Admissibility and Validity of Dying Declaration: A Critical Analysis By: Mitali Garg

The Author, Mitali Goyal is a 2nd year student of Rajiv Gandhi National University Of Law, Punjab. She is currently interning with LatestLaws.com

I. Introduction

The purpose of this research is to identify the term ‘Leterm Mortem’.  This term has a legal  significance  meaning thereby words said before death.  In common legal terminology it is called dying declaration.  In this entire project I'll be covering the significance questions related to dying declaration.

What dying declaration means is a statement of a person who had died explain the circumstances of his death. In other words statement made by person who is conscious who knows that his death is imminent and if he believes something to be the cause office death can be introduced into evidence during the trial in certain cases.  A dying declaration is considered to be credible and trustworthy evidence based on general belief that a person who is on his deathbed will never lie.  It is based on the principle nemo mariturus presumuntur mentri  meaning a man will not meet his maker with a lie on his mouth.

The Indian law recognises the fact that a dying man will seldom lie or truth sits upon the lips of a dying man.  As a result it is an exception to hearsay rule which prohibits the use of a statement made by someone other than the person who repeats it while test define during a trial because of its inherent untrustworthiness.  A person who makes a dying declaration must be competent at the time of making the statement otherwise it is inadmissible.  Moreover if a person has a slightest chance of recovery  is dying declaration will not be admissible into evidence.

For example In the case of R. v. Jenkins[1] the accused was once charged with the homicide of a lady. He attacked her at nighttime however she had identified her due to the fact there have been sufficient light to become aware of him. When magistrate’s clerk asked her about the accused to report her statement, she told that he was Jenkins who had done the crime. The clerk enquired her that, did she make the declaration with no hope of her recovery then, she responded that she was making that statement with no hope of recovery. But when the clerk read that statement over to her, earlier than her signing, she advised her to add the word ‘at present’ in that statement.  It was held that it was not a dying declaration as her insistence upon the phrase at present hinted on her faint chances of recovery.

In Ulka Ram v. State of Rajasthan[2] Apex Court held that, “when a declaration is made by way of a man or woman as to purpose of his demise or as to any situations of transaction which resulted into his death, in case in which purpose of his dying comes in question is admissible in evidence, such statement in law are compendiously known as dying declaration.”
 

The Apex Court  in P.V. Radhakrishna v. State of Karnataka[3] held that ‘the principle on which a dying statement is admitted in proof is indicated in latin maxim, nemo morturus procsumitur mentri, a man will not meet his maker with a lie in his mouth. Information lodged via a individual who died subsequently relating to the reason of his death, is admissible in evidence under this clause.

Section 32 of Indian Evidence Act deals with the cases related to that person who is dead or cannot be found. It says 

“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 cases where, 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.” 

In Khushal Rao v. State of Bombay[4], Apex Court laid down the following standards related to dying to dying declaration :
(i) There is no absolute rule of regulation that a dying declaration can't be the sole basis of conviction until corroborated. A real & voluntary declaration needs no corroboration.
(ii) A dying declaration is not a weaker type of evidence than any different piece of evidence;
(iii) Each case need to be decided on its own facts keeping in view the instances in which the dying declaration was made.

(iv) A dying declaration stands on the equal footing as other piece of proof & has to be judged in the light of surrounding situations & with reference to the precept governing the weight of evidence.
(v) A dying declaration which has been recorded by a able Magistrate in the desirable manner, that is to say, in the form of questions and answers, &, as far as achievable in the words of the maker of the statement stands on a much higher footing than a dying declaration which depends upon oral testimony which may also suffer from all the infirmities of human reminiscence & human character.
(vi) In order to take a look at the reliability of a dying declaration the courtroom has to preserve in view the situations like the probability of the death man for observation, for example, whether or not there was once sufficient light if the crime was committed in the night; whether or not the capability of man to understand the facts stated had no longer been impaired at the time he was making the declaration by means of situations beyond his control; that the declaration has been consistent during if he had several opportunities of making a death declaration apart from the official document of it; & that the declaration had been made at the earliest probability & was once no longer the result of tutoring with the aid of interested party.”

Also in Surajdeo Ojha & Ors. v. State of Bihar[5] it was held that dying declaration cannot be discarded if it is a brief statement. On the contrary, shortness of statement itself guarantees truth.

It was held in another leading case that when an injured individual lodges a FIR and then dies, the FIR will be considered as a death declaration. In Munnu Raja & Anr.v. State of M.P.[6] the Supreme Court Of India held that statement by injured individual recorded as FIR can be considered as dying declaration and such statement is admissible under Section 32 of Indian Evidence Act. It was additionally held that dying declaration must not cover the complete incident or narrate the case history. Corroboration is no longer integral for this situation, Dying declaration can be the sole cause for conviction.

