By Harpreet Kaur, Advocate
“Truth sits on the lips of a person who is about to die”
A Dying Declaration means the statement of a person who has died explaining the circumstances of his death. It can be said to be a statement made by a mortally injured person, indicating who has injured them and/or the circumstances surrounding their injury. The injured is aware that he/she is about to die and while the declaration is hearsay, it is admissible since it is believed that the dying person does not have any reason to lie.
Such a statement can be proved when it 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. The statement will be relevant in every case or proceeding in which the cause of that person’s death comes into question.
Clause (1) of section 32 of the Evidence Act provides for the ‘dying declaration’ which is incorporated from the English Law principle. Section 32(1) reads as under:
- 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:-
(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 expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(a) The question is, whether A was murdered by B; or
A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or
The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.
Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.
If as a result thereof, the Court is satisfied that the statement made by a person who is now dead is relevant, the same becomes admissible in terms of Sub-section, (1) of Section 32 of the Evidence Act.
As to be cause of his death
Under Section 32(1), the statement of an injured person who subsequently dies, will be relevant only if it is made by him as to the cause of his death. It must not relate to the cause of death of any other person’s death. In a case, the accused was charged with the murder. One of the piece of evidence against him was the statement of deceased’s sister, who also died subsequently. As a result of her statement, the victim’s dead body was recovered. The question was whether her statement was relevant? The Supreme Court held that it was not admissible under section 32(1) as it did not relate to the cause of her own death but to that of her sister.
Similarly, the declarant’s death must be proved beyond doubt to have been caused by the injuries received by him in the incident in question. In case it is proved that he died of some other cause, it would not be admissible under clause (1) of section 32. For example, the prisoner was convicted on the basis of dying declaration of a person who received two shot wounds during the occurrence. Although his dying declaration was recorded, but he died 20 days after he had left the hospital. There was no evidence to show that he died of the injuries received by him at the said incident. On the question of admissibility of the dying declaration, the Supreme Court held that when the dead person in the present case was not proved to have died as a result of injuries received in the incident, his statement cannot be said to be a statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. So, they held his statement to be inadmissible under section 32.
Circumstances of the transaction which resulted in his death
The other important condition for the admissibility of a statement as a dying declaration is that it must relate to the circumstances of the transaction which resulted in his death. This was vividly explained by the Privy Council in the Case of Pakala Narayana Swami v. The Emperor. The facts of the case were that the accused had borrowed Rs. 3000 from the deceased during 1936. On 20th March, 1937, the deceased received a letter from the accused inviting him to come that day or next to Behrampur. The deceased left his house on 21st March, 1037 in time to catch the train for Behrampur. But he did not come back. On 23rd March, 1937, at about noon, his dead body was found in a steel trunk in a third class compartment at Puri. The dead body was identified by the widow. The accused was tried and convicted for murder and sentenced to death. During the trial, the widow of the deceased stated before the Court that on that day her husband showed her a letter and said that he was going to Behrampur as the appellant’s wife had written to him and told him to go and receive payment for his dues. This statement was objected by the appellant because it was not a statement after the transaction or the injury. Their Lordships of the Privy Coucil held them to be admissible because it related to the circumstances of the transaction which resulted in his death and so, it was rightly admitted under section 32(1). In this connection, the observations made by the Lord Atkin are worth noting:
“The phrase ‘circumstance of transaction’, no doubt, conveys some limitations. It is not as broad as the analogous use n ‘circumstantial evidence’ which includes the evidence of all facts. It is on the other hand narrower. Circumstances must have some proximate relation to the actual occurrence though as for instance in a case of prolonged poisoning, they may be related to dates at a considerable distance from the date of actual dose.”
Further His Lordship said-
“The circumstances must be the circumstances of the transaction in general 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 statements made by the deceased that he was proceeding to the spot where he was in fact killed or as to the 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. The statement under this clause may be made before the cause of death has arisen or before the deceased has reason to anticipate being killed.”
Dying declarations are statements oral or documentary made by the person as to the cause of his death or as to the circumstances of the transactions resulting in his death. The grounds of admission of a dying declaration are:
Firstly, necessity, for the victim being generally the only principal eye-witness to the crime, the exclusion of his statement might defeat the ends of justice; and
The general 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 has gone, when every motive to falsehood is silence and the mind is induced by the most powerful consideration to speak the truth; a situation so solemn and so lawful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.
