Denny Evidence Word.docx

A CRITICAL APPRAISAL OF LAW PERTAINING TO DYING DECLARATION IN INDIA CHAPTER 1 ………………………………………………………………………12 INTRODUCTION..................................................................................................... 12 1.1 Historical Perspective..................................................................................... 13 1.2 Religious, Moral and Legal Sanctity behind the principle........................ 14 1.3 English and Indian Law.................................................................................. 14 1.4 Justifications for Dying Declaration............................................................ 15 1.4.1 Nemo moriturus praesumitur mentire......................................................... 16 1.4.2 Necessity.................................................................................................... 16 1.4.3 Integrity and Solemnity.............................................................................. 16 1.5 Aims and Objectives of the Study................................................................. 17 1.6 Significance of the Study............................................................................... 17 1.7 Research Methodology.................................................................................... 18 1.8 Chapterisation Plan…………………………………………………………..17 CHAPTER 2................................................................................................................ 20 CONDITIONS PRECEDENT FOR DYING DECLARATION............................. 20 2.1 Subject Matter of the Declaration................................................................ 21 2.1.1 Cause of Death............................................................................................ 21 2.1.1.1 Declarant died of injury to be proved...................................................... 22 2.1.2 Circumstances of the transaction, which resulted in his death................... 22 2.2 Expectation of Death....................................................................................... 23

2.3 Fit state of mind of the deceased................................................................... 23 2.3.1 Dying Declaration without Certificate of Doctor....................................... 24 2.4 Form of Dying Declaration............................................................................ 25 2.4.1 Dying Declaration in Question and Answer Form..................................... 25 2.4.2 Dying Declaration in oral form................................................................... 26 2.5 Recording of Dying Declaration.................................................................... 26 2.5.1 Dying Declaration recorded by Magistrate................................................. 26 2.5.2 Dying Declaration recorded by Doctor....................................................... 27 2.5.3 Dying Declaration recorded by Police officer during investigation............. 27 CHAPTER 3................................................................................................................ 29 EVIDENTIARY VAUE OF DYING DECLARATION............................................. 29 3.1 Reliability of Dying Declaration................................................................... 29 3.2 Dying Declaration recorded at the earliest opportunity............................ 30 3.3 Sole basis of Conviction................................................................................. 30 3.4 Corroboration of Dying Declaration............................................................. 31 3.5 Plurality of Dying Declarations.................................................................... 32 3.6 Proof of Dying Declaration............................................................................ 33 CHAPTER 4................................................................................................................ 34 DISCREPANCIES OF DYING DECLARATION.................................................. 34 4.1 Weak Type of Evidence................................................................................... 35 4.2 Reliability of Statements............................................................................... 36 4.3 Physical Condition of the Declarant............................................................. 36 4.4 Different Reaction for Different People....................................................... 37

4.5 Cultural Assumptions..................................................................................... 37 CHAPTER 5................................................................................................................ 39 JUDICIAL TREND.................................................................................................... 39 5.1 Dying Declaration not violative of Article 14.............................................. 39 5.2 Dying Declaration by Rape victims............................................................... 39 5.3 Absence of Motive............................................................................................ 40 5.4 Distance of Time............................................................................................. 41 5.5 Brevity indicates Truth................................................................................... 42 5.6 F.I.R. admissible as Dying Declaration........................................................ 43 5.7 Unauthorized persons must be kept away.................................................... 43 Chapter 6…………………………………………………………………………….41

CONCLUSION & SUGGETIONS.......................................................................... 45

Table of Cases: Abdul Gani v. Emperor AIR 1943 Cal. 465 Adbul Majid Abdul Rahman v. State of Gujarat 1976 SCC (Cr) 625 Amrik Singh v. State of Rajasthan (1994) 1 SCC 563 Bailiben v. State 1992 (1) GLH 577 Bakshis Singh v. State of Punjab AIR 1957 SC 904 Bharat v. State of Rajasthan 1981 CrLJ. 1274 Dalbir Singh v. State of Punjab AIR 1987 SC 1328 Danu Singh v. Emperor AIR 1925 All 227 Dayaramsingh v. State of Madhya Pradesh 1981 CrLJ 530 (MP) Dileep Singh v. State of Punjab 1979 CrLJ. 700

Ghasi Ram v. State of Rajasthan 1985 Raj Cr C 359 Gopal Singh v. State of Bihar 1988 PLJR 396 Harbans Singh v. State of Punjab AIR 1962 SC 439 Hari alias Satya Pal v. State of UP 1983 All Cr R 283 Jaya Ram v. Sate of Tamil Nadu AIR 1978 SC 1519 K.R. Reddy v. Public Prosecutor 1976 SCC (Cr) 473 Kalua v. State 1985 (2) Crimes 432 Kans Raj v. State of Punjab AIR 2000 SC 2324 Kapur Singh v. Emperor AIR 1930 Lah 450 Khushal Rao v. State of Bombay AIR 1958 SC 22 Khushali v. State 1991 CrLJ. 3244 (All) Kidd v. State 258 So2d 423, 429-30 (Miss 1972) Krishnama Naiken v. Emperor AIR 1931 Mad 430 Kundabal Subramanyam v. State of Andhra Pradesh 1993 CRI LJ (SC) 1635 Kusa v. Sate of Orissa AIR 1980 SC 559 Lallubhai v. State of Gujarat AIR 1972 SC 1776 M.G. Bhagat v. State of Gujarat 1983 Cr. L.J. (Guj.) 303 Mafabhai N. Raval v. State of Gujarat 1992 SCC (Cr.) 810 Mahmood Ilahi v. State of UP 1990 CrLJ. 850 Majan Miyan v. State AIR 1970 Assam 121 Mangilal v. State of Madhya Pradesh 1993 Cr.LR (MP) Mohan Lal v. State of Maharashtra AIR 1982 SC 839 Munnu Roja v. State of MP AIR 1976 SC 2199 Najjam Faruqui v. State of West Bengal AIR 1998 SC 682 Narain Singh v. State of Haryana AIR 2004 SC 1616 Nga Ba Mim v. Emperor 1935 Rangoon 418 Paniben v. State of Gujarat 1992 SCC (Cr.) 403

