Indian Evidence Law: Dying Declaration

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INTRODUCTION

This dying declaration is mentioned in section 32-clause (1) of the Indian Evidence Act, 1872. The declaration of dying means a statement of the person in written or verbal form of relevant facts made by that person who has died. The dying declaration could be proved by a person who records it, and it is not accomplished unless the full name and address of the witnesses are recorded in it. A dying declaration is also called ‘leterm mortem’ which means “Words spoken before death.”  That person who is dying has told their death how he has died in which circumstances, what is the cause of death. This is all about the dying declaration by that person by his mouth at the time of dying.

PRINCIPLE OF DYING DECLARATION

The principle of dying declaration is based on a Latin maxim ‘Nemo moriturus praesumitur mentire.’ This means ‘A man will not meet his maker with a lie in his mouth.’

In easy words, when a person dies, then he would go to God in heaven here, god is the maker as per the maxim. And no one wants to die with falsehood in your mouth when he would meet next to god after death. That is why the person who is dying and who is about to die. He would never falsehood at the time of death. Therefore, the truth sits down on the lips of that person who would about to die.

TYPES OF DYING DECLARATION

There are some types of dying declaration: Written, Oral, and gesture dying declaration.

1. Written dying declaration

In writing the declaration of death, the dying person has to write about their death, which means how he died, under what circumstances he died, does anyone want to kill him, and any possible cause that he has described in his declaration before the death. This declaration may be admissible in the court of law of a deceased person when this declaration of death appears before the court in writing.

For example, a girl (A) who loves Sri (B). But after some time, girl (A) breaks up her relationship with Sri (B). Sri (B) did not like that. Therefore, Sri (B) seduces her online by chatting and blackmailing her for money, and if she does not agree to give him money then, he warns her he would viral her nude pictures in the public domain. Due to the defamation before her family and society, she wrote a letter in which she described all things with the name of Shri (B) then she commits suicide. Now, that letter plays the role of the dying declaration of girl (A) who has now died, and this letter would appear before the court. So, this is all about the dying declaration in written form.

2. Oral dying declaration:

In this, the deceased person told about their death by mouth, not in written form which, means how he died, under what circumstances he died, and Any possible reason he might have described when he was announcing his death. When the declaration mentioned the name of the accused in the presence of the doctor who gave him a preliminary statement.

For example, a terrible fight ensued between two people (A) and (B) as a result, (A) stabbed (B) and immediately fled from there. Afterward, (C) saw (B) will be died because of the stabbing he goes to (B) and (B) told everything about their death to (C) that who was cause my death and in which circumstances all these things (B) told to (C). Though (C) did not see anyone at the death place of (B) but still, if he appears before the court as a witness and tells the truth of (B)’s dying declaration then, the court admits this dying declaration which, is indirect.  Because it was being told by (C) so it is indirect if (B) had said it himself, it would have been a direct declaration of death but, (B) has died, so the court accepts the statement of (C) regarding dying declaration of (B).

3. Gestures Dying declaration

In this, the dying person told about his death by any kind of indication because he is incapable of told their death in verbal or written.

For example, there is a couple who were living in their house. The wife got such news from somewhere that her husband goes to meet another girl every evening by lying to her. So, she stabbed her husband with a knife at night because of just one news. He shouted, save me, his servant comes upstairs, and the owner has been stabbed by someone, and the dying owner indicates the servant by pointing his hand towards the picture of his wife. He did all this because he was not in a position to speak and write about their death. Meanwhile, also his wife runs away from there. Therefore, all in this situation if, the servant appears before the court, then his statement is admissible in court because the servant’s owner gave a dying declaration before the servant by indicating the picture of his wife.

4. Multiple Dying Declaration

In the cases of many dying declarations, the court should consider whether they are consistent with each other. If they are not consistent, then it would be must examine whether they are material or not. In cases where there is more than one dying declaration, it is the duty of the court to consider each declaration and satisfy itself based on its voluntariness and credibility. The mere fact of recording multiple dying declarations does not renounce the importance of each declaration. The court will have to examine the contents of the declaration of death keeping, in view the many facts and circumstances surrounding it when it could have multiple dying declarations.

WHO CAN RECORD AND WHAT IS THE PROCEDURE OF DYING DECLARATION?

First, we will discuss who is entitled to record the dying declaration. The person most relevant to recording the declaration of death is the judicial magistrate, who is the most reliable. Whenever an injured person is in critical condition, the investigating officer works to send him to the magistrate to record their dying declaration. The Magistrate being disinterested witness, no question of doubt would arise. So, the best person who records the dying declaration of a person is the judicial Magistrate, and he is the number one among who would record the dying declaration.

The second person after the Judicial Magistrate is entitled to record the dying declaration is the Police officer. When a person is seriously injured, the investigating officer uses himself to record the declaration of that person’s death. So, the Police officer is the second most relevant person who can record a dying declaration. The third person who is entitled to record the dying declaration is the Doctor and In the absence of the magistrate, police officer, and doctor. At last, any person could be entitled to record the dying declaration of the dying person. When no magistrate, doctor, and police officer are present, a declaration of dying may be recorded by any person as the victim could be seriously injured.

