III Year B.A., LL. B (Div.

-D and E) – Semester-V (2022)

2nd -Internal Assessment – Law of Evidence

Problem Based Solving

NAME: Dhanvi Shukla

DIVISION: D

PRN: 20010125336

COURSE: BA LL.B. (H)

BATCH: 2020-2025
Introduction

“Nemo Moriturus Praesumitur Mentire”

The literal meaning of the aforementioned phrase is that no one at the point of death is
presumed to lie. In other words, this maxim suggests that a man on a death bed wouldn’t lie
as he would not want to meet his maker with a lie in his mouth. This is the very philosophy
that grants evidentiary value to dying declarations in law, globally as well as in India. A
dying man "seldom lies," according to Indian law. Alternatively, "truth sits upon the lips of a
dying man." The notion of a dying statement is explored in Section 32(1) of the Indian
Evidence Act, 1872. Section 32 deals with situations involving people who are missing or
have died. Leterm Mortem is the term used for a dying declaration. Leterm Mortem translates
to "words said before death."

The objective of a dying declaration is to give value to statements given by people who may
have died before the commencement of the trial or cannot be found. Thus, dying declarations
are pieces of evidence that are exempt from the general hearsay evidence rule that states that
evidence must be direct or corroborated in a court of law. A dying declaration is basically a
statement, written or verbal, or 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
appear to be unreasonable to the court.

Relevant provisions

The hearsay rule is one of the exceptions to the general rule of admitting evidence as hearsay
is considered inadmissible on account of it not being stated on oath and there is no
opportunity of cross-examining the original source by the party against whom the proof is
given and also because there is chance of falsehood. The hearsay rule is mainly based on two
major considerations- a) the necessity of the evidence; b) the circumstantial guarantees of
trustworthiness.

Section 32 (1) of the Indian Evidence Act states:

“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.”

Evidentiary Value of Multiple Dying Declarations

When it comes to multiple dying declarations, the declaration must be consistent as to the
identity of the circumstances as well as to the identity of the assailant. Thus if two different
dying declarations have been made then they must be consistent with each other or else the
validity of the same comes under serious question. Such a statement which is identical as to
the identity of the circumstances as well as to the identity of the assailants is admissible in
evidence. It has been held by the Supreme Court that multiple dying declarations can be
relied upon without corroboration if consistency is maintained throughout. Otherwise, the
courts would have to examine the statement of other witnesses to ascertain the truth in a
criminal trial. The statement of the deceased should match the facts and circumstances of the
case. It is very important to understand the character of multiple dying declarations. There are
several cases that establish the evidentiary value of multiple dying declarations:

1. Kushal Rao v State of Bombay1 – In this case, the Court set the important rules for
dying declaration and also set the guidelines for the correct procedure and manner to
record it. The court laid down that if the dying statement was to be made by the
deceased, it should be recorded in the form of a question answer form, and should be
supported by the doctor that the deceased was in a physical and mental condition to
make the same. The Statement also can only be recorded by a person who is legally
entitled to record and if there were multiple dying declarations then it should be
consistent so that the court can rely on it. The Supreme Court also held that multiple
dying declarations can be accepted as reliable without the need of further
corroboration if consistency is maintained throughout the statement. Otherwise, the

1
(1885) ILR 7 ALL 385
 courts would have to cross-examine the statements of other witnesses to determine the
truth in a criminal trial.
2. Lallubhai v State of Gujarat2 - the accused, Lallubhai and his wife were tried for the
murder of their daughter in law by the name of Sharada. She was set on fire by the
accused and his wife and she made the same statement to the neighbours who first
found her crying in pain, then said the same to the doctor, the police and the
Magistrate, respectively. These successive declarations were held to be admissible
under Section 32(1). Since all these successive dying declarations were identical as to
the circumstances as well as to the identity of the accused, they were held to be
admissible.
3. Patel Hiralal Joitaram v State of Gujarat 3 – multiples dying declarations were
made by the victim. These were made to first a pedestrian on the road, the second was
made to her husband, the third to a doctor and the last one was made to the Executive
Magistrate. She named the accused to everyone except the doctor. The court held that
the fact that the name wasn’t mentioned to the doctor did not raise questions regarding
the reliability of the dying declarations since, the name of the assailant was of no use
to the doctor at the time and the courts admitted the dying declaration.
4. Kamala v State of Punjab4 – the deceased made four dying declarations. In the first
declaration she stated that her mother in law sprinkled kerosene from behind and set
her on fire. In the second she said that her clothes burnt catching fire thereby
indicating it to be the case of accident. The third declaration was vague as to who
exactly poured kerosene and burnt her. In the fourth she held her father in law
responsible for setting her on fire. In all declarations she said that her husband came
to her rescue. The husband of the deceased deposed that his parents were away at the
time of incident. The Supreme Court held that in view of inconsistency between the 4
declarations it is not possible to pick out one statement where in the accused is
implicated and to base a conviction on the sole basis of such dying declaration.
5. Ashabhai v State of Maharashtra5 – where the deceased has made multiple dying
declarations accusing her mother in law and sisters in law for putting on fire in call
the declarations and she named two others in one dying declaration, the inconsistency
would not render the dying declaration, the inconsistency would not render the dying

