When a person who is about to die confronts another person about the circumstances that caused the injury, such a statement is called a dying declaration. The court believes in the maxims “Nemo moriturus praesumitur mentire” meaning a dying person will not meet his maker with a lie in his mouth. A dying declaration is also known as ‘Leterm Mortem’, which means ‘words said before death’.
This article will discuss what a dying declaration is, its key ingredients, under what circumstances such declaration is admissible, who can record a dying declaration, its exceptions, how dying declaration is different from dying deposition, and the latest case laws.
What is a Dying Declaration?
Section 32 (1), Indian Evidence Act, defines dying declaration. Any statement made by a person who is about to die regarding their cause of death or any circumstances that resulted in the death of the person, where the cause of their death comes into question.
- When the question arises who murdered A. The statement made by A relating to the cause of his death is a dying declaration.
- A die of injuries sustained in a transaction due to which she was ravished. The question arises whether A was ravished by C. The statement made by A relating to the cause of her death is a dying declaration.
Key ingredients of dying declaration
Dying declaration as per Section 32 (1) should have the following key ingredients:
a) The statements, oral or written, about the relevant facts made by the person who is –
· cannot be found,
· has become incapable of giving evidence,
· whose attendance cannot be procured without unreasonable delay or expense.
b) the statement should relate to the circumstances that caused his death – how, when, and where the death was caused.
c) any circumstance of transaction that resulted in his death – some examples of the circumstance of the transaction are when the deceased person gives a statement that he was going to the place where he was killed, he was proceeding to meet the person or was invited to meet the person at a particular place).
What are the types of dying declarations?
The dying declaration could be in any form or type: gesture or sign, written or oral. It could also be in question-answer format, incomplete or thumb impression. We will discuss these types in detail below.
Gesture or Sign
When a dying person is unable to speak and is in a conscious state of mind, then that person can give their statement about the circumstance that led to her death through any gestures or signs.
In Meesala Ramakrishnan Vs. State of A.P.1994 SCC (4) 182, JT 1994 (3) 232, the victim was severely burned to death by her husband, was admitted to the hospital, and was unable to speak. The Magistrate recorded her dying declaration. She was unable to talk but could answer the Magistrate’s question through nods and gestures.
Hence, in this case, the court had held that the dying declaration recorded based on gestures and nods is admissible and has an evidentiary value. It also depends on who has recorded the statement, his educational qualification, whether the questions asked was simple or complicated, whether the gestures and nods made while giving the statement was clear and understandable.
Written and Oral
Section 60, the Indian Evidence Act, states that oral dying declaration should be direct. The exception to the general rule is that hearsay evidence is not admissible.
The oral declaration should be recorded with utmost care. Where the victims give a statement in vernacular, the same should be translated and recorded in English.
In Ranjit Singh Vs. The State of Punjab, 1959 AIR 843, the victim had written a letter to his brother, stating that he had a bad cordial relationship with his wife and apprehended danger to life through his wife. Though this statement was made five years before his death, the court had held that the letter was admissible in evidence, as it shows the circumstances that led to his death.
The question-answer format of the dying declaration is considered the best form of dying declaration. It is recorded by the Magistrate, where the Magistrate sets out simple and easily understandable questions by the victim. The answer to these questions is written down as answered by the victim.
The declarant signs a dying declaration, or a thumb impression is put on the dying declaration. For example, if the declarant’s thumb is burned, then the impression of the toe is obtained.
In Sukanti Moharana Vs. State of Orissa, 2009, the court held that where the dying declaration is voluntary, clear, unambiguous, and true, then the court has no reason to reject the dying declaration merely because there was no thumb impression or signature declarant.
Any incomplete statement that does not give complete circumstances or cause of death is admissible in evidence. However, suppose the statement given is incomplete and does not give the details of the cause of death. In that case, such a statement is unreliable.
In Abdul Sattar Vs State of Mysore 1955, the court had held that even if the dying declaration is incomplete and cannot answer any further questions, it had clearly stated that the deceased was killed by the accused. Therefore, the dying declaration was admissible by the court.
Who can record a dying declaration?
Any of the following persons can record a dying declaration:
- Police Officer
- Magistrate or
- Any person
The procedure of recording the dying declaration
Section 33 of Criminal Rules of Practice states the procedure of recording the dying declaration:
- The Magistrate should carefully record the statement keeping in mind that the dying declaration should contain the circumstances that caused the death or the circumstances of transaction that resulted in death.
- The Magistrate should ensure that the victim’s mental condition is stable to make the declaration. The Magistrate should ask simple questions to understand the victim’s mental condition.
- While recording the statement also the questions put forward should be understandable and straightforward. The victim can answer the questions through signs, gestures, or words.
- Every sign, gesture, or answers given by the victim should be recorded as stated by the victim to obtain the identity of the accused.
- The statement given should be read over to the victim and signed by them. The Magistrate should also sign the declaration.
When is a dying declaration admissible?
