INTRODUCTION

'' A person, who is about to die, would not lie'', '' Truth sits on the lips of a person who
is about to die''

Dying declaration is bases on the maxim “Nemomorituruspraesumiturmentire” i.e. a man will

not meet his maker with a lie in his mouth. Hearsay evidences are not given any weight age 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. Its admissibility is
explained in the section 32 (1) of Indian Evidence Act. According to this section when the
statement is made by a person as to the cause of his death, or any of the circumstances of the
transaction which resulted in his death, in cases in which the cause of that person’s death comes
into question. Such statements are relevant whether the person who made this was expecting
death or not. 1

1
1999 Cr.L.J 1122

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 Section 32 (1) of Indian Evidence Act

A close scrutiny of section 32 (1) of Indian Evidence Act, it is vividly known when the statement
is made by a person with regard to the cause of his death, or any of the circumstances of the
transaction which resulted in his death, in cases in which the cause of that person’s death comes
into question. Such statements are relevant irrespective of the person who made such declaration
was expecting death or not. Thus, it is apt to say that admissibility of Dying declaration is explained
in the section 32 (1) of Indian Evidence Act. (2 foot note)

How a dying declaration should be?

There is no particular form of dying declaration. However, the best form of dying declaration is in
the form of questions and answers. However, whenever a dying declaration is being recorded in
the form of questions and answers precaution should be taken that exactly what questions are asked
and what answers are given by the patient those should be written. A dying declaration may be in
the following forms:

1. Written form;
2. Verbal form;
3. Gestures and Signs form. In the case ''Queen vs. Abdulla3, it was held that if the
injured person is unable to speak, he can make dying declaration by signs and
gestures in response to the question.
4. If a person is not capable of speaking or writing he can make a gesture in the form
of yes or no by nodding and even such type of dying declaration is valid.
5. It is preferred that it should be written in the vernacular which the patient
understands and speaks.
6. A dying declaration may be in the form of narrations. In case of a dying declaration
is recorded in the form of narrations, nothing is being prompted and everything is
coming as such from the mind of the person making it.

2 http:// https://blog.ipleaders.in/dying-declaration-2/ last visited on 11th august 2024

3 ILR 7 385

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 OBJECTS

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

Who may record a dying declaration?

• It is best that it is recorded by the magistrate.

• If there is no time to call the magistrate, keeping in view the deteriorating condition of the
declaring, it can be recorded by anybody e.g. public servant like doctor or any other person.
• It cannot be said that a dying declaration recorded by a police officer is always invalid.
• 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.

Important facts to be remembered before recording Dying Declaration:

• The declaring was in a fit condition of mind to give the statement when recording was
started and remained in fit condition of mind until the recording of dying declaration is
completed.
• The fact of fit condition of mind of declaring can be best certified by the doctor.
• Yet, in case of where it was not possible to take fitness from the doctor, dying declaration
has retained its full sanctity if there are other witnesses to testify that declaring was in fit
condition of the mind which did not prevent him from making dying declaration.
• However, it should not be under the influence of any body or prepared by prompting,
tutoring or imagination. If any dying declaration becomes suspicious, it will need
corroboration.

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 • If a declarant made more than one dying declarations and if these are not at variance with
each other in essence they retain their full value. If these declarations are inconsistency or
contradictory, such dying declarations lose their value. (4 foot note)

4. https:// https://districts.ecourts.gov.in/sites/default/files/adjsklm.pdf last visited on 11th august 2024

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 RELEVANT CASE-LAW AS TO ''DYING DECLARATION'':

• In the case of N Ram vs. State5the Supreme Court held that Medical opinion cannot
wipe out the direct testimony of the eyewitness stating that the deceased was in fit
and conscious state to make the dying declaration.

• In the case of R v. Pike. C & P.6the Supreme Court held that If the person making
it is imbecile or is of tender age and was incompetent to testify due to this reason,
that dying declaration would not be valid.

• In the case of State of Karnataka v. Shivalingappa7 the Supreme Court held thatAs
a measure of safety original dying declaration should be sent to the court like FIR
and its Photostat should be kept in the case file.

• In the case of State of Karnataka v. Shariff 8 the Supreme Court held thatEven the
''History'' given by the injured recorded by the doctor in the case file has been
considered as dying declaration by the honorable Court if it is mentioned that the
patient told in the history that incident occurred in such and such manner which was
responsible for the death of the victim

• But, in the case State of Punjab v. Kikar Singh,9 it was held that ''when patient
remained admitted in hospital for sufficient days i.e. for 8 days FIR cannot be
treated as dying declaration''.

5 AIR 1988 SC 912: 1988 Cri LJ 1485

6 1829; 3: 598
7 2001 (4) RCR(Criminal) 237 (Karnataka) (DB)
8 2003 CAR 219-228, (SC)
9 2002 (30 RCR (Criminal) 568 (P & H) (DB),

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 a. In the case ''State v. Maregowda,10it was held that ''A suicide note written found in the
clothes of the deceased it is in the nature of dying declaration and is admissible in
evidence under section 32 of Indian Evidence Act''.

b. In the case, State of Gujarat v. RabriPanchaPunja11, it was held that '' It retains its full
value if it can justify that victim could identify the assailant, version narrated by victim
is intrinsically sound and accords with probabilities and any material evidence is not
proved wrong by any other reliable evidence''.

c. Dying declaration becomes unreliable if it is not as per prosecution version. In the case
of '' State of UP v. Madan Mohan,12 the Hon'ble Supreme Court of India held:

a. 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

b. Court should satisfy that there was no possibility of tutoring or prompting.

c. 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.

d. 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.

e. Dying declaration may be in the form of questions and answers and answers being
written in the words of the person making the dying declaration. But court cannot
be too technical.

10
2002 (1) RCR (Criminal) 376 (Karnataka) (DB)'',
11
Cri LJ. 1981;NOC: 171 (Guj)
12
AIR 1989 SC 1519''

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 • In the case ofBarati vs State Of U. P13, it was held that ''There was no reason to discard the
dying declaration made by the appellant to the police sub-inspector, The trial Court was
wrong in rejecting the dying declaration to the police (F.I.R.) on the ground that the
deceased had stated to the doctor that he had become unconscious after the occurrence.
There was nothing in the statement recorded by the doctor to indicate that the deceased
remained unconscious for. a long time and as such was not in position to lodge the F.I.R.
The fact that the language used in the dying declaration made to the doctor was rather
chaste would not go to show that the said statement could not have been made by the
deceased. As to the language used in the dying declaration there is nothing abnormal or
unusual in the same person using colloquial language while talking to one person and using
refined language while talking to another person.

13
1974 AIR 839, 1974 SCR (3) 570

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 CONCLUSION
Keeping in view the above mentioned opinions of various courts it is suggested that whenever
dying declaration is to be recorded it should be recorded very carefully keeping in mind the sanctity
which the courts attach to this piece of evidence. It retains its full value if it can justify that victim
could identify the assailant, version narrated by victim is intrinsically sound and accords with
probabilities and any material evidence is not proved wrong by any other reliable evidence. It is
perfectly permissible to reject a part of dying declaration if it is found to be untrue and if it can be
separated. 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 declaring 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 too technical.

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