DYING DECLARATION - AN OVERVIEW OF CASES
L.K. Swaraj BBA. LL.B., (Hons.)
Sastra Deemed University, Email: swaraj2208@gmail.com Mobile: 9884582851
Dhanya Dheekshitha K.H.
Sastra Deemed University, Email: jessyastro@gmail.com Mobile: 7598478999
Abstract:
The edifice of criminal jurisprudence completely lies on evidences. The authors in this paper discusses the importance of evidences, which are of two types namely, primary and oral evidences. It is a well-established principle that hearsay evidences are not admissible in court of law. The only exception to hear§say evidence is dying declaration. Dying Declaration as per Section 32(1) of the Evidence Act is the only statement that is given just before the death. The concept of dying declaration rests on the Latin maxim of “Nemo moriturus praesumitur mentire” which means “a man will not meet his maker with a lie in his mouth”. The authors in this paper detailly discusses the different forms of dying declarations, how dying declaration has been treated in English Law. The authors have relied upon a plethora of cases to clearly trace out the evolution of the treatment of dying declaration in Indian Law and the procedure followed for recording a dying declaration. The author discusses about the role of the medical officer and the importance of his reports. The paper also discusses the requirement of the mental fitness certificate and the mental state of mind of the victim during the time of the declaration. Overall the authors have discussed different aspects of dying declaration and its importance as an evidence in Indian criminal law.
Introduction:
Let a hundred guilty escape but not one innocent should be punished is the popular version of Blackstone’s formulation also known as the Blackstone’s ratio who said, “It is better that ten guilty escape than that one innocent suffers”. But in the eyes of law finding who is guilty and who is not, is a challenging one. The court of law to decide on such matters rely on evidences. Evidence in simple terms is defined as the available body of facts or information indicating whether a belief or proposition is true or valid. As per The Indian Evidence Act, 1872, evidence means
• All statements that is made in relation to matters of fact under inquiry which the court permits or requires to be made before it by witnesses are called oral evidence;
• [All documents including electronics record produced for the inspection of the court]; such documents are called documentary evidence. (§3(e)(2) of The Evidence Act, 1872)
Evidences are also categorised into primary evidence and secondary evidence. Primary evidences are evidences where the document itself is produced for the inspection of the Court. (§62 of The Evidence Act, 1872) Secondary evidences are those evidences which the courts rely upon when an evidence cannot be obtained as primary evidence but in another certified format. Oral evidences can be both direct and indirect in nature which is also known as hearsay evidence. Other types of evidences include Documentary evidences and Electronic evidences.
Where a document can be brought under Section 32 by proof of death of the person who prepared it or other facts contemplated by the Section, it can be used not only as corroborative but as independent witness. (Charriter v. Kailash, A.I.R 1918 P.C. 537) Evidence admitted under this section is substantive evidence. (In re Karuppan, A.I.R. 1916 Mad 1211) Hearsay evidence has no admissible value in a Court of law. But there is an exception to the rule of hearsay evidence also. Section 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 suicidal, provided the statement relates to the cause of the death, or exhibits circumstances leading to the death. If the primary evidence consists of statements or letters written by the deceased which reveals a tell-tale story as to cause of death or has a direct nexus to the cause of death then the statement would clearly fall within the purview of Section 32(1) and shall therefore be admissible (Mithailal v. State of Maharastra, 1993 Cr. LJ. 3580).
Declarations made by a victim when he is on the verge of dying or when his life is in serious danger and when these declarations are recorded, the court accepts these evidences. This type of evidence is known as dying declaration. Section 32(1) of the Indian Evidence Act, 1872, states that in cases in which the cause of that person's death comes into question then the statement made by a person as to the cause of his death, or as to any of the sequence of events which resulted in his death then, such statements are relevant irrespective of whether the person who made them at the time when they were made, was or was not under expectation of death.
