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DYING DECLARATION AND ITS APPLICATION
IN ADMINISTRATION OF JUSTICE
Dissertation submitted in part fulfilment for the requirement of the
Degree of
LL.M.
Submitted by Supervised by
SAMRITI Prof. (Dr.) Jagbir S. Dahiya
NATIONAL LAW UNIVERSITY
DELHI (INDIA)
2019
TABLE OF CONTENTS
S.NO. TITLE PAGE
NO.
COVER PAGE
DECLARATION BY THE CANDIDATE i
CERTIFICATE OF SUPERVISOR ii
ACKNOWLEDGEMENT iii
LIST OF ACRONMYS AND
ABBREVIATION
iv
LIST OF CASES v-vii
CHAPTER
1
INTRODUCTION 1-7
1.1 OVERVIEW OF THE TOPIC 1-2
1.2 STATEMENT OF PROBLEM 3
1.3 LITERATURE REVIEW 4-5
1.4 RESEARCH QUESTIONS 6
1.5 HYPOTHESIS 6
1.6 RESEARCH METHODOLOGY 6
1.7 CHAPTERIZATION 7
CHAPTER
2
DYING DECLARATION: AN
OVERVIEW
8-15
2.1 DYING DECLARTION- A LEGAL
THEORY
9-10
2.2 CONDITIONS OF ADMISSIBILITY
UNDER SECTION 32(1) OF INDIAN
EVIDENCE ACT
10
2.2.1 ESSENTIAL INGREDIENTS FOR THE
ADMISSIBILITY OF DYING
DECLARATION
10-14
2.3 A COMPARATIVE STUDY BETWEEN
ENGLISH AND INDIAN LAW
14-15
CHAPTER
3
EVIDENTIARY VALUE OF DYING
DECLARATION
16-19
3.1 TEST OF RELIABLITY OF DYING
DECLARATION
16-17
3.2 SATISFACTION OF THE COURT
REGARDING RELIABILITY OF DYING
DECLARATION
17-19
CHAPTER
4
FORMS AND METHODS OF
RECORDING DYING DECLARATION
20-31
4.1 FORM OF DYING DECLARATION 20
4.1.1 ORAL DYING DECLARATION 20-21
4.1.2 WRITTEN DYING DECLARATION 21
4.1.3 STATEMENT MADE BY SIGN AND
GESTURE OR IN ANY OTHER MANNER
21-23
4.2 METHOD OF RECORDING DYING
DECLARATION
24
4.2.1 DYING DECLARTION RECORDED BY
ANY PERSON
24
4.2.2 DYING DECLARTION RECORDED BY
MAGISTRATE
24-26
4.2.3 DYING DECLARTION RECORDED BY
POLICE
26-27
4.2.4 DYING DECLARTION RECORDED BY
DOCTOR
28-31
CHAPTER
5
DYING DECLARATION- APPLICATION
IN ADMINISTRATION OF JUSTICE
32-38
5.1 INTRODUCTION 32
5.2 DUTY OF COURTS TO TEST THE
RELIABLITY OF DYING DECLARATION
33
5.3 SOLE DYING DECLARATION WHEN IT
FORM THE BASIS OF CONVICTION
33-34
5.4 WHEN CORROBORATION OF DYING
DECLARTION IS MUST
34
5.5 DISCREPANCY IN DYING
DECLARATION: ITS CREDIBILITY
34-35
5.6 DELAY IN RECORDING DYING
DECLARTION
35-36
5.7 FIR AS DYING DECLARATION 36-37
5.8 EVIDENTIARY VALUE OF DYING
DECLARTION WHERE DECLARANT
SURVIVES
37-38
5.9 MODE OF PROVING DYING
DECLARATION IN COURT
38
CHAPTER
6
MULTIPLE DYING DECLARATIONS: A
CASE STUDY
39-42
CHAPTER
7
CONCLUSION & SUGGESIONS 43-46
BIBLIOGRAPHY viii-ix
i
DECLARATION BY THE CANDIDATE
I hereby declare that the dissertation entitled “DYING DECLARATION AND ITS
APPLICATION IN ADMINISTRATION OF JUSTICE” is the outcome of my
own work carried out under the supervision of Prof. (Dr.) Jagbir Singh Dahiya,
National Law University Delhi.
I further declare that to the best of my knowledge the dissertation does not contain
any part of work, which has not been submitted for the award of any degree either in
this University or any other institutions without proper citation. I further declare that I
followed the Research guidelines of the University.
SAMRITI
Place: New Delhi 59 LLM 18
Date: 22nd May 2019 National Law University Delhi
ii
CERTIFICATE OF SUPERVISOR
This is to certify that the work reported in the L.L.M dissertation entitled “Dying
Declaration and its Application in Administration of
Justice,” submitted by SAMRITI at National Law University, Delhi is a
bona fide record of her original work carried out under my supervision.
Dr. Jagbir Singh Dahiya
Place New Delhi Professor
Date: 22nd May 2019 National Law University Delhi
iii
ACKNOWLEDGEMENT
I would like to express my most sincere regards and gratitude to my respected
supervisor, Dr. Jagbir Singh Dahiya for his constant help, guidance and
encouragement throughout the tenure of this Dissertation. His valuable suggestions
and discussions have been instrumental to the success of this work. This work would
not have been feasible without his rigorous guidance. I further wish to express my
gratitude to the entire NLU-D family especially Prof. (Dr.) Ranbir Singh (Vice-
Chancellor, National Law University, and Delhi) and Prof. G.S. Bajpai (Registrar,
National Law University, and Delhi) for providing all the infrastructure and facilities
required for completion of this research. I would also like to thank the library staff of
the National Law University, Delhi for their constant support.
I extend heartfelt thanks to all my friends for their constant inputs and guidance in this
endeavour. Special thanks to my parents and family members who have always
supported in all my endeavours. I acknowledge and thank the scholars whose work is
used for completion of this dissertation.
SAMRITI
59 LLM 18
iv
LIST OF ACRONYMS & ABBREVIATIONS
AIR All India Reporter
Cr.L.J. Criminal Law Journal
CrPC Code of Criminal Procedure
IPC Indian Penal Code
IEA Indian Evidence Act
COI Constitution of India
M.P. Madhya Pradesh
Ors Others
SC Supreme Court
SCC Supreme Court Cases
v. Versus
v
LIST OF CASES
1. Abrar v. State of Uttar Pradesh AIR 2011 SC 354
2. Arvind Singh v. State of Bihar AIR 2001 SC 2124
3. Bable v. State of Chattisgarh AIR 2012 SC 2621
4. Bapu (Nandu) Prabhu Koli @ Raut v. State of Maharashtra 23.07.2018 SC
5. Darshan Singh v. State of Punjab (1983) 2 SCC 411
6. Dashrath @ Champa and another v. State of Madhya Pradesh (2011) 10 SCC
173
7. Gaffar Badshaha Pathan v. State of Maharashtra (2004) 10 SCC 589
8. Gulzari LaL v. State of Haryana AIR 2016 SC 795
9. Jai Prakash v. State of Haryana 1999 Cr.L.J. 837
10. Kans Raj v. State of Punjab AIR 2000 SC 2324
11. Kundula Bala Subrahmanyam v. State of A.P. (1993) 2 SCC 684
12. Kushal Rao v. State of Bombay AIR 1958 SC 22
13. Maniben v. State of Gujarat AIR 2007 SC
14. Moti Singh v. State of U.P AIR 1964 SC 900
15. Mukesh & Anr v. State for NCT of Delhi & Ors 2017 SCC Online SC 213
16. Munnu Raj v. State of M.P. AIR 1976 SC 2199
17. Najjam Faruqui v. State of West Bengal AIR 1998 SC 682
18. Nana Babu Pawar v. State of Maharashtra 5.01.2018 Bombay High Court
19. Om Prakash v. State of Punjab AIR 1993 SC 138
20. Pakala Narayan Swamy v. Emperor AIR 1939 PC 47
21. Paniben v. state of Gujarat AIR 1992 SC 1817
22. Poonam Bai v. State of Chattisgarh 30.4.2019 SC
vi
23. Pradeep Bisoi @ Ranjit Bisoi v. State of Odisha 10.10.2018 SC
24. Queen Empress v. Abdullah ILR 7 ALL 385
25. R v. Mead (1824) 2 B. & C. 605: 107 E.R. 509 (k.B.)
26. R v. Woodcock (1789) 1 Leach 500
27. Raju Devade v. State of Maharashtra AIR 2016 SC
28. Ram Nath v. State of M.P. AIR 1953 SC 420
29. Ram Prasad v. State of Maharashtra AIR 1999 SC 1969
30. Ramakant Mishra v. State of U.P. AIR 1982 SC 1552
31. Ramawati Devi v. State AIR 1993 SC 164
32. Ratan Gond v. State of Bihar AIR 1959 SC 18
33. Sampat Babso Kale & Anr v. State of Maharashtra
34. Satish Chandra v. State of Madhya Pradesh (2014) 6 SCC 723
35. Satyaprakash S. Dahiwale v. State of Maharashtra 2007 Cr.L.J. 607
36. Shaikh Rafiq Gafoor Shaikh v. State of Maharashtra 21.2.2014 SC
37. Shakuntala v. State of Haryana AIR 2007 SC 2709
38. Sharad Birdichand Sharda v. State of Maharashtra AIR 1984 SC 2602
39. Sharda v. State of Rajasthan AIR 2010 SC 408
40. Sher Singh v. State of Punjab AIR 2008 SC 1426
41. State of Karnataka v. Shariff AIR 2003 SC 1074
42. State of M.P. v. Dal Singh AIR 2013 SC 2059
43. State of Maharashtra v. H.K. Chanriwal AIR 2016 SC 287
44. State of Rajasthan v. Shravan Ram AIR 2013 SC 1890
vii
45. State of U.P. v. Nawab Singh 1996 Cr.L.J. 934
46. Sudhakar v.State of Maharashtra AIR 2000 SC 2602
47. Suresh v. State of Madhya Pradesh AIR 1987 SC 860
48. Surinder Kumar v. State of Punjab (2012) 12 SCC 120
49. Vijay Pal v. State (NCT) of Delhi AIR 2015 SC 1495
1
CHAPTER 1
INTRODUCTION
Dying Declaration means the statement made by a person who believes that he is
about to die, in reference to the manner in which he received the injuries of which he
is dying, or other immediate cause of his death or in reference to the person who
inflicted such injuries or of a person who is charged with or suspected of having
committed them.1
This term has not been defined under the Indian Evidence Act, but the provision
contained under Section 32(1) of the Indian Evidence Act which define dying
declaration as follows:
“A dying declaration is statement made by person as to 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 the death of that person comes into question.”2
So the term i.e. Dying Declaration is based on the legal maxim:
“Nemo Moriturus Praesumitur Mentire” it means that a man will not meet his
maker with a lie in his mouth.3
Truth sits on the lips of dying man was said by Mathew Arnold:
“It is based on the principle that dying declaration are made in the extremity
when the party is at point of death, and every hope of this world has gone,
when every motive to falsehood is silenced and the mind is induced by the
most powerful considerations to speak the truth; a situation so solemn and so
awful is considered by the law as creating an obligation equal to that which is
imposed by a positive oath administered in a court of justice.”4
1 Black’s Law Dictionary, 9th Edition (2009)
2 Section 32(1) Indian Evidence Act, 1872
3 Shakuntala v. State of Haryana AIR 2007 SC 2709
4 Eyre C.V. in R v. Woodcock (1789) 1 Leach 500
2
So these aspects have been stated by Lyre LCR in R. vs. Wood Cock5 Shakespeare
makes the wounded Melun, finding himself disbelieved while announcing the
intended treachery of the Dauphin Lewis explain:
“Have I met hideous death within my view, Retaining but a quantity of life,
Which bleeds away even as a form of wax, Resolveth from his figure against
the fire?
