DYING DECLARATION – SECTION 32(1) OF THE INDIAN EVIDENCE ACT, 1872.

                                  Section32(1) – Dying Declaration.

The Principle of English Law is incorporated in Section 32(1) also known as Dying Declaration.

A “Dying Declaration” means the statement of a person who has died by way of homicide or suicide explaining the cause or circumstances of his death.

Three main grounds on which dying declaration are admitted are:

1. Death of the declarant,
2. Necessity i.e. it is the only evidence available under the circumstance,
3. The sense of impending death, which creates a sanction equal to the obligation of an oath. The maxim “nemo mariturus presumuntur mentri” creates the importance of a dying declaration.

Distinction between English Law and Indian law:

1. It is necessary under English law that the person making the statement must be under anticipation of death but under Indian law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making the statement should have been under the expectation of death.
2. Under English law, a dying declaration is relevant only in criminal cases but in India such statements are admissible in both civil and criminal matters.

What are the essential conditions of Admissibility of a Dying Declaration?

Following are the conditions:

1. To whom the statement is to be made and its form – A statement of Dying Declaration can be made to any person – a doctor, a magistrate, a friend or near relative, a police officer.
2. The person making the statement must have died – It is not necessary that the death must occur immediately but the death must occur. Further the deceased must be proved to have died as a result of injuries received in the incident.
3. Statement must relate to the cause of his death or the circumstances of the transaction which resulted in his death – The statement made by the deceased must relate to the circumstances of his death. If the statement is made for another person it is not relevant.
4. The cause of death must be in question – The declaration under Sec. 32(1) must relate to the death of the declarant.
5. The statement must be complete and consistent – If the deceased fails to clarify the motive or complete the main sentence, a dying declaration would be made unreliable.
6. Declarant must be competent as a witness – It is necessary for the deceased to be a competent witness if he had lived on. His mental and physical health, ability to remember facts, his history with the accused should also be looked upon while accepting his statement as a dying declaration.
7. Other Points – If the injured person is unconscious, dying declaration should be rejected. If the person who noted down the statement is not produced, the declaration was not accepted as evidence. Where there are more than one declarations, the one first in point should be preferred.
8. If the victim does not die as a consequence of the incident, the dying statement is not admissible under Section 32(1)  as a dying declaration.
9. FIR as Dying Declaration – If the injured person lodged the F.I.R and then died, the statement was held to be a dying declaration.

What are the essential values of a Dying declaration?

There is no rule of law that a dying declaration should not be considered unless corroborated but ordinarily it is not considered safe to convict an accused person only on the basis of dying declaration since there are many inherent weaknesses:

1. It is a statement not under oath and its veracity cannot be tested by cross examination in court.
2. The maker of such a statement might not be mentally and physically clear and might well be drawing upon his imagination while making the statement.
3. The dying man having the opportunity to implicate all his enemies.
4. The nature of content of the statement, capacity to remember facts of the deceased and proximity of time between the statement and the accident are also viewed in weighing the evidence of a dying declaration.

Landmark judgements:

Pakala Narayana Swamy v. King Emperor (AIR 1939 PC 47)

The accused was charged with the offence of murder and the victim in the statement said to his wife that he had received a letter asking him to go the house of the accused for receiving money due to him and that he was so going. The statement made by the deceased was rightly admissible under Section 32(1) of the Evidence Act as the circumstances of the transaction led to the death of the victim. The victim made a statement to his wife that he is going to Berhampur to receive money from the accused and after that his dead body was found in Berhampur which clearly explains the circumstances which led to the victims death.

Patel Hoitram Joitram v. State of Gujarat (AIR 2001 SC 2944)

The victim made a dying declaration to the magistrate that it was ‘Hiralal Joitram’ and not Hiralal Lalchand who had set her on fire on the pretext that the victim was spreading story about illicit relations with her sister and defaming him.

The issue was whether the statement had been covered under Section 32(1) of the Evidence act to be a reliable dying declaration.

The Declaration was admissible in court since the circumstances were inextricably intertwined with the episode in which she was burnt and eventually led to her death and the dying declaration would fall under Section 32(1) of the Indian Evidence Act.

Ram Nath Madho Prasad v. State of MP (Air 1958 SC 420)

The Supreme Court in this case observed that it is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made under oath and is not subject to court examination.

However by subsequent decisions, the Supreme Court over ruled its above ruling.

Sampat Babso Kale and anr. V. State of Maharashtra (2019) 4 SCC 739

The issue was Whether higher percentage of burns affect the credibility of dying declaration. The Supreme Court held that the victim with 98% burns will be in shock and it may lead to delusion. Moreover it was also held that the combined effect of the trauma and administration of painkillers could also lead to a possible state of delusion.

Conclusion:

There have been instances where dying declaration has not been accepted as the sole basis of conviction. Other factors such as the mental and physical health of the person making the statement, the ability to state and remember facts by the person making the statement, the transaction which led to the incident also should be clearly describing the circumstances which led to the death of the victim. If the statement is clear enough to prove the guilt of the accused than the   Dying Declaration can be the sole basis of conviction. There is no rule of law that dying declaration cannot be treated as the sole basis of conviction unless corroborated. The dying declaration is a material piece of evidence and every attempt should be made to make it clear of all its impurity. However human emotions, psychological status of the individual making proclamation, mental state of the individual making proclamation are all taken into account before passing the judgement or declaring the dying declaration admissible.