Introduction

"Nemo moriturus praesumitur mentire. No one at the point of death is presumed to lie." "A
man will not meet his Maker with a lie in his mouth" -- is the philosophy in law underlying
admittance in evidence of dying declaration. "A dying declaration made by person on the
verge of his death has a special sanctity as at that solemn moment, a person is most unlikely
to make any untrue statement. The shadow of impending death is by itself the guarantee of
the truth of the statement made by the deceased regarding the causes or circumstances leading
to his death. A dying declaration, therefore, enjoys almost sucrose not status, as a piece of
evidence, coming as it does from the mouth of the deceased victim. Once the statement of the
dying person and the evidence of the witnesses testifying to the same passes the test of
careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence
and if the Court is satisfied that the dying declaration is true and free from any embellishment
such a dying declaration, by itself, can be sufficient for recording conviction even without
looking for any corroboration"--is the statement of law summed up by the Supreme Court in
Kundula Bala Subrahmanyam v. State of A.P. , (1993) 2 SCC 684) and reiterated in Laxmi v.
Omprakash (AIR 2001 SC 2383. ) The Supreme Court further added such a statement,
called the dying declaration, is relevant and admissible in evidence 'provided it has been
made by the deceased while in a fit mental condition'.

The above statement of law, by way of introduction to this chapter is the crux of the whole
law of evidence regarding dying declaration. The law has become now well settled. Dying
declaration is admissible in evidence. A dying declaration, if found reliable, can form the
basis of conviction. A court of facts is not excluded from acting upon an uncorroborated
dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands
on the same footing as any other piece of evidence. It has to be judged and appreciated in the
light of the surrounding circumstances and its weight determined by reference to the
principles governing the weighing of evidence.

Meaning of Dying Declaration

In laymans language, we can say that dying declaration is the statement made by a person
who is dying. But in legal sense it has got a different meaning. It is not that all the statements
made by a dying person can be termed as dying declarations. It is only that statement of the
deceased, which he made before his death and which shows the cause of death or the
circumstances leading to his death can be termed as dying declaration, provided the death of
that person comes in question before a judicial authority.

Dictionary Meaning of Dying Declaration

None of the language dictionaries define the word dying declaration jointly but the words
dying and declaration has been shown separately the literal meaning of which a declaration or
statement which is going to die. But if we go by these meanings the whole meaning of dying
declaration will loose its significance. Therefore this meaning cannot be assigned to the term
dying declaration.

Meaning given by Law Lexicons

Whartons Law Lexicon, quoting from R v. Perry (1909)2 K.B. 697 has stated about dying
declaration as follows: -

Deathbed or dying declarations are constantly admitted in evidence. The principle of this
exception to the general rule is founded partly on the lawful situation of the dying person,
which is considered to be as powerful over his conscience as the obligation of an oath, and
partly on a supposed absence of interest in a person on the verge of the next world, which
dispenses with the necessity of cross-examination. But before such declaration can be
admitted in evidence against a prisoner, it must be satisfactorily proved that the deceased, at
the time of making them, was conscious of his danger and given up all hopes of recovery.'

Blacks Law Dictionary defines dying declaration as follows: -

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. Such statements are
admissible in evidence as an exception to the hearsay rule in a trial for homicide and
occasionally, at least in some jurisdiction in other cases where the killing of the declarant is
the crime charged to the defendant.

The dying declaration is thus the statement by the person as to cause of his death or as to any
of the circumstances relating to death. The words dying declaration mean a statement
written or verbal of relevant facts made by the person who is dead. Statements made by a
person who believes he or she is about to die, concerning the cause or circumstance
surrounding his or her impending death.
Content and Scope

Under common law, a statement made by a person on the point of death is admissible in
evidence even if it is hearsay. That is, if X told Y that Z had stabbed him, then if Y told a
court under oath what X had said, this may be admissible evidence against Z. The reason this
is acceptable, while other forms of hearsay are not, is that it is assumed that a person who is
dying, and knows this to be the case, is unlikely to lie. To be admissible, the declaration must
be made by a person who has a genuine believe that death is imminent. The believe need not
necessarily be reasonable, and he may subsequently recover. Of course, if he does then he
would be expected to testify himself.

