A Study on Probative Value of Dying Declarations

Introduction:

When we are talking about ‘evidence’ and its importance in the Court of Law it is quite known that whenever it is a ‘fact’ that has to be proven, it must be done through the means of direct evidence. Whatever case it may be, oral evidence is to be direct and no hearsay evidence is tolerated in the Court of Law.

Concept of Dying Declaration

Dying Declaration, as a concept stands as an exception. Based on the principle “Leterm mortem” which means “Words spoken before death”, this concept took the name of “Dying Declaration” in Legal terminology. Codified under Section 32[1] of the Indian Evidence Act, 1872 (referred to as IEA henceforth), dying declaration (referred to as DD henceforth) is the statement given by a person who is conscious and is aware that his/her death is imminent regarding what he/she believes to be the cause or circumstances of death that can be counted as evidence during a trial.

The legal maxim corresponding to this concept is as follows- “Nemo moriturus praesumitur mentire”. It means that “a man will not meet his maker with lie on his mouth”. A DD is admissible as evidence in court. It is seen as trustworthy and valid evidence considering the general belief that nearly all the people who are aware that they are going to die no matter what, do not lie. In cases in which such a person is the lone witness to the crime or the wrongful act, his/her statement becomes a statement of extreme importance as it is the last thread remaining that ties the case to the delivery of justice. However, the individual who gave the DD must be competent at the time of giving the statement. He/she should be conscious and should be aware of and under the condition that they will die despite everything. Simply put, the person should be confirmed of the fact that there is no hope to be saved and death is inevitable at that point. Only then can the statement was given by the person be counted as a DD.

Case Laws involving the Concept of Dying Declaration

In P.V. Radhakrishna v. State of Karnataka[2], it was held that “the principle according to which a DD is counted as evidence is indicated in a Latin Maxim, “nemo moriturus praesumitur mentire”, meaning a man will not meet his maker with a lie in his mouth. The information which was given by an individual who died eventually relating to the cause of his/her death will be admissible as evidence under this clause”.

In Wazir Chand v. State of Haryana[3], it was judged that “their lordships, by mentioning the facts of the case specified that the transaction in the case was one in which the departed person was murdered on March 21^st. The corpse of the same was found in a trunk that was confirmed to be verified as bought in the name of the accused. As a consequence, the assertion made by the departed on March 20^th that he was on his way to the place where the accused lived is a statement that seems to be as circumstances of the transaction that led to his death. Hence the assertion is rightly admitted.”

In R. v. Jenkins[4] the individual who was accused was charged with the murder of a middle-aged lady. He attacked her at midnight but she was able to recognize him thanks to the sufficiently lit conditions. When the magistrate’s clerk asked her questions regarding the accused to record her statement, she confessed that she recognized him and his name was Jenkins. She told that it was indeed him who had committed the crime. When the clerk asked that if she made the affirmation with no hope of her recovering from the aftermath of the brutal attack, she agreed and said that she made the affirmation with absolutely no hope of recovery or survival. However, before signing when the clerk read her statement to her to confirm it the last time she told him to add the words ‘at present’ in that statement. As a consequence, since her insistence on the words ‘at present’ showed her hope and however slight expectation of recovering, her statement was not counted as a dying declaration by the court.

Incomplete Statements

What happens when an individual giving a DD dies before completing it & leaving behind an incomplete statement? The Apex court, when facing such a state of affairs held that if the departed fails to convey the main statement, say, for example, the motive of the wrongdoer then the DD will not be permissible in the court of law. However, if the departed was successfully able to convey the entire story i.e. his statement was materially and substantially complete then and died before answering a final formal question like “Is there anything more you want to say?”; then and then only the statement would be permissible and would be treated as a DD.

In Abdul Sattar v. State of Mysore[5], the victim died while stating his DD leaving behind an incomplete statement. However, whatever information he was able to convey through his statement till then clearly pointed out the guilt of the accused. Thus making his assertion admissible even though it was practically incomplete. Contrastingly, in cases like Cyril Waugh v. The King,[6] it was held that the statement said by the departed was inadmissible because, prima facie, it was an incomplete statement and no one could further comprehend or figure out what more the departed person was wanting to say.

Hence, in India, the Honourable Supreme Court has laid down that if the DD unmistakably points out the guilt of the accused then the statement will be admissible regardless of the fact that it was practically incomplete.

When the Person Giving the Dying Declaration Survives

 When an individual who is giving a DD succeeds in recording his statement but due to some reason does not end up dying, fails to make his statement count as a DD. In simple words, an assertion made will be converted into a DD only when the individual making it ends up dying. If the individual does not die he/she can simply be used as a witness against the accused. A DD is only recorded on the presumption that the individual is about to die and can’t be saved in any way, shape, or form at that point of time because of which they will have no reason to lie.