Patel Hiralal Joita Ram v. State of Gujarat AIR 2005 SC 2944 Purna Chandra Singh v. State of Orissa 1985 CrLJ 248 R v. Reason and Tranter 1 Stra. 1 East, P. C. 353 Radhey Shyam v. State of Uttar Pradesh 1994 All LJ 69 Rajpal v. State (1984) 1 Crimes 821 (Delhi) Ram Bihari Yadav v. State of Bihar AIR 1988 SC 1850 Ram Das Gajanan Patil v. State of Maharashtra 1979 Cr.LR (Mah) 400 Ram Dayal v. State 1988 RCC 138 (Raj) (DB) Regina v. Osman (1881) I 5 Cox I Ronal Kiprono Ramkat v. State of Haryana AIR 2001 SC 2488 Satya Narain v. State (1978) 15 ACC 17 Sharad Birdichand Sarda v. State of Maharashtra AIR 1984 SC 1622 Sher Singh v. State of Rajasthan AIR 2008 SC 1426 State of Assam v. Mahim Barakataki AIR 1987 SC 98 State of HP v. Hem Raj 1992 SLC 158 P 169 (HP) State of Kerala v. Rajayyan (1995) 11 CCR 187 (DB) State of MP v. Baital Singh 1987 CrLJ. (MP) 100 State of Orissa v. Sudam Ch. Mohanty 1990 (2) Crimes 186 State of Punjab v. Savitri Devi 1983 CrLJ. 1093 State of Rajasthan v. Kishore AIR 1996 SC 3035 State of UP v. Ram Sagar Yadav, AIR 1985 SC 416 State of UP v. Ramesh Prasad Misra AIR 1996 SC 2766 State v. Kanchan AIR 1954 All 153 State v. Moody 3 N.C. (2 HAYW.) 50 (1798) Sulaiman v. King AIR 1941 Rang 301 Tapinder Singh v. State of Punjab AIR 1970 SC 1566 The King v. Woodcock (1789) 168 ENG. REP. 352 (P.C.)

Viramji Mohatji Thakore v. State of Gujarat 2005 (2) GLR 1622 Wali Mohammad v. Emperor AIR 1930 Oudh 2499

CHAPTER 1

INTRODUCTION Dying Declarations are the statements made by a dying person as to injuries, which culminated in his death or the circumstances under which the injuries were inflicted. Statements made by a deceased long prior to the occurrence resulting in death are not Dying Declaration and not admissible in Indian Evidence Act. The general ground of admissibility of the evidence is that no better evidence is to be had. Dying declaration is based on the maxim “Nemo moriturus praesumitur mentire”which means ‘a man will not meet his maker with a lie in his mouth’. It operates as an exception to the hearsay rule. Hearsay evidence is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the tests applied to admissible evidence i.e. the oath and cross-examination. They are not given any importance in the courts because the person who is giving this evidence is not telling his experiences but that of another person and who cannot be cross examined to verify the facts. It is an exception because if this evidence is not considered the very purpose of the justice will be forfeited in certain situations when there may not be any other witness to the crime except the person who has since died. A Dying Declaration as envisaged by Section 32 of the Indian Evidence Act, 1872 need not necessarily be from a person who is dying at the time of making the statement. In addition, at the time of making such declaration, it is necessary that he or she should know that there is impending death. In other words, at the time of making such declaration it is a legal mandate that such person must entertain expectation of death1. 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.

1.1 Historical Perspective

1

Spencer, Carlton E. "Dying Declarations in Civil Cases." Or. L. Rev. 9 (1929): 174.

The hearsay exception of dying declaration is traceable to a famous 1789 English Case,The King v. Woodcock.Woodcock admitted a dying statement by a woman blaming her husband for her severe injuries after being beaten. The court justified admitting the unconfronted statement on the grounds that such statements are “made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth.” The court held that “a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.” This traditional justification of the dying declaration is, as words such as “awful” and “solemn” indicate, religiously based. Fear of heaven’s ultimate punishment for false testimony, prompts sincerity. The dying person would not dare depart this life and greet her maker with a lie on her lips. This case refers to a decision in R v. Reason and Tranter, decided in 1722. That case, however say nothing as to any limitation on the rule. A series of cases from 1678 to 1765 shows that during that period declarations of deceased persons as to the cause of their death were admitted even though the declarants had hopes of recovery when they were made. The dying declaration exception appears in some very early American case law. For instance, in State v. Moody[6], a North Carolina case from 1798, the court explained that dying declarations may be received “of one so near his end that no hope of life remains, for then the solemnity of the occasion is a good security for his speaking the truth, as much so as if he were under the obligation of an oath.”[7] The North Carolina court warned, however, “if at the time of making the declaration he has reasonable prospects and hope of life, such declarations ought not to be received; for there is room to apprehend he may be actuated by motives of revenge and an irritated mind, to declare what possibly may not be true.”[8] 1.2 Religious, Moral and Legal Sanctity behind the principle The principle on which the rule of dying declaration is based, Nemo Moriturous Proesumitur Mentiri, means that a man will not meet his maker with a lie in his mouth. From the very beginning of the judicial system it is believed that a man on his deathbed never tells a lie. Ordinarily, a person on the verge of his passing away from the world, however, desperate criminal or liar he may be throughout his life, but where his or her end is in sight under the constraints of his conscience to speak out the truth, he will not lie as to falsely frame-up and get convicted and sentenced an innocent person. Religious and moral ethics presumes that truth sits on the lips of a dying man. According to Hindu mythology, when one comes under the shadow of Yamraj (messenger of death), he can speak nothing except truth. Even under the Mohammedan Law certain deathbed transactions and acknowledgments are respected.

1.3 English and Indian Law The Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English Law where only the statements, which directly relate to the cause of death, are admissible. It is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under expectation of death. In English Law, the conditions for admissibility of dying declarations are- Firstly, that the declarant should have been in actual danger of death at the time when they were made; secondly, that he should have had a full apprehension of his danger; and thirdly, that death should have ensued. Whereas, under the Indian law the dying declaration is admissible, whether the person who made it was or was not under expectation of death, which, of course, makes a lot of difference. In Indian Law, the question of nature and scope of dying declaration; has made a distinct departure from English Law, where only the statements, which directly relate to the cause of death, are admissible. The framers of the Indian Evidence Act, 1872, in view of the peculiar conditions of our people society and the diverse nature and character of our people, thought it necessary to widen the sphere of Section 32 to avoid injustice. A provision similar to the second part of Cl. (1) of Section 32, viz. “the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question”[9], is not to be found in the English Law. As distinguished from the English Law Section 32 does not require that such a statement should have been made in expectation of death. Statement of the victim who is dead is admissible in so far as it refers to cause of his death or as to any circumstances of the transaction, which resulted in his death. The words “as to any of the circumstances of the transaction which resulted in his death” appearing in Section 32 must have some proximate relation to the actual occurrence. In other words the statement of the deceased relating to the cause of death or the circumstances of the transaction, which resulted in his death, must be sufficiently or closely connected with the actual transaction. Due weight is required to be given to a dying declaration keeping in view the legal maxim “Nemo moriturus praesumitur mentire” i.e. ‘a man will not meet his Maker with a lie in his mouth’. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of a statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. However, in cases where the original recorded dying declaration is proved to have been lost and not available, the prosecution is entitled to give secondary evidence thereof.

