DYING DECLARATION Dying Declaration What it is It

DYING DECLARATION

Dying Declaration – What it is? It is the statement, oral or written of a person, relating to him / her death or as to the circumstances leading to his / her death, when that person dies subsequent to the making of such statement. v. It is the statement of a person since deceased. v. When proved, it may be used, as evidence. v. It is a kind of hearsay evidence, because the declarant (maker of the statement) has died and somebody else appears to say what the deceased stated about his / her death. Note: “Hearsay Evidence”- in this context-means “ derivative or second-hand or unoriginal evidence”, that is, the evidence given by a person, not on the basis of his own knowledge but on the authority of another person. v. The declarant, being dead, the veracity of his / her statement cannot be tested by cross-examination. v. Even then, it is received in evidence and as such, it is an exception to the rule that hearsay evidence is inadmissible (vide Section 60(m) of the Indian Evidence Act).

Why Dying Declaration is admitted in Evidence ? v It is based on the principle of “necessity”. If it is shut out, no better evidence may be available. In such event, Justice is Liable to be defeated. v The other ground may be described as “circumstantial guarantee of trustworthiness”. The presumption is that truth sits on the lips of dying person. The shadow of impending death creates an awful & solemn condition, which silences any motive for falsehood and which provides a substitute for oath. The fear of divine displeasure may be present in his / her mind.

Relevancy and admissibility of Dying Declaration: v Section 32 (1) of the Indian Evidence Act declares that “Dying Declaration” is relevant. v Evidence may be given of facts in issue and also of relevant facts (vide Section 5 of the Indian Evidence Act). v There is no prohibition, either express or implied, in the Indian Evidence Act, against ‘Dying Declaration’ being received in evidence. It is therefore, admissible. Note: Admissibility presupposes relevancy and something more. In order to be admissible a fact should be relevant under any of the provisions contained in Sections 6 to 55 of the Evidence Act and at the same time, there ought to be nothing in Law to exclude its reception in evidence. Dying declaration satisfies both these conditions and hence, it is relevant and admissible.

Conditions for reception of Dying Declaration in evidence. v It must relate either to the cause of death or to any of the circumstances of the transaction which has resulted in the death. v Here, death means the death of the declarant himself or herself. v The declarant must have died after the declaration. v The cause of death of the declarant must be a question involved in the case. v The death may be homicidal or suicidal or even accidental. v The case may be criminal or civil. Apprehension of death – Is it a pre-requisite v No, it is not the requirement of the Indian Law that the person making the Dying Declaration should have been under expectation of death at that point of time.

Proximity of time between declaration and death – is essential ? v. Distance of time alone cannot render a dying declaration irrelevant. v. It would depend upon the circumstances of each case. v. When letters had been written or statements made by the deceased, which were directly connected with or related to his or her death, they would certainly fall within the four corners of Section 32 of the Indian Evidence Act, even if there was “not short” time-gap between such letters / statements and death of the writer / maker thereof.

Who may record “Dying Declaration”? v Generally speaking, it may be recorded by anybody, including a police officer or a private individual. v Law has not indicated who is competent or who is incompetent to record “Dying Declaration”. v Admissibility is one thing, credibility is another. v What has been said in clause (a) above is true from the angle of admissibility but it does not hold good from the view -point of credibility. v A Magistrate inspires greater confidence and deserves more credence. Hence, efforts should be made to secure the services of a Magistrate for recording of a Dying Declaration.

Note 1: Magistrate may be a Judicial Magistrate or an Executive Magistrate. Note 2: In practice, Juidicial Magistrates are called upon to hold T. I. Parades and Executive Magistrates are invited to record dying declaration. v In absence of a Magistrate, a doctor, if available may be requested to take v v v down the dying declaration. A Police Officer is not disqualified for recording of a Dying Declaration has been exempted from the restriction, which otherwise attaches to a statement recorded by a Police Officer, in course of investigation (vide Section 162 Cr. PC) In other words a dying declaration, though recorded by a Police Officer, is not hit by Section 162 Cr. PC and is admissible in evidence. The practice of the Investigating Officer himself recording the dying declaration, without exploring the possibility of the availability of a Magistrate, ought not to be encouraged. It is, however, not a hard and fast rule that a Dying Declaration recorded by a police officer, when there was facility for having it recorded by a Magistrate, must necessarily be rejected. It depends upon the facts and circumstances of each case. Dying Declaration-when may be made Dying Declaration may be made before or during investigation.