The concept of dying declaration was derived from the term ‘Leterm Mortem’ which means ‘words before death’. when a statement is made by a person pertaining to the cause of his death or circumstances leading to his death, such a statement is admissible in court and are compendiously called dying declaration (Uka Ram v. State of Rajasthan, A.I.R. 2001 S.C. 1814). Dying declaration plays an important role in deciding a case as the person giving the declaration cannot be cross-examined during the proceedings. Thus, the credibility of a dying declaration is always put in as the first question in the decision of a case.
Dying declaration being considered as a valid evidence rests on the Latin maxim of “Nemo moriturus praesumitur mentire” which means “a man will not meet his maker with a lie in his mouth”. It is an 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 his or her statement. It is for this reason the requirements of oath and cross-examination are dispensed with (Vikas v. State of Maharashtra, (2008) 2 S.C.C. 516, Sharda v. State of Rajasthan, A.I.R. 2010 S.C. 408). The dying declaration can form the sole base of conviction if it is found to be reliable (Narainsingh v. State of Haryana, A.I.R. 2004 S.C. 1616). But the oral dying declaration must be carefully scrutinised and carefully analysed as the maker of the statement cannot be cross examined by the court.
Dying Declaration in English Law:
According to English Law the statement given would be considered admissible only when charge of an offence is grave in nature such as that that of a murder. This was first discussed in the case of R. v. Mead, wherein an accused who was convicted earlier for giving false evidence applied to the court for new trial. Before the trial could be conducted the accused shot the primary witnesses. Lord Abbot, C.J., expressed his view in the court that “we are all of opinion that evidence cannot be received and evidence of this description is only admissible where the death of the deceased is the subject of the charge, and the circumstances of the death, the subject of the dying declaration.
In Indian Law:
The Indian Evidence Act is slightly different from that of that of English Law in the subject of dying declaration. One of the most important departures from English Law that the Evidence Act marks is that here it is not necessary that the declarant should be under any expectation of death (Sharad Birdhichand Sarda v. Maharashtra, (1984) 4 S.C.C. 116). In Indian law if the declarant has in fact died, then even if the cause of death had risen at the time of making the declaration and if the statement explains the cause of his death, the statement will hold evidentiary value. Any information acquired or conveyed by the deceased before his death regarding the cause of his death is also considered as a dying declaration (Emporer v. Mohammad Sheik, 1942 2 Cal 144).
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 (Laxman v. State of Maharashtra, 2002 Cri. L.J. 4095). When every motive to falsehood is silenced, and 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 (Sham Shankar Kankariya v. State of Maharashtra, (2006) 13 S.C.C. 165). Dying declaration recorded by a Chief judicial or executive judicial magistrate or by an investigating officer is regarded as the most reliable declaration.
The Hon'ble Apex Court in Kalawati W/o, Devaji Dhote v. State of Maharashtra (A.I.R. 2009 S.C. 1932), has held that, in respect of the principles governing dying declaration, which could be summed up as under as indicated in, Smt. Paniben v. State of Gujarat (A.I.R. 1992 S.C. 1817), there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (Munnu Raja v. The State of Madhya Pradesh, (1976) 2 S.C.R. 673). If the Court can convict a person solely based on the dying declaration without corroboration, if it is satisfied that the dying declaration is true and voluntary (State of Uttar Pradesh v. Ram Sagar Yadav, A.I.R 1985 S.C. 416; Ramavati Devi v. State of Bihar, A.I.R. 1983 S.C. 164). It is the duty of the court carefully scrutinise the dying declaration to certify that the declaration is not the result of tutoring, prompting or imagination (Sunder v. State of Rajasthan, (2007) 10 S.C.C. 371, Muthukutty v. State by Inspector of Police, Tamilnadu, A.I.R. 2005 S.C. 1473, Sham Shankar Kankaria v. State of Maharashtra, (2006) 13 S.C.C. 165).
