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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.

Such a statement can be proved when it 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. The statement will be relevant in
every case or proceeding in which the cause of that person’s death comes into question.

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.

Illustration:

(a) The question is, whether A was murdered by B; or

A dies of injuries received in a transaction in the course of which she was ravished. The question is,
whether she was ravished by B; or

The question is, whether A was killed by B under such circumstances that a suit would lie against B
by A’s widow.

Statements made by A as to the cause of his or her death, referring respectively to the murder, the
rape, and the actionable wrong under consideration, are relevant facts.

If as a result thereof, the Court is satisfied that the statement made by a person who is now dead is
relevant, the same becomes admissible in terms of Sub-section, (1) of Section 32 of the Evidence
Act.
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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. In a case, 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 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 32.

Circumstances of the transaction which resulted in his death

The other important condition for the admissibility of a statement as a dying declaration is that it
must relate to the circumstances of the transaction which resulted in his death. This was vividly
explained by the Privy Council in the Case of Pakala Narayana Swami v. The Emperor. The facts
of the case were that the accused had borrowed Rs. 3000 from the deceased during 1936. On 20th
March, 1937, the deceased received a letter from the accused inviting him to come that day or next
to Behrampur. The deceased left his house on 21st March, 1037 in time to catch the train for
Behrampur. But he did not come back. On 23rd March, 1937, at about noon, his dead body was
found in a steel trunk in a third class compartment at Puri. The dead body was identified by the
widow. The accused was tried and convicted for murder and sentenced to death. During the trial, the
widow of the deceased stated before the Court that on that day her husband showed her a letter and
said that he was going to Behrampur as the appellant’s wife had written to him and told him to go
and receive payment for his dues. This statement was objected by the appellant because it was not a
statement after the transaction or the injury. Their Lordships of the Privy Coucil held them to be
admissible because it related to the circumstances of the transaction which resulted in his death and
so, it was rightly admitted under section 32(1). In this connection, the observations made by the
Lord Atkin are worth noting:

“The phrase ‘circumstance of transaction’, no doubt, conveys some limitations. It is not as broad as
the analogous use n ‘circumstantial evidence’ which includes the evidence of all facts. It is on the
other hand narrower. Circumstances must have some proximate relation to the actual occurrence
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though as for instance in a case of prolonged poisoning, they may be related to dates at a
considerable distance from the date of actual dose.”

Further His Lordship said-

“The circumstances must be the circumstances of the transaction in general indicating fear or
suspicion whether of a particular individual or otherwise and not directly related to the occasion of
the 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 the reasons for so proceeding or that he was going to meet a particular person or that he had
been invited by such person to meet him, would each of them, be the circumstances of the
transaction. The statement under this clause may be made before the cause of death has arisen or
before the deceased has reason to anticipate being killed.”

Reason for admitting dying declaration in evidence

Nemo moriturus praesumitur mentire- It implies that a man who is on death bed would not tell a
lie to falsely implicate innocent person 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 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.
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 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.
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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.

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. Abdullah; 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 Maharashtra 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 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:-

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If the statement made by the deceased does not relate to his death, but to the death of another, it is
not relevant. 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.

•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.
Emperor, A 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 upon .

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 truth

•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 inadmissible.

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 say.
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(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 the

declaration.

(iii)Where there is clear discrepancy between the facts mentioned in the dying declaration and those
in the statements of the witness.

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

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

Abrupt Ending/ Incomplete

When the dying declaration abruptly ends, due to deteriorating condition of the patient then this
cannot affect the evidentiary value of the dying declaration since it is complete in so far as the
appellant’s role is concerned.

However, where the condition of the deceased had become grave and a statement made by him in
the presence of the doctor was taken down by the police but it could not be completed as he fell into
coma from he did not recover and died subsequently, the dying declaration was held to be
inadmissible because upon the face of it was incomplete and no one can tell what the deceased was
about to add.