Exclusion of his statement would tend to defeat the ends of justice. If the truthfulness of a dying declaration is beyond doubt, the conviction can be held solely upon it.
Nemo moriturus praesumitur mentire- It implies that a man who is on death bed would not tell a lie to falsely implicate innocent person. No one at the point of death is presumed to lie because A man will not meet his Maker with a lie in his mouth— is the philosophy in law underlying admittance in evidence of dying declaration. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration.
It is not always necessary that a dying declaration should be certified by a doctor before reliance could be placed on the same. But then in the absence of any such certificate, the Courts should be satisfied that from the material on record it is safe to place reliance on such uncertified declaration.
Unless the statement of a dead person would fall within the preview of Section 32(1) of the Indian Evidence Act, there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible (written or oral), the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question.
Form of dying declaration
There is no format as such of dying declaration neither the declaration need to be of any longish nature or neatly structured. As a matter of fact, perfect wording and neatly structured dying declaration bring about an adverse impression and create a suspicion in the mind of the Court since dying declarations need not be drawn with mathematical precision. The declarant should be able to recollect the situation resulting in the available state of affairs.
A dying declaration may be in the following forms:
- Written form;
- Verbal form;
- Gestures and Signs form. In the case ”Queen vs Abdulla”, it was held that if the injured person is unable to speak, he can make dying declaration by signs and gestures in response to the question.
- If a person is not capable of speaking or writing he can make a gesture in the form of yes or no by nodding and even such type of dying declaration is valid.
- It is preferred that it should be written in the vernacular which the patient understands and speaks.
- A dying declaration may be in the form of narrations. In case of a dying declaration is recorded in the form of narrations, nothing is being prompted and everything is coming as such from the mind of the person making it.
To Strengthen the Value of a Dying Declaration
By enacting section 32 the Legislature in its wisdom has placed a dying declaration on par with evidence on oath for the reason that at the time when a man is in danger of losing himself it is not likely that he would speak a falsehood and involve an innocent person. There is no absolute rule of law nor is there any rule of prudence which has ripened into a rule of law that a dying declaration cannot form the sole basis of a conviction unless it is corroborated by independent evidence. The circumstances which lend strength and assurance to a dying declaration are as follows:
- That it was recorded by a competent Magistrate after taking all proper precautions.
- That it was taken down in the exact words in which it was spoken.
- That it was made shortly after the assault when there was no opportunity of its being coloured by impressions received from others.
- That deceased had ample opportunity of observation.
- That the incident happened in a sufficiently lighted place.
- That the deceased had made more than one statement and all of them were consistent as to the circumstances of the occurrence and the identity of the attackers.
Essential conditions for the admissibility of dying declaration
To whom the statement is to be made and its form:-
A statement of dying declaration could be made to any person – a doctor, a Magistrate, a friend or near relative, a police officer. However, a statement recorded by a Magistrate or doctor is considered more reliable, and that recorded by a police officer or close relative not (require more scrutiny).
No particular form of recording a statement is prescribed. The statement could be written, oral or even verbal (e.g., gestures). In Queen Empress v. Abdullah; where the throat of the deceased girl was cut and she being unable to speak indicated the name of the accused by the signs of her hand, this was held to be relevant as dying declaration.
The person making the statement must have died:-
The death need not occur immediately after the making of the statement. However, the death must occur. If the persons making the declaration chances to live, his statement is inadmissible as a dying declaration, but it might be relied under section 157 to corroborate his testimony when examined. Such a statement can also be used to contradict him under section 145. Further, it can be used to corroborate the evidence in Court under sections 6 and 8. The fact that the person is dead must be proved by the person proposing to give evidence of his statement.
The Supreme Court in Ramprasad v. State of Maharashtra observed that at the time when declarant gave the statement he would have been under expectation of death but that is not sufficient to wiggle it into the cassette of section 32 of Evidence Act, 1872. As long as the maker of the statement is alive it would remain only in the realm of a statement recorded during investigation. It was held, that if a person making a dying declaration survives his statement cannot be used as evidence under section 32 of the Act.
Statement must relate to the cause of his death or the circumstances of the transaction which resulted in his death:-
If the statement made by the deceased does not relate to his death, but to the death of another, it is not relevant. For example, where the wife made a statement that her husband is killed by Z and then she committed the suicide.
