Author: Deeksha Gupta


INTRODUCTION

The terms ‘dying declaration’ has not been defined in Evidence Act but after reading section 32 the term can be defined as, “A dying declaration is statement made by a person who is dead; as to cause of  his dead or as to any circumstance of his transaction which resulted in his death, in cases in which his death comes into question, such statements are relevant under section 32 of Evidence Act, whether the person who made there was or was not, at the time when they were made, under expectation of death and whatever may be the nature of proceeding in which the cause of his death comes into question..[1]

Oral dying declaration is admissible in evidence as an exception to the general rule of evidence that hearsay evidence is no evidence in eye of law and it should be discarded as general rule because the evidence in all cases must be direct[2]. In Amar Singh v State of Rajasthan[3], the deceased woman’s brother and mother gave the evidence that the deceased made the statement month prior to the incident of suicide by her that the appellant, her husband used to taunt the deceased that she had come from a hungry house and the appellant himself visited their house and demanded rs 10,000. It was held to be a dying declaration and the appellant was convicted under section 304B and 498A IPC.

THE REASON FOR ADMITTING DYING DECLARATION IN EVIDENCE

A dying declaration is admitted in evidence on the principle ‘nemo moriturns preosumitur mentiri’ (a man will not meet his maker with a lie in his mouth). The philosophy of law which signifies importance of dying declaration is based on the maxim ‘nemo moritusus prasumitus mennre’ (no one at the time of death is presumed to lie and he will not meet his maker with a lie in his mouth). Dying declaration does not require any corroboration as long as it inspires confidence in the mind of the court and it is free from any form of tutoring. Dying declaration has to be judged in the light of surrounding circumstances.

In Uka Ram v State of Rajasthan[4], it was held by SC that the admissibility of dying declaration rests upon the principle that a sense of impending death produces in man’s mind the same feelings as that of conscientious and virtuous man under oath. Dying declaration is admitted upon consideration that the declaration is made in extremity; when the maker of declaration is at the point of death and when the point of every hope of this world is gone; when every motive of falsehood is silenced and mind induced by the most powerful consideration to speak the truth.

CIRCUMSTANCES OF THE TRANSACTION WHICH RESULTED IN HIS DEATH

The words ‘resulted in his death’ do not mean ‘caused his death’. The expression ‘any of the circumstances of the transaction which resulted in his death’ are wider in scope than the expression ‘caused his death’. When the word circumstances is linked to transaction which resulted in his death, the sub section casts the net in very wide dimension. Any thing which has nexus with his death proximate or remote, direct or indirect can also fall within the purview of subsection.

In Pakla Narayan Swami v Emperor[5], Lord Atkin held that circumstances of the transaction which resulted in the death of the declarant will be admissible if such circumstance have some proximity with the actual occurrence. In Sharad Birdichand Sarda v State of Maharashtra[6], the test laid down by Lord Atkin was quoted by Justice Fazal Ali. He held that where the main evidences consist of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell tale story, the said statement would clearly fall within the four corners of section 32 and therefore admissible and distance of time alone in such cases would not make the statements irrelevant.

EXPECTATION OF DEATH

The section declares that such statements are relevant whether the person who made them was or was not at the time when he made the statements under the expectation of death.[7] Though the expectation of death does not effect the relevancy of dying declaration but it will certainly affect the weight attached to the declaration. If the person making the declaration is conscious that he is dying soon the possibility to speak the truth is very great.

In Najjam Faruqi v State of West Bengal[8], the Supreme Court held that there was no merit in the contention that the deceased died long after making dying declaration and therefore those statements had no value. No doubt it had been pointed out that when a person is expecting his death to take place shortly, he would not be indulging in falsehood, but that does not mean that such statement would loose its value if the person lives for longer time than expected. The question has to be determined in each case on the facts of the case  and circumstances established therein. If there in nothing on record to show that the statement could not have been true or if the other evidence on record corroborates the contents of statement, the court can certainly accept it.

Thus, it is not necessary that maker of the dying declaration should be under shadow of death and should entertain the belief that his shadow was imminent.

FORM OF DYING DECLARATION-

There is no particular form to be employed in making a dying declaration. It may be oral or in writing or may even be partly oral and partly in writing. On the other hand, it may be neither oral nor writing i.e. it may consist of some signs or gestures made by the deceased. There must however be a distinct and definite assertion on the part of the maker however it may be affected. Possibly the declaration should be written in the exact words of the person making it.


[1]Ram Bihari Yadav v State of Bihar, AIR 1988 SC 1850.

[2]Bable v State of Chattisgarh, AIR 2012 SC 2621.

[3]Amar Singh v State of Rajasthan, AIR 2010 SC 3391.

[4]Uka Ram v State of Rajasthan, AIR 2001 SC 1814.

[5]Pakla Narayan Swami v Emperor, AIR 1939 PC 47.

[6]Sharad Birdichand Sarda v State of Maharashtra, AIR 1984 SC 1622.

[7]Bharat v State of Rajasthan, 1981 CrLJ 1274.

[8]Najjam Faruqi v State of West Bengal, AIR 1998 SC 682.


About the Author: Deeksha is third-year B.A.LL.B student at Ram Manohar Lohia National Law University, Lucknow.


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