What is the world should make me now deceive, Since I must lose the use of
all deceit
Why should I then be false since it is true, That I must die here and live hence
by truth?”6
5 (1789) 1 Leach 500
6 King John, Act 5, Sect 4
3
1.1 STATEMENT OF PROBLEM
Dying Declaration is an important aspect in the administration of Criminal Justice
System. It is the statement made by the person who cannot be called as a witness in a
court of law because the person is no more. In the justice delivery system, the judge
has to play a very crucial role so that they can find out the truth from the victims,
witnesses and the accused. But the problem arises when the witnesses cannot be
called in a court of law to give evidence regarding the circumstances which leads to
the occurrence of the crime. To give weigh this statement of the person who cannot
examine, the concept of dying declaration emerged in the system. Due to emergence
of this concept, it arose some suspicion in the mind of the judges that how to analyze,
to give weigh or to scrutinize this statement because judge has to apply his judicial
mind so as to fix criminal liability on the accused.
The position of law regarding the evidentiary value of dying declaration has been
stated in the Indian Evidence Act but the position has been changed from time to time
through various remarkable judgments pronounced by court of law but still there is
wide gap between the legal provisions on the one hand and the safeguards taken by
the judiciary while considering the dying declaration on the other. Though the court
applies the judicial mind when a matter comes before the court under dying
declaration but sometimes the court has been reluctant to punish the accused only on
the sole basis of dying declaration. This position is not very clear and also highlighted
this issue in this type of cases. So it is desirable to identify the position with regard to
evidentiary value of dying declaration and how the dying declaration works in the
administration of justice.
4
1.2 LITERATURE REVIEW
Dying Declaration plays an important role in the Criminal Justice System and helps
the judges to ascertain the truth and with the help of the statement given by declarant,
the courts can arrive at a conclusion to fix the criminal liability on the accused person.
A lot of literature is available on dying declaration in India and through the research
work- books, articles, reports, Journals and also various judgments of Supreme Court
have been referred.
In the book Law Relating to Dying Declaration7 the detailed analysis has been done
on dying declaration and covers all the aspects relating to it in a very detailed manner
but the major loophole is that what safeguards should be taken by the judicial system
has not been providing while relying upon dying declaration because sometimes the
inconsistency arises in admitting the dying declaration in courts. But on the other
hand, analysis of latest case laws have been done and discussed in very detailed
manner the guidelines given in various judgments for recording the dying declaration.
The court can convict the accused on such dying declaration without any further
corroboration and analysis of various Supreme Court judgments on admissibility of
dying declaration the court always take into consideration the dying declaration, if it
found to be reliable.
Mohd. Umar in his book has discussed the legal aspect of bride burning and highlight
the concept of dying declaration play a major role in dowry death cases where the
deceased victim gives statement about the incident and the statement considered by
the court as dying declaration in evidence. The judicial interpretation has been given
by Supreme Court under Section 32(1) of Indian Evidence Act has also been
discussed through case laws in which the court rely on the consistent dying
declaration made by deceased wife in bride burning cases. The aspect of
circumstantial evidence also highlighted through various case law analysis.
Dr. Onkar Nath Tiwari, in his Article has said that the duty of judges is to extract the
truth to ascertain the admissibility of dying declaration in evidence and the weight has
been given to such kind of statement to arrive at a conclusion and judges has to apply
his judicial mind and analyze the interpretation given by judges to fix the criminal
7 B.B. Panda, Law relating to Dying Declaration, (2010)
5
liability on accused person. The broader question which discussed in this is the
evidentiary value of dying declaration and the competency of person who records the
dying declaration. The various parameters laid down by judges in their judgments has
also been discussed to adduce the weight in the admissibility of dying declaration so
that truth can be ascertain. It also throws light on the present scenario and the
challenges faced by judicial system in Indian Context.8
Woodroffe and Amir Ali, has discussed the concept of dying declaration in detailed
manner and the phrase “dying declaration” as such has not been used under Section
32(1) of IEA, but define the essential requirement to admissible the statement in
evidence. The relevancy of statement has considered by court to analyze the guilt of
accused and not violated of Article 14 of COI. The issue which revolves around this
concept is mainly the process of recording the statement and discuss various
fundamental principles to understand the judicial decisions. The statement should be
in ipsissima verba i.e. in the exact words to arrive at a conclusion.9
According to Shivangi. G. and Ms. Roja. K10 has critically evaluated the admissibility
of dying declaration and presents a holistic view. The legal status of dying declaration
has also been discussed to give weightage to the statement by declarant. A
comparative analysis on English and Indian Law referred to ascertain the position of
dying declaration in both the system or whenever the death of person comes into
question, the statement made by declarant in civil as well as in criminal proceeding is
valid or not. In burn cases, sometimes the person is not in a position to give statement
about the incident or not in a conscious state of mind, therefore the dying declaration
can be affected because of the condition of the victim and cannot be reliable in court.
The judges has been given various different views regarding admissibility of dying
declaration and different explanation has also been given by judges to give justice to
the victim as well as to the accused and the religious sanctity has been attached
behind the admissibility of the declaration.
8 Dr. Onkar Nath Tiwari, Cogency of Dying Declaration: Analysis, ILI Law Review, 2018
9 Woodtofee and Amir Ali, Law of Evidence, Vol 2, 19th Ed. (2013)
10 Shivangi. G. & Ms. Roja. K, A Critical Appraisal on Dying Declaration, International Journal of
Pure and Applied Mathematics, Vol 120 No.5, 2018, 1113-1121, at http://www.acadpubl.eu./hub/
(Accessed on 2.2.2019)
6
1.3 RESEARCH OBJECTIVE
1) To study the various principles of the Dying Declaration.
2) To analyze the provision of law regarding Dying Declaration.
3) To Identify the Legal Issues while recording the Dying Declaration.
4) To analyze the restriction or safeguards taken by the judicial system while
relying upon Dying Declaration.
5) To analyze the Present Scenario regarding Dying Declaration and also to
suggest various effective measures which can be undertaken to make dying
declaration as an important tool in the administration of justice.
1.4 RESEARCH QUESTIONS
1) Whether the Dying Declaration can be the sole basis of conviction?
2) What should be the evidentiary value and test of veracity of Dying
declaration?
3) What Safeguards should be taken by the judges while relying upon the Dying
Declaration?
1.5 HYPOTHESIS
Dying Declaration can be the sole basis of Conviction.
1.6 RESEARCH METHODOLOGY
The researcher has adopted in this study doctrinal research methodology i.e. use of
secondary sources. During writing this research, the researcher analysed various
books, articles and journals. The landmark judgments also referred while writing this
research project and other resources also used by the researcher such as Internet
access etc.
7
1.7 CHAPTERIZATION
Chapter 1: This chapter gives an introduction to the concept of dying declaration,
contains statement of problem, literature review, research objective, research
questions, hypothesis and methodology.
Chapter 2: This Chapter contains the historical development of concept of dying
declaration. The evolution of concept of dying declaration also highlights the legal
theory of dying declaration and also analysis of conditions of admissibility under
Indian Evidence Act. Comparative studies of English and Indian law are also
discussed.
Chapter 3: This Chapter would deal with the evidentiary value of dying declaration
to analyze the test of reliability of dying declaration and also the satisfaction of the
court regarding reliability and admissibility of dying declaration in evidence.
Chapter 4: This Chapter contains the forms and methods of recording dying
declaration. The main issues discussed here have been brought out through issues
dealt with by the Supreme Court in its judgment on dying declaration.
Chapter 5: This Chapter would deal with the dying declaration-application in
administration of justice. It include the duty of the courts to test the reliability, sole
dying declaration when it form the basis of conviction, when corroboration of dying
declaration is must, discrepancy in dying declaration, delay in recording dying
declaration, FIR as dying declaration, evidentiary value of dying declaration, where
declarant survives and also mode of proving dying declaration in court.
Chapter 6: This Chapter throw light on the multiple dying declarations: a case study.
This issue will deal with by the Supreme Court in its judgment on multiple dying
declarations.
Chapter 7: Consists of conclusion on present scenario regarding dying declaration
and suggestion regarding safeguards which should be taken by judicial system of the
country and also law commission recommendations.
8
CHAPTER 2
DYING DECLARATION: AN OVERVIEW
The basis of this concept of “Dying Declaration” from the first time recognized by the Court
of England in 18th century and after this the Courts of US adopted this concept and from that,
the scope of dying declaration extended from criminal law to civil law cases.
The Concept of “Dying Declaration” was first recognized in English case of Rex v.
Woodcock,1 which explained the basis of this concept.
The accused was charged with the murder of his wife. The Magistrate recorded her statement
where she disclosed the circumstances of the ill-treatment given to her by the husband and
the witnesses in this case also not available and that lady also died in the mean time. So the
court ruled out the exception to the Hearsay evidence because she told the circumstances of
her death before the magistrate.
EYRE, C.B. laid down the general principle:
“The dying declaration is admitted in the evidence only when these declaration made
in extremity, when the declarant is at the point of death and when every hope of this
world has gone, when every hope to falsehood is silenced, and the mind is induced by
the most powerful considerations to speak the truth.”2
Under English law, the statement of dying declaration is relevant only when the accused has
been charged of murder or manslaughter. In the case of R. v. Mead3 the law laid down was
that the accused was convicted in a case of giving false evidence and obtained from the court
an order for a fresh trial. But in the mean time, he shot dead the one of the witness of the
case. The statement given by the declarant before his death was sufficient to prove the fact
which was material in the case of perjury.
