Dying declaration or statements relating to the cause of death section 32(1) of the Indian Evidence Act, 1872

Section 32[1]

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:—

(1) When it relates to cause of death.-

When the statement is made by a person as to the cause of his death, or as to 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 them was or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

Requirement of Sec.32

This section is one of those provisions that provide exceptions to the principle of excluding hearsay evidence. The principle of the section is that a person who has the first-hand knowledge of the facts of a case, but who, for reasons stated in the section, such as death or disability is not able to appear before the court, then his knowledge should be transmitted to the court through some other person.

If he recorded his knowledge somewhere, for example, on a portrait or register, that record may be produced or if he told his knowledge to another person that other person may appear to testify of what he was told. The reason for the exception is obvious. The law wants the best evidence in each case. The best evidence is a document or the personal knowledge of a witness, and if the document has been lost or that witness is unable to appear before the court, then those who have either seen that document or shared that knowledge of that a person will be considered as the best evidence.

This section comes into play when the person whose statement is sought to be proved has died, or cannot be found or has become incapable of giving evidence or whose attendance can be procured at an amount of delay or expense which under the circumstances of the case appears to the court to be unreasonable. Proof of these facts will have to be offered in the first instance unreasonable. Proof of these facts will have to be offered in the first instance t make the evidence relevant. Thus if the ground of relevancy is the death of the person concerned, his death must be proved, for if he is still alive, he must appear in person.

Dying Declaration or statements relating to the cause of death [Clause 1]

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 the 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. The clause further goes on to say that such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

In Uka Ram v. State of Rajasthan[2] Apex Court held that, when a statement is made by a person as to cause of his death or as to any circumstance of transaction which resulted into his death, in case in which cause of his death comes in question is admissible in evidence such statement in law is called dying declaration.
Following are the classes of person who cannot be called as witness under section 32 and their statements allowed to be proved in their absence.
1) Person who is dead
2) Person who cannot be found
3) Who has become incapable of giving evidence or
4) Whose attendance cannot be produced without unreasonable delay or expense
The Conditions in this Section are:
1) It must be a statement, written or verbal
2) The person making statement must have died.
3) The statement relating to the cause of his death or the circumstances of the transaction which related in his death and not the cause of the death of someone else.
4) The cause of the person's death must be in question.
5) The person making statement must be in a fit condition to make the statement.
6) The statement must be competent
7) Declaration must be competent

Nemo Moriturus Praesumitur Mentire

It is based on a principle named Nemo Moriturus Praesumitur Mentire which simply means that when a person is on death bed there are fewer chances that he would lie. The Apex Court in its decision in P.V.Radhakrishna v. State of Karnataka [Appeal (crl.) 1018 of 2002] held that the principle on which a dying declaration is admitted in evidence is indicated a Latin maxim, Nemo Moriturus Praesumitur Mentire, a man will not meet his maker with a lie in his mouth. Information lodged by a person who died subsequently relating to the cause of his death is admissible in evidence under this clause.

Dying declaration is also considered the trustworthy evidence because it is believed that if a person knows that he is about to die he will not lie. That’s why it is admissible in evidence being hearsay evidence. This piece of hearsay evidence is admissible as an exception to the general rule of evidence that hearsay evidence is no evidence in the eye of law and it should be discarded as a general rule because the evidence in all cases must be direct.

Dying declaration can also be in form of gestures and signs. In the case of Queen-Empress v. Abdullah [3] accused had cut the throat of the deceased girl and because of that, she was not able to speak so, she indicated the name of the accused by the signs of her hand, it was held by the full bench of the Allahabad High Court If the injured person is unable to speak, he can make dying declaration by signs and gestures in response to the question.

There has to be a proximate relationship between the statement and the circumstances of death. In Sharad Bridhichand Sharda v. State of Maharashtra[4], A young 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. Her statement was admitted as showing the circumstances of death. They were not too remote in time from the point of death.

