1

“Nemo moriturus praesumitur mentire”

( a man will not meet his maker with a lie in his

mouth)

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. The statements made by a person as

to the cause of his death or as to circumstances of the

transaction resulting in his death is called a dying

declaration. Section 32(1) of the Indian Evidence Act

talks about dying declaration.1 A dying declaration is

admissible in evidence even though it has not been

given on oath and the person making it cannot be cross-

examined. It is an exception to the rule against

hearsay. This exception, as such dates back as far as

the first half of the 1700s, — the period when the

hearsay rule was coming to be systematically and

strictly enforced.2 The custom of using dying

declaration probably comes down as a tradition long

1 .S. 32(1) of the Indian Evidence Act provides that a statement by a person since deceased, as to the cause of his death or any of the circumstances of the transaction that resulted into his death is relevant, irrespective of the proceedings in which the cause of his death comes into question.

2 .AshutoshSalil, “An Analysis of Indian and English Position of Dying Declaration’ J 297,Cri.L.J.2005.

2

before the evidence system arises in the 1500s.3

Admissibility of a dying declaration as a relevant

piece of evidence is guided by the principle of neces-

sity and religious belief of the olden days. The

necessity being, that in cases, where victim is the

only eye-witness to the crime, the exclusion of his/her

statement might defeat the ends of justice. The

religious sanction behind their admissibility comes

from the belief in the fact, that a sense of impending

death produces in a man's mind the same feeling as that

of a conscientious and virtuous man under oath-nemo

moriturus praesumuntur mentiri.4

Record of dying declaration

Main thing is that if these declarations seem

trustworthy to courts these retain their full values.

Most important point of consideration is that victim

was in fit condition of mind to give statement. Merely

stating that patient was fit will not serve the

purpose. This can be best certified by doctor who knows

condition of patient. In N Ram v State5 it is stated dying

declaration have full sanctity if there are other

witnesses to testify that victim was in such a3 .Id.4 .Sudipto Sarkar& V. R. Manohar, Sarkar on Evidence, 15th edn., vol.

l.Wadhwa and Co., Nagpur, 1999, p. 633.5 AIR 1988 SC 912.

3

condition of the mind which did not prevent him from

making statement. Medical opinion cannot wipe out the

direct testimony of the eyewitness.

If a person has made more than one dying

declaration and if these are not at variance with each

other in essence they retain their full value.

It is best that it is recorded by magistrate but if

there is no time it can be recorded by anybody like

doctor or other. Courts discourage the recording of

dying declaration by the police officers but if there

is nobody else to record it considered by the courts.

As a measure of safety original dying declaration

should be sent to the magistrate like FIR.6

In state of Punjab v kikarsingh7 First information

report got recorded by th police has been taken as

dying declarartion by the court, when the person did

not survive to get his dying declaration recorded. But

when the patient remained admitted in hospital for

sufficient days FIR cannot be treated as dying

declaration.

It is perfectly permissible to reject a part of

declaration if it is found to be untrue and if it can

be separated.

6 State of karnatka v shivalingappa,2001(4) RCR(criminal) 237.7 2002(3) RCR (criminal) 568.

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Dying Declaration: An Exception to the Rule Against

Hearsay

Black's Law Dictionary defines hearsay 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. Hearsay evi-

dence is testimony in Court of a statement made out of

the Court, the statement being offered as an assertion

to show the truth of matters asserted therein, and thus

resting for its value upon the credibility of the out

of Court asserter."8

The hearsay rule generally disallows the use of out

of Court statements as evidence of the truth of the

matters asserted in that statement. Because the

person who is giving this evidence is not telling

his experience but that of another person. Dying

declaration is one of the exceptions to the rule

against hearsay. The main guiding reason for making

dying declaration an exception to the hearsay rule

arises out of necessity. If this evidence not

considered very purpose of justice will be

forfeited in certain situation when there may not

be any other witness to the crime except the person

who has since died.9. Since, there might arise8 . Dying Declaration, at http:/www.lawyersclubindia.com/articles9 Dr. R. K. Gorea, “Critical Appraisal of Dying Declaration”JIAFM,

5

situations where someone would have been shot at or

inflicted with fatal injuries while no one was

around. In such situations to let the accused go

free just because there was no witness to the crime

would result into miscarriage of justice. Hence, to

avoid situations like above dying declaration has

been made an exception to the rule against hearsay.

