The term dying declaration relates to the relevancy of statements of persons who cannot be called as witnesses. In general sense it relates to ones i.e. who is dead or cannot be found or incapable of giving evidence or his attendance cannot be procured with reasonable delay & expense. Section 32 is applicable in the following cases:-

  1. When it relates to cause of death.
  2. Or, is made in course of business.
  • Or, against interest of maker.
  1. Or, gives opinion as to public right or custom, or matters of general interest.
  2. Or, relates to existence of relationship.
  3. Or, is made in will or deed relating to family affairs.
  • Or, in document relating to transaction mentioned in section 13, clause (a).
  • Or, is made by several persons, and expresses feelings relevant to matter in question.

The most commonly practiced form of section 32 of The Indian Evidence Act, 1872 is defined under section 32(1) of the act. The bare act reads as 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.

Illustrations:-

  • If A was grievously hurt by B,C,D and was left on road. Reena is then taken to the hospital and she gives a statement against aforesaid B,C,D. A dies because of the injuries caused. Her statement shall be considered as dying declaration.
  • A records in a camera of the people & the circumstances which tortured him to commit suicide and therefore A commits suicide. The recorded statement shall be considered as dying declaration.
  • A was raped grievously by B. A before dying briefed before doctor of the series of the circumstances happened there forth. The words of A briefed before doctor is dying declaration.

 

Section 32 applies the principle of rule of necessity. They are also in consonance of best evidence rule. It is also an exception to the rule of hearsay whereby such person’s statement is made relevant who can’t even come to the court. Section 32(1) is based on the principle of the maxim ‘Nemo moriturus praesumitur mentire’ jurisprudence that no person will meet his maker with a lie on his lifts. The word dying declaration is called as “Leterm Mortem” which means words said before death.

The concept of dying declaration under Indian law is different from that of English Law. English law says dying declaration shall be taken into account only if he is sure he is going to die but under Indian law surety of knowledge of death is not necessary. The necessity behind dying declaration is the words spoken or written must be acknowledged in pain, it must not at all be a gossip.

In Nanhau Ram And Anr. v. State of Madhya Pradesh[1], The medical opinion could not wipe out the direct testimony of number of witnesses that even if one of the witness chanced to live after receiving the injuries and was in conscious state to make the oral dying declaration.

In Smt. Paniben vs State Of Gujarat[2] , The situation in which a man is on death bed is so solemn and serene when he is dying the grave position  in which  he  is  placed, is the reason in law  to accept the veracity of  his  statement. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind. Therefore in addition to that, the SC summed up the rule of dying declaration as follows:-

  1. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.[3]
  2. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.[4]
  • This Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.[5]
  1. Where dying declaration is suspicious it should not be acted upon without corroborative evidence.[6]
  2. Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.[7]
  3. A dying declaration which suffers from infirmity cannot form the basis of conviction.[8]
  • Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.[9]
  • Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth.[10]
  1. Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.[11]
  2. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.[12]

Who can record Dying Declaration?

As such any person can record dying declaration. But it is preferably to be recorded by a doctor or a Magistrate. The dying declaration by a doctor carries higher evidentiary value.

A dying declaration not being a deposition in court neither made an oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity.[13]

In Queen-Empress vs Abdulla Sahib And Ors.,[14] It was held that no form of dying declaration is invalid. Verbal words or gestures can also be considered under the category of acceptance as a form of dying declaration.

CONCLUSION:-

Dying Declaration is the most significant and useful section written or designed in such way that it leaves no guilty unturned and no dead unheard to the most possible and justify authentication and correctness of the exact wrongdoer or series of wrongful act.

 

 

[1] AIR 1988 SC 912.

[2] 1992 AIR 1817.

[3] Mannu Raja v. State of M.P. [1976] 2 SCR  764.

[4] State of Uttar Pradesh v. Ram Sagar Yadav and others AIR 1985 SC 416 and Ramvati Devi v. State of Bihar, AIR 1983 SC 164.

[5] K. Ramachandra Reddy and another v. The Public Prosecutor, AIR 1976 SC 1994.

[6] Rasheed Beg v. State of Madhya Pradesh 1974(4) SCC 264.

[7] Kaka Singh v. State of M.P. AIR 1982 SC 1021.

[8] Ram Manorath and others v. State of U.P., 1981(2) SCC 654: AIR 1974 SC 332.

[9] State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617.

[10] Surajdeo Oza and others v. State of Bihar, AIR 1979 SC 1505.

[11] Nanahau Ram and another v. State of Madhya Pradesh, AIR 1988 SC 912.

[12] State of U.P. v. Madan Mohan and others, AIR 1989 SC 1519.

[13] Tapinder Singh v. State of Punjab 1970 AIR 1566.

[14] (1901) ILR 24 Mad 262.

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