Author: Samridh Sinha[1],Student at O.P Jindal University.
Co-Author: Chirayu Bagree[2],Student at O.P Jindal University.
ABSTRACT
Section 32(1) of the Indian Evidence Act deals with dying declarations. Dying Declarations have been an intrinsic part of common law systems as far as evidence law is concerned. It is a written or oral set of facts as declared by the declarant explaining the circumstances of his death. Dying declaration is a debatable topic and must be subjected to critical academic inquiry to ensure it evolves with modern times. This paper seeks theoretically to break down the true meaning of dying declaration by studying statues and case laws involved. Secondly, the paper seeks to form a comparative analysis with other common law systems. Finally, the paper seeks to critically analyse the concept of dying declarations and specifically look at:
(i) Confusion surrounding dying declarations with respect to procedure i.e., if there is a need of a medical report, investigating officer dilemma, etc.
(ii) Suggestions to curb evolving times and broadening the sphere of section 32(1).
INTRODUCTION
Nemo moriturus praesumitur mentire
The above legal maxim means that “A Man will not meet his Maker with a lie in his mouth.” Although it is nowhere defined in the Indian Evidence Act, 1872,[3] a dying declaration is a proclamation, or a statement made by a person who is on his deathbed or before his death. This declaration can be made through writings, verbal communication, conduct and even signs and actions. The rationale behind the previously stated legal maxim is that it is a presumption that no person will lie on his deathbed. The very last moments of this person may be “attended by an involuntary desire to unburden the conscience.”[4] There is also a religious undertone to this entire concept of a dying declaration. The law considers it as an obligation to accept the truthfulness of such statements, since the situation is so serene and solemn in nature. It is accepted that a dying person will not indulge in falsehood and not cause miscarriage of justice while on his deathbed. The purpose of the research paper is to lay down a complete theoretical understanding of dying declaration and form a comparative analysis of dying declaration between two common law systems, India, and England. Furthermore, a complete analysis with respect to vagueness of dying declarations will be targeted, and thereafter critiquing the same. Suggestions will be made through the course of the paper. Secondary sources such as judgements, scholarly articles, papers and materials from the lectures of the course instructor have been used for this paper.
Dying Declaration is a concept of sufficient amount of interest to the legal enthusiasts simply because of the divergent views it can be looked from, for example this paper seeks to analyse how the concept is shaped in front of two common law systems.
“Truth sits upon the lips of dying men.” – Matthew Arnold.
The law elaborates on whether a certain piece of evidence is relevant and admissible in Court. The principle that governs Evidence Law is that what cannot be tried or tested in the Court of Law is inadmissible. Administration of an oath in court and cross-examination of a certain statement or a certain piece of evidence helps in establishing the veracity of said evidence. Thus, hearsay is not considered as evidence in most cases, S.32 (1) of the act[5] being an exception to the rule.
In India, dying declarations are admissible in both civil and criminal cases alike.[6] “For a statement to be attracted under the above section of the Act, the person trying to introduce the declaration must prove that:
- The statement sought to be admitted was made by a person who is dead or who cannot be found of whose attendance cannot be procured without an amount of delay and expense or is incapable of giving evidence.
- Such statement should have been made under any of the circumstances specified in Subsections (1) to (8) of Section 32 of the Evidence Act.”[7]
With respect to the person making a dying declaration, if he has a slight hope of recovering, his declaration will not be admitted into court. Although these declarations are backed by various judicial decisions by now, however, these statements have to pass a few tests for it to qualify as evidence. A declaration must pass the test of reliability since firstly, this statement has been made when the accused was absent and secondly, there is no chance of a cross-examination of such statements to verify its genuineness.
The second test to be applied is the test of proximity. This test, however, cannot be literally pursued since the facts may differ in every case. It cannot be reduced to a universally applicable formula. In the Ratan Singh Case,[8] it was held that:
“It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of S.32 (1) of the Evidence act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death.”[9]
Following the Supreme Court’s decision in Pakala Narayan Swami v Emperor,[10] Onkar v. State of Madhya Pradesh[11] explained the circumstances coming under the purview of the above section.