Evidentiary Value of Dying Declaration:

The evidentiary value of dying declaration will vary according to the circumstances of a particular case in which it is made Dying Declaration is evidence but it is a weak piece of evidence. It is to be corroborated by other evidence for example other facts and evidence supporting Dying Declaration. It gives guidance to the Court, the has to accept the Dying Declaration as a suspicious statement, it is duty of the judge to consider the valuation of Dying Declaration. Such valuation of Dying Declaration depends upon many things as under
1) State of mind of declarant.
2) State of the body of declarant.
3) To whom the Declaration/Statement is made.
4) Who recorded the statement
5) Whether the statement is recorded in the same language and in the same word of the declarant. Even though Dying Declaration is said to be of a weak piece of evidence it is relevant in the Indian Evidence Act, because it is the best available evidence as to the cause of his death after his death.

FIR as dying declaration:

In K. Ramachand Reddy v. Public Prosecutor[5], it was held that where an injured person lodged an FIR and then died, it was held to be relevant as a dying declaration.

Death of a person is must while making the statement if death is not the result then statement is admissible as dying declaration but might be relied under sec. 57 to corporate his testimony or to contradict him under sec. 145.

In Chandra Bhan Singh v. State[6] Chandra Bhan Singh was tried of the murder of Shaitan Singh. The deceased Shaitan Singh himself lodged a report in which he narrated the story of the incident. After the medical examination the deceased developed tetanus and died of it, it was held that the statement of the deceased could not be used as a dying declaration.

Complaint as a dying declaration

In Jai Prakash v. State of Haryana[7]A woman was called by her relatives in connection with a property dispute. On her arrival kerosene was poured on her and she was set ablaze. She died four days later. A statement in the nature of complaint was recorded y a police officer in a hospital. Later the same statement was taken to be a dying declaration. The failure to obtain the certificate of mental fitness and non recording of the statement in question and answer form was held to be inconsequential because it was a complaint which was taken down and the precautions of taking down were not considered necessary at the time. There was no other direct evidence except the compromise as to property arrived at on the previous day. Conviction of the persons named in the dying declaration was held to be proper.

Delay in Recording

Delay of two days in recording he statement as the injured person was not in a fit condition to make the statement was held to be of no consequence.[8]

Dying declaration in Indian law and English law

S.No.	Indian law	English law
1.	Expectancy of death is not necessary.	Expectancy of death is necessary.
2.	A dying declaration will be admissible in any case in which the cause of death of a person comes into question which includes murder, culpable homicide and suicide.	The admissibility of a dying declaration is confined only to the cases of murder and culpable homicide.
3.	Here dying declaration is relevant in both criminal and civil cases.	It is relevant only in the cases of criminal law.
4.	Full story is stated but last point is not stated then it cannot be considered as dying declaration.	Statement must be completed.

Multiple Dying Declaration

The Supreme Court has held that multiple dying declarations can be relied upon without corroboration if consistency is maintained throughout. Otherwise, the courts would have to examine the statement of other witnesses to ascertain the truth in a criminal trial.

A bench of Justices B S Chauhan and Dipak Misra clarified the legal position with regard to multiple dying declarations while acquitting a man charged for murdering his divorced wife.

The bench said: In case of plural/multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether there is consistency particularly in material particulars therein. In case there are inter-se discrepancies in the depositions of the witnesses given in support of one of the dying declarations, it would not be safe to rely upon the same.

In fact it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case.

If the dying declaration is found to be voluntary, reliable and made in a fit mental condition, it can be relied upon without any corroboration. But the statements should be consistent throughout. The court was dealing with an appeal filed by Bhadragiri Venkata Ravi challenging the life term awarded to him by the Andhra Pradesh High Court (HC) in 2006. The HC had reversed a 2001 judgment by a sessions court acquitting him of the charges of killing .

Ratna, who died of burn injuries, recorded three dying declarations. The first two were recorded on April 15, 2000, at a government hospital in the presence of a magistrate wherein she told she had sustained injuries accidentally while cooking. In the third dying declaration on April 28, 2000, she accused her former husband, who was on visiting terms with her even after eight years of a divorce obtained on mutual consent, of pouring kerosene and setting her on fire.

