Dying Declaration is a legal concept refers to the effect that the statement
which is made by a dying person explaining the circumstances of his death. The
word Dying Declaration itself tells the meaning. A statement by a person who is
conscious and knows that death is imminent concerning what he believes to be the
cause or circumstances of his death.
A dying declaration is considered credible
and trustworthy evidence based upon the general belief that most people who know
that they're about to die "do not lie". As a result, it is an exception to the
general rule "hear say", which prohibits the use of a statement made by someone
other than the person who repeated it while testifying during trial.
Section 32(1) of the Indian Evidence Act deals with the admissibility of dying
, which reads as follows: 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:
- When it relates to cause of death:
When the statement 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 persons' 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 expectation of death, and whatever may
be the nature of the proceeding in which the cause of his death comes into
question. So, recording of dying declaration becomes very important.
But there is a condition when the statement made by the person to be treated as
true evidence in spite of the fact that he made the statement in his own favour
and hardly any doubt behind the reason for that statement. That condition is
Dying Declaration is a statement made by the person while he was dying and
states the reason for his death. The statement given by the dying person can be
circumstantial or tells the cause for his death. Hence, the only statement given
just before the death of a person is called Dying Declaration.
The person who is
conscious of Compos Mentis and knows that death is about to happen can make a
declaration and state the cause of his death and that statement will be
Admissible and treated as Evidence in the Court. Declaration made by the
deceased person can be in oral, written and by conduct. The word Dying
Declaration explain the word itself.
In Section 32 (1) of Indian Evidence Act
defines when the statement is made by
the person as the cause of his death, or as any of the circumstances of the
transaction which resulted in his loss of life, in cases in which the cause of
that person's death comes into question. Such statements made by the person are
relevant whether the person who made them was alive 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.
The statement made by the deceased person will be treated as Evidence and
Admissible in a Court of law. The reason behind this can be followed by Latin
maxim Nemo Mariturus Presumuntur Mentri which means that "Man Will Not Meet His
Maker With Lying On His Mouth. More precisely in our Indian law, it is the fact
that the dying man can never lie or Truth sits on the lips of dying man. Hence,
the Dying Declaration is Admissible and considered as Evidence in Court, and can
be used as a weapon to punish the culprit.
The purpose of this research is to identify the principle of "Leterm Mortem
which means "words said before death" & in a legal term it is called 'Dying
'. The word "Dying Declaration" itself tells the meaning But this
project highlights those questions, which have a great value in legal field
relating to dying declaration.
The study tells about those statements which
converted into dying declaration, different forms of dying declaration, which
are admissible by law, it's importance in the law & clears that has it some
value or not? And if it has, then what are the exceptions of it?
A statement by a person who is conscious and knows that death is imminent
concerning what he or she believes to be the cause or circumstances of death
that can be introduced into evidence during a trial in certain cases.
A dying declaration is considered credible and trustworthy evidence based upon
the general belief that most people who know that they are about to die do not
lie. As a result, it is an exception to the Hearsay rule, which prohibits the
use of a statement made by someone other than the person who repeats it while
testifying during a trial, because of its inherent untrustworthiness.
person who made the dying declaration had the slightest hope of recovery, no
matter how unreasonable, the statement is not admissible into evidence. A person
who makes a dying declaration must, however, be competent at the time he or she
makes a statement, otherwise, it is inadmissible. A dying declaration is usually
introduced by the prosecution, but can be used on behalf of the accused.
Word "Dying Declaration" means a statement written or verbal of relevant facts
made by a person, who is dead. It is the statement of a person who had died
explaining the circumstances of his death. This is based on the maxim 'nemo mariturus presumuntur mentri
' i.e. a man will not meet his maker with lie on his
mouth. Our Indian law recognizes this fact that 'a dying man seldom lies.' Or
'truth sits upon the lips of a dying man.'
It is an exception to the principle
of excluding hearsay evidence rule. Here the person (victim) is the only
eye-witness to the crime, and exclusion of his statement would tend to defeat
the end of justice. Section 32 of Indian Evidence act deals with the cases
related to that person who is dead or who cannot be found.
Cases in which statements of relevant fact by person who is dead or
cannot be found.
Statement, written or verbal, or 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 expanse which, under the circumstances of the case appears to the Court
unreasonable, are themselves relevant facts in the following cases:
- When it relates to cause of death.
- Or is made in course of business.
- Or against interest of maker.
- Or gives opinion as to public right or custom or matters.
- Or relates to existence of relationship.
- Or is made in will or deed relating to family.
- Or in document relating to transaction mentioned in section 13, clause
- Or is made by several persons and expresses feelings relevant to matter
But here, I am mentioning about 'dying declaration' which deals with the cases
relate to cause of death. It is mentioned in sub-section (1) of section 32 of
Indian Evidence act.