Distinction Between Indian and. English law:

• Sense of Impending Death

The law relating to dying declaration in India and

England differs significantly. In England a dying

declaration should have been made under the sense of

impending death, i.e.; the person making it should have

given up all hopes of living (Settled hope less

expectation of death).10 Whereas a dying ' declaration

in India is relevant whether the person who made it was

or was not, at the time it was made under the

expectation of death. Thus, in India it is immaterial

whether there existed any expectation of death at the

time of the declaration. In R v. Jenkins11 the deceased made

a statement implicating the accused. Her dying declara-

tion included the words that it was made 'with no hope2004, 26(1).

10 Avatar Singh “Principles of the Law of Evidence,16th ed.2007,Central Law Publication.

11 .(1869) LR 1 CCR 187.

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of my recovery'. While it was being read to her she

sought to amend the same and asked to add 'present'

before hope. Thus, her dying declaration contained the

words that it was made 'with no present hope of my

recovery'. The Court held, that the statement could not

be received in evidence since, at the time of making it

the deceased I was not under settled hopeless

expectation of death and her dying declaration

suggested that at the time of making it she entertained

a faint hope of recovery.

Had the same situation arisen in India, it would

have been admitted in evidence since in India any

statement made by a person (since deceased) as to the

cause of death circumstances of the transaction result-

ing in death of that person is admitted in evidence.

Thus, her statement implicating the accused would have

sufficed to make it admissible under Section 32(1) of

the Act. The problem with English position is that of

ascertaining the existence of knowledge of approaching

death. Since, this ascertainment is to be done by the

Judges depending upon the circumstances of each case;

it always leaves the possibility of subjectivity

creeping in.12

12 . Wigmore observes "in ascertaining generally the existence of a knowledge of' approaching death, Courts are now and ':, then making rulings at which common sense revolts. Moved either by declination to allow the slightest flexibility of rule in applying principles- to

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• Scope of Application

In England the admissibility of a dying declaration

is confined only to the cases of homicide whereas in

India a dying declaration will be admissible in any

case in which the cause of death of a person comes into

question. In R v. Mead13 the accused was charged with

perjury. He obtained an order for a new trial and shot

the deceased before it took place. A dying declaration

made by the deceased concerning the transaction out of

which the prosecution for perjury arose was rejected.

The Court held that the dying declarations are only

admissible where the death of the deceased is the

subject of the charge, and the circumstances of the

death are the subject of the declaration. For ex ample,

in India in a charge of rape, a woman's dying

declaration is admissible even if the death of the

deceased is not the subject-matter of the charge,

provided that the question of her death comes in charge

of rape. But, in England such dying declaration is not

admissible to prove rape.14 Since, in such cases, the

death of the deceased is not the subject-matter of the

charge.

circumstances or by a general repugnance to exceptions to the hearsay rule, they have recorded decisions which can only be desired by-laymen and repudiated by the profession." C.f; supra, note 2, p. 237.

13 . (1824) 2 B & C 605, c.f.; supra, note 8, p. 652.14 .Supra, note 4, p. 634.