1 (1789) 1 Leach 500
2 R. V. Woodcock (1789) 1 Leach 500
3 (1824) 2 B. & C. 605: 107 E.R. 509 (k.B.)
9
ABBOTT, C.J. said that “In his opinion this type of evidence cannot be received….The
Evidence of this description is admissible only when the death of the deceased is the subject
of charge and the circumstances of his death, the subject of dying declaration.”4
2.1 DYING DECLARATION – A LEGAL THEORY
The dying declaration is based upon the theory that it is the realization of impending death
which operates on the mind of the declarant and such type of declaration considered as
hearsay evidence in other cases but in considering the value of dying declaration it was
presumed by the court that it would be better to consider this statement in homicide cases.5
To prove facts in a Court of law, the evidence on that fact must be required so that court can
pronounce the judgment relating to rights, duties and liabilities of the parties to the suit or the
proceedings. So to prove the matter in dispute, certain kind of evidence must be required such
as oral testimony of witnesses, documents i.e. Primary or the Secondary or other kinds of
evidence also such as direct evidence or the hearsay evidence.
The general rule laid down is that all the evidence which produced before the court must be
direct in nature which means if any evidence refers to a facts which could be seen by the
witness who says he himself saw that fact, if any evidence refers to a fact which the witness
could be heard then he can say that he heard that fact but if any other fact could be Identify
by any other sense then the witness should give evidence in that sense.6
But on the other hand, hearsay evidence is not a direct kind of evidence in which the witness
is not the principal eyewitness because he only heard the facts from the other sources. Thus
Dying Declaration is an exception to the rule of hearsay evidence. Generally the court did not
take into consideration the hearsay evidence because it is not the reliable source but when the
case comes under the Evidence of “Dying Declaration” the court gives weightage to the
evidence of hearsay.
4 R v. Mead (1824) 2 B. & C. 605: 107 E.R. 509 (k.B.)
5 B.B. Panda, Law Relating to Dying Declaration 1 (2010)
6 Section 60, Indian Evidence Act, 1872
10
Thus the court admitted the dying declaration which is an exception to the rule of hearsay
evidence because of the principle of necessity and also took into consideration those
circumstances which rendered impossible for the declarant to depose before the court and
produced himself for the cross-examination also.
2.2 CONDITIONS OF ADMISSIBILITY UNDER SECTION 32(1) OF
INDIAN EVIDENCE ACT
The admissibility of Dying Declaration under the Indian Evidence Act is based upon the two
Important Doctrines i.e. Doctrine of Necessity or the Doctrine of Presumption
1) Doctrine of Necessity: It is the person who is dead because of injuries sustained can
be the principle witness of the case and he can know better about the circumstances of
his death than anybody else.
2) Doctrine of Presumption: It is based upon the presumption that greater sanctity is
attached in the words of that person who is dying and it is presume at this stage that
he will not concoct a story to incriminate an innocent person.
The reason for admitting dying declaration is well reflected by Shakespeare in Richard II
where he said “where words are scarce they are seldom spent in vain: They breathe the truth
that breathes their words in pain.”
2.2.1 ESSENTIAL INGREDIENTS FOR THE ADMISSIBILITY OF DYING
DECLARATION
The following are the Essential Ingredients for the admissibility of dying declaration:7
a) Statement made by person who is dead must be
1) As to cause of his death
2) As to the circumstances of transaction which resulted in his death
b) It is not necessary that a person making statement must be under expectation of his
death
c) Statement is relevant in any proceeding (whether civil or criminal) in which cause of
death of such person is in question.
7 Section 32(1), Indian Evidence Act,1872
11
1) Statement as to cause of his death:
This expression Statement made by person “as to cause of his death” is of great
significance under section 32(1) of the Indian Evident Act because for recording
dying declaration that person’s death must comes into question. For prosecuting the
accused, it must be proved that the injury sustained to the victim was the cause of his
death.
In Moti Singh v. State of U.P.,8 the accused shot the deceased. The victim during the
treatment made a statement relating to the injuries and discharged from the hospital but after
one month of this incident, the victim died. There was no evidence before the court so that
they analyze the exact cause of his death after one month of the incident. So the Supreme
Court in this case held that the Statement given by the deceased in the hospital cannot be used
as dying declaration because it must be proved that his death was the cause of injury he
received in the incident for which the accused is being prosecuted.
The statement must be made about the death of his own but not about the death of any other
person because this statement will not be relevant under section 32(1) of the Act.9
In Ratan Gond v. State of Bihar10 B was murdered by the accused. In the morning, the
mother of B and her sister A were in the house when the mother left the home and when she
returned the home; she found A alone in the house. The mother enquired from A about B.
The girl B made certain statement to her mother but she died on next day. The statement
made by B did not recorded before any judicial authority. Thus the Court held in this case
that the statement which was made by the girl A could not be considered as her dying
declaration because it was not the statement about her death but about her sister’s death.
Therefore, the statement made by A did not come under the purview of Section 32(1) of the
Indian Evidence Act.
8 AIR 1964 SC 900
9 Batuk Lal, The Law of Evidence 283
10 AIR 1959 SC 18
12
2) Statement made by person as to the circumstance of the transaction which
resulted in his death:
The expression used “as to the circumstances of the transaction which resulted in his
death” has been wider in its connotation than the expression “as to cause of his
death.”
In Pakala Narayan Swamy v. Emperor,11 in this case the Privy Council discussed the scope
and extent of this expression, i.e. the circumstances of the transaction which resulted in his
death.”
In this case, the deceased told his wife that he was going to the house of Shri Pakala Narayan
Swamy for receiving the amount of loan which he had given to the Pakala Narayan Swamy
After some days, his body was recovered from the tank and deceased body was cut into
several pieces.
So the Important Issue came into consideration before the Privy Council was that the
deceased person statement which he made to his wife could be admissible under Section
32(1) of the Act or not? The Privy Council held in this case that the statement which was
made by the deceased to his wife was admissible under section 32(1) of the Evidence Act
because this statement made by a person as to the circumstances of the transaction which
resulted in his death.
In this judgment Lord Atkin observed that
“The phrase Circumstances of transaction conveys some limitations. This phrase is
not as much wider as equivalent used in ‘circumstantial evidence’ but narrower than
the term res gestae. The circumstances of any situation must be close to the actual
happenings which are those transactions which resulted into the death of the
declarant. But the main question which should be taken into account by the court that
the death of declarant must come into question before the court.
11 AIR 1939 PC 47
13
The circumstances must be the circumstances of transactions and the general
expressions which indicate fear or suspicion that whether of a particular individual or
otherwise and which is not directly related to that occasion will not be admissible in
evidence.”12
So here it is important to note that, the term “Circumstantial Evidence” is not as broad as the
term “Circumstances of the transaction.” Merely statement made by the person which suggest
the motive of the crime will not be admissible because it must be connected with the
circumstances of the transactions.13
There must be some proximity between the circumstances of the transactions or the actual
recurrence. The statement made by the deceased person as to cause of his death or as to the
circumstances of the transaction which resulted in his death must be connected with that
transaction which must be actual transaction.14
In Sharad Birdichand Sharda v. State of Maharashtra,15 in this case the Supreme Court
first time considered the issue of proximity between time of statement and death. A married
woman had been writing letters about the ill treatment of her in laws to her parents and the
relatives but after four months, she was dead. The court held in this case that her letters can
be considered as dying declaration which is admissible under the Evidence Act. The court
held that the statement was made by the deceased was not too remote in time so that it could
lose their proximity with the question as to cause of his death.
Thus the Supreme Court first time in this case was considered the scope and extent of Section
32 (1) of the Evidence Act and also broadened the scope of this section to prevent injustice
and observed that “the test of proximity cannot be too literally construed and practically
reduced to a cut and dried formula of universal application so as to be confined in a strait
jacket formula.” So the distance of time will depend upon or vary with facts and
circumstances of each case.
12 Pakala Narayan Swamy v. Emperor AIR 1939 PC 47
13 Onkar Ganesh v. State of M.P. 1974 M.P.L.J. 429
14 Sudhakar v.State of Maharashtra AIR 2000 SC 2602
15 AIR 1984 SC 1622
14
b) It is not necessary that person making the statement must be under
expectation of his death
The term “expectation of his death” means that statement can be relevant under
evidence act if the statement made by the person was or was not under expectation of
death at the time of making of the statement. Though the expression “expectation of
death will not affect the relevancy of the statement but will give great weightage to
that declaration.16
In Najjam Faruqui v. State of West Bengal17 the Supreme Court held in this case
that if the person died long after making the statement then these statements has the
same value under section 32(1) of the evidence act.
c) Statement is relevant in any proceeding (whether civil or criminal) in which
cause of death of such person is in question:
It means for the admissibility of the dying declaration, the application of the section
cannot be restricted itself only to the particular proceedings. The proceedings may be
of any nature whether civil or criminal and the only important point which should be
taken into consideration is that “Statement as to cause of his death” i.e. the cause of
death of the person must comes into question, regardless of the type of proceedings.18
2.3 A COMPARATIVE STUDY BETWEEN ENLISH AND INDIAN LAW
The rules relating to dying declaration are different in England from India.
1) In English law, the dying declaration is only admissible in criminal cases where the
death comes into question but on the other hand, In Indian law the dying declaration is
admissible both in civil as well as criminal cases.19
2) The dying declaration is admissible under English law will only deal with the cases ot
Homicide i.e. the murder or the manslaughter but under the Indian law the dying
declaration is admissible in cases of suicide also. For Ex: If the wife committed
16 Bharat v. State of Rajasthan 1981 Cr.L.J. 1274
17 AIR 1998 SC 682
18 Kushal Rao v. State of Bombay AIR 1958 SC 22
19 Sir John Woodroffe & Syed Amir Ali’s, Law of Evidence 1760
15
suicide due to the ill-treatment given by the husband then the husband will liable for
conviction.20
Thus under the English law, Statements are admissible only in the cases of murder or
the manslaughter. The rule was laid down in the case of R v. Mead21 in which the
accused had been convicted for giving false evidence and obtained the order for a
fresh trial. After this, he shot one of the witnesses of the case and he died. But before
death, he gave statement relating to the certain facts which was material in the case of
the accused. Thus the court held in this case that the death of the deceased was the
subject of the charge and gave the circumstances of his death i.e. the subject of dying
declaration.
3) Under English law, the following are the essential requirements which must be
fulfilled before recording the dying declaration:
a) In English law for admissibility of the dying declaration, the statement of the
declarant is admissible only when the cause of his death comes into question.