Section 32 (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 said to be relevant whether the person who made them was or
was not, at the time when they were made, under exception of death, and whatever
may be the nature of the proceeding in which the cause of his death comes into
The question is, whether A was murdered by B; or A dies of injuries received in
a transaction in the course of which she was ravished. The question is, whether
A was killed by B under such circumstances that a suit would lie against B by
Statements made by A as to cause of his or her death, referring respectively to
the murder, the rape and the actionable wrong under consideration wrong under
consideration are relevant facts.
In Ulka Ram v. State of Rajasthan
Apex Court held that, "when a statement
is made by a person as to cause of his death or as to any circumstances 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 are
compendiously called dying declaration."
The Apex Court in its decision in P.V. Radhakrishna v. State of Karnataka
that 'the principle on which a dying declaration is admitted in evidence is
indicated in latin maxim, nemo morturus procsumitur mentri, 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
In a leading case, wife of the accused had borrowed money from the deceased in
the sum of Rs. 3000 at the interest of 18 percent. Related to his debt a number
of letters had signed by the wife of accused which was discovered from the house
of deceased after his death. One letter which was not signed by someone had been
received by the deceased K.N. on 20th March,1937, it was reasonably clear that
it would have come from the wife of accused, who invited him to come Berhampur
on that day or next day.
Widow of K.N. had told to the court that his husband had told him that Swami's
wife had invited him to come to Berhampur to receive his payment. Next day K.N.
left his house to go to Berhampur & on 23rd March, his body, which was cut in to
seven pieces, found in a trunk in the compartment of a train at Puri. The
accused was convicted of murder & sentenced to death because there was many
evidence against him.
In Wazir Chand v. State of Haryana
in which Court observed pakala ruling & said,
'applying these to the facts of the case their Lordships pointed out that the
transaction in the case was one in which the deceased was murdered on 21st March
& his body was found in a trunk proved to be bought on behalf of the accused.
The statement made by the deceased on 20th March that he was setting out to the
place where the accused was living, appeared clearly to be a statement as to
some of the circumstances of the transaction which resulted in his death. Thus,
the statement was rightly admitted.
In the case of R. v. Jenkins
the accused was charged with the murder of a lady.
He attacked her at midnight but she had recognized her because there was
sufficient light to identify him. When magistrate's clerk asked her about the
accused to record her statement, she said that he was Jenkins who had done the
The clerk asked her that, did she make the statement with no hope of her
recovery then, she replied that she was making that statement with no hope of
recovery. But when the clerk read that statement over to her, before her
signing, she told her to add the word 'at present' in that statement.
It was held by the court that the statement was not a dying declaration as her
insistence upon the words "at present" showed that she had some, however faint
hope of recovery.
Who should record the dying declaration?
Any person can record the dying declaration made by the deceased, but the person
who is recording the dying declaration must have some nexus with the deceased
either circumstantially or by some fact. However, the doctor or police officer
hold more value as compared to the normal person. As far as the dying
declaration is concerned the magistrate entrusted to record the dying
declaration, as the statement recorded by him is considered more evidential
rather than statement recorded by the doctor, police officer and by the normal
The Supreme Court has found this to be true in law, at least in cases where the
person dies of burn injuries. Court holds the opinion that "The law on the issue
can be summarized to the effect that law does not give any direction that who
can record a dying declaration but just provided that magistrate is above all
the person in subject for recording the statement, nor is there any definite
form, format or procedure for the same," said a bench of Justices B S Chauhan
and Dipak Misra while quashing the high court order in the case of dowry death
The person who records the dying declaration must be satisfied that the maker is
in a fit state of mind and conscious while making the statement.
Moreover, a dying declaration can be recorded by a person, or even by the police
officer, but if it is recorded by the judicial magistrate that it will have more
credential value and reliability.
Recorded by a normal person
A dying declaration can be recorded by a normal person. As in some circumstances
where the judicial magistrate, police officer and doctor are not available, the
Court cannot reject the dying solely statement made before the normal person.
But the person who records the statement must show that the deceased was in a
fit state of mind and conscious while making the statement no matter if the
statement is not recorded by Judicial Magistrate, doctor and police officer. The
statement is admissible in a court of law.
Recorded by the doctor or a police officer
If there is no time to call the magistrate keeping in the mind the deteriorated
condition of the declarant, the statement can be recorded by the doctor or by a
police officer. But one condition must be coupled with it that while recording
the statement there shall one or two-person present there as a witness otherwise
the Court may find the statement to be suspicious.
Moreover, the statement
record by the doctor, later endorses that the declarant was not in a stable
condition and his statement would not be considered as evidence, rectify by the
witness that the deceased was in a fit state of mind and conscious to make the
declaration. It was held in the case of N. Ram v. State that the medical opinion
cannot wipe out the direct testimony of an eye witness which states that the
deceased was in a fit mental condition and able to make a dying declaration.
