INCOMPLETE DYING DECLARATION

INCOMPLETE DYING DECLARATION

Final draft submitted in fulfillment of the course Evidence Law, Semester IV
during the academic year 2017-18

Submitted by-

Kartikay Trivedi – 1532

B.A LL.B

Submitted to-

Dr. P.K.V. Sita Rama Rao

April, 2018

Chanakya National Law University,

Mithapur, Patna, 800001

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ACKNOWLEDGEMENT

We are feeling highly elated to work on under the guidance of my Evidence Law faculty. I
am very grateful to him for the exemplary guidance. I would like to enlighten my readers
regarding this topic and I hope I have tried my best to bring more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this project was not
possible. Apart from all these, I want to give special thanks to the librarian of my university
who made every relevant materials regarding to my topic available to me at the time of my
busy research work and gave me assistance.

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OBJECTIVE OF THE STUDY

The researcher has the following objectives behind the study:

 To study what is dying declaration and what are it’s essentials.

 To study when is a dying declaration admissible and when is it inadmissible.
 To study the evidentiary value of dying declaration in English Law as well as in Indian
Evidence Act.
 To study the admissibility and value of incomplete dying declaration.

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HYPOTHESIS

The researcher while carrying out the research work has adopted the hypothesis that an incomplete
dying declaration is inadmissible. But, if the statement, though incomplete in the sense that the
declarant could not state all that he wanted to state, yet whatever, he state is complete in respect of
a certain fact, the statement would not be excluded on the ground of its being incomplete.

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RESEARCH METHODOLOGY

The research includes different options. They are:

• Exploratory research:

It is usually a small-scale study undertaken to define the exact nature of a problem and to gain a
better understanding of the environment within which the problem has occurred. It is the initial
research, before more conclusive research is under taken.

• Descriptive research:

It is to provide an accurate picture of some aspects of market environment. Descriptive research is

used when the objective is to provide a systematic description that is as factual and accurate as
possible. It provides the number of time something occurs, or frequency, lends itself to satisfied
calculations such as determining average number of occurrences.

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 7

CIRCUMSTANCES IN WHICH DEATH WAS CAUSED .......................................................... 9

PRINCIPLE ............................................................................................................................. 10

ADMISSIBILITY ......................................................................................................................... 12

FORM OF DYING DECLARATION ................................................................................... 12

STRENGTHENING THE VALUE OF DYING DECLARATION ................................... 13

ESSENTIAL CONDITIONS FOR ADMISSIBILITY ........................................................ 13

CIRCUMSTANCES WHEN DYING DECLARATION IS MEANINGLESS ........................... 17

ENGLISH LAW VIS-À-VIS INDIAN LAW............................................................................... 21

IMPORTANT CASE LAWS ........................................................................................................ 23

CONCLUSION AND SUGGESTIONS ....................................................................................... 34

BIBLIOGRAPHY ......................................................................................................................... 36

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INTRODUCTION
A Dying Declaration means the statement of a person who has died explaining the circumstances
of his death. It can be said to be a statement made by a mortally injured person, indicating who has
injured them and/or the circumstances surrounding their injury. The injured is aware that he/she is
about to die and while the declaration is hearsay, it is admissible since it is believed that the dying
person does not have any reason to lie.

Such a statement can be proved when it 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. The statement will be
relevant in every case or proceeding in which the cause of that person’s death comes into question.

Clause (1) of section 32 of the Evidence Act provides for the ‘dying declaration’ which is
incorporated from the English Law principle. Section 32(1) reads as under:

32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc.,
is relevant.- Statements, written or verbal, of 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 expense 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- 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.

Illustration:

(a) 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 she was ravished by B; or

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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 the cause of his or her death, referring respectively to the murder, the
rape, and the actionable wrong under consideration, are relevant facts.

If as a result thereof, the Court is satisfied that the statement made by a person who is now dead is
relevant, the same becomes admissible in terms of Sub-section, (1) of Section 32 of the Evidence
Act.

AS TO BE THE CAUSE OF DEATH:-

Under Section 32(1), the statement of an injured person who subsequently dies, will be relevant
only if it is made by him as to the cause of his death. It must not relate to the cause of death of any
other person’s death. In a case1, the accused was charged with the murder. One of the piece of
evidence against him was the statement of deceased’s sister, who also died subsequently. As a
result of her statement, the victim’s dead body was recovered. The question was whether her
statement was relevant? The Supreme Court held that it was not admissible under section 32(1) as
it did not relate to the cause of her own death but to that of her sister.

Similarly, the declarant’s death must be proved beyond doubt to have been caused by the injuries
received by him in the incident in question. In case it is proved that he died of some other cause,
it would not be admissible under clause (1) of section 32. For example, the prisoner was convicted
on the basis of dying declaration of a person who received two shot wounds during the occurrence.
Although his dying declaration was recorded, but he died 20 days after he had left the hospital.
There was no evidence to show that he died of the injuries received by him at the said incident. On
the question of admissibility of the dying declaration, the Supreme Court2 held that when the dead
person in the present case was not proved to have died as a result of injuries received in the
incident, his statement cannot be said to be a statement as to the cause of his death or as to any of
the circumstances of the transaction which resulted in his death. So, they held his statement to be
inadmissible under section 32.

1
Ratan Gond v. State of Bihar, (1959) SCR 1336.
2
Moti Singh v. State of U.P., (1964) 1 SCR 688.

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CIRCUMSTANCES IN WHICH DEATH WAS CAUSED

The other important condition for the admissibility of a statement as a dying declaration is that it
must relate to the circumstances of the transaction which resulted in his death. This was vividly
explained by the Privy Council in the Case of Pakala Narayana Swami v. The Emperor3.

