DYING DECLARATION
By
Y. SRINIVASA RAO M.A (English)., B.Ed., B.L., (LL.M), I ADDL. JUNIOR CIVIL JUDGE BHIMAVARAM.
'' A person , who is about to ie , wou! not !ie''. '' Truth sits on the !ips o" a person who is about to ie''
INTROD#CTION$ The maxim “ Nemo moriturus praesumitur mentire” is
basis basis for ''dying ''dying declaratio declaration'', n'', which means '' a man will not meet his maker with a lie in his mouth'' . A dying del!"!#i$ del!"!#i$n n is !lled !lled !s %% Le#e"&
M$"#e&%%. 'he $"d %'%' Leterm Mortem'' &e!ns %'%' Words said before death' %.%. Recording of dying declaration is very important task. Utmost care is to be taken while while recordin recording g a dying dying declarati declaration. on. If a dying declarat declaration ion is recorded carefully by the proper person, keeping in mind the essential ingredients of the dying declaration, such declaration retains its full value. Section 32 (1) of Indian Evidence Act.
A close scrutiny of section 32 (1) of Indian Evidence Act, it is vividly known known when the statement statement is made by a person person with regard regard to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes comes into question question.. Such statement statementss are relevant relevant irrespectiv irrespectivee of the person who made such declaration was expecting death or not . Thus, it is apt to say that admiss admissibil ibility ity of Dying Dying declarati declaration on is explained explained in the the section 32 (1) of Indian Evidence Act.
%ow a &in e(!aration shou! be)
'he"e is n$ *!"#i+l!" $"& $ dying del!"!#i$n. H$e-e", #he est form of dying declaration is in the form of questions and answers. However, whenever a dying declaration is being recorded in the form of questions and answers precaution should be taken that exactly what questions are asked and what answers are given by the patient those should be written. A dying del!"!#i$n &!y e in #he $ll$ing $"&s/ 0. 1"i##en $"&2 . Ve"!l $"&2 3. Ges#+"es !nd 4igns $"&. In #he !se %%5+een -s Ad+ll!0%%, i# !s held #h!# i #he in6+"ed *e"s$n is +n!le #$ s*e!7, he !n &!7e dying del!"!#i$n y signs !nd ges#+"es in "es*$nse #$ #he 8+es#i$n. 4. If a person is not capable of speaking or writing he can make a gesture in the form of yes or no by nodding and even such type of dying declaration is valid. 5. It is preferred that it should be written in the vernacular which the patient understands and speaks. 6. A dying declaration may be in the form of narrations. In case of a dying declaration is recorded in the form of narrations, nothing is being prompted and every thing is coming as such from the mind of the person making it. OBJEC'42 0. 'he *"es+&*#i$n is %% ! *e"s$n h$ is !$+# #$ die $+ld n$# lie%%. . I# is !ls$ s!id #h!# %% '"+#h si#s $n #he li*s $ ! *e"s$n h$ is !$+# #$ die%%. 3. 'he -i#i& is e9l+si-e eye i#ness !nd hene s+h e-idene sh$+ld n$# e e9l+ded.
0 ILR : 3;<
3
Who may record a dying declaration ?
1. It is best that it is recorded by the magistrate . 2. If there is no time to call the magistrate, keeping in view the deteriorating condition of the declarant, it can be recorded by anybody e.g. public servant like doctor or any other person. 3. It cannot be said that a dying declaration recorded by a police officer is always invalid. 4. If any dying declaration is
not recorded by the competent
Magistrate, it is better that signatures of the witnesses are taken who are present at the time of recording it. Important
facts
to be
remembered
before
recording
Dying
Declaration:
1. The declarant was in a fit condition of mind to give the statement when recording was started and remained in fit condition of mind until the recording of dying declaration is completed. 2. The fact of fit condition of mind of declarant can be best certified by the doctor . 3. Yet, in case of where it was not possible to take fitness from the doctor, dying declaration has retained its full sanctity if there are other witnesses to testify that declarant was in fit condition of the mind which did not prevent him from making dying declaration. 4. However, it should not be under the influence of any body or prepared by prompting, tutoring or imagination.
If any dying
declaration becomes suspicious, it will need corroboration. 5. If a declarant made more than one dying declarations and if these are not at variance with each other in essence they retain their full value. If these declarations are inconsistency or contradictory, such dying declarations lose their value.
N$ i# is -e"y essen#i!l #$ 7n$ #he $ndi#i$ns $" !d&issiili#y !nd e-iden#i!"y -!l+e $ ! dying del!"!#i$n. 'he #!le gi-en in"! s+in#ly e9*l!ins #he s!&e/ CONDI'ION4 =OR ADMI44IBILI'>
EVIDEN'IAR> VALUE
? 0.
