2019-20

INDIAN EVIDENCE ACT- FINAL DRAFT

TOPIC –DYING DECLERATION

SUBMITTED TO: SUBMITTED BY:

DR. KUMAR ASKAND PANDEY VISHAL KUMAR ARYA

ASSOCIATE PROFESSOR(LAW) ENROLLMENT NO-170101163

DR. RML NATIONAL LAW UNIVERSITY B.A.LLB(HONS)SEM V

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 ACKNOWLEDGEMENT

“The only thing that overcomes hard luck is hard work.”

Writing a project on any topic is never a single man’s job. I am overwhelmed in

all humbleness and gratefulness to acknowledge my depth to all those who
have helped me to put these ideas, well above the level of simplicity and into
something concrete.

I am very thankful to my professors, DR.KUMAR ASKAND PANDEY for their

valuable help. They were always there to show me the right track when I
needed their help. With the help of their valuable suggestions, guidance and
encouragement, I was able to complete this project. I would also like to thank
my friends, who often helped and gave me support at critical junctures during
the making to this project.

I hope you will appreciate the hard work that I have put in this project work.

VISHAL KUMAR ARYA

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 INTRODUCTION
A Dying Declaration means the statement of a person who has died
explaining the circumstances of his death. It can be said to be a statement
made by a mortally injured person, indicating who has injured them and/or
the circumstances surrounding their injury. The injured is aware that
he/she is about to die and while the declaration is hearsay, it is admissible
since it is believed that the dying person does not have any reason to lie.

Clause (1) of section 32 of the Evidence Act provides for the ‘dying
declaration’ which is incorporated from the English Law principle. Section
32(1) reads as under:

32 Cases in which statement of relevant fact by person who is dead or

cannot be found, etc., is relevant.- Statements, written or verbal, of
relevant facts made by a person who is dead, or who cannot be found,
or who has become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense which,
under the circumstances of the case, appears to the Court
unreasonable, are themselves relevant facts in the following cases:-
(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 expectation of death, and
whatever may be the nature of the proceeding in which the cause of his death
comes into question.

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As to be cause of his death
Under Section 32(1), the statement of an injured person who subsequently
dies, will be relevant only if it is made by him as to the cause of his death. It
must not relate to the cause of death of any other person’s death.
InRatanGond v. State of Bihar1, the accused was charged with the murder.
One of the piece of evidence against him was the statement of deceased’s
sister, who also died subsequently. As a result of her statement, the victim’s
dead body was recovered. The question was whether her statement was
relevant? The Supreme Court in Moti Singh v. State of U.P2 held that it was
not admissible under section 32(1) as it did not relate to the cause of her
own death but to that of her sister.

Similarly, the declarant’s death must be proved beyond doubt to have been
caused by the injuries received by him in the incident in question. In case it
is proved that he died of some other cause, it would not be admissible
under clause (1) of section 32. For example, the prisoner was convicted on
the basis of dying declaration of a person who received two shot wounds
during the occurrence. Although his dying declaration was recorded, but he
died 20 days after he had left the hospital. There was no evidence to show
that he died of the injuries received by him at the said incident. On the
question of admissibility of the dying declaration, the Supreme Court held
that when the dead person in the present case was not proved to have died
as a result of injuries received in the incident, his statement cannot be said
to be a statement as to the cause of his death or as to any of the
circumstances of the transaction which resulted in his death. So, they held
his statement to be inadmissible under section

, (1959) SCR 1336

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(1964) 1 SCR 688

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 Principle
Dying declarations are statements oral or documentary made by the person
as to the cause of his death or as to the circumstances of the transactions
resulting in his death. The grounds of admission of a dying declaration are:

Firstly, necessity, for the victim being generally the only principal eye-
witness to the crime, the exclusion of his statement might defeat the ends
of justice; and

Secondly, the Pakala Narayana Swami v. The Emperorwhich creates a

sanction equal to the obligation of an oath.

The general principle on which this species of evidence is admitted is that

they are declarations made in extremity, when the party is at the point of
death and when every hope of this world has gone, when every motive to
falsehood is silence and the mind is induced by the most powerful
consideration to speak the truth; a situation so solemn and so lawful is
considered by law as creating an obligation equal to that which is imposed
by a positive oath administered in a Court of Justice3.

Exclusion of his statement would tend to defeat the ends of justice. If the
truthfulness of a dying declaration is beyond doubt, the conviction can be
held solely upon it4.

Nemo moriturus praesumitur mentire- It implies that a man who is on

death bed would not tell a lie to falsely implicate innocent person5. No one
at the point of death is presumed to lie because A man will not meet his
Maker with a lie in his mouth— is the philosophy in law underlying
admittance in evidence of dying declaration. A dying declaration made by

3
R.v. Woodcock, (1789) I Leach 500
4
State of Assam v. Mafizuddin Ahmed, AIR 1983 SC 274: 1983 Cr LJ 426
5
Sharda v. State of Rajasthan, AIR 2010 SC 408

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person on the verge of his death has a special sanctity as at that solemn
moment, a person is most unlikely to make any untrue statement. The
shadow of impending death is by itself the guarantee of the truth of the
statement made by the deceased regarding the causes or circumstances
leading to his death. Once the statement of the dying person and the
evidence of the witnesses testifying to the same passes the test of careful
scrutiny of the Courts, it becomes a very important and a reliable piece of
evidence and if the Court is satisfied that the dying declaration is true and
free from any embellishment such a dying declaration, by itself, can be
sufficient for recording conviction even without looking for any
corroboration.

