What is Dying Declaration – Its Applicability In Criminal Cases | CPC Notes
Dying Declaration – Its Applicability In Criminal Cases
Dying declaration is admitted in evidence. The principle on which it is admitted as evidence is indicated in the legal maxim ‘nemomoriturus prae-sumitur mentire’ which means a man will not meet his maker with a lie in his mouth.
This is exactly the reason as to why courts have held that an accused can be convicted solely on the basis of ‘Dying Declaration.’ In fact, no corroboration is required since corroboration is only a rule of prudence and not a rule of evidence.
Source Link - Dying declaration (Sec. 32-1)
Section 32 of CPC
Section 32 of the Indian Evidence Act, 1872, deals with dying declaration
and it s extracted below:
“32.
Cases in which statement of relevant facts by the 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.
Dying declaration will be admissible in evidence only when the person making the statement dies and the cause of the person’s death comes into question. If the person who has made a dying declaration survives, such a statement will not come within the purview of Section 32(1) of the Evidence Act.
Dying declaration is an exception to the general rule of excluding the hearsay evidence. The burden of proving the dying declaration is always on the prosecution. Since an accused can be convicted solely on the basis of dying declaration, the court is expected to carefully scrutinize the same.
Three
essential ingredients will have to be proved to the satisfaction of the court
and they are:-
(i)
the declarant should have been in actual danger of death at the time when he
made the statement;
(ii)
he should have had full apprehension of his danger and
(iii)
death should have ensued.
The Dying Declaration should inspire the confidence of the court about the truthfulness of such a declaration. If the court, after careful evaluation of the entire evidence, feels that the same was the result of either tutoring, prompting or product of imagination, the Declaration will not be accepted.
If
the contents of the very Dying Declaration contradicts the core of the
prosecution case, the declaration will not be the basis for conviction.
Normally, a Dying Declaration should be recorded in the words of the declarant,
but the same cannot be rejected merely because the exact words used by the
declarant are not reproduced.
In the leading case of PAKALA NARAYANA SWAMI vs EMPEROR (AIR 1939 PRIVY COUNCIL p.47), the expression ‘circumstances of the transaction which resulted in his death’ has been eloquently explained. As per the facts of the said case, the deceased had left his house to go to Behrampur.
While leaving his house, he had told his wife that he was going to Pakala Narayana Swamy’s house in Behrampur to demand him to pay back the amount given by him. Later on his dead body was found in a trunk and his body had been cut into pieces.
The question before the Privy Council was as to whether such a statement made by the deceased to his wife would really come within the purview of Section 32(1) of the Evidence Act. In fact, it was held by the Privy Council that the statement made by the deceased to his wife just prior to leaving his house to go to Behrampur was a statement and one of the circumstances of the transaction which resulted in the death of the man.
Therefore the expression ‘any of the circumstances of the
transaction which resulted in his death’ is necessarily wider in its
interpretation than the expression ‘the cause of his death.’
Normally the court looks to the medical opinion about the fit condition of the declarant at the time of making the statement. But this cannot be an inelastic rule. If the person who records the statement or the witness to the declaration tenders satisfactory evidence as to the fit mental condition, the Dying Declaration will be accepted.
In the Constitution Bench judgment of the Hon’ble Apex court in the case of LAXMAN vs STATE OF MAHARASHTRA reported in AIR 2002 SC 2973, it is succinctly explained that medical certification is not a sine qua non for accepting the Dying Declaration.
The relevant law enunciated is
as follows :
‘For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma and Others vs State of Andhra Pradesh (MAU/SC/0558/1999) to the effect that
‘... in the absence of a medical certification that the injured was in a fit state of mind at the time of makingthe declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the inured was in a fit state of mind at the time of making a declaration’ has been too broadly stated and is not the correct enunciation of law.
It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where after he recorded the dying declaration.
Therefore, the judgment of this court in Paparambaka Rosamma
and Others vs State of Andhra Pradesh (MANU/SC/0558/1999) must be held to be not correctly decided and we
affirm the law laid down by this court in Koli Chunilal Savji and another vs State of Gujarat (MAU/SC/0624/1999)
case.’
In
case of plural dying declarations, the court is expected to see whether all the
plural declarations differ in material particulars. If the declaration
materially differs from the other, the same will not be relied upon unless the
corroborative evidence is adduced.
If there are two Dying Declarations, one made before the doctor and another made before the witnesses, normally the declaration made before the doctor will be treated as more reliable.
Similar is the case in regard to a statement made
before a magistrate. If one part of the declaration is found to be untrue, the
same can be rejected by separating the same from the rest of the declaration.
If separation is not possible, it is not wise to accept such a declaration.
Dying Declaration should not be discarded merely because it did not give precise description of all the weapons used to commit the offence and about the manner in which injuries were caused.
Dying declaration cannot be rejected merely because the declarant did not die instantly or immediately
and he lingered on for some days. The declarant need not necessarily be in the
imminent danger of death.
Declaration given to a police officer is not hit by Section 162(2) of Cr.P.C. If the statement of a victim is recorded by the police as a first information and if there is a declaration, it is safe to rely on the declaration.