“The circumstances must have some proximate relation to the actual occurrence and they can only include the acts done when and where the death was caused…. Thus a statement, merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction. In the instant case evidence has been led about statements made by the deceased long before this incident which may suggest motive for the crime.”[12]
A dying declaration simply does not pertain only to cases of homicide. S.32 of the Act is also applicable in a case pertaining to suicide. Thus, the above declaration is equally relevant to prove a case related to suicide. “A suicidal note written found in the clothes of the deceased it is in the nature of dying declaration and is admissible in evidence under section 32 of Indian Evidence Act.”[13]
A strange thing under Indian law is the fact that a dying declaration, as per Section 32 (1) of the Act,[14] the “expectation of death”[15] does not hold much relevance in the admissibility of a dying declaration.[16] This is extremely peculiar considering the fact that the Supreme Court has cited R v. Woodcock[17] in quite a few cases. The rationale behind the above case is that:
“The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth; situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.”[18]
These kinds of rationales given become difficult to argue since Indian laws allow the admissibility of dying declarations even when a person is not under the situation of impending death. Therefore, there is no pressure on him at all, religiously or psychologically to make a truthful dying declaration.
“Solely based on a dying declaration, a conviction can take place if the statements are voluntary and true in nature. However, it may become unreliable if it is not as per the prosecution’s version or there is some fault in that version. The Supreme Court sums this up in the following way:
- It is for the court to see that dying declaration inspires full confidence as the maker of the dying declaration is not available for cross examination.
- Court should satisfy that there was no possibility of tutoring or prompting.
- Certificate of the doctor should mention that victim was in a fit state of mind. Magistrate recording his own satisfaction about the fit mental condition of the declarant was not acceptable, especially if the doctor was available.
- Dying declaration should be recorded by the executive magistrate and police officer to record the dying declaration only if condition of the deceased was so precarious that no other alternative was left.
- Dying declaration may be in the form of questions and answers and answers being written in the words of the person making the declaration. But court cannot be too technical.”[19]
“Therefore, it can be concluded that once the statement of Dying person and the evidence of the witnesses testifying the same passes the test of careful scrutiny of the courts, it becomes very important and reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a Dying Declaration by itself can be sufficient for recording conviction even without looking for conviction.”[20]
A few other essentials conditions to further strengthen and a dying declaration are as follows:
- A competent Magistrate, after taking all the necessary precautions, has recorded the declaration.
- The declaration has been noted down in the exact words that were uttered by the dying person.
- Shortly after the assault or any other accident, this dying declaration must be recorded so that there is no chance of others adding their impressions as to how the accident occurred or anything to the declaration.
- The dying person had an ample amount of time and opportunity to make the declaration.
- As long as the deceased had had his story straight and his multiple statements were in flow and directly related to the circumstances in hand, it is a valid declaration.