Admissibility
It is not always necessary that a dying declaration should be certified by a
doctor before reliance could be placed on the same. But then in the absence
of any such certificate, the Courts should be satisfied that from the material
on record it is safe to place reliance on such uncertified declaration.

Unless the statement of a dead person would fall within the preview of
Section 32(1) of the Indian Evidence Act, there is no other provision under
which the same can be admitted in evidence. In order to make the
statement of a dead person admissible (written or oral), the statement
must be as to the cause of her death or as to any of the circumstance of the
transactions which resulted in her death, in cases in which the cause of
death comes into question.

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Form of dying declaration
There is no format as such of dying declaration neither the declaration
need to be of any longish nature or neatly structured. As a matter of fact,
perfect wording and neatly structured dying declaration bring about
an adverse impression and create a suspicion in the mind of the Court
since dying declarations need not be drawn with mathematical
precision. The declarant should be able to recollect the situation resulting
in the available state of affairs.

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 Abdulla6”, 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.

ILR (7) 385

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To Strengthen the Value of a Dying Declaration
By enacting section 32 the Legislature in its wisdom has placed a dying
declaration on par with evidence on oath for the reason that at the time
when a man is in danger of losing himself it is not likely that he would
speak a falsehood and involve an innocent person. There is no absolute rule
of law nor is there any rule of prudence which has ripened into a rule of law
that a dying declaration cannot form the sole basis of a conviction unless it
is corroborated by independent evidence. The circumstances which lend
strength and assurance to a dying declaration are as follows:

1 That it was recorded by a competent Magistrate after taking all proper

precautions.
2 That it was taken down in the exact words in which it was spoken.
3 That it was made shortly after the assault when there was no opportunity
of its being coloured by impressions received from others.
4 That deceased had ample opportunity of observation.
5 That the incident happened in a sufficiently lighted place.
6 That the deceased had made more than one statement and all of them
were consistent as to the circumstances of the occurrence and the
identity of the attackers.

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Essential conditions for the admissibility of
dying declaration

• To whom the statement is to be made and its form:-

A statement of dying declaration could be made to any person – a doctor, a
Magistrate, a friend or near relative, a police officer. However, a statement
recorded by a Magistrate or doctor is considered more reliable, and that
recorded by a police officer or close relative not (require more scrutiny).

No particular form of recording a statement is prescribed. The statement

could be written, oral or even verbal (e.g., gestures). In Queen Empress v.
Abdullah7; where the throat of the deceased girl was cut and she being
unable to speak indicated the name of the accused by the signs of her hand,
this was held to be relevant as dying declaration.

• The person making the statement must have died:-

The death need not occur immediately after the making of the statement.
However, the death must occur. If the persons making the declaration
chances to live, his statement is inadmissible as a dying declaration, but it
might be relied under section 157 to corroborate his testimony when
examined. Such a statement can also be used to contradict him under
section 145. Further, it can be used to corroborate the evidence in Court
under sections 6 and 8. The fact that the person is dead must be proved by
the person proposing to give evidence of his statement.

The Supreme Court in Ramprasad v. State of Maharashtra8 observed that at

the time when declarant gave the statement he would have been under
expectation of death but that is not sufficient to wiggle it into the cassette of

(1885) ILR 7 All 385

7

AIR 1999 SC 1969

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 section 32 of Evidence Act, 1872. As long as the maker of the statement is
alive it would remain only in the realm of a statement recorded during
investigation. It was held, that if a person making a dying declaration
survives his statement cannot be used as evidence under section 32 of the
Act.

• Statement must relate to the cause of his death or the

circumstances of the transaction which resulted in

his death:-
If the statement made by the deceased does not relate to his death, but to
the death of another, it is not relevant9. For example, where the wife made a
statement that her husband is killed by Z and then she committed the
suicide.

The circumstances of transaction resulting in death must bear proximate

relation to the cause of death or actual occurrence. The general expressions
indicating fear or suspicion, whether of a particular individual or otherwise
and not directly related to the occasion of death will not be admissible. But,
statements made by the deceased that he was proceeding to the spot where
he was in fact killed, or as to his reasons for so proceeding, or that he was
going to meet a particular person, would to each of them be circumstances
of the transaction.

RatanGond v. State of Bihar, AIR 1959 SC 18

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• The cause of death must be in question:-

The declaration under section 32(1) must relate to the death of the
declarant. In Dannu Singh v. Emperor10A and five other persons were
charged with having committed a dacoity in a village. A, who was seriously
wounded while being arrested, made before his death a dying declaration
as to how the dacoity was committed and who had taken part in it. It was
held that declaration was not admissible in evidence against other persons,
as it does not relate to his death, but relates to participation of his
associates in the dacoity.