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In India a dying declaration is admissible even in

civil suits also. Section 32(1) of the Act clearly

provides that such statements (i.e. statements as to

cause of death or as to any ............. his death)

are relevant whatever may be the nature of the proceed-

ings in which the cause of his death comes into

question. Thus, in India admissibility of a dying

declaration does not depend upon the nature of the

proceedings. But in England a dying declaration is

admitted in evidence only for the criminal cases and

that too it is restricted only to those cases where the

death is the subject-matter of the charge.15

• Evidentiary Value

Another distinction between Indian and English law

is with respect to evidentiary value to be attached to

a dying declaration. This difference was pointed out in

the case of Plus Jasunga S/oAkumu v. R.16 where the Court

emphasized that the weight to be attached to a dying

declaration recorded under S. 32(1) of the Act would be

less than the weight to be attached to a dying decla-

ration under common law rules. The reasoning behind

such observation was that the dying declaration under

S. 32(1) would lack that special quality that is

15 .Supra, note 4, p. 634.16 .(1954) 21 EACA 331, c.f., Nambhard v.The Queen, (1982) 1 All ER 183

PC.

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thought to surround a declaration made by a dying man

who was conscious of his condition and who had given up

all hopes of survival.

Competency Of The Declarant

Under the English law, the declarant must have been

competent as a witness; thus imbecility or tender age

will exclude the declaration. It is however doubtful

whether this rule is applicable in India, though there

can be no doubt that declaration of a person not

competent to be a witness will carry little weight.17 In

India, a child being a competent witness18, tender age

cannot be a ground for the exclusion of his/her

declaration. Judicial pronouncements in this area,

while recognizing competency of a child as a witness

have stressed on the need to evaluate their evidence

more carefully and with greater circumspection.19

Thus, there are significant differences between

Indian and English law in the area of dying

declaration. English law is not only rigid but also

narrower in its scope. The Law Commission Of England in

its 245th report on "Evidence in Criminal Proceedings :17 .M. Monir, “Law of Evidence” 7th ed. Universal Law Publishing Co.

Allahabad, 2006, p.123.18 .S. 118 of the Indian Evidence Act reads that "All persons shall be

competent to testify unless the Court considers that they are preventedfrom understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind."

19 .Panchhi v. State of U.P., 1998 Cri LJ 4044 (SC)

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Hearsay and Related Topics" has aptly commented that,20

"Apart from the dubious psychological foundation

for the exception, and the difficulty of proving that

the deceased had a settled hopeless expectation of

death, the principal illogicality of this exception is

its restriction to murder and manslaughter. It does not

apply to rape or armed robbery, but there is no logical

justification for such a restriction. It is also out of

step with the modern approach to res gestae, in which

the emphasis is rightly on probative value."

Relevance of Dying Declaration :

Basis of Dying Declaration : How Problematic?

Dying declaration is an important piece of evidence

and conviction can be based solely on a dying

declaration. Its admission in evidence is necessitated

by the fact that in many of the incidents of murder

there is usually no eye-witness except the injured

victim. Hence, if his statement about the circumstances

in which his death occurred is not admitted in evidence

during the criminal trial, then the only evidence of

crime would be lost resulting into miscarriage of

justice. Another ground, on which the admissibility of

dying declaration rests, is the belief that "truth sits

upon the lips of dying men."21 But, by para 2 of Clause20 .http :// www.lawcom.gov.uk/74.htm . 21 . NehaVijayvarigya, "admissibility Of Dying Declaration :Whether

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(1) of Section 32 of the Act, the very foundation from

which the sanctity of a dying declaration is born is

pulled out from its ethical and religious base and its

consequent evidentiary value.22 The paragraph makes it

very clear that the person making the declaration'

should not necessarily be under expectation of death.

Discarding the English principle of accepting a dying

declaration only when it is made under the settled

expectation of death, this section takes away the

sincerity of the statement that is desired.