Thus it means that the person must be in real danger.
b) The declarant must be aware of that danger.
c) That death should have ensued.22
The requirements which are laid down in clause (a) or clause (b) are not required under the
Indian Law. Thus whether the person was in the real danger of death or not at the time of
making of the statement will not affect its admissibility in the evidence which is produced
before the court of law in India but the requirement which is laid down under clause (c) must
be fulfilled under the Indian law because the Section 32(1) of the Indian Evidence Act comes
into question only when the declarant died and no chances of survive.23
20 Supra note 19
21 (1824) 2 B & C 605: 107 E.R. 509 (K.B.)
22 Roscoe, Criminal Evidence 32-33
23 Norton, Evidence 175
16
CHAPTER 3
EVIDENTIARY VALUE OF DYING DECLARATION
3.1 TEST OF RELIABLITY OF DYING DECLARTION:
In a case, Mr. Justice Mahajan observed that it is settled principle of law that
accused cannot be convicted merely on the statement of dying declaration without any
further corroboration. The statements of dying declaration are not made on oath in
court of law and the declarant cannot be produced for cross-examination. The
declarant while giving this statement may not be in his conscious state and may draw
up his imagination.1
But the Supreme Court of India in Kushal Rao v. State of Bombay overruled the
decision given in the case of Ram Nath and laid down the certain test of reliability for
the admissibility of the dying declaration.
The following tests laid down in Kushal Rao v. State of Bombay2 for the
admissibility of dying declaration in evidence are as follows:
1. There is no absolute rule of law which is laid down in any case that dying declaration
cannot be the sole basis of conviction unless it is corroborated.3
2. The Court must determine each case according to the facts and circumstances in
which the declarant made the dying declaration.
3. The dying declaration is not a weak type of evidence and reliable as any other type of
evidence.
4. That statement of dying declaration made by the declararnt placed on the same
position as any other type of evidence and this statement has to be scrutinized
according to the surrounding circumstances and must be based on some principles
which give weigthage to the evidence of dying declaration.
5. A dying declaration must be recorded by a competent authority i.e. the Magistrate.
1 Ram Nath v. State of M.P. AIR 1953 SC 420
2 AIR 1958 SC 22
3 Munnu Raja v. State of U.P. AIR 1976 SC 2199
17
6. In order to test the reliability of circumstances for ex: whether the declarant had the
capacity to remember those facts which is stated by him and not impaired by him
because sometime the circumstances beyond the control of the declarant.
7. That the statement made by the declarant must be consistent at the time while he is
making the statement as well as after making of the statement.
8. That the statement must be made as soon as possible so that it can be reliable and not
the result of tutored version.
Thus in this case,4 the court held that for the admissibility of dying declaration in evidence
when the court comes to the conclusion that the declarant made the statement in a reliable or
truthful manner as to cause of his death or the circumstances of the transaction which resulted
in his death, then the court has no other option but to record the dying declaration without any
further corroboration. But on the other hand, if the statement of the declarant suffers from any
infirmity then the dying declaration cannot be the sole basis of conviction unless it is
corroborated with the material particulars.
3.2 SATISFACTION OF THE COURT REGARDING RELIABILITY OF
DYING DECLARATION:
Admissibility of the dying declaration is the first stage and once the court admitted it then the
second stage comes, where the court satisfy itself regarding the reliability of the dying
declaration.
The position of the law i.e. the Satisfaction of the Courts regarding reliability summed by the
court in the case of Kundula Bala Subrahmanyam v. State of A.P.5 the court cannot take
the statement of dying declaration on oath from the declarant and also the declarant cannot be
subject of cross-examination. The statements are an exception to the hearsay rule becuase the
reliability of the dying declaration based on the necessity principle where the court has to
scrutinize all the facts while arriving at a conclusion. Thus the court while relying upon the
dying declaration to convict the accused satisfy itself that the declarant must be in a
conscious state of mind and also capable of making the dying declaration.
4 Kushal Rao v. State of Bombay AIR 1958 SC 22
5 (1993) 2 SCC 684
18
For the Evidentiary value of dying declaration, Justice Mohan in Paniben v. state of
Gujarat6 summed up the various principles which governed the dying declaration which was
laid down in several judgments of the Supreme Court.
1. There is no rule of law that for admissibility of dying declaration it has some
corroborative value. The court can rely upon the dying declaration without any
corroboration.7
2. If the statement made by the declarant is true and voluntary, the court can rely upon
these statements.8
3. The court while relying upon the dying declaration has to scrutinize very carefully
and must satisfy itself that dying declaration is not the result of tutoring, promoting or
imagination of the declarant. The Declarant had an opportunity to observe and
identity the accused and he was in a conscious state of mind to make declaration.9
4. Where suspicious dying declaration made by the declarant, the court should not be
relied upon without any corroboration.10
5. Where declarant while making the statement was not in a conscious state of mind then
the dying declaration cannot be relied upon by the court.11
6. The statement made by the declarant which suffers from any infirmity cannot form
the sole basis of conviction.12
7. Sometimes the statement of dying declaration only contains the details of occurrence,
then it cannot be the ground of rejection.13
8. If the statement of dying declaration is in brief form, then it cannot be rejected by the
court.14
6 AIR 1992 SC 1817
7 Munnu Raja v. State of U.P. AIR 1976 SC 2199
8 State of U.P. v. Ram Sagar Yadav AIR 1985 Sc 416
9 Ramachandra Reddy v. Public Prosecutor AIR 1976 SC 1994
10 Rasheed Beg v. State of Madhya Pradesh AIR 1974 SC 332
11 Kake Singh v. State of M.P. AIR 1982 SC 1021
12 Ram Manorath v. State of U.P. (1981) 2 SCC 654
13 State of Maharshtra v. Krishnamurthi Laxmipati Naidu AIR 1981 SC 617
14 Surajdeo Oza v. State of Bihar AIR 1979 Sc 1505
19
9. Sometimes the court can rely upon the medical certificate for the fit condition of the
declarant but when the eye witness deposed before the court that the declarant while
making the statement was in a fit condition that the medical opinion will not prevail.15
10. Where the prosecution story differs from the statement of the declarant then the dying
declaration cannot be relied upon.16
15 Nanahau Ram v. State AIR 1988 SC 912
16 State of U.P. v. Madan Mohan AIR (1989) 3 SCC 390
20
CHAPTER 4
FORMS AND METHODS OF RECORDING THE DYING
DECLARATION
4.1 FORM OF DYING DECLARATION
In recording the dying declaration, there is no such format has been prescribed under the
Indian Evidence Act and no particular form has been available but the recording can be made
in the form of oral as well as written. The declarant can record his dying declaration in the
form of signs or gestures and also in the form of questions and answers.
4.1.1 ORAL DYING DECLARATION
In Bable v. State of Chattisgarh1 the court held in this case that oral dying declaration can
also be taken into consideration and considered as an exception to the hearsay rule under
Indian Evidence Act. The oral dying declaration means by “words” and it is no where
mention that dying declaration should be in written or in the question answer form. But the
oral dying declaration must be reliable and trustworthy and should be scrutinize in strict sense
to form the basis of conviction. Sometimes the oral dying declaration should be corroborated
with the material particulars because it can be considered as weak type of evidence. In
proving the oral dying declaration, the court can take into consideration the corroboration in
ascertaining that whether the oral dying declaration was reliable or not.
In Nana Babu Pawar v. State of Maharashtra2 in this case, the court held that it is settled
principle of law that dying declaration can form the sole basis of conviction but the court
must satisfy itself about the truthfulness of the statement made by the declarant and the
declarant must be in a fit state of mind while deposing the declarant. So it is the responsibility
of the court to take into account the truthfulness of the dying declaration but when it is
doubtful in ascertaining the truthfulness then it is highly unsafe to convict the accused on the
sole basis of the dying declaration without corroboration with the material particulars.
1 AIR 2012 SC 2621
2 (5.01.2018 -Bombay High Court)
21
In Satyaprakash S. Dahiwale v. State of Maharashtra,3 the deceased made oral dying
declaration to the totally stranger person who was later considered as a witness in this case
and deposed before the court the name of the accused which deceased deposed before him so
this statement was believed by the court and the court upheld the conviction of the accused
under Section 302 of Indian Penal Code.
4.1.2 WRITTEN DYING DECLARATION
The statement given by the declarant in document form can be considered as written dying
declaration which means in writing. But generally it can be seen that there is less chance of
written dying declaration by the declarant because of the health condition of the declarant and
not in a position to write the cause and circumstances of the transaction which resulted into
his death. Thus now days the court are admitting the oral dying declaration on the one hand
as well as the statement made by sign or gestures by the declarant on the other. Sometimes a
letter which shows the cause of death and also circumstances of the transaction which
resulted in to his or her death can be considered as dying declaration under Section 32(1) of
the Indian Evidence Act.4
4.1.3 STATEMENT MADE BY SIGN AND GESTURE OR IN ANY OTHER
MANNER:
The statement made by the declarant by sign and gestures are also admissible as an evidence
as in the case of Queen Empress v. Abdullah5 where the Full Bench of Allahabad High
Court observed that the throat of the girl was cut by the accused person and sue to this injury,
the girl was unable to speak regarding the name of accused person but the girl signed the
name of the accused person so that the court can identify the accused and thus in this case the
court laid down that the sign made by the deceased girl would be consider as her dying
declaration and also some evidentiary value in the eye of law.
3 2007 Cr.L.J. 607
4 Nanahu Ram v. State AIR 1988 SC 912
5 ILR 7 ALL 385
22
In an acid attack case, due to multiple burn injuries on the various parts of body such as face,
neck and mouth etc, the declarant was unable to speak but the statement recorded by the
magistrate by the sign or the gesture of the declarant but there were lots of discrepancies in
the statement and also the court came to the conclusion that it was the tutored dying
declaration and justice L.S. Panta observed that although the dying declaration made by sign
or gesture can be admissible under evidence but when it does not inspire full confidence then
it is highly unsafe to upheld the conviction on the doubtful dying declaration. It is the duty of
the court to determine the credibility of the dying declaration and it is no doubt that dying
declaration made by sign or gesture can be admissible in court of law but it should be
inspired with full confidence and if sometimes required corroborated with material
particulars.6
Statement made by the declarant can also include in the form of questions and answers it
means that the dying declaration can be recorded in the question and answer format where
merely the person recording the dying declaration can simply put the questions regarding the
injuries or the circumstances of the transaction and the declarant had to depose only the
answers put on by that person and this question answer conversation can be considered as
dying declaration and also admissible.7 The court observed that there is no universal rule
relating to the format of dying declaration that it is to be recorded in the question and answer
form but the court mostly prefer that the recording of the dying declaration should be in
questions and answer forms.
