DYING DECLARATION DYING DECLARATION By By Y. SRINIVASA RAO Y. SRINIVASA RAO M.A
M.A (English)., (English)., B.Ed., B.Ed., B.L., B.L., (LL.M),(LL.M), I
I ADDL. ADDL. JUNIOR JUNIOR CIVIL CIVIL JUDGEJUDGE
BHIMAVARAM.
BHIMAVARAM.
'' A person , who is about to ie , wou! not !ie''. '' A person , who is about to ie , wou! not !ie''.
''
'' Truth Truth sits sits on on the the !ips !ips o" o" a a person person who who is is about about to to ie''ie''
INTROD#CTION$ INTROD#CTION$
The maxim
The maxim ““ Nemo moriturus Nemo moriturus praesumitur mentirepraesumitur mentire”” isis basi
basis s for ''dyinfor ''dying g decladeclaratioration'', which meansn'', which means '' a man will not meet his'' a man will not meet his maker with a lie in his mouth''
maker with a lie in his mouth'' .. A A dying deldying del!"!#i$!"!#i$n is n is !lle!lled !s d !s %% Le#e"&%% Le#e"& M$"#e&%%. 'he $"d %
M$"#e&%%. 'he $"d %' Leterm Mortem''' Leterm Mortem'' &e!ns %&e!ns %' Words said before death' ' Words said before death' %.%. Recording of dying declaration is very important task. Utmost care is to Recording of dying declaration is very important task. Utmost care is to be taken whi
be taken while recorle recordinding a g a dyidying declang declaratiration. If a dying declon. If a dying declarataration ion isis recorded carefully by the proper person, keeping in mind the essential recorded carefully by the proper person, keeping in mind the essential ingredients of the dying declaration, such declaration retains its full value. ingredients of the dying declaration, such declaration retains its full value.
Section 32 (1) of Indian Evidence Act. Section 32 (1) of Indian Evidence Act.
A
A close close scrutiny scrutiny of of section section 32 32 (1) (1) of of Indian Indian Evidence Evidence Act, Act, it it isis vividly k
vividly known nown when the statemwhen the statement is made by a perent is made by a person with regson with regard to theard to the cause of his death, or any of the circumstances of the transaction which cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death resulted in his death, in cases in which the cause of that person’s death come
comes into quess into questiontion. . Such statSuch statementements are relevans are relevant irrespt irrespectivective of thee of the person who made such declaration was expecting death or not . Thus, it is person who made such declaration was expecting death or not . Thus, it is apt to say that ad
apt to say that admissmissibilibility of Dyiity of Dying declang declaratiration on is explis explained in thained in thee section 32 (1) of Indian Evidence Act.
section 32 (1) of Indian Evidence Act.
%ow a &in e(!aration shou! be) %ow a &in e(!aration shou! be)
'he"e is n$ *!"#i+l!" $"& $ dying del!"!#i$n. H$e-e", #he est form of dying declaration is in the form of questions and answers. However, whenever a dying declaration is being recorded in the form of questions and answers precaution should be taken that exactly what questions are asked and what answers are given by the patient those should be written.
A dying del!"!#i$n &!y e in #he $ll$ing $"&s/
0. 1"i##en $"&2
. Ve"!l $"&2
3. Ges#+"es !nd 4igns $"&. In #he !se %%5+een -s Ad+ll!0%%, i# !s held #h!# i #he in6+"ed *e"s$n is +n!le #$ s*e!7, he !n &!7e dying del!"!#i$n y signs !nd ges#+"es in "es*$nse #$ #he 8+es#i$n.
4. If a person is not capable of speaking or writing he can make a gesture in the form of yes or no by nodding and even such type of dying declaration is valid.
5. It is preferred that it should be written in the vernacular which the patient understands and speaks.
6. A dying declaration may be in the form of narrations. In case of a dying declaration is recorded in the form of narrations, nothing is being prompted and every thing is coming as such from the mind of the person making it.
OBJEC'42
0. 'he *"es+&*#i$n is %% ! *e"s$n h$ is !$+# #$ die $+ld n$# lie%%.
. I# is !ls$ s!id #h!# %% '"+#h si#s $n #he li*s $ ! *e"s$n h$ is !$+# #$ die%%.