It becomes relevant under section 32 (1) of the Evidence Act. It is an exception to the rule of
hearsay and makes admissible the statement of the deceased whether the death is homicidal
or suicidal provided the statement relates to the cause of death or exhibits circumstance
leading to his death. Greater solemnity and sanctity are attached to the words of a dying man
because a person on the verge of his death is not likely to tell lies or to concoct a case as to
implicate an innocent person but the court has to be on the guard against the statement of the
deceased being a result of either tutoring, prompting or a product of his imagination. The
court shall also be satisfied that the deceased was in a fit state of mind to make the statement
after he had a clear opportunity to observe and identify the assailants. Once the court is
satisfied about its authenticity and voluntariness, the court can found a conviction on the
basis thereof in the absence of any corroboration.

If the statement has been made when the deceased was under the expectation of death, it
becomes a dying declaration in evidence after her death. Nonetheless, even if she was no
where near the expectation of death, still such statement would become admissible under
section 32(1) of the Indian Evidence Act, 1872; though not as dying declaration as such,
provided it satisfies one of the two conditions set forth in section 32(1) of the Act.

The phrase 'dying declaration' is not used in s 32 of the Indian Evidence Act. The head note
of the relevant section reads as cases in which the Statement of Relevant Fact by Person is
who is dead or cannot be found etc, is relevant. The section as a whole deals with the relevant
facts originating from a person who is dead or who cannot be found or who has become
incapable of giving of evidence or whose attendance cannot be procured without an amount
of delay or expense, which, under the circumstances of the case, the court considers,
unreasonable. But, while referring to s.32 (1) the phrase is normally used to explain the
essence of the provision.
The phrase is quite popular because of judicial usage and endorsement in a number of cases,
which continues even today. Seemingly, the attributed significance to the dying declaration as
a piece of evidence is because of its hearsay character. Speaking on Indian context, due to
unabated occurrence of heinous offences like dowry related deaths and homicides, the dying
declaration as a very effective means of proving complex and hidden facts has acquired
phenomenal importance.

Dying declaration considered as hearsay because the person who made such a statement is
not available before the court to depose. In addition, the person who heard from such a dead
person and who appears before the court to depose the facts in question is not in a position to
vouchsafe whether those facts which he heard, from the dying person are true or not.

At the outset, it is necessary to note, that a dying declaration as envisaged by s.32(1) need not
necessarily be from a person who is dying at the time of making the statement. In addition, at
the time of making such declaration, it is not necessary that he or she should know that there
is impending death. In other words, at the time of making such declaration, there is no legal
mandate that such person must entertain expectation of death.

Moreover, dying declaration can be considered as relevant evidence in both criminal and civil
proceedings whenever the cause of his or her death comes into question. However, it is
settled law that it is not safe to convict an accused person merely on the evidence furnished
by a dying declaration without further corroboration because such a statement is not made on
oath and is not subject to cross-examination and because the maker of it might be mentally
and physically in a state of confusion and might well be drawing upon his imagination while
he was making the declaration. It is in this light that the different dying declarations made by
the deceased and sought to be proved in the case have to be considered.

This provision has been made by the legislature; advisedly; as a matter of sheer necessity by
way of an exception to the general rule that hearsay is no evidence and that evidence which
has not been tested by cross-examination, is not admissible. The purpose of cross-
examination is to test the veracity of the statements made by a witness. In the view of the
legislature, that test is supplied by a solemn occasion when it was made, namely, at a time
when the person making the statement was in danger of losing his life. At such serious and
solemn moment, that person in not expected to tell lies and secondly; the test of cross-
examination would not be available. Thus, a statement made by a dying person as to the
cause of death, has been accorded by the legislature; a special sanctity which should, on first
principles, be respected unless there are clear circumstances brought out in the evidence to
show that the person making the statement was not in expectation of death, not that the
circumstance would affect the admissibility of the statement; but only its weight. It may also
be shown by evidence that a dying declaration is not reliable because it was not made at the
earliest opportunity, and, thus, there was a reasonable ground to believe its having been put
into the mouth of the dying man, when his power of resistance against telling a falsehood,
was ebbing away; or because the statement has hot been properly recorded.