Recorded by the magistrate
When the deceased statement recorded by the competent magistrate has deemed to
be considered as reliable and attracts the evidentiary value as he presumed to
know how the dying declaration should be recorded and he is a neutral person.
Moreover, the magistrate has empowered to record the dying declaration under 164
Section 164 Cr. P.C states that Sub Section (1) gives power to the magistrate to
record the statement of the dying person, no matter whether he has jurisdiction
over that case or not, and in case where the statement recorded by the
magistrate who has no jurisdiction in that case Sub Section (6) will apply. Here
the word "statement" does not confine to only the statement by the deceased and
witness but also include a statement of the accused, in order to satisfy
himself, but the accused statement will not amount to a confession.
Sub Section (1) states that: any judicial magistrate and metropolitan magistrate
shall have the power to record the dying statement made by the dying person,
whether the magistrate has jurisdiction in that particular case or not, he will
be able to record the state provided under this chapter or by any other law for
the time being enforced, or at the time before the commencement of trial and
Section 164 provides a warning. Under this provision the magistrate who record
the statement should tell the accused that he has to made only statement which
shall not be amount to confession, but if he did so, then the confession can be
used against him for the purpose of conviction. This is the sine qua non for
The other important requirement is that the Magistrate
must raise questions from the wrongdoer to satisfy himself that the confession
made by the accused was voluntary so as to enable him to give the requisite
certificate under sub section (4) of this chapter. The judicial magistrate here
tells the accused that he is not bound to make a confession, but he did not ask
the question from the accused in order to satisfy in question, whether the
statement made by the accused is voluntary or not.
In Mahabir Singh v. State of Haryana
the Court held that, Where the Magistrate
did not clear the rule that the statement made by the accused should not be
amount to confession, if he does so then it will be used as evidence against
him, cannot be considered. The Magistrate must satisfy himself that the
statement made by the accused voluntary, no pressure or force was used on the
accused while making the confession.
Any mark of the person of the accused to
vitiate the voluntary character of the confession. When was held not only
inadmissible under the section but it could not be used under the other
provision of Indian Evidence Act such as sections 21 & 29?
The distinction between the English Law and Indian Law:
Under the English law, it is essential/ to the admissibility of dying
declaration that the declarant must have entertained a settled hopeless
expectation of death, but he need not have been expecting immediate death.
Indian law does not put any such restrictions. It is not required under Indian
law that the maker should be under an expectation of imminent death, nor it is
restricted to the case of homicide only. Before a dying declaration may be
admitted, it must be proved that its maker is dead. If the maker survives, it
may be used to corroborate or contradict his statement in the court.
According to Section 32(1) itself:
- A statement may be oral and written. But in Emperor vs. Abdullah, it was
held that Conduct to be relevant as dying declaration.
- The statement must be as to:
Pakala Narayan Swamy vs. Emperor, -The statement made by the deceased to his
wife that he was going to the accused to collect money from him (accused being
indebted to the deceased), was held to be admissible under section 32(1).
- cause of death
- circumstances of the transaction
- resulted in the death
FIR as dying declaration
Where an injured person lodged the FIR and then died. It was held in K.Ramchanda
Reddy vs. Public Prosecution to be relevant as dying declaration.
- Death of the person is must while making the statement-If death is not
the result, his statement inadmissible/as dying declaration, but it might be
relied on under Section 157 to corroborate his testimony of to contradict
him under Section 145. It can be used to corroborate the evidence in court
under Section 6 and 8.
- Cause of death of the deceased must be in question.
- Expectancy of death is not necessary.
- Whatever may be the nature of proceeding-It may/be civil or criminal
nature where the death of the person- deceased is in question.
Manner of recording Dying Declaration:
- Rule 33 of Criminal Rules of Practice deals with the manner to be
followed by the Magistrate while recording Dying Declarations: It reads as
- While recording a Dying Declaration, the Magistrate shall keep in view the
fact that the object of such declaration is to get from the declarant the
cause of death or the circumstances of the transaction which resulted in death.
- Before taking down the declaration, the Magistrate shall disclose his
identity and also ask the declarant whether he is mentally capable of making a
declaration. He should also put simple questions to elicit answer from the
declarant with a view to knowing his state of mind and should record the
questions and answers, signs and gestures together with his own conclusion in
the matter. He should also obtain whenever possible a certificate from the
Medical Officer as to the mental condition of the declarant.
- The declaration should be taken down in the words of the declarant as far
as possible. The Magistrate should try to obtain from the declarant particulars
necessary for identification of the accused. Every question put to the declarant
and every answer or sign or gesture made by him in reply shall be recorded.
- After the statement is recorded, it shall eb read over to the declarant
and his signature obtained thereon, if possible, and then the Magistrate shall
sign the statement.