With respect to the corroboration of the declaration, the Court must simply be satisfied that the dying declaration, which was given, was giving voluntarily in nature and is truthful. Secondly, the person giving this declaration should be in a sound state of mind. In the case of Harbans Singh v. State of Punjab,[21] the Supreme Court held that:
“It is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence before conviction can be based thereon. The evidence furnished by the dying declaration must be considered just as the evidence of any witness, though undoubtedly some special consideration arises in the assessment of Dying Declaration which does not arise in the case of assessing the value of a statement made in the court by a person claiming to be a witness of the occurrence.”[22]
In the absence of a police office or a Magistrate, a doctor may record the dying declaration. If a doctor feels that a person does not have long to live, it is his duty to record said statement. He is also the best to take into account the state of mind and health of the patient. Thus, a doctor recording the dying declaration is admissible in court.[23]
With respect to medical certification from a doctor, in the case of Sunder v. State of Uttranchal,[24] the dying declaration was challenged simply on the grounds that the doctor did not endorse the state of mind and health of the victim. Rejecting this plea, the Supreme Court held that by asking the doctor beforehand about the mental condition of the victim, the Magistrate had satisfied himself and by looking at other corroborative pieces of evidence, the Court held that the Magistrate was right in accepting the dying declaration. Similarly in the case of Laxman v. State of Maharashtra,[25] it was held that:
“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 look 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.”[26]
DISTINCTION BETWEEN INDIAN AND ENGLISH LAW
The law with respect to dying declaration in England and India have certain differences that this paper seeks to analyse. As far English law is concerned, a dying declaration must be made under the sense of impending death, the person should have no hope of living. In Indian law it contrasts in the sense that it is immaterial if there existed any expectation of death at the time of the declaration. In R v Jenkins,[27] the deceased’s dying declaration read “with no hope of recovery.” However, the deceased then later amended her dying declaration to add the word ‘present’ before ‘hope’. Therefore, her dying declaration read “with no present hope of my recovery.” The English court held that the amendment of the declaration is suggestive that she entertained a marginal hope of recovery and hence cannot be understood within the concept of a dying declaration. In India, as per the application of rules as given under section 32 of the Indian Evidence Act the statement made by the person (since deceased) would be admitted in evidence. The English understanding is problematic simply because the judges would be ascertaining the knowledge of imminent death in every case, this would be subjective to the judge and allow discrepancies to creep in.
NATURE OF PROCEEDINGS
There is also a contrasting difference with respect to the application of the dying declaration in the two countries. Let us take the hypothetical example of a rape case to understand this difference in application. In India, a dying declaration of a rape victim is admissible even if the death is not the subject matter of the charge, provided that the question of her death comes in the transaction of the rape charge. However, in England the court is of the opinion that only when the death of the deceased is the subject of the charge is when dying declarations are admissible.[28] Therefore, in England, such dying declaration of a rape victim is not admissible to prove rape.[29] This is because in such cases, the death of the deceased is not subject matter of the charge. The U.K position in this sense varies from the Indian understanding as there is an added necessity of death being the subject matter during investigation. Therefore, dying declarations in England are subject to homicides only which is a more narrowed understanding of dying declarations when compared to India, where dying declarations are admissible in both civil and criminal courts.
CIRCUMSTANCES LEADING TO DEATH
Statements being linked directly to the “cause of death” is another essential component of admissibility of dying declarations.[30] In the U.K, this is followed very strictly.[31] Any additional information which has nothing to do with the death is instantly eliminated. In the Indian statue of Evidence Act, as per section 32 (1) it also requires declarant’ “cause of death,”[32] however in addition to it, any of the “circumstances of the transaction which resulted in the death of the declarant are also admissible.”[33] The phrase “circumstances of transaction” gives a broader understanding as far as admissibility of evidence is concerned.
“There need not necessarily be a direct nexus between “circumstances” and death. It is enough if the words spoken by the deceased have reference to any circumstance which has a connection with any of the transactions which ended up in the death of the deceased.”[34]
Therefore, we can safely say that Indian understanding with respect to dying declaration is broader than the U.K since the circumstances surrounding the death are also admissible.
DECLARATIONS AND COMPETENCY
In English law it is rather clear that the declarant must be as competent as a witness, hence, tender age or being imbecile will exclude declaration. With respect to India, the law is not clear if this rule is applicable. However, S. 118 of the Indian Evidence Act reads that “All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind.” Therefore, it seems like in India, tender age or incompetency cannot be the grounds for complete exclusion of the declaration. Therefore, declarations of a child are to be looked at with greater judicial circumspection.[35]
EVIDENTIARY VALUE
While both in the U.K and India, conviction can be reached on the sole basis of dying declarations, there is a stark difference in their approaches. The dying declaration is a solid piece of evidence in the U.K due to the expectation of death. In India the evidentiary “weight is attached… on the basis of circumstances and surrounding under which it was made.”[36] The court also noted differences wherein it said that weight attached to a dying declaration under section 32 (1) of the evidence act would be less when compared to the weight attached in common law rules.[37] The rationale behind this is that a person making a dying declaration in India would lack that necessary condition (like in the U.K) of believing that a man was conscious of his condition and who knew death was inevitable and hence had given up all hopes of survival.