The circumstances of transaction resulting in death must bear proximate relation to the cause of death or actual occurrence. The general expressions indicating fear or suspicion, whether of a particular individual or otherwise and not directly related to the occasion of death will not be admissible. But, statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, would to each of them be circumstances of the transaction.
The cause of death must be in question:-
The declaration under section 32(1) must relate to the death of the declarant. In Dannu Singh v. Emperor, A and five other persons were charged with having committed a dacoity in a village. A, who was seriously wounded while being arrested, made before his death a dying declaration as to how the dacoity was committed and who had taken part in it. It was held that declaration was not admissible in evidence against other persons, as it does not relate to his death, but relates to participation of his associates in the dacoity.
The statement must be complete and consistent:-
If the deceased fails to complete the main sentence (as for instance, the genesis or the motive for the crime), a dying declaration would be unreliable. However, if the deceased has narrated the full story, but fails to answer the last question as to what more he wanted to say, the declaration can be relied upon.
A dying declaration ought not to be rejected because it does not contain details or suffers from minor inconsistencies. Merely because it is a brief statement, it is not to be discharged. Shortness, in fact, guaranteed truth.
Declarant must be competent as a witness:-
It is necessary for the relevancy of a dying declaration that the declarant, if he had lived on, would have been competent witness. Thus, in a prosecution for the murder of a child, aged four years, it was proposed to put in evidence, as a dying declaration, what the child said shortly before her death. The declaration was held to be inadmissible.
Where the injured person was unconscious, dying declaration should be rejected. Where for some unexplained reasons the person who noted down (scribe) the statement was not produced, the declaration was not accepted as an evidence.
Where an injured person lodged the F.I.R. and then died, it was held to be relevant as dying declaration.
Circumstances when a dying declaration is meaningless
Following are the circumstances when a dying declaration held meaningless:
(i)When the relatives of the declarant arrange with him as to what he has to say.
(ii)When the maker of a dying declaration is proved to have been unconscious or semi-conscious at the spot and died a few minutes after the making of the
(iii)Where there is clear discrepancy between the facts mentioned in the dying declaration and those in the statements of the witness.
(iv)When a dying declaration contradicts itself in its various parts.
(v)Where the identity of accused could not be established through the dying declaration.
Abrupt Ending/ Incomplete
When the dying declaration abruptly ends, due to deteriorating condition of the patient then this cannot affect the evidentiary value of the dying declaration since it is complete in so far as the appellant’s role is concerned.
However, where the condition of the deceased had become grave and a statement made by him in the presence of the doctor was taken down by the police but it could not be completed as he fell into coma from he did not recover and died subsequently, the dying declaration was held to be inadmissible because upon the face of it was incomplete and no one can tell what the deceased was about to add.
Better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting a better method.
The practice of Investigating Officer himself recording the dying declaration during the course of investigation ought not to be encouraged and it would be better to have dying declaration recorded by magistrate. But no hard and fast rule can be laid down in this regard. It all depends upon the facts and circumstances of the case.
Dying declaration recorded by a police officer if found truthful may base conviction.
There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when it is recorded by a magistrate, there is no statutory form for such recording. The evidentiary value depends on facts and circumstances of each particular case. The person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. A certification of doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise. This is a well settled rule now, by this Constitution Bench judgment of the Supreme Court.
Section 32 of the Indian Evidence Act nowhere states that the dying declaration must be recorded in the presence of a Magistrate or in other words no statement which has not been recorded before the Magistrate cannot be treated to be a dying declaration.
It is well settled that dying declarations shall have to be dealt with due care and upon proper circumspection. Though corroboration thereof not essential as such, but its introduction is otherwise expedient to strengthen the evidential value of the declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of the dying declaration as a trustworthy piece of evidence.
It is rarely found in a criminal case that the description of the incident and injury described in the dying declaration gets full corroboration from the medical evidence contained in the injury report and the post-mortem report. In such cases, still the dying declaration can be relied upon.
Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
Need for corroboration.–
Where the dying declaration is believed to be true, consistent and coherent, it can be relied upon for conviction, even if there was no corroboration.
