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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

“Truth Sits On The Lips Of A Dying Man”- An Overview

Introduction

A dying declaration refers to statements made by a person on his/her deathbed as to the cause or circumstances of death. The Latin term ‘leterm mortem’ literally means ‘words before death’ and has legal significance as the Indian law recognizes that a dying man seldom lies, or “truth sits upon the lips of a dying man”. This principle is based on the belief- ‘nemo mariturus presumuntur mentri’, i.e., a man will not meet his maker with a lie in his mouth.
“Truth sits upon the lips of dying men, And falsehood, while I lived, was far from mine.” 

~Matthew Arnold. 


The Apex Court held in Ulka Ram v. State of Rajasthan[1] that “when a declaration is made by way of a man or woman as to purpose of his demise or as to any situations of transaction which resulted into his death, in case in which purpose of his dying comes in question is admissible in evidence, such statement in law are compendiously known as dying declaration.”
Section 32, clause 1 of the Indian Evidence Act, 1872 explores the concept of a dying declaration. The statement can be in nature of a circumstantial evidence, thereby such statement must be necessarily in connection as to the transactions that led to his death.

Forms of a Dying Declaration

The law prescribes no particular form of dying declaration. However the conventional forms are as follows-

  • Verbal
  • Written 
  • Signs and gestures 

In Kushal Rao v. State of Bombay[2], the Court set certain minimal guidelines as to the collection of a dying declaration. The correct procedure to record the statement of the deceased is in question answer format (answers can be verbal, written, or gestured), the doctor should endorse that the deceased was in a good mental condition, and in case of multiple dying declarations, the same should be consistent enough for the court to depend on them.

Admissibility of declaration in vernacular language-

The Courts cannot reject a dying declaration on the basis of the language in which it is made. A person on his deathbed is likely to make a declaration in his vernacular language and the same might be of substantial evidentiary value.
In Biju @Joseph v. State of Kerala [3] the High Court of Kerala ruled that the dying declaration could not be vitiated solely on the ground that the statement of the deceased was in her own language. The judicial officers are used to translating the statements and such translation will not undermine its admissibility and reliability.

Admissibility of signs and gestures-

Dying declarations may also be formed through gestures and signs. This is used when there is no potential for the victim to talk. The Supreme Court clarified that the evidentiary value of gestures and signs depends on factors such as what questions were raised, how complicated the question were, what were the gestures, who documented the statement, etc. A full bench of Allahabad High Court had responded to a query that if the injured person is unable to speak, he may make a dying statement through signs and gestures.[4]

In the Nirbhaya gang rape case, the victim’s dying declaration via gestures was held admissible in court and held the same evidentiary value as that of a written or verbal statement.

Who can record a dying declaration?

A dying declaration may be recorded by a normal person (friends, family) who has some nexus with the dying person either circumstantially or factually, doctor, police officer, judicial magistrates.
Section 164 sub-section (1) of the Code of Criminal Procedure empowers a judicial magistrate to record a dying declaration irrespective of whether or not he has jurisdiction over the case. Statements recorded by a magistrate hold more evidentiary value since his knowledge of the requirements of a dying declaration is more than that of a layman.
A bench comprising of Justices BS Chauhan and Dipak Mishra, opined that-
“The law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a Doctor in respect of such state of the deceased, is not essential in every case.”[5]
It was also held that though there is no law stating only a magistrate can record a dying declaration and ensure the competency of the deceased, when the same is satisfied by a magistrate, its credibility is enough to be admissible without corroborative medical evidence.[6]

Scope of a Dying Declaration

Where the cause of death of that person is addressed, the declaration is admissible in every judicial proceeding. The second part of section 32(1) makes it perfectly clear that the declaration is admissible in both civil and criminal proceedings, and at the time of making the declaration, it is not mandatory for the person making the declaration to apprehend death. It may be noted that the Indian law makes a departure from the English law as to the requirements of admissibility of a dying declaration.[7] 

The English law requires the declarant to be in actual apprehension of death while making the dying declaration. As per the Indian law, the same is not mandatory. Rather the only requirement is the statement needs to provide certain grounds as to the circumstance or transactions that led to the circumstances resulting in death. 
It was concluded in Pakala Narayan Swami v. Emperor[8] that the letter given to his wife by the deceased prior to actually going to the place where he was killed was relevant and thus admissible as a dying declaration. An FIR is also admissible in the nature of a dying declaration provided that death has occurred.[9] However if the declarant does not die after the attack and shows signs of recovery, his statements will not be treated as a dying declaration per se.[10] Incomplete dying declarations are also not admissible. 