The traditional argument that, the justification

for admitting a dying declaration derives from the

proposition that no one would wish to meet his maker

with a lie oil' his lips is slightly problematic in

today's context. It might continue to be true of some

God-fearing individuals, but in modern society it

carries little or no conviction where the majority of

citizens are concerned.23 Redfield, C.J., in Greenleaf,

Evidence, write! that a dying declaration is not

received upon any other ground than that of necessity,

Admission on the ground that the declarant was under

the most solemn sanction to speak the truth is far from

Justified”2006 (1) Cri.LJ, p. 177..22 .M.G. Amin, "Assumptions behind sanctity of dying declarations", (1995)

7 NLSJ, p. 88.23 .R. v. Lawson (Raymond), (1998) CriJ L.R. 883 (CA (Crim Div)), c.f.

www.westlawinternational.com

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presenting the true ground of admission. The chief

grounds of this exception in the law of evidence is the

presumption of there not being equally satisfactory

proof of the same facts, and the consequent probability

of crime going unpunished.24

The main problem with dying declaration is not so

much one of sincerity or faulty memory, but one of

perception. Motive of hatered and revenge may lead a

declarant to make false statements, even with the ap-

proach of death. The declarant may exhibit strong

feeling of hatred and revenge and if he is in such a

frame of mind, the supposed guarantee of

trustworthiness fails, and the' declaration should not

be admitted.25

Dying declaration has been subject to judicial

scrutiny on innumerable occasions; the need of relying

on a dying declaration has been questioned especially

in those cases where the killing was not secret and

there were other adequate testimony as to the

circumstances of the death.

• Evidentiary Value to be Attached to A Dying Declaration

There doesn't seem to be much controversy as far

as, the question of a dying declaration being a

significant piece of evidence is concerned. The24 .Supra, note 2. 25 .Supra, note 2.

13

divergent and conflicting Judicial opinion has been

with respect to value and importance to be attached to

dying declaration in basing the conviction of an

accused: The Courts in India have held time and again,

that a dying declaration before it could be relied upon

must pass a test of reliability, as it is a statement

made in the absence of the accused and there is no

cross-examination of the declarant to test its

genuinety or veracity. Thus, a dying declaration must

be subject to close scrutiny.26A dying declaration in

India stands on a different footing than in England.

Under the English law, credence and the relevancy of a

dying declaration is important only when person making

such statement is in hopeless condition and expecting

an imminent death.27 In India, the weight to be attached

to a dying declaration depends not upon the expectation

of death that is presumed to guarantee the truth of the

statement, but upon the circumstances and surrounding

under which it was made, and very much also upon the

nature of record that has been made of it.28

It is almost a question of fact whether a dying

declaration should be relied upon or not. In one of its

earliest judgments on dying declaration the Supreme26 .Supra note 17, p. 125.27 .I 25.Kishan Lai v. State of Rajasthan, 1999 CriLJ4070 (SC). 26. Supra,

note 18, p. 413.28 .Supra note 22

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Court had held that, it was not safe to convict an

accused on an uncorroborated dying declaration.29Since

then, the Supreme Court in a catena of cases has held

that conviction can be based on an uncorroborated dying

declaration provided that the Court has come to the

conclusion that it is true and voluntary. The most

significant being the case of Khushal Rao v. State of

Bombay30 where, the Supreme Court laid down several

propositions with respect to dying declarations and

these propositions till date continue to govern the law

relating to dying declarations. The Court held, that

there is no absolute rule of law that a dying

declaration cannot form the sole basis of conviction

unless it is corroborated, nor can it be said that a

dying declaration is a weak piece of evidence. The

Court further held that a dying declaration stands on

the same footing as another piece of evidence and has

to be judged in the light of surrounding circumstances

and with reference to the principle governing the

weighing of evidence. Speaking on the same line the

Supreme Court held in the case of Padmaben Shamalbhai Patel29 .Ram NathMadho Prasad v. State of M.P., AIR 1953 SC 420. (Even in this

case the above observation of the Court came in light of the fact that the deceased was shot at during a cloudy, dark night thereby making it highly impossible for him to recognize the person. Since, there was a possibility of the dying declaration not containing the truthful account of what happened, the Court insisted on the corroboration of the dying declaration.)