Condition for admissibility of dying declaration
To have a dying declaration admissible in evidence, it should comply with the following conditions:
- The person making the declaration should die.
- The injuries should have caused the person’s death.
- The mental condition of the declarant must be stable.
- Medical certificate of the declarant should be obtained.
- The dying declaration should be in the question-answer format.
- There should not be any tutoring or prompting.
- It should be recorded in the exact word of the declarant and
- It should be complete.
In Kushal Rao Vs. State of Bombay, AIR 1958 SC 22, the court had laid down the test of the reliability of a dying declaration.
- The court had laid down that the dying declaration can form the sole basis of conviction even if it is not corroborated.
- It must be based on the facts relating to the circumstances when the dying declaration was made.
- Dying declaration is strong evidence and has the same weight or evidentiary value as other shreds of evidence.
- Dying declaration recorded by the Magistrate in a question-answer format holds higher weightage.
- While relying on the dying declaration, the court should consider the following circumstances; capacity to remember the facts, the statement is not made due to tutoring, whether there was sufficient light at the time of the commission of the crime.
How to prove dying declaration?
The evidentiary value of dying declaration was observed in K. Ramachandra Reddy & Anr Vs. Public Prosecutor (1976). The court held that for dying declaration to be admissible in evidence without any doubt.
- However, such a statement can be cross-examined in the court, and the court should closely inspect the statement before acting on it.
- Though the court believes that the person dying will not meet his maker with a lie in his mouth, he will not lie or implicate an innocent person. Yet, the court should ensure that the statement is not backed by any tutoring, prompt, or a result from any imagination.
- The court should ensure that the victim should be in reasonable mental condition before giving such declaration and should be allowed to identify the accused.
- Lastly, on being satisfied that the dying declaration is voluntary, authentic, and accurate, the court can convict the person without any further corroboration.
What are the exceptions to the dying declaration?
Having looked into the conditions of admissibility of dying declaration, let us now look into the exceptions to dying declaration. In other words, when can a dying declaration be set aside?
The dying declaration cannot be admissible in the following scenario:
- When dying declaration does not state the cause of death,
- If there is no medical certificate regarding the mental or physical health of the declarant,
- If the declaration made is inconsistent or ambiguous,
- If the declaration made is made under some influence,
- If the declaration made is incomplete and does not state the circumstances that led to his death.
- If the declaration made relates to another person’s death and does not state his death.
- If the declaration made is false,
- If the declaration is made by an incompetent person (i.e., unsound person or minor),
- In the event where more than one dying declaration is made, and all of them are contradictory.
What happens if the declarant survives?
When the declarant (person making dying declaration) survives after giving their statement, such statement will come under Section 164 of Cr.P.C. (Recording of confessions and statements).
For corroboration, such a statement can also be used under Section 137 of the Indian Evidence Act, 1872 (Examination-in-chief/Examination of witness).
Under Section 155 of the Indian Evidence Act, 1872 (Impeaching credit of witness) can also be used for contradiction.
How is dying declaration different from dying deposition?
Dying declaration and dying deposition have the following distinctive features:
|Dying deposition is a statement made on oath.||In a Dying declaration, the statement is not made on oath.|
|A Dying deposition is made by a person before a Magistrate in the presence of the accused or his lawyer.||The Dying declaration is a statement made by the person before a magistrate, doctor, police officer, or any person before his death.|
|Dying deposition can be cross-examined as it is made in the presence of the accused.||In the Dying declaration, there may not be any cross-examination.|
|The Dying deposition has value even if the victim survives||The Dying declaration is of no value if the victim survives after giving the statement.|
|Dying deposition does not need to be scrutinized as the statement is made before the Magistrate and lawyers of the accused||The Dying declaration needs to be scrutinized.|
|Dying deposition is not applicable in India||A Dying declaration is applicable in India.|
Latest case laws
Mukesh Vs. State (NCT of Delhi) (2017) 6 SCC1 (Nirbhaya Case)
The court had held that where the crime of rape and sexual assault is in question, then the victim’s statement plays a crucial role. Suppose the statement attains the court’s confidence or is accepted by the court. In that case, such a statement does not need to be corroborated.
Satyama Dubey & Ors. Vs. Union of India & Ors. 2020 (Hathras Case)
In this case, the deceased was brutally gang-raped with grievous injuries. Her statement was recorded after eight days of gang rape. The court had admitted the statement as a dying declaration as it had stated the cause of his death and the circumstances that led to his death.
A dying declaration is a statement made by a person about the cause of his death or circumstances of transaction that led to his death. It can be made verbal, written, or through signs and gestures. For example, the victim signs the statement made by the victim, or a thumb impression is put on it. The Magistrate records the dying declaration only if it is satisfied that the declarant is in a fit mental condition. The statement made by the victim does not need to be corroborated if the court is satisfied with the declaration. If the declarant dies before giving complete a statement, then such statement is not accepted by the court. However, suppose such a statement mentions the cause of his death. In that case, it can be accepted even if it is incomplete.