DYING DECLARATION : THE LAST WORDS

Introduction:

“Nemo mariturus presumintur mentire” a maxim which backs the truth of Death legally
i.e. a man will not meet his maker with lies I.e. Truth sits upon the lips of a Dying
man.Any such statement by dyingan person can be referred to as Dying declaration in legal
context if such statement is related to the cause of death or circumstances of transaction
resulting into death. Dying declaration is called as '' Leterm Mortem''. The word ''Leterm
Mortem'' means '' Words said before death”.

Ensuring evidentiary value of Dying declaration it is cleared by SC itself that Dying

declaration doesn't require any further corroboration if it is trustworthy, clear and
satisfactory.This article deals with different aspects of Dying declaration through legal
perspectives.

Object of Dying declaration :

The only motive that ensures evidentiary value of Dying declaration is to reach to the ends
of Justice as a person never lies before he dies. In case of P.V.Radhakrishna Vs State of
Kerala, SC clearly stated that a victim is exclusive eye witness and hence such evidence
should not be excluded.

Dying declaration in legal context :

Sec. 32 of Indian Evidence Act 1872 elaborates Dying declaration

Section 32 :

Cases in which statements of relevant fact by person who is dead or cannot be found.—
statement, written or verbal, or 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 expanse 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.
(2) Or is made in course of business.
(3) Or against interest of maker.
(4) Or gives opinion as to public right or custom or matters.
(5) Or relates to existence of relationship.
(6) Or is made in will or deed relating to family.
(7) Or in document relating to transaction mentioned in section 13, clause (a).
(8) Or is made by several persons and expresses feelings relevant to matter in question.
But here, we are studying about ‘dying declaration’ which deals with the cases relate to
cause of death. It is mentioned in sub-section (1) of section 32 of Indian Evidence act :
Section 32 (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 exception of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.
In Ulka Ram v. State of RajasthanApex Court held that, “when a statement is made by a
person as to cause of his death or as to any circumstances of transaction which resulted into
his death, in case in which cause of his death comes in question is admissible in evidence,
such statement in law are compendiously called dying declaration.”
The Apex Court in its decision in P.V. Radhakrishna v. State of Karnataka held that
‘the principle on which a dying declaration is admitted in evidence is indicated in latin
maxim, nemo morturus procsumitur mentri, a man will not meet his maker with a lie in his
mouth. Information lodged by a person who died subsequently relating to the cause of his
death, is admissible in evidence under this clause.
In a leading case, wife of the accused had borrowed money from the deceased in the sum
of Rs. 3000 at the interest of 18 percent. Related to his debt a number of letters had signed by
the wife of accused which was discovered from the house of deceased after his death. One
letter which was not signed by someone had been received by the deceased K.N. on 20th
March,1937, it was reasonably clear that it would had come from the wife of accused, who
invited him to come Berhampur on that day or next day.
Widow of K.N. had told to the court that his husband had told him that Swami’s wife had
invited him to come to Berhampur to receive his payment. Next day K.N. left his house to go
to Berhampur & on 23rd March, his body, which was cut in to seven pieces, found in a trunk
in the compartment of a train at Puri. The accused was convicted of murder & sentenced to
death because there were many evidence against him.
 In Wazir Chand v. State of Haryana in which Court observed pakala ruling & said,
‘applying these to the facts of the case their Lordships pointed out that the transaction in the
case was one in which the deceased was murdered on 21st March & his body was found in a
trunk proved to be bought on behalf of the accused. The statement made by the deceased on
20th March that he was setting out to the place where the accused was living, appeared
clearly to be a statement as to some of the circumstances of the transaction which resulted in
his death. Thus the statement was rightly admitted.
In the case of R. v. Jenkins the accused was charged with the murder of a lady. He
attacked her at midnight but she had recognized her because there were sufficient light to
identify him. When magistrate’s clerk asked her about the accused to record her statement,
she told that he was Jenkins who had done the crime. The clerk asked her that, did she make
the statement with no hope of her recovery then, she replied that she was making that
statement with no hope of recovery. But when the clerk read that statement over to her,
before her signing, she told her to add the word ‘at present’ in that statement. It was held by
the court that the statement was not a dying declaration as her insistence upon the words “at
present” showed that she had some, however faint hope of recovery.