In Lallubhai Devchand Shah v. State of Gujarat, a married woman was burnt to death by her in-laws, her dying declaration was accepted and conviction was based solely on the basis of the declaration. It was held that if the truthfulness of a dying declaration is accepted, it can always form the basis of conviction of the accused. The Court, in the present case, thus convicted the appellants on the basis of the dying declaration.
In the recent decision, the Supreme Court observed that, dying declaration though an exception to the hearsay rule, but like any other evidence, it has to pass the test of credibility. If found reliable, it can be the basis of conviction. It can be acted upon in reference to one accused though not in reference to others. However, it is well-settled that if the truthfulness of dying declaration cannot be doubted, the same alone can form the basis of conviction without any corroboration.
It is trite law that when the maker of a purported dying declaration survives, the same is not statement u/s 32 of the Indian Evidence Act but is a statement in terms of Section 164 of the Cr.P.C. It can be used under section 157 of the evidence Act for the purpose of corroboration and under Section 155 of the evidence Act for the purpose of contradiction.
It was held in Tahsildar Singh v. State that the Court will be prevented from taking notice of a dying declaration of a person who has survived and has not been examined in the case.
English Law vis-a vis Indian Law
- Under English Law, a dying declaration is admissible only on a criminal charge of homicide or manslaughter, whereas in India it is admissible in all proceedings, civil or criminal.
- Under the English Law, credence and the relevancy of a dying Declaration is only where a person making such a statement is in a hopeless condition and is expecting imminent death. So under the English Law, for its admissibility, the declarant should have been in actual danger of death at the time when they are made, and that he should have had a full apprehension of this danger and the death should have ensued. The admissibility rests on the principle that a sense of impending death produces in a man’s mind the same feeling as that of a conscientious and a virtuous man under oath. If evidence in a case reveals that the declarant has reached this state while making a declaration then within the sphere of Indian Law, while testing the credibility of such dying declaration, weightage can be given, of course, depending on the other relevant facts and circumstances of the case. However, under the Indian Law, the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration.
- Under the English Law, the declaration must have been competent as a witness, thus, imbecility of tender age will exclude the declaration. It is, however, doubtful whether this rule is applicable in India. The credit of such a declarant may be impeached in the same way as that of witness actually examined in a court.
Two Dying Declarations
When there are two dying declarations and there was inconsistency between them and there was no other evidence evidence to prove the prosecution case, it was not safe to act solely on the said declarations to convict the accused persons.
Where two dying declarations were giving contrary versions, one dying declaration duly recorded by the doctor in presence of two other doctors stating that she was burnt by her mother-in-law and husband for failure to bring dowry. Second declaration not proved by competent witness, cannot be relied upon, and accused convicted on the dying declaration recorded by doctor.
Where the bride recorded two declarations, one to a police officer and other to a Magistrate, they being similar in material factors, evidence accepted though minor discrepancies were there.
In Kamla v. State of Punjab, four dying declarations were made by the deceased. One of them indicated the incident as an accident. The accused (mother-in-law of the deceased) had been convicted on the basis of another declaration implicating her. The court also found glaring inconsistencies as far as naming the culprit was concerned. On facts it was held that the conviction cannot be based upon such declarations.
Where there are more than one declaration, the one first in point of time should be preferred; Mohanlal Gangaram Gehani v. State of Maharashtra.
Important Case Laws
Pakala Narayan Swami Case-
In Pakala Narayan Swami v. Emperor which is a leading and landmark case on the subject that we are dealing. In this case the Privy Council observed thus:
“The circumstances must have some proximate relation to the actual circumstances to prove a dying declaration.”
Moreover, it was noted by the Lord Atkin that “the circumstances must be the circumstances of the transaction in general 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 statements made by the deceased that he was proceeding to the spot where he was in fact killed or as to the 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. The statement under this clause may be made before the cause of death has arisen or before the deceased has reason to anticipate being killed.”
Khushal Rao Case–
In Khushal Rao v. State of Bombay, the deceased made four separate and identical declarations before the doctor, police inspector, Magistrate, and to other person, stating that he has been assaulted by Kaushal and one other person. The question was whether the accused could be convicted only on the basis of this declaration or the declaration needed corroboration. There are divergent views of different High Courts in this regard. According to Bombay High Court, dying declaration is a weaker type of evidence and require corroboration. According to Calcutta High Court, it is not permissible to accept a declaration in one part and reject the other part. According to Madras High Court, a declaration can be relied without corroboration, if the court is convinced of its truth, i.e., there is no suspicion of its credibility.
