LAW OF EVIDENCE

DYING DECLARATION

Submitted to: Submitted by:

Ms Neetishree
Rohit Arora A3211117106
Ritvik Malhotra A3211117090

BA LLB
Section-B
Semester- 5
 What is Dying Declaration ?
The maxim “Nemo moriturus praesumitur mentire” is basis for ''dying declaration'', which means '' a man will
not meet his maker with a lie in his mouth''. A dying declaration is called as '' Leterm Mortem''. The word ''
Leterm Mortem'' means '' Words said before death''. Recording of dying declaration is very important task.
Utmost care is to be taken while recording a dying declaration. If a dying declaration is recorded carefully by
the proper person, keeping in mind the essential ingredients of the dying declaration, such declaration retains its
full value.

Section 32 (1) of Indian Evidence Act.

A close scrutiny of section 32 (1) of Indian Evidence Act, it is vividly known when the statement is
made by a person with regard to the cause of his death, or any of the circumstances of the transaction
which resulted in his death, in cases in which the cause of that person’s death comes into question.
Such statements are relevant irrespective of the person who made such declaration was expecting
death or not . Thus, it is apt to say that admissibility of Dying declaration is explained in the section 32
(1) of Indian Evidence Act.

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 Abdulla'', 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.

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.
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 any body or prepared by prompting, tutoring or
imagination. If any dying declaration becomes suspicious, it will need corroboration.
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.

Now it is very essential to know the conditions for admissibility and evidentiary value of a dying
declaration. The table given infra succinctly explains the same:

CONDITIONS FOR ADMISSIBILITY EVIDENTIARY VALUE

1. The declarant ,who gave dying 1. Evidentiary value of dying

declaration, should have died. declaration will change from case
to case according to fact and
2. Admissibility of dying declaration circumstances of each case.
is explained in the section 32 (1) of
Indian Evidence Act. 2. A dying declaration must be
recorded in exact words spoken
3. When the statement is made by a by the declarant.
person as to the cause of his death, or any
of the circumstances of the transaction 3. If a competent Magistrate records
which resulted in his death, in cases in a dying declaration in question
which the cause of that person’s death and answer form , such dying
comes into question. Such statements are declaration will have much
relevant whether the person who made evidentiary value.
this was expecting death or not. (See
section 32 (1) of Indian Evidence Act). 4. If a dying declaration is
recorded No sooner does the
1. The dying declaration must be information receive than the dying
complete . declaration is recorded, tutoring
by interested persons can be
2. The cause of death must be avoided.
explained by the declarant or
atleast the circumstances which 5. In case more than one dying
resulted his/her death must be declarations, all such declarations
explained. must be identical.

3. The declarant, who makes dying 6. In Jai Prakash vs State of

declaration, must be conscious Haryana, it was observed that '' a
and coherent. statement of victim which was
 4. The declarant must be sound state recorded by the police officer in
in mind. hospital. Later, such statement
was taken to be a dying
5. The cause of death of declarant declaration.
must be in question.
7. In some cases, F.I.R was also
6. However, the declarant need not considered as a dying declaration.
be under expectation of death
unlike English Law. 8. Inconsistent dying declaration is
no evidentiary value. ( Smt Kamla
7. The declarant need not be under vs State of Punjab)
shadow of death.
9. The dying declaration recorded by
8. The dying declaration may be in the Clerk in the presence of
verbal form. Magistrate not inadmissible.
9. The whole dying declaration Scribe need not be produced to
must be taken into consideration prove it.
by the Court but not some portion 10. Despite there is a dying
of it. declaration, Court seeks further
13. The statement may be made before corroboration. However,
the cause of death has arisen, or before Conviction can be based on it
the deceased has any reason to anticipate without corroboration if it is true
being killed. and voluntary.

14. Corroboration to dying declaration 11. Replies by signs and gestures

not necessary. (1990 Crl.L.J 1129) constitute verbal statement resembling
the case of a dumb person and is relevant
15. Exact words of deceased in dying and admissible in evidence. (AIR 1949
declaration need not be stated. (1990 Nag 405)
Crl.L.J 2720)
1. Dying declaration is an exception
16. It is immaterial that the person put a to hearsay evidence because if this
thumb impression or signed a dyin evidence is not considered very
declaration if the declaration is duly purpose of the justice will be
witnessed. forfeited in certain situations
when there may not be any other
17. If a declarant, who is laying in the
witness to the crime except the
bed, is unable to get up to sign due his
person who has since died.
condition, or it is convenient for him to
put thumb impression, he can put thumb 2. Dying declaration is valid both in
impression. civil and criminal cases whenever
the cause of death comes into
18. There is usually no time limit that
question.
dying declaration becomes invalid.
3. Dying declaration not attested by
wife or dactor present there.
Smacks of concoction.
Inconsistency in oral and medical
evidence. Conviction cannot be
 based on such evidence.

