Dying Declaration

Section 32(1) of the Evidence Act deals with cases in which statement of the cause of death, by a person
who is dead, becomes a relevant fact.

Section 321 reads as under: 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.

A bare analysis of the provision would show that a statement by a person made before his death to be
relevant, the following ingredients are to be satisfied:

i) The statement is made by a person who is conscious and believes or apprehends that death is
imminent.

ii) The statement must pertain to what the person believes to be the cause or circumstances of death.

iii) What is recorded must be the statement made by the person concerned, since it is an exception to the
rule of hearsay evidence.

iv) The statement must be confidence bearing, truthful and credible.

v) The statement should not be one made on tutoring or prompting.

vi) The court may also scan the statement to see whether the same is prompted by any motive of
vengeance.

Statements made by a person who is lying at the point ofdeath, and is conscious of his
approaching dissolution, in reference to the manner inwhich he received the injuries of which he is
dying, or other immediate cause of hisdeath, and in reference to the person who inflicted such injuries
or the connection withsuch injuries of a person who is charged or suspected of having committed them.2

1
Indian Evidence Act, 1872
2
Black’s Law Dictionary
The gist of this clause is that the statement of a person who has died is relevant only when that
statement is made by that person as to cause of his death or as to any of the circumstances of the
transaction which resulted in his death.

It is contended that the dying declaration made by Pascal severely lacks in this crucial area as it clearly
fails to register the cause of his death or the circumstances leading to his death. All that Pascal’s
statement manages to impute is an assumed knowledge on part of John. However it fails the test of law
as it is silent as to whether the injury inflicted by John was the actual cause of the death or not.

In Wali Mohammed v. Emperor3 it was observed that where the deceased had stated that he was
injured by X however he did not die of the injuries but rather he died of some illness such as pneumonia,
here, his statement that X caused him injuries cannot be admitted under this section.

In R v. Rudra4 it was held that it was held that “a dying declaration ought not to be admitted unless it is
proved that the death of the declarant was caused or accelerated by the wounds inflicted by the
accused or that it was a transaction which resulted in his death.”

It is further submitted that the present dying declaration made by Pascal cannot be relied upon as there
is no evidence as to whether he was in a fit state of mind at the time of making the dying declaration.

In Koli Chunilal Savji & Another v. State of Gujarat5 it was held that the ultimate test is whether the dying
declaration can be held to be a truthful one and voluntarily given. It was further held that before
recording the declaration the officer concerned must find that the declarant was in a fit condition to
make the statement in question.

In Kundula Bala Subrahmanyam v. State of AP6 it was observed that such a statement, called the dying
declaration, is relevant and admissible in evidence provided it has been made by the deceased while in a
fit mental condition.

It is thus contended that since the certification of the doctor was not to the effect that the patient was
in a fit state of mind to make the statement, the dying declaration could not have been accepted by the
court to form the sole basis of conviction.

3
31 Cr LJ 71
4
ILR 29 Bom 45
5
1999 (9) SCC 562
6
(1993) 2 SCC 684
The question that needs to be considered is as to whether the Court could have come to a definite
conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate
by the doctor certifying the state of mind that existed before recording the dying declaration? In my
humble opinion, in the absence of medical certification that the injured was in a fit state of mind at the
time of making the declaration, it would be very much risky to accept the subjective satisfaction of a
Judge who believed that the injured was in a fit state of mind at the time of making a declaration. It is a
case of circumstantial evidence and only circumstance relied upon by the prosecution is dying
declaration.

In Kake Singh @ Surendra Singh v. State of MP7the dying declaration was refused to be acted upon when
there was no specific statement by the doctor that the deceased after being burnt was conscious or
could have made coherent statement.

In Mohar Singh and Ors.etc. v. State of Punjab8 where the dying declaration was recorded by the
investigating officer. This Court excluded the same from consideration for failure of the investigating
officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital
or anyone else present.

In Amar Singh v. State of Madhya Pradesh9, it was held by M.P. High Court that without proof of mental
or physical fitness, the dying declaration was not reliable.

Therefore it is contended that the dying declaration should be discarded by the honourable Court.

Thus it is further submitted that until and unless it is proved that at the time of the making of the dying
declaration the deceased was also mentally sound and physically fit to make a statement the dying
declaration cannot be accepted.

In medical science two stages namely conscious and a fit state of mind are distinct and are not
synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was
overlooked by the courts below.

In Nanahau Ram & Anr. v. State of Madhya Pradesh10 it was noted that normally the Court in order to
satisfy whether deceased was in a fit menatal condition to make the dying declaration look up to the
medical opinion.

Also in the case of P. Rosamma v. State of Andhra Pradesh11 it was held that "in the absence of medical
certification that the injured was in a fit state of mind at the time of making the declaration, it would be
very much risky to accept the same subject to the satisfaction of a Magistrate"

7
AIR 1982 SC 1021
8
AIR 1981 SC 1571
9
1996 Cr LJ (MP) 1582
10
AIR 1988 SC 912
It is vehemently argued before this Court that since Pascal's statement was given while he was
hospitalized, he may not be able to reveal each and every detail of the incident. Secondly, the dying
declaration made by Pascal is not corroborated by any other piece of evidence. Hence the veracity of
the same is highly suspicious.

In the case of Rasheed Beg v. State of Madhya Pradesh12 wherein it was observed that where the dying
declaration is suspicious, it should not be acted upon without corroborative evidence.

It is also contested that the statement made by Pascal should not be relied upon as the same was biased
because of his hatred towards John. In case of enmity between the two, there may be tendency to give
an exagerated version.13 Enmity may also provide a motive for false implication.14

11
1999 (7) SC 695
12
1974 (4) SCC 264
13
Raghubir Singh [AIR 1971 SC 2156]
14
Sushil [1995 SCC (cri) 388]