What is a dying declaration? How is it proved? What is the principle on which dying declaration is admitted in evidence?

Question: What is a dying declaration? How is it proved? What is the principle on which dying declaration is admitted in evidence? [U.P.C.J. 2015, M.P.C.J. 2012, Bihar J. 1991, U.P.H.J.S. 1996, M.P.H.J.S. 2013]

Find the answer to the mains question only on Legal Bites. [What is a dying declaration? How is it proved? What is the principle on which dying declaration is admitted in evidence?]

Answer

The provisions relating to Dying Declaration are contained in Section 32(1) of the Indian Evidence Act. In simple words, the Dying declaration is a statement of a person who is dead and in this regard Section 32 of the Evidence Act list total of eight circumstances in which a statement written or verbal of relevant facts made by a person who is dead or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without delay are relevant.

Section 32(1) of the Indian Evidence Act states-

“When the statement is made by a person as to cause of his death or as to any of circumstances of the transaction which resulted in his death in cases in which cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not at the time when they were made under the expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question.”

In Uka Ram v. State of Rajasthan 2001(2) Recent Criminal Reports 416, Supreme Court has observed-

“When a statement is made by a person as to cause of his death or as to any circumstances of the transaction which resulted into his death, in the case in which cause of his death comes in question is admissible in evidence, such statements in law are compendiously called dying declaration. The principle on which dying declarations are admissible in evidence, based on legal maxim:

“Nemo Moriturous Praesumitur Mentire” i.e. a man will not meet his maker with lying on his mouth. It has also to be kept in mind that though a dying declaration is entitled to great weight yet, it is worthwhile to note that making of statement is not subject to cross-examination, it is essential for the court to insist that a dying declaration should be of such nature as inspire full confidence of the court in its correctness”.

Thus, a dying declaration is a statement of a person who is dead, however, any statement to be made relevant under section 32(1) must either disclose the cause of death of the declarant or any circumstances of the transaction which resulted in his death.

Such statement is not made in court upon Oath and is also not subjected to test of cross-examination yet is made relevant under section 32(1) because law attaches great sanctity to words of a dying man and presume that person on the verge of his death will not concoct a story to falsely implicate innocent person but will give full and true disclosure of facts which lead to his death.

1. Principle of dying declaration

Under this section written or verbal statements of relevant facts made by a person—

1. who is dead;
2. who cannot be found;
3. who has become incapable of giving evidence; or
4. whose attendance cannot be procured without unreasonable delay or expense; are relevant under the following circumstances-

1. 1. When it relates to the cause of his death.
   2. When it is made in the course of business, such as an entry in books, or acknowledgement or the receipt of any property, or date of a document.
   3. When it is against the pecuniary or proprietary interest of the person making it or when it would have exposed him to criminal prosecution or to a suit for damages.
   4. When it gives an opinion as to a public right or custom or matters of general interest and it was made before any controversy as to such right or custom has arisen.
   5. When it relates to the existence of any relationship between persons as to whose relationship the maker had special means of knowledge and was made before the question in dispute arose.
   6. When it relates to the existence of any relationship between persons deceased and is made in any will or deed or family pedigree, or upon any tombstone on a family portrait, and was made before the question in dispute arose.
   7. When it is contained in any deed, will, or another document.
   8. When it is made by a number of persons and expresses feelings relevant to the matter in question.

Section 30 does not limit the operation of this section, but section 118 does.

The words “dying declaration” mean a statement written or verbal of relevant facts made by a person who is dead. A dying declaration is not complete unless the full names and addresses of the persons involved are given in it. Therefore, only because the deceased in his dying declaration uttered first names similar to that of the accused, it was not proper to accept the prosecution version based on such an incomplete dying declaration.

Evidence of dying declaration is admissible not only against the person actually causing death but also against other persons participating in causing death. A dying declaration is an exception to the general rule against hearsay. The grounds of admission are:

1. firstly, the victim is generally the only principal eye-witness to the crime;
2. Secondly, a sense of impending death creates a sanction that is equal to the obligation of an oath. A man would not like to meet his maker with a lie in his mouth.
3. The requirements of oath and cross-examination are dispensed with.

Though a dying declaration is not recorded in the court and nor is it put to strict proof of cross-examination by the accused, still, it is admissible in evidence against the general rule that hearsay evidence is not admissible in evidence

2. Proving of dying declaration

A statement by a person made before his death to be relevant, the following ingredients are to be satisfied:

1. The statement is made by a person who is conscious and believes or apprehends that death is imminent.
2. The statement must pertain to what the person believes to be the cause or circumstances of his/her death.
3. What is recorded must be a statement made by the person concerned, since it is an exception to the rule of hearsay evidence.
4. The statement must be confidence bearing, truthful and credible.

In Mallella Shyamsunder v. State of AP [(2015) 2 SCC 486], the Supreme Court added two more ingredients as under:

1. the statement should not be one made on tutoring or prompting.
2. The court may also scan the statement to see whether the same is prompted by any motive of vengeance

3. Evidentiary value of dying declaration

Dying Declaration being the exception to the general Rule that Oral evidence must be direct, is generally taken into evidence with great caution and scrutiny by the court. A dying declaration is a statement that is not made on oath nor opposite party get the opportunity to test it by cross-examination is, therefore, always required to be carefully scrutinized before acting upon. Generally, the court always seeks corroboration from other circumstances to base conviction on dying declaration.

In K.R. Reddy v. Public Prosecutor, AIR 1976 SC 1994, it was observed

“Dying declaration undoubtedly admissible under section 32(1) and not being a statement on oath so that its truth could not be tested by cross-examination, the court has to apply scrutiny and closest circumspection to statement before acting upon it….. Court has to be on guard against the statement of the deceased being a result of either tutoring. The court must satisfy that deceased had clear opportunity to observe and identify his assailants and that he was making the statement without any influence.”

However, the dying declaration can be the sole basis of conviction and no corroboration is required if it is proved that it is recorded with all precautions and the maker of the statement made it while he was in a fit state of mind as held by SC in Parkash and other v. State of M.P, AIR 1993 SC 65.

---

Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X