The deceased has an opportunity to observe and identify the assailants and was in a fit state to make the declaration (K. Ramachandra Reddy v. The Public Prosecutor, A.I.R 1976 S.C. 1994). If the dying declaration is suspicious in nature, it cannot be the sole basis of conviction without any corroborative evidence (Rasheed Beg v. State of Madhya Pradesh, 1974 (4) S.C.C. 264). If at the time of making the dying declaration the deceased was unconscious and could never make any dying declaration, then the dying declaration is clearly false and shall be held admissible (Kala Singh v. State of M.P, A.I.R. 1982 S.C. 1021). A dying declaration which suffers from infirmity cannot form the basis of conviction (Ram Manorath v. State of U.P. (1981 (2) SCC 654). A dying declaration cannot be rejected merely because it does not is not brief or is without complete details as to the occurrence of that event (State of Maharashtra v. Krishnamurthi Laxmipati Naidu, A.I.R 1981 S.C. 617).
On the contrary, it can even be interpreted that the to the point answering of the statement itself guarantees truth (Srajdeo Oza v. State of Bihar, A.I.R 1979 S.C. 1505). Under normal circumstances the Court in order to ensure the credibility of the dying declaration obtains the medical opinion in order to satisfy itself that the deceased was in a fit medical condition. However where the eyewitness who were present during the recording of the dying declaration have stated that the deceased was in a conscious mental state to make the dying declaration, the medical opinion alone cannot take precedence (Nanahau Ram v. State of Madhya Pradesh, A.I.R. 1988 S.C. 912). Where the prosecution version is contradictory with the statements as given in the dying declaration, the said declaration cannot be acted upon (State of U.P. v. Madam Mohan, A.I.R. 1989 S.C. 1519).
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 (Mohanlal Gangaram Gehani v. State of Maharashtra, A.I.R. 1982 S.C. 839; Mohan Lal v. State of Haryana, (2007) (9) S.C.C. 151). 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 (Laxman v. State of Maharashtra, 2002 Cri. L.J. 4095).
Prescribed form and format
When a dying declaration has been recorded by a person at a time when the deceased was physically and mentally fit to make a declaration and was not under any tutoring, duress or prompting, it can be the sole basis for recording conviction without any corroboration (Lakhan v. State of M.P). Initially the Indian courts were of the opinion that an uncorroborated dying declaration cannot be relied upon. This view has been altered through a plethora of judgements that a true and voluntary dying declaration doesn’t require any corroboration. Even if it proved that the dying declaration has been made under suspicious circumstances and corroboration is present, the dying declaration holds full evidentiary value.
There is no mandatory format for dying declaration. The major question on its credibility shall be based on the circumstances surrounding the dying declaration and the soundness of the declarant, not the form and format. However certain aspects must be present in order to hold validity in the eyes of law. The dying declaration must have a note of the date and time of starting and ending of recording of statement and must be recorded in the presence of independent witnesses. The declaration must be true and free of influence by others, prompting, tutoring or imagination. The presence of any such element invalidates the entirety of the declaration.
The declarant should affix his or her signature or thumb impression to it after the statement is read over to them again and if not, then should mention the reason for not signing it in the end of the statement. The declaration must be signed and attested by both the witness and investigating officer if the declarant writes his statement himself. Thus, it should be signed by the person who is recording along with date and time of the recording it, the signature of the independent witness must also be present in order to corroborate the content of the document. Such declaration shall be considered truthful and reliable.
If the declarant becomes unconscious while the statement being recorded, person who is writing it must finish it with as much information possible and sign it. But in cases where the declarant loses consciousness during the recording of the statement, then the evidentiary value of such incomplete declaration is again questionable and require corroboration. The original copy must be properly sealed and handed over to authorised personnel and a photocopy of the document must be kept in a file.
It is preferred that the dying declaration be in question and answer form. The credibility is also increased if the dying declaration is written in the mother tongue or vernacular language of the declarant. But a dying declaration does not become prima facies invalid for these reasons alone. It can be in a narrative format or as a series of statements. It is preferred that it should be written in the vernacular which the patient understands and speaks. It is not mandatory to record it in question answer form.
