Dying declaration- Sec. 32

Sec. 32(1) of the Indian Evidence Act is an exception to the principle that excludes the hearsay rule. Principle behind the concept of dying declaration is that the person having the first hand information about a particular matter, however due to death or any kind of disability is unable to appear before the court, then his/ her knowledge/ information should be transmitted to the court through some other person.

This Section plays a significant role when the person having a particular knowledge is sought to be proved dead or cannot be found or due to any reason his attendance cannot be procured in the Court. However, proof must be produced before the Court that why person could not be present to give evidence.

The statement made can be verbal/ oral connected to the circumstances of transaction which resulted the death of that person; such statement must be made before death is known as “dying declaration”. Such statement plays relevancy when the person who is making the statement, is under expectation of death, irrespective of the nature of proceedings in which the cause of death comes into question.

If the declarant survives after making the statement then it is inadmissible as dying declaration but the statement can be used under Sec. 157 of the Indian Evidence Act, in order to contradict, corroborate, impeach or confirm the credit of the person by whom it was made.

In the case of Maqsoodan v. State of U.P, AIR 1983 SC 126– It was held by Supreme Court that when a person who has made a statement, may be under expectation of death, is not dead it is not a dying declaration.

Legal Principle

According to Sec. 32(1) a statement is relevant when, “It is made by a person as to cause of his death or as to any of the circumstances of the transaction which resulted in the death in case in which the cause of the person’s death comes into question.”

Such statements play an important role and are relevant when the person who made it was at the time when such statements are made is under expectation of death. The condition based on which the evidence is considered to be admissible is that the cause of declarant’s death comes into question. It is not necessary that the statement made after transaction has taken place or that the person making it is on the death bed.

Essential ingredients of dying declaration

1. Statement made by person who is dead must be as to cause of his death or as to circumstances of transaction which resulted into his death;
2. It is not necessary that person making statement must be under expectation of death;
3. Statement is relevant in any proceeding (whether criminal or civil) in which cause of death of such person is in question.

 

In the case of Moti Singh v. State of U.P. AIR 1964 SC 900– The deceased was shot at by the accused. During treatment he made a statement regarding injurie After treatment, deceased was discharged from Medical and after one month of incident he died however there was no evidence as to exact cause of his death Supreme court held that his statement cannot be used as dying declaration.

Admissibility of dying declaration in the Court

The concept of dying declaration is based on the Maxim “nemo morture praesumntur mentiri” which means that the person who is about to die would not tell lie.

The necessity of relying on the dying declaration is that-

1. Victim being the sole eye witness of the crime committed,
2. The statements made by a person who is about to die would be nothing but just truth.

These are the two principles on which the concept of admissibility of dying declaration it is based upon.

In the case of Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850- The Supreme Court held that, the dying declaration ought to be recorded in the form of question answers but if a dying declaration is not elaborate but consists of only a few sentences and is in the actual words of the maker the mere fact that it is not in question answer form cannot be a ground against its acceptability or reliability.

Evidentiary value

Dying declaration can only be taken into consideration when it is-

1. Recorded by a competent magistrate (with certain exception),
2. Statement must be recorded in the exact words,
3. There must not be any scope of influence from the third party, and hence the declaration must be made soon after the incident that is the reason of the death,
4. There must not be any ambiguity regarding the identity of the offender or cause of death.

It is very important to note that such a statement must not be made under the influence of anybody or it must not be given by promoting or tutoring. In case there is such a suspicion, then such dying declaration needs evidence to corroborate.

In the case of Singh v. The State, AIR 1962 SC 439– The Court held that a dying declaration could form the sole basis of conviction and hence it is necessary that a Court trying the case should have before it a correct and faithful record of the statement made by the dead person. A dying declaration should be recorded in the manner prescribed and in the event of death of the person making it, should be submitted at the enquiry or trial.

In the case of K.R. Reddy v. Public Prosecutor, AIR 1976 SC 1994– The Court observed, “Dying declaration undoubtedly admissible under Sec. 32(1) of the Evidence Act and not being statement on oath so that its truth could not be tested by cross examination, hence the Court has to apply scrutiny and closest circumspection to statement before acting upon it. Court has to be on guard against statement of deceased being result of either tutoring. Court must satisfy that deceased had clear opportunity to observe and identify his assailants and that he was making the statement without any influence.”

Basis of sole conviction

It is important to note that when a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. It is must that the Court has to scrutinize the dying declaration with proper care and must ensure that the declaration is not the result of tutoring, prompting or imagination. Further, it should be taken into consideration that the deceased must be in a fit state of mind to make the declaration and must identify the assailants.

In the case of Lakhan v. State of M.P, Criminal Appeal No. 2297 of 2009– The Supreme Court opined that when Court comes to the conclusion regarding the validity and reliability of dying declaration, then the Court must ensure that it has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required.

In the case of Natha Shankar Mahajan v. State of Maharashtra, AIR 2011 Bom. – The Court held if there is any suspicion about this dying declaration, the benefit must go to the accused. That is a correct proposition of law. However, it is also the settled position that where the dying declaration is believable, creditworthy and appeals to the court, the same can be made the sole basis of the conviction.