dying declaration 2.rtf

8/10/2019 dying declaration 2.rtf

1/13

Abstract:

The purpose of this research is to identify the principle of Leterm Mortem

which means words said before death & in a legal term it is called Dying

Declaration! The word Dying Declaration itself tells the meaning "ut this

pro#ect highlights those $uestions% which hae a great alue in legal 'eldrelating to dying declaration! The study tells about those statements which

conerted into dying declaration% di(erent forms of dying declaration% which

are admissible by law% its importance in the law & clears that has it some

alue or not) And if it has% then what are the e*ceptions of it)

A statement by a person who is conscious and +nows that death is imminent

concerning what he or she beliees to be the cause or circumstances of death

that can be introduced into eidence during a trial in certain cases!

A dying declaration is considered credible and trustworthy eidence based

upon the general belief that most people who +now that they are about to die

do not lie! As a result% it is an e*ception to the ,earsay rule% which prohibits

the use of a statement made by someone other thanthe person who repeats

it while testifying during a trial% because of its inherent untrustworthiness! -f

the person who made the dying declaration had the slightest hope of

recoery% no matter how unreasonable% the statement is not admissible into

eidence! A person who ma+es a dying declaration must% howeer% be

competent at the time he or she ma+es a statement% otherwise% it is

inadmissible! A dying declaration is usually introduced by the prosecution%

but can be used on behalf of the accused!

.ord Dying Declaration means a statement written or erbal of releant

facts made by a person% who is dead! -t is the statement of a person who had

died e*plaining the circumstances of his death! This is based on the ma*im

nemo mariturus presumuntur mentri i!e! a man will not meet his ma+er with

lie on his mouth! /ur -ndian law recogni0es this fact that a dying man seldom

lies! /r truth sits upon the lips of a dying man! -t is an e*ception to the

principle of e*cluding hearsay eidence rule! ,ere the person 1ictim2 is the

only eye3witness to the crime% and e*clusion of his statement would tend to

defeat the end of #ustice! 4ection 56 of -ndian 7idence act deals with the

cases related to that person who is dead or who cannot be found!

-!8 4ection 56: 9ases in which statements of releant fact by person who is


2/13


3/13


4/13

which was cut in to seen pieces% found in a trun+ in the compartment of a

train at Curi! The accused was conicted of murder & sentenced to death

because there were many eidence against him!

-n .a0ir 9hand ! 4tate of ,aryana in which 9ourt obsered pa+ala ruling &

said% applying these to the facts of the case their Lordships pointed out that

the transaction in the case was one in which the deceased was murdered on

68st March & his body was found in a trun+ proed to be bought on behalf of

the accused! The statement made by the deceased on 6Fth March that he

was setting out to the place where the accused was liing% appeared clearly

to be a statement as to some of the circumstances of the transaction which

resulted in his death! Thus the statement was rightly admitted!

-n the case of B! ! Ien+ins the accused was charged with the murder of a

lady! ,e attac+ed her at midnight but she had recogni0ed her because there

were suJcient light to identify him! .hen magistrates cler+ as+ed her about

the accused to record her statement% she told that he was Ien+ins who had

done the crime! The cler+ as+ed her that% did she ma+e the statement with no

hope of her recoery then% she replied that she was ma+ing that statement

with no hope of recoery! "ut when the cler+ read that statement oer to her%

before her signing% she told her to add the word at present in that

statement!

-t was held by the court that the statement was not a dying declaration as her

insistence upon the words at present showed that she had some% howeer

faint hope of recoery!

--! -denti'cation Through Dying Declaration

There is no particular form of dying declaration which is identi'ed or

admissible in the eye of law! "ut that must be functioning as a piece of

eidence with the proper identi'cation!

-n a case% Ape* court has also held that% The cru* of the whole matter was

as to who had stabbed the deceased & why! These crucial facts are to be

found in the dying declaration!


5/13

--!8 Kuestion answer form

.here the dying declaration was not recorded in $uestion3answer form% itwas held that it could not be discarded for that reason alone! A statement

recorded in the narratie may be more natural because it may gie the

ersion of the incident as perceied by the ictim!