1.4 Justifications for Dying Declaration There are various justifications that are applied as grounds of admissibility of the dying declaration statements. Various courts have time and again used such justifications as basis for convicting the accused solely on the basis of dying declaration, provided a careful perusal of the circumstances raises no doubt regarding the credibility of the statements of the declarants. 1.4.1 Nemo moriturus praesumitur mentire The admissibility of Dying Declaration is based on the maxim “Nemo Moritur Praesumntur Mentiri” which means ‘a person who is about to die would not lie’. 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 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. A dying declaration, therefore, enjoys high status, as a piece of evidence, coming as it does from the mouth of the deceased victim. 1.4.2 Necessity The victim being generally the only eyewitness to the crime, the exclusion of his statement would tend to defeat the ends of justice. A dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. While it is in the nature of an exception to the general rule of forbidding hearsay evidence, it is admitted on the premises that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. 1.4.3 Integrity and Solemnity Dying words matter to people for reasons of integrity and solemnity. One does not have to believe in a deity or an afterlife to see death as presenting a moment of moral seriousness and clarity. This is a position advanced by Wigmore[10] and acknowledged by the advisory committee notes to the Federal Rules, which observes “while the original religious justification for the dying declaration exception may have lost its conviction for some persons over the years, it can scarcely be doubted that powerful psychological pressures are present.”[11] 1.5 Aims and Objectives of the Study

In view of the foregoing discussion, the main purpose of the present work is to introduce the concept of Dying Declaration and discuss its relevance. In the present study it has been attempted to highlight the object of the provision relating to Dying Declaration. The effort has been made to evaluate the efficacy and adequacy of the existing laws in combating and providing relief & remedy; to examine the interpretation given by the Courts. While dealing with such a vast topic, it is not possible to make the work exhaustive as the subject is holding ever-growing importance and scope. Nevertheless a line has to be drawn somewhere for accomplishing the present research work in an effective way. Accordingly, the present work covers the analysis and social investigation regarding factual status, dimensions and paradigms of law on the Dying Declaration and laws dealing with ancillary issues which help to explain these areas such as admissibility, reliability and conviction on its basis. The work covers critical analysis of the Dying Declaration, its admissibility, reliability etc. The main focus of the study is to undertake the evaluation of judgment and interpretation of Dying Declaration. Therefore this research work is intended to make an extensive and analytical study of Dying Declaration. 1.6 Significance & Scope of the Study The research work further assumes its importance when the judicial pronouncement of various High Courts and Supreme Court is analyzed. The study reveals that some facts are attacking at the existence and worth of these legislations as law must keep its pace with the objective and it should prove its worth through proper application. In the upshot of aforesaid discussion, it is hoped that the study would provide valuable and comprehensive information regarding meaning and interpretation of the laws. It would also provide sufficient insight into the object, implementation of laws. 1.7 Research Methodology The quality and value of research depends upon the proper and particular methodology adopted for the completion of research work. Looking at the vastness of the research topic doctrinal legal research methodology has been adopted. To make an authenticated study of the research topic ‘dying declaration- the relevance of the last words’ enormous amount of study material is required. The relevant information and data necessary for its completion has been gathered from both primary as well as secondary sources available in the books, journals, periodicals, research articles and websites, and Acts of the Parliament. Keeping in view the need of present research, various cases filed in the Supreme Court as well as in the High Courts on the issue of and the judgments therein have also been used as a source of

information. The judgments pronounced in the cases have been analyzed in detail and used as a means of diagnosis to know the basic lacunae arising in the way of providing the remedy. 1.8 Chapterisation Plan In this research project the topic has been divided into few different chapters. This research project deals with Dying Declaration as given under the Indian Evidence Act. In the first chapter the historical perspective along with English and Indian law relating to the same has been discussed in depth. The reasons for the acceptance of this principle has also been dealt with in the first chapter itself. In the second chapter of this research the conditions essential for the principle of Dying Declaration has been discussed and explained in depth and detail. The manner in which the dying declaration can be taken or accepted by the court is also dealt with in this chapter. In the third chapter of the study the Evidentiary value of the dying declaration with instances where it has been accepted or rejected by the courts in the various cases has been given and explained as well as discussed. Can dying declaration become the sole reason for conviction or not is also discussed in this chapter. The effect of discrepancies in the dying declaration or multiple dying declaration and its effect on the case and the evidentiary value has been discussed in the chapter 4 of the study. Finally in chapter 5 the Judicial Trend of the the Principle of Dying Declaration as played or has been accepted or rejected in the courts in the various cases has been discussed along with the case facts and decisions. Chapter 6 is the final chapter of the study discusses the conclusion and suggestions regarding the research topic is done. This is how the whole research project has been divided into the chapters and discussed every element in detail as to the Law Pertaining to Dying Declaration in India.

CHAPTER 2 CONDITIONS PRECEDENT FOR DYING DECLARATION Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an exception has not been used in any statute. It means statements made by a person as to cause of his death as to the circumstances of the transaction resulting in his death. The grounds of

admission are: (1) necessity for the victim being generally the only principal eyewitness to the crime, the exclusion of the statement might defect the ends of justice (2) the sense of impending death, which creates a sanction equal to the obligation of an oath. It is admitted is that they are declarations made in extremity, when the party is at point of death and when every hope of his words is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth, a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in the court of justice. The Hon’ble Supreme Court in Lallubhai v. State of Gujarat[12] held that the law regarding Dying Declaration is very clear. A Dying Declaration must be Closely scrutinized as to its truthfulness like any other important piece of evidence in the light of the surrounding facts and circumstances of the case bearing in mind on the one hand, that the surrounding is by person who has not been examined in court on oath and on other hand the Dying man is normally not likely to implicate innocent persons falsely. It is said that truth sits on the lips of a person who is about to die. The Supreme Court inKundabal Subramanyam v. State of Andhra Pradesh[13], “A Dying Declaration is made by a person on the verge of its death has a special sanctity as at that solemn moment a person is most unlikely to make an untrue statement. The shadow of the impending death is by itself the guarantee of the true of the statement made by the deceased regarding the cause or circumstances leading to his death”[14]. The term dying declaration has not been defined in Indian Evidence Act, 1872, but reading Section 32(1), the term dying declaration, may be defined as follows: “A dying declaration is statement made by a person who is dead; as to cause of his death or as to circumstances of transaction which resulted in his death, in cases in which his death comes into question, such statements are relevant under Section 32 of Evidence Act, whether the person who made there was or was not, at the time when they were made, under expectation of death and whatever maybe the nature of proceeding in which the cause of his death comes into question.”[15] The Supreme Court in State of UP v. Ramesh Prasad Misra[16] has held that Section 32(1) is to be construed in a wide manner and includes a statement by the deceased regarding motive behind the criminal act. 2.1 Subject Matter of the Declaration

