The general principle of law is that the evidence which is not tested or proved is not admissible in the court of law. That means the administration of oath and cross-examination of pieces of evidence plays a major role. So, we can say that hearsay shreds of evidence are not admissible in the court of law. But here comes an exception to this basic principle of law due to the necessity in imparting justice to people e.g. The statement was given by the person in a death bed stating the cause and circumstances leading to his death. It is believed that a person in his death bed who is going to leave this earth will speak the truth and his words have a great value in our culture. Ignoring such statements will lead to injustice so our Law of Evidence has a great for these statements known as Dying Declaration.
PROVISION RELATING TO DYING DECLARATION IN LAW OF EVIDENCE
Dying declaration in the law of evidence is mention in section 32 subclause 1. Section 32 (1) of the Indian Evidence Act explains that, ‘the statement made in respect to cause of his death or tells the circumstances that lead to death of that person or certain transaction lead to loss of life, where the causes leading to the death of person come in the question frame. Those statements are said to be relevant by the court at time the person who made the statement is alive or dead, to which it is under the expectation of death caused, the nature of case proceeding come with a question of the cause of death of that particular person.
MEANING OF DYING DECLARATION
It is derived from the word ‘leterm motem’ which means words said before death. In very basic meaning, a dying declaration is a statement of the person who is dead. We can also say that person’s last words before dying explaining the cause of death. It governs on the principle ‘Nemo Moriturus Praesunitur Mentire’. This principle states that, a man after death will not be able to encounter his maker (god) with a lie in his mouth.
Section 32 of the Indian Evidence Act provides 8 circumstances by a person who is dead, who is unable to give evidence in court, or whose attendance cannot be counted at the trial of court, or by the delay which is: it relatable to the cause leading to death, or who cannot be found at specific time without delay and expense or it should be made in the cause of some business, it must not be with the interest of maker, there must be the existence of any sort of relationship or relating will deeds or family affairs, or it must be giving opinion relating to the topic of public right, custom, or general interest, or made by several persons, expressing feeling towards the same topic occurred, or a matter in question, or related to a transactional document relating to section 13 clause a.
Illustration: A and B have a fight in which A hits B with a knife. B falls. On seeing B on the ground C asks him and B answers that A had hit him with a knife so the statement giving to c is a dying declaration and C can move to court.
FORMS OF DYING DECLARATION
Dying declaration can be given orally or written. Although oral pieces of evidence are always directly admissible section 32 and section 33of the evidence act are its exceptions. And even they are the exceptions of the fact that hearsay evidence is not applicable. Two types of hearsay evidence are First-hand hearsay evidence and another one is Second-hand hearsay evidence. First-hand hearsay evidence is needed to be proved means they require corroboration and even require oath and cross-examination by the opposite party. Second-hand hearsay evidence is the derivative evidence. these are the other person’s evidence than the actual (best evidence) when he is not available. This other person is not required to take an oath and cross-examining the document for the reason of circumstantial genuineness. The Gestures are also involved in the form of dying declaration. This was held in the case of Queens Empress v. Abdula.
There is no format for dying declaration. In the case of Sant Gopal v. State of U.P. 1995 it was held that the best way of dying declaration is a question-answer form and in narration. But the dying declaration is not complete if it doesn’t reveal the relevant fact, names, and circumstances which have led to the death of that person.
VALUE OF DYING DECLARATION
Although the dying declaration doesn’t need to be recorded by Judicial Magistrate. But if it is so then recording by a judicial magistrate has more value than a recording by a police officer. There is no need for corroborative evidence to support the death statement if it is recorded by the Judicial Magistrate.
APPREHENSION OF DEATH NECESSARY OR NOT?
In English law, there must be an expectation of death but in India expectation of death is not important. Illustration: A is a wife of B who does cruelty to A. A written letter to C who is a sister of A about the cruelty done to her by B and also asked her not to tell their parents about this as they would get worried. After 3 months the dead body of A was found in the bedroom of A. At this time letter given to C by A can be used as a Dying declaration and is admissible under the Indian Evidence act. But it is necessary to corroborate the evidence.
In the case of Pakala Narayan Swami, the deceased person told his wife that he is going to the accused home to collect a loan but then the deceased got dead then the statement given by the deceased was admissible in the court but that need to supported by other evidence.
Sharad Bhirdi Chand Sarda v. State of Maharashtra 1984 is one of the case in which court held that it is not very important that the person giving a declaratory statement should be in expectation of death.
Similarly, in the case of Kulwant Singh v. State of Punjab 2004, It was held that apprehension to death and death statement made to the judicial magistrate is not necessary.
Moreover, in another case of Bhagirath v. State of Haryana 1977, the court was of the opinion that it is known that the person has died at the time when a statement was being recorded there was no cause of death then too the dying declaration is admissible.
