“A person, who is about to die, would not lie, Truth sits on the lips of a person who is about to die.”
The concept of dying declaration holds a prominent place in the Indian Evidence Law. It refers to the statements made by a person on the verge of death, clarifying the cause of their demise or the circumstances of the events leading to their death. This blog explores the legal implications of dying declarations under section 32 (1) of the Indian Evidence Act, 1872. It inquires into the admissibility, recording, and evidentiary value of dying declarations, emphasizing their crucial role as evidence in criminal proceedings. The maxim "Nemo Moriturus Praesumitur Mentire" underscores the inherent trustworthiness of a dying person's statement. The blog underscores the significance of accurate and untainted recording of dying declarations for justice to be upheld.
KEYWORDS: Dying declaration, Indian Evidence Act, section 32 (1), admissibility, statements, evidentiary value, criminal proceedings, justice.
Dying declaration is a statement of a person, who died explaining the cause of his death or circumstances of the transaction which resulted in his death.
When a person is dead and the cause of death of that person comes into question before the court, any statement written or verbal made by that person at any time prior to his death relating to the cause of his death or the circumstances of the transaction which resulted in his death is admissible in evidence under section 32 (1) of the Indian Evidence Act, 1872. This simply means that if a person dies after giving his statement regarding the causes or circumstances of transactions which resulted in his death then this statement will be called a dying declaration. But if that person survives and does not die then this statement will not be considered a dying declaration. It would simply be a statement of an injured person.
Section 32 (1) of the Act deals with dying declarations. It lays down that when a 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, such statement is relevant in every case or proceeding in which the cause of the person’s death comes into question. The proceeding may be criminal or civil or revenue or quasi- civil or quasi-criminal. Further, such statements are relevant whether the person who made them was or was not at the time when they were made under the expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question.
Essentials of Section 32(1):
• It should be a statement (written or verbal)
• The statement should relate to the cause of the person’s death or any of the circumstances of the transaction which resulted in his death and not the cause of death of someone else.
• The cause of the person’s death must be in question before the court.
Illustration: A person is shot dead. Any statement of the deceased as to who fired the gun is a dying declaration because it relates to the cause of his death. Dying declaration will also include the circumstances in which the gun was fired.
ADMISSIBILITY OF DYING DECLARATION
The general principle of law is that evidence which is not tested or proved is not admissible in a court of law. That means the administration of oath and cross-examination of pieces of evidence plays a major role. Dying declaration under section 32 (1) of the Indian Evidence Act is an exception to the general rule of hearsay evidence. The principle on which a dying declaration is admissible in evidence is indicated in the maxim “Nemo Moriturus Praesumitur Mentire”, which means that a man will not meet his maker with a lie in his mouth. A dying man is face to face with his maker without any motive for telling a lie. It is said that truth sits upon the lips of a dying man.
Moreover, if the dying declaration is excluded from the admissibility of evidence, it may result in miscarriage of justice because sometimes the victim may be the only eyewitness of a serious crime. So the exclusion of a dying declaration will leave the court with no evidence and a culprit may go unpunished. Since it is the best evidence available in the circumstances, a person having first-hand knowledge is already dead, it is admitted out of necessity.
RECORDING OF DYING DECLARATION
There is no particular format prescribed for recording the dying declaration. Dying declaration may be oral or in writing, or may even be partly oral and partly in writing. On the other hand, it may consist of only some signs or gestures made by the deceased. But it must be a definite assertion. It should not be a vague statement. It is not necessary that dying declaration should be recorded only by a magistrate. It can be recorded by a police officer, by a doctor or even by a normal person. However, a dying declaration recorded by a magistrate stands at a much higher footing so far as the evidentiary value of dying declaration is concerned.
When a magistrate writes a dying declaration, so far as possible the declaration should be recorded in the exact words of the person making it. But simply because exact words were not used a dying declaration can not be rejected. When a magistrate records a dying declaration preferably it should be in question and answer form. Questions should be put to the injured person who is going to die and he should respond. It is required in order to ascertain that despite injuries he is in a fit state of mind and he is responding accordingly. But these all are flexible rules. If the dying declaration contains exactly what was stated by the deceased it is not going to make any difference if the same was not recorded in question and answer form. If possible the dying declaration should be recorded in the presence of attesting witnesses in order to enhance the evidentiary value of a dying declaration. It is said that dying declaration would be relevant if the conditions of section 32 (1) are satisfied irrespective of the fact that it is made to whom and in whatever form.
In the case of Queen Empress v. Abdullah, the accused had cut the throat of the deceased girl & because of that she was not able to speak. So she indicated the name of the accused by the signs of her hand. It was held by the full bench of the Allahabad High Court “If the injured person is unable to speak, he can make a dying declaration by signs & gestures in response to the question.” In another case The Apex Court observed that the value of the sign language would depend upon who recorded the signs, what gestures & nods were made, what were the questions asked, whether simple or complicated & how effective & understandable the nods & gestures were.
Incomplete dying declaration is not admissible in a court of law, but if the deceased has delivered all the necessary information, it cannot be excluded merely because it is incomplete in respect of certain facts. In case of Munnu Raja vs. State of M.P. the Supreme Court observed that the statement made by an injured person recorded as an FIR can be admitted in the court of law, as a dying declaration under section 32 of the Indian Evidence Act. In case of multiple dying declarations, it is very important that the statements made by the victim are in relation to the facts of the case, and there should be regularity in all the declarations.
EVIDENTIARY VALUE OF DYING DECLARATION
The evidentiary value of the dying declaration depends upon case to case and facts to facts. In K.R. Reddy v. Public Prosecutor, evidentiary value of dying declaration was observed as under:-
“The dying declaration is undoubtedly admissible under section 32 and not being a statement on oath so that its truth could be tested by cross-examination, the court has to apply the scrutiny and the closest circumspection of the statement before acting upon it. While great solemnity and sanctity are 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, 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. The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe & identify his assailants & that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary, it can be sufficient to find the conviction even without further corroboration.”
From the above discussion, it can be safely concluded that dying declaration is a significant piece of evidence. It may be the last and most pertinent available evidence concerning the commission of a crime. Therefore it is suggested that whenever a dying declaration is to be recorded it should be recorded very carefully.
It is important that the dying declaration should be free from errors, manipulations and modifications. A conviction can be based on it without corroboration if it is true and voluntary. Dying declaration becomes unreliable if it goes against the version of the prosecution.
AUTHOR - Aslam Azad