30 .AIR 1958 SC 22 : 1958 Crj LJ 106.

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v. State of Gujarat31 that, "a dying declaration is an

independent piece of evidence-neither extra strong nor

weak and can be acted upon without corroboration if it

is found to be otherwise true and reliable."

The position with respect to corroboration of a

dying declaration in India is similar to that in

England. The position being, that there is no absolute

rule of law that prevents an uncorroborated dying

declaration from being admitted in evidence. Courts

while admitting dying declarations need to do a great

balancing act between the rights of the accused and

ensuring delivery of justice. Since, the accused cannot

cross-examine declarant as to the truth of his/her

declaration; there arises need for a dying declaration

that will inspire full confidence of the Court in its

correctness.32

31 1991 SCC (1) 74432 .The Supreme Court in Paniben v. State of Gujarat, has summed up the

principles goverining dying declarations. Some of the important principles are as follow.(1) It is neither a rule of law nor prudence that a dying declaration cannot be acted upon without corroboration. If the Court is satisfied that the dying declaration is true and voluntary it can base a con-viction on it, without corroboration.(2) The Court has to scrutinize the dying declaration carefully and ensure that the declaration is not the result of tutoring, prompting orimagination and the deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.(3) Where a dying declaration is suspicious it should not be actedupon with out corroborative evidence.|4) Normally the Court in order to satisfy whether the deceased was ina fit state of mind while making dying declaration look up to the medical opinion. But, where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the

16

Section 32(1) of the Act makes it clear that the

declaration can be admitted only when the death of the

declarant comes into question. Such a construction

poses problems in many situations. For e. g. B and his

wife were shot at. Both of them died. Mrs. B. when

dying described the assailant. Her declaration was

excluded, because it was not her death but the death of

her husband that was the subject matter of the charge.

Wigmore calls this exclusion the senseless rule of

exclusion.33 In situation such as above the declaration

with respect to other person's death also need to be

admitted in order to prevent the miscarriage of

justice. The law commission of India, in its sixty-

ninth report on the Indian Evidence Act, 1872 observed

that the language of the Section is even now capable 1

a wider construction". Accordingly it recommended that,

an explanation II might be added to Sec. 32 (1) on the

following lines;

"The circumstances of the transaction which

resulted in the death may include facts relating to the

death of another pel son."34

* Procedures and Precautions :

Section 32(1) of the Act is silent about the person

medical opinion cannot prevail.33 Supra, note 2.34 .Supra, note 28, p. 375.

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to whom a dying declaration can be made and the mode of

making such a dying declaration. The same has rightly

not been provided since, for someone who is breathing

his last, it would be ridiculous to make him/her

undergo several procedures before he/she could get

his/her dying declaration recorded. But, the absence of

sued provisions gives rise to several questions, For

example, can a dying declaration made to the only

family member present at the time of killing be

believed? Can an investigation officer record a dying

declaration? Will the statement made to a magistrate

under Section 164 of the Code of Criminal Procedure

cover a dying declaration as well? What happens in

cases where there is no certification by the doctor to

the effect that the declarant was in a fit state of

mind while making the declaration? There cannot be

straight answers to such questions since, the

admissibility of a dying declaration is very fact

specific and to a great extent is determined by the

circumstances under which it was made.35

Section l62 (l) of the Code of Criminal Procedure

provides that any statement made to a police officer

during the course of investigation is inadmissible. But

Clause of the same section makes an exception in favour

35 Supra note 10.

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of dying declaration by providing that, the provisions

of this section shall not apply to statement falling

within the provisions of S. 32(1) of the Act. The

Courts have been hesitant to admit dying declarations

made to an investigation officer, for the obvious

reason that investigating officers being interested in

the success of investigation might tamper with the

dying declaration to tilt the balance in their favour.

