Dated: 24th September, 2018

A PROJECT WORK
On

“Dying Declaration As Documentary Evidence”

Project submitted for the partial fulfillment for the degree of BA LLB

Batch (2015-2020)

Submitted to: - Submitted by:-

Mr. Ratnesh Srivastava Veena T.S
(Faculty member of Law of Evidence) BBA LLB (VIIth SEM.)

Siddhartha Law College, Dehradun

(Affiliated to Uttarakhand Technical University, Dehradun)
 ACKNOWLEDGEMENT

The first and foremost words of gratitude go to my faculty guide, Asst. Prof:
Ratnesh Srivastava for her invaluable support. I thank cordially for her guidance
provided for the completion of project successfully.

The project “Dying Declaration As Documentary Evidence” is a creative work. Any

undertaking as ambitious as project requires the assistance and aid of several individual
for successful completion I would like to take this opportunity to express my sincere
gratitude to everyone who has helped me to make project.

I specially thank to the Ratnesh Sir for guiding me with the proper guidance,
which assisted me in the completion of the project.

Veena T.S
BA LLB (VIIth Sem.)
CONTENTS

 INTRODUCTION

 HOW A DYING DECLARATION SHOULD BE

 WHO MAY RECORD A DYING DECLARATION

 IMPORTANT FACTS TO BE REMEMBERED BEFORE

RECORDING DYING DECLARATION

 DYING DECLARATION: AN EXCEPTION TO THE RULE AGAINST

HEARSAY

 RELEVANCE OF DYING DECLARATION

a) Basis of Dying Declaration : How Problematic?
b) Evidentiary Value to be Attached to A Dying Declaration
Procedures and Precautions

 JUDICIAL GUIDELINES ON DYING DECLARTION

 CONCLUSION

 BIBLIOGRAPHY
“Dying Declaration As Documentary Evidence”

INTRODUCTION

Dying declaration is bases on the maxim

“Nemo moriturus praesumitur
mentire” i.e. a man will not meet his maker with a lie in his mouth. The
statements made by a person as to the cause of his death or as to circumstances
of the transaction resulting in his death is called a dying declaration. Section
32(1) of the Indian Evidence Act talks about dying declaration. A dying
declaration is admis- sible in evidence even though it has not been given on oath
and the person making it cannot be cross-examined. It is an exception to the rule
against hearsay. This exception, as such dates back as far as the first half of the
1700s, — the period when the hearsay rule was coming to be systematically and
strictly enforced. The custom of using dying declaration probably comes down
as a tradition long before the evidence system arises in the 1500s. 1Admissibility
of a dying declaration as a relevant piece of evidence is guided by the principle
of necessity and religious belief of the olden days. The necessity being, that in
cases, where victim is the only eye-witness to the crime, the exclusion of his/her
statement might defeat the ends of justice. The religious sanction behind their
admissibility comes from the belief in the fact, that a sense of impending death
produces in a man's mind the same feeling as that of a conscientious and
virtuous man under oath-nemo moriturus praesumuntur mentiri.2

www.wcl.american.edu/sba/outline_databank/outlines

2
primafaciejourney.blogspot.in/2012/11/relevancy-v-admissibility
HOW A DYING DECLARATION SHOULD BE?

There is no particular form of dying declaration. However, the best

form of dying declaration is in the form of questions and answers. However,
whenever a dying declaration is being recorded in the form of questions and
answers precaution should be taken that exactly what questions are asked and
what answers are given by the patient those should be written.

A dying declaration may be in the following forms:

1. Written form;

2. Verbal form;

3. Gestures and Signs form. In the case ''Queen vs Abdulla5'', it was held that
if the injured person is unable to speak, he can make dying declaration by
signs and gestures in response to the question.

4. If a person is not capable of speaking or writing he can make a gesture in

the form of yes or no by nodding and even such type of dying declaration
is valid.

5. It is preferred that it should be written in the vernacular which the patient

understands and speaks.

6. A dying declaration may be in the form of narrations. In case of a dying

declaration is recorded in the form of narrations, nothing is being
prompted and every thing is coming as such from the mind of the person
making it.3
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OBJECTS

1. The presumption is '' a person who is about to die would not lie''.

2. It is also said that '' Truth sits on the lips of a person who is about to die''.

3. The victim is exclusive eye witness and hence such evidence should not
be excluded.

WHO MAY RECORD A DYING DECLARATION ?