Now, we would discuss the procedure to record the dying declaration of a dying person. Though, there is no procedure to record the dying declaration mentioned in Indian evidence law. But we use some procedures: –     Magistrate plus doctor and two witnesses are the best methods to record a dying declaration. The doctor has certified that he is conscious his mental facilities are normal and he’s mentally sound it is compos mentis, and the doctor now could record the dying declaration. Secondly, no oath is administered because a dying person never lies, so he is considered true. Thirdly, the statement should be recorded in the person’s own words without any alteration in terms of facts or phrases.

Therefore, they should use their words and not the words of another person. Fourthly, the given statement should not contain undue influence or assistance. Fifth, the person recording the dying person must articulate that the question and answer are both recorded. Sixth, the statement requires one fact, not one opinion. Seventh, the dying person should write his declaration of death if possible. Also, anyone should read his / her declaration of death, and the dying person must sign or thumb the declaration of his / her death. The dying person could give an oral statement because he is unable to write his dying declaration. Ninth, when the doctor records the statement of the dying declaration of the dying person after that statement will be sent by the doctor to the magistrate in a sealed cover. At last, the evidence would appear before the court.

ANALYSIS OF IMPORTANT CASES.

There are some important laws in the dying declaration: – There are some important laws in dying declaration: – In the case of Sant Gopal v State of Uttar Pradesh[1], the declaration of death can be in the form of question and answer or in the form of a narration. The dying declaration is not complete until the relevant facts, the name of the convict, and the circumstances of the victim’s death are evident in their dying declaration. Another case is Queen-Empress v Abdullah[2], in which if any person who is so injured is unable to write or speak a declaration of his death. Then he can indicate his dying declaration by any gesture or signal. In the case of Najm Farazi Nizam Farooqui v State of West Bengal[3], if any person who is dying can give their dying declaration in his own language which would be considered as the most relevant in the court.

Now, a question arises that when the dying person is giving his dying declaration does, he would have any apprehension about his own death? In English law, it is necessary that a dying person apprehension his death when he is announcing his death. But, in Indian law, it is not necessary that a dying person apprehension his death.

In the case of Sharad Birdichand Sarda v The State of Maharashtra[4] the girl who has married. But her husband and her in-laws used to treat that girl like a laborer. Also, her husband used to commit domestic violence against her. Frustrated with this, he wrote a letter to his sister, in which he told this sadness. Also, the girl wrote not to tell this to the parents or else they would be upset. However, she had been married for only 4 months, and her body was found in his room. In this case, that letter will be admissible by the court because the girl is not required to have any apprehension about her death in advance. Nevertheless, as written in that letter, it is known that his life was very tragic, and it could be assumed that letter was a dying declaration of sorts. There is another case Pakala Narayana Swamy v Emperor[5] in which the husband speaks to his wife that he will be going to borrow a loan from the house of the wife of the accused, and after saying so, he goes away. Later, that man’s body is found, then that man did not know that he will die by going there, then in such a situation, the last thing he would have said to his wife would become an announcement of his death. The court will also admissible: what the last words of the dead man said in front of his wife. With corroborating evidence. With corroborating evidence. In the case of U.P v Hum Sagar Sagar[6], in which if the court is satisfied with the declaration of dying because it is true and voluntary, the court can convict the accused without any corroborating evidence on that basis. In the case of Rasheed Begum v State of Madhya Pradesh[7], in which if the dying declaration of the dying person is suspicious then the accused could not be convicted without corroborating evidence. Therefore, the dying declaration of the dying person must be supported by corroborating evidence.

CONCLUSION

After all the discussion on the declaration of death, we can conclude that the final words of the person who died before dying are called the declaration of death. Because it is believed that a dying man never lies. Therefore, whatever questions and answers are asked to the man who is dying at the last minute, he has to tell how he died (when he is badly injured), under which circumstances, and who did it all. He can tell all this by written, oral, and any indication. This death declaration can also be recorded by the magistrate, police officer, doctor, and other people. Wherever the court feels that there is something untrue in the declaration of death, there is a need to confirm the evidence along with the declaration. This often happens when multiple death declarations are made. We have seen many legal cases above, where there is no need to doubt before declaring to die in India, whereas in English law it is essential. Thus, we have concluded that the declaration of death is important to ensure the justice of the deceased


[1] Sant Gopal v State of Uttar Pradesh (1995) Cr LJ312(all)

[2] Queen Empress v Abdullah, I.L.R 7 All. 3385 (F.B.) 1885

[3] Najm Farazi Nizam Farooqui v State of West Bengal, 1992 Cr LJ 2574

[4] Sharad Birdichand Sarda v State of Maharashtra, AIR 1984 SC 1622

[5] Pakala Narayana Swamy v Emperor (1939) 41 BOMLR 428

[6] U.P v. Hum Sagar Sagar, (1985)

[7] Rasheed Begum v State of Madhya Pradesh AIR 1974 SC 332

Authors: Aditya Kohli, Dharmashastra National Iaw University, Jabalpur, M.P.

Editor: Kanishka Vaish, Editor, LexLife India.

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