The Supreme Court, agreeing with Madras High Court, laid down the following principles:
(1)There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated.
(2)Each case must be determined on its own facts keeping in view the circumstance in which the dying declaration was made.
(3)A dying declaration is not a weaker kind of evidence than any other piece of evidence. It stands on the same footing as any other piece of evidence.
(4)A dying declaration cannot be equated with a confession or evidence of approver, as it may not come from a tainted source. If it is made by the person whose antecedents are as doubtful as in the other cases that may be a ground for looking upon it with suspicion.
(5)Necessity of corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact the Court in a particular case came to the conclusion that a particular declaration is not free from infirmities.
(6)To test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man’s observation, e.g., whether there was sufficient light if the crime was committed at night; whether the capacity of the declarant was not impaired at the time of the statement; that the statement has been consistent throughout if he had several opportunities for making a dying declaration; and that the statement was at the earliest opportunity and was not the result of tutoring by the interested parties.
(7)A dying declaration recorded by a competent Magistrate in a proper manner in the form of questions and answers, and in the words of the maker as far as practicable stands on much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and character.
(8)If the Court, after taking everything into consideration, is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense. The Court must, of course, be fully convinced of the truth of the statement, and naturally, it could not be fully convinced if there was anything in the surrounding circumstances to raise suspicion as to its credibility. Thus, a true and voluntary declaration needs no corroboration.
The statement of the deceased in this case satisfied all these conditions (the declaration was true in all respects e.g., consistent in so far as naming of the two accused) and therefore the appellants should be convicted.
In Kusa v. State of Orissa, the deceased made dying declaration before a doctor. It was clear in all respects. However, the appellants challenged it on the following grounds: (1) it did not contain all those names which were include in F.I.R. (2) the account of the eye-witnesses also different (3) the deceased was in a state of shock, thus his statement could not be relied (4) the declaration was incomplete as the deceased did not answer the last question put to him (to wind up the statement the doctor asked the injured if he had anything else to say, he lapsed into unconsciousness without answering the question).
The Court observed that only certain names were included in F.I.R. but were not mentioned in dying declaration does not detract from the value of dying declaration and would not by itself prove the falsity of the declaration. In Surat Singh’s case, the first declaration did not mention the name of the eye-witness, but the second declaration (which was more detailed) contained it. The Court observed that first declaration was a short version of the entire incident and contained true facts when the deceased was under great pain.
The Apex Court further observed: The statement of doctor was that deceased became semi-conscious when the last question was put to him. Logically it means that prior to that he was fully conscious. The last question was in the nature of a mere formality “What more you want to say”, and all the necessary questions were asked before that formal question. The statement was not incomplete.
In Kishanlal v. State of Rajasthan, Smt. Sulochana, was sleeping on the intervening night between 11th and 12th September, 1976 with the mother of the appellant on a separate cot when she was burnt by sprinkling kerosene oil on her chest. She was shifted to the hospital at Pilibanga at 2.00 a.m. Doctor of the hospital sent information to SHO Police Station Lekhuwali on which investigation started. At 4.30 a.m. police recorded the statement of the deceased. The statement recorded by the police was not brought on the records by the prosecution.
On the 15th of November, 1976, all of sudden the condition of Smt. Sulochana deteriorated and she died in the evening. On basis of the above complaint dated 11th November, 1976, a case was registered against the accused and investigation was started. The police after investigation could not find any sustainable evidence against the appellant and other family member mentioned in the complaint hence submitted final report.
Dealing with the oral dying declaration, the Trial Court acquitted both the appellant and his mother. The High Court convicted both the appellant and his mother. The case went to the Supreme Court.
The Supreme Court held that, in the present case, as aforesaid the dying declaration was after two months of the alleged incident. It was not at a time when the deceased was expecting imminent death. Neither the post-mortem nor deposition of doctor carry any definite inference that the cause of death was on account of burning. There is a conflict between two dying declarations, in one there is inter se inconsistency as revealed in the depositions of witnesses, in the other no naming of any accused, when made before a Magistrate. On such an evidence Trial Court rightly declined to base a conviction. The High Court committed manifest error in placing reliance on it.
