that he is going to die. But sometimes, it may happen that the declarant may not die. In that case the declarant or the victim may stand as a witness in the Court of law against the accused. As the declarant is alive, the declaration will not be admissible as dying declaration.
Conclusion
Thus, from above we can conclude that dying declaration is a statement made by a person while dying. He states the reasons for his death and the reasons are true as it is presumed that a person will not lie on his deathbed.
The declaration gets evidentiary value in the Court of law if it is recorded by the magistrate and proved beyond reasonable doubts. Hence, it is very important statement in cases where there is no other witness present to give justice to the victim.
References
- Prastut Dalvi, Supreme Court clarifies law on dying declaration, The Leaflet, available at : theleaflet.in (last visited on 30 June, 2021) ↑
- Jayamma & Anr Vs State of Karnataka, CRIMINAL APPEAL No. 758 OF 2010 ↑
- Jayamma & Anr Vs State of Karnataka, CRIMINAL APPEAL No. 758 OF 2010 ↑
- P.V. Radhakrishna Vs State of Karnataka, Appeal (crl.) 1018 of 2002 ↑
- Chacko v. State of Kerala, Appeal (crl.) 1230 of 2001 ↑
- Sham Shankar Kankaria Vs State of Maharashtra, 2005 CriLJ 502 ↑
- Sampat Babso Kale and Another Vs State of Maharashtra, Criminal Appeal Nos. 694-695/2011 ↑
- Kushal Rao Vs State of Bombay, 1958 AIR 22, 1958 SCR 552 ↑
- Queen Empress Vs Abdullah, (1885) ILR 7 All 385 ↑
- Kushal Rao Vs State of Bombay, 1958 AIR 22, 1958 SCR 552 ↑
- State of UP Vs Madan Mohan And Ors, AIR 1989 SC 1519 ↑