By Vedhika Gupta
Section 32 of Indian Evidence act deals with the provisions of dying declaration. Dying declaration is the statement made by a person who has died explaining the circumstances and cause of his death. When the person knows that he is about to die then at that point of time he makes a declaration or cause of his death and that statement is admissible in the court. The motive of this research is to identify the principle of ‘LETERM MORTEM’ which means words that are said before death and in legal words it is known as Dying Declaration. This research will tell us about the statements which are admissible as dying declaration and also its importance in the field of law and its evidentiary value.
Keyword: Letterm Moterm
Whenever an offence is committed there are always 2 parties involved. One is who have committed the offence and another is the victim. Both the parties in order to prove their positions make some statements before the judge, but the judge can’t rely on each of the statements which they have made, so to prove their statements parties will have to present Evidences, witnesses etc.
But there are various circumstances when the statements made by a person or a party to the suit are considered as valid and relevant. Such circumstances are when a person who is conscious about his death and has the knowledge that he is about to die and made a statement related to his death or cause of his death, this is the statement which is relevant and is admissible in the court of law and the statement is known as Dying Declaration.
Dying Declaration is the statement made by a person who has died explaining the circumstances and cause of his death. When the person knows that he is about to die and then he makes a declaration or the cause of death that statement will be admissible and is treated as Evidence in the court.[1]
Indian Law recognizes the fact that “Truth sits upon the lips of a dying man”. Section 32 of Indian evidence act defines dying declaration. “When the statement is made by a person as to the cause of his death or as to any of the circumstance of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question”.[2]Such statements are relevant whether the person who made them was or was not at the time of making such statements was, under expectations of death and whether may be the nature of proceeding in which the cause of his death comes into question.
The concept is also called as “LETERM MORTEM” which means “Words said before death”. The dying declaration is admissible because it is presumed that ‘A person who is about to die will not lie”.
BACKGROUND OF DYING DECLARATION-
According to English law: Statement of a person who has died explaining the circumstances and cause of his death is called as dying declaration. Such statements are relevant only if the case is of murder. This was held in the case of R.V. Mead.[3] The accused who was convicted made an appeal for a fresh trial. So, before the fresh trail could take place one of the witnesses was shot dead. It was stated that the statements he gave as a witness before his death were the reasons for his death. The court held that, we all are of the opinion that this evidence can’t be received. Evidence will only be admissible when the death of the victim is subject of the suit, and circumstances are in question.
DIFFERENCE BETWEEN ENGLISH LAWS AND INDIAN LAW-
There is a main difference between English law and Indian Law. In English law, a dying declaration is admissible only on the basis of criminal charge that is homicide or manslaughter. But in Indian law it is different, here it is admissible in all kind of proceedings whether it will be criminal or civil. Although, In English law, the declaration which have made it is under the sense of impending death but in Indian law it is not necessary that the person who is giving the statement should be under the shadow of the death.
DYING DECLRATION UNDERCLAUSE (1) OFSECTION 32 –
(a) Anticipation of death not necessary – The evidence act makes a very important point in relation to Dying Declaration which the English law doesn’t, is that it is not necessary that the victim should be under anticipation of his death. If the victim dies after stating the circumstances of his death and which will be relevant and of there is no threat of death has arisen while making statement the also it will be relevant.
Case Law – Pakala Narayana Swami vs. Emperor[4]– The wife of the accused was indebted which she had borrowed on an interest of 18%. On 20th March deceased received a letter inviting him to come to Berhampur. The wife of the deceased said that he showed her that letter and said he was going to Berhampur to meet Swami’s wife who has invited him to receive payment of his dues. After this later on the deceased was found cut in 7 pieces in one of the railway compartments.
It was held that the statements the he made to his wife establishes circumstances in which he was killed and hence considered relevant as dying declaration irrespective of the fact that he didn’t have an apprehension of his death.