The trial court found material inconsistencies in the case of the prosecution and did not see any reason whatsoever to rely upon the dying declaration dated 28.4.2000 as the contents thereof were admittedly false and could not be relied upon, the apex court said. The HC failed to notice that the victim’s mother charged the appellant with demanding dowry, ill-treating and maintaining an illicit relationship after eight years of divorce, the bench noted.

Admittedly, there was a divorce between the parties. Therefore, the question of demand of dowry or ill-treatment or harassment could not arise after 8 years of the divorce decree by the court. The mother of Ratna has deposed about the illicit relationship of the appellant and another woman and the appellant wanted to marry that woman. In case the parties had separated by divorce through court, we fail to understand how Ratna (deceased) or her parents were concerned.

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 is wider in scope than the expression cause of death. A statement not relating to the cause of death of its maker may be admissible if it relates to the circumstances of the transaction which resulted in his death. In a case of robbery, a statement made by a person before her death regarding the circumstance of the robbery is admissible. Although remotely, her death was caused by wounds received at the robbery.

Exception:

Following are the exceptions to the dying declaration:

· If the deceased made statement before his death which is anything other than the cause of his death, then such declaration shall not be admissible in evidence.
· A dying declaration of a child is inadmissible.
· An inconsistent dying declaration is of no evidentiary value.
· Dying declaration should not be under influence of anyone.

Acceptance of Pakala a ruling by Supreme Court
The principles laid down Pakala case relating to the relating to the relevancy of a dying declaration were accepted by the Supreme Court in Kaushal Rao v. State of Bombay[9]. There were two rival factions of workers in a mill area in Nagpur. Rival factions even attacked each other with violence. In one such violent attack one Baboo Lal was inflicted a number of wounds in a street at about 9 p.m.

He was taken to a hospital by his father and others reaching there at 9.25. On the way he told the party that he was attacked by four persons with swords and spears two of whom he identified as Kaushal and Tukaram. The doctor in attendance immediately questioned him and recorded his statement in which he repeated the above two names.

A sub- Inspector also questioned him and noted his statement to the same effect. By 11:35 p.m. a magistrate also appeared and after the doctor had certified that the injured was in a fit condition to make the statement, the magistrate recorded the statement which was again to the same effect. He died the next morning.

On the basis of these declarations recorded in quick succession by independent and responsible public servants and as corroborated by the fact that both the named persons were absconding before they were arrested, the trial judge sentenced Kaushal to death and Tukaram to life imprisonment.

The High Court acquitted Tukaram altogether because of the confusion caused by the fact that in the dying declaration he was described as a teli, whereas Tukaram present before the court was Kholi and in the same locality there lived four persons bearing the same name some of whom was telis. But the conviction of kaushal was maintained and on appeal, the Supreme Court affirmed the conviction, SINHA, J., (afterwards C.J.) did not consider it to be absolute rule of law that a dying declaration must be corroborated by other evidence before it can be acted upon.

The learned judge had to face the following observation of the Supreme Court itself[10]. It is settled law that it is not safe to convict an accused person on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subjected to cross examination because the maker of it might be mentally and physically in a state of confusion.

Dying Declaration in case of Dowry deaths, Wife burning etc.
In a further application of this principle to a case arising out of that atrocious species of murder, called Wife burning, the Supreme Court said: the three dying declaration corroborated by other circumstances are sufficient in our view to bring home the offence. The counsel has sought to discredit these declarations forgetting that they are groaning utterances of a dying woman in the grip of dreadful agony which cannot be judged by the standard of fullness of particulars which witness may give in other situation. To discredit such dying declarations for short-falls here or there or even in many places is unrealistic, unnatural and has taken place in the house and in the presence of the husband who has been convicted. We hardly see any reason for interfering in this conviction.[11]

In still another case[12] of wife –burning, after recording her statement that her husband has set her afire, she mercifully pleaded that her husband should not be beaten. It was argued on this basis that she wanted to exonerate her husband.

