Dying Declaration | Admissibility and Evidentiary Value | Section 26(a) BSA
Table of Contents
1. Introduction
2. Admissibility of dying declaration
3. Essential conditions of dying declaration
3.1 The declarant must have died:
3.2 The declaration must be proximate to the incident
3.3 Injuries must have caused the death:
3.4 The cause of the death of the declarant must be in question:
3.5 The dying declaration must be complete:
3.6 Thedeclarant must be in a fit condition:
3.7 Declarant must be competent:
4. Circumstances when dying declaration cannot be considered
4.1 Declaration under suspicious circumstances.
4.2 Dying declaration is false.
4.3 Tainted or tutored declaration.
4.4 Delayed dying declaration.
4.5 Conflicting dying declaration.
6. Evidentiary value of dying declaration
7. Conclusion
1. INTRODUCTION
The term dying declaration is not used anywhere in the
statue. Generally it means declaration/statement made by person who is about to
die or may die as to the cause of his death or as to the circumstances
resulting to his death. The term may not be specially defined in the statute,
but it has special mentioned under Section 26 of the Bharatiya Sakhshya
Adhiniyam, 2023 (corresponding Section 32 of Indian Evidence Act, 1872). The
Section says, the person who cannot be called as witness and their statements
are allowed to prove in their absence. Their statements are made relevant by
virtue of Section 26(a).
Section
26(a) of BSA says 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 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 death comes into question.
Illustration: ‘A’ is assaulted and dies. Before his
death he makes a statement that ‘B’ assaulted him with sharp weapon. This
statement of ‘A’ is admissible as dying declaration as it relates to the cause
of his death.
Such
statement as provide in Section 26(a) is also called as dying declaration. A
dying declaration is admitted in evidence and it is relevant when question
arises as to the cause of death arises. The making declaration must die. If he
survives, such declaration does not come within the meaning of Section 26(a) of
BSA. Dying declaration can be made to anyone.
The
declaration made to anyone come within the purview of hearsay evidence.
According to settled principle of law of evidence, hearsay evidence is
admissible in evidence as it is weak piece of evidence. Dying declaration is an
exception to the hearsay evidence.
2. ADMISSIBILITY OF DYING DECLARATION
For the admissibility of dying declaration, there is no such rule of law
that declaration of the deceased cannot be relied without corroborative
evidence. The rule is that the Court can safely rely on dying declaration, if
it satisfies that declaration is true, voluntary and circumstances is proximate
to the actual place of occurrence. If the declaration is suspicious, the Courts
are required to take assistance other independent corroboration from other
witnesses or forensic evidence.
If the dying
declaration is found to be trustworthy and acceptable, it can be the sole basis
of conviction – held in Motilal S. Rathod vs State of Maharashtra
(2007).
The
admissibility of dying declarations is based on the maxim Nemo Moriturus Praesumitur Mentire which means “A man will not meet
his maker with a lie in his mouth” or a person who is about to die would not lie. This is the
presumption why a dying declaration made by a person shortly before his death
is made admissible under Section 26(a) BSA.
However, Court should closely scrutinise the weight of the dying declaration as there is no scope of cross examination of declarant. It is essential for the Court to insist that dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness.
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3. ESSENTIAL CONDITIONS OF DYING DECLARATION
For the admissibility of a dying declaration the following essential
conditions must be satisfied:
3.1. The Declarant must have died:
The first
essential of dying declaration is that the deceased person myst have made the
statement as to the cause of his death
before his death. The first condition is, unless the declarant is dead after
making the statement, the declaration cannot be made admissible as a dying
declaration.
A statement
made by a person as to the cause of his death and under the expectation death
remain only as a statement as long as he is alive and may be used as
corroborative evidence. Once the declarant dies his statement will be regarded as admissible dying
declaration.