In recording the dying declaration in question and answer form, the precise question should
be asked to the declarant so that declarant can be in a position to answer that question and the
answer obtained from the declarant must be in actual words or otherwise true interpretation
should be given to the words obtained from the declarant and dying declaration recorded in
the question and answer form must be in the words of the declarant because it will give much
reliance to the statement and will provide a better mode in ascertaining the truth and the court
should not be discarded the dying declaration merely on the basis that it was not recorded in
the question and answer form.8 But in a case, it was observed by the court that when the
dying declaration has been recorded by Magistrate then the recording of the statement should
6 J Ramulu v. State of A.P. AIR 2008 SC 1505
7 Maniben v. State of Gujarat AIR 2007 SC
8 L.R. Khan v. Union of India 1992 Cr.L.j. 2644 (Cal)
23
be in the form of question and answer but if the magistrate gives the evidence that the
recording of the statement as per narrated by the declarant then the non recording of the
statement in the form of question and answer will not reject the credibility of the dying
declaration. Therefore the court realized that it will depend on the circumstances of the case
that whether it should be recorded in question and answer form or not.9
In Satish Chandra v. State of Madhya Pradesh10 the court discussed the position regarding
dying declaration made by declarant should be recorded in the question and answer form but
the court observed that it cannot be the merely ground for discarded the dying declaration.
For admissibility of dying declaration, if it fulfil the requirement provided under Section
32(1) of Indian Evidence Act then the dying declaration can be admissible and during
recording the dying declaration, no interested person should remain there.
In Vijay Pal v. State (NCT) of Delhi11 for recording dying declaration the Supreme Court in
this case laid down some guidelines which are as follows:
When a injured person brought in a hospital, the hospital staff should considered the
case as medico-legal case and also inform the police.
If the doctor opined that death will ensue then he should immediately report the
matter to the police.
Then the police should record the dying declaration of the declarant or the statement
of injured person.
It is the duty of Police Officer to inform the jurisdictional Magistrate regarding
occurrence so that he can examine the injured person.
If it is not feasible for Magistrate to examine the person personally then he can depute
other senior official.
The Investigating Officer has to testify that he inform the Magistrate and on whose
behalf other responsible person was deputed for the recording of dying declaration.
9 Surinder Kumar v. State of Punjab (2012) 12 SCC 120
10 (2014) 6 SCC 723
11 AIR 2015 SC 1495
24
4.2 METHOD OF RECORDING DYING DECLARATION
Dying declaration can be recorded by any person, Magistrate, Doctor and Police.
4.2.1 DYING DECLARTION RECORDED BY ANY PERSON
Dying declaration can be recorded by any person. The family members of the deceased
person can also record the statement made by the declarant because great sanctity attach with
the statement made to the near one and can be admissible but in this dying declaration there
can be highly chance of biased practices of the family member. The tampering of dying
declaration can be possible out of those malafide intentions. The court usually reluctant in
admissibility of dying declaration in Evidence, if dying declaration recorded by any private
person other than the family members.12
In Arvind Singh v. State of Bihar13 in this case, declarant made statement to the mother but
due to various infirmities in the dying declaration made to the mother, the Supreme Court
refused to rely on such dying declaration.
In Ramakant Mishra v. State of U.P.14 in this case, the Supreme Court refused to rely on
the dying declaration which was made by the declarant to the brother.
4.2.2 DYING DECLARATION RECORDED BY MAGISTRATE
It is settled principle of law that the recording of dying declaration by a competent magistrate
gives so much reliance on the dying declaration and give high weightage to the statement as
well as enhance the evidentiary value of the statement.15 But sometime an important question
arises that whether such statement should be recorded only by the Judicial Magistrate or any
other person can record the dying declaration and it is no where specifically mention that it
should be recorded only by the Magistrate but the recording of the statement by the
Magistrate only give more sanctity to that statement. The purpose behind giving much
reliance on the dying declaration recorded by the magistrate is that the Magistrate can be
considered as an impartial person and disinterested witness or a responsible authority who
12 Danddu Laxmi Reddy v. State of A.P. AIR 1999 SC 3255
13 AIR 2001 SC 2124
14 AIR 1982 SC 1552
15 Rajendra v. State of Maharashtra AIR 2000 SC 29
25
will not fabricate the statement given by the declarant and the court relies on the truthfulness
of the dying declaration recorded by Magistrate.16
Whether the dying declaration can be recorded by an Executive Magistrate then in the case of
State of U.P. v. Nawab Singh17 the court held that the recording of dying declaration by an
Executive Magistrate who has not been empowered as Judicial Magistrate can also be
admissible under the Evidence Act.
The Magistrate recorded the statement made by the declarant under Section 164 of the
Criminal Procedure Code and in case when Magistrate is not present or not available at the
time of making of the statement then it is the duty of the doctor to record the dying
declaration of his patient. In recording the dying declaration it is the duty of the Magistrate to
take precaution that the statement given by the declarant should be free from infirmities and
should not be tutored and Magistrate should also ensure that declarant was not in the
influence of anyone.18
In Bhaskar v. State of U.P.19 it was held by the court that before recording the dying
declaration by Magistrate, the Magistrate should obtain the certificate from the doctor so that
he can analyze the fitness of the declarant but in this case there was discrepancy regarding the
certificate which has not been produced and the court discarded the credibility of the
Magistrate.
The Madras High Court20 laid down some guidelines for Magistrate in recording the Dying
Declaration:
The Magistrate after recording dying declaration of the declarant shall under his direct
supervision arrange two photocopies and will certify as true copy.
The original Dying Declaration shall be sent to the jurisdictional Magistrate in sealed
cover or through a special messenger or by registered post in court with
acknowledgment due.
16 S.D. Koli v. State of Maharashtra AIR 2009 SC 1059
17 1996 Cr.L.J. 934
18 Ramawati Devi v. State AIR 1993 SC 164
19 2005 Cr.L.J. 48
20https://www.livelaw.in/madras-hc-lays-guidelines-recording-witness-statements-confessions-dying-
declarations-tip-reports-read-judgment/ Crl.O.P. No.12148 of 2017
26
The Magistrate shall furnish the photocopy to Investigating Officer at free of cost and
also give a direction that the copy will only be use by the officer for Investigation
purposes. The copy will not be available for public until the final report submitted by
the officer concerned.
The Magistrate shall keep the certified copies in safe custody in sealed cover so that
no one can misuse of such dying declaration.
4.2.3 DYING DECLARATION RECORDED BY POLICE
A Police Officer can also record dying declaration under Section 32 of the Indian Evidence
Act and the statement made by the declarant before police officer can be treated as dying
declaration but for completing the Investigation on time, the Investigating Officer can be
Interested person in the completion of the Investigation process so generally the court hesitate
in relying upon the dying declaration recorded by the Police Officer. Therefore whenever a
dying declaration recorded by Police Officer then it is duty of the prosecution to satisfy the
court that why the dying declaration was not recorded by the Judicial Magistrate.21
In Ramawati Devi v. State of Bihar22 the Supreme Court held in this case that the assistant
sub-inspector of police recorded the dying declaration and the court observed that the dying
declaration has to be scrutinize properly if it is not recorded by Magistrate but if after
scrutinize the dying declaration, the court satisfy itself that dying declaration is truthful and
reliable then the court can convict the accused person on the basis of such scrutiny. Thus the
court held in this case that dying declaration recorded by the sub-inspector of police was
truthful and wholly reliable and the court upheld the conviction of the accused on the basis of
such dying declaration.
In State of Karnataka v. Shariff,23 the Supreme Court held that generally the court reluctant
in the admissibility of the dying declaration recorded by Police Officer but it cannot be the
sole ground for discarded the dying declaration. The deceased wife made statement about her
injuries to the A.S.I. Then the question came before the court that whether this statement
which has been made to police office can be taken into consideration by the court as evidence
21 Dalip Singh v. State of Punjab AIR 1979 SC 1173
22 AIR 1983 SC 164
23 AIR 2003 SC 1074
27
and the court observed that it cannot be the sole ground for discarded the statement because it
has been made to police officer and it is no where mention that dying declaration should be
recorded by only Magistrate.
EVIDENCIARY VALUE OF DYING DECLARATION RECORDED BY POLICE
OFFICER
In the case of Munnu Raja v. State of M.P.24 the court observed that the recording of dying
declaration by Police officer should not be encouraged as a matter of routine because other
methods are also available in recording the statement which can be more reliable or
trustworthy and this practice should not be encouraged and also the court laid down some
guidelines regarding the recording of dying declaration by Police Officer such as:
1) A Police Officer during the course of investigation can record the dying declaration
which can be admissible as evidence.
2) In taking into account, the exception which has been provided under Section 162(2) of
the Criminal Procedure Code, 1973, the court should leave statement out of
consideration. Therefore whenever a dying declaration recorded by Police Officer
then it is duty of the prosecution to satisfy the court that why the dying declaration
was not recorded by the Judicial Magistrate.
3) Dying Declaration cannot be the sole basis of conviction if it is made to an
Investigating Officer.
4) The practice of recording the dying declaration by police officer should not be
encouraged as a matter of routine and if possible, the police officer should avail the
service of Magistrate.
In Shaikh Rafiq Gafoor Shaikh v. State of Maharashtra,25 in this case the Supreme Court
relied upon case i.e. Ramawati Devi v. State of Bihar, in this case, the declarant made a
statement to the police station in-charge and the doctor endorsed that the patient was in a fit
state of mind. The court held that it is not necessary that the dying declaration should be
recorded by the Magistrate; the police officer also has the power to record the dying
declaration and can be admissible in court of law.
24 AIR 1976 SC 2199
25 Shaikh Rafiq Gafoor Shaikh v. State of Maharashtra (21.2.2014-SC)
28
4.2.4 DYING DECLARATION RECORDED BY DOCTOR
It is not necessary that dying declaration should be recorded either by the Magistrate or by the
Police Officer; a Doctor can also record the statement of his patient who is dying at that time
and when he cannot avail the service of Magistrate or the Police Office for recording the
dying declaration. If the Doctor opined that the deceased was in a conscious and in fit state of
mind then the conviction of accused on such statement recorded by Doctor is not illegal and
will be considered under Section 32 of Indian Evidence Act. The other reason could be
disinterested person in the making of dying declaration and the court has no justification for
discarded the dying declaration recorded by Doctor.26
The following are the essential consideration when a Doctor records the Dying Declaration:27
1) When the services of Magistrate and Police Officer not available then it is the duty of
the Doctor to record the statement of the declarant.
2) The ding declaration recorded by the Doctor should be in the form of question or
answer.