If death declaration is not according to prosecution: in the case of State of U.P. v. Madan Mohan[7] the Apex Court held that:
1. It is for the court to see that dying declaration evokes full self assurance as the maker of the dying declaration is no longer available for cross-examination.
2. Court satisfy that there was no opportunity of tutoring or prompting.
3. Certificate of medical doctor ought to point out that sufferer was once in a healthy state of mind. Magistrate recording his very own satisfaction about the healthy mental situation of the declarant was not acceptable specially if the physician was available.
4. Dying assertion be recorded via the government magistrate & police officer to record the dying statement only if circumstance of the deceased was so precarious that no other alternative was left.
5. Dying declaration may additionally be in the shape of questions & answers & answers being written in the phrases of the man or woman making the death declaration. But courtroom cannot be too technical.

The other question which commonly arises is  there any particular form of dying declaration which is admissible in court of law.  The answer to this is that there is no particular form of dying declaration.  It can be written or oral,  it can be in question answer form or paragraph or in gestures and Signs form  in any language whatsoever the person knows.  The only thing that should be taken care of is that it must be functioning as a piece of evidence with proper identification.  In some case the supreme court held the cracks of the whole matter as to who had stabbed the deceased and why should be mentioned in the dying declaration. 

Language of statement: The court cannot reject any  dying declaration on the basis of the language.  it can be recorded in any language Beat It Hindi English Urdu Punjabi  Assamese  etc. If this statement is in other language than the one which magistrate recorded then the precautions should be taken.  meaning there why where is statement was in  Hindi and the magistrate recorded in English  but the precaution was taken in explaining every statement to the disease by the another person,  it was held that this statement was the valid dying declaration. 

 In Biju@ Joseph v.  state of Kerala[8] it was held that the court  mearly on the ground  that the statement  made by the deceased was in his own language  vitiate the dying declaration.

It was stated by Kerela HC “Assuming that the deceased gave her statement in her own language, the dying declaration would not vitiate merely because it was recorded in a different language. We bear in mind that it is not unusual that courts record evidence in the language of the court even when witnesses depose in their own language. Judicial officers are used to the practice of translating the statements from the language of the parties to the language of the court. Such   translation process would not upset either the admissibility of the statement or its reliability”
 

Signs & Gestures: Gestures and signs can also form dying declaration. This is used when the  victim is not able to speak.  Supreme Court stated that the evidentiary value of gestures and Signs will depend on certain factors like what were the questions asked,  what are the question simple or complex, what are the gestures, who recorded the statement etc. Gestures can be difficult to interpret but it does not mean that it will not constitute dying declaration and accuse will roam freely. 

 In Nirbhaya case 2013 , a bench of justice Deepak Mishra , R Banumathi and Ashok Bhushan said a dying declaration should not necessarily be made by words or in writing and it could be through gestures. Not just words but  even geatures can be made admissible in court now.

 In case of Queen Empress v. Abdullah[9] accused had cut throat of a deceased girl because of which she could not speak but she somehow (With the help of signs  using her hands) managed to indicate that Abdullah is Guilty.  It was held by full bench of Allahabad High Court  if the injured is unable to speak he can make dying declaration by signs and gestures in response to a question.  In another case  the supreme court observed that the value of sign language would depend upon as to who recorded the signs, what gestures and nods were made and how effective and understandable the nodes in gestures were.

Exceptions of Dying Declaration

The exceptions of ‘Dying declaration’ stipulate that where the statements made by way of demise folks are not admissible:
1). If the reason of demise of the deceased is no longer in question: If the deceased made declaration before his demise some thing except the reason of his death, that announcement is now not admissible in evidence.
2). If the declarer is no longer a competent witness: declarer ought to be competent witness. A dying declaration of a child is inadmissible. In Amar singh v. State of Madhya Pradesh[10], it was held by M.P. High Court that except proof of mental or physical fitness, the dying declaration was no longer reliable.
3). Inconsistent & Incomplete declaration: Inconsistent & incomplete dying declaration is no evidentiary value. If the declaration does not state the reason or person behind death then it is of no value.

4). Doubtful features: In Ramilaben v. State of Gujarat[11] it was held by the court that second degree burn injuries, the injured dying 7-8 hours after the incident, four death declarations recorded however none carried medical certificate. There were different dubious features, evidence no longer taken into account.
5). Uninfluenced declaration: it ought to be stated that death announcement must not be under impact of any one.
6). Untrue declaration: it is perfectly permissible to reject a part of dying declaration if it is observed to be untrue & if it can be separated.

7) if the declaration relates to the demise of another person: If the declaration made by using the deceased does no longer relate to his death, however to the death of any other person, it is not relevant.

8)   Contradictory statements: if a declarant made more than one death declarations & all are contradictory, then those all declarations lose their value.

Conclusion

LORD EYRE, C.B., held that “The principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the part is at the point of oath, & when every hope of this world is gone; when every motive of falsehood is silenced, & the mind is induced by the most powerful consideration to speak the truth; a situation so solemn & awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in the court of justice.” Thus, Dying declaration is one of the most important evidence that is admissible in courtroom as dying statement can be a sole reason for conviction of accuse. Hence, it must be recorded cautiously with all the technique that the court has mentioned. It should not be tampered at all via anyone. If the death statement is incomplete, then it is very much to be rejected through the court. It is on the court discretion to check if the dying declaration is recorded cautiously or not.

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