The statement must be as to the cause of the declarant’s death, or as to the any of the circumstances of the transaction, which resulted in his death, I.e., the case and circumstances of the death, and not previous or subsequent transaction. Such independent transactions are excluded as not falling within the principle of necessity on which such evidence is received.[17] 2.1.1 Cause of Death This clause lays down that when the statement is made by a person as to the cause of his death, or as to any of the circumstances of transaction, which resulted in his death, his statement would be relevant in a case in which the cause of his death is the point at issue. A is assaulted and dies. Before his death he makes a statement that “B assaulted him with spear.” This statement of A is admissible as it relates to the cause of his death. The fact that the deceased lingered for a few days after receiving injuries doe not deprive the statement of its character as a dying declaration admissible under this section. [18]But if there is nothing to show that the injuries to which the statement of the deceased related were the cause of his death the statement is not admissible as dying declaration. 2.1.1.1 Declarant died of injury to be proved Before the statement of a person as to cause of his death may be used as dying declaration it must be proved that his death was caused by the injury he received in the incident for which accused is being prosecuted. If the deceased stated that X injured him but he did not die of the injuries rather he died of some illness such as pneumonia, his statement that X caused him injuries cannot be admitted under this section.[19] 2.1.2 Circumstances of the transaction, which resulted in his death The words “resulted in his death” do not mean ‘caused his death.’ The expression “any of the circumstances of the transaction which resulted in his death” are wider in scope than the expression “cause of death.” A statement not relating to the cause of death of its maker maybe admissible if it relates to the circumstances of the transaction, which resulted in his death.[20] In a case of robbery a statement made by a person before her death regarding the circumstances of the robbery is admissible. Although remotely, wounds caused her death, received at the robbery.[21] In Patel Hiralal Joita Ram v. State of Gujarat[22], it was held by Supreme Court that the words “Statement as to any circumstances” are by themselves capable of expanding the width of scope of admissibility. Any thing, which has nexus with, his death proximate or remote, direct or indirect can also fall within the purview of sub-section.

In Kans Raj v. State of Punjab[23], the Supreme Court held that the words “as to any circumstances of transaction which resulted into his death”, appearing in Section 32 makes it clear that the circumstances resulting in death must have proximate relation to actual occurrence. Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in death of the declarant, though as for instance in case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal date. 2.2 Expectation of Death Section 32 declares that such statements are relevant whether the person who made them was or was not at the time when he made the statements under the expectation of death.[24] It does not require that the statements sought to be admitted in evidence should have been made in immediate expectation of death. Though the expectation of the death does not affect the relevancy of dying declaration but it will certainly affect the weight attached to the declaration. If the person making the declaration is conscious that he is dying soon the possibility to speak the truth is very great.[25] In Najjam Faruqui v. State of West Bengal[26], the Supreme court held that such statements are relevant whether the person who made the statement was or was not at the time, when the statement was made, under expectation of death and whatever be the nature of proceeding in which the cause of his death comes into question. 2.3 Fit state of mind of the deceased The courts have used different words- ‘fit condition’, it state of mind’ and ‘conscious mind’, but all are synonymous with each other. The mental fitness and capacity to make the statement of the victim at the time of making the dying declaration is a primary consideration in admission of the dying declaration. It can be imagined from citus of injury, nature of injury and general condition of the victim besides opinion of the doctor and witnesses. The Court must be satisfied that the deceased was in a fit state of mind to make statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancor.[27] On the question of mental fitness in Mafabhai N. Raval v. State of Gujarat[28], it was held by the Apex court that unless there is something inherently defective, the court cannot substitute its opinion for that of the doctor. Normally the court, in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration, look up to the medical opinion. But where the eye-witness has said that the deceased was in a fit and conscious state to make the dying

declaration, the medical opinion cannot prevail.[29]Where two doctors and the Magistrate were certifying that the patient was conscious and in fit state of mind, then no doubt should be cast over the capacity to make the statement.[30] The dying declaration becomes doubtful when the doctor, who attended the victim, alleged that the victim told him who were the assailants but another doctor stated that, in view of the nature of injuries, the victim would have become unconscious immediately.[31] The dying declaration also becomes doubtful in the absence of any other independent direct testimony when according to medical evidence the deceased’s injuries were very likely to have resulted in his immediate death.[32] 2.3.1 Dying Declaration without Certificate of Doctor Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind but where the person recording the statement of the deceased states that the deceased was in a fit and conscious state, the medical opinion will not prevail nor can it be said that there being no certification of the doctor as to fitness of the mind of the declarant, the dying declaration is not acceptable. A certificate of doctor is essentially a rule of caution. Where the testimony of the Magistrate is to the effect that the declarant was fit to make the statement, it can be acted upon without there being certificate of doctor provided that the court ultimately held the same to be voluntary and truthful.[33] 2.4 Form of Dying Declaration There is no particular form to be employed in making a dying declaration. It may be oral or in writing or may even be partly oral and partly in writing. On the other hand, it may be neither oral nor written; that is to say, it may consist of some signs or gestures made by the deceased. Possibly the declaration should be written in the exact words of the person making it.[34] But simply because the very words of the injured are not written dying declaration cannot be rejected.[35] 2.4.1 Dying Declaration in Question and Answer Form Though it is a well settled law that dying declaration should preferably be in question and answer form and that as far as possible the exact words used by the injured must be reproduced, it is certainly not desirable for cyclostyled forms to be prepared because it reduces the entire operation to a mechanical exercise and there is plenty of scope for malpractices particularly in situation where certain parts of the form may be left unfilled. It is therefore, much safer to keep the dying declaration short, concise and to the point to write out the questions and answers that have been elicited.

In order to determine as to whether the dying declaration was truthful, Supreme Court had laid down certain tests in Khushal Rao v. State of Bombay.[36] They are (1) declaration to a Magistrate is preferable to an oral declaration, (2) opportunity of dying man of observation, (3) capacity to remember remained unimpaired, (4) a consistent statement, (5) an early statement and (6) no tutoring. It is not necessary that the dying declaration should be in the question and answer form. The declaration should be taken down in the person making it. It should be ipissima verba of the person making it. On the other hand it may be open to objection if leading questions were put to the declarant for the purpose of eliciting information. It is for the court to decide the circumstances of each case whether the statement recorded was free, voluntary, clear and unambiguous statement of the deceased at the time when he is capable of making that statement. 2.4.2 Dying Declaration in oral form In order to be acted upon, the evidence with regard to an oral dying declaration should be subjected to strictest and closest circumstances. Where the oral dying declaration is found true and gets corroboration from material particulars available on record it can form basis of conviction of an accused. Where an oral dying declaration is corroborated by the testimony of more than one independent witness, it cannot be rejected merely on the ground that the ability of the declarant to make an oral dying declaration was not supported by medical evidence.[37]An oral dying declaration that creates doubt is not worthy of credence.[38] 2.5 Recording of Dying Declaration Neither Section 32 nor its clause (1) specify as to who is authorized to record any dying declaration, yet the practice has been that any Magistrate, a doctor, a police officer or any other person can record it provided he follows certain recognized principles so as to make the statement worth reliance by a court of law. 2.5.1 Dying Declaration recorded by Magistrate The dying declaration recorded by a Magistrate carries much weight, as it stands on a higher footing than a dying declaration recorded by any other agency, which is fallible to all the infirmities of human memory. The dying declaration recorded and proved by the Magistrate which is clear, concise and sounds convincing, can be accepted as truthful and acted upon for convicting the accused even in the absence of corroboration.[39] It is the duty of the Magistrate to know these rudimentary things, namely that before recording the dying declaration he must get a certificate of the doctor appended regarding the mental state of the deponent, and secondly, they should mention