Before Police

Better and more reliable methods of recording a dying declaration of an injured person should be
taken recourse to and the one recorded by the Police Officer may be relied upon if there was no
time or facility available to the prosecution for adopting a better method.

The practice of Investigating Officer himself recording the dying declaration during the course of
investigation ought not to be encouraged and it would be better to have dying declaration recorded
by magistrate. But no hard and fast rule can be laid down in this regard. It all depends upon the facts
and circumstances of the case.

Dying declaration recorded by a police officer if found truthful may base conviction.

Before Magistrate

There is no requirement of law that a dying declaration must necessarily be made to a Magistrate
and when it is recorded by a magistrate, there is no statutory form for such recording. The
evidentiary value depends on facts and circumstances of each particular case. The person who
records a dying declaration must be satisfied that the deceased was in a fit state of mind. A
certification of doctor is essentially a rule of caution and, therefore, the voluntary and truthful
nature of the declaration can be established otherwise. This is a well settled rule now, by this
Constitution Bench judgment of the Supreme Court.
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Section 32 of the Indian Evidence Act nowhere states that the dying declaration must be recorded in
the presence of a Magistrate or in other words no statement which has not been recorded before the
Magistrate cannot be treated to be a dying declaration.

Corroboration

It is well settled that dying declarations shall have to be dealt with due care and upon proper
circumspection. Though corroboration thereof not essential as such, but its introduction is otherwise
expedient to strengthen the evidential value of the declaration. Independent witnesses may not be
available but there should be proper care and caution in the matter of acceptance of the dying
declaration as a trustworthy piece of evidence.

It is rarely found in a criminal case that the description of the incident and injury described in the
dying declaration gets full corroboration from the medical evidence contained in the injury report
and the post-mortem report. In such cases, still the dying declaration can be relied upon.

Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its
conviction without any further corroboration. It cannot be laid down as an absolute rule of law that
the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule
requiring corroboration is merely a rule of prudence.

Need for corroboration.–

Where the dying declaration is believed to be true, consistent and coherent, it can be relied upon for
conviction, even if there was no corroboration.

In Lallubhai Devchand Shah v. State of Gujara, a married woman was burnt to death by her in-
laws, her dying declaration was accepted and conviction was based solely on the basis of the
declaration. It was held that if the truthfulness of a dying declaration is accepted, it can always form
the basis of conviction of the accused. The Court, in the present case, thus convicted the appellants
on the basis of the dying declaration.

In the recent decision, the Supreme Court observed that, dying declaration though an exception to
the hearsay rule, but like any other evidence, it has to pass the test of credibility. If found reliable, it
can be the basis of conviction. It can be acted upon in reference to one accused though not in
reference to others. However, it is well-settled that if the truthfulness of dying declaration cannot be
doubted, the same alone can form the basis of conviction without any corroboration.

Declarant Survives

It is trite law that when the maker of a purported dying declaration survives, the same is not
statement u/s 32 of the Indian Evidence Act but is a statement in terms of Section 164 of the Cr.P.C.
It can be used under section 157 of the evidence Act for the purpose of corroboration and under
Section 155 of the evidence Act for the purpose of contradiction.

It was held in Tahsildar Singh v. State that the Court will be prevented from taking notice of a dying
declaration of a person who has survived and has not been examined in the case.
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English Law vis-a vis Indian Law