The Supreme Court further held that, so far as the extra judicial confession is concerned it is said that the same was made by the accused at panchayat on two occasions. First panchayat is alleged to have taken place at Chak 22 P.S. and the other in the school at Raisinghnagar. The father’s testimony in cross-examination, when confronted with his statement wherein he did not name any of the accused persons, he made the usual answer that the name might not have been recorded by mistake. But in the alleged second panchayat, the names of large number of persons were referred to as to have confessed their guilt, including the appellant. It includes even the names of those who are not even accused. It is alleged that they sought for the pardon of the local leaders for this guilt. We find even in this alleged confession, there is no mention that the accused had burnt the deceased Smt. Sulochana. The alleged confession by large number of persons is more in a general and vague term. Before a confession is relied on, it must be clear and unequivocal, whether it is in a judicial or in an extra judicial confession.
On the fact discussed above there is no hesitation to hold that reliance should not have been placed on the so called confession, the Trial Court rightly rejected it but unfortunately the High Court very casually accepted it which cannot be sustained and accordingly, the present appeal is allowed.
In State of Karnataka v. Shariff, the accused respondent was charged under section 302, IPC for having committed murder of his wife Muneera Begum by pouring kerosene on her body and setting her on fire in his house at about 4.00 a.m. on July 24, 1986.
The learned Sessions Judge believed the case of the prosecution and convicted the accused respondent under section 302, IPC and sentenced him to imprisonment for life. The appeal preferred by the accused was allowed by the High Court and his conviction and sentence was set aside.
The Supreme Court held that, the Court rules that it cannot be laid down as an absolute rule of law that a dying declaration cannot form that sole basis of conviction unless it is corroborated. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstance and with reference to the principle governing the weighing of evidence. It has been further held that in order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny keeping in view the fact that the statement has been made in the absence of the accused who has not opportunity of testimony the veracity of the statement by cross-examination. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstance of the death and the assailants of the victim, there is no question of further corroboration (Vide Khushal Rao v. State of Bombay).
The Court further held that, “there is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be 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 of convincing, then the Court may, for its assurance, look for corroboration to the dying declaration……”.
In the present case, the reason given by the High Court is that the dying declaration was not in question-answer form. Very often the deceased is merely asked as to how the incident took place and the statement is recorded in a narrative form. In fact such a statement is more natural and gives the version of the incident as it has been perceived by the victim. The question whether a dying declaration which has not been recorded in question-answer form can be accepted in evidence or not has been considered by this Court on several occasions.
Thus, the Supreme Court allowed the appeal and set aside the impugned judgment of the High Court and restored that of the Session Court.
Rattan Singh Case—
In Rattan Singh v. State of Himachal Pradesh, A young house wife enceinte by four months, was shot at with a double barrel gun by an assailant who gate crashed into her courtyard during the odd hours of the night when she was sleeping. The Sessions Court acquitted him but a Division Bench of the High Court of Himachal Pradesh on appeal filed by the State convicted him under section 302, IPC and sentenced him to imprisonment for life.
He then filed this appeal under section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and also under section 379 of the Cr. P.C.
Section 32(1) of the Evidence Act, renders a statement relevant which was made by a person who is dead in cases in which cause of his death comes into question, but its admissibility depends upon one of the two conditions; either such statement should relate to the cause of his death or it should relate to any of the circumstances of transaction which resulted in his death.
Three aspects have to be considered pertaining to the above intent of evidence. First is whether the said statement of the deceased would fall within section 32(1) of the Evidence Act, so as to become admissible in evidence. Second is whether what the witnesses have testified in court regarding the utterance of the deceased can be believed to be true. If the above two aspects are found in the affirmative, the third aspect to be considered is whether the deceased would correctly identify the assailant?
When Kanta Devi (deceased) made the statement that appellant was standing with a gun she might or might not have been under the expectation of death, but that does not matter. The fact spoken by the deceased has subsequently turned out to be a circumstances which intimately related to the transaction which resulted in her death. The collection of the words in section 32(1) “circumstances of the transaction which resulted in his death” is apparently of wider amplitude than saying “circumstances which caused his death” there need not be direct necessary nexus between “circumstances” and death. It is enough if the words spoken by the deceased have reference to any circumstances, which has connection with any of the transaction which ended up in the death of the deceased. Such statement would also fall within the purview of section 32(1) of the Evidence Act. In other words, it is not necessary that such circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death.