Standards of Dying declaration :

Ø Dd is a statemen expressed or implied by a dying person which is relevant to the

cause of death or circumstances of transaction resulting into death. Lord Atkin in
Privy Council verdict in Pakala Narain Swamy v. Emperor elaborates
Circumstances of transaction - “Circumstances of the transaction” is a phrase no
doubt that conveys some limitations. It is not as broad as the analogous used in
“circumstantial evidence” which includes evidence of all relevant facts. It is on the
other hand narrower than ‘res gestae’ circumstances must have some proximate
relation to the actual occurrence and must be of the transaction which resulted in the
death of the declarant. It is not necessary that there should be a known transaction
other than that the death of the declarant has ultimately been caused for the condition
of theadmissibility of the evidence is that the cause of (the declarant’s) death comes
into question. General expressions 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 the statement made by the deceased that he was proceeding to the
spot where in fact he was killed, or as to his 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 and would be so
whether the person was unknown or was not the person accused, which is what
Indian Courts follow even in today's scenario.

Ø In case of P.V. Radhakrishna Vs State of Kerala, 2002 the Apex Court held that
victim is an exclusive eyewitness and hence such evidence should not be excluded.
Dying declaration by a person explaining circumstances of death of another
admissible and reliable as evidence.

Ø In case of The State of Gujrat Vs Jayrajbhai Punjabhai Varu 2016 SCC OnLine
SC 688, the Apex Court insists that Dying declaration should be of nature as to
inspire full confidence of the Court in its correctness, statement should not be after
tutoring, prompting, influenced or out of imagination, the maker of Dying declaration
must be in a fit state of mind while delivering the statement, if Court finds the Dying
declaration satisfactory, credible and fair, there is no further corroboration required.

Ø In case of Mumtaz, Dilshad @ Pappu Vs State of UP AIR 2016 SC 3151, SC held

that statement (DD)satisfactory, trustworthy and reliable can be relied upon despite
contradictory on account of eyewitness.

Ø In case of Raju Devade Vs State of Maharashtra AIR 2016 SC 3209, the Apex
court clarified that in case of multiple DDs, each Dying declaration needs to be
scrutinized by Court in order to satisfy itself about real facts of affair through
relevant and reliable Dying declaration. in cases like Vijay Panditrao Ghodke Vs
State of Maharashtra Bom HC, Chandar Rakhude Vs State of Maharashtra 2012 SCC
OnLine , Nirmala Gunjal Vs State of Maharashtra Bom HC, it is held that if Multiple
DDs present in case then circumstances of the case need to be taken into
consideration.

Ø In many cases any statement is tried to present as a Dying declaration so it is the

Duty of Court to check whether any such a statement has been delivered by deceased
or not.Ashoka Pandurang Vs State of Maharashtra, Kushalrao's judgement.

Ø There is no standard format of recording a Dying declaration provided by Law.

 Ø Doctor must certify the state of mind of maker as fit for reliability of Dying
declaration, such certificate is checked as like other documents by Court.

Ø If a person recovers then his statement given while expecting death doesn't amount to
Dying declaration, but such statement can be used for cross-examining or
corroborating him.

Competency of recording Dying declaration :

As per the Law, competent Judicial Magistrate must record the Dying declaration.
According to Sec.161 of CrPC, 1908 , a Police officer can record such Dying declaration.

In Laltu Ghosh Vs State of West Bengal 2019 SCC OnLine SC 236, SC held that even
the Investigation Officer and the doctor can record Dying declaration as they are independent
public servants and are not related either to the accused or the deceased. It is not open for the
Trial Court to cast aspersions on the said public officers in relation to the dying declaration,
more particularly when there is no supporting evidence to show such fabrication.

Evidentiary value of Dying declaration :

Supreme Court ruled in Singh v. The State (AIR 1962 SC 439) that Dying declaration
can stand as sole basis of conviction which followed Khushal v. State of Bombay (AIR 1958
SC 22) while delivering justice.