Multiple dying declarations and Need for Corroboration

Multiple dying declarations are admissible in Court provided that they are consistent, non-contradictory and reflect certain regularity in the facts. If such declarations are contradictory and lack consistency, the court shall cross-examine the facts of the case and examine the testimony of witnesses for corroboration and thereupon decide the sanctity of the declarations accordingly. In the rape case of Nirbhaya, the victim had given three dying declarations, though the one to the metropolitan magistrate was given more importance in the case.

The Court has had two stances regarding the question for need of corroborative evidence. In Ram Nath v. State of Madhya Pradesh[11], the Hon’ble Supreme Court opined that conviction of the accused based solely on dying declaration does not guarantee justice since such statement can be made in a moment of weakness. Thus the court stressed on the need to corroborate dying declaration with further evidence. However, in Kushal Rao v. State of Bombay[12], the Apex Court held the former judgement to be in the nature of Obiter Dicta, and held that, “It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of the conviction unless it is corroborated”. This stance was reiterated in Harbans Singh v. State of Punjab[13] and in U.P v. Ram Sagar Yadav[14], where it was held that a consistent dying declaration made by one of competent mind is enough for conviction if found truthful in court.

Exception to the rule against Hearsay

Hearsay is defined in Black’s Law Dictionary as, “A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”. Since direct evidence is considered to be the best evidence, as a general rule hearsay evidence is not usually admissible, though there are exceptions to it. A dying declaration requires that someone other than the declarant presents it in Court and the same is admissible in the court of law. Thus a dying declaration is an exception. It is neither made under oath nor is cross-examined. The victim is a prominent eye witness to the occurrence of a crime and exclusion of a dying declaration is equivalent to letting go of a prime and substantial piece of evidence which might lead to acquittal of the accused and thus deterrence to justice. This explains the need for such exception.

An offence essentially includes two primary characters- the accused and the victim. The victim is the primary eye witness as he has experienced the crime first hand. This makes a victim’s dying declaration a crucial evidence, which if found to be consistent with the facts, is enough to convict the accused without further corroboration. However, this puts a lot of responsibility on the court to adjudge such statements with utmost cautiousness.

References

· ‘Summary of Working Papers on Dying Declaration’, < http://mja.gov.in/Site/Upload/GR/Title%20NO.194(As%20Per%20Workshop%20List%20title%20no194%20pdf).pdf > accessed 15th October 2020
· Diva Rai, ‘Dying Declaration’ (2019) iPleaders <https://blog.ipleaders.in/dying-declaration-2/> accessed 14th October 2020
· Anubhav Pandey, ‘Admissibility of Dying Declaration’ (2017) iPleaders < https://blog.ipleaders.in/admissibility-dying-declaration/amp/ > accessed 14th October 2020
· Mitali Garg, ‘Admissibility and Validity of Dying Declaration: A Critical Analysis’ (2019) LatestLaws < https://www.latestlaws.com/articles/admissibility-and-validity-of-dying-declaration-a-critical-analysis-by-mitali-garg/#_ftn9> accessed 15th October 2020
· Architi Batra, ‘Dying declaration-Laws and Cases’ (2020) Niti Manthan < https://nitimanthan.in/blog-posts/blog-niti-manthan/2020/07/18/truth-sits-on-the-lips-of-a-dying-man-an-overview/> accessed 14th October 2020
[1]Ulka Ram v. State of Rajasthan, (2001) 6 SCC 118 

[2] Kushal Rao v. State of Bombay, AIR 1958 SC 22
[3] Biju @Joseph v. State of Kerala, (2012) 259 KLR 379
[4] Queen Empress v. Abdullah (1885) ILR 7 All 385
[5] State of MP v. Dal Singh and Ors.,
[6] Laxman v. State of Maharashtra, AIR 2002SC 2973
[7] Rajindra Kumar v. State, (2015) 3 SCC 449
[8] Pakala Narayana Swami v. Emperor, (1939) 41 BOMLR 428
[9] Munnu Raja & Anr.v. State of M.P., AIR 1976 SC 2199
[10] R. v. Jenkins, (2002) VSCA 224
[11] Ram Nath v. State of Madhya Pradesh, AIR 1953 SC 420
[12] Supra note 2
[13] Harbans Singh v. State of Punjab, AIR 1962 SC 439
[14] U.P v. Ram Sagar Yadav, AIR 1985 SC 416

Author- Oishi Sen, Symbiosis Law School, Hyderabad 

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