DYING DECLARATION DISHA GUPTA BASICS OF LAW Mon, Sep 09, 2019, at ,12:10 PM What is Dying Declaration A dying declaration is a declaration written or verbal 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. The term dying declaration is derived from “Leterm Mortem”, which means “Words before death”. The basis of dying declaration is derived from the Latin maxim “Nemo moriturus praesumitur mentire”, which implies “a man will not meet his maker with a lie in his mouth.” Illustration- John has been attacked by Joseph. If John, shortly before death makes a declaration holding Joseph, responsible for his injuries, it is called ‘Dying Declaration'. Section 32(1) of The Indian Evidence Act defines 'dying declaration' as " a statement verbal or written made by a person who is dead or cannot be found, who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense, which under the circumstance of the case, appears to the court unreasonable, are themselves relevant facts in the following cases- a) When it relates to cause of death; b) When it is made in course of business; or c) Against the interest of maker; or d) Gives opinion as to public right or custom or matters of general interest; or e) Relates to existence of relationship; or f) When it is made in will or deed relating to the family affairs; or g) In document relating to transaction mentioned in section 13(a); h) When it is made by several persons and expresses feeling relevant to matter in question. The Essential Conditions of This Section Are As Follows- It must be a statement, written or verbal. The person making a statement must have died. The statement relates to the cause of his death or the circumstances of the transaction which related in his death and not the cause of the death of someone else. The cause of the person's death must be in question. The person making a statement must be in a fit condition to make the statement. The statement must be competent. The declaration must be competent Admissibility of Dying Declaration A person who is conscious and knows that death is about to happen can make a statement about the reason for his/her death will be admissible in the court. The word dying declaration explains the word itself. The dying declaration will be admissible in evidence only when the person making the statement dies and the cause of the person’s death comes into question. If the person who has made a dying declaration survives, such a statement will not come within the purview of Section 32(1) of the Evidence Act. The dying declaration is an exception to the general rule of excluding the hearsay evidence. Hearsay evidence is the evidence of those who relate not what they know themselves but what they have heard from others. As a general rule, hearsay evidence of a fact is not admissible in the court of law. If any fact is to be substantiated against a person, it ought to be proved in his presence by the testimony of a witness sworn or affirmed to speak the truth. The apex court held that multiple dying declarations can be relied upon without corroboration if there is consistency in all the dying declaration. If all the dying declarations are similar to each other than it can be admissible. Evidentiary Value of Dying Declaration The dying declaration is entitled to great weight. It may form the sole basis for conviction without the need for independent corroboration. A dying declaration is a piece of evidence and can be acted upon without corroboration if it is found to be otherwise true and reliable. However, the court has to satisfy itself that the dying declaration is of such a nature as to inspire full confidence in the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of tutoring, prompting or a product of imagination. The court has to be further satisfied that the deceased was in a fit state of mind and had a clear opportunity to observe and identify the assailants. Once the court is satisfied that the declaration is true and voluntary, undoubtedly, it can base its conviction without any further corroboration. Recording of Dying Declaration If the dying declaration is recorded by the magistrate, then it will hold more evidentiary value than any other dying declaration. Doctors and the police officer are also authorized to record the dying declaration if the magistrate is not present. In 2013, Delhi gang-rape three dying declarations of Nirbhaya were recorded. The first was recorded by the doctor when she was admitted to the hospital, the second was by SDM during which she gave exact details of the crime and the third one was recorded by a metropolitan magistrate and was mostly by gestures. In this case, all three dying declarations were recorded. But the one recorded by the magistrate was important. And the court did accept the dying declaration recorded by magistrate even when it was in gestures and nods. Case Laws on Dying Declaration Emperor v. Mohammad Sheikh, (1942) 2 Cal 144- An information lodged by a person who died subsequently relating to the cause of his death, is admissible in evidence under Section 32 (a) of the Indian Evidence Act, 1872. Ram Manorath v. State of U.P., (1981) 2 SCC 654- The Supreme Court observed that a dying declaration that suffers from infirmity cannot form the basis of conviction. Nanuhau Ram v. State of Madhya Pradesh, AIR 1988 SC 912- The Supreme Court opined that normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850- The Apex court recognized dying declaration as a substantial piece of evidence while opining that though the dying declaration is indirect evidence being a species of hearsay evidence, yet it is an exception to the rule against admissibility of hearsay evidence. The Court stated that it is substantive evidence and like any other substantive evidence requires no corroboration for forming the basis of conviction of an accused. In Sayarabano@Sultana Begum vs. State of Maharashtra, (2007) 12 SCC 562- Two dying declarations had been recorded. As per the first declaration, the deceased had met with an accident. She was hit by the kerosene lamp which fell on her body and caught fire. While recording the second declaration, the Judicial Magistrate asked her why she was changing her statement. The deceased replied that her mother-in-law had told her not to give any statement against the family members of her in-laws. But, in fact, it was her mother-in-law who threw the kerosene lamp on her and thus, she was burnt. She also stated that her mother-in-Law was harassing her. In such a situation, the Court held that the second dying declaration was true and inspired confidence. Ill-treatment of the deceased was clearly established and completely proved on the basis of the evidence of other witnesses. Sher Singh vs. State of Punjab, AIR 2008 SC 1426- In this case, three dying declarations were recorded, the court held that conviction could be based on the third declaration which was consistent with the second, while the first one recorded immediately after being admitted to hospital was under threat or duress. State of AP vs. P. Khaja Hussain, (2009) 15 SCC 120- The Court set aside a conviction as there was a variation between the two dying declarations and there was no other evidence to connect the accused to the crime.