3.2. The declaration must be in close proximate to the incident which resulted in his death:
For the
admissibility of dying declaration, circumstances must have some
proximate relation to the actual occurrence and must be of the transaction
which resulted in the death of the declarant. The condition of the
admissibility of the evidence is that the cause of the declarant's death comes
into question. It is not necessary that statement must be made after the
transaction has taken place or that the person making it must be near death or
that the 'circumstance' can only include the acts done when and where the death
was caused.
3.3 Injuries must have caused the death:
The
condition for admissibility of dying declaration is that the injuries must have
caused the death of declarant for which the accused may be prosecuted. If a
person dies not on account of injuries which are inflicted on him, but on
account of some other reasons or ailment, the dying declaration would not be
admissible.
The case of Moti
Singh vs State of UP AIR 1964 is an example of such case. Moti Singh
was charged for murder of Gayacharan following his statement that Moti Singh
fired gun shots at him and was used as dying declaration. The doctor gound two
gun shot wounds dangerous to life. Gayacharan was discharged from hospital but
died after 20 days. Before the postmortem was conducted on his body, he was
cremated. There was no evidence on record as to what caused Gayacharan’s death.
It was held in an appeal that the dying declaration is inadmissible and cannot
be proved under Section 32(1), IEA.
3.4. The cause of the death of the declarant must be in question:
In order to
make the dying declaration admissible and relevant evidence, it is necessary
that the cause of the death of the person must be in issue, not the cause of
the death of another person.
Suppose ‘A’ attacked ‘B’ and ‘C’. ‘B died at the spot. C shortly before his
death makes a declaration that A stabbed B and died. Dying declaration made by
C as to the cause of B’s death cannot be proved. It must be cause of the death
of declarant himself. Also, the cause of the declarant’s death i.e injuries
must also be proved. When the deceased is not proved to have died as result of
injuries received by him in the incident where the deceased is said to have
been killed, his statement cannot be said to be a statement as to the cause of
his death and thus is not admissible.
3.5. The dying declaration must be complete:
Another
essential condition of admissibility of dying declaration is that it must be
complete. Where the declarant collapses and dies even before completing the
declaration, then such incomplete declaration cannot be accepted as evidence.
But if the incomplete dying declaration unmistakably points out the guilt of
the accused then that incomplete declaration can be relied as admissible.
The case of Abdul
Sattar vs State of Mysore AIR 1956 is one of such case where incomplete
declaration was treated as admissible dying declaration. In this case, the
deceased mnade a declaration that when he approached the house of Abdul Majid,
Abdul Sattar shot at him from the bush. He wanted to say something else also,
but be collapsed and died. This incomplete dying declaration was sought to be
used against Sattar. The Court held that although the dying declaration is
incomplete, it can be made admissible under Section 32(1) IEA ( Section 26(a)
BSA.
3.6. The declarant must be in a fit condition:
To
make the dying declaration admissible under Section 26(a) BSA, it must be shown
that the declarant was in a fit condition and was conscious at the time of
making declaration. The declarant must be able to answer all the question posed
by Magistrate. A Magistrate poses some preliminary question to ensure himself
that the person is conscious of the surrounding and is fit state of mind to
male dying declaration.
In the
absence of Magistrate, doctor attending the person making declaration can
record dying declaration provided the doctor certifies that deceased was
conscious and was in fit state of mind. It is sufficient to prove the dying
declaration notwithstanding the fact that the pulse was not palpable, blood
pressure not recordable and the patient was in a gasping condition.
In Rambai
vs State of Chattisgarh (2002) it was held by Supreme Court that a
dying declaration cannot be rejected merely because it was certified by duty
doctor, but not by the doctor who treated the patient, that the patient was in
a fit condition to make a dying declaration, as it is sufficient as the person
recording dying declaration was satisfied that the declarant is mentally in fit
condition to make the dying declaration.
3.7. Declarant must be competent:
Before
recording dying declaration, the person recording declaration must see that the
declarant is competent. Where a declarant is a minor, his competency must be
determined in terms of Section 124 of the Bharatiya Sakhsya Adhiniyam, 2023.
