A MAN WILL NOT MEET HIS MAKER WITH A LIE IN HIS MOUTH – OVERVIEW OF DYING DECLARATION IN INDIA

 

AUTHORED BY – MARTIN JEYA PRAKASH V Y[1]

CO AUTHOR – LOKA C. THLAIVANAR[2]

 

 

ABSTRACT:

Dying declarations hold significant importance in the Indian legal system, providing insight into the circumstances surrounding a person's death. This paper provides an overview of dying declarations in India, covering their definition, admissibility, key considerations, and exceptions to the rule against hearsay. Section 32(1) of the Indian Evidence Act, 1872, governs the admissibility of dying declarations, emphasizing the importance of the declarant's mental state and the circumstances leading to their death. The paper discusses the forms of dying declarations, who may record them, and key information to consider before recording. It also examines the admissibility and inadmissibility criteria, along with leading case laws illustrating their application. The distinction between Indian and English law on dying declarations is highlighted, showcasing India's broader scope of acceptance for statements related to the circumstances of death. The research emphasizes the significance of corroborative evidence and the declarant's mental state in determining the validity of dying declarations. Overall, dying declarations serve as crucial evidence in Indian courts, allowing the deceased to speak beyond the grave and contribute to the pursuit of justice.

 

Keywords: Dying Declaration, Admissibility, Indian Evidence Act, Hearsay Rule.

 

 

 

INTRODUCTION:

Dying declaration is bases on the maxim "Nemo Moriturus Praesumitur Mentire" i.e. a man will not meet his maker with a lie in his mouth. A deathbed declaration is a statement made by a deceased person regarding the circumstances surrounding the transaction that led to their death or the reason of their death. The Indian Evidence Act's Section 32(1) addresses deathbed declarations. Even if a deathbed declaration was not made under oath and the maker cannot be cross-examined, it is nonetheless admissible as evidence. There is an exemption to the hearsay prohibition. This exemption as such goes all the way back to the first part of the eighteenth century, when the hearsay rule was beginning to be applied in a methodical and rigorous manner. The use of deathbed declarations is likely a custom that predates the development of the evidentiary system in the 1500s. The concept of necessity and the religious beliefs of the past determine whether a deathbed declaration is admissible as significant evidence. The reason for this requirement is that the goals of justice may be undermined if the victim—who may be the only eyewitness to the crime—is excluded from the statement. The religious justification for their validity stems from the conviction that a man's mental state of nearing death is akin to that of a virtuous and conscientious person under oath—nemo moriturus praesumuntur mentiri.

 

DEFINITION OF DYING DECLARATION:

As per Section 32 (1) of the Indian Evidence Act, a statement made by an individual concerning the reason of their death or any circumstances associated with the incident that resulted in their death is deemed significant in situations where the cause of their death is under scrutiny. The aforementioned remarks hold significance irrespective of the outcome of the legal action and even if the speaker is no longer with us.  In a court of law, the remarks made by the deceased are admissible as evidence. A person who is about to die is believed to speak the truth, according to the Latin adage "Nemo Mariturus Presumuntur Mentri," which lends credence to this. That is, one expects the truth from a dying person, who is thought to be truthful. Thus, in order to hold the guilty party accountable, a deathbed statement is acceptable as proof in court.[3]

 

 

HOW DYING DECLARATION SHOULD BE?

A Deathbed Pronouncement might take many different forms. On the other hand, questions and answers are the most effective way to make a final statement. But if a patient provides a dying statement by questions and answers, care should be taken to ensure that the patient provides exactly the questions and answers that are documented in writing.

A dying declaration may be in the following forms:

1. Textual format:
2. Oral format;
3. Signs and gestures take shape. In the legal case of "Queen v. Abdulla"[4] it was decided that an injured individual might respond to a question with signs and gestures if he was unable to talk.
4. Even if a person is incapable of speaking or writing, they can still make a legal death statement by nodding in the yes or no direction.
5. Ideally, it should be written in the vernacular that the patient is conversant in.
6. Narrations may be used as a final pronouncement. When a deathbed pronouncement is captured in the form of a narration, the speaker is speaking spontaneously and entirely from their own thoughts.