The facts of the case were that the accused had borrowed Rs. 3000 from the deceased during 1936.
On 20th March, 1937, the deceased received a letter from the accused inviting him to come that
day or next to Behrampur. The deceased left his house on 21st March, 1037 in time to catch the
train for Behrampur. But he did not come back. On 23rd March, 1937, at about noon, his dead body
was found in a steel trunk in a third class compartment at Puri. The dead body was identified by
the widow. The accused was tried and convicted for murder and sentenced to death. During the
trial, the widow of the deceased stated before the Court that on that day her husband showed her a
letter and said that he was going to Behrampur as the appellant’s wife had written to him and told
him to go and receive payment for his dues. This statement was objected by the appellant because
it was not a statement after the transaction or the injury. Their Lordships of the Privy
Coucil held them to be admissible because it related to the circumstances of the transaction which
resulted in his death and so, it was rightly admitted under section 32(1). In this connection, the
observations made by the Lord Atkin are worth noting:

“The phrase ‘circumstance of transaction’, no doubt, conveys some limitations. It is not as broad
as the analogous use n ‘circumstantial evidence’ which includes the evidence of all facts. It is on
the other hand narrower. Circumstances must have some proximate relation to the actual
occurrence though as for instance in a case of prolonged poisoning, they may be related to dates
at a considerable distance from the date of actual dose.”

Further His Lordship said-

“The circumstances must be the circumstances of the transaction in general indicating fear or
suspicion whether of a particular individual or otherwise and not directly related to the occasion
of the death will not be admissible.

3
AIR 1939 PC 47.

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But statements made by the deceased that he was proceeding to the spot where he was in fact killed
or as to the reasons for so proceeding or that he was going to meet a particular person or that he
had been invited by such person to meet him, would each of them, be the circumstances of the
transaction. The statement under this clause may be made before the cause of death has arisen or
before the deceased has reason to anticipate being killed.”

PRINCIPLE
Dying declarations are statements oral or documentary made by the person as to the cause of his
death or as to the circumstances of the transactions resulting in his death. The grounds of admission
of a dying declaration are:

Firstly, necessity, for the victim being generally the only principal eye-witness to the crime, the
exclusion of his statement might defeat the ends of justice; and

Secondly, the Pakala Narayana Swami v. The Emperor which creates a sanction equal to the
obligation of an oath.

The general principle on which this 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 has
gone, when every motive to falsehood is silence and the mind is induced by the most powerful
consideration to speak the truth; a situation so solemn and so lawful is considered by law as
creating an obligation equal to that which is imposed by a positive oath administered in a Court of
Justice4.

Exclusion of his statement would tend to defeat the ends of justice. If the truthfulness of a dying
declaration is beyond doubt, the conviction can be held solely upon it.5

Nemo moriturus praesumitur mentire- It implies that a man who is on death bed would not tell a
lie to falsely implicate innocent person.6 No one at the point of death is presumed to lie because .A
man will not meet his Maker with a lie in his mouth— is the philosophy in law underlying
admittance in evidence of dying declaration. A dying declaration made by person on the verge of
his death has a special sanctity as at that solemn moment, a person is most unlikely to make any

4
R. v. Woodcock, (1789) I Leach 500.
5
State of Assam v. Mafizuddin Ahmed, AIR 1983 SC 274: 1983 Cr LJ 426.
6
Sharda v. State of Rajasthan, AIR 2010 SC 408.

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untrue statement. The shadow of impending death is by itself the guarantee of the truth of the
statement made by the deceased regarding the causes or circumstances leading to his death. Once
the statement of the dying person and the evidence of the witnesses testifying to the same passes
the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of
evidence and if the Court is satisfied that the dying declaration is true and free from any
embellishment such a dying declaration, by itself, can be sufficient for recording conviction even
without looking for any corroboration.

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ADMISSIBILITY
It is not always necessary that a dying declaration should be certified by a doctor before reliance
could be placed on the same. But then in the absence of any such certificate, the Courts should be
satisfied that from the material on record it is safe to place reliance on such uncertified declaration.

Unless the statement of a dead person would fall within the preview of Section 32(1) of the Indian
Evidence Act, there is no other provision under which the same can be admitted in evidence. In
order to make the statement of a dead person admissible (written or oral), the statement must be
as to the cause of her death or as to any of the circumstance of the transactions which resulted in
her death, in cases in which the cause of death comes into question.

FORM OF DYING DECLARATION

There is no format as such of dying declaration neither the declaration need to be of any longish
nature or neatly structured. As a matter of fact, perfect wording and neatly structured dying
declaration bring about an adverse impression and create a suspicion in the mind of the Court since
dying declarations need not be drawn with mathematical precision. The declarant should be able
to recollect the situation resulting in the available state of affairs.

A dying declaration may be in the following forms:

1. Written form;

2. Verbal form;

3. Gestures and Signs form. In the case ”Queen vs Abdulla7”, it was held that if the injured
person is unable to speak, he can make dying declaration by signs and gestures in response
to the question.

4. If a person is not capable of speaking or writing he can make a gesture in the form of yes
or no by nodding and even such type of dying declaration is valid.

5. It is preferred that it should be written in the vernacular which the patient understands and
speaks.

7
ILR (7) 385.

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6. A dying declaration may be in the form of narrations. In case of a dying declaration is

recorded in the form of narrations, nothing is being prompted and everything is coming as
such from the mind of the person making it.8

STRENGTHENING THE VALUE OF DYING DECLARATION

By enacting section 32 the Legislature in its wisdom has placed a dying declaration on par with
evidence on oath for the reason that at the time when a man is in danger of losing himself it is not
likely that he would speak a falsehood and involve an innocent person. There is no absolute rule
of law nor is there any rule of prudence which has ripened into a rule of law that a dying
declaration cannot form the sole basis of a conviction unless it is corroborated by independent
evidence. The circumstances which lend strength and assurance to a dying declaration are as
follows:

1. That it was recorded by a competent Magistrate after taking all proper precautions.

2. That it was taken down in the exact words in which it was spoken.

3. That it was made shortly after the assault when there was no opportunity of its being
coloured by impressions received from others.

4. That deceased had ample opportunity of observation.

5. That the incident happened in a sufficiently lighted place.

6. That the deceased had made more than one statement and all of them were consistent as to
the circumstances of the occurrence and the identity of the attackers.