- Rule 33 of Criminal Rules of Practice itself says about the precautions
to be taken by the Magistrate while recording the Dying declarations. They
are as follows:
- The Magistrate shall disclose his identity to the declarant first.
- He shall ask the declarant whether he is mentally capable of making a
- He shall ask simple questions to elicit answers from the declarant to
know his state of mind.
- Magistrate shall record questions and answers, signs and gestures
together with his own conclusion.
- He should also obtain whenever possible a certificate from the Medical
Officer as to the mental condition of the declarant.
- The declaration should be taken down in the words of the declarant as far
- The Magistrate should try to obtain from the declarant the particulars
necessary for identification of the accused.
- Every question put to the declarant and every answer or sign or gesture
made by declarant in reply shall be recorded.
- After recording statement, it shall be read over to the declarant and his
signature should be obtained thereon if possible.
- Our Honourable High Court in a decision "P. Srinivasulu Versus State of
Andhra Pradesh" reported in "2004 Law Suit (AP) 121" observed that:
"In the present case, as the deponent was unable to put the thumb mark since her
hands were burnt, her toe mark was taken. The Court can always take judicial
note of the fact that there used to be a practice previously prevailing of
taking toe marks when it was not possible to take thumb impressions of the hands
of the deponent. By mentioning the word 'signature', it causes considerable
inconvenience to the Magistrate and creates a doubt whether he can take thumb
impressions of the deponent or toe marks.
Under the said circumstances, I am of the considered view that the Rule
itself requires amendment and it should be clarified that in case of
illiterate persons, and when a person is unable to put the signature, thumb
marks can be obtained. It shall also be stated that in case hands were
burnt, the toe marks could be taken. It is a matter to be considered by the
High Court to bring about amendment to the necessary Criminal Rules of
Practice and Circular Orders, 1990"
Types of Dying Declaration
There is no particular form to be employed in making the Dying Declaration. it
can be Oral, Written, Gestures & Signs, Thumb impression, Incomplete and can
also be in the form of Question Answer. However, there must be a distinct and
definite assertion on the part of the person who produces the statement.
Possibly the declaration should be in written form in the exact words stated by
the person who made the statement. When a magistrate records the dying
declaration, then it should be in Question-Answer form as the magistrate will
opt the maximum information rightly, as in some cases dying declaration becomes
the sole way to help in the conviction of the accused.
Let us discuss some of the types in the elaborative form:
Gesture and Signs
In the case of Queen-Empress v. Abdullah
the appellant was charged with the
offence of murder before the court of session. That he had murdered one DULARI,
a prostitute by cutting her throat through RAZOR. It seems that one-morning
dulari with her throat cut was taken to the police station and from there to the
She was alive till the morning. The post-mortem report shows that
the windpipe and the anterior wall of the gullet had been cut through. When Dulari was taken to the police station, she was questioned by her mother in the
presence of a sub-inspector. She was again questioned by the sub-inspector,
deputy magistrate and subsequently by the assistant surgeon.
She was unable to speak but conscious and able to make gestures and signs.
Magistrate asked dulari, as who had wounded her, but due to the injured
condition dulari was unable to speak. After that, the magistrate mentioned
several names one by one and asked if they had wounded her.
Dulari moves her
hand forward and backwards and made negative and affirmative signs.
Subsequently, the magistrate asked whether Abdullah had wounded her, for that
dulari waved her hand made the sign in the affirmative, the magistrate recorded
the statement. After that question was put to her that if she been wounded with
a knife or sword. In this regard, dulari makes a negative sign, again magistrate
asked her if she had been wounded with the RAZOR. She in answer to this made an
In this way, the magistrate records the dying declaration of Dulari and the same
was accepted as evidence to prosecute Abdullah.
Similarly, in the recent "Nirbhaya's Rape Case," Dying Declaration was made by
her in the form of sign and gesture.
The dying declarations made by Nirbhaya were recorded.
The first declaration was recorded by the doctor when she was admitted in the
hospital on the night of December 16, 2012 and the second on December 21 by the
sub-divisional magistrate during which she gave exact details of the
The third declaration was recorded by the metropolitan magistrate on December 25
and was mostly by gestures. The bench said that as far as the third dying
declaration is concerned, this court has already held that the dying declaration
made through signs, gestures or by nods are admissible as evidence.
Oral and written
When the person gives the name of the murderer to a person present and written
by any of them then it is a relevant dying declaration. However, people may
dispose of the name of the mugger orally.
An oral dying declaration is admissible in evidence as an exception to the
general rule of evidence that hereby evidence is no evidence in the eyes of law.
The oral dying declaration made before his wife, father-in-law and other near
relatives were made in the conscious state.
In the case of Amar Singh v. State of Rajasthan. The deceased's mother and
brother gave the evidence, that the deceased made the statement month prior to
the incident of suicide by her that the appellant, her husband used to taunt the
deceased saying that she had come from a hunger house and the appellant himself
go to the house of deceased and asked for 10.000/-.