In the case of KHUSHAL
RAO vs STATE OF BOMBAY (AIR 1958 SC p.22), Hon’ble apex court has held that
uncorroborated dying declaration can be the basis for conviction. Following are
the principles laid down in the said judgment:
(i)
that it cannot be laid sown as an absolute rule of law that a dying declaration
cannot form the sole basis of conviction unless it is corroborated,
(ii)
that
each case must be determined on its own facts keeping in view the circumstances
in which the dying declaration was made,
(iii)
that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other
pieces of evidence,
(iv)
that a dying declaration stands on the same footing as another piece of
evidence has to be judged in the light of surrounding circumstances and with
reference to the principles governing the weighing of evidence,
(v)
that 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, and, 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 the oral testimony which may suffer from
all the infirmities of human memory and human character, and
(vi)
that in order to test the reliability of a dying declaration the court has to
keep in view the circumstances like the opportunity of the dying man for
observation, for example, whether there was sufficient light if the crime was
committed at night, whether the capacity of the man to remember the facts
stated had not been impaired at the time he was making the statement has been
consistent throughout if he had several opportunities of making a dying
declaration apart from the official record of it, and that the statement had
been made at the earliest opportunity and was not the result of tutoring by
interested parties.’
Though, law as it stood earlier was that the declaration be recorded in the form of question and answer, but in the case of SATISHCHANDRA vs STATE OF MADHYA PRADESH ([2014] 6 SCC p.723), it is observed by the apex court that the declaration cannot be rejected on that ground alone if the declaration is otherwise acceptable and meets the requirement of Section 32(1) of the Evidence Act. A magistrate is expected to record the statement in the absence of the police.
Steps must be taken to see that no interested persons remain there while recording the declaration.
Insofar
as proof of oral dying declaration is concerned, the court should, as a
matter of prudence, look for corroboration in order to know whether such a
declaration was truthful. Following broad principles have been laid down by the
Hon’ble Apex Court in the case of ATBIR vs GOVT. (NCT OF DELHI) reported
in [2010] 9 SCC 1 in paragraph 22 which are extracted below:
(i)
Dying declaration can be the sole basis of conviction if it inspires the full
confidence of the court.
(ii)
The court should be satisfied that the deceased was in a fit state of mind at
the time of making the statement
and that it was not the result of tutoring, prompting or imagination.
(iii)
Where the court is satisfied that the declaration is true and voluntary, it can
base its conviction without any
further corroboration.
(iv)
It cannot be laid down as an absolute rule of law that the dying declaration
cannot be the sole basis of conviction unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence.
(v)
Where the dying declaration is suspicious, it should not be acted upon without
corroborative evidence.
(vi)
A dying declaration which suffers from infirmity such as the deceased was
unconscious and could never
make any statement cannot form the basis of conviction.
(vii)
Merely because a dying declaration does not contain all the details as to the
occurrence, it is not to be rejected.
(viii)
Even if it is a brief statement, it is not to be discarded.
(ix)
When the eyewitness affirms that the deceased was not in a fit and conscious
state to make the dying declaration, medical opinion cannot prevail.
(x)
If after careful scrutiny, the court is satisfied that it is true and free from
any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no
legal impediment to make it the basis of conviction, even if there is no
corroboration.’
The magistrate recording the statement should obtain the signature/thumb impression of the declarant on the declaration. If it is not possible, there must be an explanation to that effect in the declaration itself.
If all the fingers of the declarant are seriously burnt, it will not be possible to obtain thumb impression/signature. The magistrate should neither cross-examine the declarant nor put any leading questions to the declarant.
As far as possible, the declaration should be in the form of question and answer and preferably the words used by the declarant should be written. The recorded declaration should be sent to the concerned court through a special messenger in a cover and the same should not be handed over to the police.
A
copy of the declaration may be given to the police for further investigation.
As far as possible, the magistrate may obtain a certificate from the doctor
about the fitness of the declarant to give a statement.
Though a Dying Declaration is entitled to great weight, one cannot forget that the accused has no power to cross-examine the declarant to elicit the truth. Hence the court should be satisfied about the truthfulness of such a declaration and the same being not tutored in any manner.
Section 32(1) of the Evidence Act does not prescribe any statutory guideline in the matter of recording dying declaration, and considering the same while appreciating the evidence. But the Hon’ble apex court, in several leading decisions, while considering the facts of each case, has laid down some broad guidelines and thus they have become binding precedents under Article 141 of the Constitution of India.
While evaluating the evidence, especially in criminal cases, the court is expected to keep in mind the novel observation made by the apex court in the case of STATE OF U.P. vs KRISHNAGOPAL (AIR 1988 SC p.2154 – paragraph 13).
The
relevant observation is as follows :-
‘……There is an unmistakable subjective element in the evaluation of the degree of probability and quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and ultimately on the trained intuitions of the judge.
While the protection given by the criminal process to
the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make
a mockery of administration of criminal justice.’
Ref. -
By
Justice A.V.Chandrashekar
Author
is a Former Judge of High Court of Karnataka
Comments
Post a Comment