Dying declaration

In the law of evidence, the dying declaration is testimony that would normally be
barred as hearsay but may in common law nonetheless be admitted as evidence
in Criminal law trials because it constituted the last words of a dying person. The
rationale, accurate or not, is that someone who is dying or believes death to be
imminent would have less incentive to fabricate testimony, and as such, the hearsay
statement carries with it some reliability.

HISTORY OF DYING DECLARATION

In medieval English courts, the principle originated of “Nemo moriturus

praesumitur mentiri” — "no-one on the point of death should be presumed to be

1
lying". An incident in which a dying declaration was admitted as evidence has been
found in a 1202 case.

 Tests for admissibility of a "dying declaration

In common law, a "dying declaration" must have been a statement made by a

deceased person who would otherwise have been a credible witness to their own death
by murder or manslaughter, and was of "settled hopeless expectation of death".

 IN ENGLAND AND WALES

The admissibility of hearsay evidence in criminal proceedings has been governed by

the Criminal Justice Act 2003 which effectively replaced the common law regime and
abolished all common law hearsay exceptions (except those preserved by s.118)
including the dying declaration exception. An original statement made by a dead
person may now be admissible under the statutory "unavailability" exception (ss.114
& 116) subject to the courts' judicial discretion (preserved by s.126) to exclude
unrealiable evidence (i.e. the prejudicial value outweighs the probative value).

 IN THE UNITED STATES

Under the Federal Rules of Evidence, a dying declaration is admissible if the

proponent of the statement can establish all of the following:

 The declarant’s statement is being offered in a criminal prosecution for homicide,

or in a civil action. Some states also permit the admission of dying declarations in
other types of case.
 The declarant is unavailable – this can be established using FRE 804(a)(1)-(5).
 The declarant's statement was made while under the genuine belief that his or her
death was imminent. The declarant does not have to actually die.
 The declarant's statement relates to the cause or circumstances of what he or she
believed to be his or her impending death.

Other general rules of admissibility also apply, such as the requirement that the
declaration is based on the declarant's actual knowledge.

The statement must relate to the circumstances or the cause of the

declarant's own impending death. For example, in the dying declaration of Clifton

2
Chambers in 1988, he stated that ten years earlier, he had helped his son bury a man
whom the son had killed by accident. The statement was sufficient cause to justify
a warrant for a search on the son's property, and the man's body was indeed found.
However, there was no physical evidence of a crime, and since Chambers was not the
victim, his dying declaration was not admissible as evidence, and the son was never
brought to trial.

The first use of the dying declaration exception in American law was in the 1770
murder trial of the British soldiers responsible for the Boston Massacre. One of the
victims, Patrick Carr, told his doctor before he died that the soldiers had been
provoked. The doctor's testimony helped defense attorney John Adams to secure
acquittals for some of the defendants and reduced charges for the rest.

If the defendant is convicted of homicide but the reliability of the dying declaration is
in question, there is a ground for an appeal.

The future of the dying declaration doctrine in light of Supreme Court opinions such
as Crawford v. Washington (2004) 1 is unclear (Crawford was decided under the
constitution's Confrontation Clause, not the common law). Opinions such as Giles v.
California (2008) 2 discuss the matter (although the statements in Giles were not a
dying declaration), but Justice Ginsburg notes in her dissent to Michigan v.
Bryant (2011) 3 that the court has not addressed whether the dying declaration
exception is valid after the confrontation clause cases.

 CRITICISM OF DYING DECLARATION DOCTRINE

As early as the 1800s, critics questioned the credibility of dying declarations. In a

state court case, the Wisconsin Supreme Court considered the issue of a dying
declaration. The defense pointed out that “[t]his kind of evidence is not regarded with
favour.” The defense argued that several factors could undermine the reliability of
dying declarations.