It was held that the dying
declaration and appellant were convicted under section 304B and 498A of IPC. The
Court referred to Pakala Narain Swamy v. Emperor
. In which Lord Atkin: held that
the circumstances of the transaction which resulted in the death of the
declarant will be admissible if such transaction has some proximate effect.
Incomplete Dying Declaration
Dying declaration made by the person, which is found to be incomplete cannot be
admissible as evidence. When the condition of the deceased is grave and at his
own request a statement made by him in the presence of the doctor was later
taken by the police but could not be completed as the deceased fell into a coma
from which he could not recover. It was held that the dying declaration was not
admissible in court as the declaration appears to be incomplete on the face of
But the statement, though it is incomplete in the sense but conveys the declarant all necessary information or what he wanted to state, yet stated as
complete in respect of certain fact then the statement would not be excluded on
the ground of its being incomplete.
The deceased stated, "I was going home when I came near the house of Abdul
Majid, Sohail shot me from the bush. He ran away. I saw." this was the dying
declaration made by the deceased and further was unable to answer the questions.
It was held that there is no question of incompleteness so far as the context of
the case is concerned. In the case of Muniappan v. State of Madras.
made the dying declaration as follows:
This day 24th January 1960 in the afternoon at 12:30 Muniappan son kola goundan
of kamnav-kurechi stabbed me in my body with a knife."
Soon the deceased died after the statement. His thumb impression was taken after
he was dead. This declaration against Muniappan was complete and admissible.
Question- Answer form
Dying Declaration can be made in the form of Question-answer. the deceased, in
some of her statement, did not state the actual part played by the appellant.
She merely answered the questions put to her. The court held that when questions
are put differently than the answer will also appear to be different.
glance, the detailed description of the offence may appear to be missing but the
statement of the deceased construed reasonably. However, when the magistrate
records the dying declaration, it must be preferred to be recorded in the form
of a question-answer must be preferred. If there is nothing to doubt that the
person who records the statement made by the deceased exact word to word, would
not make any difference merely because the same was not recorded in the form of
question and answer.
Language of the statements
As far as the language of the statement is concerned, it should be recorded in
the language of the deceased in which he is fluent or may possible than in Court
language. The court cannot reject the dying statement on the basis of the
language in which it was made. It can be recorded in any language.
Even if the
dying declaration is made by the deceased in Urdu, Hindi, Punjabi languages, it
was considered that statement could not be denied on the ground of language in
which it was made solely or on the ground that it was recorded in Urdu. When the
statement was given by the deceased in Urdu and the magistrate recorded it in
English than in that case precaution should be taken while in explaining every
statement to the deceased by another person, it was declared that the statement
was the valid dying declaration.
Statements made in different languages
When two dying declaration was recorded in two different languages on is in
Marathi and the other is in Hindi and the deceased were proficient in both the
language the statement could be the basis of conviction as it was held in the
case of Amar Singh Munna Singh Suryavanshi v. State of Maharastra
Points to remember
- Dying declaration made by the deceased can be recorded in any language.
- If the statement was recorded in another language than the one which
magistrate recorded, then precautions should be taken to explain each and
every aspect and phrase.
- The court cannot deny or discard the dying declaration only on the
ground of language.
In Biju Joseph v. State of Kerala,
it was observed by the court that only ground
that the statement of the deceased made was in her own language cannot reduce it
value of the dying declaration.
It was given by the High Court of Kerala:
"Presumed that the statement made by the deceased when he was dying recorded in
his language in which he has command or fluent, does not vitiate it value and
court cannot deny or rejected on that basis. Judicial magistrate entrusted with
the duty to convert the statement in court language. And such translation
process would not affect the credibility that dying declaration".
Multiple dying declarations
Supreme Court of India in concern to multiple dying declarations, it can be
considered upon without corroboration if there is no breakdown of fact in all
the dying declaration. If all the dying declarations are similar to each other
and state correctly the cause of death, and there is no contradiction between
the statement it can be admissible but if the dying declaration is different
from each other and there is a contradiction between them, then court will
cross-examine the facts of the case or can examine the statements of other
witnesses to determine the truth and sanctity of statement regarding the case.
The statement of the deceased should match the facts and circumstances of the
case. It is very important to understand the character of multiple dying
Points to be considered in multiple dying declarations:
- There should be regularity in all the dying declaration.
- If all the dying declaration does not match or say overlap, then the
court will examine the facts of the case with the dying declaration or
examine the witnesses.
In Kushal Rao v state of Bombay
that case Court set the importance rules for
dying declaration and what is the right process or manner to record it. In this
case, if the dying statement made by the deceased. That it should be recorded in
the form of question answer form, shall be endorsed/supported by the doctor that
the deceased was in good mental state, can be recorded by the person who is
legally entitled to record, if there are multiple dying declarations than it
should be consistent, so that the court can rely on it.