WAYS OF DYING DECLARATION-
1. Signs and Gestures –“Statements made through signs and gestures are equally admissible”. This was held in Allahabad High Court in Queen Empress Vs. Abdullah case, where the throat of the victim was cut and she was unable to speak so she indicated the name of the accused by signs of her hands and the court considered it as a relevant way of Dying declaration. Also, in the case of Meesala Ramakrishnan v. State of A.P.[5] “The supreme court held that the value of sign language would also depend upon the way it is being recorded what signs were made, gestures and nods were made, what were the questions etc. Were the nods and signs and gestures were effectively understood or not.
Also, in the famous case of Nirbhaya[6], where the apex court elaborately discussed the importance of dying declaration. There were 3 sets of dying declaration recorded by different persons. All the 3 declarations were given to 3 different persons. The first was recorded by the doctor, when she was taken to the hospital at that night. Second was recorded by the Sub divisional magistrate where she gave the exact details about the incident and the last one was recorded by Metropolitan Magistrate which was through gestures and all were admissible as evidence. The bench than held that all the declarations made through signs and gestures or by nods are admissible as evidence.
2. Question and Answer form –It’s not necessary that a dying declaration has to be recorded in the question and answer form as there are instances where it may not be possible for the victim to answer because of the pain that he might be going through at that point of time.
3. Language of the Dying Declaration – Statements made in different languages initially and recorded in English afterwards are also considered as valid statements and are relevant as dying declaration. For example – If a deceased person made a statement in Telugu and the doctor recorded it in English, this statement is a valid dying declaration.
4. Oral Declaration – Statements made by the victims to an interested party in the suits has to be considered with utmost care and caution. Such statements need to be corroborated with other evidences and considered as relevant dying declaration but court here cannot totally rely on such statements.
5. Incomplete Dying Declaration –When the deceased failed to complete the statement which was supposed to generate the motive, genesis of the crime, such declaration will be unreliable and are not relevant. However, if the victim has narrated the whole story but fails to answer the last question, such declaration is relevant but needs to be corroborated.
ESSENTIALS OF DYINGDECLARATIONTO BE ADMISSIBLE–
1. It has to be voluntarily and free from any kind of influence.
2. The cause of the death shall be explained or at least the circumstances which resulted in the deceased death has to be explained in his dying declaration.
3. The cause of death has to be in question.
4. The statement has to made with sound mind.
5. That the declaration has to be taken down in the exact word as it was spoken or delivered.
EXCEPTIONS OF DYING DECLARATION -
1. Made by a competent witness: The person making such statement must be competent to make it that means statements made by a child is not relevant and admissible. While making any such statement the doctor must confirm that the victims state of mind is such that he/she can make a declaration. Court will consider both mental and physical fitness of the deceased.
2. Voluntarily and uninfluenced – This means that dying declaration should not be made under influence of anyone. The court has the authority to reject any such statement if found influenced or false.
3. Statement related to death – The declaration has to be made in relation to the deceased person only, if not then it not relevant under dying declaration.
4. Contradictory Statement –The statements made should not contradict each other if there are more than one statement as such, they will all lose their evidentiary value.
CONCLUSION –
We can come to a conclusion that Indian law perspective of dying declaration is much broader aspect than the English law. Dying declaration is an important part of evidence and has much more value than the statement of eye witness. From above discussed topics we can conclude that whenever statements regarding dying declaration have been made it has been admissible in the court and it is always found to be true.
The author of this article is Vedhika Gupta, a fifth-year BALLB student at Symbiosis Law School, Nagpur
[1]Dr. Avtar Singh ‘Principles of The Law of Evidence’ (Prof. (Dr.)Harpreet Kaur ed. 24th edn Central Law Publications).
[2] The Indian Evidence Act, 1872
[3]Dr. Avtar Singh ‘Principles of The Law of Evidence’ (Prof. (Dr.)Harpreet Kaur ed. 24th edn Central Law Publications).
[4]Pakala narayana swami v Emperor, AIR 1939 P.C. 47 at p.50
[5]Meesala Ramakrishnan v State of A.P 1994 SCC (4) 182
[6]Mukesh & Anr v State For Nct Of Delhi & Ors on 5 May, 2017
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