The Supreme Court in the case of Dalip Singh v. State of

Punjab36has held that it is better to leave dying dec-

larations made to police officers- during instigation

out of consideration until and unless prosecution

satisfies the Court as to why it was not recorded by a

magistrate or doctor. It further held that such

declarations might be relied upon if there was no time

or facility for adopting the better method. Several

High Courts have also held that it is not prudent to

base conviction on a dying declaration made to an

investigating officer and the practice of the investi-

gating officer recording dying declaration should not

be encouraged.37

It all depends on the facts and circumstances of

the case. Thus, where the dying declaration recorded by

36 .AIR 1979 SC 1173 : 1979 Cri LJ 70037 .AtulGandhia v. State of Assam, 1990 Cri. L. J. 1049 (Gau), Babura v.

State of Rajasthan, 1993 Cr. L. J. 2696 (Raj)

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the police officer was natural, coherent, truthful,

narrating incident without embellishment and explicitly

identifying accused, such dying declaration was held to

be valid.38 But, where the investigating officer had

recorded the dying declaration even before the victim

was certified by the doctor to be fit for making a

statement and though the victim survived for two weeks

thereafter, the investigating officer made no efforts

to get this statements recorded by a magistrate, it was

held, that no reliance could be placed on such dying

declaration.39

In Rambai v. State of Chhattisgarh,40It was held that if the

person recording the dying declaration is satisfied

that the declarant is in a fit medical condition to

make a dying declaration then such dying declaration

will not be invalid solely on the ground that the

doctor has not certified as to the condition of the

declarant to make the dying declaration.

Similarly, there is no hard and fast rule that a

doctor's certificate as to the mental fitness of the

deceased is prerequisite for the admissibility of a

38 .I. L, R. (1979) 1 Del. 752, c.f; Deepak Arora, R. S. Dogra&Jaswant Singh, Law of Evidence, vol. 1 Madras Law journal, Madras, 1998, p. 516.

39 .Gulab Singh v. State, 1995 Cr. L. J. 3180 (Del)40 (2002) 8 SCC 33

20

dying declaration in evidence. A constitutional bench

of the Supreme Court in the case of Laxman v. State of

Maharashtra41 while rejecting the contention of the

appellant, that since the certification of the doctor

was not to the effect that the patient was in a fit

state of mind to make the statement, the dying

declaration could not form the sole basis of

conviction, held, that it cannot be said that since

there is no certification as to fitness of mind of the

declarant, the dying declaration is not acceptable. The

Court held that what is essentially required is that

the person who records a dying declaration must be

satisfied that the deceased was in a fit state of mind.

The Court further held that a certificate by doctor is

essentially a rule of caution and therefore, the

voluntary and truthful nature of the declaration can be

established otherwise. There might arise situations

where it would not have been possible to get a doctor,

thus a dying declaration recorded in such situations

cannot be rejected merely because there was no one to

certify the fact that the deceased was in a fit state

of mind while making the statement. In such situations

the Courts need not reject the dying declaration but

should subject it to strict scrutiny to verify the

41 .2002 Cri LJ 4095

21

truth and genuineness of its contents. Once the Court

is satisfied that the dying declaration was recorded

without deceased,being tutored, the same should be

accepted and relied upon.42Thus, a dying declaration

should not be rejected merely on the ground that

certain formalities were not complied with. As long as

it is truthful and voluntarily made it should be relied

upon.

In Smt. Paniben v. State of Gujarat,43the Supreme Court has laid

down in several principles governing dying declaration,

which could be summed up as under:

(i) There is neither rule of law nor of prudence that

dying declaration cannot be acted upon without

corroboration.

(ii) If the Court is satisfied that the dying

declaration is true and voluntary it can base

conviction on it, without corroboration.

(iii) The Court has to scrutinize the dying declaration

carefully and must ensure that the declaration is not

the result of tutoring, prompting or imagination. The

deceased had an opportunity to observe and identify the

assailants and was in a fit state to make the

declaration.

