Dying declaration | Law of Evidence

This article on ‘Dying declaration’ is written by Aritra Sarkar and discusses the concept of dying declaration under the Evidence Act.

I. Introduction

The dying declaration is dealt with in section 32(1) of the Indian Evidence Act, 1872. This article discusses the important points of the Dying Declaration. The term dying declaration is nowhere defined in the Indian Evidence Act, 1872.

II. Section 32

Section 32 deals primarily with statements from people who are unable or have become incapable to give evidence. The section says that

“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
2. or is made in the course of business
3. or is made against the interest of the maker
4. or gives an opinion as to public right or custom, or matters of general interest
5. or relates to the existence of a relationship
6. or is made in will or deed relating to family affairs
7. or in the document relating to transaction mentioned in section 13, clause (a)
8. or is made by several persons and expresses feelings relevant to a matter in question.”[1]

The section proceeds to explain each one of the cases but for the requirement of dying declaration, we only need the first case i.e. only sub-section 1.

The section in relation to the sub-section 1 says that-

“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 the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”[2]

The first illustration of this section explains the point very well. It says that ‘A’ was ravished by ‘B’ and due to the injuries, she sustained she dies. The question is whether she was ravished by ‘B’ or whether ‘A’ was killed by ‘B’ under such circumstances that a suit would lie against ‘B’ by A’s representatives. In this case, the statements given by ‘A’ about the murder and rape are relevant.

Again, in illustration (k) this issue is discussed. Here it is said that “The question is, whether ‘A’, who is dead, was the father of ‘B’. ‘A’ statement by ‘A’ that ‘B’ was his son, is a relevant fact.”

Such statements are relevant even when the person making the statement is not under the expectation of death at the time of making the statements. This is an obvious exception to the rule that hearsay evidence could not be permitted but as the person giving the evidence is dead and the person who heard what he said can come to the court and give evidence. The reason for admitting such evidence is that it is the best evidence available as at the moment the original person is dead and the occasion is solemn and a person generally does not intend to lie at his death bed. Such statements will be called a dying declaration.

The dying declaration can be made to anyone it does not matter to whom it is being made it can be made to a policeman or a magistrate or a pauper or anyone else. Such statements if made on oath to a magistrate, it is called a dying deposition.

The conditions for a statement to be dying declaration are as follows-

1. It must be a statement written or verbal
2. The statements must relate to the cause of his death
3. The cause of the person’s death must be in question

1. It must be a statement written or verbal

In the case of Alisandiri v. R it was held that verbal does not necessarily oral it also refers to the gestures made by a dying man, because of his inability to speak at that point in time, in answer to the questions put forward to him.[3]

When the dying declaration is produced in the court as evidence the court must be satisfied that the dying declaration is not a result of either tutoring or imagination of the dying man. The court must be satisfied that the dying declaration was given voluntarily and that the deceased was in a fit state of mind. If a dying declaration is found to be reliable then there is no need for corroboration conviction can be made on that basis alone. This was said in the case of Prempal v. State of Haryana.[4]

Though the supreme court has prescribed that the dying declaration will have to be recorded in the form of questions and answers but it did not prescribe any mode of recording.[5] In the case of Muralidhar v. State of Karnataka[6], it was said that the recording will have to be done by the deceased himself and tit should not be the dictation of someone else as this will create suspicion on the reliability of the evidence.

2. The statements must relate to the cause of his death

The statements must relate to the cause of the death of the victim’s own death or the circumstances of the transaction which resulted in his death and not the cause of the death of someone else. Previously it was thought that the statements made about matters after the injury will only become admissible but the term circumstantial transaction is wide enough to include the statements before the injury was made too.[7] In the case of Ranjit Singh v. State[8], a husband was murdered by his wife and her paramour.

Letters were written by the person three years before the death showing that relations between him and his wife were strained and the entries in a diary kept by the deceased showing the arrival of the paramour and the incident thereafter was held to be admissible.

The famous case of Pakala Narayan Swami[9] where a person was killed and he was put in a box inside a train. The court, while taking evidence said that, his statement to his wife long before he has even suspected death about his receiving a letter and an invitation to go in the house of the accused is admissible. This case has been discussed in detail later in the article.