 

OBJECTS:

1. The presumption is " a person who is about to die would not lie".
2. It is also said that Truth sits on the lips of a person who is about to die".
3. The victim is exclusive eye witness and hence such evidence should not be excluded.

 

WHO MAY RECORD A DYING DECLARATION?

1. It is best that it is recorded by the magistrate.
2. If there is no time to call the magistrate, keeping in view the deteriorating condition of the declaration, it can be recorded by anybody.
3. It cannot be said that a dying declaration recorded by a police officer is always invalid.
4. If any dying declaration is not recorded by the competent Magistrate, it is better that signatures of the witnesses are taken who are present at the time of recording it.[5]

 

KEY INFORMATION TO KEEP IN MIND PRIOR TO RECORDING DYING DECLARATION:

1. At the beginning of the recording and until the end of the recording of the dying declaration, the declarant was in a fit state of mind to make the statement.
2. A doctor's certification of the declarant's fit state of mind is the most reliable.
3. However, if additional witnesses attest to the declarant's mental state and that it did not preclude him from making a dying declaration, the dying declaration retains its whole sanctity in the event that the doctor's certification of fitness could not be obtained.
4. It must not, however, be influenced by others or prepared by guidance, inspiration, or coercion. Any last will and testament that raises questions has to be verified.
5. A declarant's whole value is retained if they made several death statements and if they do not fundamentally differ from one other. Such deathbed pronouncements become meaningless if they are inconsistent or conflicting.

 

ADMISSIBILITY OF DYING DECLARATION:

`Dying declarations are seen as reliable and trustworthy evidence because most persons who are aware that they are going to die are thought to be honest. Because hearsay is inherently untrustworthy, it is not permitted to be used in court proceedings if it is produced by someone other than the witness who is repeating the statement. A final will and testament, however, is exempt.

 

In most cases, it is introduced by the prosecution, although the accused may also utilize it. An admissible dying declaration primarily stems from the fact that the deceased cannot be called upon. As long as a deathbed pronouncement inspires trust in the Court and is devoid of any kind of guidance, it doesn't need to be verified.

 

The admissibility of a dying declaration was discussed in the case of Uka Ram v. State of Rajasthan.[6] The court held that a dying declaration is admissible if it is made in an extreme situation, when the maker has reached the end of his life and all hope is lost, and if all motives for lying are silenced and the mind is persuaded to speak only the truth. "A dying man seldom lies," according to Indian law.

 

Laws outlined below govern the acceptability of deathbed declarations and their requirements:

Section 32(1) of the Indian Evidence Act, 1872 explains the concept of a dying declaration. It is one of the exceptions to the general rule outlined in Section 60 of the Evidence Act, 1872, which states that oral evidence must always be direct—that is, it must be testimony. A deathbed declaration is admissible in court even if it was not made under oath and the maker is not subject to cross-examination.

 

To be admitted in court, a dying declaration must have the following elements:

1. The last individual making this proclamation needs to pass away.
2. The final statement must not be lacking anything.
3. It needs to be completed freely and without any additional pressure.
4. At the very least, the events leading up to the deceased's death must be recounted, along with the cause of death.
5. When making a final statement, the declarant has to be aware of what is going on around him.
6. The individual ought to be mentally sound.
7. One should inquire about a person's reason of death.[7]

 

INADMISSIBILITY OF DYING DECLARATION:

1. When the person making a dying declaration does not die, then his statement is inadmissible as dying declaration. But such statement can be used to test his veracity a as witness when examined a as witness.
2. When the cause of the death of the person who makes the dying declaration is not in question, then the dying declaration is inadmissible.

For example, When the subject of inquiry is the death of other person or some other matter, the dying declaration in inadmissible.

1. If the death is not due to the injuries to the person who has made the dying declaration but due to some other independent cause like fever, etc., then the dying declaration is not admissible.

For example, if a woman is raped and if she makes a statement about rape and afterwards if she commits suicide, then her statement regarding rape is inadmissible.

The reason is that the statement is about rape and not about the cause of her death. (The death is due to suicide).