(iv) Where dying declaration is suspicious, it should42 .Surjeet Kaur v. State of M.P. 1994 Cri LJ 1886.43 AIR 1992 SC 1817.

22

not be acted upon without corroborative evidence

(v) Where the deceased was unconscious and could never

make any dying

declaration the evidence with regard to it is to be

rejected.

(vi) A dying declaration which suffers from infirmity

cannot form the basis of conviction.

(vii) Merely because a dying declaration does contain

the details as to the

occurrence, it is not to be rejected.

(viii) Equally, merely because it is a brief statement,

it is not to be discarded. On the contrary, the

shortness of the statement itself guarantees truth.

(ix) Normally the Court in order to satisfy whether

deceased was in a fit mental condition to make the

dying declaration look up to the medical opinion. But

where the eye-witness said that the deceased was in a

fit and conscious state to make the dying declaration,

the medical opinion cannot prevail.

(x) Where the prosecution version differs from the

version as given in the dying declaration, the said

declaration cannot be acted upon.

(xi) Where there are more than one statement in the

nature of dying declaration, one first in point of time

must be preferred. Of course, if the plurality of dying

23

declaration could be held to be trustworthy and

reliable, it has to be accepted.

In case of State of UP v Madan Mohan44 court admitted that

Conviction can be based on it without corroboration if

it is true and voluntary. Dying declaration becomes

unreliable if it is not as per prosecution version.

This has been summed up the Supreme Court:

1. It is for the court to see that dying declaration

inspires full confidence as the maker of the dying

declaration is not available for cross examination

2. Court should satisfy that there was no possibility

of tutoring or prompting.

3. Certificate of the doctor should mention that victim

was in a fit state of mind. Magistrate recording his

own satisfaction about the fit mental condition of the

declarant was not acceptable especially if the doctor

was available.

4. Dying declaration should be recorded by the

executive magistrate and police officer to record the

dying declaration only if condition of the deceased was

so precarious that no other alternative was left.

5. Dying declaration may be in the form of questions

and answers and answers being written in the words of

the person making the declaration. But court cannot be

44 AIR 1989 SC 1519.

24

too technical.

Circumstances of the Transaction: Broadening the Scope

of Dying Declaration

The scope of dying declaration in India is broader

than in England. Under English law only the statements

that directly relate to the cause of death are

admissible. The second part of clause (1) of Section 32

i.e. statement made by a person as to any of the cir-

cumstances of the transaction which resulted in his

death is not to be found in the English law.45 According

to Black's Law dictionary the word 'transaction' means

the act or an instance of conducting business or other

dealings or it also means something performed or

carried out.46 Whereas the word 'circumstances' means

an accompanying or accessory fact, event or condition,

such as a piece of evidence that indicates the

probability of an event.47 The Privy Council in the case

of Pakala Narayan Swami v. Emperor48 explained the term

'circumstances of the transaction'. The Court held that

the circumstances must have some proximate relation to

the actual occurrence. General expressions indicating

fear or suspicion whether of a particular individual or

45 .Kans Raj v. State of Punjab, 2000 Cri LJ 299346 .Black's Law Dictionary, Ed, Bryan A. Garner, 7th edn, West Group, St.

Paul, Minn, 1999, p. 150.47 .Ibid. p. 23648 .AIR 1939 PC 47 : 1939 (40) Cri LJ 364