'he
del!"!n#
,h$
g!-e
dying
0.
del!"!#i$n, sh$+ld h!-e died.
E-iden#i!"y -!l+e $ dying del!"!#i$n ill
h!nge
"$&
!se
#$
!se
!$"ding #$ !# !nd i"+&s#!nes $ 2.
Admissibility of dying declaration is
e!h !se.
explained in the section 32 (1) of .
Indian Evidence Act.
A dying del!"!#i$n &+s# e "e$"ded in e9!# $"ds s*$7en y #he del!"!n#.
3.
When the statement is made by a person as to the cause of his death, or
3. I ! $&*e#en# M!gis#"!#e "e$"ds !
the
dying del!"!#i$n in 8+es#i$n !nd
transaction which resulted in his death,
!nse" $"& , s+h dying del!"!#i$n
in cases in which the cause of that
ill h!-e &+h e-iden#i!"y -!l+e.
any of the circumstances
of
person’s death comes into question. Such statements are relevant whether
?.
I ! dying del!"!#i$n is "e$"ded N$
was
s$$ne" d$es #he in$"&!#i$n "eei-e
expecting death or not. (See section 32
#h!n #he dying del!"!#i$n is "e$"ded,
(1) of Indian Evidence Act).
#+#$"ing y in#e"es#ed *e"s$ns !n e
the
person
who
made
this
!-$ided. ?.
'he
dying
del!"!#i$n
&+s#
e <.
$&*le#e .
In
!se
&$"e
#h!n
$ne
dying
del!"!#i$ns, !ll s+h del!"!#i$ns &+s# <.
'he !+se $ de!#h &+s# e e9*l!ined y
#he
del!"!n#
$"
!#le!s#
e iden#i!l.
#he
i"+&s#!nes hih "es+l#ed his@he"
.
In J!i "!7!sh -s 4#!#e $ H!"y!n! <, i# !s $se"-ed #h!# %% ! s#!#e&en# $
de!#h &+s# e e9*l!ined.
-i#i& hih !s "e$"ded y #he . 'he
:.
del!"!n#,
h$
&!7es
dying
*$lie $ie" in h$s*i#!l. L!#e", s+h
del!"!#i$n, &+s# e $nsi$+s !nd
s#!#e&en# !s #!7en #$ e ! dying
$he"en#.
del!"!#i$n.
'he del!"!n# &+s# e s$+nd s#!#e in
:.
&ind. ;.
'he !+se $ de!#h $ del!"!n# &+s#
In
s$&e
!ses,
=.I.R
!s
!ls$
$nside"ed !s ! dying del!"!#i$n. ;. In$nsis#en# dying del!"!#i$n is n$
e in 8+es#i$n.
e-iden#i!"y -!l+e. ( 4&# !&l! -s 4#!#e $ +n6! )
.
H$e-e", #he del!"!n# need n$# e +nde" e9*e#!#i$n $ de!#h +nli7e English L!.
9.
The dying declaration recorded by the Clerk in the presence of Magistrate not inadmissible.
0. 'he del!"!n# need n$# e +nde"
Scribe need
not
be
produced to prove it7.
sh!d$ $ de!#h. 3 0. Des*i#e #he"e is ! dying del!"!#i$n, 00. 'he dying del!"!#i$n &!y e in -e"!l $"&.
C$+"#
see7s
+"#he"
$""$$"!#i$n.
However, Conviction can be based on it without corroboration if it is true and
>e#, i# !s held #h!# %%Dying declaration incomplete as deceased not being able to answer further, held could be relied upon. (AIR 1956 SC 168). %% 3 4#!#e $ H!"y!n! -s M!n!ge"!& F $#he"s (AIR 3 4C <<;)
< 0. 'he h$le dying del!"!#i$n &+s# e
voluntary.
#!7en in#$ $nside"!#i$n y #he C$+"# +# n$# s$&e *$"#i$n $ i#.
11. Replies
by
signs
and
gestures
constitute verbal statement resembling 03. 'he s#!#e&en# &!y e &!de e$"e #he
the case of
a dumb person and is
!+se $ de!#h h!s !"isen, $" e$"e #he
relevant and admissible in evidence.
dee!sed h!s !ny "e!s$n #$ !n#ii*!#e
(AIR 1949 Nag 405)
eing 7illed?. 12. Dying declaration is an exception to 14. Corroboration to dying declaration not
hearsay
necessary. (1990 Crl.L.J 1129)
evidence
evidence is
not
because
if
considered
this very
purpose of the justice will be forfeited 15. Exact words of deceased in dying
in certain situations when there may
declaration need not be stated. (1990
not be any other witness to the crime
Crl.L.J 2720)
except the person who has since died.