The Supreme Court has held that multiple dying declarations can be reliable when
it made without corroboration if consistency is maintained throughout the
statement. Otherwise, the courts would have to cross-examine the statements of
other witnesses to determine the truth in a criminal trial.
Expectations of death is not necessary
Under English Law, the victim should not be under any expectation of death.
Evidence Act has taken this law from English law. If the statement has been made
even when no cause of death had arisen then also the statement will be relevant.
It is not important at all that the statement recorded should be just before the
death of the victim.
In Pakala Narayan Swami v Emperor
, it was held that the letter given by the
deceased to his wife before going to the place where he was killed was relevant.
The court said that the statement made must be at any rate near death or the
circumstances of the transaction explaining his death is relevant under section
32 of Evidence Act. In this case, the court stated that dying declaration can be
any statement that explains the cause of death or the circumstances of the
transaction explaining his death. Hence, statements as to any of the
circumstances of the transaction which resulted in the death would be included.
Dying declaration Case laws and landmark Judgments
- Lakhan v. State of M.P. in this case supreme court provides that, when
the condition is satisfied that the dying declaration made by the deceased is
true and can be relied upon, as the declarant is found to be conscious and
mentally fit while making the statement, and the statement made by him proven to
be voluntarily and no compulsion was there while making the statement and can be
put for the sole basis of conviction. In that situation there is no need for
corroboration is necessary.
In case of multiple dying declarations consists, which consist in the form of
irregular interval and contradict each other, dying declaration recorded by the
person who is entitled to record like magistrate then there is no doubt and can
be found to be reliable.
But in circumstances where it was observed that the
statement made by the deceased is not voluntarily but due to some force or
compulsion, then the court raised suspicion on that dying declaration and Court
should re-examine the statement of witness and other facts in order to determine
- In the case of State of Punjab v. Parveen Kumar, the Supreme Court set
forth some measure to test the veracity in the case when there is more than one
dying statement. The court provides that there must be a series of examinations
in order to determine the truth. If the statements provide different versions
and do not couple with given facts, then the court must opt for other evidence
in their record to clarify the things so that truth can be inferred.
- In the case of Sudhakar v. State of Madhya Pradesh, the Supreme Court
while deciding the issue of multiple dying declarations, which varying from
other statements and have no series related to each other, this will raise a
doubt in the eyes of court to whether the statement should be believed or not,
in order to clear the issue, the Court has given some directions which help to
guide while exercise the judgment by court in such matters, examined.
The Court put forward the point that when multiple dying declarations made by
the declarant, if found either contradictory or are at variance and having no
nexus to each other to a large extent and narrate another version of the story,
then the test of common reasonableness would be applied while examining which
dying declaration is corroborated by circumstantial evidence.
Further, when the
dying declaration was made the condition of the deceased at the time of making
of each declaration concerned, medical report of the deceased, truthfulness of
statements made by deceased, possibility of deceased being tutored, are some of
the points which would guide while exercise of judicial function by court in
The Supreme Court also observed that the dying declaration is the statement made
when a person is at their bed end, as the word dying declaration itself
signifies its meaning. A person having a serious apprehension of death and there
shall be no chances for his survival. At this point, the court assumed that
whatever the statement made by the declarant is purely true as the man will
never meet his maker with a lie on his lips and person will speak only truth.
- Natha Shankar Mahajan v. State of Maharashtra in this case the supreme
court ruled that if there is a doubt about the statement made by the deceased,
in that case, the gain will transfer to the accused. As this is the correct Law
preposition. Moreover, on the other was round if the statement found to be true
and reliable ten it can be used solely as the purpose of the convection.
- The Supreme Court in the case of Surajdeo Oza v. State of Bihar does not
give an affirmative answer to the question and held that merely because the
dying declaration is a brief statement it is not to be discarded. On the
contrary, the length of the statement itself guarantees the truth.
The Court has to scrutinize the dying declaration carefully and examine each and
every sort of situation and must ensure that the declaration is not the result
of tottering prompting of imagination and the deceased had the opportunity to
observe and identify the accused and was in a fit state while making the dying
Dying deposition is almost a dying declaration. The main difference between both
is that the dying deposition is always recorded in the presence of a magistrate.
Whereas dying declaration can be recorded even by a normal person, doctor and by
a police officer.
A deposition is recorded when the lawyer of the accused is present and
magistrate record the dying declaration. But dying declaration has no such
conditions, but the evidentiary value will be more if the statement is recorded
by the magistrate. However, it can be recorded by the doctor or police officer
A case where the deceased was given the statement to his father that I inhale
the poison because of my heartbreak and the same was conveyed to the police and
father of the deceased also said that the deceased was conscious and in a fit
state of mind and the same was endorsed by the autopsy report. After that when
the police investigate the matter it was found to be true that the cause of his
suicide is the girl who used to aid and abet him to commit the suicide. Hence
the statement recorded by the normal person(father) has admissible in a court of
This is the example of dying declaration
In a case where a woman is burnt by his father-in-law. And the woman was
admitted to the hospital by the neighbour and when the police were informed
about the matter they came to rely on the statement of the deceased but the
doctor tells them that the deceased is not in a position to answer the question.