the time when such statement was taken down. In the absence of it is not safe to rely upon the statement.[40] 2.5.2 Dying Declaration recorded by Doctor The doctor is the right person to opine about the fitness of the deceased. If the doctor found that life in the patient was ebbing fast and there was no time to call the police or magistrate, in such a situation, the doctor was justified, indeed he was duty bound to record the dying declaration of the deceased. The doctor is a disinterested and respectable witness and the dying declaration recorded by him should be accepted.[41]In Khushali v. State[42], the doctor was justified in recording the statement when he first sent requisition for the magistrate, and then recorded the same as the Magistrate was found to be out of station. But where the doctor neither got it attested nor informed the investigating officer, no weight should be given to such dying declaration.[43] 2.5.3 Dying Declaration recorded by Police officer during investigation Investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. But when the dying declaration made to a police officer is properly proved and it is corroborated by the reliable evidence on record it cannot be said that it cannot form the basis of conviction of the accused concerned. There is no law that a dying declaration which is not made to a Magistrate cannot be used in evidence but its better to leave such dying declaration out of consideration unless and until the prosecution satisfies the court as to why it was not recorded by a Magistrate or a doctor.[44]

CHAPTER 3 EVIDENTIARY VAUE OF DYING DECLARATION It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the statement of the deceased by cross-examination. As rightly observed by the Courts, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no

impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assess independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other. 3.1 Reliability of Dying Declaration A dying declaration, before it could be relied upon, must pass a test of reliability as it is a statement made in absence of the accused and there is no opportunity to the accused and there is no opportunity to the accused even to put it through the fire of cross examination to test its genuinety or veracity. Therefore, it becomes the duty of the court to subject to it to close scrutiny. Though in law there is no bar in acting on the part of Dying Declaration, it has to pass the test of reliability. Section 32 is an exception to the hearsay rule and unless evidence is tested by crossexamination it is not credit worthy. A Dying Declaration made by a person on the verge of his death has a special sanctity, as at that solemn moment by a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding circumstances leading to his death. But at the same time the dying declaration like any other evidence has to be tested on the touchstone of creditability to be acceptable. It is more, so, as the accused does not get an opportunity of questioning veracity of the statement by cross-examination. The dying declaration if found reliable can form the base of conviction.[45] Once the statement of Dying person and the evidence of the witnesses testifying the same passes the test of careful scrutiny of the courts, it becomes very important and 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 conviction.[46] 3.2 Dying Declaration recorded at the earliest opportunity A dying declaration made soon after the occurrence at the earliest opportunity or at the time of expected death, or at the time where the maker could not consult others, or receive hints from others, ordinarily deserves great weight. If the deceased did not disclose the names at the earliest opportunity, only two inferences can be drawn, namely, either the deceased was not conscious at all an was not in a position to talk to anybody or that even though he was conscious he did not disclose the occurrence because under the stress and strain of the assault, which took place admittedly at a time when darkness had set in and there was very little moonlight, he was not able

to identify the assailants. No third inference can be spelt out, observed the Apex court in K.R. Reddy v. Public Prosecutor[47]. 3.3 Sole basis of Conviction Conviction can be based on the strength of Dying Declaration without corroboration provided it is found trustworthy. However, before it is acted upon, it has to closely scrutinized since dying declaration given by a person before his death is a one sided affair and before placing reliance on it and closing case for seeking corroboration, it is not only desirable but also essential to eliminate the chances of suspicion after careful and close scrutiny.[48] In Amrik Singh v. State of Rajasthan[49], the Supreme Court held that in a severely injured condition, it could not be expected that the doctor would detain the injured to get information from him as his natural anxiety would be to send him for medical aid. The statement made afterwards by the injured on the way cannot be doubted on the ground that it was not made at the earliest opportunity. But when the incident took place between 9 and 9:30 p.m. and the statements of the witnesses were recorded at 11 p.m., there was, therefore, time for deliberation and the possibility of the accused being falsely involved in the crime cannot be ruled out.[50] Their Lordships of the Supreme Court have approved a fundamental principle that where the statement of a dying person passes the test of careful scrutiny applied by courts, the statement turns out to be a most reliable piece of evidence which needs no corroboration.[51] In State of Punjab v. Savitri Devi[52], the Full bench of the Punjab and Haryana High Court observed: “The dying declaration is undoubtedly admissible under Section 32 of the Indian Evidence Act, 1872, and not being a statement on oath so that its truth could be tested by crossexamination, the courts have to apply the strictest scrutiny of the closet circumspection of the statement before acting upon it.”[53] 3.4 Corroboration of Dying Declaration As regards to corroboration of the Dying Declaration is concerned, the Supreme Court in Harbans Singh v. State of Punjab[54], held that “it is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence before conviction can be based thereon. The evidence furnished by the dying declaration must be considered just as the evidence of any witness, though undoubtedly some special consideration arises in the assessment of Dying Declaration which does not arise in the case of assessing the value of a statement made in the court by a person claiming to be a witness of the occurrence”[55]. In brief, a Dying Declaration must satisfy the court that it was “true and voluntary” and that the declarant was in a fit state of mind.

In State of Rajasthan v. Kishore[56], the court held that the Dying Declaration if found to be true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there is no legal impediment to form such Dying Declaration as basis of conviction even though there is corroboration. Thus the primary duty of the court of the court is 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 or convincing, the court may, for its assurance, look for corroboration.[57] 3.5 Plurality of Dying Declarations A dying declaration should satisfy all the necessary tests and one such important test is that if there is more than one dying declarations they should be consistent particularly in material particulars. The truth should be judged with reference to all dying declarations made by him. When one of the two dying declarations is found to be untruthful, the court should not readily accept the other. In Mohan Lal v. State of Maharashtra[58], the Supreme Court held that, where there are more than one statements in the nature of dying declaration made by the accused, one first in point of time should be preferred. Where there are two dying declarations in the case and both are at variance with regard to the place of incident, use of weapons, and the participation of the accused persons and the eyewitnesses examined in the case are not reliable as it is hazardous to base conviction on such dying declarations.[59] Where there are more than one dying declarations of the same person they have to be read in evidence as one and if they differ on material aspects the effort should be made to see if they could be reconciled.[60] 3.6 Proof of Dying Declaration Before a statement can be admitted, proof must be given that the person is dead and the burden of this is upon the person who wishes to give the statement in evidence.[61]Dying declaration must be proved whether they are written statements or verbal statements. If they are verbal statements, the persons who heard he deceased make verbal statements must be examined on oath as witnesses and if a person at the time made a record of the deceased’s statements he may refresh his memory by referring thereto under Section 159[62], or if he has no specific recollection of the statements made, he may, under Section 160[63], testify to facts mentioned in the document if he is sure that the facts were correctly recorded by him. If the document is thus put on record it does not become, in the strict sense, substantive evidence but it forms part of the testimony of the witness who recorded it. If the statement to be proved is a written statement made by a person who is dead, then it must be proved that such statement was

so made by the person who is dead. In that case, of course, the written statement itself becomes substantive evidence.[64] Where the dying declaration has been recorded in writing by the magistrate and had been read over to the deceased, there can be no doubt that whatever is mentioned therein is the faithful statement of the deceased himself. But even then, proof of the identity of the person who made the statement is necessary.[65]