25

otherwise and not directly related to the occasion of

the death will not be admissible. Explaining the same

phrase in its recent judgment the Supreme Court held

that the statement of a deceased relating to the cause

of death or circumstances of the transaction that

resulted in his death must be sufficiently or closely

connected with the actual transaction.49The transaction

resulting in death cannot possibly mean any fact or

series of facts that have no direct or organic relation

to death.50

The Supreme Court in Rattan Singh v. State of H. P,51

further broadened the scope of the expression and held

that "circumstances of the transactions" mean that

there need not necessarily be a direct nexus between

the circumstances and death. The Court held that even

distant circumstances could become admissible if it has

nexus with the transaction that resulted in death. Re-

lying upon SharadBirdhi Chand Sarda v. State of Maharashtra52

the Court held that

"It is enough if the words spoken by the deceased

have reference to any circumstance that has connection

with any of the transactions that ended up in the death

of the deceased. Even distant circumstances can also49 .Supra, note 47.50 .Id.51 .1997 Cri LJ 833 : AIR 1997 SC 76852 .1984 Cri L:J 1738 : AIR 1984 SC 1622

26

become admissible under the subsection provided it has

nexus with the transaction that resulted in death."

Thus, what emerges from the above judgments is the

proposition that, it is immaterial whether the

circumstances distant or near since both are embraced

by the expression were "circumstances of the transac-

tion". All that is required is that it must be

circumstances of the transaction that resulted in

death.53

The phrase "circumstances of the transaction"

conveys some limitation. It is not as broad as the

analogous use in "circumstantial evidence" which

includes evidence of all relevant facts. For example by

no stretch of reasoning it can be said that what the

deceased told his wife that he would come back for

lunch is a circumstance of the transaction which

resulted in his death.54 Similarly a statement merely

suggesting motive cannot be admitted in evidence unless

it is initimately connected with the transaction itself

as a circumstance.55

Conclusion

A dying declaration is indeed an important piece of

evidence. So much so that conviction can be based53 .State v. Ammini, 1988 Cri LJ 107 : AIR 1988 Ker 1 c.f.; supra, note

28, p. 470.154 .C. Narayan v. State of Kerala, 1992 Crt: LJ 286Q.55 .Mrs. M. F. Rego v. Emperor, AIR l933 Nag. 136

27

solely on the basis of a dying declaration. An analysis

of both English and Indian position makes it very clear

that dying declarations continue to enjoy sacrosanct

status in evidence. The question that needs to be

answered is: how relevant dying declarations are in

today's context and how much reliance can be placed on

it? The basis for the sacrosanct status of dying dec-

larations continues to be the good old belief 1 that a

man will not meet his maker with a lie on his lips.

This belief presupposes that people are religious and

they will not lie on their deathbed. But, this does not

seem to; happen in real life where feelings of hatred,

revenge and many times love take precedence over the

urge to speak the truth. This ironically belies the

very principle underlying the admittance of dying

declarations, i.e. a man will not meet his maker with a

lie on his lips. The general principle on which this

species evidence is admitted is that they are

declarations made in extremity, when the person is at

point of death and when every hope of this world is

gone. At that point of time every motive to falsehood

is silenced and the mind is induced by the most

powerful consideration to speak the truth. Such a

Solemn situation is considered by the law as creating

an obligation equal to which is imposed by a positive

28

oath administered in a court of justice. 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.The law related to dying

declaration need certain changes to be incorporated

into it, so as to make it more relevant in today’s

context.

Bibliograph

y Ashutosh Salil, “An Analysis of Indian and English Position

of Dying Declaration’ J 297,Cri.L.J.2005

Sudipto Sarkar & V. R. Manohar, Sarkar on Evidence, 15th edn

Dying Declaration, at

http:/www.lawyersclubindia.com/articles

Dr. R. K. Gorea, “Critical Appraisal of Dying

Declaration”JIAFM, 2004, 26(1).

29

Avatar Singh “Principles of the Law of Evidence,16th ed.2007,

M. Monir, “Law of Evidence” 7th ed

Neha Vijayvarigya, "Admissibility Of Dying

Declaration :Whether Justified”2006 (1) Cri.LJ

M.G. Amin, "Assumptions behind sanctity of dying

declarations", (1995) 7 NLSJ,

Deepak Arora, R. S. Dogra&Jaswant Singh, Law of Evidence,

vol. 1 Madras Law journal, Madras, 1998

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