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Basic Principles Of Dying Declaration

Section 60 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) mandates that oral evidence must be direct, i.e. to say - if it refers to a fact which could be seen, it must be in form of a statement of a witness, who says he saw the fact; if it refers to a fact which could be heard, it must be stated by the witness, who heard it. Similarly, if it refers to a fact which could be perceived by any other senses, it must be evidence of a witness who perceived it. In the case of opinion evidence or the grounds on which such opinion is based, it must be evidence of the person who holds that opinion on those grounds. As a general principle of evidence, hearsay, i.e. evidence of a witness who did not himself see, hear, perceive and form an opinion, is inadmissible in evidence. Certain exceptions have been carved out for making hearsay evidence relevant and also admissible in evidence. One such exception is contained in Section 32(1) of the Act. Section 32(1) of the Act is reproduced herein below:

"Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. -Statements, 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 an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

1. When it relates to cause of death. -When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the 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 expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."

Illustration(a) appended to Section 32 illustrates a situation in which the provision contained in Section 32(1) of the Act may be resorted to.

The term `dying declaration' has as such not been defined in the Act. The term is derived from Latin phrase `Laterm Mortem'. Principle underlying dying declaration is a Latin maxim-"Nemomorituruspraesumiturmentire" which means that no one would meet the Maker with a lie in his mouth. The reason for carving out this exception is based on Doctrine of Necessity. As in many cases, the victim is an only eye-witness to the crime and in such circumstances exclusion of dying declaration, would make it very difficult if not impossible, for the prosecution to prove its case. Dying declaration is also based on the implicit faith in the intrinsic truthfulness of human character, in the light of impending end of life. It has been so held by the Hon'ble Supreme Court of India in para 24 of its judgment titled as Jaishree Anant Khandekar v. State of Maharashtra reported as (2009) 11 SCC 647, which reads as follows:

"24. Apart from an implicit faith in the intrinsic truthfulness of human character at the dying moments of one's life, admissibility of dying declaration is also based on the doctrine of necessity. In many cases victim is the only eyewitness to a crime on him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice."

Relevancy of Dying Declaration

- As per Section 32(1) of the Act, a statement of a dead person is relevant, only when it is made by him/her as to the cause of his death or as to any of the circumstances of the transaction, which resulted in his/her death. The term `circumstances of the transaction' were interpreted by the Hon'ble Privy Council in Pakala Narayana Swami v. The King-Emperor reported as AIR 1939 PC 47. It was held that the phrase `circumstances of the transaction' in Section 32(1) of the Act is not as broad as circumstantial evidence which includes evidence of all relevant facts. It is narrower than `resgestae'. The circumstances must have some proximate relation to the actual occurrence and must be part of the transaction which resulted in the death of the declarant. This aspect of the judgment has been followed and relied upon by the Hon'ble Supreme Court of India in a long line of binding precedent and holds the ground till date.The judgment of the Hon'ble Privy Council was relied upon in the celebrated judgment of Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. A four Judges Bench of the Hon'ble Supreme Court of India in case titled as Moti Singh v. State of U.P., reported as (1964) 1 SCR 688 held as follows:

"15. ......Clause (1) of Section 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident, his statement cannot be said to be the statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death......"

Thus, statement made by a person, who is dead, is relevant under section 32(1) of the Act, if it pertains to the cause of his death or any of the circumstances of the transaction which resulted in his death.

Does Expectation of Death Affect Relevancy of a Dying Declaration?

The basis of dying declaration is faith in the intrinsic truthfulness of human character at the dying moment of one's life. However, it has been held by the Hon'ble Courts that expectation of death does not affect relevancy but only the weight that can be attached to a dying declaration. Immediate expectation of death is not a pre-condition for making the said statement relevant. Reliance in this regard may be made to the following judgments:

i) In case titled as Inayat Khan v. The Crown reported as AIR 1935 Lah 94, death of the person making dying declaration had taken place a month and a four days after the commission of the offence. The said circumstance was held to be immaterial and the statement made by the deceased immediately after the occurrence, was treated as dying declaration. While expounding the difference between the English Law and the Indian Evidence Act, 1872, it was held that the Indian Law makes a statement made by a person who is dead, as to the cause of death admissible in evidence, even though he may not be aware that he was dying when he made it.

ii) In case titled as Najjam Faraghi v. State of West Bengal reported as (1998) 2 SCC 45, the Hon'ble Supreme Court of India rejected the contention that the dying declarations made by appellant's wife had no value as she died long after making the dying declarations. It was held that no doubt when a person is expecting his death to take place shortly, he would not indulge in falsehood, but that does not mean that such statement loses its value if the person lives for a longer time than expected.

iii) In the context of proximity of time, a Constitution Bench of Hon'ble Supreme Court of India in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, in paragraph 21 of the judgment held as under:

"21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge:

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(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.