The interval between the time of death and the statement is immaterial. If there is nothing to show that the death is caused by the injuries regarding which the deceased gave his statements then those are not admissible as a dying declaration.

In the case of Narayan Singh v. State of Bihar[10], a girl was raped and she gave her statement regarding the crime. After 5 days the girl committed suicide. The court held that since we do not know whether the death was caused due to the rape or due to some other reason, therefore, her statements will not be taken as a dying declaration.

Similarly, in the case of Moti Singh v. State of U.P.[11] the victim gave statements against one Moti Singh the accused who injured him. After a few days, the victim died. The court said in this case that since the death of the victim is not related to the injuries caused to him by the accused it cannot be said to be a dying declaration.

3. The cause of the person’s death must be in question

The dying declaration will be admissible in any case whether civil or criminal when the cause of the person’s death is in question.[12] This principle is clearly explained n the first illustration to section 32 of the evidence act as already explained earlier.

The rule in English law is quite different in this aspect in English law a dying declaration is admissible only in criminal cases and not in civil cases. Another point where the English law differs from Indian law is that a dying declaration has to be said only under the suspicion of death.[13]

In the case of Ratan Gond v. State of Bihar[14] the accused was charged with the offence of murder the sister of the victim gave her statement due to which the body of the victim was found. However, before her statement could be judicially recorded the sister died. Now the question before the court was if the statement of the victim’s sister could be taken as a dying declaration. The court held in this case that the statements of the victim’s sister relate to the death of the victim and not her own death and therefore it can not be taken as a dying declaration.

III. Recording of Dying Declaration

The recording of the dying declaration can be done by four categories of persons-

1. Magistrate (Most evidentiary value)
2. Police
3. Doctor
4. Any other person (Least evidentiary value)

In the case of Samadhan Dhudaka Koli v. State of Maharashtra[15] it was said that a dying declaration made before a Judicial Magistrate has a higher evidentiary value. The Judicial Magistrate is presumed to know how to record a dying declaration. He is a neutral person.

1. Multiple dying declaration– When a dying declaration was given to multiple people (such as the doctor, police, parents etc.) then each of the dying declarations will have to be consistent with each other or otherwise the dying declaration will not be admissible. This was held in the case of Ganpat Mahadeo Mane v. State of Maharashtra.[16]
2. Incomplete dying declaration– In case of incomplete dying declaration as long as the dying declaration states the guilt of the accused it will be admissible. Upholding the same principle in the case of Abdul Sattar v. The State of Mysore[17] the court said, “We are of the opinion that these observations do not help the appellant at all. In the dying declaration before us, even though the same was incomplete by reason of the deceased not being able to answer further questions in his then condition, the statement so far as they went to implicate the accused in the affair was quite categoric in character and they definitely indicated that it was the accused who had shot the deceased.”
3. When the declarant survives– When the declarant survives after giving his statement then it will become a statement under section 164 CrPC. It can also be used under section 137 of the evidence act for the purpose of corroboration under section 155 of the evidence act for the purpose of contradiction.

IV. Pakala Narayana Swamy v. The King Emperor (AIR 1939 PC 47)

This is an appeal case against the judgement of the High Court of Patna where the appellant was convicted for the murder of one Kurree Nukaraju and was sentenced to death.

(This case is generally read for understanding dying declaration and admissibility of evidence under section 162 of CrPC.)

1. Facts of the case

The accused’s wife had taken some money from the deceased a year ago in 1936. On 20th March 1937, the deceased received a letter inviting him to come to Berhampur for collecting his dues but the letter was unsigned. There was a general suspicion that the letter was sent by the accused’s wife but the judge was not satisfied with the handwriting evidence that was given. The deceased set for Berhampur but he never came back. His body was found on 23rd March 1937 from a passenger train in Puri in an unclaimed trunk in seven pieces. The post-mortem report confirmed that its murder.

During the investigation, it was found that the trunk was bought on behalf of the accused. Evidence was given by the washerman of the accused who bought it on behalf of the accused and also by the shopkeeper who sold the trunk.

