Vikram
Singh Nehra
B.Com,
LL.B, LL.M & NET
Abstract:
The dying declaration
is called as “Leterm Mortem” which
means “words said before death” and in a legal term it is called ‘Dying Declaration’. Recording of dying declaration is very
important task. Utmost care is to be
taken while recording a dying declaration.
If a dying declaration is recorded carefully by the competent person,
keeping in mind the essentials ingredients of the dying declaration, such
declaration retains its full evidentiary value.
This project highlights those questions, which have a more value in
legal field relating to dying declaration.
This research tells about those statements which converted into dying
declaration, different forms of dying declaration, which are admissible by law
and what are the exceptions of it?
Keywords:
Dying Declaration,
Evidence Act 1872, Admissible Law, Eyewitness.
Introduction:
Term “Dying
declaration” which means a statement is made by a person as to cause of his
death, or any of the circumstances of the transaction which resulted in his
death and death of such person comes into question in any suit or
proceeding. Such statements are relevant
irrespective of the person who made them was or was not at the time when they
were made under the expectation of death.
Thus, it is apt to say that admissibility of dying declaration is
explained under section 32 (1) of the Indian Evidence Act, 1872. This is based on the maxim ‘Nemo mariturus presumuntur mentri’ i.e.
A person, who is about to die, would not lie.
“Truth sits on the lips of a person who is about to die.” Our Indian law recognizes this fact that “a
dying man seldom lies”. It is an
exception to the general principle of excluding hearsay evidence rule. Here victim is the only eyewitness to the
crime and exclusion of his statement would tend to defeat the end of justice.
In Ulka Ram v. State of Rajasthan Apex Court held that, “When a
statement is made by a person as to cause of his death or as to any
circumstances of transaction which resulted into his death, in case in which
cause of his death comes in question is admissible in evidence, such statement
in law are compendiously called dying declaration.”
Forms
of Dying Declaration: There
is no particular form of dying declaration.
It may be either written or verbal or gesture and signs forms. In the case of “Queen versus Abdulla, ILR 7 ALL 385”, it was held that if the
injured person is unable to speak, he can make dying declaration by signs and
gesture in response to the question. In
this case deceased whose throat was slit by the accused was unable to
speak. When the name of “Abdullah” was
taken she moved her hand up and down.
This was understood to be sign of affirmation and was admissible as
dying declaration.
Who
may record a dying declaration?
A dying declaration may be made to
anyone, to a police officer, to a doctor, to any person but if it is made to a
Magistrate and is recorded by him, then it will have greater evidentiary
value. The declaration is such a case of
is regarded of higher credibility.
Evidentiary
Value of Dying Declaration: There
is no absolute rule which prohibits the courts from taking a dying declaration
into consideration for the purpose of sustaining any conviction in the absence
of any corroborative evidence. But the
following consideration would lend assurance and strength to the credibility of
the dying declarations:
They are:
- The
dying declaration must have been recorded by a competent magistrate, then
it will have a greater evidentiary value.
- The
dying declaration must have been recorded in the exact words inn which it
was spoken by the declerant.
- The
dying decleration must have been made soon after the alleged incident of
attack on him then it can have greater evidentiary value. If there is an interval or there is
time gap then there is every possibility of that dying decleration being
tampered on account of the impression gathered from other persons. If there is an interval, it presides
opportunity to the person to think over and bring all his enemies to the
scene implicating them to take a sweat revenge.
- The
incident must have occurred in a lighted place. This is necessary in order to give
sufficient opportunity to the deceased to identify his assailant. Suppose a person has been attacked in
pitched darkness and he has no opportunity of identifying his assailant
and he presume that in all probability a certain person who is his enemy
must have attacked him and in his declaration he names that person. Here the incident has taken place in
darkness when there was no opportunity to identify the person. So in such cases, it cannot be relied
upon. The incident must have
occurred at a lighted place.
Incomplete
Dying Declaration: An
incomplete dying declaration is inadmissible.
But, if the statement, though incomplete in the sense that the declarant
could not state all that he wanted to state, yet whatever, he state is complete
in respect of a certain fact, the statement would not be excluded on the ground
of its being incomplete.
