DYING DECLARATION

The declaration of death is admissible in court. The legal adage "nemomoriturus praesumitur
mentire"—which means a man will not meet his creator with a liar in his mouth—indicates
the premise on which it is admissible as evidence. This is the exact reason why courts have
ruled that an accused might be found guilty based just on a "Dying Declaration." In reality, no
corroboration is necessary because it is merely a matter of good judgement and not a rule of
proof. Its admissibility is explained in the section 32 (1) of Indian Evidence Act. According to
this section 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. In English law he must be under expectation of death
only then this declaration is valid. This declaration is valid both in civil and criminal cases
whenever the cause of death comes into question.

OBJECT

1. It is a presumption that, ''A person who is about to die would not lie''
2. It is also said that ''Truth sits on the lips of a person who is about to die''.
3. The victim is exclusive eye witness and hence such evidence should not be excluded.
(P.V. Radhakrishna v. State of Karnataka, Criminal Appeal No. 1018/2002 Decided by
Hon'ble Apex Court On 25.07.2003)

1. In Ram Nath v. State of Madhya Pradesh (AIR 1953 SC 420), Hon'ble Supreme
Court held that: It is settled law that it is not safe to convict an accused person merely
on the evidence of a dying declaration without further corroboration because such a
statement is not made on oath and is not subject to cross-examination and because the
maker of it might be mentally or physically in a state of compassion and might be
drawing upon his imagination while he was making the declaration. Thus, the
Supreme Court has laid a stress, as a safeguard, on corroboration of the dying
declaration before it is acted upon.
 2. But later in Khushal Rao v. State of Bombay (1958 SCR 552), Hon'ble Apex Court
held this observation to be in the nature of obiter dicta and observed that, "It cannot
be laid down as an absolute rule of law that a dying declaration cannot form the sole
basis of the conviction unless it is corroborated."
3. Thereafter, in Harbans Singh V. State of Punjab (1962 AIR 439), Hon'ble Supreme
Court held that, "It is neither a rule of law nor of prudence that a dying declaration
requires corroboration by other evidence before a conviction can be based thereon."
4. Thenceforth, further in State of U. P. v. Ram Sagar Yadav (1985 AIR 416) Hon'ble
Supreme Court observed that, “The primary effort of the court is to find out whether
the dying declaration is true. If it is, no question of corroboration arises. It is only if
the circumstances surrounding the dying declaration are not clear or convincing then
the court may, for its assurance, look for corroboration to the dying declaration.”

CASE LAWS FOR ACQUITTAL

1. SURINDER KUMAR V. STATE OF HARYANA (2011 SCC 10 173): -

 Though there is neither a rule of law nor of prudence that dying declaration cannot be acted

upon without corroboration but the court must be satisfied that the dying declaration is true
and voluntary and, in that event, there is no impediment in basing conviction on it, without
corroboration. It is the duty of the court to scrutinise the dying declaration carefully and must
ensure that the declaration is not the result of tutoring, prompting or imagination. Where
a dying declaration is suspicious, it should not be acted upon without corroborative evidence.
Likewise, where the deceased was unconscious and could never make any declaration the
evidence with regard to it is rejected. The dying declaration which suffers from infirmity
cannot form the basis of conviction. All these principles have been fully adhered to by the
trial court and rightly acquitted the accused and on wrong assumption the High Court
interfered with the order of acquittal.

 Inasmuch as the acquittal by the trial court and conviction by the High Court is solely based
on the dying declaration, in view of our above discussion, there is no need to traverse the
evidence and other factual details. In view of the infirmities pointed out above, and
contradictions as to the occurrence, failure on the part of the Executive Magistrate in
obtaining certificate as to whether Kamlesh Rani had made a voluntary statement and not
attested by any doctor and also his statement which is contradictory to that of the deceased
Kamlesh Rani and of the fact that at the relevant time she was under the influence of Fortwin
and Pethidine injections and was not supposed to be having normal alertness, as rightly
observed by the trial court, we hold that the dying declaration, Ext. PD does not inspire
confidence in the mind of the Court. Inasmuch as the dying declaration is the only piece of
evidence put forward against the accused in the light of our discussion and reasoning, the
accused Surinder Kumar is entitled to the benefit of doubt.

