DYING DECLARATION

 DYING DECLARATION

The Hon’ble Apex Court has held in several cases that there is no bar for basing conviction solely on the Dying Declaration but the same should be tested about the voluntaries and truthfulness.

The Hon’ble Apex Court in P.Mani vs. State of T.N. reported in (2006) 3 SCC 161 has held as

follows:

Section 32 of the Evidence Act, 1872 – Dying Declaration – Must be wholly reliable – In case of

suspicion, the Court should seek corroboration – If evidence shows that statement of deceased is not

wholly true it can be treated only as a piece of evidence but conviction cannot be based solely upon it.

It is further held in the very same decision that,

“Indisputably conviction can be recorded on the basis of the dying declaration alone but

therefore the same must be wholly reliable. In a case where suspicion can be raised as

regards the correctness of the dying declaration, the Court before convicting an accused on

the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no

substitute for proof. If evidence brought on record suggests that such dying declaration does

not reveal the entire truth, if may be considered only as piece of evidence in which event

conviction may not be considered only as a piece of evidence in which event conviction may

not be rested only on the basis thereof. The question as to whether a dying declaration is of

impeccable character would depend upon several factors; physical and mental condition of the

deceased is one of them.”

A leading and landmark decision rendered by a five-Judge Bench of the Hon’ble Apex Court in

respect of Dying Declaration is Laxman V. State of Maharashtra (2002 SCC (Cri.) 1491) in which the

Hon'ble Apex Court has held as follows :

“3. … The situation in which a man is on the deathbed is so solemn and serene, is

the reason in law to accept the veracity of his statement. It is for this reason the requirements

of oath and cross-examination are dispensed with. Since the accused has no power of crossexamination,

the courts insist that the dying declaration should be of such a nature as to

inspire full confidence of the court in its truthfulness and correctness. The court, however, has

always to be on guard to see that the statement of the deceased was not as a result of either

tutoring or prompting or a product of imagination. The court also must further decide that the

deceased was in a fit state of mind and had the opportunity to observe and identify the

assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit

mental condition to make the dying declaration looks up to the medical opinion. But where the

eyewitnesses state that the deceased was in a fit and conscious state to make the

declaration, the medical opinion will not prevail, nor can it be said that since there is no

certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is

not acceptable. A dying declaration can be oral or in writing and any adequate method of

communication whether by words or by signs or otherwise will suffice provided the indication

is positive and definite. …. There is no requirement of law that a dying declaration must

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necessarily be made to a Magistrate and when such statement is recorded by a Magistrate

there is no specified statutory form for such recording. Consequently, what evidential value or

weight has to be attached to such statement necessarily depends on the facts and

circumstances of each particular case. What is essentially required is that the person who

records a dying declaration must be satisfied that the deceased was in a fit state of mind.

Where it is proved by the testimony of the Magistrate that the declarant was fit to make the

statement even without examination by the doctor the declaration can be acted upon

provided the court ultimately holds the same to be voluntary and truthful. A certification by the

doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the

declaration can be established otherwise.

4. …..

5. …. It is indeed a hypertechnical view that the certification of the doctor was to the effect

that the patient is conscious and there was no certification that the patient was in a fit state of

mind especially when the Magistrate categorically stated in his evidence indicating the

questions he had put to the patient and from the answers elicited was satisfied that the

patient was in a fit state of mind whereafter he recorded the dying declaration. ….”

In a recent decision in Amol Singh V. State of M.P. (2002 (5) SCC 468 that Hon’ble Apex Court

has held as follows:

“S.32(1) of the Evidence Act, 1872 – Dying Declaration – Evidentiary value – Multiple dying
declarations – Inconsistencies – Discrepancies in the last dying declaration making it doubtful

– Held, it would not be safe to convict the appellant – Penal Code, 1860, Ss.302 and 34.

Law relating to appreciation of evidence in the form of more than one dying

declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the

reliability thereof that adds weight to the prosecution case. If a dying declaration is found to

be voluntary, reliable and made in fit mental condition, it can be relied upon without any

corroboration. The statement should be consistent throughout. If there are more than one

dying declaration they should be consistent. However, if some inconsistencies are noticed

between one dying declaration and the other, the court has to examine the nature of the

inconsistencies, in such a situation, the court has to examine the same in the light of the

various surrounding facts and circumstances.