3. 'he -i#i& is e9l+si-e eye i#ness !nd hene s+h e-idene sh$+ld n$# e e9l+ded.
3
Who may record a dying declaration ?
1. It is best that it is recorded by the magistrate .
2. If there is no time to call the magistrate, keeping in view the deteriorating condition of the declarant, it can be recorded by anybody e.g. public servant like doctor or any other person.
3. It cannot be said that a dying declaration recorded by a police officer is always invalid.
4. If any dying declaration is not recorded by the competent Magistrate, it is better that signatures of the witnesses are taken who are present at the time of recording it.
Important facts to be remembered before recording Dying Declaration:
1. The declarant was in a fit condition of mind to give the statement when recording was started and remained in fit condition of mind until the recording of dying declaration is completed.
2. The fact of fit condition of mind of declarant can be best certified by the doctor .
3. Yet, in case of where it was not possible to take fitness from the doctor, dying declaration has retained its full sanctity if there are other witnesses to testify that declarant was in fit condition of the mind which did not prevent him from making dying declaration. 4. However, it should not be under the influence of any body or
prepared by prompting, tutoring or imagination. If any dying declaration becomes suspicious, it will need corroboration.
5. If a declarant made more than one dying declarations and if these are not at variance with each other in essence they retain their full value. If these declarations are inconsistency or contradictory, such dying declarations lose their value.
N$ i# is -e"y essen#i!l #$ 7n$ #he $ndi#i$ns $" !d&issiili#y !nd e-iden#i!"y -!l+e $ ! dying del!"!#i$n. 'he #!le gi-en in"! s+in#ly e9*l!ins #he s!&e/
?
0. 'he del!"!n# ,h$ g!-e dying
del!"!#i$n, sh$+ld h!-e died.
2. Admissibility of dying declaration is explained in the section 32 (1) of Indian Evidence Act.
3. When the statement is made by a
person as to the cause of his death, or 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 this was expecting death or not. (See section 32 (1) of Indian Evidence Act).
?. 'he dying del!"!#i$n &+s# e
$&*le#e.
<. 'he !+se $ de!#h &+s# e e9*l!ined y #he del!"!n# $" !#le!s# #he i"+&s#!nes hih "es+l#ed his@he" de!#h &+s# e e9*l!ined.
. 'he del!"!n#, h$ &!7es dying del!"!#i$n, &+s# e $nsi$+s !nd $he"en#.
:. 'he del!"!n# &+s# e s$+nd s#!#e in &ind.
;. 'he !+se $ de!#h $ del!"!n# &+s# e in 8+es#i$n.
. H$e-e", #he del!"!n# need n$# e +nde" e9*e#!#i$n $ de!#h +nli7e English L!.
0. 'he del!"!n# need n$# e +nde"
sh!d$ $ de!#h.3
00. 'he dying del!"!#i$n &!y e in -e"!l $"&.
0. E-iden#i!"y -!l+e $ dying del!"!#i$n ill h!nge "$& !se #$ !se !$"ding #$ !# !nd i"+&s#!nes $ e!h !se.
. A dying del!"!#i$n &+s# e "e$"ded in e9!# $"ds s*$7en y #he del!"!n#. 3. I ! $&*e#en# M!gis#"!#e "e$"ds ! dying del!"!#i$n in 8+es#i$n !nd !nse" $"& , s+h dying del!"!#i$n ill h!-e &+h e-iden#i!"y -!l+e. ?. I ! dying del!"!#i$n is "e$"ded N$
s$$ne" d$es #he in$"&!#i$n "eei-e #h!n #he dying del!"!#i$n is "e$"ded, #+#$"ing y in#e"es#ed *e"s$ns !n e !-$ided.
<. In !se &$"e #h!n $ne dying
del!"!#i$ns, !ll s+h del!"!#i$ns &+s# e iden#i!l.
. In J!i "!7!sh -s 4#!#e $ H!"y!n!<, i#
!s $se"-ed #h!# %% ! s#!#e&en# $ -i#i& hih !s "e$"ded y #he *$lie $ie" in h$s*i#!l. L!#e", s+h s#!#e&en# !s #!7en #$ e ! dying del!"!#i$n.
