I.

INTRODUCTION-
Dying declaration is any statement made by the deceased stating the cause of his death or
stating the circumstances which resulted in the death of the victim. The foundational principle
of dying declaration is reflected in the legal maxim “Nemo moriturus praesumitur mentire”
meaning a man will not meet his maker with a lie in his mouth.1

From the perspective of the Indian law, dying declaration is under section 32 of the Indian
Evidence Act, wherein section 32(1) of the Indian Evidence Act, 1872 provides that the
statements, written or verbal, of relevant facts made by a person who is dead are themselves
relevant subject to 2 conditions.2 The statement may either be made 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. 3 The general rule is that
hearsay evidence is inadmissible. Dying declaration is an exception to the rule 4. The Supreme
Court in the case of Ulka Ram v. Rajasthan laid down that that any statement made by a
dying person regarding the cause of death or the circumstances leading to death, is a dying
declaration and acceptable as a credible and trustworthy evidence in court. The courts rely on
such a declaration as there is a general belief that a person who is about to die will not lie5.

Hearsay evidence, being secondary testimony, is inadmissible under Section 60 of the Indian
Evidence Act. There are only two exceptions to this rule i.e. res gestae and dying
declarations.6 Dying declarations are considered as an exception to the rule regarding
inadmissibility of Hearsay evidence because the opportunity of examining the truth by cross-
examination is exhausted as the maker of the statement is already dead. The question of how
much weight should be attached to the statement made is a question of fact and has to be
determined on the facts of the case. 7 The Supreme Court in the case of Kushal Rao v. The
State of Bombay, held that dying declaration cannot be the sole basis for conviction and has
to be established on its own facts, taking into consideration the circumstances of the
declaration.8

1
P.V.Radhakrishna v. State of Karnataka, Criminal Appeal 1018 of 2002.
2
Emperor v. Mohammad Sheikh, (1942) 2 Cal 144.
3
Section 32(1), Indian Evidence Act, 1872 [hereinafter “Evidence Act”]
4
Ratanlal &Dhirajlal,”the Law of Evidence”,568 (23rd ed, 2011)
5
P.V. Radhakrishna v. State of Karnataka, Criminal Appeal No. 1018 of 2002, Decided On, 25 July 2003.
6
M.C Sarkar and P.C. Sarkar, Law of Evidence, Vol.-1, p. 709.
7
Ram Bihari Yadav v. State of Bihar & Ors.,
8
AIR 1958 SC 22
Under English Law, the definition of dying declaration remains pretty much the same. It is a
statement made by a declarant, who is unavailable to testify in court (typically because of the
declarant's death), who made the statement under a belief of certain or impending death. The
statement must also relate to what the declarant believed to be the cause or circumstances of
the declarant's impending death. It is an exception to the rule of hearsay evidence.9

II. PRINCIPLES GOVERNING DYING DECLARATION UNDER INDIAN

LAW-

Though a dying declaration is entitled to great weight, it is worthwhile to note that the
accused has no power of cross-examination. 10 Therefore, the following principles have to be
kept in mind -

i. There is neither rule of law nor of prudence that dying declaration cannot be acted
upon without corroboration,11 if the Court is satisfied that the dying declaration is true
and voluntary it can base conviction on it. 12 It can also be the sole basis pf conviction,
if it inspires the full confidence of the court that it doesn’t suffer from infirmity.13
ii. This Court has to scrutinise the dying declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting or imagination,14 and where it is
suspicious, should not be acted upon without corroboration.15
iii. Where the deceased was unconscious and could never make any dying declaration the
evidence with regard to it is to be rejected.16
iv. Merely because a dying declaration does not contain the details as to the occurrence
or is brief, it is not to be rejected.17  

