Dying Declaration-Sec 32(1) of Indian Evidence Act,1872.
A dying declaration is a declaration or statement written or verbal made by a person as to the cause of his/her death, or as to any of the circumstances of that transaction which resulted in his/her death. It is a statement, which must have been made by the deceased before his death.
Dying declarations are statements made by a dying person as to the injurious which culminated in his death or the circumstances under which the injuries were inflicted.
A dying declaration applies to both civil and criminal matters. A dying declaration is considered only when the person is going to die or he has knowledge about the injury that he will die definitely.
Section 32 makes admissible, the statement of a person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause of death or deals with circumstances leading to death.
Law Relating to Dying Declaration
Section 32(1) of the Evidence Act states “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 the expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question”.
Basis of dying declaration
1) The doctrine of necessity: This rule applies to both in India and England. The person who has died is the source to tell the cause of his injury. Since he is already dead it becomes necessary to admit his statement regarding the cause of his death.
2) Nemo morititurur presumutur mentire: No person will die with a lie in his lips. “Truth sits upon the lips of dying men”. In India, since it is not required that a person should know that he is about to die, the above maxim is not essential in India but in England it is essential. In India in those cases wherein the person knew that he is about to die the above maxim will be applicable.
Essentials or conditions for relevancy or admissibility of dying declaration.
(1)The declarant must have died: The first condition is that the person who made the declaration must be read. If the person making dying declaration chances to live, his statement is inadmissible as a dying declaration under section 32(1), but it might be relied on under the provision of section 157, to corroborate his testimony when examined and also under section 155 for the purpose of contradiction or can be used as an admission under section 23 of the evidence act, or is relevant and admissible as re gestae u/s 6 of Indian evidence act.
(2) The dying declaration must be a statement: Written and verbal. The word ‘statement’ means that which is stated. It may be in written or oral form.
The dying declaration is not a statement that requires it to be in writing. Oral evidence would prove the declaration ‘verbal’ means by words. It is not necessary that the words should be spoken, but also includes gestures unable to such as a nod or a shake of the head made by a dying man, speaking, in answer to questions put to him.
(3) Injuries are the cause of his death: Before the statement of a person as to the cause of his death may be used as a dying declaration it must be proved that his death was caused by the injury he received in the incident for which accused is being prosecuted. If a person dies not on account of injuries that are inflicted on him but on account of some other reasons or ailment the dying declaration would not be admissible.
(4) Circumstances of the transaction which resulted in his death: The words ‘resulted in his death do not mean ’cause his death. The expression “any of the circumstances of the transaction which resulted in his death” is wide enough to include the motive of the alleged Crime. When motive was tried to be inferred by the prosecution from the statement made by the deceased.
A dying declaration would be relevant in any proceedings, Civil or Criminal.
(5) The Cause of the death of the question: where the cause of death comes into question. Wherever the cause of the person’s death is a point at issue, the statement will be admissible the transaction which resulted in his death is relevant.
The nature of the statement as to the cause of death or as to any circumstances of proceeding in which the cause of his death comes into question need not necessarily be a charge of murder or homicide. It may be a charge of a different nature or it may be a civil action. The only material point is that the cause of the deceased’s death must come into question irrespective of the nature of the proceeding in which it comes into question. The mere fact that the charge of murder failed would not make the statement inadmissible.
In Ratan Goud v State of Bihar [AIR 1959 SC 18], it has been held that the statement of the deceased did not relate to the cause of her death or any of the circumstances related to her death; on the contrary, the statements related to the death of her sister and they were not admissible under section 32(1) of the Evidence Act.
(6) The declaration must be complete: A dying is complete, from the point of view of the declarant. It he had said all that he wanted to say it would be relevant. But it happens that after making the same statements he is about to state something more when he becomes unconscious and dies, the statement would be an incomplete dying declaration and therefore will not be relevant.
(7) Declaration is taken as a whole: Though there is a controversy on this point, in some cases it has been held that it must be taken as a whole.
(8) Declaration should be precise: Dying declaration should be short, concise, and to the point. A detailed statement covering the minutest details could not be expected from the declarant who is under severe stress and agony. The mere fact that the dying declaration did not contain a detailed version of the occurrence was no ground to disbelieve it.
(9) The declarant must be competent: The person who is making a dying declaration must be competent. Even a dying declaration made by an infant is admissible but the competency of the minor has to be determined in terms of section 118 of the Evidence Act.
(10) The declarant must be in a fit condition: Before a dying declaration is sought to be proved under sec. 32(1), it must be shown that the declarant was in a fit state of mind.
Importance of dying declaration
The probative value of dying declaration evidence is the weight to be given to it which has to be judged having regard to the facts and circumstances of each case. A dying declaration made by a person who is dead as to the cause of his death or death, in the case in which the cause of his death comes into question, is relevant as to any of the circumstances of the transaction which resulted in his under section 32 of the Evidence Act and is also admissible in evidence.
Though a dying declaration is an indirect evidence being a specie of hearsay, it is an exception to the rule against the admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence no corroboration for forming the basis of the conviction of an accused.
Can a declaration be the sole basis of conviction?
If the dying declaration had been formally recorded and it did not have any discrepancies then it may amount to a sole basis of conviction. A perfect dying declaration will be where it has been documented in a question-answer form and the recording about the timing etc is perfect plus the doctor’s certificate of fitness is also there. However, the rule of prudence is that some corroboration should be found in the dying declaration.
If there is an oral dying declaration coupled with the written dying declaration and if the declaration is the same then the oral dying declaration will corroborate the written one and it will increase the evidentiary value .