Dying Declaration

The maxim Nemo moriturus praesumitur mentire is basis for 'dying declaration,
which means a man will not meet his maker with a lie in his mouth. A dying
declaration is called as Leterm Mortem. The word Leterm Mortem means Words
said before death...

Dying Declaration
'' A person , who is about to die , would not lie''.
'' Truth sits on the lips of a person who is about to die''
The maxim “Nemo moriturus praesumitur mentire” is basis for ''dying declaration'',
which means '' a man will not meet his maker with a lie in his mouth''. A dying
declaration is called as '' Leterm Mortem''. The word '' Leterm Mortem'' means '' Words
said before death''. Recording of dying declaration is very important task. Utmost care is
to be taken while recording a dying declaration. If a dying declaration is recorded
carefully by the proper person, keeping in mind the essential ingredients of the dying
declaration, such declaration retains its full value.

Section 32 (1) of Indian Evidence Act.

A close scrutiny of section 32 (1) of Indian Evidence Act, it is vividly known when the
statement is made by a person with regard 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 irrespective of
the person who made such declaration was expecting death or not . Thus, it is apt to say
that admissibility of Dying declaration is explained in the section 32 (1) of Indian
Evidence Act.

How a dying declaration should be?

There is no particular form of dying declaration. However, the best 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 declaration may be in the following forms:

1. Written form;
2. Verbal form;
3. Gestures and Signs form. In the case ''Queen vs Abdulla'', it was held that if the injured
person is unable to speak, he can make dying declaration by signs and gestures in
response to the question.
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.

OBJECTS;
 1. The presumption is '' a person who is about to die would not lie''.
2. It is also said that '' Truth sits on the lips of a person who is about to die''.
3. The victim is exclusive eye witness and hence such evidence should not be excluded.

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.

Now it is very essential to know the conditions for admissibility and evidentiary value of
a dying declaration. The table given infra succinctly explains the same:
CONDITIONS FOR ADMISSIBILITY          EVIDENTIARY VALUE
   
1. The declarant ,who gave dying 1. Evidentiary value of dying
declaration, should have died. declaration will change from case to
2.       Admissibility of dying case according to fact and
declaration is explained in the circumstances of each case.
section 32 (1) of Indian 2. A dying declaration must be
Evidence Act. recorded in exact words spoken by
3.       When the statement is the declarant.
made by a person as to the 3. If a competent Magistrate
cause of his death, or any of records a dying declaration in
the circumstances of the question and answer form , such
transaction which resulted in dying declaration will have much
his death, in cases in which evidentiary value.
the cause of that person’s 4. If a dying declaration is
death comes into question. recorded  No sooner does the
 Such statements are relevant information receive than the dying
whether the person who declaration is recorded, tutoring by
made this was expecting interested persons can be avoided.
death or not. (See section 32 5. In case more than one dying
(1) of Indian Evidence Act). declarations, all such declarations
1. The dying declaration must be must be identical.
complete . 6. In  Jai Prakash vs State of
2. The cause of death must be Haryana, it was observed that '' a
explained by the declarant or atleast statement of victim which was
the circumstances which resulted recorded by the police officer in
his/her death must be explained. hospital. Later, such statement was
3. The declarant, who makes taken to be a dying declaration.
dying declaration, must be conscious 7. In some cases, F.I.R was also
and coherent. considered as a dying declaration.
4. The declarant must be sound 8. Inconsistent dying declaration
state in mind. is no evidentiary value. ( Smt Kamla
5. The cause of death of declarant vs State of Punjab)
must be in question. 9. The dying declaration
6. However, the declarant need recorded by the Clerk in the
not be under expectation of death presence of Magistrate not
unlike English Law. inadmissible. Scribe need not be
7. The declarant need not be produced to prove it.
under shadow of death. 10. Despite there is a dying
8. The dying declaration may be declaration, Court seeks further
in verbal form. corroboration. However, Conviction
9.  The whole dying declaration can be based on it without
must be taken into consideration by corroboration if it is true and
the Court but not some portion of it. voluntary.
13.   The statement may be made 11.   Replies by signs and
before the cause of death has gestures constitute verbal
arisen, or before the deceased statement resembling the
has any reason to anticipate case of  a dumb person and is
being killed. relevant and admissible in
14.    Corroboration to dying evidence. (AIR 1949 Nag 405)
declaration not necessary. 1.  Dying declaration is an
(1990 Crl.L.J 1129) exception to hearsay evidence
15.   Exact words of deceased in because if this evidence is not
dying declaration need not be considered very purpose of the
stated. (1990 Crl.L.J 2720) justice will be forfeited in certain
16.   It is immaterial that the situations when there may not be
person put a thumb any other witness to the crime
impression or signed a dyin except the person who has since
declaration if the declaration died.
is duly witnessed. 2.  Dying declaration is valid both
17.   If a declarant, who is laying in civil and criminal cases whenever
in the bed, is unable to get up the cause of death comes into
to sign due his condition, or it question.
is convenient for him to put 3.  Dying declaration not attested
thumb impression, he can put by wife or dactor present there.
 thumb impression. Smacks of concoction. Inconsistency
18.   There is usually no time in oral and medical evidence.
limit that dying Conviction cannot be based on such
declaration  becomes invalid. evidence.
  4.  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
Maharastra.].
5.  Declarant suddenly dying and
his thumb impression taken after his
death held dying declaration
admissible in evidence. (AIR 1962 SC
1252)
 
Relevant Case-Law As To ''Dying Declaration'':
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
State.]

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 ].

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 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 ''There
was no reason to discard the dying declaration made by the appellant to the police sub-
inspector, The trial Court was wrong in rejecting the dying declaration to the police
(F.I.R.) on the ground that the deceased had stated to the doctor that he had become
unconscious after the occurrence. There was nothing in the statement recorded by the
doctor to indicate that the deceased remained unconscious for. a long time and as such
was not in position to lodge the F.I.R. The fact that the language used in the dying
declaration made to the doctor was rather chaste would not go to show that the said
statement could not have been made by the deceased. As to the language used in the
dying declaration there is nothing abnormal or unusual in the same person using
colloquial language while talking to one person and using refined language while talking
to another person. ''

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'':

1. Autar Singh v. The Crown, AIR 1924 Lah 253

2. Pakala Narayana Swami v Emperor, AIR 1939 PC 47

3. Hanumant v. State of Madhya Pradesh , 1953CriLJ129

4. State v. Kanchan Singh, AIR 1954 All 153

5. Ratan Gond v. State of Bihar , 1959CriLJ108