1. It is best that it is recorded by the magistrate.
2. If there is no time to call the magistrate, keeping in view the deteriorating
condition of the declarant, it can be recorded by anybody e.g. public
servant like doctor or any other person.
3. It cannot be said that a dying declaration recorded by a police officer is
always invalid.
4. If any dying declaration is not recorded by the competent Magistrate, it is
better that signatures of the witnesses are taken who are present at the
time of recording it.4

www.firm3ukm.blogspot.in/significance-of-relevancy
 IMPORTANT FACTS TO BE REMEMBERED BEFORE RECORDING
DYING DECLARATION:

1. The declarant was in a fit condition of mind to give the statement when
recording was started and remained in fit condition of mind until the
recording of dying declaration is completed.
2. The fact of fit condition of mind of declarant can be best certified by the
doctor.
3. Yet, in case of where it was not possible to take fitness from the doctor,
dying declaration has retained its full sanctity if there are other witnesses
to testify that declarant was in fit condition of the mind which did not
prevent him from making dying declaration.
4. However, it should not be under the influence of anybody or prepared by
prompting, tutoring or imagination. If any dying declaration becomes
suspicious, it will need corroboration.5
5. If a declarant made more than one dying declarations and if these are not
at variance with each other in essence they retain their full value. If these
declarations are inconsistency or contradictory, such dying declarations
lose their value.

RELEVANCE OF DYING DECLARATION :

Dying declaration is an important piece of evidence and conviction can be
based solely on a dying declaration. Its admission in evidence is necessitated by
the fact that in many of the incidents of murder there is usually no eye-witness
except the injured victim. Hence, if his statement about the circumstances in
which his death occurred is not admitted in evidence during the criminal trial,

5
(1999) 2 MLJ
 then the only evidence of crime would be lost resulting into miscarriage of
justice. Another ground, on which the admissibility of dying declaration rests, is
the belief that "truth sits upon the lips of dying men." 27 But, by para 2 of Clause
(1) of Section 32 of the Act, the very foundation from which the sanctity of a
dying declaration is born is pulled out from its ethical and religious base and its
consequent evidentiary value. The paragraph makes it very clear that the person
making the declaration' should not necessarily be under expectation of death.
Discarding the English principle of accepting a dying declaration only when it is
made under the settled expectation of death, this section takes away the sincerity
of the statement that is desired.6

The traditional argument that, the justification for admitting a dying declaration
derives from the proposition that no one would wish to meet his maker with a lie
oil' his lips is slightly problematic in today's context. It might continue to be true
of some God-fearing individuals, but in modern society it carries little or no
conviction where the majority of citizens are concerned. Redfield, C.J., in
Greenleaf, Evidence, write! that a dying declaration is not received upon any
other ground than that of necessity, Admission on the ground that the declarant
was under the most solemn sanction to speak the truth is far from presenting the
true ground of admission. The chief grounds of this exception in the law of
evidence is the presumption of there not being equally satisfactory proof of the
same facts, and the consequent probability of crime going unpunished. 7

The main problem with dying declaration is not so much one of sincerity
or faulty memory, but one of perception. Motive of hatered and revenge may
lead a declarant to make false statements, even with the approach of death. The
6
AIR 1941 PC 16

7
[1998] AIR 1859 (SC).
 declarant may exhibit strong feeling of hatred and revenge and if he is in such a
frame of mind, the supposed guarantee of trustworthiness fails, and the'
declaration should not be admitted.31

Dying declaration has been subject to judicial scrutiny on innumerable

occasions; the need of relying on a dying declaration has been questioned
especially in those cases where the killing was not secret and there were other
adequate testimony as to the circumstances of the death.