In the cases of dowry death, bride burning where the death took place in a short period then dying declaration of that women would be admissible in the court of law. Moreover, where there is a case of Dowry’s death, the dying declaration should be noted or recorded soon in the medico-legal register by a medical officer and it should importantly be signed by him. In the case of the state of U.P v. Harimohan, the victim wrote a letter to her father to take her home otherwise his mother-in-law and brother-in-law would murder her, two days before when the murder took place. Then in this case the dying declaration in the form of the letter given by women.
CORROBORATION OF DYING DECLARATION WITH THE HELP OF CASE LAWS
Mumma Raja v. State of M.P. 1976: In this particular case it was held that there is neither a rule of prudence nor the rule of law that dying declaration necessarily be acted with corroboration of other evidence means that there is no mean that it cannot be acted without corroboration.
State of U.P. v. Hum Sagar Yadav 1985: It was held that the dying declaration is true and voluntary in the eyes of court, then the case can move further without corroboration. So, it means that the satisfaction of the court is a necessary element while using dying declaration as evidence.
Rashed Begam v. the State of M.P.: It was held said that if dying statement is suspicious in the eyes pf court then it must be supported with other facts and circumstances of the case. The evidentiary value of the dying declaration depends on the circumstances of the case.
Khusal Rao v. the State of Bombay: This case is very important regarding the dying declaration as it provides us some principles dealing at the time of dying declaration.
- The true dying declaration does not require any corroboration as there is neither a rule of law nor the prudence that a dying declaration cannot act without corroboration.
- A dying declaration is not weak evidence as a whole but if the court is not satisfied with the genuineness and circumstances it can take the help of other supporting evidence.
- It is imperative to look into the facts and circumstances of the case in which a dying declaration is being made.
- It is most reliable when it is given in a written competent manner and its authenticity is explained with the help of the signature of the victim.
- Every court must check the circumstances under which the dying declaration is recorded like whether the room was properly lighted, the person given statement is in the right state of mind, the declaration is made without any delay, or inconsistent with the facts and circumstances of the case, or if there are any circumstances to tutor the victim to what to explain while declaring a statement.
K Rama Chandra Reddy v. Public Prosecutor 1976: It was held that if the admission of dying declaration under section 32 is done without oath and cross-examination, then a court must satisfy that there was no tutor for that statement or the person wasn’t in the undue influence of any other person or it is not any product of the imagination of that person means he should be in a better state of mind. Muthukutty v. State: It was held that it is relevant when dying declaration is corroborative but it is not any well-established rule that should be followed.
DIFFERENCE IN DYING DECLARATION WHEN COMPARED TO ENGLISH LAW
In English law, this dying declaration is applied to Homicide and Men’s laughter but in India, it is also applicable in the cases of suicide. In English law, it is only applicable in criminal law when death was declarant is in question but in Indian law, it is admissible not only in criminal but also in civil cases even if there is not a question of declarant’s death. Apprehension or expectation of actual death plays an important role in English law but in the India Evidence Act, it is not necessary as mentioned above.
COMPARISON BETWEEN DYING DECLARATION AND DYING DEPOSITION
The Dying Declaration is recorded by any person, police officer, magistrate and also by a doctor but Dying Deposition is recorded by a magistrate in the presence of the accused or his lawyer. In Dying deposition, the witness can be cross-examined by the lawyer whereas cross-examination is not allowed in Dying declaration. The administration of oath is not so important in dying declaration but it is important in dying deposition. The Dying Declaration is applicable in India and provisions are given under the Indian Evidence Act whereas there is no provision for dying deposition. Moreover, dying deposition has superior value as a comparison to dying declaration.
Dying Declaration has a significant part in the Law of Evidence. Even when a Dying declaration should not be brought through compulsion or pressure whereas it should be free from any bias-ness or undue influence. Also, in the case of Krishna Lal v. Jagun Nath the same judgement was held by court. In this particular case, the women was set to fire by her husband-in-law and her mother-in-law, in her dying declaration she wrote that she was not burnt by her in law and the court believed her statement as the statement was free from any sort of bias-ness. Due to the importance of the Dying declaration in imparting justice the court has laid different principles for governing it. It should be free from all kinds of modifications and errors. It should be genuine and should be satisfactory and if it isn’t so the court must check other evidence and facts relating to the statement before moving to the conviction of the accused.
Legal Information Institute, Dying Declaration, https://www.law.cornell.edu/wex/dying_declaration Dated:20.03.2021
I Pleader, Admissibility of Dying Declaration, https://blog.ipleaders.in/admissibility-dying-declaration/ Dated:20.03.2021
Indian Kanoon, High court of Rajasthan, https://indiankanoon.org/doc/67143/ Dated: 21.03.2021