In the case of Abdul Sattar Versus State of Mysore, AIR
1956 SC 168, the deceased stated
“I was going home, when I came near the house of Abdul Majid, Sattar shot me
from the bush. He ran away I saw”. The dying man was in no condition to answer
any further. Their Lordship held, “under
the circumstances though incomplete was complete in so far as the accused
Sattar having shot the deceased was concerned and could certainly be relied
upon.
FIR
as Dying Declaration: A
report made by the deceased relating as to the caused of death or as to any of
circumstances of the transaction which resulted in his death shall be relevant
as dying declaration under section 32(1).
Can
dying declaration form the sole basis of conviction: The Supreme Court observed in Kaushal Rao versus State of Bombay, AIR 1958 SC 22 that it was not
absolute rule of law that other evidence must corroborate a dying
declaration. A dying declaration even if
uncorroborated can form the sole side basis of conviction. But each case must be determined on its own
facts; keeping in view the circumstances in which the dying declaration was
made. It cannot be laid down as a
general proposition that a dying declaration stands on the same footing as
another piece of evidence and has to be judged in the light of surrounding
circumstances and with reference to principles governing the weighing of
evidence; a dying declaration which has been recorded by a competent Magistrate
in the proper manner, that is to say, in the form of questions and answers, and
as far as practicable in the words of maker of the declaration stands on a much
higher footing than a dying declaration which depends upon oral testimony which
may suffer from all the infirmities of human memory and human character. In order to test the reliability of a dying
declaration, the court has to keep in view the circumstances like the
opportunity of dying man for observation, whether the capacity of the man to
remember the facts stated had not been impaired at the time he was making the
statement by circumstances beyond his control, that the statement has been
consistent throughout if he had several opportunities of making a dying
declaration apart from the official record of it; and that the statement had
been made at the earliest opportunity and was not the result of tutoring by
interested parties. In order to be
reliable for conviction a dying declaration has to be subjected to a very close
scrutiny, keeping in view the fact that the statement has been made in the
absence of the accused, who had no opportunity of testing the veracity of the
statement by cross-examination. But once
the court determines that the dying declaration is truthful, there is no
question of further corroboration and dying declaration can form the sole basis
of conviction.
Relevant
Case-Law as to “Dying Declaration”:
·
Medical
opinion cannot wipe out the direct testimony of the eyewitness stating that the
deceased was in fit and conscious state to make the dying declaration. (N Ram Vs. State).
·
Pakala Narayana Swami vs Emperor, AIR
1939 PC 47, in this
case, the statement of Pakala Narayana Swami’s wife “ he is going to Berhampur
to get back his amount” was considered as “Dying declaration”.
·
As
a measure of safety original dying declaration should be sent to the court like
FIR and its photo copy should be kept in the case file (State of Karnataka v. Shivalingappa, 2001 (4) RCR (Criminal) 237
(Karnataka) (DB).
·
It
is perfectly permissible to reject a part of dying declaration. If it is found to be untrue and if it can be
separated. (Nand Kumar v. State of
Maharastra).
Conclusion:
Dying declaration is
a legal concept refers to that statement which is made by a dying person,
explaining the circumstances of his death.
Lord Lush, L.J., quoted that “A dying declaration is admitted in
evidence because it is presumed than no person who is immediately going into
the presence of his maker, will do with a lie on his lips. But the person
making the declaration must entertain settled hopeless expectation of immediate
death. If he thinks he will die tomorrow
it will not do”.
With propound sense of regret, I crave
the indulgence of the officials and others concerned, who record dying
declaration, it is suggested that whenever dying declaration is to be recorded
, it must be recorded with great care and caution keeping in mind the sanctity
which the court of law attaches to the dying declaration.
References:
-
Ulka Ram v. State of Rajasthan.
-
Queen versus Abdulla, ILR 7 ALL 385.
-
Abdul Sattar Versus State of Mysore, AIR 1956 SC 168.
-
Kaushal Rao versus State of Bombay, AIR
1958 SC 22.
-
Pakala Narayana Swami vs Emperor, AIR 1939 PC 47.
-
(State of Karnataka v. Shivalingappa, 2001 (4) RCR (Criminal) 237 (Karnataka)
(DB).
-
Lord Lush, L.J., quote.
-
The free dictionary by farlex.
-
By Ms. Shipra Arora, Legal Service India.
-
By Sh. Y.Srinivasa Rao, Legal Service India.
10.
Legalserviceindia.com.