DYING DECLARATION

DYING DECLARATION

Criminal Law Indian Evidence LAW EXPLAINED
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INTRODUCTION

The term “dying declaration” is itself explaining its meaning as- some declaration by died man, under legal context it represents as an oral or verbal statement from the dying man who is declaring the reasons of death, it came into the ambit of evidence under the Law of evidence because there is a belief that the person who is about to die never tells a lie and based on this believable fact it becomes one of the exceptions of “Hearsay evidence”.

These forms of evidence are admissible in our system only after ensuring the fact that the particular person is no more but at the moment there is even one percent chance of his recovery the particular statement gets lost its validity as evidence under the Indian Evidence Act.

PROVISIONS USED

According to Section 32 in The Indian Evidence Act, 1872- 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:—

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.[1]

Section 32 has many other clauses also but according to the term “Dying declaration” here we just need to discuss the clause (1) which specifically deals with the statement of dying man in pursuance of death or even in pursuance of other circumstances related to the death of the person.

TYPES OF DECLARATION

There are several modes allowed to the deceased person so that the hurdles during the declaration can be avoided-

  • Question-Answer form-  It is not a mandatory requirement that the statement should be in a question-answer form and the natural story as declared by the person is also considered as a better means because the natural story is the same words of deceased.
  • Language of the statement- There are no restrictions on the kinds of language which can be used while declaring the statement it can be either in English, Tamil, Marathi, Urdu or in many other languages, but at the situation when deceased has given the statement in one language and it was recorded by the authority in another language then it needs to properly support by valid precautions.
  • Signs and Gestures- While stating the statement if a person is not able to speak and write then he can express his words through signs and gestures as it is also considered one of the modes of communication. Also in one of the known
  • Oral and written declaration-  A statement either written or oral both are acceptable but should be out of the category of Hearsay and has to be considered with care and caution.
  • Thumb Impression- In the case of dying declaration by 99% burn person, the authentication of the statement always remains in doubt.
  • Incomplete Statement- In the situation where deceased died while giving his statement or not able to complete the main sentence then that statement is not able to present as evidence in court but if he succeeds in unfolding all of the relevant declarations and just left with some points of information then it could be present in the court.

AUTHORITY TO RECORD THE STATEMENT-

In “Cherlopalli Cheliminabi Saheb vs. State of Andhra Pradesh”, the court held that it was not mandatory that in every case, the dying declaration to be recorded only by a magistrate as it would depend on the facts and circumstance of the case. It further gets reiterated at “Dhan Singh vs the State of Haryana” where Supreme-court observed that neither Section 32 of the Evidence Act nor Section 162(2) of the CRPC mandate that the dying declaration has to be recorded by a designated person but by the virtue of guidelines settled by the judicial pronouncements it is normally accepted that such declaration would be recorded by a magistrate or by a doctor to eliminate the chances of any doubt or false implication by the prosecution during the investigation.[2]

Mandates for declaration– 

There are few required mandated which needs to be followed while presenting the declaration as evidence in the court of law- 

  1. The declaration should be made voluntarily, unprompted, untutored, in a natural way.[3]The person authorized to record the dying declaration must be fully satisfied that the declarer is in a fair state of mind with a capability to make such a statement
  2. The condition of “Fair state of mind” depends upon the discretion of the individual recording the statement for which there is no requirement of a doctor’s certificate.[4] Also, Supreme-court observed that there is no need for the certificate by a Doctor. However, the person who records the dying declaration must ensure that the patient was in a fit condition, both mentally and physically, to give the declaration.[5]
  3. The court must be satisfied that the declaration is truthful and was made in the absence of the accused who had no opportunity to test its accuracy by cross-examination.[6]

Law does not mandate that the maker of the dying declaration must cover the whole incident or narrate the case history but what is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its term or its tenor.[7]

NON-ADMISSIBILITY AS EVIDENCE– 

If the statement is not recorded according to the mandates describes by the court then do lose their capacity to get presents as evidence in court-

  • If the statement of the deceased are recorded at the time when the mental condition of the deceased was doubtful then that is of no avail to the defense.[8]

In another case of dying declaration by burned-bride, it was found that statement was recorded by investigating officers and not by a Magistrate or by a doctor.

  • It was not signed by the deponent and not proved to be incapacitated to sign by the burn injuries. The time of the statement was not indicated in the document, none of the relatives was present at the time of recording. The fitness of the deponent to make the dying declaration was also doubtful. Therefore, taking into consideration the particular facts of the case, the dying declaration was not found acceptable.[9]

CONCLUSION-

The introduction of Dying Declaration as one of the forms of evidence under Indian Evidence Act is a righteous step take by the courts because it provides a fair opportunity to the deceased person who is on the bed of death and unavailable to testify in court to fight for the justice and present the circumstances of his death in front of the court also it is effective because sometimes deceased was the only eye-witness of the incident and after his death due to unavailability of evidence and unacceptability of hearsay statements the case gets shut on its place and culprit gets another occasion to take another life in exchange of nothing.

Sources:

[1] https://indiankanoon.org/doc/1959734/

[2] Prabhash Sharma & Anr. vs State on 1 June 2012

[3] Harshad @ Hasmukh Bhanabhai vs State Of Gujarat on 21 November 1998

[4]http://timesofindia.indiatimes.com/articleshow/20237310.cms utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

[5] Jagbir Singh v. State (N.C.T of Delhi) 

[6] In Thurukanni Pompiah v. State of Mysore

[7]Munnu Raja v. State of M.P.,

[8]  Dalip Singh v. State of Punjab AIR 1979 SC 1173

[9]  State v. Laxman Kumar

This blog is written by Anjali Tripathi, Nirma University

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