There doesn't seem to be much controversy as far as, the question of a

dying declaration being a significant piece of evidence is concerned. The
divergent and conflicting Judicial opinion has been with respect to value and
importance to be attached to dying declaration in basing the conviction of an
accused: The Courts in India have held time and again, that a dying declaration
before it could be relied upon must pass a test of reliability, as it is a statement
made in the absence of the accused and there is no cross-examination of the
declarant to test its genuinety or veracity. Thus, a dying declaration must be
subject to close scrutiny.A dying declaration in India stands on a different
footing than in England.8 Under the English law, credence and the relevancy of a
dying declaration is important only when person making such statement is in
hopeless condition and expecting an imminent death. In India, the weight to be
attached to a dying declaration depends not upon the expectation of death that is
presumed to guarantee the truth of the statement, but upon the circumstances and
surrounding under which it was made, and very much also upon the nature of
record that has been made of it.

It is almost a question of fact whether a dying declaration should be relied upon

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 or not. In one of its earliest judgments on dying declaration the Supreme Court
had held that, it was not safe to convict an accused on an uncorroborated dying
declaration.35Since then, the Supreme Court in a catena of cases has held that
conviction can be based on an uncorroborated dying declaration provided that
the Court has come to the conclusion that it is true and voluntary. The most
significant being the case of Khushal Rao v. State of Bombay36 where, the
Supreme Court laid down several propositions with respect to dying declarations
and these propositions till date continue to govern the law relating to dying
declarations. The Court held, that there is no absolute rule of law that a dying
declaration cannot form the sole basis of conviction unless it is corroborated, nor
can it be said that a dying declaration is a weak piece of evidence. The Court
further held that a dying declaration stands on the same footing as another piece
of evidence and has to be judged in the light of surrounding circumstances and
with reference to the principle governing the weighing of evidence. Speaking on
the same line the Supreme Court held in the case of Padmaben Shamalbhai
Patel v. State of Gujarat37 that, 9"a dying declaration is an independent piece of
evidence-neither extra strong nor weak and can be acted upon without
corroboration if it is found to be otherwise true and reliable."

The position with respect to corroboration of a dying declaration in India

is similar to that in England. The position being, that there is no absolute rule of
law that prevents an uncorroborated dying declaration from being admitted in
evidence. Courts while admitting dying declarations need to do a great balancing
act between the rights of the accused and ensuring delivery of justice. Since, the
accused cannot cross-examine declarant as to the truth of his/her declaration;
there arises need for a dying declaration that will inspire full confidence of the
9
[1874] 11 AIR 90 (BHCR)
 Court in its correctness.10

Procedures and Precautions:

Section 32(1) of the Act is silent about the person to whom a dying
declaration can be made and the mode of making such a dying declaration. The
same has rightly not been provided since, for someone who is breathing his last,
it would be ridiculous to make him/her undergo several procedures before he/she
could get his/her dying declaration recorded. But, the absence of sued provisions
gives rise to several questions, For example, can a dying declaration made to the
only family member present at the time of killing be believed? Can an investi-
gation officer record a dying declaration? Will the statement made to a
magistrate under Section 164 of the Code of Criminal Procedure cover a dying
declaration as well? What happens in cases where there is no certification by the
doctor to the effect that the declarant was in a fit state of mind while making the
declaration? There cannot be straight answers to such questions since, the
admissibility of a dying declaration is very fact specific and to a great extent is
determined by the circumstances under which it was made. Section l62 (l) of the
Code of Criminal Procedure provides that any statement made to a police officer
during the course of investigation is inadmissible. But Clause of the same
section makes an exception in favour of dying declaration by providing that, the
provisions of this section shall not apply to statement falling within the
provisions of S. 32(1) of the Act. The Courts have been hesitant to admit dying
declarations made to an investigation officer, for the obvious reason that
investigating officers being interested in the success of investigation might
tamper with the dying declaration to tilt the balance in their favour. The
Supreme Court in the case of Dalip Singh v. State of Punjab has held that it is

10
[1912] 34 AIR 341 (SC).
 better to leave dying declarations made to police officers- during in- stigation out of
consideration until and unless prosecution satisfies the Court as to why it was not recorded by a
magistrate or doctor. It further held that such declara- tions might be relied upon if there was no
time or facility for adopting the better method. Several High Courts have also held that it is not
prudent to base conviction on a dying declaration made to an investigating officer and the practice of
43
the investigating officer recording dying declaration should not be encouraged. It all depends on
the facts and circumstances of the case. Thus, where thedying declaration recorded by the police
officer was natural, coherent, truthful, narrating incident without embellishment and explicitly
44
identifying accused, such dying declaration was held to be valid. But, where the investigating officer
had recorded the dying declaration even before the victim was certified by the doctor to be fit for
making a statement and though the victim survived for two weeks thereafter, the investigating officer
made no efforts to get this statements recorded by a magistrate, it was held, that no reliance could
be placed on such dying declaration.11