2. Issues

A number of questions arose in this case-

1. Whether the statement of the deceased’s wife that the deceased told him that he was going to collect his dues from the accused’s wife will be treated as a dying declaration or not?
2. Whether the statements given by the accused’s during the investigation will be protected under section 162 of CrPC or not?

3. Judgement

The Judgement was given by a 5-judge bench of the Privy Council and it was delivered by J. Atkin.

Re, 1st Issue– In this issue, a variety of questions arose, previously it was suggested that the statement must be made after the transaction has taken place and the person making the statement must be in a near-death situation.

In the present case, the lordships declared that the natural meaning of the words of section 32(1) of the Indian evidence act does not convey any such limitations.

The statement may be made before the cause of death has arisen or even before the deceased had any reason to anticipate getting killed but the circumstances must be circumstances of the transaction and any general expression of suspicion or fear from any individual or otherwise, that is not directly related to the case will not be admissible.

The circumstances must have some proximate relation with the actual occurrence.

In the present case, the cause of the deceased’s death comes into question. Here the transaction is the one when the deceased was murdered on 21^st or 22^nd March and his body was found to be in a trunk which was proved to be bought on behalf of the accused, in this case, the statement made by the deceased on 20^th and 21^st march that he was going to a meet the accused’s wife who lived in the same house as that of the accused appears clearly to be a statement that is in relation to the circumstances of the transaction which caused the death of the deceased.

Therefore, the statement was said to be was rightly admitted.

Re, 2nd Issue– Another issue that was discussed in this case was whether the statements made by the accused to the police before his arrest was admissible as evidence. The lordships referred to various case laws in this regard and ultimately came to the conclusion that the statement made by a person during the investigation will not be admissible as evidence in court even if the statements are made by the person who is ultimately the accused and such statements are protected under section 162 of CrPC.

4. Reasoning

In this case, the Lordships gave detailed reasoning with regard to the decision on the second issue.

1. The lordships reasoned that in section 162 of CrPC the mention of the words “any person” would mean each and every person giving their statement. During an investigation, many people are suspected to be the accused and all of them may have to give their statements. The fact that the section prohibits the signing of the recorded statements should essentially mean that the section should be applicable to the accused person also.
2. It was also stated that if the intention of the legislature was otherwise or if they’re meant to be an exception, then it can be safely expected that it would be expressed in the section. In this case, the lordships could not see any reason for departing from the plain meaning of the words used in the section.
3. Section 25 of the evidence act also supports the decision. Section 25 says that no confessions made to a police officer shall be proved against an accused person. In addition to this references to sections, 26 and 27 were also given.

5. Held

The appeal was dismissed by the Privy Council.

V. Kalawati v. State of Maharashtra

In this case, the court said that corroboration after a dying declaration is only a matter of prudence. Justice Dr. Arijit Pasayat gave eleven points, by citing judgements, on the basis of which conviction of an accused can be done by Dying declaration-

1. There is neither rule of law nor prudence that dying declaration cannot be acted upon without corroboration.
2. If the Court is satisfied that the dying declaration is true and voluntary it can base a conviction on it, without corroboration.
3. The 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 an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
4. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
5. Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.
6. A dying declaration that suffers from infirmity cannot form the basis of conviction.
7. Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected.
8. 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.
9. 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 eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
10. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
11. Where there is more than one statement in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted.

Edited by- Akriti

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References

[1] Indian Evidence Act 1872, s 32

[2] ibid

[3] LR (1937) AC 220

[4] (2014) 10 SCC 336

[5] V. P. Sarathi p.88 ed.7

[6] (2014) 5 SCC 730

[7] V. P. Sarathi p.88 ed.7

[8] AIR 1952 HP 81

[9] AIR 1939 PC 47

[10] (1961) SC 137

[11] AIR (1964) SC 900

[12] V.P.Sarathi p.90 ed.7

[13] V.P.Sarathi p.90 ed.7

[14] AIR 1959 SC 18

[15] AIR (2009) SC 1059

[16] AIR (1993) SC 1180

[17] AIR (1956) SC 168

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