2
AIR 1972 SC 1776
3
AIR 2001 SC 2944
4
1993 Cr. LJ 68 (SC)
5
AIR 2013 SC 341
 declarations inadmissible with regard to the role of her mother-in-law and sisters-in-
law and their convictions is proper.
6. Sayarabano v State of Maharashtra6 – When the deceased daughter-in-law stated in
her first dying declaration that the burn injuries were accidental and whereas she
implicated her mother-in-law in second dying declaration, it was held that the second
dying declaration can be acted upon since the inconsistencies is on account of
pressure exhorter by the accused mother-in-law.
7. Kishan Lal v State of Rajasthan7 – The deceased first named her husband as the
person who tried to burn her was her husband. She made this dying declaration in
front of her father, grandmother and uncle, but when she made her second dying
declaration in front of the Magistrate five days later, she did not name anyone and
stated that she went unconscious due to the fire and wasn’t able to recognise the
assailant. The Supreme Court held that the two dying declarations consisting
discrepancies do not bring home the guilt of the accused.

Can the nature of the dying declaration be the reason for acquittal of the accused?
Simply put, yes the nature of the dying declaration can be nature for the acquittal of an
accused as in some cases, the multiple dying declarations might not match due to several
reasons. If further evidence to corroborate the dying declarations cannot be presented, then an
accused might be acquitted for lack of evidence. The same happened in the case of Uttam v
State of Maharasbtra8 where the accused was acquitted due to several procedural errors in
the dying declarations and also because there were irregularities with regards to the multiple
dying declarations given by the deceased. The facts of the case are the same as the case in
question in this particular assignment. While the I.O. was first informed that the deceased had
been burnt because of her saree catching fire while she prepared snacks in the kitchen, her
first dying declaration before the I.O. stated that she was burnt by her husband due to an
altercation regarding his extra-marital affair. After one hour, the statement of the deceased
was recorded by the Special Executive Magistrate. The issue about the reliability of the
multiple dying declarations arises because of the irregularity between the statements of her
family which were based on the oral dying declaration given to her father and a mediator and
that of her recorded dying declarations given to the I.O. and the Special Executive
Magistrate. While the dying declarations contended that the reason for the altercation was the
6
(2007) 12 SCC 562
7
(2000) 1 SCC 310
8
extra marital affair of her husband, the family claimed that in a dying declaration given by
her to them she claimed the reason to be dowry. The defence counsels in their appeal
contended that where there are multiple dying declaration and each one is inconsistent with
the other, then all the said dying declarations ought to be discarded without any hesitation.
The case of Nallapati sivaiah v Sub-Divisional Officer, Guntur, Andhra Pradesh was
cited to support the same. The case of Arvind Singh v State of Bihar was cited by the
defence counsels to support their claim that the unreliability of an oral dying declaration
made to a family member in the absence of the doctor was sought to be questioned. The court
had also found several errors in the recording of the dying declarations made to the I.O. and
the Special Executive Magistrate:

1. The I.O. did not mention the name of the hospital where the deceased was admitted.

2. There was an ambiguity regarding the source from which the I.O. had received the
aforesaid information.

3. The I.O. did not obtain any certificate from the doctor regarding the condition of the
deceased.

4. The doctor wasn’t present.

5. The statement wasn’t recorded in seclusion which suggests the possibility of a

6. The Special Executive Magistrate made a police constable record the statement when
the latter was legally not in a position to record the statement.

7. The statements weren’t recorded in a question answer format.

8. The statements weren’t read out to the deceased before her signatures on the same
were obtained.

9. The doctor did not examine the deceased in front of the SEM before the statements
were recorded.

These errors coupled with the fact that the base of the facts narrated by the family of the
deceased did not match the recorded dying declarations meant that the credibility of all the
dying declarations came under the scanner. The court also questioned the fitness of the
deceased at the time of the recording of her statements. Due to these reasons, and due to the
lack of corroborative evidence that proved the credibility of the dying declarations, the
Supreme Court acquitted the accused.

Thus, it can be said that the nature of multiple dying declarations can and generally do play a
crucial role in the final outcome of a trial and in certain cases, where the dying declarations
contradict each other or don’t match coupled with erroneous recording procedures, it is
possible for the accused to be acquitted due to the nature of the dying declaration.