16. It is immaterial that the person put a
13. Dying declaration is valid both in civil
thumb impression or signed a dyin
and criminal cases whenever the cause
declaration if the declaration is duly
of death comes into question.
witnessed. 14. Dying declaration not attested by wife 17. If a declarant, who is laying in the bed,
or dactor present there. Smacks of
is unable to get up to sign due his
concoction. Inconsistency in oral and
condition, or it is convenient for him to
medical evidence. Conviction cannot
put thumb impression, he can put
be based on such evidence8.
thumb impression. 15. It is perfectly permissible to reject a 18. There is usually no time limit that
part of dying declaration if it is found
dying declaration becomes invalid.
to be untrue and if it can be separated [ Nand Kumar v. state of Maharastra9.]. 16.
Declarant suddenly dying and his thumb impression taken after his death held dying declaration admissible in evidence. (AIR 1962 SC 1252)
RELEVAN' CA4ELA1 A4 'O %%D>ING DECLARA'ION%%/
? <
!7!l! N!"!y!n! 4!&i -s E&*e"$"
:
(0;) : 4CC ;? AIR 03 4C 3:?. (52 Cr.L.J 883)
;
AIR 1981 SC 1578. Cri LJ 1988 1313
1. Medical opinion cannot wipe out the direct testimony of the eyewitness stating that the deceased was in fit and conscious state to make the dying declaration . [ N Ram vs State 10.]
2. If the person making it is imbecile or is of tender age and was incompetent to testify due to this reason, that dying declaration would not be valid [R v. Pike. C & P.1829; 3: 598]
3. As a measure of safety original dying declaration should be sent to the court like FIR and its Photostat should be kept in the case file [State of Karnataka v. Shivalingappa, 2001 (4) RCR(Criminal) 237 (Karnataka) (DB)].
4. Even the ''History'' given by the injured recorded by the doctor in the case file has been considered as dying declaration by the honorable Court if it is mentioned that the patient told in the history that incident occurred in such and such manner which was responsible for the death of the victim [State of Karnataka v. Shariff 11].
5. First information report got recorded by the police has been taken as dying declaration
by the Hon'ble Supreme Court of India, when the
person did not survive to get his dying declaration recorded [AIR 1976 2199 (SC)].
6. But, in the case
State of Punjab v. Kikar Singh, 2002 (30 RCR
(Criminal) 568 (P & H) (DB), it was held that ''when patient remained admitted in hospital for sufficient days i.e. for 8 days FIR cannot be treated as dying declaration''.
7.
In the case ''State v. Maregowda, 2002 (1) RCR (Criminal) 376
(Karnataka) (DB)'', it was held that ''A suicide note written found in the 0 AIR 1988 SC 912: 1988 Cri LJ 1485 00 2003 CAR 219-228, (SC)
:
clothes of the deceased it is in the nature of dying declaration and is admissible in evidence under section 32 of Indian Evidence Act''.
8. In the case, (State of Gujarat v. Rabri Pancha Punja. Cri LJ. 1981;NOC: 171 (Guj) , it was held that '' It retains its full value if it can justify that victim could identify the assailant, version narrated by victim is intrinsically sound and accords with probabilities and any material evidence is not proved wrong by any other reliable evidence''.
9. Dying declaration becomes unreliable if it is not as per prosecution version. In the case of '' State of UP v. Madan Mohan, AIR 1989 SC 1519'' , the Hon'ble Supreme Court of India held: 1. It is for the court to see that dying declaration inspires full confidence as the maker of the dying declaration
is not available for cross-
examination 2. Court should satisfy that there was no possibility of tutoring or prompting. 3. Certificate of the doctor should mention that victim was in a fit state of mind. Magistrate recording his own satisfaction about the fit mental condition of the declarant was not acceptable especially if the doctor was available. 4. Dying declaration should be recorded by the executive magistrate and police officer to record the dying declaration only if condition of the deceased was so precarious that no other alternative was left. 5. Dying declaration may be in the form of questions and answers and answers being written in the words of the person making the dying declaration. But court cannot be too technical.