In the present case, the act of assailant intruding into the courtyard during the night, victim’s invention of the assailant here the pronouncement that appellant was standing with a gun and his firing the gun at her, all circumstances so intermingled with each other by proximity of time and space that the statement of the deceased became part of the same transaction. Hence, it is admissible under section 6 of the Evidence Act.
In either case, whether it is admissible under section 32(1) or under section 6 of the Evidence Act, it is substantive evidence, which can be acted upon with or without corroboration in finding guilt of the accused.
Thus, the Supreme Court come to the conclusion that the deceased had correctly identified that appellant who was standing with a gun. Therefore, the Supreme Court confirmed the conviction and sentence passed on the appellant and dismissed the appeals.
P.V. Radhakrishna Case—
In P.V. Radhakrishna v. State of Karnataka, Accused-appellant allegedly committed suicide was found guilty of offence punishable under section 302, Indian Penal Code, 1860 (‘IPC’); and sentenced to undergo imprisonment for life and a fine of Rs. 1,000 with default stipulation of one month imprisonment by Sessions Judge, Bangalore. The appeal before the High Court of Karnataka having yielded no success this appeal has been filed.
The Supreme Court observed that:
“This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on death bed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement, it is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.”
The Court further held that, the residuary question whether the percentage of burns suffered is determinative factor to affect the credibility of the dying declaration and the improbability of its recording. There is no hard and fast rule of universal application in this regard. Much would depend upon the nature of the burns, part of the body affected by the burns, impact of the burns on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration.
Thus, it was held that the trial court and the High Court were justified in placing reliance on the dying declaration for the purpose of convicting the accused-appellant. Hence, the appeal was dismissed.
Patel Hiralal Case—
In Patel Hiralal Joitaram v. State of Gujarat, a business of Patan (Gujarat) was arraigned for scorching a young hapless woman (mother of two infant children) to death. The felony was perpetrated in broad daylight on a public road. The man against whom the accusation was made had no relationship with the victim, maritally or otherwise. The trial court exonerated him, but a Division Bench of the High Court of Gujarat found him to be the killer of that lady and convicted him and sentenced him to imprisonment for life. Hence this appeal by him was as of right.
The Supreme Court held that, section 32(1) of the Evidence Act, relates to the statement made by a person before his death. Two categories of statements are made admissible in evidence and further made them as substantive evidence. They are: (1) his statement as to the cause of his death; (2) his statement as to any of the circumstances of the transaction which resulted in his death. The second category can envelop a far wider amplitude than the first category. The words “statement as to any of the circumstances” are by themselves capable of expanding the width and contours of the scope of admissibility. When the word “circumstances” is linked to “transaction which resulted in his death” the sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the sub-section. As the possibility of getting the maker of the statements in flesh and blood has been closed once and for all the endeavour should be how to include the statement of a dead person within the sweep of the sub-section and not how to exclude it therefrom. Admissibility is the first step and once it is admitted the Court has to consider how far it is reliable.
Once that test of reliability is found positive the Court has to consider the utility of that statement in the particular case.
In the instant case, the appellant did not even make an effort to bring the case within any of the four exceptions enumerated in section 300. Hence, the only question to be answered is whether he did the act with the intention of causing such bodily injury as he knew “to be likely to cause death of the deceased”. It is inconceivable that the appellant would not have known that setting a human being ablaze after soaking her clothes with inflammable liquid would cause her death as the type of burns resulting therefrom would at least be “likely” to cause her death (if not, they are sufficient in the ordinary course of nature to cause her death. The fact that she died only after a fortnight of sustaining those burn injuries cannot evacuate the act out of the contours of the secondly clause of section 300, IPC. There was a little abatement of the ferocity of the flames which engulfed her as she, in the instinctive human thirst of getting extricated from the gobbling tentacles of the fire, succeeded in tracing out a water flow. Such a reflex action performed by her had mitigated the conflagration of the flames but did not save her from the fatality of the calamity. Hence, the interval of fourteen days between the attack and her death is not a cause for mitigation of the offence perpetuated by the offender. We are, therefore, not impressed by the alternative argument advanced by the learned Senior Counsel for the appellant. In the result, the Supreme Court dismiss this appeal.