ESSENTIAL CONDITIONS FOR ADMISSIBILITY

 TO WHOM THE STATEMENT IS TO BE MADE AND ITS FORM:-

A statement of dying declaration 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

8
Y.V. Sriniavasa Rao, The evidentiary value of Dying Declaration available
on http://legalservicesindia.com/article/article/dying-declaration-1137-1.html.

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doctor is considered more reliable, and that recorded by a police officer or close relative
not (require more scrutiny).

No particular form of recording a statement is prescribed. The statement could be written,

oral or even verbal (e.g., gestures). In Queen Empress v. Abdullah9; where the throat of the
deceased girl was cut and she being unable to speak indicated the name of the accused by
the signs of her hand, this was held to be relevant as dying declaration.

 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 persons making the declaration chances to live, his statement is
inadmissible as a dying declaration, but it might be relied under section 157 to corroborate
his testimony when examined. Such a statement can also be used to contradict him under
section 145. Further, it can be used to corroborate the evidence in Court under sections 6
and 8. The fact that the person is dead must be proved by the person proposing to give
evidence of his statement.

The Supreme Court in Ramprasad v. State of Maharashtra10 observed that at the time when
declarant gave the statement he would have been under expectation of death but that is not
sufficient to wiggle it into the cassette of section 32 of Evidence Act, 1872. As long as the
maker of the statement is alive it would remain only in the realm of a statement recorded
during investigation. It was held, that if a person making a dying declaration survives his
statement cannot be used as evidence under section 32 of the Act.

 STATEMENT MUST RELATE TO THE CAUSE OF HIS DEATH OR THE

CIRCUMSTANCES OF THE TRANSACTION WHICH RESULTED IN HIS
DEATH:-

9
(1885) ILR 7 All 385.
10
AIR 1999 SC 1969: 1999 Cr LJ 2889.

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If the statement made by the deceased does not relate to his death, but to the death of
another, it is not relevant.11 For example, where the wife made a statement that her husband
is killed by Z and then she committed the suicide.

The circumstances of transaction resulting in death must bear proximate relation to the
cause of death or actual occurrence. The general expressions indicating fear or suspicion,
whether of a particular individual or otherwise and not directly related to the occasion of
death will not be admissible. But, statements made by the deceased that he was proceeding
to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was
going to meet a particular person, would to each of them be circumstances of the
transaction.

 THE CAUSE OF DEATH MUST BE IN QUESTION:-

The declaration under section 32(1) must relate to the death of the declarant. In Dannu
Singh v. Emperor 12 , 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 dying declaration as to how the dacoity was committed and who had taken part in
it. It was held that declaration was not admissible in evidence against other persons, as it
does not relate to his death, but relates to participation of his associates in the dacoity.

 THE STATEMENT MUST BE COMPLETE AND CONSISTENT:-

If the deceased fails to complete the main sentence (as for instance, the genesis or the
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 question as to what more he wanted
to say, the declaration can be relied upon.13

11
Ratan Gond v. State of Bihar, AIR 1959 SC 18: 1959 Cr LJ 108.
12
25 Cri.L.J. 574.
13
Kusa v. State of Orissa, (1980) 2 SCC 207: AIR 1980 SC 559.

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A dying declaration ought not to be rejected because it does not contain details or suffers
from minor inconsistencies. Merely because it is a brief statement, it is not to be discharged.
Shortness, in fact, guaranteed truth.14

 DECLARANT MUST BE COMPETENT AS A WITNESS:-

It is necessary for the relevancy of a dying declaration that the declarant, if he had lived
on, would have been competent witness. Thus, in a prosecution for the murder of a child,
aged four years, it was proposed to put in evidence, as a dying declaration, what the child
said shortly before her death. The declaration was held to be inadmissible.15

 OTHER POINTS:-

Where the injured person was unconscious, dying declaration should be rejected.16 Where
for some unexplained reasons the person who noted down (scribe) the statement was not
produced, the declaration was not accepted as an evidence.17

Where an injured person lodged the F.I.R. and then died, it was held to be relevant as dying
declaration.18

14
Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505: 1979 SCC (Cri) 519.
15
R. v. Pike, (1829) 3 CLP 598.
16
Kake Singh alias Surendra Singh v. State of Madhya Pradesh,AIR 1982 SC 1021: 1981 SCC (Cri) 645.
17
Govind Narain v. State of Rajasthan, AIR 1993 SC 2457: 1993 Cr LJ 2598.
18
K. Ramachandra Reddy v. Public Prosecutor, AIR 1976 SC 1994: (1976) 3 SCC 618.

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CIRCUMSTANCES WHEN DYING DECLARATION IS MEANINGLESS

Following are the circumstances when a dying declaration held meaningless:

1. When the relatives of the declarant arrange with him as to what he has to say. 19
2. When the maker of a dying declaration is proved to have been unconscious or semi-
conscious at the spot and died a few minutes after the making of the declaration.20
3. Where there is clear discrepancy between the facts mentioned in the dying declaration and
those in the statements of the witness.21
4. When a dying declaration contradicts itself in its various parts.22
5. Where the identity of accused could not be established through the dying declaration.23

ABRUPT ENDING/ INCOMPLETE

When the dying declaration abruptly ends, due to deteriorating condition of the patient then this
cannot affect the evidentiary value of the dying declaration since it is complete in so far as the
appellant’s role is concerned.

However, where the condition of the deceased had become grave and a statement made by him in
the presence of the doctor was taken down by the police but it could not be completed as he fell
into coma from he did not recover and died subsequently, the dying declaration was held 24 to be
inadmissible because upon the face of it was incomplete and no one can tell what the deceased was
about to add.

BEFORE POLICE

Better and more reliable methods of recording a dying declaration of an injured person should be
taken recourse to and the one recorded by the Police Officer may be relied upon if there was no
time or facility available to the prosecution for adopting a better method.