3) The Doctor should specifically mention in the dying declaration regarding the fit state
of mind of the person.
4) It is the duty of the doctor to satisfy itself that the declarant was in a conscious state of
mind while making the dying declaration and the statement made by the declarant
should be voluntary.
DOCTOR’S OPINION REGARDING FITNESS OF THE DECLARANT
In recording the dying declaration, the opinion of Doctor regarding fitness of the Declarant
i.e. physical as well as mental fitness plays an important role because the Doctor can be the
competent person who can speak properly about the condition of the Declarant. If the Doctor
certifies regarding the fit condition of the declarant and deposed before the court that
declarant while making the declaration was in a fit state of mind then the court has no option
but to take into account the reliability of the dying declaration.28
26 AMA Rehman v. State of Gujarat AIR 1976 SC 1782
27 Sambhu B. v. State of M.P. AIR 2012 SC 1309
28 Gulzarilal v. State of Haryana AIR 2016 SC 795
29
In Suresh v. State of Madhya Pradesh29 the accused poured kerosene on his wife and set
her ablaze. The statement was recorded by the Doctor who was present at that time in the
hospital and also doctor opined that declarant was in his senses and also deposed before the
court and the Supreme Court rely upon the dying declaration recorded by the Doctor and
convicted the accused for murder of his wife under Section 302 of Indian Penal Code.
In Gaffar Badshaha Pathan v. State of Maharashtra30 in this case, the court observed that
dying declaration cannot be discarded by court merely on the ground that opinion of doctor
regarding fitness of the declarant was not taken before recording the dying declaration. The
medical opinion will only provide the Information regarding the fitness of the declarant.
MEDICAL CERTIFICATE OF DOCTOR
In a latest decision of in Poonam Bai v. State of Chattisgarh,31 the Supreme Court clarified
the position regarding the necessity of the medical certificate of doctor in recording the dying
declaration. The Supreme Court observed in this case that only requirement regarding which
has to be fulfilled is that the declarant must be in a fit and conscious state of mind while
making the dying declaration and it is no where mandatory that it should be certified by the
doctor and the court cannot merely rejected on the sole basis that the doctor was not certified
the dying declaration. It will only depend on facts and circumstances of each case.
In Gulzari LaL v. State of Haryana32 a case was registered against the three accused i.e.
Om Prakash, Gulzari and Kuldeep because they committed the murder of Maha Singh. He
was brought to the Civil Hospital, Hisar where the statement of the declarant was recorded by
head constable Manphool Singh and the Doctor endorsed that Maha Singh was in a fit and
conscious state of mind while making the statement. The three accused was convicted and
Session judge of Hisar sentenced them life imprisonment with a fine of 200 Rs. The accused
persons appealed before the Punjab and Haryana High Court and the counsel who appeared
on behalf of appellant in this case contended that when the declarant made the dying
declaration at that time he was not in conscious state of mind so the dying declaration cannot
be reliable.
29 AIR 1987 SC 860
30 (2004) 10 SCC 589
31 30.4.2019 SC
32 AIR 2016 SC 795
30
Then the important question came before the Supreme Court in this case that whether in
recording dying declaration obtaining fitness certificate from Doctor is mandatory or not?
The Supreme Court upheld the decision made by High Court who rely on the dying
declaration and found no infirmities and the court held that it is not mandatory to record the
dying declaration only after obtaining fitness certificate from the Doctor and statement can be
made without fitness certificate from Doctor.
In State of M.P. v. Dal Singh,33 the court observed that for admissibility of dying declaration
in court obtaining certificate from doctor to ascertain the fitness of declarant in recording the
dying declaration cannot be the essential requirement in each case.
In Om Prakash v. State of Punjab34 the deceased died due to burn injuries and in making
the dying declaration, the certificate was not obtained from the doctor regarding the fitness of
the deceased but the doctor was present at the time of making of statement. The court held
that accused can be convicted on the basis of such dying declaration.
EVIDENTIARY VALUE OF DYING DECLARATION IN THE ABSENCE OF
DOCTOR’S OPINION REGARDING FITNESS
In Sher Singh v. State of Punjab35 in this case, the Supreme Court discuss the evidentiary
value of dying declaration in the absence of Doctor’s Opinion regarding fitness and observed
that for admissibility of dying declaration in court the absence of doctor’s opinion will not
reduce the value attach to the declaration because it cannot be considered as an essential
requirement for the admissibility. But doctor’s opinion can be considered as a reliable source
that the declarant was in fit as well as in conscious state of mind and can be considered as
rule of caution. The court held that if the dying declaration has recorded by Magistrate and
also deposes before the court that at the time of declaration, the declarant was in fit state of
mind then the court can take into account such dying declaration.
33 AIR 2013 SC 2059 34 AIR 1993 SC 138 35 AIR 2008 SC 1426
31
In this case, Justice PP Naolekar, explained the position:
“The Court generally take into consideration the medical evidence for the admissibility of
dying declaration because such type of evidence enhance the value but in some situation if
the person who record the declaration himself satisfy before the court that at the time of
making of declaration, the declarant was in a fit state of mind then the medical opinion give
by doctor will not prevail over oral testimony of that person.”
32
CHAPTER 5
DYING DECLARATION-APPLICATION IN
ADMINISTRATION OF JUSTICE
5.1 INTRODUCTION
The basis of any legal system is to give justice and every legal system in the world has their
own mechanism so that justice can be served. For proving the evidence in a court of law,
Oath is necessary but now, it is settled principle of law that for recording the dying
declaration, no oath is required because no one will tell a lie from his mouth at this stage. The
statement of the declarant cannot be called into question in the witness box as well as subject
to the cross examination by the court unless suffer from infirmity. Dying man at the time of
death will only speak the truth and this is the main reason for giving the dying declaration so
much importance by the courts these days and the conviction can be held on the sole basis of
dying declaration if the courts satisfy itself that conviction will not be prejudice to the rights
of the accused.1
In Dashrath @ Champa and another v. State of Madhya Pradesh2 the Supreme Court has
observed:
“The main reason to accept the truthfulness of the statement of dying declaration is
that the person who is dying is on the deathbed and court cannot reject the testimony
of the declarant on this stage, where every hope of this world has gone. That is the
reason the court dispensed with the procedure of oath of the decalarant as well as his
cross-examination in the court and if the court will not take into consideration this
statement then it will lead to miscarriage of justice for the victim who is principle eye
witness in that crime and for doing justice to the victim it is required for the court to
take into account the value of the statement made by the declarant.”
1 Best W.M. The Principles of Law of Evidence 41(9th Edition)
2 (2011) 10 SCC 173
33
In Surinder Kumar v. State of Punjab3 in this case the court held that if the dying
declaration made voluntary, it can be sole basis of conviction without any further
corroboration and for the proper recording of this statement is on the magistrate which will
ensure that it will serve the very purpose of justice.
The admissibility of the statement in court of law as an evidence has been considered as an
important tool in the administration of justice as well as an integral part of a judicial system.
5.2 DUTY OF COURTS TO TEST THE RELIABLITY OF DYING
DECLARATION
To admissible the dying declaration in court, it is the duty of the court to ascertain the
relevant factors on which the court can rely that whether the declarant at the time of making
of statement was in fit and conscious state of mind or whether the statement was the result
any tutoring? And when the court found that the dying declaration made by the declarant is
true and voluntary then it can be the basis of conviction of the accused without any further
corroboration.4
In Patel Hiralal Joitaram v. State of Gujarat5 the court observed that admissibility of
dying declaration as evidence is first step and once the court admitted the dying declaration
then next step arises is that the reliability of dying declaration and if it is found positive then
the court can take into account the admissible dying declaration. The reliable dying
declaration can be considered as substantive evidence without any further corroboration.
5.3 SOLE DYING DECLARATION WHEN IT FORM THE BASIS OF
CONVICTION:
In Bapu (Nandu) Prabhu Koli @ Raut v. State of Maharashtra,6 in this case deceased
Varsha made sole dying declaration that she herself poured kerosene and therafter her
husband was set her on fire. But the version of Prosecution story was totally different from
the version of Varsha’s declaration and the dying declaration was recorded by police. The
court observed in this case that it is highly unsafe to rely upon the sole dying declaration
3 (2012) 12 SCC 120
4 State of Bihar v. D.K. Mahta, 2000 (3) Crimes 312 (Pat)
5 AIR 2001 SC 2944
6 23.7.2018 SC
34
made by the deceased Varsha because it has some discrepancies and also not corroborated by
other evidences or with the material particulars. Thus the court held that the accused cannot
be convicted on the basis of such sole dying declaration.
5.4 WHEN CORROBORATION OF DYING DECLARATION IS MUST
Dying Declaration can be the sole basis of conviction of accused person without any further
corroboration but sometimes the situation arises according to the circumstances of the case
which require the Corroboration of dying declaration with the other evidences or with the
material particulars and the court has to scrutinize those circumstances very carefully which
renders the corroboration highly effective.7
In Sampat Babso Kale & Anr v. State of Maharashtra8 the Bombay High Court convicted
the accused and his sister from the charges of murder of his wife. But the Supreme Court
comprised of two judges bench i.e. Justice SA Bobde and Justice Deepak Gupta acquitted the
accused person. In this case, the Supreme Court observed that accused can be convicted on
the sole basis of dying declaration without any further corroboration but where the doubt
arises regarding the fitness of the declarant while making the declaration then the
Corroboration of dying declaration is must. The doctor endorsed after about the fitness of the
declarant but not before making of the statement by the declarant. Then the court found that
there is need for Corroboration in this present case.
5.5 DISCREPANCY IN DYING DECLARATION: ITS CREDIBILITY
In Jai Karan v. State (N.C.T. Delhi)9 the doctor who recorded the statement in this case had
not read the statement before the deceased and also had not taken the sign or thumb
impression of the deceased. A witness also deposes before the court that the deceased was not
in a position while making the statement. Thus the court held in this case that accused person
could not be convicted merely on the sole basis of such dying declaration made by deceased.
7 Vinay Kumar v. State of M.P. AIR 1994 SC 830
8 9.4.2019 SC
9 1999 Cr.L.j. 4529 (SC)
35
In Ganpat Bakramji Lad v. State of Maharashtra,10 in this case the full bench of High
Court of Bombay observed that dying declaration was not read over the person who made
the declaration and the question came before the three judge bench comprised of Justice
RK Deshpande, Justice SB Shukre and Justice MG Giratkar that whether the statement
made by declarant can merely be rejected on the ground that it was not read over to the
person who made the declaration? The Court analyze this case in the light of other decided
cases and held that there is no proper format has been required for recording the dying
declaration and it is no where mention that in written dying declaration, there is
requirement to read over the declaration to the declarant. It can be considered only as a
minor discrepancy and the dying declaration will not be unreliable because of such
discrepancy.