It is, as if the maker of the dying declaration was present in the court, making a statement,
stating the facts contained in the declaration, with the difference that the declaration is not a
statement on oath and the maker thereof cannot be subjected to cross-examination. If in a
given case a particular dying declaration suffers from any infirmities, either of its own or as
disclosed by other evidence adduced in the case or circumstances coming to its notice, the
court may as a rule of prudence look for corroboration and if the infirmities by such as render
the dying declaration so infirm as to prick the conscience of the court, the same may be
refused to be accepted as forming safe basis for conviction. In the case at hand, the dying
declarations are five.

However, it is not the number of dying declarations, which will weight with the court. A
singular dying declaration not suffering from any infirmity and found worthy of being relied
on may form the basis of conviction. On the other hand if every individual dying declaration
consisting in a plurality is found to be infirm, the court would not be persuaded to act thereon
merely because the dying declarations are more than one and apparently consistent.

The admissibility is founded on principle of necessity.

A dying-declaration not being a deposition in Court, neither made on oath nor in the presence
of the accused nor therefore not tested by cross-examination is yet admissible in evidence as
an exception to the general rule against the admissibility of hearsay. The admissibility is
founded on the principle of necessity. The weak points of a dying declaration serve to put the
court on its guard while testing its reliability and impose on the court an obligation to closely
scrutinize all the relevant attendant circumstances. [See Tapinder Singh v. State of Punjab
1971 (1) SCJ 871] One of the important tests of the reliability of the dying declaration is a
finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind
and capable of making a statement at the point of time when the dying declaration purports to
have been made and/or recorded. The statement may be brief or longish. It is not the length of
the statement but the fit state of mind of the victim to narrate the facts of occurrence which
has relevance. If the court finds that the capacity of the maker of the statement to narrate the
facts was impaired or the court entertains grave doubts whether the deceased was in a fit
physical and mental state to make the statement the court may in the absence of corroborate
evidence lending assurance to the contents of the declaration refuse to act on it.

In Bhagwan Das v. State of Rajasthan - AIR 1957 SC 589] the learned Sessions Judge found
inter alia that it was improbable if the maker of the dying declaration was able to talk so as to
make a statement. This Court while upholding the finding of the learned Sessions Judge held
the dying-declaration by itself insufficient for sustaining a (SIC)con charge of murder. In
Kako Singh @ Surendra Singh Vs State of M.P. -AIR 1982 SC 1021 the dying declaration
was refused to be acted upon when there was no specific statement by the doctor that the
deceased after being burnt was conscious or could have made coherent statement. In Darshan
Singh Vs. State of Punjab - AIR 1983 SC 554 this Court found that the deceased could not
possibly have bene in a position to make any kind of intelligible statement and therefore said
that the dying declaration could not be relied on for nay purpose and had to be excluded from
consideration. In Mohar Singh and Ors. etc. Vs. State of Punjab - AIR 1981 SC 1571 the
dying declaration was recorded by the investigating officer. This Court excluded the same
from consideration for failure of the investigating officer to get the dying declaration attested
by the doctor who was alleged to be present in the hospital or any one else present.