4. CIRCUMSTANCES WHEN DYING DECLARATION CANNOT BE CONSIDERED
Since dying
declaration is considered as a crucial evidence for prosecution of accused
person, it must also be applied with great caution because accused should not
suffer due to shortcomings of dying declaration. There are some circumstances
when dying declaration cannot be considered as admissible nevertheless the
person who made declaration has died.
4.1. Declaration under suspicious circumstances.
Where the
dying declaration which is impregnate with so many suspicious circumstances
creating a doubt as to its genuineness, such evidence of dying declaration
would not sufficient to maintain the conviction. The dying declaration recorded
by Magistrate which is neither signed by the deceased not contained date and
time of its recording cannot be considered as admissible in the absence of
explanation by prosecution that the deceased was not in a position to sign it.
4.2. Dying Declaration is false.
Where a
dying declaration is false and the accused person is able to prove by evidence
that the declaration is false and made with ill intention to implicate him in
the case, then the dying declaration cannot be considered.
4.3. Tainted or tutored declaration.
A
dying declaration is called tainted if the circumstances shows that there was
discussion between the injured person and interested person as to who would be
assailants before giving declaration or the person giving declaration was
proved to be tutored. In such circumstances, dying declaration cannot be
considered.
4.4. Delayed dying declaration.
The dying
declaration must have been made after the alleged incidents so that it may not
be coloured by impression received from third party. The declaration made soon
after the alleged incident has greater evidentiary value. So there should not
be undue delay in recording dying declaration so that its veracity may not be
affected. Delayed dying declaration are not considered as strong evidence.
4.5. Conflicting dying declaration.
Where there
are more than one dying declaration and they are inconsistent with each other,
such dying declaration are not considered as against an accused person. The declaration
must be consistent as to the identity of the circumstances as well as to the
identity of the assailant.
It is not
plurality of dying declaration but qualitative worth is what matters, as such
the dying declaration must be of such a nature so as to inspire full confidence
in its truthful and correctness [ State of Maharashtra vs Sanjay D Rajhans,
2005 (SC)]
5. FORMS OF DYING DECLARATION
No specific
form is prescribed for making a dying declaration. It may be made through
signs, gestures or by means of letters of words spoken.
Dying declaration made by signs and gestures are regarded as
verbal statements within the meaning of Section 26(a) BSA.
The
declaration should be written in the exact words of the person making it. The
declaration should preferably in question and answer form. But as long as there
is no doubt that the declaration was recorded exactly what was stated by the
deceased, declaration should not be rejected merely because question and answer
form was not applied while recording statement.
6. EVIDENTIARY VALUE OF DYING DECLARATION
There is no
rule, which prohibits the Court to take dying declaration into consideration
for the purpose of sustaining any evidence without corroborative evidence. If
the Court is satisfied that dying declaration is true and voluntary, Court can
rely on it even without corroboration,
The
declaration of the person is admissible whether the death is homicide or
suicide, provided such declaration relates to the cause of his death.
The dying
declaration is of high evidentiary value, if declaration was not the result of
any sort of tutoring, prompting or imagination. Court must be satisfied that
the declarant had the opportunity to see and recognise the assailant and that
he is in fit state of mind to make the declaration in the presence of competent
Magistrate, doctor, police alongwith witnesses.
Dying
declaration however demands close scrutiny because of lack of scope of cross
examination of the declarant.
7. CONCLUSION
The statement of the deceased person called as dying declaration is relevant and admissible if the person making statement was or was not under the expectation of death. In the case of death of declarant, the declaration may be used as evidence for prosecution of accused person. Though, there is no hard and fast rule that dying declaration of the deceased person must be relied by Court without corroborative evidence, because it needs close scrutiny as to the genuineness of the statement of the deceased before convicting accused person. The Court must prove the fact that the declaration is made regarding any of the circumstance of the transaction which resulted in his death.
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