• Under English Law, a dying declaration is admissible only on a criminal charge of homicide
or manslaughter, whereas in India it is admissible in all proceedings, civil or criminal.
• Under the English Law, credence and the relevancy of a dying Declaration is only where a
person making such a statement is in a hopeless condition and is expecting imminent death.
So under the English Law, for its admissibility, the declarant should have been in actual
danger of death at the time when they are made, and that he should have had a full
apprehension of this danger and the death should have ensued. The admissibility rests on the
principle that a sense of impending death produces in a man’s mind the same feeling as that
of a conscientious and a virtuous man under oath. If evidence in a case reveals that the
declarant has reached this state while making a declaration then within the sphere of Indian
Law, while testing the credibility of such dying declaration, weightage can be given, of
course, depending on the other relevant facts and circumstances of the case. However, under
the Indian Law, the dying declaration is relevant whether the person who makes it was or
was not under expectation of death at the time of declaration.
• Under the English Law, the declaration must have been competent as a witness, thus,
imbecility of tender age will exclude the declaration. It is, however, doubtful whether this
rule is applicable in India. The credit of such a declarant may be impeached in the same way
as that of witness actually examined in a court.

Important Case Laws

Pakala Narayan Swami Case-

In Pakala Narayan Swami v. Emperor which is a leading and landmark case on the subject that we
are dealing. In this case the Privy Council observed thus:

“The circumstances must have some proximate relation to the actual circumstances to prove a dying
declaration.”

Moreover, it was noted by the Lord Atkin that “the circumstances must be the circumstances of the
transaction in general indicating fear or suspicion whether of a particular individual or otherwise
and not directly related to the occasion of the 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 the reasons for so proceeding or that he was going to meet a particular person or that he had
been invited by such person to meet him, would each of them, be the circumstances of the
transaction. The statement under this clause may be made before the cause of death has arisen or
before the deceased has reason to anticipate being killed.”

Khushal Rao Case–

In Khushal Rao v. State of Bombay, the deceased made four separate and identical declarations
before the doctor, police inspector, Magistrate, and to other person, stating that he has been
assaulted by Kaushal and one other person. The question was whether the accused could be
convicted only on the basis of this declaration or the declaration needed corroboration. There are
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divergent views of different High Courts in this regard. According to Bombay High Court, dying
declaration is a weaker type of evidence and require corroboration. According to Calcutta High
Court, it is not permissible to accept a declaration in one part and reject the other part. According to
Madras High Court, a declaration can be relied without corroboration, if the court is convinced of
its truth, i.e., there is no suspicion of its credibility.

The Supreme Court, agreeing with Madras High Court, laid down the following principles:

(1)There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction
unless corroborated.

(2)Each case must be determined on its own facts keeping in view the circumstance in which the
dying declaration was made.

(3)A dying declaration is not a weaker kind of evidence than any other piece of evidence. It stands
on the same footing as any other piece of evidence.

(4)A dying declaration cannot be equated with a confession or evidence of approver, as it may not
come from a tainted source. If it is made by the person whose antecedents are as doubtful as in the
other cases that may be a ground for looking upon it with suspicion.

(5)Necessity of corroboration arises not from any inherent weakness of a dying declaration as a
piece of evidence, but from the fact the Court in a particular case came to the conclusion that a
particular declaration is not free from infirmities.

(6)To test the reliability of a dying declaration, the Court has to keep in view the circumstances like
the opportunity of the dying man’s observation, e.g., whether there was sufficient light if the crime
was committed at night; whether the capacity of the declarant was not impaired at the time of the
statement; that the statement has been consistent throughout if he had several opportunities for
making a dying declaration; and that the statement was at the earliest opportunity and was not the
result of tutoring by the interested parties.

(7)A dying declaration recorded by a competent Magistrate in a proper manner in the form of
questions and answers, and in the words of the maker as far as practicable stands on much higher
footing than a dying declaration which depends upon oral testimony which may suffer from all the
infirmities of human memory and character.

(8)If the Court, after taking everything into consideration, is convinced that the statement is true, it
is its duty to convict, notwithstanding that there is no corroboration in the true sense. The Court
must, of course, be fully convinced of the truth of the statement, and naturally, it could not be fully
convinced if there was anything in the surrounding circumstances to raise suspicion as to its
credibility. Thus, a true and voluntary declaration needs no corroboration.