CHAPTER 4 DISCREPANCIES OF DYING DECLARATION A dying declaration is not to be believed merely because no possible reason can be given for accusing the accused falsely. It can only be believed, if there are no grounds for doubting it at all. It is not always safe to convict an accused person merely on the evidence furnished by a dying declaration, without further corroboration, because such a statement is not made on oath and is not subject to cross-examination, and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. When one party is killed by another, there are often no witnesses to the murder other than the killer and the victim who is now absent. In some circumstances, the victim has enough life left to utter some final words to an individual who happens to be in the vicinity of the crime. Usually these statements, known in legal terms as dying declarations, relate to the circumstances of the victim's death, including the identity of the perpetrator. If the crime is investigated by law enforcement authorities, the final words of the victim can be reported by the individual who received this last utterance. If the matter goes to trial, this report may be heard in a courtroom by judge and jury who will decide the fate of the accused, which may include loss of liberty or even death. The presentation of the victim’s words in court is a dramatic example of what in linguistics is referred to as “reported speech.” In the case of a criminal trial, this instance of reported speech is considered by the court as “direct” (i.e., a faithful and literal repetition of the victim’s utterance) rather than “indirect,” where there is some paraphrasing of the victim’s words.[66] When one reports the speech of another for the truth of the matter asserted, such as when the recipient of a dying declaration reports it in order to prove the identity of the assailant, that report is treated as hearsay. Hearsay is defined as a statement other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. These statements are generally considered to be untrustworthy and highly prejudicial to the accused since the actual speaker of the words is not subject to cross-examination.[67] The case of dying declaration hearsay, however, constitutes an exception: that is, the recipient’s report of the victim’s statements is considered to possess the guarantees of trustworthiness ascribed to direct testimony; albeit hearsay, it is admissible into court for the truth of the matter asserted therein. Thus, this legal regime presumes that the declarant’s statement is reliable, that the reporter of the statement transmits this information completely and accurately, and that the court assesses this information objectively. As early as the 12th century, dying declarations such as deathbed statements were already “long understood” by western observers such as Wigmore to be somehow imbued with a “special trust.”[68] Dying declaration hearsay did not assume its current status in British courts as an exception to the hearsay rule until early in the 18th century. Typical of the “reasoning” which lifted the dying declaration above the bar of general hearsay exclusion was the presumption expressed by the well-worn legal maxim, “No person, who is immediately going into the presence of his Maker, will do so with a lie upon his lips.”[69] But there are some prima facie objections to the above rule. Even assuming that statements made by the author of the dying declaration to the recipient reporter, a transfer of those words from the reporter to the court, and receipt and assessment of the words by the court are accurate as well as value-free, the rule's rationale is readily criticized on its face. 4.1 Weak Type of Evidence A Dying Declaration is a weak kind of evidence because the accused do not get any opportunity to cross-examine the declarant. Uncrossed version of the declarant is thrust upon the accused and they could be held guilty of the crime alleged in the declaration. Under these circumstances, the courts are expected to be very cautious and circumspect in accepting the dying declaration. Therefore, the dying declarations are weak kind of evidence even though they are based on the principle that a person would not die with a lie in his mouth. Therefore, if a part of a dying declaration is deliberately false, it will not be safe to act upon the other part of the declaration without very definite corroboration. 4.2 Reliability of Statements The seemingly universally accepted notion that these statements are reliable, according to western judges and commentators is specious. The universality agreement analysis is a logical fallacy;

simply because courts and commentators agree across time in a particular western tradition does not prove the tradition's validity and is merely conclusory. The reliability of a dying statement is suspected. Assuming no difficulty in expression and interpretation between the author and the recipient, an exact and value-free replication of the language, untainted, to the court, and an “objective” analysis of that language by the court, the author's statement may be less than reliable due to the physical stress or the circumstance itself; or, even if the author of the declaration is cogent, realizing it as a last opportunity, he or she may color his or her final statements against an innocent. 4.3 Physical Condition of the Declarant Even if the author of the statement does not intend to misstate, his or her physical condition may in fact result in a misstatement. For example, “Pain, catastrophic physical calamity, and anguish may characterize the circumstances under which a declarant makes such statements. Perception, memory, comprehension, and clarity of expression are likely to be impaired.”[70] In addition, the declarant may have been using drugs, which may have affected cognition and perception, and may have been in a state of great pain, which would tend to discredit the trustworthiness and accuracy of the declaration. In fact, it is more likely that an individual who has just undergone an attack sufficient to consider death and who is experiencing the stress associated with such an experience would not be in a physical state that results in a more rational and lucid condition and thus more reliable statement than otherwise. Beyond these concerns and again assuming good faith and cogency on the part of the dying individual, if the declarant realizes that time is short, he or she may, by necessity, give only an incomplete and one-sided version of events. The circumstances surrounding the declaration alone may result in a less, not more, accurate picture of the declarant's death. Further, the party who hears the dying declaration may misunderstand or miscomprehend the statement due to the stress of the situation or by simple mistake, since “honest mistakes, to say nothing of passion, prejudice or self-interest might give us a distorted or false statement as to what the dying declaration was.”[71] Finally, the listener in this circumstance is unlikely to attempt to seek clarification or qualification of the dying declarant's statements after he or she has uttered the declaration.[72] 4.4 Different Reaction for Different People It is a matter of common experiences that even a small or trifle incident has different reaction on different persons. That is why it is not always easy for the court to weigh and judge as to whether

under the circumstances brought on record by the prosecution, in normal course the accused concerned could have acted as alleged by the prosecution. 4.5 Cultural Assumptions The related cultural assumptions that underlie the rule further weaken it. The ideal of a threat of divine punishment and imperative to speak the truth may simply not exist for those who do not adhere to such religious sects or social groups that embrace such cultural ideals. Clearly, with no fear of eternal or other retribution or compunction to speak the truth, the author can with impunity colour his or her dying statements to falsely incriminate enemies, friends, or anyone he or she disliked at that particular moment. Similarly, the listener may have an agenda and thus falsify the declarant's statement: if no other listeners are present, a dying victim uttering a dying declaration provides a virtually unchecked opportunity for an unscrupulous listener to falsely identify and potentially convict an innocent party.