Physical or mental weakness consequent upon the approach of death, a desire of self-
vindication, or a disposition to impute the responsibility for a wrong to another, as
well as the fact that the declarations are made in the absence of the accused, and often

1
(02-9410) 541 U.S. 36 (2004) 147 Wash. 2d 424, 54 P.3d 656
2
Giles v. California (2008)
3
562 U.S. 344 (2011)

3
in response to leading questions and direct suggestions, and with no opportunity for
cross-examination: all these considerations conspire to render such declarations a
dangerous kind of evidence.

 IN INDIA

Dying declarations are allowed as evidence in Indian courts if the dying person is
conscious of his, her or their danger, he, she or they have given up hopes of recovery,
the death of the dying person is the subject of the charge and of the dying declaration,
and if the dying person was capable of a religious sense of accountability to his or her
Maker.

DYING DECLARATION SECTION-32(1) OF INDIAN EVIDENCE

ACT 1872

The purpose of this research is to identify the principle of “Leterm Mortem” which
means “words said before death” & in a legal term it is called ‘Dying Declaration’.
The word “Dying Declaration” itself tells the meaning but this project highlights those
questions, which have a great value in legal field relating to dying declaration. The
study tells about those statements which converted into dying declaration, different
forms of dying declaration, which are admissible by law, it’s importance in the law &
clears that has it some value or not? And if it has, then what are the exceptions of it?

A statement by a person who is conscious and knows that death is imminent

concerning what he or she believes to be the cause or circumstances of death that can
be introduced into evidence during a trial in certain cases.

A dying declaration is considered credible and trustworthy evidence based upon the
general belief that most people who know that they are about to die do not lie. As a
result, it is an exception to the Hearsay rule, which prohibits the use of a statement
made by someone other than the person who repeats it while testifying during a trial,
because of its inherent untrustworthiness. If the person who made the dying declaration
had the slightest hope of recovery, no matter how unreasonable, the statement is not
admissible into evidence. A person who makes a dying declaration must, however, be
competent at the time he or she makes a statement, otherwise, it is inadmissible. A
dying declaration is usually introduced by the prosecution, but can be used on behalf of

4
the accused.

Word “Dying Declaration” means a statement written or verbal of relevant facts made
by a person, who is dead. It is the statement of a person who had died explaining the
circumstances of his death. This is based on the maxim ‘nemo mariturus
presumuntur mentri’ i.e. a man will not meet his maker with lie on his mouth. Our
Indian law recognizes this fact that ‘a dying man seldom lies.’ Or ‘truth sits upon the
lips of a dying man.’ It is an exception to the principle of excluding hearsay evidence
rule. Here the person (victim) is the only eye-witness to the crime, and exclusion of his
statement would tend to defeat the end of justice. Section 32 of Indian Evidence act
deals with the cases related to that person who is dead or who cannot be found.

SECTION 32: Cases in which statements of relevant fact by person who is dead or
cannot be found.—statement, written or verbal, or relevant facts made by a person who
is dead, or who cannot be found, or who has become incapable of giving evidence, or
whose attendance cannot be procured without an amount of delay or expanse which,
under the circumstances of the case appears to the Court unreasonable, are themselves
relevant facts in the following cases:

(1) When it relates to cause of death.

(2) Or is made in course of business.

(3) Or against interest of maker.

(4) Or gives opinion as to public right or custom or matters.

(5) Or relates to existence of relationship.

(6) Or is made in will or deed relating to family.

(7) Or in document relating to transaction mentioned in section 13, clause (a).

(8) Or is made by several persons and expresses feelings relevant to matter in question.

But here, we are studying about ‘dying declaration’ which deals with the cases relate to
cause of death. It is mentioned in sub-section (1) of section 32 of Indian Evidence act.

Section 32 (1) When it relates to cause of death.—When the statement is made by a

5
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 exception of death, and whatever may be the nature
of the proceeding in which the cause of his death comes into question.

 Illustration
The question is, whether A was murdered by B; or

A dies of injuries received in a transaction in the course of which she was ravished. The
question is, whether A was killed by B under such circumstances that a suit would lie
against B by A’s widow.