4. It is perfectly permissible to
reject a part of dying
declaration if it is found to be
untrue and if it can be separated [
Nand Kumar v. state of
Maharastra.].

5. Declarant suddenly dying and his

thumb impression taken after his
death held dying declaration
admissible in evidence. (AIR
1962 SC 1252)

Relevant Case-Law As To ''Dying Declaration'':

1. Medical opinion cannot wipe out the direct testimony of the eyewitness stating that the deceased
was in fit and conscious state to make the dying declaration . [ N Ram vs State.]

2. If the person making it is imbecile or is of tender age and was incompetent to testify due to this
reason, that dying declaration would not be valid [R v. Pike. C & P.1829; 3: 598]

3. As a measure of safety original dying declaration should be sent to the court like FIR and its
Photostat should be kept in the case file [State of Karnataka v. Shivalingappa, 2001 (4) RCR(Criminal)
237 (Karnataka) (DB)].

4. Even the ''History'' given by the injured recorded by the doctor in the case file has been considered
as dying declaration by the honorable Court if it is mentioned that the patient told in the history that
incident occurred in such and such manner which was responsible for the death of the victim [State of
Karnataka v. Shariff ].

5. First information report got recorded by the police has been taken as dying declaration by the
Hon'ble Supreme Court of India, when the person did not survive to get his dying declaration recorded
[AIR 1976 2199 (SC)].

6. But, in the case State of Punjab v. Kikar Singh, 2002 (30 RCR (Criminal) 568 (P & H) (DB), it was
held that ''when patient remained admitted in hospital for sufficient days i.e. for 8 days FIR cannot be
treated as dying declaration''.

7. In the case ''State v. Maregowda, 2002 (1) RCR (Criminal) 376 (Karnataka) (DB)'', it was held that
''A suicide note written found in the clothes of the deceased it is in the nature of dying declaration and
is admissible in evidence under section 32 of Indian Evidence Act''.
8. In the case, (State of Gujarat v. Rabri Pancha Punja. Cri LJ. 1981;NOC: 171 (Guj) , it was held that
'' It retains its full value if it can justify that victim could identify the assailant, version narrated by
victim is intrinsically sound and accords with probabilities and any material evidence is not proved
wrong by any other reliable evidence''.

9. Dying declaration becomes unreliable if it is not as per prosecution version. In the case of '' State of
UP v. Madan Mohan, AIR 1989 SC 1519'' , the Hon'ble Supreme Court of India held:
1. It is for the court to see that dying declaration inspires full confidence as the maker of the dying
declaration is not available for cross-examination
2. Court should satisfy that there was no possibility of tutoring or prompting.
3. Certificate of the doctor should mention that victim was in a fit state of mind. Magistrate recording
his own satisfaction about the fit mental condition of the declarant was not acceptable especially if the
doctor was available.
4. Dying declaration should be recorded by the executive magistrate and police officer to record the
dying declaration only if condition of the deceased was so precarious that no other alternative was left.
5. Dying declaration may be in the form of questions and answers and answers being written in the
words of the person making the dying declaration. But court cannot be too technical.

10. In Barati vs State Of U. P,1974 AIR 839, 1974 SCR (3) 570, it was held that ''There was no reason
to discard the dying declaration made by the appellant to the police sub-inspector, The trial Court was
wrong in rejecting the dying declaration to the police (F.I.R.) on the ground that the deceased had
stated to the doctor that he had become unconscious after the occurrence. There was nothing in the
statement recorded by the doctor to indicate that the deceased remained unconscious for. a long time
and as such was not in position to lodge the F.I.R. The fact that the language used in the dying
declaration made to the doctor was rather chaste would not go to show that the said statement could
not have been made by the deceased. As to the language used in the dying declaration there is nothing
abnormal or unusual in the same person using colloquial language while talking to one person and
using refined language while talking to another person. ''

11. Pakala Narayana Swami vs Emperor ((1939) 41 BOMLR 428; AIR 1939 PC 47 ) on 19/1/1939 , In
this case, the statement of Pakala Narayana Swamy's wife '' he is going to Berhampur to get back his
amount'' was considered as ''DYING DECLARATION''.

