Dying Declaration

Section 32(1)
Grounds for admissibility of Dying Declaration
• 1- Death of declarant
• 2- Neccessity- (Only evidence available under the circumstances): the
victim being generally the only eye- witnesses to the crime, the
exclusion of his statement would tend to defeat the ends of justice;
and
• 3- The sense of impending death which creates a sanction equal to
the obligation of an oath.
Nemo Moriturus presumuntur mentri (no one when about to die
is presumed to lie)
‘Truth sits upon the lips of dying men.’
 Conditions of Admissibility
{Essential Requirements of a dying declaration}
• i)- To whom the statement is to be made and its form-
A Statement of DD could be made to any person- a doctor, a
magistrate, a friend, or near relative, a police officer.
However a statement recorded by a magistrate or doctor is considered
more reliable and that recorded by a police officer or close relative not.
(require more scrutiny)
The statement could be written, oral or even verbal (e.g gestures).
Empress v. Abdullah (1885)
Throat of the girl was cut and was not able to speak indicated by signs
of her hand. It was DD.
ii)-The person making the statement must have died
• The death need not occur immediately after the making of the
statement, however the death must occur, if the person making the
declaration chances to live, his statement is inadmissible as a ‘DD’,
But it might be relied under section 157 to corroborate his testimony
when examined.
• Such a statement can also be used to contradict him u/s.145.
• Further it can be used to corroborate the evidence in court under
section 6 and 8.
iii)-Statement must relate to the cause of his death or the
circumstances of the transactions which resulted in his
death
• If the statement made by the deceased does not relate to his death but to
the death of another person, it is not relevant.
• Ratem Gond v state of Bihar (1959) where the wife made a statement that
her husband is killed by Z and then she committed the suicide.
• Palaka Narayan Swami v Emperor (AIR 1939 PC 47) the deaceased made a
statement to his wife that he was going to the accused to collect money
from him. He catches a train where the accused lived. A couple of days
later, his body was found in a trunck which had been purchased on behalf
of the accused. It was held that the statement made by the deceased to
his wife was admissible in evidence under sec 32(1) as a circumstance of
the transaction which resulted in his death.
• Sharda Birdichand Sharda v state of Maharastra (1984) it was held
that proximity depends upon facts and circumstances of each case. In
this case a married woman had been writing to her parents and of her
relatives about her critical condition at the hands of her in laws.
• She lost her life some four months later. Her letters were held to be
admissible as DD.
(iv) The cause of death must be in question
• The declarant under sec.32(1) must relate to the death of the
declarant.
• Re Dannu Singh v Emperor (25 Cr LJ 574), A and five other persons
were charged with having committed a dacoity in a village. A, who
was seriously wounded while being arrested, made before his death a
DD as to how the dacoity was committed and who had taken part in
it.
• Held – Declaration is not admissisible in evidence against the other
persons, as it does not relate to his death, but it relates to
participation of his associates in the dacoity.
(v) Statement must be competent and consistent

• If the deceased fails to complete the main sentence (as far instance,
the genesis or motive for the crime), A DD would be unreliable.
However, if the deceased has narrated the full story but fails to
answer the last formal question as to what more he wanted to say,
the declaration can be relied upon. (Kusa v state of Orisaa (1980) 2
SCC 207).
(vi)Declarant must be competent as a witness

• It is necessary for the relevancy of a DD that the declarant, if he had

lived on, would have been a competent witness. Thus in a
prosecution for the murder of a child , aged 4 years, it was proposed
to put in evidence as a DD what the child said shortly before his
death. The declaration was held to be inadmissible. (R v. Pike (1829) 3
C & P 598)
(vii) Other points
• Where the injured person was unconscious, DD should be rejected.
(kaka Singh v state of M.P (1982))
• Where for some unexplained reasons the person who noted down
the statement was not produced, the declaration was not accepted as
an evidence. (Govind Narain v. State of Rajasthan (1993))
Evidentiary value of Dying Declaration (DD)
• There is no rule of law, that a DD should not be acted upon unless
corroborated. But ordinarily it is not considered safe to convict an
accused person only on the basis of a DD because of its inherent
weaknesses.
• 1) It is a heresay evidence not made on oath and its veracity cannot
be tested by cross-examination in the court.
• 2) The maker of such a statement might be mentally and physically
in a state of confusion and might well be drawing upon his
imagination when he was making the declaration.
• 3)- Very often, the dying man takes that last opportunity to implicate
all his enemies.
• 4)- in weighing the evidence of DD, various factors or circumstances
should be taken into consideration-
• (a) Nature of its content, consistency of statements made at different
times.
• (b) Capacity to remember facts; opportunity of dying man for
observation viz. availability of light if crime done at night, to identify
assailant.
• (c) Proximity of time between it and the accident; whether the
statement made at the earliest opportunity and was not the result of
any tutoring or prompting by interested parties (relatives). Thus, the
opportunity to consult other persons is an important factor.