19
Varand v. Emperor, AIR 1944 Sind 137.
20
Bhagwan Dass v. State, AIR 1957 SC 589: 1957 Cr LJ 889.
21
Bapu Rao v. State of Maharashtra, AIR 1968 SC 855.
22
Jaya Ram v. State of Tamil Nadu, AIR 1976 SC 791.
23
Shabir Mohmad Syed v. State of Maharashtra, (1997) 11 SCC 499: AIR 1997 SC 3808.
24
Cyril Waugh v. The King, 1950 ALJ 412 (P.C.).

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The practice of Investigating Officer himself recording the dying declaration during the course of
investigation ought not to be encouraged and it would be better to have dying declaration recorded
by magistrate. But no hard and fast rule can be laid down in this regard. It all depends upon the
facts and circumstances of the case.

Dying declaration recorded by a police officer if found truthful may base conviction.25

BEFORE MAGISTRATE

There is no requirement of law that a dying declaration must necessarily be made to a Magistrate
and when it is recorded by a magistrate, there is no statutory form for such recording. The
evidentiary value depends on facts and circumstances of each particular case. The person who
records a dying declaration must be satisfied that the deceased was in a fit state of mind. A
certification of doctor is essentially a rule of caution and, therefore, the voluntary and truthful
nature of the declaration can be established otherwise. This is a well settled rule now, by this
Constitution Bench judgment of the Supreme Court.

Section 32 of the Indian Evidence Act nowhere states that the dying declaration must be recorded
in the presence of a Magistrate or in other words no statement which has not been recorded before
the Magistrate cannot be treated to be a dying declaration.

CORROBORATION

It is well settled that dying declarations shall have to be dealt with due care and upon proper
circumspection. Though corroboration thereof not essential as such, but its introduction is
otherwise expedient to strengthen the evidential value of the declaration. Independent witnesses
may not be available but there should be proper care and caution in the matter of acceptance of the
dying declaration as a trustworthy piece of evidence.

It is rarely found in a criminal case that the description of the incident and injury described in the
dying declaration gets full corroboration from the medical evidence contained in the injury report
and the post-mortem report. In such cases, still the dying declaration can be relied upon.

25
Urgeu Sherpa v. State of Sikkim, (1985) 1 SCC 278.

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Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its
conviction without any further corroboration. It cannot be laid down as an absolute rule of law that
the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule
requiring corroboration is merely a rule of prudence.

NEED FOR CORROBORATION:-

Where the dying declaration is believed to be true, consistent and coherent, it can be relied upon
for conviction, even if there was no corroboration.26

In Lallubhai Devchand Shah v. State of Gujarat27, a married woman was burnt to death by her in-
laws, her dying declaration was accepted and conviction was based solely on the basis of the
declaration. It was held that if the truthfulness of a dying declaration is accepted, it can always
form the basis of conviction of the accused. The Court, in the present case, thus convicted the
appellants on the basis of the dying declaration.

In the recent decision, the Supreme Court observed that, dying declaration though an exception to
the hearsay rule, but like any other evidence, it has to pass the test of credibility. If found reliable,
it can be the basis of conviction. It can be acted upon in reference to one accused though not in
reference to others.28 However, it is well-settled that if the truthfulness of dying declaration cannot
be doubted, the same alone can form the basis of conviction without any corroboration.29

DECLARANT SURVIVES

It is trite law that when the maker of a purported dying declaration survives, the same is not
statement u/s 32 of the Indian Evidence Act but is a statement in terms of Section 164 of the Cr.P.C.
It can be used under section 157 of the evidence Act for the purpose of corroboration and under
Section 155 of the evidence Act for the purpose of contradiction.

26
Khushal Rao v. State of Bombay, AIR 1958 SC 22: 1958 Cr LJ 106; Ram Nath Madhoprasad v. State of Madhya
Pradesh, AIR 1953 SC 420: 1953 Cr LJ 1772.
27
AIR 1972 SC 1776: 1972 Cr LJ 828.
28
Narain Singh v. State of Haryana, AIR 2004 SC 1616: 2004 Cr LJ 1409.
29
Ravi v. State of Tamil Nadu, (2004) 10 SCC 776.

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It was held in Tahsildar Singh v. State30 that the Court will be prevented from taking notice of a
dying declaration of a person who has survived and has not been examined in the case.

30
AIR 1958 All 255.

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ENGLISH LAW VIS-À-VIS INDIAN LAW

 Under English Law, a dying declaration is admissible only on a criminal charge of
homicide or manslaughter, whereas in India it is admissible in all proceedings, civil or
criminal.

 Under the English Law, credence and the relevancy of a dying Declaration is only where a
person making such a statement is in a hopeless condition and is expecting imminent death.
So under the English Law, for its admissibility, the declarant should have been in actual
danger of death at the time when they are made, and that he should have had a full
apprehension of this danger and the death should have ensued. The admissibility rests on
the principle that a sense of impending death produces in a man’s mind the same feeling
as that of a conscientious and a virtuous man under oath. If evidence in a case reveals that
the declarant has reached this state while making a declaration then within the sphere of
Indian Law, while testing the credibility of such dying declaration, weightage can be given,
of course, depending on the other relevant facts and circumstances of the case. However,
under the Indian Law, the dying declaration is relevant whether the person who makes it
was or was not under expectation of death at the time of declaration.

 Under the English Law, the declaration must have been competent as a witness, thus,
imbecility of tender age will exclude the declaration. It is, however, doubtful whether this
rule is applicable in India. The credit of such a declarant may be impeached in the same
way as that of witness actually examined in a court.

TWO DYING DECLARATIONS

When there are two dying declarations and there was inconsistency between them and there was
no other evidence evidence to prove the prosecution case, it was not safe to act solely on the said
declarations to convict the accused persons.