In case of Laltu Ghosh Vs State of West Bengal 2019 SCC OnLine SC 236, SC held
that It cannot be laid down as an absolute rule of law that a dying declaration cannot form the
sole basis of conviction unless it is corroborated by other evidence. A dying declaration, if
found reliable, and if it is not an attempt by the deceased to cover the truth or to falsely
implicate the accused, can be safely relied upon by the courts and can form the basis of
conviction. More so, where the version given by the deceased as the dying declaration is
supported and corroborated by other prosecution evidence, there is no reason for the courts to
doubt the truthfulness of such dying declaration.

Comparitive approach of Dying declaration :

Dying declaration under English Law :

1. Under English Law statement as to cause of death by a Dying person is admissible

evidence in trial.
2. As to the principle underlying the acceptance of dying declaration Lord Eyre C. B.
observed that: The 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 is gone; when every motive of falsehood is silenced, and the mind is induced by
the most powerful consideration to speak the truth; a situation so solemn and awful is
considered by law as creating an obligation equal to that which is imposed by a positive oath
administered in the court of justice. Thus, the rationale is that no one would wish to die with a
lie on his lips.

3. Under the English law dying declaration is admissible only in cases of homicide. "Where
the death of the deceased is the subject of the charge, and the circumstances of the death are
the subject of the dying declaration." Therefore, the dying declaration is not admissible in
civil cases as also in criminal cases excepting prosecution for homicide.

4. The Indian law does not insist on element of expectation of death while the English law
does. Therefore, one may feel that whether Section 32 (1) needs be amended to include the
word "expectation of death' to make its admissibility.

Judicial Pronouncements regarding Dying declaration :

Ø Ulka Ram v. State of Rajasthan

Ø Wazir Chand v. State of Haryana

Ø R. v. Jenkins

Ø P.V. Radhakrishna Vs State of Kerala, 2002

Ø State of Gujrat Vs Jayrajbhai Punjabhai Varu 2016 SCC OnLine SC 688

Ø Mumtaz, Dilshad @ Pappu Vs State of UP AIR 2016 SC 3151

Ø Raju Devade Vs State of Maharashtra AIR 2016 SC 3209

Ø Laltu Ghosh Vs State of West Bengal 2019 SCC OnLine SC 236

Ø Singh v. The State (AIR 1962 SC 439)

Ø Khushal v. State of Bombay (AIR 1958 SC 22)

Ø Ashoka Pandurang Vs State of Maharashtra

Exceptions to Dying declaration :

1. The exceptions of ‘Dying declaration’ stipulate, where the statements made by

dying persons are not admissible:

2. 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.

3. 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 is held that without proof of mental or physical fitness, the dying
declaration is not reliable.

4. Inconsistent declaration: Inconsistent dying declaration has no evidential value.

5. Doubtful features: In Ramilaben v. State of Gujarat (AIR 2002 SC 2996): Injured died 7-8
hours after incident, four dying declarations recorded but none carried medicalcertificate.
There were other doubtful features too, so it is not acted upon.

6. Influenced declaration: It must be noted that dying declaration should not be under
influence of anyone.

7. Untrue declaration: It is perfectly permissible to reject a part of dying declaration if it is

found to be untrue and if it can be separated.

8. Incomplete declaration: Incomplete declarations are not admissible.

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

10. Contradictory statements: If a declarant made more than one dying declarations and all
are contradictory, then those all declarations lose their value.

11. Unsound person: The statement of unsound mind can not be relied upon.

12. If dying declaration is not according to prosecution: If dying declaration is inconsistent

with the case of prosecution it is not admissible.

Conclusion :
 Ensuring highest evidentiary value of Dying declaration, SC in Singh Vs The State, The
State of Gujrat Vs Jayrajbhai Varu 2016 SCC OnLine SC 688 clearly stated that Dying
declaration can hold as sole basis for conviction justice delivering mechanism , also as per the
belief that man does not go to his maker with lies ,Dying declaration holds very crucial
evidentiary value in any case. Having said that, not every dying person speaks truth and the
only truth. Out of enmity, hatred, family rivalry one can state lies as Dying declaration before
dying which clearly stands against the very Credence of Justice that not a single innocent
person be punished by Court of Law. So it is the duty of Court to scrutinize the Dying
declaration along with the facts and circumstances of the case so as to meet the aforesaid
Credence of Justice.

Ref :

Research paper of Criminal Core Group

ILI Law review - Summer Issue 2018

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