--!6! estures & signs form

-n the case of Kueen37mpress ! Abdullah Accused had cut the throat of the

deceased girl & because of that% she was not able to spea+ so% she indicated

the name of the accused by the signs of her hand% it was held by the full

bench of the Allahabad ,igh 9ourt -f the in#ured person is unable to spea+%

he can ma+e dying declaration by signs & gestures in response to the

$uestion! -n another case The Ape* 9ourt obsered that the alue of the

sign language would depend upon as to who recorded the signs% what

gestures & nods were made% what were the $uestions as+ed% whether simple

or complicated & how e(ectie & understandable the nods & gestures were!

--!5! Language of statement

.here the deceased made the statement in Eannada & rdu languages% it

was held that the statement could not be discarded on that ground alone% or

on the ground that it was recorded only in Eannada! .here the statement

was in Telugu & the doctor recorded it in 7nglish but the precaution of

e*plaining the statement to the in#ured person by another doctor was ta+en%

the statement was held to be a alid dying declaration!

--!;! /ral Declaration

The Ape* 9ourt emphasi0ed the need for corroboration of such declaration

particularly in a case of this +ind where the oral statement was made by the

in#ured person to his mother & she being an interested witness! 4uch


6/13


7/13


8/13

for treatment deposed that soon after her admission% she said that her

husband had poured +erosene on her clothes and set her abla0e! The doctor

made a note of it in the case papers! The testimony of the doctor became

supported by the contemporaneous record! The 9ourt said that the doctor

had no reason to falsely depose against the accused or prepare false case

papers!

--!85! -B as dying declaration

-n E!! Bamachand Beddy ! Cublic Crosecutor% it was held that where an

in#ured person lodged an -B & then died% it was held to be releant as a

dying declaration!

--!8;! Dowry Death% wife burning etc

The death of a married woman in the matrimonial home three or four months

after her statements e*pressing the danger to her life has been held by the

Ape* 9ourt to be a statement e*plaining the circumstances of her death! -n a

case of wife3burning% after recording her statement that her husband had set

a're% she mercifully pleaded that her husband should not be beaten! -t was

argued on this basis that she wanted to e*onerate her husband! The courtreplied:

This is a sentiment too touching for tears & stems from the alues of the

culture of the -ndian womanhood@ a wife when she has been set a're by her

husband% true to her tradition% does not want her husband should to be

assaulted brutally! -t is this sentiment which promoted this dying tragic

woman to say that een if she was dying% her husband should not be beaten!

.e are unable to appreciate how this statement can be conerted into one

e*culpatie of the accused! -n a further application of this principle to a case

arising out of that atrocious species of murder % called wife burning% the

Ape* 9ourt said: The three dying declarations corroborated by other

circumstances are suJcient in our iew to bring home the o(ence! The

counsel has sought to discredit these declarations forgetting that they are

groaning utterances of a dying woman in the grip of dreadful agony which

cannot be #udged by the standard of fullness of particulars which witnesses

may gie in other situations! To discredit such dying declarations for short3


9/13

falls here or there or een in many places is unrealistic% unnatural &

unconscionable% if basically there is credibility! The terrible in this case has

ta+en place in the house & in the presence of the husband who has been

conicted! .e hardly see any reason for interfering in this coniction! -n a

case a bride was ?FN burnt when she had gien statement to the doctors!

"ut according to doctors she was in a 't condition to gie statement! Thecourt said that from the fact of ?FN burns no inference was to be drawn that

she could not hae been capable of ma+ing the statement! .here the

declaration of the deceased wife was deposed only by her mother% the 9ourt

held this to be not suJcient to conict!

--!8

The Ape* court laid down in the subse$uent case of "arati ! 4tate of !C!%

that a dying declaration made to the relaties of the deceased% when properly

proed can also be trusted! -n this case the deceased who was +illed by

sprin+ling acid on him 'rst made the statement to his brother & son%

repeated it at the police station & again at the hospital charging the accused%

the court held that the statement was worthy of credit! .here the dying

statement was recorded by the wife of the deceased% the 4upreme 9ourt did

not re#ect it only on that ground% though it added that such eidence should

be scrutini0ed with care!