Some important case-law on ''Dying declaration'':

1. Autar Singh v. The Crown, AIR 1924 Lah 253

2. Pakala Narayana Swami v Emperor, AIR 1939 PC 47
3. Hanumant v. State of Madhya Pradesh , 1953CriLJ129
4. State v. Kanchan Singh, AIR 1954 All 153

Gestures & signs form

Gestures and signs can form dying declaration even when the victim does not speak a word. The Apex
court stated that the evidentiary value of the gestures and signs will depend on certain factors like who
recorded the statement, what are the gestures, what were the questions asked, were the questions asked
were simple or not etc. Gestures can be difficult to interpret but this does not mean that the accuse can
roam freely after hurting someone. If the victim is not able to speak, gestures or signs can be taken as
evidence.
In Nirbhaya case 2013, a bench of Justices Dipak Misra, R Banumathi and Ashok Bhushan said a
dying declaration should not necessarily be made by words or in writing and it could be through
gestures. Not just words but even gestures can be made admissible in the court now.

Fitness Of the victim should be examined

While recording the statement of the victim, it is very important to examine the health of the victim. It
can be possible that he is making stories in the presence of drugs given. Judicial Magistrate should
satisfy himself that the victim is in a fit condition to give a statement. A certificate should be obtained
by the judicial magistrate from the doctors examining the victim.

This certificate can prove in court that the statement given was in fit condition and it is true. If the
circumstances do not permit attendance of the medical officer, then judicial magistrate can record
statement without the medical certificate but judicial magistrate should provide the reason why he
considered it indivisible for a doctor’s attendance.

Who should record the dying declaration

If the dying declaration is recorded by the magistrate, then it will hold more evidentiary value than any
other dying declaration. Doctors and police officer are also authorized to record the dying declaration
if the magistrate is not present. But sometimes the situation arises where dying declaration recorded by
the magistrate can be questioned. For example, If the magistrate records it even when the doctor does
not approve the victim medically fit. In this situation, the evidentiary value of the dying declaration
can be questioned.

The court always looks into the certain things to decide the value of the statements. The court always
seeks if the victim was mentally fit while giving the statement. If the victim is not fit at the time of
giving a statement then that statement won’t hold any value.

Confusion can occur while recording dying declaration as anything can effect its evidentiary value. It
should be taken with precaution and keeping in minds the following points:

1. The victim should be mentally fit to given statement. A medical certificate should be given by
the doctor about her health.

2. Doctors and the Police officer can record the statement but it is best if a magistrate records it.

In 2013, Delhi gang rape three dying declarations of Nirbhaya were recorded.[2] The first was recorded
by the doctor when she was admitted to the hospital, the second was by SDM during which she gave
exact details of the crime and the third one was recorded by a metropolitan magistrate and was mostly
by gestures.

In this case, all three dying declarations were recorded. But the one recorded by the magistrate was
important. And the court did accept the dying declaration recorded by magistrate even when it was in
gestures and nods.

In Kushal Rao v State of Bombay[3], The Supreme Court Of India accordingly states that the court
must be satisfied that the deceased was mentally fit to make the statement. And victim had the
opportunity to observe and identify the accused. The victim should not be making the statement under
any influence. Also, Supreme Court Of India held that once the court is satisfied that the dying
declaration is true, the conviction can be upheld and there is no need for further corroboration.
If the dying declaration is recorded by the medical officer or police officer, it should be attested by one
or more person that is present there.

Language Of Statement
As far as possible the statement should be recorded in the language of the declarant or the court
language. The court cannot discard the dying declaration on the basis of the language. It can be
recorded in any language. Even if the deceased made the statement in Urdu, Hindi, Punjabi languages,
it was held that statement could not be discarded on the ground of language alone or on the ground that
it was recorded in Urdu. Where the statement was in Urdu and the magistrate recorded it in English but
the precaution was taken in explaining every statement to the deceased by another person, it was held
that the statement was the valid dying declaration.