Where two dying declarations were giving contrary versions, one dying declaration duly recorded
by the doctor in presence of two other doctors stating that she was burnt by her mother-in-law and

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husband for failure to bring dowry. Second declaration not proved by competent witness, cannot
be relied upon, and accused convicted on the dying declaration recorded by doctor.31

Where the bride recorded two declarations, one to a police officer and other to a Magistrate, they
being similar in material factors, evidence accepted though minor discrepancies were there.32

In Kamla v. State of Punjab33, four dying declarations were made by the deceased. One of them
indicated the incident as an accident. The accused (mother-in-law of the deceased) had been
convicted on the basis of another declaration implicating her. The court also found glaring
inconsistencies as far as naming the culprit was concerned. On facts it was held that the conviction
cannot be based upon such declarations.

Where there are more than one declaration, the one first in point of time should be
preferred; Mohanlal Gangaram Gehani v. State of Maharashtra.34

31
Harbans Lal v. State of Haryana, AIR 1993 SC 819: 1993 Cr LJ 75.
32
Raoji v. State of Maharashtra, (1994) SC LJ 1 (SC).
33
AIR 1993 SC 374: 1993 Cr LJ 68.
34
AIR 1982 SC 839: 1982 Cr LJ 630.

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IMPORTANT CASE LAWS

PAKALA NARAYAN SWAMI CASE

In Pakala Narayan Swami v. Emperor35, which is a leading and landmark case on the subject that
we are dealing. In this case the Privy Council observed thus:

“The circumstances must have some proximate relation to the actual circumstances to prove a
dying declaration.”

Moreover, it was noted by the Lord Atkin that “the circumstances must be the circumstances of
the transaction in general indicating fear or suspicion whether of a particular individual or
otherwise and not directly related to the occasion of the death will not be admissible.

But statements made by the deceased that he was proceeding to the spot where he was in fact killed
or as to the reasons for so proceeding or that he was going to meet a particular person or that he
had been invited by such person to meet him, would each of them, be the circumstances of the
transaction. The statement under this clause may be made before the cause of death has arisen or
before the deceased has reason to anticipate being killed.”

KHUSHAL RAO CASE

In Khushal Rao v. State of Bombay36, the deceased made four separate and identical declarations
before the doctor, police inspector, Magistrate, and to other person, stating that he has been
assaulted by Kaushal and one other person. The question was whether the accused could be
convicted only on the basis of this declaration or the declaration needed corroboration. There are
divergent views of different High Courts in this regard. According to Bombay High Court, dying
declaration is a weaker type of evidence and require corroboration. According to Calcutta High
Court, it is not permissible to accept a declaration in one part and reject the other part. According
to Madras High Court, a declaration can be relied without corroboration, if the court is convinced
of its truth, i.e., there is no suspicion of its credibility.

The Supreme Court, agreeing with Madras High Court, laid down the following principles:

35
AIR 1939 PC 47.
36
AIR 1958 SC 22: 1958 Cr LJ 106.

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1. There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated.
2. Each case must be determined on its own facts keeping in view the circumstance in which
the dying declaration was made.
3. A dying declaration is not a weaker kind of evidence than any other piece of evidence. It
stands on the same footing as any other piece of evidence.
4. A dying declaration cannot be equated with a confession or evidence of approver, as it may
not come from a tainted source. If it is made by the person whose antecedents are as
doubtful as in the other cases that may be a ground for looking upon it with suspicion.
5. Necessity of corroboration arises not from any inherent weakness of a dying declaration as
a piece of evidence, but from the fact the Court in a particular case came to the conclusion
that a particular declaration is not free from infirmities.
6. To test the reliability of a dying declaration, the Court has to keep in view the circumstances
like the opportunity of the dying man’s observation, e.g., whether there was sufficient light
if the crime was committed at night; whether the capacity of the declarant was not impaired
at the time of the statement; that the statement has been consistent throughout if he had
several opportunities for making a dying declaration; and that the statement was at the
earliest opportunity and was not the result of tutoring by the interested parties.
7. A dying declaration recorded by a competent Magistrate in a proper manner in the form of
questions and answers, and in the words of the maker as far as practicable stands on much
higher footing than a dying declaration which depends upon oral testimony which may
suffer from all the infirmities of human memory and character.
8. If the Court, after taking everything into consideration, is convinced that the statement is
true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense.
The Court must, of course, be fully convinced of the truth of the statement, and naturally,
it could not be fully convinced if there was anything in the surrounding circumstances to
raise suspicion as to its credibility. Thus, a true and voluntary declaration needs no
corroboration.

The statement of the deceased in this case satisfied all these conditions (the declaration was true
in all respects e.g., consistent in so far as naming of the two accused) and therefore the appellants
should be convicted.

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KUSA CASE

In Kusa v. State of Orissa37, the deceased made dying declaration before a doctor. It was clear in
all respects. However, the appellants challenged it on the following grounds: (1) it did not contain
all those names which were include in F.I.R. (2) the account of the eye-witnesses also different (3)
the deceased was in a state of shock, thus his statement could not be relied (4) the declaration was
incomplete as the deceased did not answer the last question put to him (to wind up the statement
the doctor asked the injured if he had anything else to say, he lapsed into unconsciousness without
answering the question).

The Court observed that only certain names were included in F.I.R. but were not mentioned in
dying declaration does not detract from the value of dying declaration and would not by itself
prove the falsity of the declaration. In Surat Singh’s case, the first declaration did not mention the
name of the eye-witness, but the second declaration (which was more detailed) contained it. The
Court observed that first declaration was a short version of the entire incident and contained true
facts when the deceased was under great pain.

The Apex Court further observed: The statement of doctor was that deceased became semi-
conscious when the last question was put to him. Logically it means that prior to that he was fully
conscious. The last question was in the nature of a mere formality “What more you want to say”,
and all the necessary questions were asked before that formal question. The statement was not
incomplete.

KISHANLAL CASE

In Kishanlal v. State of Rajasthan 38 , Smt. Sulochana, was sleeping on the intervening night
between 11th and 12th September, 1976 with the mother of the appellant on a separate cot when
she was burnt by sprinkling kerosene oil on her chest. She was shifted to the hospital at Pilibanga
at 2.00 a.m. Doctor of the hospital sent information to SHO Police Station Lekhuwali on which
investigation started. At 4.30 a.m. police recorded the statement of the deceased. The statement
recorded by the police was not brought on the records by the prosecution.

