Dying Declaration

                Death is as certain as Life. William Shakespeare in play Richard II written in 1595 wrote some lines that can be highlighted as the rational behind the dying declaration doctrine. These lines are as under:

 

                   “When words are in scarce, they are seldom spent in vain;

                    They breathe the truth that breathe their words in pain.”

               Deceased victim is perhaps the best source of knowledge of crime but since he is no more his statement if any given to a person before death explaining his death or circumstances which led to death are admissible as evidence. Concept of dying declaration is based upon celebrated rule of Nemo Moriturus Presaminiter meaning that a person will not meet his maker with lie in his lips. Indian jurisprudence applies this doctrine only partially because expectancy of death is not a prerequisite for law to come into motion. Concept has been statutorily encoded under Section 32(1) of The Indian Evidence Act, 1872 (hereinafter IEA, 1872) . Rational behind it is necessity and convenience. Grounds for admission of dying declaration are as under.

• Death of Declarant
  
  
• Necessity (It is the only available evidence under the circumstances.)
  
  
• The sense of impending death, which creates a sanction equal to the obligation of an oath. 
   

Essentials for Section 32 (1), I.E.A 1872:

• Statement can be made in any form i.e. verbal/oral/written/gestures. 
   
• Person making the statement must have died. (Otherwise it will be relevant under Section 21(1) of I.E.A 1872 and can be used to contradict S.145, to corroborate S.157 or to impeach the credit of witness S.155 of I.E.A 1872.)
  
  
• Statement must relate to cause of his death or the circumstances of transaction which resulted in his death. 
   
• The cause of death must be in question. 
   
• Depositor must be competent and in fit state to depose. 
   
• Statement must be complete and consistent.

Circumstances of transaction:

           In India, any statement which is related to circumstances of transaction which ultimately led to the death are duly relevant if there is sufficient nexus established between transaction and death. In Pakala Narayan Swamy v. King Emperor¹ mere statement of deceased given to his wife i.e. “I am going to accused” (as he is indebted to me) was held relevant by Lord Atkin as a circumstance which led to death. Similarly in Sharad Birdichand Sharda v. State of Maharashtra² letters written by a daughter to her father about her critical condition at in laws home were held to be relevant as circumstance of transaction relating to death.

Evidentiary Value:

           Though legally, there is no rule which requires corroboration of statement received as dying declaration however general prudence requires so because it is actually an exception to hearsay evidence moreover its not made on oath and its veracity cannot be tested by cross examination in Court of law.

               Very earlier in Ram Nath Madho Prasad v. State of Madhya Pradesh³, Supreme Court held that dying declaration cannot be sole basis of conviction. Stand changed in Kushal Rao v. State of Bombay⁴, where Apex court held that Dying Declaration can become the sole basis of conviction. The main question which arose in the case was ‘Whether statement should be corroborated or not?’ which Court answered in the negative. Similarly in Kusa v. State of Orissa⁵, Apex Court held that if a dying declaration is true, consistent and coherent, it can be relied for conviction even if there is no corroboration. Law was ultimately settled in landmark judgment of Atbir v. The State (NCT of Delhi)⁶ where P. Sathasivam J. held that a dying declaration can be sole basis of conviction if two conditions are satisfied. Those are as under.

1. Deceased should be in fit state of mind to depose. 
    
2. Court should be satisfied about truthfulness and voluntary nature of said statement.

               Thus, once again thrust of examining the veracity of statement is largely delegated to the mind of a judge which opens the door of discretion however which should not be used arbitrarily but only to achieve the ends of justice.

Difference with English Law:

1. In England, Dying Declaration applies only in criminal cases. In India,it applies on civil as well as criminal proceedings. 
    
2. In England, it is used only for homicide cases. In India, used for both homicide and suicide cases. 
    
3. In England for doctrine to work there should be some expectancy of death. In India, there is no such requirement.

               Dying declaration is last hope of deceased to get justice. Doctrine is simply one of the various legal threads wedded to the social fabric to make justice delivery system more potent and sharp. Its role in countries like India, which have inquisitorial system assumes much more significance where judges have always played pivotal and centripetal role. Doctrine further engulfs the concept of social vigilance and analytical mind which radiates into the marrows of society. The challenge is not to evolve it further but to apply it fearlessly keeping in mind the conscience of society.

Harihar Gupta

LL.M.

                                

1(1939) 41 BOMLR 428

21984 AIR 1622, 1985 SCR (1) 88

3AIR 1953 SC 420

41958 AIR 22, 1958 SCR 552

5980 AIR 559, 1980 SCR (2) 801

6(2010) 9 SCC 1