Smt. Laxmi Case-
In Smt. Laxmi v. Om Prakash and others, Their Lordship Hon’ble Mr.Justice R.C. Lahoti summed up the question of the admissibility and the probative value of a dying declaration in the following words:
“One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence, which has relevance. If the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the Court may in the absence of corroborative evidence lending assurance to the contents of the declaration refuse to act on it.”
In Laxman v. State of Maharashtra, in this criminal appeal, the conviction of the accused-appellant is based upon the dying declaration of the deceased which was recorded by the Judicial Magistrate. The learned Sessions Judge as well as the High Court held the dying declaration made by the deceased to be truthful, voluntary and trustworthy. The Magistrate in his evidence had stated that he had contacted the patient through the Medical Officer on duty and after putting some questions to the patient to find out whether she was able to make the statement; whether she was set on fire; whether she was conscious and able to make the statement and on being satisfied he recorded the statement of the deceased. There was a certificate of the doctor which indicates that the patient was conscious. The High Court on consideration of the evidence of the Magistrate as well as on the certificate of the doctor on the dying declaration recorded by the Magistrate together with other circumstances on record came to the conclusion that the deceased Chandrakala was physically and mentally fit and as such the dying declaration can be relied upon.
The Supreme Court held that, there is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidentiary value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon, provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in case in which the cause of that person’s death comes into question, becomes admissible under section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case.
- Batuk Lal, The Law of Evidence, Allahabad: Central Law Agency, 2010, 19th
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- L. Venkatarama Aiyar (Ed.), Field’s Law of Evidence (In India and Pakistan), Vol. III, Allahabad: R.S. Law Publishers,1966, 9th edition.
 Ratan Gond v. State of Bihar, (1959) SCR 1336
 Moti Singh v. State of U.P., (1964) 1 SCR 688
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 R. v. Woodcock, (1789) I Leach 500.
 State of Assam v. Mafizuddin Ahmed, AIR 1983 SC 274: 1983 Cr LJ 426
 Sharda v. State of Rajasthan, AIR 2010 SC 408.
ILR (7) 385
 Y.V. Sriniavasa Rao, The evidentiary value of Dying Declaration available on http://legalservicesindia.com/article/article/dying-declaration-1137-1.html
 (1885) ILR 7 All 385
 AIR 1999 SC 1969: 1999 Cr LJ 2889
 Ratan Gond v. State of Bihar, AIR 1959 SC 18: 1959 Cr LJ 108
 25 Cri.L.J. 574
 Kusa v. State of Orissa, (1980) 2 SCC 207: AIR 1980 SC 559
 Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505: 1979 SCC (Cri) 519
 R. v. Pike, (1829) 3 CLP 598
 Kake Singh alias Surendra Singh v. State of Madhya Pradesh,AIR 1982 SC 1021: 1981 SCC (Cri) 645
 Govind Narain v. State of Rajasthan, AIR 1993 SC 2457: 1993 Cr LJ 2598
 K. Ramachandra Reddy v. Public Prosecutor, AIR 1976 SC 1994: (1976) 3 SCC 618
 Varand v. Emperor, AIR 1944 Sind 137
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 Shabir Mohmad Syed v. State of Maharashtra, (1997) 11 SCC 499: AIR 1997 SC 3808
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 Narain Singh v. State of Haryana, AIR 2004 SC 1616: 2004 Cr LJ 1409
 Ravi v. State of Tamil Nadu, (2004) 10 SCC 776
 AIR 1958 All 255
 Harbans Lal v. State of Haryana, AIR 1993 SC 819: 1993 Cr LJ 75
 Raoji v. State of Maharashtra, (1994) SC LJ 1 (SC)
 AIR 1993 SC 374: 1993 Cr LJ 68
 AIR 1982 SC 839: 1982 Cr LJ 630
 AIR 1939 PC 47
 AIR 1958 SC 22: 1958 Cr LJ 106
 (1980) 2 SCC 207: AIR 1980 SC 559
 AIR 1999 SC 3062: 1999 Cr LJ 4070
 AIR 2003 SC 1074: 2003 Cr LJ 1254
 AIR 1958 SC 22: 1958 Cr LJ 106
 AIR 1997 SC 768: 1997 Cr LJ 833
 AIR 2003 SC 2859: 2003 Cr LJ 3717
 (2002) 1 SCC 22: AIR 2001 SC 2944
 AIR 2001 SC 2383
 AIR 2002 SC 2973: 2002 Cr LJ 4095