After 2nd and 3rd day when the woman is in better condition and subsequently
magistrate was available to record the dying statement and the accused lawyer
was also there. The statement is recorded and this is called dying deposition.
Evidentiary value of dying declaration
In the case of K.R Reddy v. Public Prosecutor, it was observed by the court that
the evidentiary value of dying declaration made by the deceased:
There is no doubt that the dying declaration is admissible in court under
section 32(1) of the Indian Evidence Act. and there is no compulsion while
making of dying declaration to take an oath, but the truth of the statement can
be determined by the cross-examination.
The court has to ascertain necessary
measures to check the sanctity of the statement made by the deceased. As in
India law, it was presumed that the man who is going to die, not meet his maker
with a lie on his lips this is because, when the person is at his bed end all
the desire and greed of person come to an end so probably there is no motive to
After that, the court must be satisfied with the condition that the
deceased must be in a fit state of mind while making the statement. After all
the measures assured by the court and satisfied that the statement is made
voluntarily and true then it will be sufficient to accept the statement to
finding conviction even without the corroboration.
In Khushal Rao v. State of Bombay
Apex Court laid down the following principles
related to dying declaration:
- There is no absolute rule of law that a dying declaration cannot be the
sole basis of conviction unless corroborated. A true & voluntary declaration
needs no corroboration.
- A dying declaration is not a weaker kind of evidence than any other
piece of evidence;
- Each case must be determined on its own facts keeping in view the
circumstances in which the dying declaration was made.
- A dying declaration stands on the same footing as other pieces of
evidence & has to be judged in the light of surrounding circumstances & with
reference to the principle governing the weight of evidence.
- A dying declaration which has been recorded by a competent Magistrate in
the proper manner, that is to say, in the form of questions and answers, &,
as far as practicable in the words of the maker of the declaration stands on
a much higher footing than a dying declaration which depends upon oral
testimony which may suffer from all the infirmities of human memory & human
Exception of dying declaration
There are many circumstances in which the statement made by the dying person is
not admissible in a court of law. These conditions are as follows:
- If there is no question for consideration about the cause of death of the
deceased. For example, if a person in his declaration state anything which
is not remote or having a connection with the cause of death than the
statement is not relevant and hence not be admissible.
- The declarant must be competent to give a dying declaration, if
the declaration is made by the child, then the statement will not be admissible
in court as it was observed in case of Amar Singh v. State of M.P that without
the proof of mental fitness and physical fitness the statement would not be
- The statement which is inconsistent has no value and cannot be
considered as evidentiary in nature.
- The statement made by the deceased should be free from any influential
pressure and should be made spontaneous.
- It is perfectly allowed to the court if they reject any untrue statement
which contradicting in nature.
- If the statement is incomplete in the sense which means it cannot answer
the relevant questions which are necessary to found guilty, and on the
counterpart, statement deliver nothing so it will not be deemed to consider.
- Doctor's opinion and the medical certificate should with the statement
and support that the deceased is capable of understanding what statement he
- If the statement is not according to the prosecution. In this regard,
the following points should be taken into consideration by the apex court.
- While making the statement deceased must be in fit mind of the state.
- Should be recorded by the magistrate or by a police officer and person
in a case when deceased was so precarious
- A dying declaration should be recorded in question-answer form and
written in words of the persons exactly who gives the statement.
Dying Declaration should be free and spontaneous
Dying declaration due to compulsion or pressure not be relied upon whereas dying
declaration free from any biased relied upon. As it was held in the case
of Krishna Lal v. Jagun Nath that the wife was burnt by the husbands-in-law and
in her dying declaration she held that she was not burnt by her husbands-in-law
and she was believed.
Some relevant case laws:
- The deceased must be in a fit state of mind and capable of making a
statement at the time of recording of dying declaration AIR 2001 SC 2383.
- Prior to recording of statement of deceased, the doctor shall do a
thorough and professional assessment of physical and mental condition of the
patient. 1998 Crl.LJ 585.
- Dying declaration is not mandatorily required to be recorded by any
Magistrate or particular person. However, it is normally accepted that such
declarations would be recorded by Magistrate or by doctor to eliminate chances
of any doubt of false implication. 2010 AIR SCW 5494.
- More sanctity is attached to a dying declaration recorded by Magistrate
since the recording of dying declaration by a Magistrate assures the Court
that the statement has been correctly understood and truthfully recorded by
an impartial person. 2010(3) SCC (Crl.) = 2010 AIR SCW 5993.
