Lawwatch

Dying declaration under the Evidence Act

What is a dying declaration?

Dying declaration is a written or verbal statement made by a person, when he is facing imminent death, as to the cause of his death or any circumstances which resulted in his death. The declaration must be as to the cause of the declarant’s death or as to any of the circumstances of the transaction which resulted in his death.

The declaration is admissible when the cause of the death of the person who declares is directly in issue and both the declaration and the death have some proximate relation. Before a dying declaration is admitted it must be proved that its maker is dead. If the maker survives after the possibility of imminent death, his statement is not a dying declaration.

What the law says

The Section 32(1) of the Indian Evidence Act, 1872(IEA) deals with dying declaration.

It says written and verbal statement of facts made by a person who is dead is relevant when it relates to the cause of his death or as to any of the circumstances of the transaction which resulted in his death.

Indian law differs from that of England

In India dying declaration is admissible in all proceedings even if the death is suicide or homicide. It is not confined to murder and manslaughter alone as in England.

Similarly, hopeless expectation of imminent death is not necessary in considering a statement as dying declaration in India. But in England it is an essential ingredient.

Dying declaration is an admissible hearsay

A dying declaration, which falls within the category of hearsay, is an exception to the rule against inadmissibility of hearsay evidence.

Hearsay is not admissible in evidence. Indirect oral evidence is also not admissible. This is mainly because of the possible inaccuracy and untrustworthiness of it. A dying declaration is admissible because of the belief that a person facing imminent death will not tell lie about the cause of his death.

Evidence of dying declaration is admissible not only against the person actually causing death but also against other persons participating in causing death.

No prescribed format exists

There is no specific format for recording a dying declaration. It neither need to be recorded in question answer form always, nor is it required by law to be recorded only by a Magistrate.

But a declaration recorded by the Magistrate in narrative form in his own words alone is not a ground for discarding it, it was held.

Better if Magistrate takes and doctor certifies it

A dying declaration should as far as possible be taken in the exact words of the declarant. It is usually taken down either by or in the presence of a Magistrate. But the presence of the Magistrate is not always essential. But when it is recorded by the Magistrate it should have a higher value.

A dying declaration, as far as practical, should have an endorsement of a doctor that the decarant was conscious and in a fit condition to make the declaration. But absence of such an endorsement does not render one wholly unacceptable always. But it is better to have such a certificate.

In fact, a dying declaration recorded by a competent Magistrate, in a proper manner, in the form of question and answers, and in the words of the maker as far as practicable, stands on a higher footing than the dying declaration that depends on oral testimony of a witness which suffers from infirmities of human memory.

It can form the sole basis of conviction

When a dying declaration is voluntary, not tainted by tutoring or animosity and is not a product of imagination, the accused can be convicted solely on the basis of it. When the court relies on dying declaration alone for conviction it must exercise due care and caution so as to ensure its genuineness.

The law does not insist upon the need to corroborate a dying declaration; corroboration is only a rule of prudence. Even an oral dying declaration which is trustworthy and free from every blemish and inspires confidence can form the basis of conviction. But when it is impregnant with so many suspicious circumstances it is not at all safe to base conviction on it.

Before admitting a dying declaration it must be proved that it has been made by the deceased himself.

Some other matters

A dying declaration made to the relatives of the deceased cannot be rejected merely because of the relation between them.

A statement of a dead person is not a relevant fact with respect to the question about the death of yet another person.

If something in a dying declaration is false the whole declaration must not necessarily be disregarded. However if a judge thinks that part of a dying declaration is deliberately false he should not act upon the other parts without definite corroboration.

A dying declaration need not reveal the entire truth relating to the cause of death but only of the fact stated in it. It may be proved by the evidence of the witness who directly heard it when it is made.

If he survives it is not dying declaration

If the person making a dying declaration happens to recover from the possibility of death by chance, his statement is inadmissible as dying declaration. It can be relied on for corroboration under Section 157 of the evidence act.

A dying declaration cannot be contradicted by reference to extraneous evidence of witness. It has to stand by itself or not at all. Once a dying declaration is admitted by the defence then the prosecution need not produce any formal proof of execution at all.

Letters written shortly before admissible

The letters written by the deceased in her handwriting shortly before the death can be treated as dying declaration.

In a suicide by a woman the noting made by her in her diary about of the cause of her death would have some evidentiary value as a dying declaration, it was held.

An FIR lodged by the deceased, clearly implicating the accused and giving details of the incident, was held to be used as dying declaration.

Even a statement under Section 161 of the Criminal Procedure Code was held to be treated as a dying declaration when the declarant died shortly after giving the statement.

Declaration by nods and gestures

Dying declaration recorded on the basis of nods and gestures is held to be admissible and reliable, and possesses evidentiary values. But mere inference by a person of the gestures based on vague gestures is not admissible.

Conflicting dying declaration

When there are more than one dying declarations and they are inconsistent, it is not possible to pick out one such declaration and base the conviction on the basis of it. When the different dying declarations show no inconsistency they can be relied on.

Coherent declaration can be relied on

In short, when the court finds that the dying declaration contains the coherent statement of the deceased as to the cause of death and if the same was recorded without the deceased being tutored by somebody, it is acceptable and must be relied upon. But when a dying declaration suffers from any infirmity it cannot form the sole basis of conviction.

References & Additional Reading

  1. Government of India: The Indian Evidence Act, 1872

  2. The Academy of Legal Publications: Law of Evidence

  3. Ratanlal & Dhirajlal: The Law of Evidence, 25th ed. Gurgaon, Lexis Nexis, 2013