Dying Declaration – Dying Person Never Lies

Introduction

A statement by an individual who is conscious and knows that death is imminent concerning what he or she believes to be the cause or circumstances of death which will be introduced into evidence during an attempt in certain cases. A dying declaration is taken into account credible and trustworthy evidence based upon the overall belief that the majority of people that know that they’re close to dying don’t lie. As a result, it’s an exception to the rule of evidence, which prohibits the utilization of a press release made by someone aside from the one that repeats it while testifying during an attempt, due to its inherent untrustworthiness. If the one that made the dying declaration had the slightest hope of recovery, regardless of how unreasonable, the statement isn’t admissible into evidence. A person who makes a dying declaration must, however, be competent at the time he or she makes a press release, otherwise, it’s inadmissible.

Dying Declaration

A dying declaration is that the statement made by an individual as to the cause of his death or as to the circumstances of the transaction resulting in his death.

In Section 32(1) of the Evidence Act, the only statement which is given just at the time before the death is dying declaration. Also, the statement which is given before and it elaborates the cause of death is also a dying declaration. A person who is in his concise and is aware that death is about to happen can make a statement about the cause of his/her death which will be admissible in the court. The phase dying declaration explains the meaning itself, which means it is a written or verbal statement of relevant facts made by the person who is about to die or is dead. It is the statement of a person who knew the reason of his death or the situation of his death. It is said that “a man will not meet his maker with lying on his mouth (nemo mariturus presumuntur mentri)”. In our Indian Law, it is an implied fact that is presumed that a ‘dying man can never lie’ or ‘truth sits upon the lips of a dying man’.[1]

Nemo Mariturus Presumuntur Mentri

This legal maxim is also referred to as be a dying declaration. As per this Latin maxim, a man will not be able to meet his creator with a lie in his mouth. It has a philosophical meaning in law emphasizing on admittance in evidence of dying declaration. A dying declaration given by an individual on the verge of his demise features a certain sanctity, because, at the sacred moment, an individual is most reluctant to form some incorrect claims. The aura of imminent mortality is by itself an assurance of the validity of the argument rendered by the deceased regarding the explanations or conditions contributing to his demise. If considered to be true, a dying declaration will form the inspiration of conviction. A Court of Evidence isn’t disqualified for seeking guilt from ruling upon an uncorroborated dying argument. As a bit of proof, a dying statement sits on an equivalent basis as every other piece of evidence.

Also Read: Indian Evidence Act and The Doctrine of Res Gestae

Essentials of Admissibility of Dying Declaration

Gestures & signs form

Gestures and signs can form dying declaration even when the victim doesn’t speak a word. The Apex court stated that the evidentiary value of the gestures and signs will depend upon certain factors like who recorded the statement, what are the gestures, what were the questions put before, where the questions asked were simple or not etc. Gestures are often difficult to interpret but this doesn’t mean that the accuse can roam freely after hurting someone. If the victim isn’t ready to speak, gestures or signs are often taken as evidence.

In Nirbhaya case 2013, a bench of Justices Dipak Misra, R Banumathi and Ashok Bhushan said a dying declaration should not necessarily be made by words or in writing and it could be through gestures. Not just words but even gestures can be made admissible in the court now.

Also Read: First Information Report (F.I.R) under CrPC

Question answer form

A dying declaration should be in question and answer format. If the dying declaration isn’t in the question-answer form it had been held that it can’t be discarded for this reason alone. The Statement is often recorded during a narrative way also. it’s not mandatory to record it in question-answer form. But it’s always best to record it in question-answer form as which will make the evidentiary value of the dying declaration more.

Fitness Of the victim should be examined

While taking record of the statement of the victim, it is significant to examine the health of the victim. It can have possibilities that an individual is weaving the stories in the presence of intoxicate state given. Judicial Magistrate should reasonably satisfy himself that the victim person is in a fit condition to give out a statement. A certification should be obtained by the judicial magistrate from the expert doctors which examine the victim.

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This certificate can be proof in the court that the statement was given by a victim at that time he was in fit condition and it is verified. If the circumstances do not allow the attendance of the medical officer, then the judicial magistrate can himself record statement without the medical certificate but judicial magistrate should provide the reasonable point why he considered that it is indivisible for a doctor’s attendance.

Who should record the dying declaration

If the dying declaration is taken in a note by the magistrate, then it will hold more evidentiary value in the court than any other dying declaration. Doctors and a police officer are also empowered to record the dying declaration if the magistrate is absent. But at sometimes the situation may arise where the dying declaration is recorded by the magistrate can be questioned. For example, If the magistrate records it even when the doctor does not give approval to the victim medically fitness. In that situation, the evidentiary value of the dying declaration can be in questioned.

The court always observes certain things to take decisions on the value of the statements. The court always tends to seek if the victim was mentally fit while giving the statement. If the victim is not mentally fit at the time of making a statement then that statement won’t hold any value. Confusion can appear while recording dying declaration as anything can impact its evidentiary value. It should be taken in care with precaution and keeping in minds the following points:

  • The victim should be mentally fit and fine to the given statement.
  • A medical certificate should be given by the expert doctor regarding their health.
  • Doctors and the Police officer can record the statement but it will optimistic if a magistrate records it.

In 2013, Delhi gang-rape three dying declarations of Nirbhaya were recorded.[2]The first was taken note by the doctor when she was admitted to the hospital, the second was recorded by SDM during which she put on exact details of the crime and the third one was taken by a metropolitan judicial magistrate and was mostly by gestures.

In this case, all three dying declarations were to be recorded. But the one recorded in the presence or by the magistrate was significant. And the court accepted the dying declaration recorded by magistrate even when it was in gestures and nods.

In Kushal Rao v State of Bombay[3], The apex Court of India accordingly states that the court must be confirmed that the deceased was mentally sane to make the statement. And the victim had the chance to critically analyze and identify the wrongdoer or accused. The victim should not be making the statement under any pressure, force or influence. Also, the Supreme Court of India held that once the court is satisfied that the dying declaration is true, the conviction can be upheld and there is no need for further corroboration.

If the dying declaration is recorded by the medical officer or police officer, it should be attested by one or more person that is present there.

Language of Statement

Utmost, the statement should be recorded in the any of language of the declarant or the court language. The court cannot discharge the dying declaration on the grounds of the language. It can be recorded in any of the languages. Even if the deceased made the statement in Urdu, Hindi, Punjabi languages, it was upholding that statement could not be discharged on the ground of language alone or on the ground that it was recorded in Urdu. Where the statement was in Urdu and the magistrate recorded it in English but the precaution was taken in elaborate every statement to the deceased by another person, it was upheld that the statement was the valid dying declaration.

Also Read: Human Rights Wider Concept and Humanitarian law is a Narrow Concept in International Aspect

Conclusion

A dying declaration is one among the foremost important evidence that’s admissible in court as dying declaration is often a sole purpose for conviction of accuse. Therefore, it should be taken into record carefully following all the procedure that the court has mentioned. It shouldn’t be tampered in the least by anyone. If the dying declaration is incomplete, then it’s considerably to be rejected by the court. it’s on the court discretion to see if the dying declaration is recorded carefully or not.

Also Read: The Procedure of Investigation Under Criminal Procedure Code


[1] (Delhi High Court, 2020)

[2] State Vs. Ram Singh and another.

[3] Kushal Rao vs The State of Bombay on 25 September 1958 AIR 22, 1958 SCR 552

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