 

MULTIPLE DYING DECLARATION:

The Supreme Court has consistently ruled on the reliability of multiple dying declarations. There are two types: consistent multiple dying declarations and inconsistent multiple dying declarations. Inconsistent multiple dying declarations require careful consideration by the court. Inconsistencies may be reconcilable, but if they are incriminatory and detail incriminating, the court will look to the record to determine which declaration to rely on unless proven unreliable. In cases where inconsistencies are incriminating, the court will look to the material on record to determine which declaration to rely on.[8]

 

DYING DECLARATION: EXCEPTION TO RULE

AGAINST HEARSAY:

Hearsay is defined by Black's Law Dictionary as "A statement offered in evidence to prove the truth of the matter asserted, other than one made by the declarant while testifying at the trial or hearing." Hearsay evidence is testimony provided in court based on an assertion made outside of court that is presented as proof of the veracity of the claims made there and is thus dependent on the veracity of the person making the statement outside of court."[9]

 

Hearsay rules usually prohibit the use of remarks made outside of court as proof of the veracity of the claims made in those statements. Because the individual providing this proof is recounting the account of someone else rather than his own. One of the exceptions to the hearsay prohibition is a declaration made while dying. The primary motivation behind the hearsay rule's exemption for dying declarations is need. In other cases, when the deceased individual was the only witness to the crime, the fundamental objective of justice will be lost if this evidence is not taken into consideration. 15. Because circumstances may occur in which an individual would have been fired at or suffered fatal injuries when no one else was there. In many cases, it would be a miscarriage of justice to release the accused simply because no one saw the crime. In order to prevent circumstances such as the one mentioned above, the prohibition against hearsay has been lifted.

 

DISTINCTION BETWEEN INDIAN AND ENGLISH LAW UNDER DYING DECLARATION:

A Dying Declaration is a declaration made by a deceased individual outlining the circumstances surrounding his passing. One may define it as a declaration made by a person who has suffered a fatal injury, outlining the person who caused the damage and/or the events leading up to it. However, when it comes to the form and extent of dying declarations, Indian law differs significantly from English law, which only permits remarks that are directly related to the cause of death. The distinction between the Indian and English rules regarding the need that the proclamation be made with the anticipation of death has long since been established.

 

This distinction between the Indian Evidence Act and English law depicts the following observations:

1. According to clause (1) of Section 32 of the Indian Evidence Act, a deceased person's written or spoken statements of pertinent facts about the circumstances of the transaction that led to his death are also considered relevant facts when the statement relates to the reason for the person's death. In contrast to Indian law, which does not require that the deceased have been under the expectation of death when making a dying declaration, English law requires the declaration to have been made with the awareness of impending death (AIR 1960 Punjab 310: 1960 Cri LJ 851).
2. The English Law (AIR 2000 SC 2602) does not contain the second half of Clause (1) of Section 32 of the Indian Evidence Act, which reads, "the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question".

In contrast to English law, Section 32 does not stipulate that a declaration of this nature has to be made with the prospect of death. The deceased victim's statement is admissible if it relates to the reason for his death or any aspects of the transaction that led to his demise. It is necessary for the phrase "as to any of the circumstances of the transaction which resulted in his death" to exist in Section 32 to be somewhat related to the actual event. Stated otherwise, the statement made by the dead about the reason for his death or the details of the transaction that led to it needs to be adequately or closely related to the transaction itself. The legal dictum "Nemo Moriturus Praesumitur Mentire," which states that "a man will not meet his Maker with a lie in his mouth," must be taken into consideration while weighing a deathbed pronouncement. The individual or the organisation depending on the statement must legally demonstrate that the statement was made as fact in order for it to be considered substantial evidence. Should it be written down, the scribe has to appear in court; if it was said, the testimony of the person who heard the dead provide it should be used as proof. However, the prosecution is allowed to use supplementary evidence in situations where it is established that the original recorded deathbed declaration was misplaced or unavailable.[10]

 

LEADING CASE LAWS:

1. Patel Hiralal Joitaram Vs. State of Gujarat:[11]

The deceased was burnt and she died of the burn injuries. In her dying declaration which contained statements regarding the person who tortured her, she gave a wrong name of the father of the accused, but after investigation, she clarified the correct name of the father of the accused. It was held that her statements were admissible as substantive evidence. In this case, the Supreme Court interpreted the meaning of the words 'statements as to any of the circumstances of the transaction which resulted in his death' in the context of dying declaration.

