LEGAL SHORTS: Dying Declaration- Law and Important Judgments

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January 24, 2018

The term “dying declaration” has not been rendered an exclusive definition. However, in general words it is a legal concept referring to an oral or written statement by a person on the point of death concerning the cause of his death.

Section 32 of Indian Evidence Act, 1872

The admissibility of dying declaration has been explained under Section 32 of the Indian Evidence Act, 1872 which states that such a statement can be proved when it is made by a person as to the cause of his death, or as to any of the circumstances of transaction which resulted in his death. The statement will be relevant in every case or proceeding in which the cause of that person’s death comes into question.

Important judgments on Dying Declaration

Now we will discuss some essential cases and judicial dictum which aid in streamlining the legal concept of dying declaration under the Indian Law:

Emperor v. Mohammad Sheikh[1]An information lodged by a person who died subsequently relating to the cause of his death, is admissible in evidence under Section 32 (a) of the Indian Evidence Act, 1872.

Apprehension of Death not necessary

Sharad Bhirdichand Sarda v. State of Maharashtra[2] Under Indian law it is not necessary that the declarant should be under any expectation of death i.e. apprehension of death is not necessary nor it is important that statement shall be made to a magistrate[3]. If the declarant has infact died and the statements explains the circumstances surrounding the cause of his death the statement will be relevant even if no cause of death had arisen at the time of making of the statement[4]. In the case of Kans Raj v. State of Punjab[5], the Apex Court stated that Section 32 (a) of the Indian Evidence Act, 1872 does not require that the statement sought to be admitted in evidence should have been made in immediate expectation of death.

Machhi Singh v. State of Punjab[6]Where statement made to Police when injured was making good recovery was treated as dying declaration when he died.

Corroboration of Dying Declaration

There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration[7]. If the Court is satisfied that the dying declaration is true a d voluntary it can base conviction on it, without corroboration[8]. However, where dying declaration is suspicious it should not be acted upon without corroborative evidence[9].

In the case of Ram Manorath v. State of U.P.[10], the Supreme Court observed that a dying declaration that suffers from infirmity cannot form the basis of conviction.

Can a brief dying declaration be discarded as evidence?

The Supreme in the case of Surajdeo Oza v. State of Bihar[11], answered this question in the negative and held that merely because dying declaration is a brief statement it is not to be discarded. On the contrary, the shortness of the statement itself guarantees the truth.

The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tottering prompting of imagination and the deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration[12].

Eyewitness prevails over Medical opinion

In the case of Nanuhau Ram v. State of Madhya Pradesh[13], the Supreme Court opined that normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.

Time factor between statement of dying declaration and death

In several cases the Courts have settled the legal proposition that there has be a proximate relationship between the statement and the circumstance of death. For instance in the case of Sharad Bhirdichand Sarda v. State of Maharashtra (supra), the declarant i.e. a married woman had been speaking to her parents and other relatives and also writing to them expressing the danger to her life. She lost her life three or four months after that. The Court held that the statement and time of death were not too remote in time from the point of death. In this case, the Court also held that Section 32 (a) of the Indian Evidence Act, 1872 is applicable to cases of suicide also.

Dying declaration would not lose its value on the ground that the deceased survived long after making dying declaration[14].

Dying Declaration is a substantive evidence

In the case of Ram Bihari Yadav v. State of Bihar[15], recognized dying declaration as a substantial piece of evidence while opining that though dying declaration is an indirect evidence being a specie of hearsay evidence, yet it is an exception to the rule against admissibility of hearsay evidence. The Court stated that it is a substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused.

 

[1] (1942) 2 Cal 144

[2] (1984) 4 SCC 116

[3] Kulwant Singh v. State of Punjab, AIR 2004 SC 2874

[4] Bhagirath v. State of Haryana, (1977) 1 SCC  481

[5] AIR 2000 SC 232

[6] AIR 1983 SC 957

[7] Munna Raja v. State of M.P., 1976 (3) SCC 104

[8] State of U.P. v. Ham Sagar Yadav, 1985(1) SCC 552

[9] Rasheed Begam v. State of M.P., 1974(4) SCC 264

[10] (1981) 2 SCC 654

[11] AIR 1979 SC 1505

[12] K. Ramchandra Reddy v. Public Prosecutor, 1976(2) SCC 618

[13] AIR 1988 SC 912

[14] Najjam Faraghi v. State of W.B., AIR 1998 SC 682

[15] AIR 1998 SC 1850