10. In Barati vs State Of U. P,1974 AIR 839, 1974 SCR (3) 570, it was held that '''he"e !s n$ "e!s$n #$ dis!"d #he dying del!"!#i$n &!de y #he !**ell!n# #$ #he *$lie s+ins*e#$", 'he #"i!l C$+"# !s "$ng in "e6e#ing #he dying del!"!#i$n #$ #he *$lie (=.I.R.) $n #he g"$+nd #h!# #he dee!sed h!d s#!#ed #$ #he d$#$" #h!# he h!d e$&e +n$nsi$+s !#e" #he $+""ene. 'he"e !s n$#hing in #he s#!#e&en# "e$"ded y #he d$#$" #$ indi!#e #h!# #he dee!sed "e&!ined +n$nsi$+s $". ! l$ng #i&e !nd !s
;
s+h !s n$# in *$si#i$n #$ l$dge #he =.I.R. 'he !# #h!# #he l!ng+!ge +sed in #he dying del!"!#i$n &!de #$ #he d$#$" !s "!#he" h!s#e $+ld n$# g$ #$ sh$ #h!# #he s!id s#!#e&en# $+ld n$# h!-e een &!de y #he dee!sed. As #$ #he l!ng+!ge +sed in #he dying del!"!#i$n #he"e is n$#hing !n$"&!l $" +n+s+!l in #he s!&e *e"s$n +sing $ll$8+i!l l!ng+!ge hile #!l7ing #$ $ne *e"s$n !nd +sing "eined l!ng+!ge hile #!l7ing #$ !n$#he" *e"s$n. %%
11. Pakala Narayana Swami vs Emperor ((1939) 41 BOMLR 428; AIR 1939 PC 47 ) on 19/1/1939 , In this case, the statement of
Pakala
Narayana Swamy's wife '' he is going to Berhampur to get back his amount'' was considered as ''DYING DECLARATION''. Some important case-law on ''Dying declaration'': 0. A+#!" 4ingh -. 'he C"$n, AIR 0? L!h <3 . !7!l! N!"!y!n! 4!&i - E&*e"$", AIR 03 C ?: 3. H!n+&!n# -. 4#!#e $ M!dhy! "!desh , 0<3C"iLJ0 ?. 4#!#e -. !nh!n 4ingh, AIR 0!d-, AIR 0;< 4C ?0
0. 4#!#e (Delhi Ad&inis#"!#i$n) -. L!9&!n +&!" !nd O"s, AIR 0; 4C < . 4#!#e $ Ass!& - M!hi& B!"!7!#!7i, AIR 0;: 4C ; 0. 4#!#e $ U -. M!d!n M$h!n. AIR 0; 4C 0<0 . Ch!"i*!lly sh!7!!"!"!$ - +li *"$se+#$" HC $ A AIR 0< 4C ::: 23. State of Rajasthan v kishore, AIR 1996 SC 3035 ?. 4&#. !nien - s#!#e $ G+6!"!#, 0 () 4CJ < <. 4#!#e $ H - He& R!6, 0 4LC 0<; 0 (H) . J!gg! 4ingh -. 4#!#e $ +n6!, AIR0< 4C 03< :. N!66!& =!"!ghi in !li!s Ni66!& =!"+8+i -. 4#!#e $ 1es# Beng!l 0C"iLJ; ;. G.4. 1!li! -. 4#!#e $ +n6! 0; C"iLJ (4C) <? . 4hy!& 4ingh H!d! - 4#!#e $ R!6!s#h!n, C"i LJ 0?3: (R!6) 3. 4+dh!7!" F An" -. 4#!#e $ M!h!"!sh#"!, AIR 4C 30. R$n!l i*"$n$ R!&7!# - 4#!#e $ H!"y!n! , AIR 0 4C ?;; 32. State v. Maregowda, 2002 (1) RCR (Criminal) 376 (Karnataka) (DB) 33. 4#!#e $ +n6! -. i7!" 4ingh, (3 RCR(C"i&in!l) <; ( F H) (DB) 3?. 4!n#$sh +&!" - 4#!#e $ U.., C"iLJ (4C) 30 3<. 4#!#e -. M!"eg$d!, (0) RCR (C"i&in!l)3: (!"n!#!7!) (DB) 3. L!9&!n -. 4#!#e $ M!h"!sh#"!, C"i L J ?<, () 4CC :0 3:. 4h!&h+ - 4#!#e $ M!dhy! "!desh, AIR 4C 03: 3;. V R!dh! "ishn! -. s#!#e $ !"n!#7!, AIR 3 4C ;< 39. Narain Singh v. State of Harayana , AIR 2004 SC 1616 ?. Vi"!&6i M$h!#6i 'h!7$"e -. 4#!#e $ G+6!"!#, < () GLR 0 ?0. Dil B!h!d+" '!&!g -. 4#!#e $ si77i&, < C"LJ :; * :; 42. Raja Ram v. State of Rajasthan, (2005) 5 SCC 272 43. Viramji Mohatji Thakore v. State of Gujarat, 2005 (2) GLR 1622 ??. Ni"&!l L$+si -. 4#!#e $ B!n!s!di *$lie, B!ng!l$"e, < (0) !" L J 03 ?<. 4#!#e $ +n6! -. Ch!#inde" !l 4ingh !nd O"s, AIR 4C :?
CONCLUSION:
With propound sense of regret, I crave the indulgence of the officials and others concerned , who record dying declaration, it is suggested that
0
whenever dying declaration is to be recorded, it must be recorded very carefully keeping in mind the sanctity which the court of law attaches to the dying declaration.
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