ARTICLE IN DETAIL: DYING DECLARATION by PURNIMA NAIDU @ LexCliq

ARTICLE IN DETAIL: DYING DECLARATION

Dying Declaration is a concept of Law of Evidence. One must go through the article which is written in detail with the help of references. The principle of “Leterm Mortem” which means “words said before death” & in a legal term  it is called ‘Dying Declaration’. A statement by a person who is conscious and knows that death is imminent concerning what  he or she believes to be the cause or circumstances of death that can be introduced into evidence  during a trial in certain cases. A dying declaration is considered credible and trustworthy evidence based upon the general  belief that most people who know that they are about to die do not lie. As a result, it is an  exception to the Hearsay rule, which prohibits the use of a statement made by someone other  than the person who repeats it while testifying during a trial, because of its inherent  untrustworthiness. If the person who made the dying declaration had the slightest hope of  recovery, no matter how unreasonable, the statement is not admissible into evidence. A person  who makes a dying declaration must, however, be competent at the time he or she makes a  statement, otherwise, it is inadmissible. A dying declaration is usually introduced by the  prosecution, but can be used on behalf of the accused.

Definition 

In Section 32 (1) of Indian Evidence Act defines when the statement is made by the person as  the cause of his death, or as any of the circumstances of the transaction which resulted in his  loss of life, in cases in which the cause of that person’s death comes into question. Such  statements made by the person are relevant whether the person who made them was alive 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.

The statement made by the deceased person will be treated as Evidence and Admissible in a  Court of law. The reason behind this can be followed by Latin maxim Nemo Mariturus  Presumuntur Mentri which means that “Man Will Not Meet His Maker With Lying On His  Mouth. More precisely in our Indian law, it is the fact that the dying man can never lie or Truth  sits on the lips of dying man. Hence, the Dying Declaration is Admissible and considered as  Evidence in Court, and can be used as a weapon to punish the culprit.

Section 32 (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 exception of death, and whatever may be the nature of the  proceeding in which the cause of his death comes into question.

In Ulka Ram v. State of Rajasthan Apex Court held that, “when a statement is made by a person  as to cause of his death or as to any circumstances of transaction which resulted into his death,  in case in which cause of his death comes in question is admissible in evidence, such statement  in law are compendiously called dying declaration.”

The Apex Court in its decision in P.V. Radhakrishna v. State of Karnataka held that ‘the  principle on which a dying declaration is admitted in evidence is indicated in latin maxim,  nemo morturus procsumitur mentri, a man will not meet his maker with a lie in his mouth.  Information lodged by a person who died subsequently relating to the cause of his death, is  admissible in evidence under this clause.

Identification Through Dying Declaration 

There is no particular form of dying declaration which is identified or admissible in the eye of  law. But that must be functioning as a piece of evidence with the proper identification.

  1. Q & A form
  2. Gestures & signs form
  3. Language of statement
  4. Oral Declaration
  5. Thumb Impression
  6. Incomplete Statement
  7. Absence of medical statement of fitness
  8. Where interested witnesses were attending to the deceased
  9. Where statement is not relevant to the cause of death
  10. Medical Report
  11. FIR as dying declaration
  12. Dowry Death, wife burning etc
  13. Statements made to or implicating relatives

 

Evidentiary Value of Dying Declaration 

In Khushal Rao v. State of Bombay, Apex Court laid down the following principles related to  dying to dying declaration :

(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of  conviction unless corroborated. A true & voluntary declaration needs no corroboration.

(ii) A dying declaration is not a weaker kind of evidence than any other piece of evidence;

(iii) Each case must be determined on its own facts keeping in view the circumstances in which  the dying declaration was made.

(iv) A dying declaration stands on the same footing as other piece of evidence & has to be  judged in the light of surrounding circumstances & with reference to the principle governing  the weight of evidence.

(v) A dying declaration which has been recorded by a competent Magistrate in the proper  manner, that is to say, in the form of questions and answers, &, as far as practicable in the  words of the maker of the declaration stands on a much higher footing than a dying declaration  which depends upon oral testimony which may suffer from all the infirmities of human memory  & human character.

(vi) In order to test the reliability of a dying declaration the court has to keep in view the  circumstances like the opportunity of the dying man for observation, for example, whether  there was sufficient light if the crime was committed in the night; whether the capacity of man  to remember the facts stated had not been impaired at the time he was making the statement by  circumstances beyond his control; that the statement has been consistent throughout if he had  several opportunities of making a dying declaration apart from the official record of it; & that  the statement had been made at the earliest opportunity & was not the result of tutoring by  interested party.”

Exceptions of Dying Declaration 

There are many circumstances in which the statement made by the dying person is not  admissible in a court of law. These conditions are as follows:

  1. If there is no question for consideration about the cause of death of the deceased. For  example, if a person in his declaration state anything which is not remote or having a  connection with the cause of death than the statement is not relevant and hence not be  admissible.
  2. The declarant must be competent to give a dying declaration, if the declaration is made  by the child then the statement will not be admissible in court as it was observed in case  of Amar Singh v. State of M.P that without the proof of mental fitness and physical  fitness the statement would not be considered reliable.
  3. The statement which is inconsistent has no value and can not be considered as  evidentiary in nature.
  4. The statement made by the deceased should be free from any influential pressure and  should be made spontaneous.
  5. It is perfectly allowed to the court if they reject any untrue statement which  contradicting in nature.
  6. If the statement is incomplete in the sense which means it can not answer the relevant  questions which are necessary to found guilty, and on the counterpart, statement deliver  nothing so it will not be deemed to consider.
  7. Doctor’s opinion and the medical certificate should with the statement and support that  the deceased is capable of understanding what statement he makes.
  8. If the statement is not according to the prosecution. In this regard, the following points  should be taken into consideration by the apex court.
  • While making the statement deceased must be in fit mind of the state.
  • Should be recorded by the magistrate or by a police officer and person in a case when  deceased was so precarious
  • A dying declaration should be recorded in question-answer form and written in words  of the persons exactly who gives the statement.

Conclusion 

The dying declaration is not specifically mentioned in our penal law under Section 32(1) of  IPC. it is the statement made by the person who is going to die, and that statement will be  considered as evidence in court, how his death caused and who is the mugger.

 

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