Oral Dying Declarations:
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 (Darshana Devi v. State of Punjab, 1996 S.C.C. (Cri) 38). The difference in the exact words of the declaration detracts materially from the value of oral dying declaration (Natha v. State of M.P., 2003 (2) J.L.J. 144).
Holding that the opinion of the doctor on the question of the ability of the declarant to talk immediately after occurrence was not conclusive (Ravi Chander v. State of Punjab, A.I.R 1999 S.C. 3695). Oral dying declaration stands on different footing than the written dying declaration. 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 (Arun Bhanudas Pawar v. State of Maharashtra, (2008) 11 S.C.C. 232).
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 (R. v. Blechyanden, 6 C.L.R. 278).
The apex court in Arun Bhanudas Pawar v. State of Maharashtra, (Sarjoo Prasad v. The State of Uttar Pradesh, A.I.R. 1961 S.C. 631) held that in the case were the dying declaration was made to the relative, namely the mother in an unconscious condition after operation and not to a doctor or independent witness, in such instances there arises a question as to the credibility of the dying declaration. Moreover, the prosecution had also failed to bring any medical certificate to prove that the declarant was of sound mind to give a dying declaration in order to establish the credibility of the declaration. Thus, the dying declaration was declared unreliable and hence was not accepted as a valid evidence.
Gestures and Signs form.
The Apex court in the case of ''Queen v. Abdulla” (1885 ILR 7 All 385) held that if a person has sustained such injuries so that it rendered him incapable of speech then such a person can make a dying declaration by answering the questions in the form of gestures and signs. However, questions as to the comprehension of these gestures will arise to challenge the validity of the declaration. The court has clearly held that in such cases the circumstances in which the declaration, the position and authority of person recording the dying declaration, the complexity of the questions asked, the format in which these questions were asked and the gestures made as a reply to each of these questions. The answers to these questions may even through signalling yes or no by nodding the head. Thus, a dying declaration shall not be eschewed from consideration solely because it was in the form of gestures. It would be denial of justice to the victim if the assaulter was discharged merely because dying declaration in the form of gestures is invalid. This principle was upheld in a plethora of cases including the infamous Nirbhaya rape case (Mukesh v. State of NCT, (2013) 2 S.C.C. 587) were the dying declaration recorded by the metropolitan magistrate was mostly through signs, gestures and nods of the head. It was held to be a valid dying declaration and was admitted by the court.
Compos Mentis:
The words Compos Mentis means having full control of one’s mind. It is essential that the declarant must be in a sound state of mind (compos mentis) at the time of making the declaration. This certificate gives additional credibility to erase all doubts surrounding the reliability of the dying declaration. The major criteria’s for awarding a compos mentis certificate is whether the declarant is conscious, whether he is capable of understanding and comprehending the questions asked and whether he is aware of the legal implications of the allegations he is making. It is very crucial to examine the mental health of the victim while making a dying declaration as there exists a possibility of imagination due to influence of the medication. The doctor is required to certify that the patient is in a sound mental condition to make a statement before it is recorded.
The mental fitness certificate is not a document that is given for the sake of formality. The major aspect to be considered is whether the patient was mentally capable of giving a dying declaration from the start of recording the dying declaration till the completion of recording the statement. The doctor must also record the date and time of certifying compos mentis.
Such mental fitness certificates are more accurate if given by experts in the field i.e., the doctor present during the recording of the statement. Though, in certain unavoidable circumstances where it is not practically possible to obtain an expert opinion, the declaration retains its value if there are witnesses certifying that the declarant was of sound mind to give a dying declaration. It is also sufficient if the Judicial Magistrate is satisfied that the victim was fit enough to give a dying declaration. He also must ensure that a certificate of mental fitness is given by the doctor, if present during the recording of the declaration. If due to unavoidable circumstances making it practically infeasible to ensure the attendance of a medical expert the magistrate can record a dying declaration on his own. But he has to give an explanation as to why it was futile to wait for a medical opinion.
