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DYING DECLARATION – ANALYSIS THROUGH LANDMARK JUDGMENTS

Authors of this article – Mr.Parmesh Golecha and Mr. Barathan Balu both studying Vth year BBA.LL.B (Hons) – SASTRA deemed to be University – Thanjavur.

Introduction:

In any criminal Trial and investigation the role of dying declaration or any statement given by the victim prior to his or her death will hold a substantial value and consideration. There are many principles and doctrines which are circumscribing the proviso 32 of Indian Evidence Act, 1872. In this article the author will discuss about the landmark judgments pertaining to Dying Declaration and when, how that document should be adduced in the Court for examination of the Document.

dying declaration Should be independent and substantive piece of evidence.

Where a document can be brought under sec.32 by proof of death of the person who prepared it or other facts contemplated by the §32, it can be used not only as corroborative but as independent witness.[1] Evidence admitted under this section is substantive evidence.[2] The provision reads as follow:

32. 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 expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.”

S.32(1) is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is homicidal or a suicidal, provided the statement relates to the cause of the death, or exhibits circumstances leading to the death. Where the main evidence consists of statements or letters written by the deceased which are directly connected to the death or  which reveals a tell-late story, the statement would clearly fall within the four corners of S.32 and therefore, admissible.[3]

Arguendo, a dying declaration need not have been made in expectation of death.[4] The onus of establishing the circumstance that would bring a statement within any of the exceptions in S.32 lies on the party wishing to avail itself of the statement.[5] The fact that the fact of oral dying declaration was not mentioned in F.I.R was held immaterial, accused was convicted under S.302 of IPC.[6]

 “Nemo moriturus praesumitur mentirei,e., a man will not meet his maker with a lie in his mouth. It is indicative of the fact that a man who is on a death bed would not tell a lie to falsely implicate an innocent person. This is the reason in law to accept the veracity of her statement. It is for this reason the requirements of oath and cross-examination are dispensed with.[7] The dying declaration if found reliable can form the base of conviction.[8] The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and min is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.[9] A statement by the deceased that he had been beaten by the accused is admissible without proof that at the time when the statement was made, the deceased was conscious of any fatal effect of such beating.[10]

principles governing dying declaration

The Hon’ble Apex Court in Kalawati W/o, Devaji Dhote vs. State of Maharashtra AIR 2009 SC 1932 2009(1) Supreme 800 has held that, in respect of the principles governing dying declaration, which could be summed up as under as indicated in, Smt. Paniben vs. State of Gujarat (AIR 1992 SC 1817):

There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.[11] [A]. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.[12] [B]. 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 has an opportunity to observe and identify the assailants and was in a fit state to make the declaration.[13] [C]. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.[14] [D]. Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.[15] [E]. A dying declaration which suffers from infirmity cannot form the basis of conviction.[16] [F].  Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected.[17] [G]. 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.[18] [H]. Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.[19] [I]. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.[20] [J]. Where there is 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 declarations could be held to be trustworthy and reliable, it has to be accepted.[21] [K].

oral dying declaration:

The landmark case regarding dying declaration is Pakala narayana Swamy v. Emperor,[22] court explained the expression “Circumstances of the transaction which resulted in his death”. The facts of the case is, deceased left his house to visit the Accused. He informed his wife that he is going to Pakala narayana swamy’s house to get back the money given by him. Subsequently his body was found in a truck which was cut into pieces. The question addressed by the Privy Council is whether the statement made by the deceased to his wife can be circumscribed under section 32(1) of the Indian Evidence Act, 1872. The Court held that the statement made by the deceased to his wife prior he leaves his house is a statement and is a circumstance of the transaction which resulted in his death.

It has been held that even though an oral dying declaration can form basis of conviction in a given case, but such dying declaration has to be trustworthy and free from every blemish and inspire confidence. The reproduction of the exact words of the oral dying declaration in such cases is very important.[23] The difference in the exact words of the declaration detracts materially from the value of oral dying declaration.[24] Holding that the opinion of the doctor on the question of the ability of the declarant to talk immediately after occurrence was not conclusive.[25]

Oral dying declaration stands on different footing than the written dying declaration. The prosecution must lead evidence that the deceased was in fit mental state to make declaration, the prosecution of exact words of the deceased is necessary.[26] The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every man is induced by the most powerful consideration to speak only truth.[27]

When deceased was not in a fit mental state to make the dying declaration.

The apex court in Arun Bhanudas Pawar v. State of Maharastra Where a dying declaration made by the deceased was made not to doctor or to an independent witness but to his mother, deceased after operation was lying on bed in unconscious condition, the prosecution had not brought on record any medical certification to prove that after operation the deceased was in a fit condition to make the declaration before his mother, the alleged oral dying declaration was found unreliable and eschewed from consideration.[28]

Oral dying declaration has to treated with care and caution as to ensure that the statement is credible.

Oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to cross-examination.[29] For instance, when the deceased was transported to hospital and his consciousness de hors the mental condition and consciousness of the declarant also comes as a question. Ipso facto the presence of dying declaration will not create a culpability against the accused per contra the mental fitness should be examined. The Hon’ble Supreme Court in Amar Singh v. State of M.P held that without proof of mental or physical fitness, dying declaration is not reliable.[30]

In the case Kake singh v. state of M.P[31]; the Court mentioned that where the deceased was found to be unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.[32] The Court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination.[33]If the vital organs of the deceased were completely smashed, it is impossible that he was in a fit state of mind and body.[34]

Conclusion:

The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every man is induced by the most powerful consideration to speak only truth. The author’s opinion is that every statement of the person who is dead or cannot be found should be given appropriate importance but the same should be admitted with proper caution and scrutanisation. Because the statement of a person who is dead is going to put the guilty person who is not dead behind the bars.

[1] Charriter v. kailash, A.I.R 1918 PC 537 : PLJ 306

[2] In re karuppan, A.I.R 1916 Mad 1211 : 16 CrLJ 759

[3]Mithailal v. state of Maharastra, 1993 CrLJ 3580, 3585 (Bom)

[4]Tehansingh v. State of Punjab, A.I.R 1979 SC 1347; Rajindrakumar v. State, A.I.R 1960 Punj 310; Chinnavalayan v. State of Madras, 1958 Mad LJ 246; In re : Kalusingh, A.I.R 1964 MP 30; Allijan v. State, A.I.R 1960 Bom290; Tindan v. State, A.I.R 1965 HP 11; Emperor v. akbarali, A.I.R 1933 Bom 479; R v. Premananda, A.I.R 1925 Cal 876; Pakala narayana swamy v. Emperor, 1939 PC 47; Enayakthan v. Emperor, 1935 Lah; State of Orissa v. Kaushlya devi, A.I.R 1965ori 38; state of Bihar v. Suraj deo rai, ILR (1972) 51 Pat 205; Bharat v. State of A.P, A.I.R 2004 SC 1610; Kulwant singh v. State of Punjab, A.I.R 2004 SC 2875.

[5]Abdul gani v. R, 1943, 2 Cal 423 : A.I.R 1943 Cal 465 : 47 CWN 332

[6]MdHalim Ali V. State of Assam, 2008 CrLJ 2329 (2332)(Gau-DB)

[7]Vikas v. state of maharastra, (2008) 2 SCC 516 (526); Sharda v. State of Rajasthan, A.I.R 2010 SC 408(412); Nallapati sivaiah v. SDO, (2007) 15 SCC 465 (475)

[8] Narain singh v. State of Haryana, A.I.R 2004 SC  1616

[9] Sham Shankar Kankariya v. state of Maharastra, (2006) 13 SCC 165 (171)

[10]R v. Blechyanden, 6 CLR 278

[11]Munnu Raja and another v. The State of Madhya Pradesh, (1976) 2 SCR 673.

[12]State of Uttar Pradesh v. Ram Sagar Yadav and Others, A.I.R 1985 SC 416 and Ramavati Devi v. State of Bihar, A.I.R 1983 SC 164

[13]K. Ramachandra Reddy and another v. The Public Prosecutor, A.I.R 1976 SC 1994.

[14]Rasheed Beg v. State of Madhya Pradesh, 1974 (4) SCC 264.

[15]Kala Singh v. State of M.P, A.I.R 1982 SC 1021.

[16] Ram Manorath and others v. State of U.P. (1981 (2) SCC 654.

[17] State of Maharashtra v. Krishnamurthi Laxmipati Naidu, (A.I.R 1981 SC 617

[18] Srajdeo Oza and Others v. State of Bihar, A.I.R 1979 SC 1505.

[19]Nanahau Ram and another v. State of Madhya Pradesh, A.I.R 1988 SC 912.

[20]State of U.P. v. Madam Mohan and others, A.I.R 1989 SC 1519.

[21]Mohanlal Gangaram Gehani v. State of Maharashtra, A.I.R 1982 SC 839) and Mohan Lal and others v.. State of Haryana, (2007) (9) SCC 151)].

[22] AIR 1939 PC 47

[23] Darshana Devi v. State of Punjab, 1996 SCC (Cri) 38

[24] Natha v. State of M.P., 2003 (2) JLJ 144

[25] Ravi chander v. State of Punjab, A.I.R 1999 SC 3695

[26] Madhukar Ramsingh Alkari v. State of Maharastra, 2009 CRLJ(NOC) 469

[27] Laxman v. State of Maharastra, 2002 CriLJ 4095

[28] Arun Bhanudas Pawar v. state of Maharastra, (2008) 11 SCC 232 (241)

[29] Ibid.

[30] Amar singh v. State of M.P, 1996 CrLJ 1582 (MP)

[31] 1982 CriLJ 986

[32] Kake singh v. state of M.P, 1982 CriLJ 986

[33] Laxman v. State of Maharastra, 2002 CriLJ 4095

[34] Darshan singh v. state of Punjab, A.I.R 1983 SC 554

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