The statement of the deceased in this case satisfied all these conditions (the declaration was true in
all respects e.g., consistent in so far as naming of the two accused) and therefore the appellants
should be convicted.
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Kusa Case—

In Kusa v. State of Orissa, the deceased made dying declaration before a doctor. It was clear in all
respects. However, the appellants challenged it on the following grounds: (1) it did not contain all
those names which were include in F.I.R. (2) the account of the eye-witnesses also different (3) the
deceased was in a state of shock, thus his statement could not be relied (4) the declaration was
incomplete as the deceased did not answer the last question put to him (to wind up the statement the
doctor asked the injured if he had anything else to say, he lapsed into unconsciousness without
answering the question).

The Court observed that only certain names were included in F.I.R. but were not mentioned in
dying declaration does not detract from the value of dying declaration and would not by itself prove
the falsity of the declaration. In Surat Singh’s case, the first declaration did not mention the name of
the eye-witness, but the second declaration (which was more detailed) contained it. The Court
observed that first declaration was a short version of the entire incident and contained true facts
when the deceased was under great pain.

The Apex Court further observed: The statement of doctor was that deceased became semi-
conscious when the last question was put to him. Logically it means that prior to that he was fully
conscious. The last question was in the nature of a mere formality “What more you want to say”,
and all the necessary questions were asked before that formal question. The statement was not
incomplete.

Kishanlal Case.–

In Kishanlal v. State of Rajasthan, Smt. Sulochana, was sleeping on the intervening night between
11th and 12th September, 1976 with the mother of the appellant on a separate cot when she was
burnt by sprinkling kerosene oil on her chest. She was shifted to the hospital at Pilibanga at 2.00
a.m. Doctor of the hospital sent information to SHO Police Station Lekhuwali on which
investigation started. At 4.30 a.m. police recorded the statement of the deceased. The statement
recorded by the police was not brought on the records by the prosecution.

On the 15th of November, 1976, all of sudden the condition of Smt. Sulochana deteriorated and she
died in the evening. On basis of the above complaint dated 11th November, 1976, a case was
registered against the accused and investigation was started. The police after investigation could not
find any sustainable evidence against the appellant and other family member mentioned in the
complaint hence submitted final report.

Dealing with the oral dying declaration, the Trial Court acquitted both the appellant and his mother.
The High Court convicted both the appellant and his mother. The case went to the Supreme Court.

The Supreme Court held that, in the present case, as aforesaid the dying declaration was after two
months of the alleged incident. It was not at a time when the deceased was expecting imminent
death. Neither the post-mortem nor deposition of doctor carry any definite inference that the cause
of death was on account of burning. There is a conflict between two dying declarations, in one there
is inter se inconsistency as revealed in the depositions of witnesses, in the other no naming of any
accused, when made before a Magistrate. On such an evidence Trial Court rightly declined to base a
conviction. The High Court committed manifest error in placing reliance on it.
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The Supreme Court further held that, so far as the extra judicial confession is concerned it is said
that the same was made by the accused at panchayat on two occasions. First panchayat is alleged to
have taken place at Chak 22 P.S. and the other in the school at Raisinghnagar. The father’s
testimony in cross-examination, when confronted with his statement wherein he did not name any
of the accused persons, he made the usual answer that the name might not have been recorded by
mistake. But in the alleged second panchayat, the names of large number of persons were referred
to as to have confessed their guilt, including the appellant. It includes even the names of those who
are not even accused. It is alleged that they sought for the pardon of the local leaders for this guilt.
We find even in this alleged confession, there is no mention that the accused had burnt the deceased
Smt. Sulochana. The alleged confession by large number of persons is more in a general and vague
term. Before a confession is relied on, it must be clear and unequivocal, whether it is in a judicial or
in an extra judicial confession.

On the fact discussed above there is no hesitation to hold that reliance should not have been placed
on the so called confession, the Trial Court rightly rejected it but unfortunately the High Court very
casually accepted it which cannot be sustained and accordingly, the present appeal is allowed.





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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.