Even if no such certificate is affixed with the dying declaration, it still retains its validity in the eyes of law as the principle ‘nemo moriturus praesumitur mentire’ translated as a man will not meet his maker with a lie in his mouth comes to its defence. Medical opinion will not take precedence over the eyewitness who was present during the recording of the testimony. A medical opinion is merely a helping role in order to aid the court in arriving at a conclusion and not a directory one.
Dying Declaration recorded by a Judicial Magistrate:
Dying declaration recorded by the judicial magistrate or executive magistrate is considered as one of the most reliable form of recording the declaration. The medical officer or the investigation officer applies to the judicial magistrate for recording the declaration. The judicial magistrate must record the declaration and must sign the recorded declaration at the presence of 2 witnesses or in front of the medical officer. His duty does not get over with merely signing the declaration, but he needs to testify it in the court of law.
Multiple Dying Declarations
In case of a multiple dying declaration
1. There should be consistency in all the dying declarations.
2. If all the dying declaration does not match, 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 (1958 Cr.L.J. 106) it was held that, if the dying declaration is recorded in question-answer form, if the medical certificate is given by the doctor, if it is recorded by the authorized person, then it is admissible and reliable. If there are multiple dying declarations, then court investigates all these points to see which dying declaration holds more evidentiary value. In Kashi Vishwanath v. State of Karnataka ((2013) 7 S.C.C. 162) the court refused to place evidentiary value on multiple declarations that were glaringly contradicting each other.
The Hon’ble Apex Court has held that even in case of multiple dying declarations, corroboration is not required if consistency is maintained throughout all the declarations. If there is an irregularity, then the court is bound to examine other witnesses present to ensure its credibility. However, the presence of multiple dying declaration does not prima facie render it an invalid evidence.
In case of inconsistent multiple declarations, the declaration which was made by a person with more authority and reliability is given preference, for example the declaration recorded by the Magistrate has more value than the one recorded by relatives of the deceased. In cases of inconsistencies in the dying declaration, the first dying declaration that was recorded is given more weightage (Ranjit Singh v. State of Punjab, (2010) 12 S.C.C. 506) but the circumstances surrounding the dying declarations so made has to be carefully scrutinised.
If there is any suspicion surrounding the making of the dying declaration that it has not been made voluntarily or otherwise and no corroborating evidence is present, the court is duty bound to carefully scrutinise and analyse each dying declaration and ascertain that the deceased had opportunity to observe and identify the assailants and was in a fit state of mind to make the disclosure (K. Ramachandra Reddy v. Public Prosecutor, A.I.R. 1976 S.C. 1994). If the multiple dying declarations are inconsistent which each other and the declarant has made contradictory statements by himself then such declaration cannot be relied upon (Mehiboobsab Abbasabi Nadaf v. State of Karnataka, A.I.R. 2007 S.C. 2666).
Guidelines as per Kushal Rao v. State of Bombay:
The apex court has clearly laid down the guidelines for evidentiary value of dying declaration as:
• There is no absolute law that uncorroborated dying declaration cannot be sole evidence.
• Facts of each case and circumstances must be considered.
• Dying declaration is not a weaker kind of evidence.
• A dying declaration recorded by competent person in proper format stands in a higher footing that an oral dying declaration which may suffer from infirmities of memory.
• The declarant has opportunity to observe and identify the assailant.
Conclusion
Thus, the authors through this paper conclude that, it is clear that the method of giving a dying declaration whether oral, written or through gestures doesn’t affect the credibility of the dying declaration. The primary aspect to be considered is that the dying declaration must be free from any influence, prompting, tutoring, imagination or hallucination. The evidentiary value of dying declaration, its admissibility has been evolving with constant changes by the Indian Judiciary and thus, most suitable form or method of recording a declaration cannot be determined objectively in a standard basis.