 

1. Khusal Roa Vs. State of Bombay:[12]

The Supreme Court laid down the following rules regarding the evidenciary value of dying declaration.

• The dying declaration may be about one person who caused his death or about several persons who caused his death.
• The dying declaration need not be corroborated (adducing additional evidence). Conviction based purely on the evidence of dying declaration is quite valid.
• Dying declaration is strong evidence as any other evidence.
• The validity of dying declaration is determined according to the nature and circumstances of each case.
• A dying declaration recorded by a Magistrate is a stronger evidence than dying declaration made before private persons.
• The reliability of evidence of dying declaration depends on the circumstances like opportunity and time for the dying man to observe the things around him, the ability to speak, etc.
• The principles governing ordinary evidence is applicable to the evidence of a dying declaration.
• A dying declaration may be oral or written.
• Dying declaration may be proved by the evidence of the witness to whom it was made or who heard the dying declaration.
• The person (deceased) giving dying declaration should be in a fit state of mind and capable of making statement when such dying declaration was made or recorded.

 

1. Arvind Singh Vs. State of Bihar (2001):[13]

In this case, the deceased had burn injuries very extensively including her mouth and she was medically certified to live only for ten minutes. The Police were brought first and only then the mother of the deceased arrived. The mother contended that the deceased gave a dying declaration to her alone that her husband, father-in-law, brother-in-law and mother-in-law poured kerosene on her to burn her alive. This statement or declaration alleged by the mother of the deceased was not accepted as the deceased was not in a fit condition to give any declaration.

 

1. Pakala Narayanaswamy Vs. King Emperor:[14]

The deceased received a letter from Pakala Narayanaswamy's wife on 20th March. She had invited him to their house. The deceased told his wife that he was going to Narayanaswamy's house on 21 March as per the letter written by Narayanaswamy's wife. On 23rd in Puri railway station, the dead body of the deceased was found in a carriage. Pakala Narayanaswamy was suspected and arrested. The deceased's wife gave evidence of his (her husband's) statement that he was proceeding to Narayanaswamy's house on 21st . It was objected by Narayanaswamy that the statement was only hearsay evidence and not dying declaration. But the Court held that the statement was dying declaration, because it stated about the circumstances of the transaction which resulted in his death. So, a statement made, before the deceased receives any injury, or before the cause of death has arisen or before the deceased had any reason to anticipate being killed is also admissible as a dying declaration.

 

1. Herban Singh Vs. State of Punjab:[15]

Herban Singh and 5 others were charged for the murder of the 2 brothers. The dying declaration of one of the deceased disclosed the name of 6 persons. There was one corroborative evidence apart from the dying declaration. The Sessions Judge acquitted all the 6 persons. But in the High Court, Herban Singh and another were convicted and the others acquitted In the Supreme Court. Herban Singh alone was convicted and the other was acquitted upon the facts of the case. The Supreme Court held that the dying declaration may name one person or many persons; even then it is valid.

 

1. Ramachandra Reddy Vs. Public Prosecutor:[16]

In this Case the court held that the FIR (First Information Report) can be taken as a Dying Declaration if the person is not Alive.

 

Multiple Dying Declaration Case Law:

1. Sayarabano Vs. State of Maharashtra:[17]

In this Case, the Dying Declaration had been recorded 2 times from the Victims and it is also accepted by the Court of Law.

 

1. Nirbaya Gang Rape Case:[18]

In this Case, the Dying Declaration had been collected 3 times from the Victims and it helps to find out the offenders and finish the case.