2. WAIKHOM YAIMA SINGH V. STATE OF MANIPUR (2011 ACR SC 2 2364):-

 There can be no dispute that the dying declaration can be the sole basis for conviction,
however, such a dying declaration has to be proved to be wholly reliable, voluntary and
truthful and further that the maker thereof must be in a fit medical condition to make it. The
oral dying declaration is a weak kind of evidence, where the exact words uttered by the
deceased are not available, particularly because of the failure of memory of the witnesses
who are said to have heard it. In the present case also, the exact words are not available. They
differ from witness to witness. Some witnesses say about the name of the village of the
appellant having been uttered by the deceased and some others do not. Further, Dr.
Ningombam Shyamjai Singh (PW 12) was also not cross-examined by the Public Prosecutor
in this case about the medical condition of the deceased and further fact as to whether he was
in a fit condition to make any statement.

The High Court has ignored the fact that if in reality the dying declaration had been made and
L. Ningthouren Singh (PW 14) was informed about the name of the assailant, he would have
never failed to mention the same in the FIR. The reliance of the High Court on the decision
in Ravi Kumar v. State Of Punjab. AIR 2005 SC 1929 is wholly uncalled for. In our opinion,
therefore, the High Court was wholly wrong in observing that the dying declaration was
creditworthy and that the trial court had erred in acquitting the accused.

25. The judgment of the High Court is, therefore, set aside and that of the trial court is
restored confirming the acquittal of the appellant-accused. The appellant shall be set at liberty
forthwith unless required in any other matter.
 3. SAMPAT BABSO KALE AND ANOTHER V. STATE OF MAHARASHTRA
(2019 SCC 4 739):-

In the present case, as we have already held above, there was some doubt as to whether the
victim was in a fit state of mind to make the statement. No doubt, the doctor had stated that
she was in a fit state of mind but he himself had, in his evidence, admitted that in the case of
a victim with 98% burns, the shock may lead to delusion. Furthermore, in our view, the
combined effect of the trauma with the administration of painkillers could lead to a case of
possible delusion, and therefore, there is a need to look for corroborative evidence in the
present case.

 Another factor which needs to be taken into consideration is that none of the witnesses from
the neighbourhood have been examined. Even as per the prosecution case it was the
neighbours who first raised an alarm. There is no explanation why none of them have been
examined. It is also the prosecution case that the accused husband along with another
neighbour went to the hospital to arrange for an ambulance. This person has not been
examined. The non-examination of these important witnesses leads to non-corroboration of
the dying declaration. The best witnesses would have been the neighbours who reached the
spot immediately after the occurrence. They would have been the best persons to state as to
whether the victim told them anything about the occurrence or not.

4. STATE OF RAJASTHAN V. SHRAVAN RAM AND ANOTHER (2013 AIR SC

1890):-

We have gone through both the dying declarations and there are not only material
contradictions in both the declarations but also inter se discrepancies in the depositions of the
witnesses as well. In the first dying declaration recorded by the ASI, signed by PW 13, there
is no mention of the names of any of the accused persons and the deceased had stated that she
could not recognise the person who set her ablaze even though the declaration was in
consonance with Rule 6.22 of the Rajasthan Police Rules, 1965.

So far as the statement of PW 3 Prem Chand recorded under Section 161 CrPC marked as
Ext. P-6 is concerned, the deceased was only abusing her father-in-law and that was not even
corroborated by PW 4 or PW 5 and PW 3 himself turned hostile. Due to discrepancies and
contradictions between the two dying declarations and also in the absence of any other
reliable evidence, in our view, the High Court is justified in reversing the order of conviction
which calls for no interference by this Court. In view of above, the appeal is, therefore,
dismissed.