Statements made by A as to cause of his or her death, referring respectively to the

murder, the rape and the actionable wrong under consideration wrong under
consideration are relevant facts.

In Ulka Ram v. State of Rajasthan4 Apex Court held that, “when a statement is made
by a person as to cause of his death or as to any circumstances of transaction which
resulted into his death, in case in which cause of his death comes in question is
admissible in evidence, such statement in law are compendiously called dying
declaration.”
The Apex Court in its decision in P.V. Radhakrishna v. State of Karnataka5 held that
‘the principle on which a dying declaration is admitted in evidence is indicated in latin
maxim, nemo morturus procsumitur mentri, a man will not meet his maker with a lie
in his mouth. Information lodged by a person who died subsequently relating to the
cause of his death, is admissible in evidence under this clause.

In a leading case, wife of the accused had borrowed money from the deceased in the
sum of Rs. 3000 at the interest of 18 percent. Related to his debt a number of letters had

4
A.I.R. 2001 S.C. 1814.

5
25 July, 2003

6
signed by the wife of accused which was discovered from the house of deceased after
his death. One letter which was not signed by someone had been received by the
deceased K.N. on 20th March,1937, it was reasonably clear that it would had come
from the wife of accused, who invited him to come Berhampur on that day or next day.
Widow of K.N. had told to the court that his husband had told him that Swami’s wife
had invited him to come to Berhampur to receive his payment. Next day K.N. left his
house to go to Berhampur & on 23rd March, his body, which was cut in to seven
pieces, found in a trunk in the compartment of a train at Puri. The accused was
convicted of murder & sentenced to death because there were many evidence against
him.
In Wazir Chand v. State of Haryana6 in which Court observed pakala ruling & said,
‘applying these to the facts of the case their Lordships pointed out that the transaction
in the case was one in which the deceased was murdered on 21st March & his body was
found in a trunk proved to be bought on behalf of the accused. The statement made by
the deceased on 20th March that he was setting out to the place where the accused was
living, appeared clearly to be a statement as to some of the circumstances of the
transaction which resulted in his death. Thus the statement was rightly admitted.

In the case of R. v. Jenkins7 the accused was charged with the murder of a lady. He
attacked her at midnight but she had recognized her because there were sufficient light
to identify him. When magistrate’s clerk asked her about the accused to record her
statement, she told that he was Jenkins who had done the crime. The clerk asked her
that, did she make the statement with no hope of her recovery then, she replied that she
was making that statement with no hope of recovery. But when the clerk read that
statement over to her, before her signing, she told her to add the word ‘at present’ in
that statement.

It was held by the court that the statement was not a dying declaration as her insistence
upon the words “at present” showed that she had some, however faint hope of recovery.

 IDENTIFICATION THROUGH DYING DECLARATION

6
AIR 1989 SC 378, 1989 CriLJ 809, 1989 (1) Crimes 173 SC, JT 1988 (4)
7(1869), 1 C. C. R. 187)

7
There is no particular form of dying declaration which is identified or admissible in the
eye of law. But that must be functioning as a piece of evidence with the proper
identification.
In a case, Apex court has also held that, “The crux of the whole matter was as to who
had stabbed the deceased & why. These crucial facts are to be found in the dying
declaration.”

 Question answer form

Where the dying declaration was not recorded in question-answer form, it was held that
it could not be discarded for that reason alone. A statement recorded in the narrative
may be more natural because it may give the version of the incident as perceived by the
victim.

 Gestures & signs form

In the case of Queen-Empress v. Abdullah 8 Accused had cut the throat of the
deceased girl & because of that, she was not able to speak so, she indicated the name of
the accused by the signs of her hand, it was held by the full bench of the
Allahabad High Court “If the injured person is unable to speak, he can make dying
declaration by signs & gestures in response to the question.” In another case The Apex
Court observed that “the value of the sign language would depend upon as to who
recorded the signs, what gestures & nods were made, what were the questions asked,
whether simple or complicated & how effective & understandable the nods & gestures
were.”