CONCLUSION:

Dying declarations are a crucial aspect of the Indian legal system, allowing the deceased to speak from beyond the grave and provide insight into their circumstances. They are admissible as evidence under Section 32(1) of the Indian Evidence Act, 1872, even if not made under oath or subject to cross-examination. The recording process is crucial, with the declarant's mental state being paramount. Multiple dying declarations are recognized, with consistency lending weight to their credibility. Exceptions to the rule against hearsay exist, particularly when the victim is the sole eyewitness to the crime. However, there are instances where dying declarations are inadmissible, such as when the declarant does not die or the cause of death is not in question. Indian law on dying declarations differs from English law, allowing for a broader scope of statements related to the circumstances leading to death. Leading case laws emphasize the need for corroborative evidence and the declarant's state of mind.

 

REFERENCE:

1. MARTIN JEYA PRAKASH V Y STUDENT OF TAMILNADU DR AMBEDKAR LAW UNIVERSITY (SOEL), CHENNAI, (EMAIL: itsmartin2001@gmail.com ; Mobile no - 8925166839)
2. LOKA C. THLAIVANAR STUDENT OF PONNAIYAH RAMAJAYAM INSTITUTE OF SCIENCE & TECHNOLOGY (PRIST) SCHOOL OF LAW – MADURAI CAMPUS (EMAIL – lokathlaivanar@gmail.com ; Mobile no - 8838747205)
3. https://lawbhoomi.com/evidentiary-value-of-a-dying             declaration/#Definition_of_Dying_Declaration
4. 5ILR 7 385     
5. https://www.drishtijudiciary.com/to-the-point/ttp-indian-evidence-act/dying-declaration     
6. AIR 2001 SC 1814
7. https://sociallawstoday.com/admissibility-of-dying-declaration/#_ftn2
8. https://www.drishtijudiciary.com/to-the-point/ttp-indian-evidence-act/dying-declaration        
9. Dying Declaration, at http:/www.lawyersclubindia.com/articles     
10. https://www.intolegalworld.com/article?title=what-is-the-distinction-between-english-law-indian-law-of-dying-declaration         
11. AIR 2001 SC 2944
12. AIR 1958 SC 22
13. AIR 2001 SUPREME COURT 2124, 2001 (6) SCC 407
14. [1939] 1 MLJ 59
15. 1962 AIR 439, 1962 SCR SUPL. (1) 104, AIR 1962 SUPREME COURT 439
16. 1976 AIR 1994, 1976 SCR 542, AIR 1976 SUPREME COURT 1994
17. AIR 2017 SC 4609
18. (2017) 6 SCC 1

 

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[1] MARTIN JEYA PRAKASH V Y STUDENT OF TAMILNADU DR AMBEDKAR LAW UNIVERSITY (SOEL), CHENNAI, (EMAIL: itsmartin2001@gmail.com ; Mobile no - 8925166839)

[2] LOKA C. THLAIVANAR STUDENT OF PONNAIYAH RAMAJAYAM INSTITUTE OF SCIENCE & TECHNOLOGY (PRIST) SCHOOL OF LAW – MADURAI CAMPUS (EMAIL – lokathlaivanar@gmail.com ; Mobile no - 8838747205)

[3] https://lawbhoomi.com/evidentiary-value-of-a-dying-declaration/#Definition_of_Dying_Declaration

[4] 5ILR 7 385

[5] https://www.drishtijudiciary.com/to-the-point/ttp-indian-evidence-act/dying-declaration

[6] AIR 2001 SC 1814

[7] https://sociallawstoday.com/admissibility-of-dying-declaration/#_ftn2

[8] https://www.drishtijudiciary.com/to-the-point/ttp-indian-evidence-act/dying-declaration

[9] Dying Declaration, at http:/www.lawyersclubindia.com/articles

[10] https://www.intolegalworld.com/article?title=what-is-the-distinction-between-english-law-indian-law-of-dying-declaration

[11] AIR 2001 SC 2944

[12] AIR 1958 SC 22

[13] AIR 2001 SUPREME COURT 2124, 2001 (6) SCC 407

[14] [1939] 1 MLJ 59

[15] 1962 AIR 439, 1962 SCR SUPL. (1) 104, AIR 1962 SUPREME COURT 439

[16] 1976 AIR 1994, 1976 SCR 542, AIR 1976 SUPREME COURT 1994

[17] AIR 2017 SC 4609

[18] (2017) 6 SCC 1