What is dying declaration?
The term ‘dying declaration’ is nowhere precisely defined in the Evidence Act. It refers to ‘a declaration made by a person by way of signs, verbal communications, conduct, or writing soon before his death or while he is on his death bed’.
Relevant provision:
Section 32 (1) of the Evidence Act talks about the relevancy of dying declaration.
It says that a statement whether written or verbal made by a person:
a) Who is dead, or
b) Who cannot be found, or
c) Whose attendance can’t be procured in the Court without unreasonable delay
is relevant when it relates to cause of death.
Essentials of a dying declaration:
1. Dying declaration must relate to cause of his death only or refer to circumstances/transaction which caused his death.
2. The person making the statement i.e. the declarant must be found dead after making of the statement. If such person doesn’t die the statement fails to fall under the category of dying declaration and it might rather be treated as a statement u/s 154 Cr.PC and 161 Cr.PC.
3. There must be proximity of time in making of the statement and time of death. This is very important while deciding whether the statement is covered under this category or not.
4. The declarant must be mentally fit i.e. conscious oriented, fully aware and able to understand the aftermath of making his statement, while giving the statement. It isn’t always necessary that the fact of mental fitness be certified by the doctor, however if there is a medical certificate to that effect it proves to be more effective and efficient.
5. Dying declaration can be made to any person: a doctor, a magistrate, police personnel, friend or any other person. However, if it is recorded by a Magistrate, that accords more reliability and authenticity.
6. The statement must be complete and not vague. An incomplete statement will always leave a loophole and has more chances of being tampered thus, an incomplete statement will not be relevant.
7. The declarant must be competent as a witness i.e. he must be capable of being a witness if he weren’t dead. (To see competency of a witness, refer Section 118 of the Indian Evidence Act)
8. It is not necessary that the declarant is under the expectation of death while giving the statement.
Other points to be remembered:
• The concept of dying declaration is based on the maxim Nemo moriturus presumuntur mentri which means ‘no one who is on the death bed is presumed to lie’.
• Dying declaration must be voluntary.
• The person to whom a declaration/statement is made or who records such statement is known as a scribe.
• As of general rule, hearsay evidence is inadmissible under the Evidence Act. Dying declaration is an exception to the hearsay rule.
• There is no rule of law which says that no conviction can be solely based on the basis of dying declaration unless it is corroborated with independent evidence. Thus, where a statement is complete and reliable to the satisfaction of the Courts, the Courts can convict a person on the basis of a Dying declaration.
• The courts must act with caution while relying on a dying declaration as such statement is not direct but coming from a person who has either heard or written it, therefore there are odds of filtration/manipulation in the statement.
• Dying declaration helps securing conviction in cases like dowry deaths, etc. where direct evidence isn’t available.
• The statement must be explanatory as to the cause of declarant’s death.
• Such statement is admissible in both criminal and civil proceedings.
• A suicide note is an example of dying declaration.
• Signature of declarant isn’t mandatory on the declaration. But it is better to reduce the statement into writing and get it signed by the declarant as this reduces the likelihood of unnecessary exaggerations.
• Where there are more dying declarations than one, it is the duty of the Court to analyse and scrutinise on which of the declarations it should rely and on which it should not.
FIR and Complaint as a dying declaration:
An injured informant who gives information to the police as to commission of an offence and dies thereafter, such informational statement can be treated as dying declaration if it relates to the cause of the informant’s death.
In the same way, a complaint by a person can be treated as a dying declaration if he dies after lodging of the complaint and the complaint refers to the cause of his death.
Relevant case laws:
1. Queen Empress Vs Abdullah (1885) ILR 7 All 385
This is one of the important case laws on the topic of dying declaration in which it was held that there is no particular form of recording a dying declaration. It can be by way of gestures, conduct or signs as well.
2. Khushal Rao vs State of Bombay 1958 AIR 22
The Supreme Court adopted the principles laid down by the Privy Council in the case of Pakala Narayan Swami Vs Emperor, which includes inter alia the following:
• A dying declaration is not a weaker kind of evidence.
• A dying declaration cannot be equated with a confession of a co-accused as it may not come from a tainted source.
• Necessity of corroboration doesn’t arise from inherent weakness of a dying declaration but from the fact that in a particular case the particular declaration is not free from infirmities.
This article is authored by Gunjan Kathuria, Practicing Advocate At Tis Hazari Court and Delhi High Court.
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