LAW 122
{Evidence Law PSDA}
SUBMITTED TO: MS RAJASI GUHAROY
PRESENTED BY: SAKSHMIT MATHUR
SECTION: A
BBA.LLB (H)
ENROLLMENT NUMBER: A3221521051
Research Paper on Topic –
“Dying declaration (Sec 32- 33)”
Introduction: Dying Declaration
Dying declaration is based on the maxim "Nemo moriturus
praesumitur mentire".
It means a man will not meet his maker with a lie in his mouth.
'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".
• Hearsay evidences are not given any weightage in the courts because
the person who is giving this evidence is not telling his experiences
but that of another person and who cannot be cross examined to
verify the facts.
Body:
The statements made by a person as to the cause of his death or as
circumstances of the transaction resulting in his death is called a
dying declaration.
According to the section 32 (1) of Indian Evidence Act 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.
Main thing is that if these declarations seem trustworthy to courts
these retain their full values.
Most important point of consideration is that victim was in a fit
condition of mind to give the statement when recording was started
and remained in fit condition of mind till the recording of the
statement finished.
Merely stating that patient was fit will not serve the purpose. This
can be best certified by the doctor who knows best about the
condition of the patient.
But even in conditions where it was not possible to take fitness
from the doctor, dying declarations have retained their full sanctity
if there are other witnesses to testify that victim was in such a
condition of the mind which did not prevent him from
making statement.
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.
Second most important point to be considered is that it should not
be under the influence of anybody or prepared by prompting,
tutoring or imagination.
Best form of dying declaration is in the form of questions and
answers. If it is in the form of narrations it is still good because
nothing is being prompted and everything is coming as such from
the mind of the person making it.
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
declaration is valid.
What questions are asked and what answers are given by the
patient those should be written.
It is preferred that it should be written in the vernacular which the
patient understands and speaks.
It is best that it is recorded by the magistrate but if there is no time
to call the magistrate due to the deteriorating condition of the
victim it can be recorded by anybody e.g. public servant like doctor
or any other person.
Courts discourage the recording of dying declaration by the police
officers but if there is nobody else to record it dying declarations
written by the police officers are also considered by the courts.
If these are not recorded by the magistrate it is better that
signatures of the witnesses are taken who are present at the time
of recording it.
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.
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.
It does not matter that the person has put a thumb impression or
signed it if this is duly witnessed. But in the court question does
arise if a person who can sign puts a thumb impression.
If a literate person putting the thumb impression is in such a
condition that he cannot sign e.g. he was lying in the bed and could
not get up to sign it or it was inconvenient for him to put thumb
impression due to his condition or injury on the right hand in a
right handed person.
In the absence of such conditions if there is thumb impression and
this is not witnessed by disinterested persons a doubt may be
created whether this was done after the person died to take revenge
by some interested person.
There is usually no time limit that dying declaration becomes
invalid if the person died after many months after making
the declaration.
Cases are on record when it was considered valid after 4 months.
Even the HISTORY given by the injured recorded by the doctor in
the case file has been considered as dying declaration by the
honourable 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.
Hence it is important that if such history is written as narrated by
the victim it should be recorded carefully, keeping in mind the
mentioned finding of the court.
First information report got recorded by the police has been taken
as dying declaration by the honorable Supreme Court, when the
person did not survive to get his dying declaration recorded.
But when patient remained admitted in hospital for sufficient days
i.e. for 8 days
FIR cannot be treated as dying declaration.
A suicidal 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.
Keeping in view the above mentioned opinions of various courts it
is suggested that whenever dying declaration is to be recorded it
should be recorded very carefully keeping in mind the sanctity
which the courts attach to this piece of evidence.
Dying declaration is an exception to this rule 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.
Sometimes it the best evidence in such situations.
• Its admissibility has been explained in the section 32(1) of Indian
Evidence Act.
• According to the section when the statement made by a person as to
the cause of his death or any of the circumstances of the transactions
which the 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.
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 everything is coming as such from the mind of
the person making it.
Who may record dying declaration?
Any person can record dying declaration. it is not necessary that
only govt. employee, magistrate, or police officer or concern
person should record it.
Exceptions of Dying Declaration:
• The exceptions of 'Dying declaration' stipulate that where the
statements made by dying persons are not admissible:
1. If the cause of death of the deceased is not in question: If the
deceased made statement before his death anything except the
cause of his death, that declaration is not admissible in evidence.
2. If the declarer is not a competent witness: declarer must be
competent witness. A dying declaration of a child is
inadmissible. In Amar Singh v. State of Madhya Pradesh, 1996
Cr LJ (MP) 1582, it was held by M.P. High Court that without
proof of mental or physical fitness, the dying declaration was
not reliable.
3. Inconsistent declaration: Inconsistent dying declaration is no
evidentiary value.
4. Doubtful features: In Ramilaben v. State of Gujarat it was held
by the court that second degree burn injuries, the injured dying
7-8 hours after the incident, four dying declarations recorded but
none carried medical certificate. There were other doubtful
features, evidence not taken into account.
5. Uninfluenced declaration: it must be noted that dying
declaration should not be under influence of any one.
6. Untrue declaration: it is perfectly permissible to reject a part of
dying declaration if it is found to be untrue & if it can be
separated.
7. Incomplete declaration: dying declaration must be complete.
8. if the statement relates to the death of another person: If the
statement made by the deceased does not relate to his death, but
to the death of another person, it is not relevant.
9. Contradictory statements: if a declarant made more than one
dying declarations & all are contradictory, then those all
declarations lose their value.
10. If dying declaration is not according to prosecution: in the case
of State of U.P. v. Madan Mohan the Apex Court held that:
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 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 & 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 & answers &
answers being written in the words of the person making the dying
declaration. But court cannot be too technical.
This has been summed up the Supreme Court:
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 declaration.
Conclusion:
• "Dying Declaration" is a legal concept refers to that statement which
is made by a dying person, explaining the circumstances of his death.
• Dying declaration is admissible on the sole ground that it was made
in extremis. And in India, its admissibility is explained in Sec-32(1)
of Indian Evidence Act. It is cleared by the above mentioned
statements given by different courts that dying declaration can be in
any form but it must be recorded carefully & duly proved, which the
courts make admissible as the "DYING DECLARATION".