On facts, it would be unsafe to convict the appellant. The discrepancies make the last

declaration doubtful. The nature of the inconsistencies is such that they are certainly

material. The High Court had itself observed that the dying declaration (Ex.t.P-11) scribed by

the Executive Magistrate (PW 9) at about 0435 hours in the same night was not in conformity

with the FIR and the earlier dying declaration (Ext.P-3) scribed by ASI, B (PW 8) insofar as

different motives have been described. That is not only variation. There are several other

discrepancies, even as regards the manner in which she is supposed to have been sprinkled

with kerosene and thereafter set fire on her.”

Section 32 – Dying Declaration – Recorded in translated version – Reliability – Declaration made by

deceased in Telugu – translated by the duty doctor in Tamil and recorded by the Magistrate in Tamil –

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Statement so recorded was read over and explained by doctor to deceased – Deceased admitted it to be

correct – As regards translation none was cross examined – No material to show that it was a result of

tutoring – Declaration corroborated by evidence of sister-in-law of deceased – is trustworthy and credible –

Ravi Kumar alias Kutti ravi vs. State of Tamil Nadu - 2006 AIR SCW 1037.

Section 32 – Dying Declaration – Contradiction with accident register – Declaration stating that

accused put deceased on fire – Case of suicide, however, recorded in accident register – Doctor who made

entry, however, explained that entry was so made on presumption since cause of injuries was not informed

to him at that time – Evidence of doctor clear and unambiguous – Defence case of suicide cannot be

accepted on face of two dying declarations recorded by Magistrate and Police Constable and their clear

evidence – Ravi Kumar alias Kutti ravi vs. State of tamil Nadu - 2006 AIR SCW 1037.

Section 32 – Dying Declaration – Deceased wife not keeping good relations with accused-husband –

was labouring under belief that husband was having an affair – Deceased was suffering from depression –

Had made an earlier attempt for suicide – All prosecution witnesses stating that deceased bolted doors of

room from inside – Witnesses along with accused had forced open room and doused fire – Accused

himself had taken her to hospital – Circumstances brought on record clearly point out that what might have

been stated in dying declaration may not be correct – Conviction based only on dying declaration is not

proper –P. Mani vs. State of Tamil Nadu - 2006 AIR SCW 1053.

Section 32 – Dying Declaration – Deceased was assaulted by accused with sword, axe etc. –

Presence or non presence of eye-witness or non-mentioning of name of said eye-witness in dying

declaration – Has no connection with ascertainment of veracity and creditworthiness of dying declaration –

Thus disbelieving dying declaration of deceased recorded by doctor on ground that deceased did not

mention presence of eye-witness in dying declaration – Not proper – Heeralal Yadav vs. State of M.P. -

2006 AIR SCW 3425.

Section 32 – Dying declaration – Recording of – Only because a dying declaration was not recorded

by a Magistrate – Same by itself may not be a ground to disbelieve entire prosecution case –Balbir Singh

vs. State of Punjab - 2006 AIR SCW 4950 (A).

Section 32 – Dying Declaration – Death by burning – victim in her dying declaration recorded by

doctor stating that her husband had put kerosene oil upon her and upon igniting, locked door of bathroom

from outside – Victim in second dying declaration before investigating Officer not only named her husband

but also her mother-in-law – Evidence of witnesses stating how deceased received maltreatment at hands

of accused persons for their demand of dowry – Conviction of accused husband under section 302, proper

– In view of inconsistencies between two dying declarations, benefit of doubt given to accused mother-inlaw

– Conviction of both under section 498-A, proper – Balbir Singh vs. State of Punjab - 2006 AIR SCW

4950 (B).

Section 32 – Dying declaration – Reliability – possibility of deceased becoming instantaneously

unconscious – Expressed by doctor conducting post mortem – No ground to disbelieve dying declaration –

There is a difference between something possible and something possible or certain – Moreso, when dying

declaration was recorded before deceased reached hospital – Gangaram Shantaram Salunkhe vs. State

of Maharashtra - 2006 AIR SCW 5918 (A).