37
(1980) 2 SCC 207: AIR 1980 SC 559.
38
AIR 1999 SC 3062: 1999 Cr LJ 4070.

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On the 15th of November, 1976, all of sudden the condition of Smt. Sulochana deteriorated and
she died in the evening. On basis of the above complaint dated 11th November, 1976, a case was
registered against the accused and investigation was started. The police after investigation could
not find any sustainable evidence against the appellant and other family member mentioned in the
complaint hence submitted final report.

Dealing with the oral dying declaration, the Trial Court acquitted both the appellant and his mother.
The High Court convicted both the appellant and his mother. The case went to the Supreme Court.

The Supreme Court held that, in the present case, as aforesaid the dying declaration was after two
months of the alleged incident. It was not at a time when the deceased was expecting imminent
death. Neither the post-mortem nor deposition of doctor carry any definite inference that the cause
of death was on account of burning. There is a conflict between two dying declarations, in one
there is inter se inconsistency as revealed in the depositions of witnesses, in the other no naming
of any accused, when made before a Magistrate. On such an evidence Trial Court rightly declined
to base a conviction. The High Court committed manifest error in placing reliance on it.

The Supreme Court further held that, so far as the extra judicial confession is concerned it is said
that the same was made by the accused at panchayat on two occasions. First panchayat is alleged
to have taken place at Chak 22 P.S. and the other in the school at Raisinghnagar. The father’s
testimony in cross-examination, when confronted with his statement wherein he did not name any
of the accused persons, he made the usual answer that the name might not have been recorded by
mistake. But in the alleged second panchayat, the names of large number of persons were referred
to as to have confessed their guilt, including the appellant. It includes even the names of those who
are not even accused. It is alleged that they sought for the pardon of the local leaders for this guilt.
We find even in this alleged confession, there is no mention that the accused had burnt the deceased
Smt. Sulochana. The alleged confession by large number of persons is more in a general and vague
term. Before a confession is relied on, it must be clear and unequivocal, whether it is in a judicial
or in an extra judicial confession.

On the fact discussed above there is no hesitation to hold that reliance should not have been placed
on the so called confession, the Trial Court rightly rejected it but unfortunately the High Court
very casually accepted it which cannot be sustained and accordingly, the present appeal is allowed.

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SHARIFF CASE

In State of Karnataka v. Shariff39, the accused respondent was charged under section 302, IPC for
having committed murder of his wife Muneera Begum by pouring kerosene on her body and setting
her on fire in his house at about 4.00 a.m. on July 24, 1986.

The learned Sessions Judge believed the case of the prosecution and convicted the accused
respondent under section 302, IPC and sentenced him to imprisonment for life. The appeal
preferred by the accused was allowed by the High Court and his conviction and sentence was set
aside.

The Supreme Court held that, the Court rules that it cannot be laid down as an absolute rule of law
that a dying declaration cannot form that sole basis of conviction unless it is corroborated. Each
case must be determined on its own facts keeping in view the circumstances in which the dying
declaration was made; it cannot be laid down as a general proposition that dying declaration stands
on the same footing as another piece of evidence and has to be judged in the light of surrounding
circumstance and with reference to the principle governing the weighing of evidence. It has been
further held that in order to pass the test of reliability a dying declaration has to be subjected to a
very close scrutiny keeping in view the fact that the statement has been made in the absence of the
accused who has not opportunity of testimony the veracity of the statement by cross-examination.
But once the Court has come to the conclusion that the dying declaration was the truthful version
as to the circumstance of the death and the assailants of the victim, there is no question of further
corroboration (Vide Khushal Rao v. State of Bombay40).

The Court further held that, “there is not even a rule of prudence which has hardened into a rule of
law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of
the Court has to be to find out whether the dying declaration is true. If it is, no question of
corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear
of convincing, then the Court may, for its assurance, look for corroboration to the dying
declaration”.

39
AIR 2003 SC 1074: 2003 Cr LJ 1254.
40
AIR 1958 SC 22: 1958 Cr LJ 106.

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In the present case, the reason given by the High Court is that the dying declaration was not in
question-answer form. Very often the deceased is merely asked as to how the incident took place
and the statement is recorded in a narrative form. In fact such a statement is more natural and gives
the version of the incident as it has been perceived by the victim. The question whether a dying
declaration which has not been recorded in question-answer form can be accepted in evidence or
not has been considered by this Court on several occasions.

Thus, the Supreme Court allowed the appeal and set aside the impugned judgment of the High
Court and restored that of the Session Court.

RATTAN SINGH CASE

In Rattan Singh v. State of Himachal Pradesh41, A young house wife enceinte by four months, was
shot at with a double barrel gun by an assailant who gate crashed into her courtyard during the odd
hours of the night when she was sleeping. The Sessions Court acquitted him but a Division Bench
of the High Court of Himachal Pradesh on appeal filed by the State convicted him under section
302, IPC and sentenced him to imprisonment for life.

He then filed this appeal under section 2 of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 and also under section 379 of the Cr. P.C.

Section 32(1) of the Evidence Act, renders a statement relevant which was made by a person who
is dead in cases in which cause of his death comes into question, but its admissibility depends upon
one of the two conditions; either such statement should relate to the cause of his death or it should
relate to any of the circumstances of transaction which resulted in his death.

Three aspects have to be considered pertaining to the above intent of evidence. First is whether the
said statement of the deceased would fall within section 32(1) of the Evidence Act, so as to become
admissible in evidence. Second is whether what the witnesses have testified in court regarding the
utterance of the deceased can be believed to be true. If the above two aspects are found in the
affirmative, the third aspect to be considered is whether the deceased would correctly identify the
assailant?

