Dying Declaration

“Nemo moriturus praesumitur mentire”

“A man will not meet his maker with a lie in his mouth”

This maxim is considered as the basis of dying declaration. Hearsay evidence is not accepted under the law of evidence as the evidence which can be presented before a court of law. Yet, dying declaration is an exception to hearsay evidence.

We shall make an attempt to answer the following questions:

• What is a dying declaration?
• How is a dying declaration recorded?
• Is it necessary that the person giving the declaration must die for the statement to be admissible or is it sufficient that it is given when the person was in reasonable anticipation of death?
• What is the value of such evidence in relation to cases concerning dowry?
• Why is such importance attached to dying declaration?

The phrase ‘dying declaration’ has been defined as follows:

Dying declarations are statements made by a dying person as to the injuries which culminated in his death or the circumstances under which the injuries were inflicted. The necessity of recording a dying declaration arises only when the hopes of life of the man are given up.[i]

As can be clearly understood, such statements can only be made by a dying person, i.e. a person who is on the verge of losing her/his life. Therefore, statements that have been made by the victim of an accident or brutality can only be considered as a dying declaration if it has been made immediately prior to their death. In other words, statements that have been made by the deceased long before the occurrence of the event that lead to their death cannot be referred to as dying declarations. This can be ascertained by a clear reading of Section 32 of the Indian Evidence Act, 1872 which provides for the cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.

A dying declaration is, thus, a statement made by a dying person as to the cause of his death or as to any circumstances of the transaction that resulted in his death. It is accepted as evidence under Section 32 of the Indian Evidence Act, 1872. A dying declaration is a very important documentary evidence and is given a lot of weightage in the court proceedings. The procedure for recording of dying declaration is very important. If it is recorded properly by the proper person (until now, only specific people could record a dying declaration but a recent judgment of the Supreme Court has changed this position. Now, any member of public can record the statement of a dying person, and the only caveat[ii] is that the person recording the dying declaration must be sure that the one making the statement was in a proper mental condition to do so) keeping in mind the essential ingredients of the dying declaration it retains its full value. Therefore, dying declaration is to be carefully construed.

This can be summarized into the following points:

• That dying declaration is a statement
• That it should be made by a person immediately or reasonably before the time of his death
• That the statement should be in relation to the cause of his death

Hearsay evidence is not accepted by the law of evidence because the person giving the evidence is not relating his own experience or story but rather he is presenting whatever he could gather from the statements of another person. That another person may not be available for cross-examination and therefore, hearsay evidence is not accepted. Nevertheless, dying declaration is an exception to hearsay evidence because in many cases, it may be the sole evidence and thereby, it becomes necessary to accept the same in order to meet the ends of justice, which is the aim of every judicial process.

The rules for admissibility of dying declaration in India are contained in Section 32(1) of the Indian Evidence Act, 1872. The words ‘dying declaration’ are not used by the Act. Nevertheless, Section 32(1) is framed in a manner which includes dying declaration within its scope. According to the Section, dying declaration is a statement written or oral of a person who is dead and the same is with respect to the cause of his death or the circumstances resulting in his death. The statement is relevant in any judicial proceedings where the cause of death of that person is in issue. The second paragraph of the sub-section makes it abundantly clear that the statement is admissible in civil as well as criminal proceedings.

Dying declaration goes a long way in establishing a dowry death. By way of an Amendment of 1986, Section 113B was inserted in the Indian Evidence Act, 1872. Dowry death is defined in Section 304-A of the Indian Penal Code, 1860. Law requires that the death of the woman occurred within seven years of marriage for the allegation of dowry death to be leveled. If in an instance of dowry death a woman is taken in a critical condition to hospital, her statement is recorded and she subsequently dies, her statement would amount to dying declaration.

But what happens when a woman dies without making such a statement, but has earlier alleged harassment and threats to her life, can her statements be considered a ‘dying declaration’? This question has been dealt with in a comprehensive manner in the case of Kans Raj v. State of Punjab[iii]. The Supreme Court in this case observed that: “The requirement is that the statement should be pertaining to the cause of death or the circumstances surrounding the transaction that resulted in death. The circumstances must have some proximate relation to the actual occurrence. However, the time factor is not always a criterion in determining whether the evidence can be included within the term ‘circumstances of the transaction which resulted in death’. The test of proximity cannot be literally construed and reduced to a cut-and-dried formula. Distance of time would depend on the circumstances of the case… “Soon before” is not synonymous with “immediately before”. The words imply that the interval should not be too long between the time of making the statement and the time of death. However, a reasonable time contemplated by the law would be determined by the circumstances of each case.”

This judgment effectively sums up the position of a dying declaration in India. In a recent judgment of the Hon’ble Supreme Court, a bench comprising of Justices B.S. Chauhan and Dipak Misra has observed that: “The law on the issue can be summarized to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format or procedure for the same.” Thus, now, a dying declaration can be recorded by any member of the public as long as he/she is satisfied that the person making the declaration is in a mental state fit enough to make such a statement. Also, a certificate from a doctor stating the mental condition of the person making the statement is not required. Another thing to be kept in mind is that there is no prescribed form for recording such a statement and therefore, it need not necessarily be in a question answer format.

• Khushal Rao v. State of Bombay[iv]
• Smt. Paniben v. State of Gujarat[v]
• Paras Yadav and Others v. State of Bihar[vi]
• Gulam Hussain v. State of Delhi[vii]
• S. Arul Raja v. State of Tamil Nadu[viii]
• Puran Chand v. State of Haryana[ix]
• Sukanti Moharana v. State of Orissa[x]
• Laxman v. State of Maharashtra[xi]
• State of UP v. Madan Mohan[xii]
• Nanhau Ram v. State of MP[xiii]