DYING DECLARATION

AKANSHA ANAND

The author of this blog is a Law Student, FIMT, New Delhi

Dying declaration is the statement that is made by a person just before his death, stating the cause of death or stating the transaction resulting to his death. Dying declaration has been explained under a codify law, that is the Indian Evidence Act, 1872 under Section 32 (1). The word dying declaration explain itself, it means that a person giving dying declaration verbally or written is about to die or is dead.

Section 32(1) of Indian Evidence Act, 1872 says that “When the statement is made by a person as to the cause of his death, or as to 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 whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”

The person who gives dying declaration (the deceased) should be in the good and healthy state of mind and conscious while giving it. Hence, dying declaration to become admissible needs a medical certificate by doctor station that the person who is giving dying declaration is in sound mind and fit for giving the statement, it is one of the important essential of the dying declaration.

NEMO MARTURUS PROSUMUTUR MENTRI is a legal maxim which means “A man will not meet his maker with lying on his mouth”, on this presumption the dying declaration is consider a relevant the eyes of law. In Indian law, it is also believed that dying man can never lie or truth sits upon the lips of a dying man.

REQUIREMENTS OF SECTION 32(1)-

Section 32(1) of Indian Evidence Act, 1872 has stated the various requirement or say essential that makes a dying declaration admissible in the court of law-

v  Statement must be oral or written.

v  Statement must be the cause of death.

v  Statement must be related to the circumstances of the transaction.

v  Statement must resulted in the death of the deceased.

DIFFERENCE OF DYING DECLATATION IN ENGLISH LAW AND INDIAN LAW-

ENGLISH LAW	INDIAN LAW
o   The maker of dying declaration should be in real danger for the admissibility at the time it made, and not expected immediate death.	o   The maker of dying declaration must die after making it, to make it admissible.
o   English law only made dying declaration legal for criminal law.	o   Indian law has recognize dying declaration both in criminal as well as civil law.

WHO IS DEAD?

A person who give dying declaration should die after making his statement. A person who does not die by making the statement, then his dying declaration will not consider as evidence according to Indian Evidence Act, 1872.

What happens if the declarant survives? The answer to this question is that if the declarant survives then his statement will not be consider or admissible in the court of law as evidence because only those statement is converted into dying declaration where the deceased person making it dies after making it but if he survives then the dying declaration will have no effect that means it will be inadmissible, irrelevant in the eyes of law. As it is said that dying declaration is only recorded on the presumption that the declarant is about to die.

WHO CAN RECORD DYING DECLARATION?

v  The best form to record dying declaration is of the magistrate of a court.

v  Secondly, by the Supreme Court of India guidelines, it has stated that anyone can record dying declaration. It can also be the relatives or family members in the eye of laws and this dying declaration will be admissible in the court of law.\

v  Dying declaration can also be record by public servant if there is no other authority available at that time but court sometimes doesn’t find it fit and discourages it.

v  The doctor who is treating the deceased can also record the dying declaration.

v  It is important that the victim should be in the sound mind and if the dying declaration is not taken by the magistrate then it should be signed by the deceased.

RELEVANCY AND ADMISSIBILITY OF DYING DECLARATION-

Relevancy of dying declaration means the statement that has been provided by the deceased person should be relevant to his death or cause of death or relevant to same transaction of the death.

Relevancy in simple language means connected or related, if the dying declaration contains any statement which is irrelevant which means not connected to death, then that statement will not consider in the court of law. If the deceased person talks about the incident of the death of another person not him then the statement will not have any relevancy to his death, therefore it will not be admissible as an evidence.

Admissibility of dying declaration means when the dying statement is relevant to the cause to the death of a person, then it will become admissible in the court of law or say it will be admissible and consider as an evidence for the case. The portion which will not relevant will be inadmissible according to section 32(1) of Indian Evidence Act, 1872.

Hence admissibility and relevancy plays an important role in dying declaration of a deceased person.

LANGUAGE OF DYING DECLARATION

Where the deceased can only speak in his mother tongue then the statement on the ground of language can not be discard. No language is compulsory for the admissibility of dying declaration. It can be in any language and will be admissible.

DYING DECLARATION IN GESTURES AND SIGNS

When the deceased person is not able to speak or right then the use of gestures and signs is done to record the dying declaration. As it was held in QUEEN EMPRESS V. ABDULHA, accused had cut the throat of the deceased girl and because of it she was not able to speak. Therefore, due to her inability to speak, her dying declaration was recorded via gestures and signs of hand. And it was taken admissible.

DYING DECLARATION IN QUESTION/ANSWER FORM

It is not important to record dying declaration in the question and answer form. It can be recorded in any way, it is just important that it should be relevant to the death of the deceased. However, narrative form may be the best version.

CASE LAW:

 CHIRRA SHIVRAJ V. STATE OF ANDHRA PRADESH

In this case, the court held that a judge should not totally relay on the dying declaration. Sometimes is can be dangerous as the dying declaration can be done by someone’s influence to the deceased or under not fit state of mind. Hence, dying declaration should be investigate properly before giving verdict.

   KUSA V. STATE OF ORISSA

Under this case, the Supreme Court held that the dying declaration lose its reliability if it is incomplete. Hence, it is important that the dying declaration should be completed before the death of the deceased.

CONCLUSION

Dying declaration is the most important evidence when it became admissible to the court of law and can be a sole reason for the conviction of the accused. The court has given various opinion of dying declaration throughout the history and has created guidelines to hear and make dying declaration, which has to follow for someone who is taking the dying declaration. If anyone fails to follow up the guidelines then the dying declaration will lose its reliability and can be rejected. It is clear with the above mentioned cases that dying declaration may be in any form but it must be carefully and dully proven that the court make it admissible as an evidence.