Procedure for recording of a Dying Declaration (assuming that the person recording it is a Magistrate). v. Be satisfied that the proposed declarant is in a fit condition to make a statement. He should be in his senses. v. If a doctor is available, ask for his opinion on above point. He is the best person to opine as to that matter. v. Otherwise, have a close look at the general condition of the dying person and put to him simple questions to ascertain whether he is in a position to make conscious statement with normal understanding. v. Once you are satisfied on the point of fitness of mind, proceed to take down the statement. v. Do it in the form of questions and answer (Not in narrative). v. Do not ask any leading question. v. Put simple questions, other than in leading form, in the language he understands. v. Record his replies in vernacular exactly in his own words-Verbatim reproduction. v. If you understand the language used by him but can not write it, then render it faithfully into English or the official language of the State. v. After the statement has been recorded, read over and explain it to the declarant. Contd……. .

v If he affirms that it has been correctly recorded, take his signature or thumb impression, as the case may be. v Affix your signature with your designation, date and time. v Obtain a certificate from the doctor as to the fitness of the declarant by getting it endorsed in the Dying Declaration itself under his dated signature, at an appropriate place, whenever he has been consulted and is present. If no doctor is there, it is for you (the Magistrate) to append a certificate to the effect that the Declaration was conscious and in a fit condition to make statement. v At the top of the dying declaration, do not forget to note down the name and other particulars, such as Father’s or Husband’s name and address of the declarant and also the date, time and venue of the Dying Declaration. v Put the Dying Declaration in an envelop, get it sealed in your presence and forward it to the CJM, SDJM or JM having jurisdiction, as early as possible. v Always remember that the object of taking the dying declaration from a dying person is to ascertain the cause of his/her impending death or the circumstances of the transaction which may result in his / her death. v If he/she names any assailant, take from him / her such particulars as may establish the identity of the assailant. v Take such steps, as the circumstances may permit to exclude the possibility of tutoring / prompting and to remove any outside influence. The statement should be his/her own in its entirely-free, voluntary and untainted. v Please bear in mind that there is no prescribed form for dying declaration.

Dying Declaration-need for scrutiny by the Court. v As a dying declaration is taken in absence of the accused and the declarant, being dead, cannot be cross-examined, the dying declaration should be subjected to the strict scrutiny and closest circumspection by the court.

Points to be considered by the Court in assessing the probative value of a Dying Declaration: v Did the declarant have sufficient opportunity of seeing the assailant? v Whether the capacity of the declarant to remember facts stated by him was impaired at the time of his making the statement by circumstances beyond his control, either due to the nature of injuries or for any other causes? v Whether the statement was made at the earliest opportunity? v Whether the decalarant was conscious and in a condition fit to make statement. v Whethere was any scope for tutoring / prompting / outside influence operating on the mind of the decalarant? v Did the decalarant have any hostile bias or enmity as against any of the assailants named by him? v Was the dying declaration coherent and consistent? v Did the Dying Declaration suffer from any inherent infirmity / improbability?

Dying Decalaration – may be oral or written: v A dying declaration is generally reduced to writing but it may also be oral. v The exact words uttered by the declarant are required to be proved when the Dying Declaration has not been documented. v In case of oral dying declaration, proof of it becomes difficult, because the witnesses can hardly be expected to remember what the declarant actually said. Their memories are likely to fade. This is not to suggest that an oral dying declaration can not be proved or relied upon. v An oral dying declaration, which has been duly proved by independent and reliable witnesses, may be acted upon.

Proof of Dying Declaration: v A dying declaration may be proved by the person who recorded it (usual mode of providing a written dying declaration). v When oral, it may be proved by any person who heard the declarant making the statement u/s 32 (1). v If the original written dying declaration is shown to have been destroyed or lost, it may be proved by the Production of secondary evidence. (Vide Sections 63 and 65 of Indian Evidence Act). Note: A written dying declaration is a document within the meaning of Section 3 of the Indian Evidence Act, which includes a definition of the term “document”.

Evidentiary value of Dying Declaration: v. As indicated earlier, the Dying Declaration should be subjected to strict scrutiny. v. If after such scrutiny, the court is satisfied that the Dying Declaration is truthful and reliable, it may be acted upon without corroboration and it may from the sole basis of conviction in a criminal trial. v. The Dying Declaration is a substantive evidence and the finding of a Court of Law may be founded upon it, provided that it is founded true and worthy of credit. v. If upon scrutiny, the court is not inclined to accept the Dying Declaration as wholly reliable and fully truthful, it may look for corroboration. v. Such corroboration may be provided by circumstantial evidence, expert testimony and oral evidence of witnesses unconnected with the Dying Declaration. v. While the principles indicated above apply to the Dying Declaration recorded by any person including Magistrate, an additional safeguard is required to be taken when the Dying Declaration has been taken down by a police officer. In such case, Dying Declaration recorded by the Police ought not to be taken into account unless and until it is explained to the satisfaction of the Court as to why the better method of having it recorded by a Magistrate was not adopted. Contd…. .

v. If the dying declaration appears to be tainted or the result of tutoring or product of rancor, or suffers from inherent infirmity, it is liable to be rejected. v. Corroboration is not essential, when the Dying Declaration commands itself to be fully truthful and wholly reliable. v. If a part of the dying declaration is false, it is not necessary that the Dying Declaration must be discarded in its entirety. v. The dying declaration recorded by a police officer, if believed, can be relied upon for conviction. v. Each case must be determined on its own facts, keeping in view the circumstances in which the dying declaration was made. Dying Declaration when the victim survives: v. If the victim chances to survive , his/her statement can not be used as a Dying Declaration. v. In such events, it may be used as previous statement for the purpose of contradiction, u/s 155/145 Evidence Act or for corroboration u/s 157 Evidence Act. v. A Dying Declaration recorded by a Police Officer, when the victim survives, may be used for the purpose of contradiction only.