 Language of statement

Where the deceased made the statement in Kannada & Urdu languages, it was held that
the statement could not be discarded on that ground alone, or on the ground that it was
recorded only in Kannada. Where the statement was in Telugu & the doctor recorded it
in English but the precaution of explaining the statement to the injured person by
another doctor was taken, the statement was held to be a valid dying declaration.

8
(1885) ILR 7 All 385.

8
  Oral declaration

The Apex Court emphasized the need for corroboration of such declaration particularly
in a case of this kind where the oral statement was made by the injured person to his
mother & she being an interested witness. Such declaration has to be considered with
care & caution. A statement made orally by the person who was struck down with a
lathi blow on head and which was narrated by the witness who lodged the F.I.R. as a
part of the F.I.R. was accepted as a reliable statement for the purpose of Section 32.

 Thumb impression

A dying declaration authenticated by thumb impression was considered to be doubtful

in view of the fact that the victim had sustained 100 percent burns.

 Incomplete statement

The Apex Court had held that if a deceased fails to complete the main sentence (as for
instance, the genesis or motive for the crime) a dying declaration 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.

 Where declarer survives

In a case decided by the Apex Court, the deceased who had made the dying declaration
was seriously injured, but was conscious throughout when making the statement. The
Court held that mirror incoherence in his statement with regard to facts &
circumstances would not be sufficient ground for not relying on his statement, which
was otherwise found to be genuine.

 Absence of medical statement of fitness

Where the dying declaration of a dowry victim was challenged on the ground that
doctor’s certificate of mental fitness for statement was not there, the Supreme Court
attached no importance to that omission, because the case was not wholly dependent
upon the declaration. The facts were on record showing that the injured woman had
gone to the hospital all alone changing vehicles on the way. This was sufficient
evidence in itself to show her fitness.

9
  Where interested witnesses were attending to the deceased

The Gauhati HighCourt has held that when the interested witnesses were attending on
the deceased when he was making a dying declaration, & because of the injuries, the
deceased was neither physically or mentally fit, no reliance could be placed on the
dying declaration, in the absence of evidence to show that the deceased was physically
& mentally capable of making the dying declaration, & was not the victim of
anytutoring.

 Where statement is not relevant to the cause of death

When the person making the statement is not proved to have died as a result of the
injuries received in the incident, his statement cannot be said to be the statement as to
the cause of his death or as to any of the circumstances of transaction which resulted in
his death.

 Medical report

The doctor in the hospital clearly recorded in the Accident Register of the Hospital that
the patient was conscious, her orientation was good & that she answered well the
question put to her. Her statement could not be discarded on the basis of her injury or
post-mortem report in which it was said that having regard to the nature of injuries
sustained by the deceased, she could not have been in a position to make a statement.
Where the medical report of fitness was available to the magistrate who was to record
the statement, it was held that it was not necessary for the magistrate to make an
independent inquiry as to fitness.

 Doctor’s statement

In the case of a bride burning, the doctor to whom the deceased was taken for treatment
deposed that soon after her admission, she said that her husband had poured kerosene
on her clothes and set her ablaze. The doctor made a note of it in the case papers. The
testimony of the doctor became supported by the contemporaneous record. The Court
said that the doctor had no reason to falsely depose against the accused or prepare false
case papers.

10
  Fir as dying declaration

In K. Ramachand Reddy v. Public Prosecutor9, it was held that where an injured

person lodged an FIR & then died, it was held to be relevant as a dying declaration.