:. In s$&e !ses, =.I.R !s !ls$
$nside"ed !s ! dying del!"!#i$n. ;. In$nsis#en# dying del!"!#i$n is n$
e-iden#i!"y -!l+e. ( 4&# !&l! -s
4#!#e $ +n6!)
9. The dying declaration recorded by the Clerk in the presence of Magistrate not inadmissible. Scribe need not be
produced to prove it7.
0. Des*i#e #he"e is ! dying del!"!#i$n, C$+"# see7s +"#he" $""$$"!#i$n. However, Conviction can be based on it without corroboration if it is true and
>e#, i# !s held #h!# %%Dying declaration incomplete as deceased not being able to answer
further, held could be relied upon. (AIR 1956 SC 168). %%
<
0. 'he h$le dying del!"!#i$n &+s# e #!7en in#$ $nside"!#i$n y #he C$+"# +# n$# s$&e *$"#i$n $ i#.
03. 'he s#!#e&en# &!y e &!de e$"e #he !+se $ de!#h h!s !"isen, $" e$"e #he dee!sed h!s !ny "e!s$n #$ !n#ii*!#e eing 7illed?.
14. Corroboration to dying declaration not necessary. (1990 Crl.L.J 1129)
15. Exact words of deceased in dying declaration need not be stated. (1990 Crl.L.J 2720)
16. It is immaterial that the person put a thumb impression or signed a dyin declaration if the declaration is duly witnessed.
17. If a declarant, who is laying in the bed, is unable to get up to sign due his condition, or it is convenient for him to put thumb impression, he can put thumb impression.
18. There is usually no time limit that dying declaration becomes invalid.
voluntary.
11. Replies by signs and gestures
constitute verbal statement resembling the case of a dumb person and is relevant and admissible in evidence. (AIR 1949 Nag 405)
12. Dying declaration is an exception to hearsay evidence because if this evidence is not considered very purpose of the justice will be forfeited in certain situations when there may not be any other witness to the crime except the person who has since died. 13. Dying declaration is valid both in civil
and criminal cases whenever the cause of death comes into question.
14. Dying declaration not attested by wife or dactor present there. Smacks of concoction. Inconsistency in oral and medical evidence. Conviction cannot
be based on such evidence8.
15. It is perfectly permissible to reject a part of dying declaration if it is found to be untrue and if it can be separated
[ Nand Kumar v. state of Maharastra9.].
16. Declarant suddenly dying and his thumb impression taken after his death held dying declaration admissible in evidence. (AIR 1962 SC 1252)
RELEVAN' CA4ELA1 A4 'O %%D>ING DECLARA'ION%%/
? !7!l! N!"!y!n! 4!&i -s E&*e"$" < (0;) : 4CC ;?
AIR 03 4C 3:?.
: (52 Cr.L.J 883)
; AIR 1981 SC 1578.
1. Medical opinion cannot wipe out the direct testimony of the eyewitness stating that the deceased was in fit and conscious state to make the dying declaration . [ N Ram vs State10.]
2. If the person making it is imbecile or is of tender age and was incompetent to testify due to this reason, that dying declaration would not be valid [R v. Pike. C & P.1829; 3: 598]
3. As a measure of safety original dying declaration should be sent to the court like FIR and its Photostat should be kept in the case file [State of Karnataka v. Shivalingappa, 2001 (4) RCR(Criminal) 237 (Karnataka) (DB)].
4. Even the ''History'' given by the injured recorded by the doctor in the case file has been considered as dying declaration by the honorable Court if it is mentioned that the patient told in the history that incident occurred in such and such manner which was responsible for the death of the victim [State of Karnataka v. Shariff 11].
5. First information report got recorded by the police has been taken as dying declaration by the Hon'ble Supreme Court of India, when the person did not survive to get his dying declaration recorded [AIR 1976 2199 (SC)].
6. But, in the case State of Punjab v. Kikar Singh, 2002 (30 RCR (Criminal) 568 (P & H) (DB), it was held that ''when patient remained admitted in hospital for sufficient days i.e. for 8 days FIR cannot be treated as dying declaration''.
