Indian law recognizes Dying Declaration in Sec 32 (1) of the Indian Evidence Act, 1872. A statement which is considered as an evidence when is made by the person as the cause of his death, or as any of the circumstances of the transaction which resulted in his loss of life, in cases in which the cause of that person’s death comes into question.
Such statements are admissible as evidence even though they are not direct. It is made by the person are relevant whether the person who made them was alive or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. The task is of the judge is to find out the truth in respect of a particular disposition process which is part of justice delivery mechanism.
The concept of dying declaration is based on the Latin maxim “Nemo Moriturus Praesumitur Mentire” which means a man will not meet his maker with a lie in his mouth. More precisely in our Indian law, it is the fact that the dying man can never lie or Truth sits on the lips of dying man. The legal term for dying declaration is called as '' Leterm Mortem'' meaning “Words said before death”.
In common parlance, dying declaration can be understood as a statement made by the person while he was dying and states the reason for his death. The dying person's declaration may be hypothetical or indicate the explanation for his death. As a consequence, the last comment made right before a person's death is known as the Dying Declaration. The courts have held that dying declaration is admissible as evidence and can be used as a weapon to punish the culprit.
Evidentiary Value of Dying Declaration
Evidentiary value of dying declaration depends on the statements oral or written of relevant facts made by a person who is dead. It is an important piece of evidence and conviction can be based solely on the declaration of a dead man. Mathew Arnold said truth sits on the lips of dying man. Recognising the value of dying declaration Indian Supreme Court in a famous case stated as follow:
“A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent every motive of falsehood is obliterated. The mind gets altered by the most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person .......the general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situations so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice.”
The court has very beautifully explained the evidentiary value of Dying Declaration through judgments like Khushal Rao v. State of Bombay, Kusa v. State of Orissa and K.R. Reddy v. Public Prosecutor and many other cases. The SC has culled out following principle related evidentiary value of dying declaration:
A dying declaration made by a 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.
A dying declaration can be the sole basis of conviction. A true and voluntary declaration needs no corroboration since the shadow of impending death is by itself the guarantee of the truth of the statement made.
Each case must be determined on its own facts keeping in view the circumstances in which dying declaration was made.
A dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence.
A dying declaration recorded by the Magistrate in question answer form stands on a much higher footing.
In order to test the reliability of dying declaration court has to keep in mind the circumstances like the opportunity for observation of the dying man i.e., sufficient light when crime was committed, capacity to remember the facts, statements are consistent and the statement has been made at the earlier opportunity and was not the result of tutoring by interested parties
Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule; requiring corroboration is not a rule of law but only a rule of prudence.
Thus, law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness there is no justification to discard the same. SC overruled the judgment in Ram Nath Mahadeo Prasad v. State of M.P while making the statement that dying declaration if found true can safely be relied upon even if it is not corroborate.
It is pertinent to note that accused has no chance of cross examination, though is entitled to a great weight. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason court has to assure that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be satisfied that the declaration must be true and voluntary and the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied it can undoubtedly base its conviction without corroboration. Thus, there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
Whereas, if dying declaration is based on suspicion the convictions should not be acted upon without corroborative evidence. A dying declaration which suffers from infirmity cannot be relied upon for conviction. The court must closely scrutinize and examine the dying statement, ensuring that it is not suspicious and cannot be acted upon without substantiated evidence.
Dying declaration is considered as paramount evidence. From a careful scrutiny of the authorities and the judicial pronouncement it is clearly established that a dying declaration is an important piece of evidence.
While recording the statement of the victim, it is very important to examine the health of the victim. Since a practitioner is an impartial entity who can never be disbelieved, a dying statement reported by a medical officer is admissible and of evidentiary value. In situations where the doctor learns that the patient's life is ebbing quickly and there is little time to contact the police or the magistrate, the doctor is justified, indeed, obliged, to report the dying statement. Since a practitioner is an impartial entity who can never be disbelieved, a dying statement reported by a medical officer is admissible and of evidentiary value.
In situations where the doctor learns that the patient's life is ebbing quickly and there is little time to contact the police or the magistrate, the doctor is justified, indeed, obliged, to report the dying statement.He is not only a respectable witness but an impartial expert and thus, his recording of declaration deserves respect.
It is important to assess the victim's health when documenting the victim's statement. It is important that the magistrate knows the impact of the medications prescribed, as this could lead to erroneous statements. Judicial Magistrate or the doctor as the circumstance may be should satisfy himself that the victim is in a fit condition to give a statement to ensure if that the person is conscious of the surroundings and is in a fit state of mind to make the dying declaration. A certificate proving that the statement given was in fit condition and it is true should be obtained by the judicial magistrate from the doctors examining the victim.
For a careful scrutiny of dying declaration and considering it as a sole basis for conviction it is necessary to follow certain rules because of such an important piece of evidence may be relied upon.
Present Scenario of Dying Declaration in India
Law of evidence admits the best evidence in Indian courts. Nowadays, judicial enquiry is facing two real obstacles. A judge determining a conflict between rival parties is entirely ignorant of the facts from which the settlement is to be given. It is primarily determined by the nature and weight of facts submitted to the presiding officer.
Dying declaration are admissible in Indian courts, though lacks value direct evidence as the person whose statement is to be relied on is no more. In the present scenario procuring evidence of direct facts are not a cake walk as the witnesses are usually becoming hostile, a term not precisely and exactly been used in the Act, leaving the party at the option of judicial discretion.
The statement made by the deceased should be free from any influential pressure and should be made spontaneous but the relatives and family members of the dying man finds a favourable opportunity of tutoring the witness to gain an advantage is germane to our system.
This being the passive criminality option, dying declaration in matters of judicial enquiry becomes an effective weapon for the prosecution. The courts have allowed rejecting any untrue statements which are contradicting in nature. Truth is one of the dispositions of the Dharma to which a person standing in the witness box has to testify to the facts so deposed and needs to substantiate. The court feels that justice lies in the mouth of a witness who is supposed to depose honestly the facts which he encountered at the time of occurrence. As a consequence, deciding what the legislation expects and what is submitted before a court of law is a daunting job nowadays. No one would ever dispute the new heinous societal system, in which an individual's sanctity has become a conundrum. The overarching structure is hindered by the fundamental character and ideology of the society.
With the above research, it can be concluded that dying declaration holds paramount evidentiary value and can be a sole factor for conviction of the accused. Despite possessing a major fault, it bears a lot of weight. That is a fundamental deviation from existing proof standards since the statement and its veracity cannot be cross-examined, essentially making hearsay evidence admissible.
It seems difficult for the courts to allow conviction solely on the basis of testimony of a witness who cannot be available before the court to testify the substance of the statement which forms the basis of its judgment. Courts have given several guidelines keeping in view the sanctity while recording dying declaration and considering this admissible as a piece of evidence. Though the statement of the dying person has got statutory permission but the courts have cautioned before enduring such permission. It is also perfectly accepted by the courts to reject the dying declaration if it found to be untrue, inconsistent or is made under influential pressure.
With time, Indian courts established the concept of caution, and marshalled the transparency as the rule. Dying declaration is entitled to great weight, if true, unambiguous and support the prosecution story beyond. The courts will lean heavily in favour of the statement if it stands to meet the parameters and will be considered admissible before the court.
By Pragya Khubani
IIIrd Year, B.B.A LL.B (Hons.)
United World School of Law, Karnavati University, Gandhinagar, Gujarat