The court replied:
This is a sentiment too touching for tears and steam from the values of the culture of the Indian womanhood; a wife when she has been set afire by her husband, true to her tradition, does not want her husband to be assaulted brutally. It is this sentiment which promoted this dying tragic woman to say that even if she was dying, her husband should not be beaten. We are unable to appreciate how this statement can be converted into one exculpation of the accused.

The Supreme Court has pointed out, in a case in which the injured person died 45 minutes after making her statement, that where the doctor certified that she was in fit condition to give a statement, it was immaterial that pulse was not palpable and blood-pressure was untraceable and that the patient was in a gasping condition[13].even in the case of cent per cent burn injuries, the doctor’s testimony that deceased was in a fit states of health doctor certified that she was fully conscious and in a fit mental condition to make the statement. The statement was corroborated by the evidence of her father and other witness that immediately after the incident, she implicated her husband. The case history recorded in the hospital also supported the same version. The declaration was held to be reliable[14].

In another prosecution for wife burning, the wife remained alive for about eight days after receiving burn injuries but did not tell to anybody visiting her in the hospital as to how she came to receive the burns. When her uncle visited her she stated that her husband had set her on fire. Her thumb impression upon the statement was not there and the name of a husband was wrongly mentioned. The Supreme Court did not sustain the conviction. The statement seemed to have been tutored by when uncle.4 where the injured woman, on being questioned, told the witness: ve mar gaye. The court said that the expression ‘ve’ is often used by woman to refer to their husbands. The words were capable of meaning that her husband injured her or they injured her. The normal meaning of ve is they. The statement was not capable of pointing the finger to the husband alone. Hence, it was not a dying declaration.

The death of a married woman in the matrimonial home three or four months after her statements expressing the danger to her life has been held by the supreme court to be a statement explaining the circumstance of her death.1 she had been speaking to her parent and other relatives and also writing to them. In another case, a letter to father about the torture and the dying declaration recorded by a head constable in the hospital in the presence of the doctor was held to good evidence.2 where a housewife met her death by drowning in the family well in the courtyard of the house of her in-laws, her statements to her father as to how she was suffering at the hands of her in-laws was held to be relevant under section32[1].

In a case of bride burning, three dying declaration were made. The first was to the ASI which made out a case of accidental death. The second was taken down by the executive magistrate and third was an oral one made by the bride to her brother. These two were consistent on the point that the persons accused had set her ablaze. They were also found to be reliable. The fact that the magistrate had sent the declaration to the investigating officer after a fortnight was considered to be as not nullifying the genuineness of the declaration[15]. the Supreme Court has laid down this principle that when there are multiple dying declarations, each has to be considered independently on its own merits as to its evidentiary value. One cannot be rejected because of the contrary contents of the other. In the earlier declaration, the woman said she suffered burn injuries accidentally. This was recorded by a munsif- magistrate by following proper procedure. Ten minutes later she spoke to the head constable who recorded the statement without observing any situation.

End-Notes
[1] Sec.32 of The Indian Evidence Act,1872
[2] (AIR 2001 SC 1814)
[3] (1885) 7 All 385 FB
[4] [(1984) 4 SCC 116]
[5] (1976) 3 S.C.C. 104
[6] (1971 CrLJ 94)
[7] (1998) 7 S.C.C. 284
[8] G.S. Walia v. State of Punjab (1998) 5 S.C.C. 150
[9] A.I.R. 1958 S.C. 22
[10] A.I.R. 1953 S.C. 420 at 423
[11] Gulzari Lal v. State of Haryana, A.I.R. 2016 S.C. 795
[12] Yashwant v. State of Maharashtra, A.I.R. 1930 S.C. 1270 at p.1271
[13] State of Haryana v. Harpal Singh, A.I.R. 1978 S.C. 1530 at p.1535
[14] Salim Gulab Pathan v. State of Maharashtra, A.I.R. 2012 S.C. 2176
[15] State of Assam v. Mafizuddin Ahmed, A.I.R. 1983 S.C. 274