In Darshan Singh v. State of Punjab11 the wife receive burn injuries and remain alive in
hospital about eight days. The uncle visited in the hospital and she told to the uncle that her
husband set her ablaze. But the court did not take into consideration the dying declaration
because there were some discrepancies such as husband’s name was wrongly mentioned
and also seems that dying declaration was tutored by Uncle.
5.6 DELAY IN RECORDING DYING DECLARATION
In recording the dying declaration, there should not be an unnecessary delay because the
unnecessary delay will reduce the value attach to the dying declaration but the court on
various occasions laid down that if delay is reasonable and also the situation arises which
requires, then the delayed dying declaration can be admissible but those circumstances
which leads to the delay in recording should be explained to the court by the Prosecution.12
In Koli Chunilal Savji v. State of Gujarat,13 the Mgistrate recorded the dying declaration
five hours later after happening of the incident. But the Supreme Court held in this case
that there was no inordinate delay in recording the dying declaration which could lead to
an assumption that it was tutored dying declaration so the dying declaration was admissible
in court.
10 9.3.2018 (Bombay High Court)
11 (1983) 2 SCC 411
12 G.S. Walia v. State of Punjab (1998) 5 SCC 150
13 AIR 1998 SC 2857
36
In State of Maharashtra v. H.K. Chanriwal14 the court observed the first opportunity
rule in making the dying declaration that seems to be reasonable and the opportunity
depend on the facts and circumstances of each case because sometime in one case the
delay of days will not reject the credibility of dying declaration but on the other hand in
other case, the delay of an hour can reject the credibility of dying declaration.
5.7 FIR AS DYING DECLARATION
In K. Ramachand Reddy v. Public Prosecutor,15 the First Information Report was
lodged by an injured person before the Police Officer and then he died. In this case the
Supreme Court held that the FIR registered by the injured person can be considered as
dying declaration and also admissible in court.
In Jai Prakash v. State of Haryana16 in this case an Important question came before the
Supreme Court that whether the Complaint made by the person to the police officer can be
taken into consideration by the court as dying declaration or not? A woman narrated the
incident in the form of complaint in the hospital to the police officer regarding accused
persons who poured kerosene on her and set her ablaze. But the statement was not recorded
by the police officer in the question answer form and also medical certificate regarding
fitness was also not obtained. But the Court observed in this case that although the
statement was not in form of question and answer then still it can be considered as dying
declaration made by declarant in the form of complaint.
In a latest decision of Pradeep Bisoi @ Ranjit Bisoi v. State of Odisha17 the Supreme
Court comprised the Bench of Justice AK Sikri and Justice Ashok Bhushan heard an
appeal preferred against the decision of High Court of Orissa where the High Court
convicted the appellant and five year rigorous imprisonment under Section 304 Part II of
Indian Penal Code. The main contention of counsel of appellant was that the statement
recorded under Section 161 of CrPC of an injured person cannot be considered as dying
declaration because the death of the victim occurred after three months of the incident. The
court observed that statement which was recorded under Section 161 by police falling can
14 AIR 2016 SC 287
15 (1976) 3 SCC 104
16 1999 Cr.L.J. 837
17 10.10.2018 SC
37
be admissible under Section 32(1) of Indian Evidence Act and can be considered as dying
declaration.
5.8 EVIDENTIARY VALUE OF DYING DECLARATION WHERE
DECLARANT SURVIVES
It is necessary to analyze the Evidentiary value of dying declaration, where declarant
survives and if the declarant survives then the statement cannot be used by the court as
substantive piece of evidence but the statement can be used for the purpose of
corroboration under Section 157 IEA i.e. In order to corroborate the testimony of a
witness, any former statement made by such witness relating to the same fact, at or about
the time when the fact took place, or before any authority legally competent to investigate
the fact, may be proved18 and for contradiction under Section 145 IEA i.e. A witness may
be cross-examined as to previous statements made by him in writing or reduced into
writing and relevant to matters in question, without such writing being shown to him, or
being proved; but if it is intended to contradict him by the writing, his attention must,
before the writing can be proved, be called to those part of it which are to be used for the
purpose of contradicting him.19
The surviving declarant will be considered as a competent witness in the court to prove the
statement made by him. Thus it is important to analyze the relevancy of such statement
where declarant survives.20
In Ram Prasad v. State of Maharashtra21 the Supreme Court observed in this case that
the person who made the statement survives later on then his statement cannot be used
under Section 32 of Indian Evidence Act as dying declaration but if the statement made by
declarant before Magistrate then it can be used for Corroboration and for Contradiction of
his testimony and the statement will consider as a part of the statement recorded during
investigation.
18 Section 157, Indian Evidence Act 1872
19 Section 145, Indian Evidence Act 1872
20 Ram Singh v. Sonia AIR 2007 SC 1218
21 AIR 1999 SC 1969
38
In Ranjit Singh v. State of Maharshtra22 if the injured person survives after making the
statement then the statement cannot be considered under Section 32 of IEA as dying
declaration but can be treated as high degree as compared to the statement recorded by
police under Section 161 CrPC and the statement can be used for corroboration as well as
for contradiction.
5.9 MODE OF PROVING DYING DECLARATION IN COURT
In Kans Raj v. State of Punjab23 in this case, the court discuss the mode of proving dying
declaration and observed that when the oral dying declaration made by declarant then the
oral dying declaration can be proved in court by examining the person who at the time was
present when the declarant was making the statement. But when the dying declaration
recorded by the person i.e. whether it is Magistrate, Doctor, Police Officer or any other
person then it can be proved by examining that person before the court. If the dying
declaration in the writing of scribe, then he should be produced before the court and if the
declaration made by the declarant in verbal form then it can be proved by examining that
person in court who have heard the dying declaration.
In Aher Rame Gova v. State of Gujarat24 the original dying declaration was lost in this
case and the prosecution wants to give secondary evidence of such declaration. The court
analyzed the Statement of Magistrate as well as the Statement of Head Constable and
relied on secondary evidence. The court upheld the conviction of accused on such copy.
22 AIR 2011 SC 255
23 AIR 2000 SC 2324
24 AIR 1979 SC 1567
39
CHAPTER 6
MULTIPLE DYING DECLARATIONS: A CASE STUDY
The law relating to multiple dying declarations has now been well settled. The multiple dying
declarations can be taken into consideration by the court if the quality and consistency
maintained with the admissibility of the dying declaration and can be admissible without any
further corroboration. But if the inconsistency persists in the multiple dying declarations then
the court can merely rely on the first dying declaration rather than on second but it cannot be
said as a universal phenomenon.1
In State of Rajasthan v. Shravan Ram2 in this case, the Supreme Court laid down some
guidelines regarding the Multiple Dying Declaration:
1) In recording the dying declaration the person should follow all the necessary test and
if there are multiple dying declarations, then the important test should be taken into
consideration is that all the dying declarations should be consistent with the material
particulars.
2) If there are some discrepancies in the multiple dying declarations then the courts
should not reply upon those declarations.
3) The reliability on the dying declaration adds weight to the case of the prosecution but
not the multiple dying declarations. The dying declaration should be voluntary,
trustworthy and the declarant should be in a fit and conscious state of mind. No
corroboration has been required in admissibility of dying declaration. The only
requirement which should be followed regarding multiple dying declarations that
consistency should be maintained throughout.
4) The court has to scrutinize the multiple dying declarations with a great caution
according to the facts and circumstances of each case and if some inconsistencies
arises between the dying declarations then the court should examine the nature of
inconsistencies to analyze that whether material or not.
1 Ranjit Singh v. State of Punjab (2006) 13 SCC 130
2 AIR 2013 SC 1890
40
In Paniben v. State of Gujarat,3 when the recording of two dying declaration take place
then there is no rule of prudence regarding that the first dying declaration should be preferred
over the second dying declaration. In this case, the declarant made first dying declaration to
the police constable and the second dying declaration recorded by the magistrate then the
court took in to consideration the second dying declaration recorded by the magistrate to
convict the accused and held that the statement was made by the declarant in fit state of mind
without any further need of corroboration.
In Lakhan v. State of M.P.4 the court held in this case that each dying declaration has to be
considered by the court independently to ascertain its evidentiary value. If any
inconsistencies arises between the multiple dying declarations the court usually rely on those
dying declaration which recorded by the Magistrate but the declaration should be made
voluntary and if there arose some suspicion about its veracity then it must be supported by
other evidences.
In Kishan Lal v. State of Rajasthan5 in this case there was some discrepancy in the dying
declarations. The deceased mentioned in the first oral declaration the name of accused and
when the second declaration recorded by magistrate did not mention any name. So the second
declaration was totally a different version from the first one and also the medical evidence
showed that the declarant was not died due to burn injuries but due to some ailments. Thus
the court did not upheld the conviction of the accused on the basis of such dying declarations.
In Raju Devade v. State of Maharshtra6 in this case, three dying declarations were
recorded. The declarant gave first statement to the police and the other statement to the
Executive Magistrate in the form of question and answer and the declarant also put her thumb
impression and specifically mentions the name of accused. All of these statements were
recorded by Police and Executive Magistrate in the rural hospital but on the next day, she was
shifted to other district hospital. In the district hospital, another Executive Magistrate record
the statement of the deceased and found that deceased was not in a position to put thumb
impression on the statement made by her due to burn injuries on the thumb impression.
3 AIR 1992 SC 1817
4 (2010) 8 SCC 514
5 AIR 1999 SC 3062
6 AIR 2016 SC 3209
41
Thus the Supreme Court held that it is the duty of the court to take into consideration each
dying declarations very carefully and must be scrutinized according to facts and
circumstances of each case. Each dying declaration made by the declarant should be look
independently so that court can analyze its evidentiary value and if any inconsistency arises
between the dying declarations the first dying declaration can be preferred over the other
dying declarations.
In Gopal v. State of Madhya Pradesh7 In this case, last dying declaration given by the
declarant was not in conformity with First Information Report and deceased also gave totally
different version regarding the alleged fire in the dying declarations. Then the Supreme Court
held that the conviction cannot be merely based on such dying declaration. Dr. Arijit
Pasayat J. observed in this case as follows:
“The law relating to multiple dying declarations has now been well settled and it is
the reliability of the court on dying declaration which gives weight to the case of
prosecution. If dying declaration made by declarant found to be trustworthy, reliable
and also made by declarant in a fit state of mind then no corroboration is necessary in
making the dying declaration admissible. The statement made by declarant must be
consistent throughout and court should examine nature of inconsistencies in the dying
declarations and also scrutinize accordingly.”