- At the time of recording of dying declaration as far as possible the
language used by maker of declaration should be used. (1999)3 Mah. LJ 581 (DB)
- Dying declaration cannot be rejected merely because it was recorded in
other language than that deposed by deceased 2001 Crl.LJ 3780.
- The prosecution should specifically bring on record that deceased had
heard the statement recorded by Executive Magistrate and she admitted it to
be true and correct. This is not mere formality but an essential part while
recording the dying declaration. 2000 (2) Mah. LJ 3 (DB) Bombay.
- The Magistrate who had recorded dying declaration and the doctor who
certified about the condition of the deceased out to be summoned as a
witness 2000(2) ALT (Crl.) 448.
- Where Magistrate was not present at the time of recording of statement
of deceased and statement recorded by the Head constable was fully
convincing, it can be safely relied upopn. AIR 1997 SC 234.
- Statement recorded by police officer is reliable when evidence of doctor w`as showing that the deceased was fit to making statement at that time AIR 1983
- Although a dying declaration could not be rejected on the ground that in
absence of any other person available it was recorded by a police officer as
the deceased was in a critical condition, the dying declaration was left out
of consideration as it contained a statement which was a bit doubtful AIR
1979 SC 1173.
- Where police personnel who recorded dying declaration did not mention
time required for recording it and did not obtain medical certificate on
completion of recording of dying declaration that the victim was conscious
such dying declaration was not reliable. 2010(3) AIR Bomb. R.27 (DB).
- Where doctor apprehended that the injuries could result into death of
deceased and therefore, he sent for Magistrate to record dying declaration
but the Magistrate was reported to be out of town, the doctor was most
capable and authorized person to record the dying declaration. The dying
declaration recorded by doctor after certifying that deceased was in full
senses and the statement was read over to him and on which after fully
understanding the deceased had put his thumb impression, is itself
sufficient to base conviction of accused. 1991 All (Crl.R.)303.
- Where dying declaration recorded by doctor was suffering from
infirmities and also it was uncorroborated by other evidence, conviction
solely on basis of such dying declaration was not proper. 1995 Crl.LJ 2412. (DB) (Orisha).
The dying declaration is not specifically mentioned in our penal law under
Section 32(1) of IPC. it is the statement made by the person who is going to
die, and that statement will be considered as evidence in court, how his death
caused and who is the mugger. There are many conditions that relied upon the
dying declaration that it should be in an adequate manner as dying declaration
is the weapon who convicted the accused and stood as strong evidence.
admissibility of dying declaration accepted in our Indian court because the law
presumes that in Leterm Mortem i.e in his last parting words the man will never
lie as anyone will meet his maker with a lie on his lips. This is because a man
who is going to die, end with all his needs and wants and his interest is no
more passionate for self-deeds so he seldom lies.
However, the dying declaration is found to be maliciously made then the court
has the right to reject the statement. Or there are other situations and
circumstances which coupled with dying declaration for its admissibility which
Since dying declaration contains the final words of the person dying correlated
to the causes of death of such person or as to the situation leading to the
death of such person, it is a material piece of evidence. Every attempt should
be made to stay it complete from all sorts of impurity.
Yet, human character and
standard of conduct can't govern away the danger of demolishing of dying
declarations because of numerous elements, for example, the psychological state
of the individual making proclamation, mental state of the individual account
the dying assertion, encompassing conditions of the dying presentation, the
typical and customary human mistakes in watching the things and in conveying
everything that needs to be conveyed to the others particularly, the outsiders,
and so on.
At the point when these realities combined with the conditions as
examined above-identified with the diminishing trust remainder of the dying
declarations are mulled over, it very well may be securely and carefully
presumed that the Dying Declarations are to be conceded in proof after due
validation and in the wake of confirming the encompassing conditions prompting
the dying declarations.
It isn't protected nowadays to accord consecrated status
to the dying declarations to base the discoveries of a case exclusively on its
premise and to choose the destiny of the cases and criminal procedures solely on
its premise by the Courts and even by the Investigating organizations.
" is a legal concept refers to that statement which is made by
a dying person, explaining the circumstances of his death. LORD LUSH, L.J.,
quoted that "A dying declaration is admitted in evidence because it is presumed
that no person who is immediately going into the presence of his Maker, will do
so with a lie on his lips. But the person making the declaration must entertain
settled hopeless expectation of immediate death. If he thinks he will die
tomorrow it will not do."
Dying declaration is admissible on the sole ground that it was made in extremis.
And in India, its admissibility is explained in Sec-32(11) of Indian Evidence
Act. It is cleared by the above-mentioned statements given by different courts
that dying declaration can be in any form but it must be recorded carefully &
duly proved, which the courts make admissible as the "Dying Declaration"
Written By: Bhaswat Prakash,
Ajeenkya DY Patil University, Pune (B.A.LL. B)