CHAPTER 5 JUDICIAL TREND Time and again the courts in India, be it Supreme Court or High courts, have come up to serve and explain the ambiguities, if any, in order to comprehend the intent of the legislature, while laying down the law under Section 32 of the Indian Evidence Act, 1872. 5.1 Dying Declaration not violative of Article 14 The judiciary has given appropriate importance to the appreciation of dying declaration. In Kalua v. State[73], it was held that dying declaration couldn’t be assailed on the ground that its provisions are discriminatory, arbitrary or unreasonable as there is no scope for administering oath and cross-examining the deceased. No question of violation of Article 14[74] of the Constitution arises. The basic requirement in order to prove dying declaration is that it should be cogent and convincing evidence and it should be free from suspicion. The question of trustworthiness of the dying declaration requires deep judicial scrutiny and that is possible only at the stage of the trial.[75] 5.2 Dying Declaration by Rape victims In State of Assam v. Mahim Barakataki[76], the victim of rape and murder made a Statement. She died of burns. She made the statement to one of the witnesses while she was under severe pain due to grievous burns. It was alleged that the accused had committed rape on her and later by pouring

kerosene on her, burnt her alive. The court found the Dying declaration to be truthful and reliable and thus, admissible. The Hon’ble court held that the conviction could be based on the dying declaration, which is found to be truthful and reliable. In Ronal Kiprono Ramkat v. State of Haryana[77], the Deceased was raped by appellant and then stabbed with kitchen knife on neck and head. The Injuries inflicted by appellant resulted in death of deceased. Therefore, the appellant was charged for offence under Sections 302 and 376, Indian Penal Code, 1860. The Trial Court convicted appellant for offences under Sections 302 and 376/511, Indian Penal Code, 1860. The Hon’ble Supreme Court observed that there were no eyewitnesses to incident and the prosecution mainly relied on oral dying declaration and that the dying declaration suffered from a number of infirmities and absence of explanation of serious nature of injuries sustained by appellant raises serious doubt as to very genesis of incident. Fact that deceased was totally naked probablises theory of intercourse by consent and negatives theory of rape. The Court concluded that in view of seriousness of injuries sustained by appellant it couldn’t be said that injuries were self-inflicted. Also dying declaration does not appear to be in language of deceased and therefore does not inspire confidence. The Hon’ble Supreme Court held that in view of infirmities, improbabilities and contradictions dying declaration cannot be relied upon and therefore, the appeal was allowed and the appellant was acquitted. 5.3 Absence of Motive Absence of motive for causing death and dying declaration not inspiring confidence cannot be basis of conviction. The absence of motive being proved, the accused cannot be said to have committed the crime. It is a general principle that a dying man would not falsely implicate any person, without having due regard to the attendant circumstances and particularly when no motive is substantiated, it is hazardous to accept the mind of the deceased was free from feeling which afflict the generality of human beings. Where the deceased having 6 degree burns, could not possibly have been able to make a kind of intelligible statement, his dying declaration cannot be relied upon, inasmuch as it does not inspire confidence, in the view of the attendant circumstances.[78] But absence of motive in dying declaration is not always fatal to its admissibility. In case of direct evidence question of motive has little importance.[79] Similarly, where the specific role is assigned to the named culprits, merely absence of motive in the dying declaration is not sufficient to assail the conviction based on such dying declaration, particularly where there is nothing on record to show that the deceased has any motive to falsely implicate the accused.[80] 5.4 Distance of Time

Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statements would clearly fall within the four corners of Section 32 and therefore admissible. The distance of time alone on such cases would not make the statement irrelevant.[81] The time factor is not always the criterion for admissibility and the letters written by the deceased to her relatives during the period of two years prior to her death by suicide complaining about the systematic ill treatment, cruelty and instigation leading to Section 32 of the Indian Evidence Act, 1872. But where the testimony as to the alleged cruelty is based on the statement of the deceased uttered many months prior to her death, held such statement of the deceased does not fall within the provisions of Section 32(1) of the Indian Evidence Act, 1872 and the same is not admissible in evidence. The expression ‘soon before her death’ used in the substantive part of Section 304B[82], Indian Penal Code, 1860 and Section 113B[83], Indian evidence Act, 1872 is clubbed with the idea of proximity test. Ne definite period has been indicated and the expression ‘soon before’ is not defined. A reference to Section 114[84], Indian Evidence Act, 1872 (illustration) is relevant. It lays down that a court may presume that a man who is in possession of stolen goods ‘soon after’ the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. To raise the presumption of dowry death, the prosecution must prove that soon before her death the woman had been subjected to cruelty or harassment in connection with any demand of dowry.[85] 5.5 Brevity indicates Truth The omission of certain facts does not render dying declaration inadmissible. In Jaya Ram v. Sate of Tamil Nadu[86], their Lordships of Supreme Court laid down that when the person who made the dying declaration before the Magistrate was in severe bodily pain and the words were scarce, his natural impulse would be to tell the Magistrate, without wasting his breath on details, as to who has stabbed him. The very case, far from being a suspicious circumstance, was an index of its being true and free from the taint of tutoring. A dying declaration containing a few words would not warrant its rejection on that ground. A dying person with fatal injuries must be in severe agony. The groaning utterances of a dying person in grip of dreadful agony cannot be judged by the fullness of the particulars.[87]In Dalbir Singh v. State of Punjab[88], their Lordships of the Supreme Court observed:

“In any event the dying declaration in our opinion, could not be discarded, merely on the ground that it does not give precise description of all the instruments of offence and also the precise description of the manner in which the injuries were inflicted and on the basis, therefore, it could not be contended that this dying declaration should be rejected as it is not consistent with the medical evidence when substantially it is corroborated by medical evidence and also corroborated by the testimony of eye-witnesses.” 5.6 F.I.R. admissible as Dying Declaration A first information report lodged by a deceased is admissible under Section 32(1) as the statement of a person relating to the circumstances of the transaction, which resulted in his death.[89]First information report and statement under Section 161[90], Cr.P.C., during investigation of a crime are also sometimes treated as dying declaration but such dying declarations stand on a different footing. They require to be corroborated by some additional evidence.[91] A report lodged by the deceased under Section 323[92], Indian Penal Code, 1860, can be treated as a dying declaration but where there was unexplained delay in the lodging of the F.I.R. and not lodged in the original words uttered by the deceased, it was held that it was not safe to place reliance on the dying declaration of the deceased.[93] 5.7 Unauthorized persons must be kept away In Khushal Rao v. State of Bombay[94], a clear direction was given by the Supreme Court that while the declaration is being recorded no unauthorized persons should be allowed to crowd round the deponent: “The bounden duty of every one is to see that every possible step is being taken to ensure that no influence is brought to bear on the declarant and he is not prompted or aided in making a declaration.” Undoubtedly, it is essential to show before admitting the dying declaration that the dying declaration was made when the make was in a position of his faculties to enable him to make such dying declaration, that he should be free from any prompting or external influence.