For instance, In Ramprasad v. the State of Maharashtra[7], the honorable Supreme Court said that when making the declaration, the person/declarant should have been expecting death and if a person survives after recording their statement then that statement under Section 32 of IEA cannot be used. One more important thing to note is that it is nowhere mentioned under Section 32, the point of time between the declaration and the death of the individual.

When is a dying declaration not admissible in the Court of law (Non-exhaustive list)

1. When the assertion made by the departed person was about anything except his/her cause of death, then that statement or declaration will not be admissible.
2. When the assertion is of inconsistent nature.
3. The declaration should be uninfluenced; meaning that it shall not be given under any kind of influence from anyone.
4. The incomplete declaration will not be admissible.
5. The declaration which is ascertained to be untrue will be rejected.
6. If any doubtful features are found to be existing then the statement will not be accepted. For instance, in Ramilaben v. the State of Gujarat[8] , various doubtful features like the victim dying a few hours after the happening, a total of 4 DDs recorded but not a single one carrying medical certificate, and many more.
7. If the person declaring the statement is not a competent witness. For example, the DD of a mere child will not be permissible in court. In Amar Singh v. State of Madhya Pradesh[9], the MP High Court stated that the DD couldn’t be relied upon without the authentication of physical or mental fitness.
8. If the assertion made by the departed individual is not related to his/her death but to that of some other person then it is gauged as irrelevant & is not permissible in the Court of law.
9. Statements of contradictory nature are also not admissible. It is realized to be very common amongst a lot of cases involving DD where the person dying makes more than one DDs and when all these are observed and realized to be contradictory, they tend to lose all their value.
10. When the declaration is not given or carried out in accordance with the prosecution:
    • It is the court’s responsibility to make sure that the declaration inspires full confidence since the individual who made the declaration is not present for the cross-examination.
    • The court must make sure that there is no prodding or incitement of any kind. It also needs to ensure the declaration is taken by catechizing i.e. in the form of QnA where the answers are nothing but the declaration being recorded.
    • When the situation is that of like standing on ice and the victim is very close to death, the declaration shall be recorded by the executive magistrate & police officer.
    • There should always be a certificate from the doctor as proof of the fact that the departed person was conscious and in a fit state of mind while giving the declaration.

Probatory Value of Dying Declaration

In the case of Khushal Rao v. State of Bombay[10] , the Honourable Supreme of India laid down several principles regarding how cases related to DD must be looked at. It held that there is not an absolute rule of law that conveys that a DD cannot be the only basis of conviction unless it is ratified. If a proclamation is voluntary and true then it does not need any ratification. Every case must be determined according to its facts and by keeping in mind all set of conditions under which the statement was given. There is also no hierarchy of ‘importance’ when it comes to evidence and hence, a DD is not a weaker form of corroboration in front of any other pieces of evidence and stands at an equal platform of cruciality.

Conclusion

“Dying Declaration” is a legal concept that refers to a statement conveyed by an individual who is about to die, explaining the situations and conditions which led to his/her death. It’s a declaration made in extremity which can be the lone & crucial factor for conviction in extremely serious crimes like murders and rapes. It is a piece of evidence that due to its extraordinary and crucial nature ought to be recorded with extreme care and according to the procedure prescribed by the court. It exists as a legal concept because it is believed that most people when counting their last few breaths do not have any reason to lie and if philosophically speaking, will not want to see God with a lie on their lips. However, this dying person should be in such a state that they believe they cannot be saved in any way humanly possible and will die any moment. The general public must be made aware of this concept and its importance. There must be strict implementation of the rules laid down by the court and steps should be taken to further help people in exceptional cases. For instance, in an urgent situation where it is not possible for a doctor, magistrate, or any such other authority to record the DD of the person, provisions ought to be made as such for any civilian in the vicinity of the dying person so that they can record a video as proof as well as the statement itself.

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References:

[1] Section 32 in the Indian Evidence Act, See https://indiankanoon.org/doc/1959734/ for entire section

[2] P.V. Radhakrishna vs. State of Karnataka, 6 SCC 118 (2001)

[3] Wazir Chand v. State of Haryana, AIR SC 378 (1989)

[4] R. v. Jenkins, 6 VR 81 VSCA 224 (2002)

[5] Abdul Sattar v. State of Mysore, AIR SC 1505 (1979)

[6] Cyril Waugh v. The King, A.C. 203 (1950)

[7] Ramprasad v. the State of Maharashtra, SCC(Cr) 651 (1999)

[8] Ramilaben v. the State of Gujarat, 1 GLR 783 (2001)

[9] Amar Singh v. the State of Madhya Pradesh, Cr LJ (MP) 1582 (1996)

[10] Khushal Rao v. The State of Bombay, 22 AIR (1958)