 Dowry death, wife burning etc

The death of a married woman in the matrimonial home three or four months after her
statements expressing the danger to her life has been held by the Apex Court to be a
statement explaining the circumstances of her death. In a case of wife-burning, after
recording her statement that her husband had set afire, she mercifully pleaded that her
husband should not be beaten. It was argued on this basis that she wanted to exonerate
her husband. The court replied:

This is a sentiment too touching for tears & stems from the values of the culture of the
Indian womanhood; a wife when she has been set afire by her husband, true to her
tradition, does not want her husband should to be assaulted brutally. It is this sentiment
which promoted this dying tragic woman to say that even if she was dying, her husband
should not be beaten. We are unable to appreciate how this statement can be converted
into one exculpative of the accused. In a further application of this principle to a case
arising out of “that atrocious species of murder “ , called wife burning, the Apex Court
said: “The three dying declarations corroborated by other circumstances are sufficient
in our view to bring home the offence. The counsel has sought to discredit these
declarations forgetting that they are groaning utterances of a dying woman in the grip
of dreadful agony which cannot be judged by the standard of fullness of particulars
which witnesses may give in other situations. To discredit such dying declarations for
short- falls here or there or even in many places is unrealistic, unnatural &
unconscionable, if basically there is credibility. The terrible in this case has taken place
in the house & in the presence of the husband who has been convicted. We hardly see
any reason for interfering in this conviction. In a case a bride was 80% burnt when she
had given statement to the doctors. But according to doctors she was in a fit condition
to give statement. The court said that from the fact of 80% burns no inference was to be
drawn that she could not have been capable of making the statement. Where the
declaration of the deceased wife was deposed only by her mother, the Court held this to

9
1976 AIR 1994, 1976 SCR 542

11
be not sufficient to convict.

 Statements made to or implicating relatives

The Apex court laid down in the subsequent case of Barati v. State of U.P10, that a
dying declaration made to the relatives of the deceased, when properly proved can also
be trusted. In this case the deceased who was killed by sprinkling acid on him first
made the statement to his brother & son, repeated it at the police station & again at the
hospital charging the accused, the court held that the statement was worthy of credit.
Where the dying statement was recorded by the wife of the deceased, the Supreme
Court did not reject it only on that ground, though it added that such evidence should be
scrutinized with care.

EVIDENTIARY VALUE OF DYING DECLARATION

In K.R. Reddy v. Public Prosecutor, 11 evidentiary value of dying declaration was

observed as under :-

“The dying declaration is undoubtly admissible under section 32 & not being statement
on oath so that its truth could be tested by cross-examination, the court has to apply the
scrutiny & the closest circumspection of the statement before acting upon it. While
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 connect a case as to implicate an
innocent person, yet the court has to be on guard against the statement of the deceased
being a result of either tutoring, prompting or a product of his imagination. The court
must be satisfied that the deceased was in a fit state of mind to make the statement after
the deceased had a clear opportunity to observe & identify his assailants & that he was
making the statement without any influence or rancor. Once the court is satisfied that
the dying declaration is true & voluntary, it can be sufficient to found the conviction
even without further corroboration.”

In Khushal Rao v. State of Bombay,12 Apex Court laid down the following principles
related to dying to dying declaration :

10
1974 AIR 839, 1974 SCR (3) 570
11
1976 AIR 1994, 1976 SCR 542
12
1958 AIR 22, 1958 SCR 552

12
(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated. A true & voluntary declaration needs no corroboration.

(ii) A dying declaration is not a weaker kind of evidence than any other piece of
evidence;

(iii) Each case must be determined on its own facts keeping in view the circumstances
in which the dying declaration was made.

(iv) A dying declaration stands on the same footing as other piece of evidence & has to
be judged in the light of surrounding circumstances & with reference to the principle
governing the weight of evidence.

(v) A dying declaration which has been recorded by a competent Magistrate in the
proper manner, that is to say, in the form of questions and answers, &, as far as
practicable in the words of the maker of the declaration stands on a much higher footing
than a dying declaration which depends upon oral testimony which may suffer from all
the infirmities of human memory & human character.