Points to remember

1. Dying declaration can be recorded in any language.

2. If the statement was in another language than the one which magistrate recorded, then
precaution should be taken.

3. The court cannot reject or discard the dying declaration on the sole ground of language.

In Biju @ Joseph Vs State Of Kerala[4] it was held by the court that merely on the ground that the
statement of the deceased was in her own language can not vitiate the dying declaration. It was stated
by the High Court Of Kerala :

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

Multiple dying declarations

Supreme Court Of India held that multiple dying declarations can be relied upon without corroboration
if there is consistency in all the dying declaration. If all the dying declarations are similar to each other
than it can be admissible.[5]

But if the dying declaration is different from each other than the court will examine the facts of the
case or can examine the statement of other witnesses to ascertain the truth of the case.

The statement of the deceased should match the facts of the case. It is very important to understand the
nature of dying declaration. Points to remember in multiple dying declarations:

1. Consistency in all the dying declaration should be there.

2. If all the dying declaration does not match, then the court will examine the facts of the case
with the dying declaration Or examine the witnesses.

In Kushal Rao v state of Bombay[6], this case set the importance of dying declaration and what is the
right process to record it. In this case, if the dying declaration is recorded in question-answer form, if
the medical certificate is given by the doctor, if it is recorded by the authorized person, then it is
admissible and reliable. If there are multiple dying declarations, then court looks into all these points
to see which dying declaration holds more evidentiary value.

The Supreme Court has held that multiple dying declarations can be relied upon without corroboration
if consistency is maintained throughout. Otherwise, the courts would have to examine the statement of
other witnesses to ascertain the truth in a criminal trial.

An Expectation of death not necessary

Under English Law, the victim should not be under any expectation of death. Evidence Act has taken
this law from English law. If the statement has been made even when no cause of death had arisen then
also the statement will be relevant. It is not important at all that the statement recorded should be just
before the death of the victim.

In Pakala Narayan Swami v Emperor[7], it was held that the letter given by the deceased to his wife
before going to the place where he was killed was relevant. The court said that the statement made
must be at any rate near death or the circumstances of the transaction explaining his death is relevant
under section 32 of Evidence Act. In this case, the court stated that dying declaration can be any
statement that explains the cause of death or the circumstances of the transaction explaining his death.
Hence, statements as to any of the circumstances of the transaction which resulted in the death would
be included.

F.I.R as dying declaration

When an injured person lodges a FIR and then dies, it was held that the FIR will be relevant as a dying
declaration.

In Munnu Raja and another v. State of M.P.[8], the Supreme Court Of India held that statement by
injured person recorded as FIR can be treated as dying declaration and such statement is admissible
under Section 32 of Indian Evidence Act. It was also held that dying declaration must not cover the
whole incident or narrate the case history. Corroboration is not necessary for this situation, Dying
declaration can be the sole purpose for conviction.

If declarant does not die

The question arises when the dying declaration is recorded and the declarant does not die. The
statement is only converted in dying declaration when the victim/ declarant dies. If the declarant does
not die, then the declarant can be used as a witness in the court against the accused. It is said that the
dying declaration is only recorded on the presumption that the declarant is about to die. And the
declarant won’t lie just before dying. But if the declarant does not die then the statement can’t be
admissible as dying declaration.

Conclusion
Dying declaration is one of the most important evidence that is admissible in court as dying
declaration can be a sole purpose for conviction of accuse. Hence, it should be recorded carefully with
all the procedure that the court has mentioned. It should not be tampered at all by anyone. If the dying
declaration is incomplete, then it is very much to be rejected by the court. It is on the court discretion
to check if the dying declaration is recorded carefully or not.
 BIBLIOGRAPHY

 https://blog.ipleaders.in/admissibility-dying-declaration/
 http://www.legalserviceindia.com/legal/article-488-dying-declaration.html
 http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_P9S
0NL6U.PDF
 https://www.vakilno1.com/legal-news/dying-declaration-law-important-
judgments.html
THANK
YOU
 ACKNOWLEDGEMENT

We are really grateful because we managed to complete our Law of

Evidence Project within the time given by our teacher Ms Neetishree. This
assignment could not have been completed without the effort and co-
operation from our group members.
We also sincerely thank our teacher for the guidance and encouragement in
finishing this project and also for teaching us in this course and my parents
for supporting me throughout.