ADMISSIBILITY OF DYING DECLARATION UNDER THE LAW OF EVIDENCE

Dying declaration (hereinafter referred as DD) can be defined as any oral or document any statement made by a person which is related to causing his death. Section 32 of the evidence act 1872 deals with the concept of dying declaration. As an exception to the general rule of Hearsay, DD are admissible under section 32 of the said act[1]. Statements of a person can be written or verbal. Such statements of a person who is dead are only relevant when it relates to the cause of his death. However, to get accepted by the court, the dying declaration must pass the rigorous test. The rigorous test is laid down in many judicial pronouncements such as in Mohammed Jamil Uddin Nasir v. State of West Bengal[2]. However, nowhere under section 32 is mentioned that dying declaration should be made in presence of a magistrate. However, if a magistrate record DD of any person then it should be in a form of question and answers[3]. The DD should include the exact words uttered by the person. In general, the evidence which cannot be tested by cross-examination of witnesses is not admissible but the DD is admissible as per section 32 clause (1).

Dying declaration in Indian law versus English rule

In India, DD is admissible in all civil and criminal proceedings, however, in English law, it is only admissible in criminal charges such as a charge of homicide or manslaughter. In English law or only in case of the sense of impending death, a declaration can be made. Where are in Indian law, sense of impending death at the time of making decoration is not necessary. In English law relevancy of DD is based on the fact that such person making declaration must be in a hopeless condition. There must be a full apprehension of death or actual danger of death. The principle of dying declaration is based on the fact that a man will not meet his maker with a lie in his mouth[4]. There is no particular for prescribe to record a dying declaration. In the case of J. Ramulu v. State of Andhra Pradesh[5], the dying declaration of the deceased was recorded with the help of his signs and gestures.

How to increase the value of dying declaration

There are few circumstances which increase the strength of it:

• When it is recorded after taking all proper precautions by a complete magistrate.
• When there is no colour impression received by others.
• When it is made just after the assault and disease had opportunity of observation.
• The disease must not be under any pressure or fear while making a statement.
• Exact words spoken by the deceased must be taken down.
• The statement made must be consistent as to circumstances of the occurrence.

In the case of the DD, the court has no power of cross-examination. However, the court has to be on guard that the statement of the deceased it was not made in the unfit state of mind. Conviction and further proceedings can we have done only when the declaration was true and voluntary. The admissibility of dying declaration is based on the principle of necessity. However, a dying declaration made before a judicial magistrate has high evidentiary value and he must know how to record a DD. In Paniben v. State of Gujarat[6] supreme court laid down certain guidelines about acceptance of DD:-

• No rule of law dying declaration cannot be acted upon without out corroboration.
• a conviction can be done on basis of dying declaration only if the court is satisfied that the dying declaration is true.
• Cooperative evidence is required where a dying declaration is suspicious[7].
• Dying declaration cannot be rejected merely on the ground that it does not have details of the occurrence.
• A conviction cannot be done on basis of DD which contains infirmity.

Conviction on basis of dying declaration

conviction on basis of the dying declaration can be held only if the truthfulness of dying declaration is accepted in the court as held in Vithal Somnath more v. State of Maharashtra[8]. It must pass the test of scrutiny to be accepted as the basis of conviction. Corroboration is not needed when the dying declaration is true and voluntary as held in the state of Rajasthan v. Wakteng[9].

Proof of dying declaration

The only way to prove it is to examine the person who recorded it. A person who recorded it or examine the person or a person who had heard the statement. Prove that the person who has made dying declaration is dead must be given before exam meaning the person who recorded it. The burden of proof lies upon the person wishes to state evidence. Apart from this the dying declaration must be accepted or rejected as a whole[10]. It means that when the integral part of it is false then the residual part of such dying declaration cannot be accepted.

Conclusion

A dying declaration is an exception of the rule of Hearsay. However, it is one of the most important admissible evidence in the court of law. The dying declaration should be recorded carefully and it should be true and voluntary. However, it is a discretion of the court to check whether it is recorded carefully or not. The admissibility is based on many factors as stated under section 32 of the Act.

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[1] Ravi Kumar v. State of Tamil Nadu AIR 2006 SC 1448.

[2] (2014) 7SCC 443

[3] Rabi Chandra Padhan v. State of Orissa (1980)

[4] Bhajju v. State of M.P (2012) AIR 1963 SCW

[5] AIR 2008 SC 1505

[6] AIR 1992 SC 1817

[7] Rasheed Beg v. State of M.P (1974) 4SCC 264

[8] AIR 1978 SC 519

[9] (2007) 14 SCC 550 (554)(para 14)

[10] Kishan Singmansa Singh v. State, AIR 1963

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