Dying Declaration – Sec 32(1) of Indian Evidence Act, 1872.

Dying Declaration means a statement written or oral of relevant facts made by a person who is dead. It is enumerated under section 32(1) of Indian Evidence Act, 1872. It is related to the cause of death of declarant.  It is considered as one of the credible and trustworthy evidence based upon belief that most people know that they are about to die do not lie. It is an exception to the hearsay rule.

The importance of dying declaration is based on the maxim “nemo mariturus presumuntur mentri” which means truth sits upon the lips of a dying man. It does not require any corroboration as long as it inspires confidence in the mind of the judge and it is free from any form of tutoring. It has to be judges in the light of surrounding circumstances.  A person who makes the statement must, however, be competent at the time he or she makes a statement otherwise, it is inadmissible.

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The three main grounds on which the declarations are admitted are –

1. Death of the declarant,
2. Necessity: the victim is generally the only eye- witness of the crime and exclusion of his statement would lead to grave injustice.
3. Nemo Mariturus Presumuntur Mentri – no one when about to die is presumed to lie.

The distinction between English law and Indian law:

Under the English law it is essential that the person making statement must be under anticipation of death whereas under Indian law it is not necessary for the admissibility of dying declaration that the deceased at the time of making the statement should have been under expectation of death.

In England, a dying declaration is relevant only in criminal cases where cause of death is in question. In India, such statement are admissible both in civil and criminal proceedings.

Under English law, it is necessary that the deceased should have completed his statement before dying. In India, if he declarant fails to answer the last formal question then also the declaration can be relied upon.

Pakala Narayan Swamy v. Emperor, AIR 1939 – The statement made by the deceased to his wife that he was going outside the town to collect money from the accused was admissible under section 32(1).

The true and reliable dying declaration is a sole basis of conviction.  In the case of Lakhan v. State of M.P (2010) 8 SCC 514, the apex court comes to the conclusion that the dying declaration is true and reliable piece of evidence , when the deceased was physically and mentally fit to make the declaration and there has not been any tutoring then only it is sole basis for conviction.

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In the case of Sudhakar v. State of Madhya Pradesh(2012) 7 SCC 569 , the Supreme court  reiterated that the “ dying declaration “ is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At that point of time, it is expected that a person will speak the truth.

Requirements to have best piece of Dying declaration –

1. The DD should be in writing.
2. At the time of recording the statement, the victim should be in fit state of orientation and disposition.
3. The time of recording the statements should be properly mentioned.
4. The Declarant should have signed the DD.
5. It should be recorded in the same language in which the victim spoke.
6. It should be recorded in question answer form.
7. There should be no chance of tutoring the statements made by the victim.
8. The DD should be coherent in itself.
9. The DD should be complete.
10. If the Declaration has been made by gestures then the recording should be very proper.
11. It should be recorded by executive magistrate or judicial magistrate.
12. It should be recorded as soon as possible.

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