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(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant."

It thus, emerges that there cannot be a straight jacket formula as to the proximity between the time of making statement and death and merely because the person making the statement, died long after making a statement as to the cause of his death or the circumstances of the transaction which resulted in his death, would not make the statement inadmissible.

FORM OF DYING DECLARATION

- The law does not prescribe any particular form of dying declaration. Even an oral dying declaration, is admissible in law. In a catena of cases dying declarations recorded by the police officers have been held to be admissible by the Hon'ble Courts. It is pertinent to state here that dying declarations recorded by doctors, police officials and even strangers have been held to be admissible by the Hon'ble Courts. It has been held that dying declaration need not necessarily be recorded in question-answer form. It may consist of only a few sentences recorded is in actual words uttered by the deceased. Punjab and Haryana High Court Rules and Orders provide for the manner in which the Judicial Magistrates should record dying declarations. The rules are contained in Volume-III, Chapter 13-A. Rule 4 provides that the statement, whether made on oath or otherwise, shall be taken down by the judicial magistrate in the form of simple narrative. The rule further states that the Judicial Magistrate may for clearing any ambiguity ask the declarant to disclose the cause of his apprehended death or circumstances of the transaction in which he sustained the injuries. The rule further states that if any occasion arises for putting questions to the dying man, the Judicial Magistrate should record the questions as also the answers, which he receives and emphasis has been laid upon recording the actual words of the declarant rather than taking down their substance.

It has however, been held by the Hon'ble Courts that statements recorded before Judicial Magistrates have a higher value.

Fitness of declarant to make the statement

- Rule 3 of Chapter 13-A of Volume-III of Punjab and Haryana High Court Rules and Orders states that before proceeding to record a dying declaration, the judicial magistrate should satisfy himself that the declarant is in a fit condition to make a statement and if a medical officer is present or his attendance can be secured without loss of time, his certificate as to the fitness of the declarant to make a statement should be obtained. The rule further states that if circumstances do not permit waiting for attendance of the medical officer, Judicial Magistrate may proceed to record the statement forthwith but he should note down the reasons, why he considered it impracticable or inadvisable to wait for doctor's attendance. In Ramila Ben Hasmukhbhai Khristi v. State of Gujarat, (2002) 7 SCC 56, it was held by the Hon'ble Supreme Court of India that a doctor's certificate about mental fitness of the declarant to make statement is necessary. This view was however, impliedly over-ruled by the Hon'ble Apex Court in judgment titled as Sohan Lal v. State of Punjab, (2003) 11 SCC 534 and Muthu Kutty and another v. State by Inspector of Police, T.N. (2005) 9 SCC 113. In Sohan Lal's case dying declaration had been recorded by a Naib Tehsildar. However, there was no medical certification as to the fitness of state of mind of the declarant. On the basis of evidence on the record, the Hon'ble Court arrived at a conclusion that the deceased was in a fit mental condition while making the statement. The statement was considered as dying declaration, irrespective of the fact that there was no endorsement of doctor about fitness of the state of mind of the declarant.

Conviction on the basis of uncorroborated dying declaration

- Dying declaration can be sole basis of conviction, if it inspires full confidence. If the Courts are satisfied that the deceased was in a fit state of mind at the time of making the statement and it was not a result of tutoring, prompting or product of imagination, conviction can be based on uncorroborated dying declaration. In Khushal Rao v. State of Bombay, AIR 1958 SC 22, the Hon'ble Supreme Court of India held as follows:

"17. Hence, in order to pass the test of reliability, 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 has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case."

Does Dying Declaration apply to cases of suicide as well?

The Act does not make any distinction between homicide and suicide in respect of dying declarations. In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, the Hon'ble Supreme Court of India took this view and held that Section 32 does not speak of homicide alone but it includes suicides also. Hence, all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

Conclusion

- The principles governing dying declaration, were enunciated by the Hon'ble Supreme Court of India Smt. Paniben v. State of Gujarat (1992) 2 SCC 474. The principles were reiterated in Shakuntla v. State of Haryana reported as (2007) 10 SCC 168. The said principles were stated to be of immense importance and cardinal in nature and were reiterated in case titled as Jaishree Anant Khandekar v. State of Maharashtra, (2009) 11 SCC 647. The principles are as under:

"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376])

(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 : 1985 SCC (Cri) 127] and Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983 SCC (Cri) 169].)

(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri) 473].)

(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426])

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645])

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P. [(1981) 2 SCC 654 : 1981 SCC (Cri) 581])

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 : 1981 SCC (Cri) 364].)

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769 : 1979 SCC (Cri) 519].)

(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342])

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC 390 : 1989 SCC (Cri) 585].)

(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700 : 1982 SCC (Cri) 334].)"

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