CHAPTER 6 CONCLUSION & SUGGESTIONS

Hearsay evidences are not given any weightage in the courts because the person who is giving this evidence is not telling his experiences but that of another person and who cannot be cross examined to verify the facts. Dying declaration is an exception to this rule because if this evidence is not considered very purpose of the justice will be forfeited in certain situations when there may not be any other witness to the crime except the person who has since died. Sometimes it the best evidence in such situations. Such statements are relevant whether the person who made this was expecting death or not. As a piece of evidence, dying declaration is now fairly crystal clear by judicial decisions. The importance of dying declaration as a piece of convincing evidence is increasing with the escalation of cases, wherein the Dying declaration laid the foundations for prosecution. Notwithstanding that there may be no direct and ocular evidence to prove a crime, a dying declaration may be selfspeaking and prove much more than eye-witnesses could depose. Truly said, men may lie but not the circumstances. It is as good as any other piece of evidence and it is sacrosanct. The evidence with regard to a dying declaration must be very carefully and critically scrutinized, as the accused has no opportunity to challenge such statement by way of cross-examination. Great sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies, but the court must be satisfied that the deceased was in a fit state of mind to make the statement. The evidence furnished by the dying declaration must be considered by the court just as the evidence of any other witness, though undoubtedly some special considerations arise in the assessment of dying declaration, which do not arise in assessing the value of statement made in court by a person claiming to be a witness of the occurrence. A dying declaration can be accepted only if the court feels certain that the witness before the court has given the evidence is thoroughly reliable and that there is no infirmity in his evidence. The court must be circumspect and cautious in evaluating the worth of such statements. It has to be established beyond any reasonable doubt that the maker of the dying declaration had the opportunity to identify the assailants. The truthfulness, reliability and the acceptability of the dying declaration has to be adjudged in the light of the attendant facts and circumstances of each case and it has to be subjected to strict scrutiny like any other piece of evidence, either direct or circumstantial. It is the duty of the person recording a dying declaration to take every possible question to ensure the making of a free and spontaneous statement by the declarant without any prompting, suggestion or aid from any other justice. The Judicial Magistrate, medical officer and police officials must all realize that the welfare of the injured person should be their first consideration, and in no

circumstances must be proper medical treatment be impeded or delayed simply to obtain the dying declaration of the injured person. It has been accepted, that there is a tendency among persons dying to implicate all their enemies who may have had nothing to do with the offence. The courts in India have, therefore, accepted that one must be very careful in relying on dying declarations. But besides such a precaution, there are a lot of other safeguards to make sure that dying declaration recorded is credible enough and is not cast by any shadow of doubt. In order to bring dying declaration to a higher footing as it is now, the provision for compulsory audio and video recording of the dying declarations should be introduced and made mandatory. This would provide more credibility to the dying declaration and confusion as to the name of the accused or any other particulars, which are missed due to the fact that the declarant uses symbols or gestures to put forward the declaration, would be easily catered to. Ordinarily, a dying declaration is entitled to much weight, considering the situation that it was like a message from the grave. The possibility of imminent danger gives sanctity to the whole matter. At the same time, however, the courts should not take it as a rule of universal application that death is the surest rectifier. Human Psychology in spite of some modem advancement remains buy and large an uncharted region and fathomless sea. The shocks and responses of the different persons vary according to the mental frameworks of the persons concerned. If circumstances are placed, which tend to show that the dying declaration would not be true, then the court also should not confidently rely on the dying declaration.

BIBLIOGRAPHY Books 1. Brewer, Scott, Logic, Probability, and Presumptions in Legal Reasoning, Routledge, London, 2011. 2. Gupta, Dr. H.R., Desai’s Law Relating to Confession and Dying Declaration, Dwivedi Law Agency, Allahabad, 2006. 3. Lal, Batuk, The Law of Evidence, Central Law Agency, Allahabad, 2012.

4. Rao, S.V. Joga, Sir John Woodroffe & Syed Amir Ali’s Law of Evidence, Buttersworth India, New Delhi, 2002. 5. Sarkar, S.C., Sarkar’s Commentary on the law of Evidence, Dwivedi Law Agency, Allahabad, 2007. 6. Sharma, Anil Kumar, S.K. Shanglo’s Law of Dying Declaration, The Law Book Co. (P) Ltd., Allahabad, 1996. 7. Stephen, Sir James Fitzjames, A History of Criminal Law of England, Macmillan and Company, London, 1883. 8. Tripath, A.K., Supreme Court on Law of Evidence, Vaibhav Law Publications, Allahabad, 2007. 9. Wigmore, John Henry, Evidence In Trials At Common Law, Little brown and Company, New York, 1974.

Journals 1. Liang, B. A., Lies on the Lips: Dying Declarations, Western Legal Bias, and Unreliability as Reported Speech, Law Text Culture 5(2) (2000). 2. Orenstein, Aviva, Her Last Words: Dying Declarations And Modern Confrontation Jurisprudence, University of Illinois Law Review (2010).

Statutes 1. Code of Criminal Procedure, 1973. 2. Indian Penal Code, 1860.

Indian Evidence Act, 1872.

Smith, Howard L. "Dying Declarations." (1924).

Nesson, Charles. "The evidence or the event? On judicial proof and the acceptability of verdicts." Harvard Law Review (1985): 1357-1392. Cribari, Stephen J. "Is Death Different-Dying Declarations and the Confrontation Clause after Crawford." Wm. MitDraper,

F. W. "Criminal Abortion, with a Dying Declaration." The Boston Medical and Surgical Journal 141.19 (1899): 461-463.chell L. Rev. 35 (2008): 1542.

Reagan, Leslie J. "" About to Meet Her Maker": Women, Doctors, Dying Declarations, and the State's Investigation of Abortion, Chicago, 1867-1940." The Journal of American History 77.4 (1991): 1240-1264. Prasad, D. (1983). A Case of Double Dying Declaration in a Dowry Death. CBI Bulletin, 17(7), 1-3.

Younger, Irving. "Confrontation and Hearsay: A Look Backward, A Peek Forward." Hofstra L. Rev. 1 (1973): 32. Morgan, Edmund M. "The Hearsay Rule." Wash. L. Rev. & St. BJ 12 (1937): 1.

Quick, Charles W. "Some Reflections on Dying Declarations." Howard LJ 6 (1960): 109.

Spencer, Carlton E. "Dying Declarations in Civil Cases." Or. L. Rev. 9 (1929): 174.

Bailey, Cara J., Roger Murphy, and Davina Porock. "Dying cases in emergency places: caring for the dying in emergency departments." Social science & medicine 73.9 (2011): 1371-1377. Polelle, Michael J. "The Death of Dying Declarations in a Post-Crawford World." Mo. L. Rev. 71 (2006): 285.