41
AIR 1997 SC 768: 1997 Cr LJ 833.

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When Kanta Devi (deceased) made the statement that appellant was standing with a gun she might
or might not have been under the expectation of death, but that does not matter. The fact spoken
by the deceased has subsequently turned out to be a circumstances which intimately related to the
transaction which resulted in her death. The collection of the words in section 32(1) “circumstances
of the transaction which resulted in his death” is apparently of wider amplitude than saying
“circumstances which caused his death” there need not be direct necessary nexus between
“circumstances” and death. It is enough if the words spoken by the deceased have reference to any
circumstances, which has connection with any of the transaction which ended up in the death of
the deceased. Such statement would also fall within the purview of section 32(1) of the Evidence
Act. In other words, it is not necessary that such circumstances can also become admissible under
the sub-section, provided it has nexus with the transaction which resulted in the death.

In the present case, the act of assailant intruding into the courtyard during the night, victim’s
invention of the assailant here the pronouncement that appellant was standing with a gun and his
firing the gun at her, all circumstances so intermingled with each other by proximity of time and
space that the statement of the deceased became part of the same transaction. Hence, it is
admissible under section 6 of the Evidence Act.

In either case, whether it is admissible under section 32(1) or under section 6 of the Evidence Act,
it is substantive evidence, which can be acted upon with or without corroboration in finding guilt
of the accused.

Thus, the Supreme Court come to the conclusion that the deceased had correctly identified that
appellant who was standing with a gun. Therefore, the Supreme Court confirmed the conviction
and sentence passed on the appellant and dismissed the appeals.

P.V. RADHAKRISHNA CASE

In P.V. Radhakrishna v. State of Karnataka42, Accused-appellant allegedly committed suicide was

found guilty of offence punishable under section 302, Indian Penal Code, 1860 (‘IPC’); and
sentenced to undergo imprisonment for life and a fine of Rs. 1,000 with default stipulation of one

42
AIR 2003 SC 2859: 2003 Cr LJ 3717.

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month imprisonment by Sessions Judge, Bangalore. The appeal before the High Court of
Karnataka having yielded no success this appeal has been filed.

The Supreme Court observed that:

“This is a case where the basis of conviction of the accused is the dying declaration. The situation
in which a person is on death bed is so solemn and serene when he is dying that the grave position
in which he is placed, is the reason in law to accept veracity of his statement, it is for this reason
the requirements of oath and cross-examination are dispensed with. Besides, should the dying
declaration be excluded it will result in miscarriage of justice because the victim being generally
the only eye-witness in a serious crime, the exclusion of the statement would leave the Court
without a scrap of evidence. Though a dying declaration is entitled to great weight, it is worthwhile
to note that the accused has no power of cross-examination. Such a power is essential for eliciting
the truth as an obligation of oath could be. This is the reason the Court also insists that the dying
declaration should be of such a nature as to inspire full confidence of the Court in its correctness.
The Court has to be on guard that the statement of deceased was not as a result of either tutoring,
or prompting or a product of imagination. The Court must be further satisfied that the deceased
was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the
Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its
conviction without any further corroboration. It cannot be laid down as an absolute rule of law that
the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule
requiring corroboration is merely a rule of prudence.”

The Court further held that, the residuary question whether the percentage of burns suffered is
determinative factor to affect the credibility of the dying declaration and the improbability of its
recording. There is no hard and fast rule of universal application in this regard. Much would depend
upon the nature of the burns, part of the body affected by the burns, impact of the burns on the
faculties to think and convey the idea or facts coming to mind and other relevant factors.
Percentage of burns alone would not determine the probability or otherwise of making dying
declaration.

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Thus, it was held that the trial court and the High Court were justified in placing reliance on
the dying declaration for the purpose of convicting the accused-appellant. Hence, the appeal was
dismissed.

PATEL HIRALAL CASE

In Patel Hiralal Joitaram v. State of Gujarat 43 , a business of Patan (Gujarat) was arraigned for
scorching a young hapless woman (mother of two infant children) to death. The felony was
perpetrated in broad daylight on a public road. The man against whom the accusation was made
had no relationship with the victim, maritally or otherwise. The trial court exonerated him, but a
Division Bench of the High Court of Gujarat found him to be the killer of that lady and convicted
him and sentenced him to imprisonment for life. Hence this appeal by him was as of right.

The Supreme Court held that, section 32(1) of the Evidence Act, relates to the statement made by
a person before his death. Two categories of statements are made admissible in evidence and
further made them as substantive evidence. They are: (1) his statement as to the cause of his death;
(2) his statement as to any of the circumstances of the transaction which resulted in his death. The
second category can envelop a far wider amplitude than the first category. The words “statement
as to any of the circumstances” are by themselves capable of expanding the width and contours of
the scope of admissibility. When the word “circumstances” is linked to “transaction which resulted
in his death” the sub-section casts the net in a very wide dimension. Anything which has a nexus
with his death, proximate or distant, direct or indirect, can also fall within the purview of the sub-
section. As the possibility of getting the maker of the statements in flesh and blood has been closed
once and for all the endeavour should be how to include the statement of a dead person within the
sweep of the sub-section and not how to exclude it therefrom. Admissibility is the first step and
once it is admitted the Court has to consider how far it is reliable.

Once that test of reliability is found positive the Court has to consider the utility of that statement
in the particular case.

In the instant case, the appellant did not even make an effort to bring the case within any of the
four exceptions enumerated in section 300. Hence, the only question to be answered is whether he

43
(2002) 1 SCC 22: AIR 2001 SC 2944.

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did the act with the intention of causing such bodily injury as he knew “to be likely to cause death
of the deceased”. It is inconceivable that the appellant would not have known that setting a human
being ablaze after soaking her clothes with inflammable liquid would cause her death as the type
of burns resulting therefrom would at least be “likely” to cause her death (if not, they are sufficient
in the ordinary course of nature to cause her death. The fact that she died only after a fortnight of
sustaining those burn injuries cannot evacuate the act out of the contours of the secondly clause of
section 300, IPC. There was a little abatement of the ferocity of the flames which engulfed her as
she, in the instinctive human thirst of getting extricated from the gobbling tentacles of the fire,
succeeded in tracing out a water flow. Such a reflex action performed by her had mitigated the
conflagration of the flames but did not save her from the fatality of the calamity. Hence, the interval
of fourteen days between the attack and her death is not a cause for mitigation of the offence
perpetuated by the offender. We are, therefore, not impressed by the alternative argument
advanced by the learned Senior Counsel for the appellant. In the result, the Supreme Court dismiss
this appeal.