9
Section 804(b)(2)  Federal Rules of Evidence.
10
Paniben (Smt) v. State of Gujarat, (1992) 2 SCC 474 : 1992 SCC (Cri) 403.
11
Munnu Raja v. State of M.P., (1976) 3 SCC 104 : 1976 SCC (Cri) 376.
12
State of U.P. v. Ram Sagar Yadav, (1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416 ; Ramawati
Devi v. State of Bihar, (1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164.
13
Atbir v. Govt. (NCT of Delhi), (2010) 9 SCC 1 : (2010) 3 SCC (Cri) 1110; Ram Manorath v. State of
U.P., (1981) 2 SCC 654 : 1981 SCC (Cri) 581.
14
K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994.
15
Rasheed Beg v. State of M.P., (1974) 4 SCC 264 : 1974 SCC (Cri) 426.
16
Kake Singh v. State of M.P., 1981 Supp SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021.
17
State of Maharashtra v. Krishnamurti Laxmipati Naidu, 1980 Supp SCC 455 : 1981 SCC (Cri) 364 : AIR
1981 SC 617; Surajdeo Oza v. State of Bihar, 1980 Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505.
 v. Where the eye witness has said that the deceased was in a fit and conscious state to
make this dying declaration, the medical opinion cannot prevail, though normally the
court looks up to medical opinion to satisfy itself of that the deceased was in a fit
mental condition.18

III.DIFFERENCE BETWEEN INDIAN LAW AND ENGLISH LAW-

Firstly, under the British law, dying declaration is relevant only when the statements made
are certain. Certainty here implies that the individual must be certain as to his/her death at the
time of giving the statement. The person making the statement must be under the anticipation
of death or impending death. Thus, the test therein can be expressed as when there is ‘no
hope of recovery’19 or “settled hopeless expectation of death.”20

On the other hand, under Indian Law, it is not necessary for the admissibility of dying
declaration that the deceased at the time of making the statement should have been under
expectation of death.21 Thus, apprehension of death is not necessary under Indian law if the
declarant has died and the statement made explains the circumstances surrounding the cause
of his death.22 The second sentence of Section 32(1) makes it absolutely clear that the
individual making the statement may or may not be under expectation of death, implying that
presence of such a state of mind is irrelevant under Indian law.

Secondly, under English Law a person making a dying declaration must be competent to be a
witness in court thus declaration by children is not admissible as an infant is not considered a
competent witness. Whereas in India there is no rule that an infant is not a competent person
and his declaration will also hold evidentiary value.

Thirdly, dying declaration, under English law, is admissible only in a criminal charge of
homicide or manslaughter23 whereas in India it is admissible in civil or criminal proceedings
both where ever the question of death comes into question. 24 The words “whatever may be
the nature of the proceeding” makes it unambiguously clear that dying declaration is
provable in both civil and criminal matters. A dying declaration is deemed to be relevant only
18
Nanahau Ram v. State of M.P., 1988 Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912.
19
Wigmore on Evidence, 4th ed. at 233-234 (2019).
20
R v. Peel, (1860) 2 F. & F. 21; R v. Perry, (1909) 2 KB 697.
21
B. Sharda v. State of Maharashtra, AIR 1984 SC 1622; Tahal Singh v. State of Punjab, AIR 1979 SC 1347.
22
Sharad Bhirdichand Sarda v. State of Maharashtra, (1984) 4 SCC 116; Kans Raj v. State of Punjab, (2000) ;
Machhi Singh v. State of Punjab, AIR 1983 SC 957.
23
R v. Mead, (1824) 2 B & C 605.
24
State v. Kanchan Singh, AIR 1954 All 153.
in trials for the murder or manslaughter of the declarant under Section 116 of the Criminal
Justice Act, 2003.25

CONCLUSION:

A comparison of the laws pertaining to dying declaration of both the countries outlines that
the laws relating to it are pretty much the same on the face of it with minor differences being
there related to the applicability, etc. The differences being there because both the countries
have adapted it in ways which suits them. Due to diverse characteristics in Indian people,
dying declaration has been made less stringent in order to be admissible as evidence in a trial.
The test is not very harsh, and the victim need not be essentially at the last stage, unlike in
English law, and American Law.

25
James Fitzjames Stephen, Digest of the Law of Evidence, Article 26 (1877).