7. In the case ''State v. Maregowda, 2002 (1) RCR (Criminal) 376 (Karnataka) (DB)'', it was held that ''A suicide note written found in the
0 AIR 1988 SC 912: 1988 Cri LJ 1485
:
clothes of the deceased it is in the nature of dying declaration and is admissible in evidence under section 32 of Indian Evidence Act''.
8. In the case, (State of Gujarat v. Rabri Pancha Punja. Cri LJ. 1981;NOC: 171 (Guj) , it was held that '' It retains its full value if it can justify that victim could identify the assailant, version narrated by victim is intrinsically sound and accords with probabilities and any material evidence is not proved wrong by any other reliable evidence''.
9. Dying declaration becomes unreliable if it is not as per prosecution version. In the case of '' State of UP v. Madan Mohan, AIR 1989 SC 1519'' , the Hon'ble Supreme Court of India held:
1. It is for the court to see that dying declaration inspires full confidence as the maker of the dying declaration is not available for cross-examination
2. Court should satisfy that there was no possibility of tutoring or prompting.
3. Certificate of the doctor should mention that victim was in a fit state of mind. Magistrate recording his own satisfaction about the fit mental condition of the declarant was not acceptable especially if the doctor was available.
4. Dying declaration should be recorded by the executive magistrate and police officer to record the dying declaration only if condition of the deceased was so precarious that no other alternative was left.
5. Dying declaration may be in the form of questions and answers and answers being written in the words of the person making the dying declaration. But court cannot be too technical.
10. In Barati vs State Of U. P,1974 AIR 839, 1974 SCR (3) 570, it was held that '''he"e !s n$ "e!s$n #$ dis!"d #he dying del!"!#i$n &!de y #he !**ell!n# #$ #he *$lie s+ins*e#$", 'he #"i!l C$+"# !s "$ng in "e6e#ing #he dying del!"!#i$n #$ #he *$lie (=.I.R.) $n #he g"$+nd #h!# #he dee!sed h!d s#!#ed #$ #he d$#$" #h!# he h!d e$&e +n$nsi$+s !#e" #he $+""ene. 'he"e !s n$#hing in #he s#!#e&en# "e$"ded y #he d$#$" #$ indi!#e #h!# #he dee!sed "e&!ined +n$nsi$+s $". ! l$ng #i&e !nd !s
;
s+h !s n$# in *$si#i$n #$ l$dge #he =.I.R. 'he !# #h!# #he l!ng+!ge +sed in #he dying del!"!#i$n &!de #$ #he d$#$" !s "!#he" h!s#e $+ld n$# g$ #$ sh$ #h!# #he s!id s#!#e&en# $+ld n$# h!-e een &!de y #he dee!sed. As #$ #he l!ng+!ge +sed in #he dying del!"!#i$n #he"e is n$#hing !n$"&!l $" +n+s+!l in #he s!&e *e"s$n +sing $ll$8+i!l l!ng+!ge hile #!l7ing #$ $ne *e"s$n !nd +sing "eined l!ng+!ge hile #!l7ing #$ !n$#he" *e"s$n. %%
11. Pakala Narayana Swami vs Emperor ((1939) 41 BOMLR 428; AIR 1939 PC 47 ) on 19/1/1939 , In this case, the statement of Pakala Narayana Swamy's wife '' he is going to Berhampur to get back his amount'' was considered as ''DYING DECLARATION''.