In Sharda v. State of Rajasthan8 the deceased made three dying declarations in which in the
first two declarations deceased had not specifically mention any name but in the third one,
she has given her statement against her mother-in-law. Then the Supreme Court observed that
the third dying declaration has certain flaws and can be considered as tutored dying
declarations. The conviction of deceased’s mother-in-law cannot be upheld on such dying
declaration and liable to be rejected.
In Abrar v. State of Uttar Pradesh9 in this criminal appeal, a matter came before a three
judge bench of Supreme Court and the three dying declarations were recorded. The first
dying declaration was recorded in the First Information Report, the second dying declaration
was recorded by the Police Officer under Section 161 of Code of Criminal Procedure and the
7 AIR 2009 SC 2111
8 AIR 2010 SC 408
9 AIR 2011 SC 354
42
Tehsildar recorded the third dying declaration. The accused name was mentioned in all the
three declarations except some minor discrepancies. The Supreme Court held in this case that
if some minor discrepancies arise in the dying declarations then it cannot merely be the
ground to acquit the accused because the tehsildar himself recorded the statement and Doctor
had also verified the fitness of the declarant in making the declaration.
In Mukesh & Anr v. State for NCT of Delhi & Ors,10 In this case, a girl was gang raped by
six persons in moving bus in Delhi on 16th December 2012. She and his friend were returned
after watching a movie ‘life of Pie’ and they took a bus in which this incident happened. She
was raped by those persons who were present in the bus and also include a 17 year old minor.
She was sexually assaulted beyond human imagination and friend of that girl was also beaten
up by them. They throw them out of the bus in cold weather and later the police patrolling
team rescue the girl and boy. Both of them were admitted in hospital later the girl died
because of multiple organ failure and cardiac arrest. But this incident gave the social outrage
due to this horrific incident and a movement was started for Nirbhaya. Justice Verma
Committee was also formed after this incident for changing the Criminal Law and some
amendments were made in the Indian Penal Code, Code of Criminal Procedure and Indian
Evidence Act.
So in this Delhi Gang Rape Case three dying declarations were recorded. The Doctor
recorded the first dying declaration in hospital and the second dying declaration was recorded
by sub-divisional Magistrate in which the victim gave the details of incident. The
Metropolitan Magistrate recorded the third dying declaration through gestures. The court took
into account all the dying declarations and also admitted the third dying declaration and held
that dying declaration made by words, signs and gestures can also be admissible in court.
10 2017 SCC Online SC 213
43
CHAPTER 7
CONCLUSION & SUGGESTIONS
Dying Declaration considered by Courts as an important piece of evidence who guides the
courts in extracting the truth. Hearsay Evidence is not admissible in court of law but dying
declaration is based on the hearsay evidence because the declarant himself made the
statement to the person who hear and record that statement. The admissibility of dying
declaration is an exception to hearsay evidence and the accused can be convicted by the
courts on such dying declaration if the declaration found to be true and reliable without any
further corroboration. The Courts has given highly reliability to the person who utters last
word and it is from this impression, the court relies on the dying declaration made by the
declarant.
The statement of dying declaration made by the declarant is an exception to the rule of
hearsay evidence and for the admissibility of dying declaration, the statement made by the
person as to cause of his death or the circumstances of the transaction which resulted in his
death and no oath is required for the admissibility of dying declaration. The admissibility of
dying declaration in evidence based on doctrine of necessity and on doctrine of presumption.
The evidentiary value of dying declaration is a main issue where the courts generally take
into consideration the dying declaration without any corroboration but if it found untrue and
not reliable then court look for corroboration and if it found to be true and reliable, it can be
the sole basis of conviction.
There is no format has been prescribed for recording the dying declaration and can be given
by declarant in the form of oral as well as written dying declaration and can also be made by
sign, gesture or in any other manner or in the form of question and answer also. The Dying
Declaration can also be recorded by any person, Magistrate, Doctor and Police but the
statement recorded by magistrate is most reliable in evidence.
44
In recording the multiple dying declarations, all the declaration should be consistent and if
the declarant survives after giving the statement it can be used by court for contradiction
under Section 145 and for corroboration under Section 157 in Indian Evidence Act. There
should not be an unnecessary delay in recording the statement and sole dying declaration can
form the basis of conviction but sometimes the corroboration is necessary for admissibility of
dying declaration in court. The dying declaration can be proved in court be examining the
person who records the dying declaration.
As regards the findings, the various judgments given by Supreme Court made it clear that the
statement made by declarant at the time of his death inspires full confidence and not subject
to cross-examination but it should not be tutored and the declarant should be in conscious as
well as in fit state of mind. Now, Courts in India have evolved the caution principle in
analyzing the dying declaration and if the statement found reliable then conviction can be
based on such dying declaration.
7.1 SUGGESTIONS
The Law Commission of India has on various occasions recommended some changes
regarding clause of dying declaration provided under Section 32(1) of Indian Evidence Act.
The 69th Report of Law Commission of India gave some recommendation and these
recommendations which were given by this 69th Report also reviewed by 185th Report of Law
Commission of India.
The following amendment will have take place in opening part of Section 32 of Indian
Evidence Act such as; “Statements, written or verbal, of facts in issue or relevant facts made
by a person who is dead, or who cannot be found or who has become incapable of giving
evidence, or whose presence cannot be procured without an amount of delay or expense
which under the circumstances of the case, appears to the court unreasonable or who is kept
out of the way by the adverse party, are themselves relevant facts in the following cases.”1
In 69th Report it was highlighted by the Law Commission that in the phrase “cause of death
or circumstances of the transaction which resulted in his death” the two important questions
arises such as:2
1 69th Report of Law Commission of India, 1977
2 Supra note 1
45
1. Whether the circumstances of the transaction which resulted in his death would also
include the cause of death of another person also?
2. Whether the clause which says- Whether or not the person who made it was under
expectation of death should be modified by restricting the clause to statements made
in expectation of death?
In answering the first question, the 69th Report of Law Commission said that an Explanation
must be added in the clause i.e. Statements regarding death of others can also be admissible
in Evidence.
In answering the second question, Section 32(1) should be modified by dropping the words
“whether or not the person who made it under expectation of death.”
But the recommendations made by 69th Report was not accepted on the ground that dying
declaration is based on the exception to the hearsay evidence and in no case should be
extended to the cause of death of other person also. It must be confined in the realm of cause
of death of that person only who is making the declaration.
The 185th Report also reviewed the recommendation earlier made by 69th Report and
concluded in their recommendation that as far as Section 32(1) of Indian Evidence Act is
concerned “we disagree with the recommendations which was earlier made in 69th Report and
recommended that the section 32(1) should be left as it is.3
So the courts should be taken various safeguards for the admissibility of dying declaration in
court because great sanctity attach on the reliability of declaration.
1. The dying declaration can be recorded by any person i.e. family members but it
should not be recorded by family members because sometimes the court face the
problem in admissibility of statement recorded by family members due to biasness
and the recording of statement by any private person should be discouraged.
2. The dying declaration should be recorded by Judicial Magistrate only because he can
be the trustworthy authority in recording the statement.
3. The practice of recording dying declaration by police officer in any case should be
discouraged and if the dying declaration recorded by police, then witnesses should
also be present.
3 185th Report of Law Commission of India, 2003
46
4. The accused can be convicted on sole basis of dying declaration but this trend should
not be followed by courts because generally in bride burning cases, where the victim
died and the statement of victim not reliable then in that case, it should not be taken
into account. So the dying declaration should be admissible in evidence with
corroboration.
5. There is no standard format for recording statement so the courts should set some
standard format according to their High Court rules for recording dying declaration.
6. The dying declaration cannot be subject of cross-examination so some other test
should be followed by court to ascertain the truth.
The present trend is that courts are generally considering the dying declaration without
corroboration and relying on the sole basis of the declarant’s declaration. The court should
consider the declaration with the corroboration so that no prejudice would cause to the
accused and basic infirmities will also remove from the declaration. The courts should
formulate the rigid parameters so that statement cannot be misused by the either party.
Thus the courts analyse the dying declaration in considering the demand of justice from both
sides and the court while scrutinize the dying declaration has to consider all pros and cons
because the dying declaration is not subject to cross-examination in court and also not made
on oath.
viii
BIBLIOGRAPHY
Books
1. Ratanlal & Dhirajlal, Law of Evidence, 23rd Ed. (2014)
2. Sarkar, Law of Evidence, Vol 1, 17th Ed. (2010)
3. Woodroffe and Amir Ali, Law of Evidence in India, Vol 2, 19th Ed. (2013)
4. Best W.M, The Principles of Law of Evidence, Sweet & Maxwell, London
9th Ed.
5. Dr. Avtar Singh, Principles of Law of Evidence, Central Law Publications,
Allahabad, 9th Ed.
6. Batuk lal, The Law of Evidence, 21st Ed. (2015)
7. S.D. Basu, Law of Evidence, 2nd Ed. (2014)
STATUTES
1. Code of Criminal Procedure, 1973
2. Indian Penal Code, 1860
3. Indian Evidence Act,1872
4. Constitution of India
ARTICLES
1. Dr. Onkar Nath Tiwari, Cogency of Dying Declaration: Analysis, Indian
Law Institute Review, 2018
2. Mr. Aman Kohli, Dying Declaration under Indian evidence Act, 1872,
Research Review International Journal of Multidisciplinary, Vol 3, No 5
(May,2018)
3. Shivangi. G. & Ms. Roja. K, A Critcical Appraisal on Dying Declaration,
International Journal of Pure and Applied Mathematics, Vol 120, No 5,
(2018), pp 1113-1121
4. Evidence: Criminal Law: Dying Declarations, California Law Review,
Vol. 13, No. 3 (Mar., 1925), pp. 253-256
ix
5. Lau, Timothy T. Reliability of Dying Declaration Hearsay Evidence,
American Criminal Law Review, Vol.55, Issue 2 (Spring 2018), pp 373-
408
6. Wilde, David, Hearsay in Criminal Cases: Res Gestae and Dying
Declarations, International Journal of Evidence & Proof, Vol. 4, Issue 2
(2000), pp. 107-118
7. Jarreau, Jessica C, Dying Declaration in Ever- Changing world: A Peek
into the implications of Expansion, Defense Counsel Journal, Vol. 73,
Issue 4 (October 2006), pp. 352-364
8. Sree Lekha.V & K. Roja, A Critical Analysis on Dying Declaration by
Rape Victims, International Journal of Pure and and Applied Mathematics,
Vol 120, No 5. (2018), 1097-1112
REPORTS
1. 69th Report of Law Commission of India, 1977
2. 185th Report of Law Commission of India, 2003