• The statement must be complete and consistent:-

If the deceased fails to complete the main sentence (as for instance, the
genesis or the motive for the crime), a dying declaration would be
unreliable. However, if the deceased has narrated the full story, but fails to
answer the last question as to what more he wanted to say, the declaration
can be relied upon11

A dying declaration ought not to be rejected because it does not contain

details or suffers from minor inconsistencies. Merely because it is a brief
statement, it is not to be discharged. Shortness, in fact, guaranteed truth12

10
25 Cri.L.J. 574
11
Kusa v. State of Orissa, (1980) 2 SCC 207: AIR 1980 SC 559
12
SurajdeoOzav. State of Bihar, AIR 1979 SC 1505: 1979 SCC (Cri) 519

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• Declarant must be competent as a witness:-

It is necessary for the relevancy of a dying declaration that the declarant, if

he had lived on, would have been competent witness. Thus, in a
prosecution for the murder of a child, aged four years, it was proposed to
put in evidence, as a dying declaration, what the child said shortly before
her death. The declaration was held to be inadmissible13

Circumstances when a dying declaration

is meaningless
Following are the circumstances when a dying declaration held
meaningless:

(i)When the relatives of the declarant arrange with him as to what he has
to say14

(ii)When the maker of a dying declaration is proved to have been

unconscious or semi-conscious at the spot and died a few minutes after the
making of thedeclaration15

(iii)Where there is clear discrepancy between the facts mentioned in the

dying declaration and those in the statements of the witness.16

(iv)When a dying declaration contradicts itself in its various parts17

(v)Where the identity of accused could not be established through the

dying declaration18

R.v. Pike, (1829) 3 CLP 598

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14
Varand v. Emperor, AIR 1944 Sind 137
15
BhagwanDass v. State, AIR 1957 SC 589: 1957 Cr LJ 889
16
BapuRao v. State of Maharashtra, AIR 1968 SC 855
Jaya Ram v. Stateof Tamil Nadu, AIR 1976 SC 791.
17

ShabirMohmad Syed v. State of Maharashtra, (1997) 11 SCC 499: AIR 1997 SC 3808
18

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 Two Dying Declarations
When there are two dying declarations and there was inconsistency
between them and there was no other evidence evidence to prove the
prosecution case, it was not safe to act solely on the said declarations to
convict the accused persons.

Where the bride recorded two declarations, one to a police officer and
other to a Magistrate, they being similar in material factors, evidence
accepted though minor discrepancies were there.19

In Kamla v. State of Punjab20 ,four dying declarations were made by the

deceased. One of them indicated the incident as an accident. The accused
(mother-in-law of the deceased) had been convicted on the basis of another
declaration implicating her. The court also found glaring inconsistencies as
far as naming the culprit was concerned. On facts it was held that the
conviction cannot be based upon such declarations.

Where there are more than one declaration, the one first in point of time
should be preferred; Mohanlal Gangaram Gehani v. State of
Maharashtra21

19
Raojiv. State of Maharashtra, (1994) SC LJ 1 (SC)
20
AIR 1993 SC 374: 1993 Cr LJ 68
21
AIR 1982 SC 839: 1982 Cr LJ 630

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Conclusion
A statement, written or oral, made by a person who is dead as to the cause
of his death or as to any of the circumstances of the transaction which
resulted in his death, in case in which the cause of that person’s death
comes into question, becomes admissible under section 32 of the Evidence
Act. Such statement made by the deceased is commonly termed as dying
declaration. There is no requirement of law that such a statement must
necessarily be made to a Magistrate. What evidentiary value or weight
has to be attached to such statement must necessarily depend on the
facts and circumstances of each particular case. In a proper case, it may
be permissible to convict a person only on the basis of a dying
declaration in the light of the facts and circumstances of the case.

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BIBLIOGRAPHY

➢ Ashutosh Salil, “An Analysis of Indian and English Position of Dying

Declaration’ J 297,Cri.L.J.2005
➢ Sudipto Sarkar & V. R. Manohar, Sarkar on Evidence, 15th edn
➢ Dying Declaration, at http:/www.lawyersclubindia.com/articles
➢ Avatar Singh “Principles of the Law of Evidence,16th ed.2007,
➢ M. Monir, “Law of Evidence” 7th ed
➢ Neha Vijayvarigya, "Admissibility Of Dying Declaration :Whether
Justified”2006 (1) Cri.LJ
➢ M.G. Amin, "Assumptions behind sanctity of dying declarations", (1995)
7 NLSJ,
➢ Deepak Arora, R. S. Dogra&Jaswant Singh, Law of Evidence, vol. 1
Madras Law journal, Madras, 1998
➢ Black's Law Dictionary, Ed, Bryan A. Garner, 7th edn, West Group, St.
Paul, Minn, 1999

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