Some important case-law on ''Dying declaration'':
0. A+#!" 4ingh -. 'he C"$n, AIR 0? L!h <3
. !7!l! N!"!y!n! 4!&i - E&*e"$", AIR 03 C ?:
3. H!n+&!n# -. 4#!#e $ M!dhy! "!desh , 0<3C"iLJ0
?. 4#!#e -. !nh!n 4ingh, AIR 0<? All 0<3
<. R!#!n G$nd -. 4#!#e $ Bih!" , 0<C"iLJ0;
. Alli6!n M+nshi -. 4#!#e $ M!h!"!sh#"!, (0<) 0 BOMLR 0
:. R!6ind"! +&!" -. 4#!#e $ +n6!, 0 C"i LJ ;<0 (FH)
8. Harbans singh v state of Punjab, AIR 1962 SC 439
9. Shiv Kumar v. State of Uttar Pradesh , 1966 Cri AR 281,
0. L!ll+h!i -. 4#!#e $ G+6!"!#, AIR 0: 4C 0::
00. On7!" -. 4#!#e $ M!dhy! "!desh, 0:? C"iLJ 0 (M)
12. Barati vs State Of U. P,1974 AIR 839
13. Munnu Raja and Anr. v. The State of Madhya Pradesh AIR 1976 SC 2199
14. State of Gujarat v. Rabri Pancha Punja. Cri LJ. 1981;NOC: 171 (Guj)
0<. M!n$h!" L!l -. 4#!#e $ +n6! , 0;0 C"iLJ (4C) 03:3
0. 4#!#e $ +n6! -. 4!-i#"i De-i, 0;3 () C"i&es <?:
0:. 4h!"!d Bi"dhih!nd 4!"d! -. 4#!#e $ M!h!"!sh#"! , 0;?C"iLJ0:3;
0. 4#!#e (Delhi Ad&inis#"!#i$n) -. L!9&!n +&!" !nd O"s, AIR 0; 4C <
. 4#!#e $ Ass!& - M!hi& B!"!7!#!7i, AIR 0;: 4C ;
0. 4#!#e $ U -. M!d!n M$h!n. AIR 0; 4C 0<0
. Ch!"i*!lly sh!7!!"!"!$ - +li *"$se+#$" HC $ A AIR 0< 4C :::
23. State of Rajasthan v kishore, AIR 1996 SC 3035
?. 4&#. !nien - s#!#e $ G+6!"!#, 0 () 4CJ <
<. 4#!#e $ H - He& R!6, 0 4LC 0<; 0 (H)
. J!gg! 4ingh -. 4#!#e $ +n6!, AIR0< 4C 03<
:. N!66!& =!"!ghi in !li!s Ni66!& =!"+8+i -. 4#!#e $ 1es# Beng!l 0C"iLJ;
;. G.4. 1!li! -. 4#!#e $ +n6! 0; C"iLJ (4C) <?
. 4hy!& 4ingh H!d! - 4#!#e $ R!6!s#h!n, C"i LJ 0?3: (R!6)
3. 4+dh!7!" F An" -. 4#!#e $ M!h!"!sh#"!, AIR 4C
30. R$n!l i*"$n$ R!&7!# - 4#!#e $ H!"y!n! , AIR 0 4C ?;;
32. State v. Maregowda, 2002 (1) RCR (Criminal) 376 (Karnataka) (DB)
33. 4#!#e $ +n6! -. i7!" 4ingh, (3 RCR(C"i&in!l) <; ( F H) (DB)
3?. 4!n#$sh +&!" - 4#!#e $ U.., C"iLJ (4C) 30
3<. 4#!#e -. M!"eg$d!, (0) RCR (C"i&in!l)3: (!"n!#!7!) (DB)
3. L!9&!n -. 4#!#e $ M!h"!sh#"!, C"i L J ?<, () 4CC :0
3:. 4h!&h+ - 4#!#e $ M!dhy! "!desh, AIR 4C 03:
3;. V R!dh! "ishn! -. s#!#e $ !"n!#7!, AIR 3 4C ;<
39. Narain Singh v. State of Harayana , AIR 2004 SC 1616
?. Vi"!&6i M$h!#6i 'h!7$"e -. 4#!#e $ G+6!"!#, < () GLR 0
?0. Dil B!h!d+" '!&!g -. 4#!#e $ si77i&, < C"LJ :; * :;
42. Raja Ram v. State of Rajasthan, (2005) 5 SCC 272
43. Viramji Mohatji Thakore v. State of Gujarat, 2005 (2) GLR 1622
??. Ni"&!l L$+si -. 4#!#e $ B!n!s!di *$lie, B!ng!l$"e, < (0) !" L J 03
?<. 4#!#e $ +n6! -. Ch!#inde" !l 4ingh !nd O"s, AIR 4C :?
CONCLUSION:
With propound sense of regret, I crave the indulgence of the officials and others concerned , who record dying declaration, it is suggested that
0
whenever dying declaration is to be recorded, it must be recorded very carefully keeping in mind the sanctity which the court of law attaches to the dying declaration.