In Rambai v. State of Chhattisgarh,46It was held that if the person recording

the dying declaration is satisfied that the declarant is in a fit medical
condition to make a dying declaration then such dying declaration will not be
invalid solely on the ground that the doctor has not certified as to the
condition of the declarant to make the dying declaration. JUDICIAL
GUIDELINES ON DYING DECLARTION

Sudhakar v . State of Maharashtra , AIR 2000 SC 2602: (2000) 6 SCC 671

In this case hon’ble supreme court has laid down following guidelines:-

1. Section 32 is an exception of the rule of hearsay and makes admissible the

statement of a person who dies, whether the death is a homicide or a suicide,
provided the statement relates to the cause of death, or exhibits circumstances
leading to the death. In this respect, as indicated above, the Indian Evidence Act,
in view of the peculiar conditions of our society and the diverse nature and
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 character of our people, has thought it necessary to widen the sphere of section
32 to avoid injustice.

2. 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. Distance of time would depend or vary with the circumstances of
each case. For instance, where death is a logical culmination of a continuous
drama long in process and is, as it were a finale of the story, the statement
regarding each step directly connected with the end of the drama would be
admissible because the entire statement would have to be read as an organic
whole and not torn from the context. Sometimes statements relevant to or
furnishing an immediate motive may also be admissible as being a part of the
transaction of death. It is manifest that all these statements come to light only
after the death of the deceased who speaks from death. For instance, where the
death takes place within a very short time of the marriage or the distance of time
is not spread over more than 3-4 months the statement may be admissible under
section 3212.

CONCLUSION :-

A dying declaration is indeed an important piece of evidence. So much so that

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 con- viction can be based solely on the basis of a dying declaration. An analysis
of both English and Indian position makes it very clear that dying declarations
continue to enjoy sacrosanct status in evidence. The question that needs to be
answered is: how relevant dying declarations are in today's context and how
much reliance can be placed on it? The basis for the sacrosanct status of dying
declarations continues to be the good old belief 1 that a man will not meet his
maker with a lie on his lips. This belief presupposes that people are religious and
they will not lie on their deathbed.13 But, this does not seem to; happen in real
life where feelings of hatred, revenge and many times love take precedence over
the urge to speak the truth. This ironically belies the very principle underlying
the admittance of dying declarations a man will not meet his maker with a lie on
his lips. The general principle on which this species evidence is admitted is that
they are declarations made in extremity, when the person is at point of death and
when every hope of this world is gone. At that point of time every motive to
falsehood is silenced and the mind is induced by the most powerful
consideration to speak the truth. Such a Solemn situation is considered by the
law as creating an obligation equal to which is imposed by a positive oath
administered in a court of justice. The dying declarations are weak kind of
evidence even though they are based on the principle that a person would not die
with a lie in his mouth.The law related to dying declaration need certain changes
to be incorporated into it, so as to make it more relevant in today’s context14.

13
[1874] 11 AIR 90 (BHCR)

14
[1912] 34 AIR 341 (SC).
BIBLIOGRAPHY

 Ashutosh Salil, “An Analysis of Indian and English Position of Dying

Declaration’ J 297,Cri.L.J.2005
 Sudipto Sarkar & V. R. Manohar, Sarkar on Evidence, 15th edn
 Dying Declaration, at http:/www.lawyersclubindia.com/articles
 Avatar Singh “Principles of the Law of Evidence,16th ed.2007,
 M. Monir, “Law of Evidence” 7th ed
 Neha Vijayvarigya, "Admissibility Of Dying Declaration
:Whether Justified”2006 (1) Cri.LJ
 M.G. Amin, "Assumptions behind sanctity of dying declarations", (1995)
7 NLSJ,
 Deepak Arora, R. S. Dogra&Jaswant Singh, Law of Evidence, vol. 1
Madras Law journal, Madras, 1998
 Black's Law Dictionary, Ed, Bryan A. Garner, 7th edn, West Group, St.
Paul, Minn, 1999