A dying declaration made to a police officer is admissible in evidence, however, the practice
of dying declaration being recorded by investigating officer has been discouraged and this
Court has urged the investigating officers availing the services of Magistrate for recording
dying declaration if it was possible to do so and the only exception is when the deceased was
in such a precarious condition that there was o other alternative left except the statement
being recorded by the investigating officer or the police officer later on relied on as dying
declaration. In Munnu Raja and Anr. Vs. The State of Madhya Pradesh - AIR 1976 SC 2199,
this Court observed - "investigating officers are naturally interested in the success of the
investigation and the practice of the investigating officer himself recording a dying
declaration during the course of an investigation ought not to be encouraged". The dying
declaration recorded by the investigating officer in the presence of the doctor and some of the
friends and relations of the deceased was excluded from consideration as failure to requisition
the services of a Magistrate for recording the dying declaration was not explained. In Dalip
Singh Vs. State of Punjab AIR 1979 SC 1173 this Court has permitted dying declaration
recorded by investigating officer being admitted in evidence and considered on proof 'that
better and more reliable methods of recording dying declaration of injured person' were not
feasible for want of time or facility available. It was held that a dying declaration in a murder
case, though could not be rejected on the ground that it was recorded by a police officer as the
deceased was in a critical condition and no other person could be available in the village to
record the dying declaration yet the dying declaration was left out of consideration as it
contained a statement which was a bit doubtful.

Distinction between English Law and Indian Law

The first clause is widely different from the English law upon the subject of dying
declaration, according to which: (a) this description of evidence is not admissible in any civil
case; and (b) in criminal cases only in the single instance of homicide, that is, murder or
manslaughter, where the death of the deceased is the subject of the charge and the
circumstances of the death are the subject of the dying declaration. Both in England and
America, evidence of this description (dying declarations), is not admissible in any civil case
and in criminal cases it is not admissible upon charges other than homicide; or as to
homicides other than that of the declarant. On the other hand, under the Indian Evidence Act
the statement is relevant whatever may be the nature of the proceeding, in which the cause of
the death of the person who made the statement comes into question. Further, according to
English law, certain conditions are required to have existed at the time of declaration, namely,
it is necessary that the declarant should have been in actual danger of death; secondly, that the
should then have had a full apprehension of his danger and lastly, that death should have
ensued. The existence of the latter condition is of course as necessary under that Act as under
the English rule, inasmuch as the statement is admissible only in cases in which the cause of
the death of the person who made it comes into question. But, under this Act, the statement is
relevant whether the person who made it was or was not at the time when it was made, under
expectation of death.

Under the Indian Law for a declaration to be relevant under s 32(1), it is not necessary that
the declaration should have been made when the person making the same was in actual
danger of death and had given up all hope of recovery at the time when he made the
declaration. [Poolakkal Klinchli v State 1986(2) Crimes 225 (Ker) (DB)] Therefore, whether
the declarant was or was not in actual danger of death, and knew or did not know himself to
be in such danger, are considerations, which will not affect the admissibility of this kind of
evidence in India. But these considerations ought not to be laid aside in estimating the weight
to be allowed to the evidence in particular cases. Under the Law which was in force prior to
this Act (s 371, Act 25 of 1861) s 29, Act 2 of 1865, and which with one modification relating
to the entertainment by the deceased of hopes of recovery was similar in this respect to the
English law, it was held that before a dying declaration could be received in evidence, it must
be distinctly found that the declarant knew or believed at the time he made the declaration,
that he was dying or likely to die. Of course, before the statement can be admitted under this
section, the declarant must have died. Where a person making a dying declaration chances to
live, his statement cannot be admitted in evidence as a dying declaration, [Mati Singh v State
AIR 1964 SC 900] though it may be relied on under s. 157 to corroborate the testimony of the
complainant when examined in the case. The statutory provision in s. 164 Criminal Procedure
Code should be followed if the statement in inculpatory and in the nature of a confession.

Hence, under the English Law, it is essential to the admissibility of dying declaration that the
declarant must have entertained a settled hopeless expectation of death. But he need not have
been expecting immediate death. Indian law does not put any such restrictions. It is not
required under Indian law that the maker should be under the expectation of imminent death,
nor is it restricted to the case of homicide only. Before a dying declaration may be admitted,
it must be proved that the maker is dead. If the maker survives, it may be used to corroborate
or contradict his statement.