SMT. LAXMI CASE

In Smt. Laxmi v. Om Prakash and others 44

, Their Lordship Hon’ble Mr.Justice R.C.
Lahoti summed up the question of the admissibility and the probative value of a dying declaration
in the following words:

“One of the important tests of the reliability of the dying declaration is a finding arrived at by the
Court as to satisfaction that the deceased was in a fit state of mind and capable of making a
statement at the point of time when the dying declaration purports to have been made and/or
recorded. The statement may be brief or longish. It is not the length of the statement but the fit
state of mind of the victim to narrate the facts of occurrence, which has relevance. If the Court
finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court
entertains grave doubts whether the deceased was in a fit physical and mental state to make the
statement the Court may in the absence of corroborative evidence lending assurance to the contents
of the declaration refuse to act on it.”

44
AIR 2001 SC 2383

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LAXMAN CASE

In Laxman v. State of Maharashtra 45 , in this criminal appeal, the conviction of the accused-
appellant is based upon the dying declaration of the deceased which was recorded by the Judicial
Magistrate. The learned Sessions Judge as well as the High Court held the dying declaration made
by the deceased to be truthful, voluntary and trustworthy. The Magistrate in his evidence had stated
that he had contacted the patient through the Medical Officer on duty and after putting some
questions to the patient to find out whether she was able to make the statement; whether she was
set on fire; whether she was conscious and able to make the statement and on being satisfied he
recorded the statement of the deceased. There was a certificate of the doctor which indicates that
the patient was conscious. The High Court on consideration of the evidence of the Magistrate as
well as on the certificate of the doctor on the dying declaration recorded by the Magistrate together
with other circumstances on record came to the conclusion that the deceased Chandrakala was
physically and mentally fit and as such the dying declaration can be relied upon.

The Supreme Court held that, there is no requirement of law that a dying declaration must
necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is
no specified statutory form for such recording. Consequently, what evidentiary value or weight
has to be attached to such statement necessarily depends on the facts and circumstances of each
particular case. What is essentially required is that the person who records a dying declaration must
be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the
Magistrate that the declarant was fit to make the statement even without examination by the doctor
the declaration can be acted upon, provided the Court ultimately holds the same to be voluntary
and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary
and truthful nature of the declaration can be established otherwise.

45
AIR 2002 SC 2973: 2002 Cr LJ 4095.

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CONCLUSION AND SUGGESTIONS

A statement, written or oral, made by a person who is dead as to the cause of his death or as to any
of the circumstances of the transaction which resulted in his death, in case in which the cause of
that person’s death comes into question, becomes admissible under section 32 of the Evidence Act.
Such statement made by the deceased is commonly termed as dying declaration. There is no
requirement of law that such a statement must necessarily be made to a Magistrate. What
evidentiary value or weight has to be attached to such statement must necessarily depend on the
facts and circumstances of each particular case. In a proper case, it may be permissible to convict
a person only on the basis of a dying declaration in the light of the facts and circumstances of the
case.

Where 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 a full story,
but fails to answer the last formal question as to what more he wanted to say, the declaration can
be relied upon.

An incomplete dying declaration is inadmissible. But, if the statement, though incomplete in the
sense that the declarant could not state all that he wanted to state, yet whatever, he state is complete
in respect of a certain fact, the statement would not be excluded on the ground of its being
incomplete.

In the case of Abdul Sattar Versus State of Mysore, AIR 1956 SC 168, the deceased stated “I was
going home, when I came near the house of Abdul Majid, Sattar shot me from the bush. He ran
away I saw”. The dying man was in no condition to answer any further. Their Lordship held,
“under the circumstances though incomplete was complete in so far as the accused Sattar having
shot the deceased was concerned and could certainly be relied upon.

Keeping in mind the above mentioned opinions of various courts it is suggested that whenever
dying declaration is to be recorded it should be recorded very carefully keeping in view the sanctity
which the courts attach to this piece of evidence. It retains its full value if it can justify that victim
could identify the assailant, version narrated by victim is intrinsically sound and accords with
probabilities and any material evidence is not proved wrong by any other reliable evidence. It is
perfectly permissible to reject a part of dying declaration if it is found to be untrue and if it can be

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separated. Conviction can be based on it without corroboration if it is true and voluntary. Dying
declaration becomes unreliable if it is not as per prosecution version

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BIBLIOGRAPHY

PRIMARY SOURCE

 BOOKS
 Batuk Lal, The Law of Evidence, Allahabad: Central Law Agency, 2010, 19th
edition.
 J. M. Monir, Textbook on the Law of Evidence, New Delhi: Universal Law
Publishing Co., 2010, 8th edition.
 Avtar Singh, Principles of The Law of Evidence, Allahabad: Central Law
Publications, 2011, 19th edition.
 Rameshwar Dayal, Commentaries on Indian Evidence Act, Allahabad: Allahabad
Law Agency, 1964.
 K. Sinha Ray, The Indian Evidence Act, 1872, Vol. I, Allahabad: Premier
Publishing Co., 2006.
 L. Venkatarama Aiyar (Ed.), Field’s Law of Evidence (In India and Pakistan), Vol.
III, Allahabad: R.S. Law Publishers,1966, 9th edition.

SECONDARY SOURCE

 WEBSITES
 http://www.lawyersclubindia.com
 http://www.preservearticles.com
 http://legalservicesindia.com
 http://www.manupatrafast.in
 http://www.findlaw.com.au
 http://www.legalblog.in
 http://legalperspectives.blogspot.in
 http://www.indiankanoon.org
 http://legalservicesindia.com

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