---! 7identiary alue of Dying Declaration

-n E!B! Beddy ! Cublic Crosecutor% eidentiary alue of dying declaration was

obsered as under :3

The dying declaration is undoubtly admissible under section 56 & not being

statement on oath so that its truth could be tested by cross3e*amination% the

court has to apply the scrutiny & the closest circumspection of the statement

before acting upon it! .hile great solemnity and sanctity is attached to the

words of a dying man because a person on the erge of death is not li+ely to

tell lies or to connect a case as to implicate an innocent person% yet the court

has to be on guard against the statement of the deceased being a result of

either tutoring% prompting or a product of his imagination! The court must be

satis'ed that the deceased was in a 't state of mind to ma+e the statement


10/13

after the deceased had a clear opportunity to obsere & identify his

assailants & that he was ma+ing the statement without any inOuence or

rancor! /nce the court is satis'ed that the dying declaration is true &

oluntary% it can be suJcient to found the coniction een without further

corroboration!

-n Ehushal Bao ! 4tate of "ombay% Ape* 9ourt laid down the following

principles related to dying to dying declaration :

1i2 There is no absolute rule of law that a dying declaration cannot be the sole

basis of coniction unless corroborated! A true & oluntary declaration needs

no corroboration!

1ii2 A dying declaration is not a wea+er +ind of eidence than any other piece

of eidence@

1iii2 7ach case must be determined on its own facts +eeping in iew the

circumstances in which the dying declaration was made!

1i2 A dying declaration stands on the same footing as other piece ofeidence & has to be #udged in the light of surrounding circumstances & with

reference to the principle goerning the weight of eidence!

12 A dying declaration which has been recorded by a competent Magistrate

in the proper manner% that is to say% in the form of $uestions and answers% &%

as far as practicable in the words of the ma+er of the declaration stands on a

much higher footing than a dying declaration which depends upon oral

testimony which may su(er from all the in'rmities of human memory &

human character!

1i2 -n order to test the reliability of a dying declaration the court has to +eep

in iew the circumstances li+e the opportunity of the dying man for

obseration% for e*ample% whether there was suJcient light if the crime was

committed in the night@ whether the capacity of man to remember the facts


11/13

stated had not been impaired at the time he was ma+ing the statement by

circumstances beyond his control@ that the statement has been consistent

throughout if he had seeral opportunities of ma+ing a dying declaration

apart from the oJcial record of it@ & that the statement had been made at

the earliest opportunity & was not the result of tutoring by interested party!

-! 7*ceptions of Dying Declaration

The e*ceptions of Dying declaration stipulate that where the statements

made by dying persons are not admissible:

-!8! -f the cause of death of the deceased is not in $uestion: -f the deceasedmade statement before his death anything e*cept the cause of his death%

that declaration is not admissible in eidence!

-!6! -f the declarer is not a competent witness: declarer must be competent

witness! A dying declaration of a child is inadmissible! -n Amar singh ! 4tate

of Madhya Cradesh%8HH= 9r LI 1MC2 8


12/13

-!=! ntrue declaration: it is perfectly permissible to re#ect a part of dying

declaration if it is found to be untrue & if it can be separated!

-!>! -ncomplete declaration: dying declaration must be complete!

-!?! if the statement relates to the death of another person: -f the statement

made by the deceased does not relate to his death% but to the death of

another person% it is not releant!

-!H! 9ontradictory statements: if a declarant made more than one dying

declarations & all are contradictory% then those all declarations lose their

alue!

-!8F! nsound person: where the married dying of burns was a person of

unsound mind & the medical certi'cate ouchsafed her physical 'tness for a

statement & not the state of mind at the crucial moment% the court said that

the statement could not be relied upon!

-!88! - -f dying declaration is not according to prosecution: in the case of

4tate of !C! ! Madan Mohan the Ape* 9ourt held that:

8! -t is for the court to see that dying declaration inspires full con'dence as

the ma+er of the dying declaration is not aailable for cross3e*amination!

6! 9ourt should satisfy that there was no possibility of tutoring or prompting!

5! 9erti'cate of doctor should mention that ictim was in a 't state of mind!

Magistrate recording his own satisfaction about the 't mental condition of the

declarant was not acceptable especially if the doctor was aailable!

;! Dying declaration should be recorded by the e*ecutie magistrate & police


13/13

dying declaration 2.rtf

Documents