(vi) In order to test the reliability of a dying declaration the court has to keep in view
the circumstances like the opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was committed in the night; whether the
capacity of man to remember the facts stated had not been impaired at the time he was
making the statement by circumstances beyond his control; that the statement has been
consistent throughout if he had several opportunities of making a dying declaration
apart from the official record of it; & that the statement had been made at the earliest
opportunity & was not the result of tutoring by interested party.”

 EXCEPTIONS OF DYING DECLARATION

The exceptions of ‘Dying declaration’ stipulate that where the statements made by
dying persons are not admissible:

 If the cause of death of the deceased is not in question: If the deceased made
statement before his death anything except the cause of his death, that
declaration is not admissible in evidence.
 If the declarer is not a competent witness: declarer must be competent witness.

13
 A dying declaration of a child is inadmissible. In Amar singh v. State of
Madhya Pradesh, 13 it was held by M.P. High Court that without proof of
mental or physical fitness, the dying declaration was not reliable.
 Inconsistent declaration: Inconsistent dying declaration is no evidentiary value.
 Doubtful features: In Ramilaben v. State of Gujarat14 it was held by the court
that second degree burn injuries, the injured dying 7-8 hours after the incident,
four dying declarations recorded but none carried medical certificate. There
were other doubtful features, evidence not taken into account.
 Uninfluenced declaration: it must be noted that dying declaration should not be
under influence of any one.
 Untrue declaration: it is perfectly permissible to reject a part of dying
declaration if it is found to be untrue & if it can be separated.
 Incomplete declaration: dying declaration must be complete.
 If the statement relates to the death of another person: If the statement made by
the deceased does not relate to his death, but to the death of another person, it is
not relevant.
 Contradictory statements: if a declarant made more than one dying declarations
& all are contradictory, then those all declarations lose their value.
 Unsound person: where the married dying of burns was a person of unsound
mind & the medical certificate vouchsafed her physical fitness for a statement &
not the state of mind at the crucial moment, the court said that the statement
could not be relied upon.
 If dying declaration is not according to prosecution: in the case of State of U.P.
v. Madan Mohan15 the Apex Court held that:

1. It is for the court to see that dying declaration inspires full confidence as the maker
of the dying declaration is not available for cross-examination.

2. Court should satisfy that there was no possibility of tutoring or prompting.

3. Certificate of doctor should mention that victim was in a fit state of mind. Magistrate

13
1996 Cr LJ (MP) 1582,
14
1996 Cri LJ 1582
15
AIR 1989 SC 1519, 1989 CriLJ 1485, 1989 (2) Crimes 467 SC, JT 1989 (2) SC 158, 1989 (1)
SCALE 1087, (1989) 3 SCC 390

14
recording his own satisfaction about the fit mental condition of the declarant was not
acceptable especially if the doctor was available.

4. Dying declaration should be recorded by the executive magistrate & police officer to
record the dying declaration only if condition of the deceased was so precarious that no
other alternative was left.

5. Dying declaration may be in the form of questions & answers & answers being
written in the words of the person making the dying declaration. But court cannot be
too technical.

CONCLUSION

“Dying Declaration” is a legal concept refers to that statement which is made by a

dying person, explaining the circumstances of his death. LORD LUSH, L.J., quoted
that “A dying declaration is admitted in evidence because it is presumed that no person
who is immediately going into the presence of his Maker, will do so with a lie on his
lips.

LORD EYRE, C.B., also held that “The principle on which this species of evidence is
admitted is, that they are declarations made in extremity, when the part is at the point of
oath, & when every hope of this world is gone; when every motive of falsehood is
silenced, & the mind is induced by the most powerful consideration to speak the truth; a
situation so solemn & awful is considered by law as creating an obligation equal to that
which is imposed by a positive oath administered in the court of justice.”
Dying declaration is admissible on the sole ground that it was made in extremis. And in
India, its admissibility is explained in Sec-32(11) of Indian Evidence Act. It is cleared
by the above mentioned statements given by different courts that dying declaration can
be in any form but it must be recorded carefully & duly proved, which the courts make
admissible as the “dying declaration”. .

15
16