From the observations made above it is safe to conclude that Indian understanding of dying declaration is far more liberal and broader than English understanding of the concept.
“Apart from the dubious psychological foundation for the exception, and the difficulty of proving that the deceased had a settled hopeless expectation of death, the principal illogicality of this exception is its restriction to murder and manslaughter. It does not apply to rape or armed robbery, but there is no logical justification for such a restriction. It is also out of step with the modern approach to res gestae, in which the emphasis is rightly on probative value.”[38]
The Indian understanding of dying declaration poses a few problems that are necessary to admit. The main rationale behind a dying declaration is that “truth sits upon the lips of dying men.”[39] However, as per paragraph 2 of Section 32 (1) of the Indian Evidence Act,[40] it is made abundantly clear that the declaration need not necessarily be made under the anticipation of death. This is contrary to the English understanding, where anticipation of death is a prerequisite to admit dying declarations. While being broader than the English understanding, the paragraph takes away the desired sincerity so demanded from the serene moment.
Furthermore, there is a definite religious undertone to the statement ‘a man will not meet his maker with a lie in his mouth.’ Such a statement may hold true to god fearing and hyper religious individuals, but to make a sweeping assumption and use it in the court of law may be problematic in the modern society we live in. Motive of hatred, revenge may often lead to the declarant making false sweeping claims on the approaching death and facilitate miscarriage of justice. If a dying declaration is made under feeling of hatred and revenge, then such declarations must not be admitted as evidence.[41]
As far as the question of a dying declaration being a significant piece of proof is concerned, there does not seem to be much controversy. In India, a dying declaration stands on a different foundation than in England. According to English law, the credibility and relevance of a dying statement is important only if the person making such a statement is in a hopeless state and expects an imminent death. The weight to be added to a dying declaration in India depends not on the presumption of death that is assumed to guarantee the truth of the declaration, but on the circumstances and environment under which it was made, and also very much on the circumstances of the record made of it. The question is if it is safe to admit dying declarations without any corroborative piece of evidence to support it. One of the earliest judgments on dying declarations in India exclaimed that it would be unsafe to admit dying declarations as evidence without corroborative evidence.[42] However, there is no law or absolute rule that dying declarations cannot be the sole evidence in conviction, this stands true for both England and India. Therefore, it is imperative for the court to strike the right balance between serving justice and protecting the rights of the accused, this job is even more so difficult because of the absence of cross examination.
Another point of criticism with respect to dying declarations is that only when the death of the declarant comes into question is when it can be admitted under section 32(1). Let us look at an illustration where two brothers, C and D were shot dead. D describes C’s death in his dying declaration. D’s dying declaration will be excluded simply because the subject matter of the charge was not his, but his brother C’s death. It is referred as senseless rule of exclusion by Professor Wigmore.[43] Hence there must be a case by case understanding and inclusion of such declarations as evidence to avoid miscarriage of justice. In its sixty-ninth report on the Indian Proof Act, 1872, the India Law Commission noted that the language of the Provision is also now capable of a wider construction. It therefore proposed that Section 32 (1) on the following lines be added with a clarification.
“The circumstances of the transaction which resulted in the death may include facts relating to the death of another person.”[44]
There is a procedural vagueness in the understanding of section 32 (1) as well. Section 32(1) is silent about the mode of declaration and to whom it can be made. While it is understandable that a person in a situation of giving dying declaration cannot be reasonably expected to follow procedures, the absence of the same poses a lot of questions.
- Section 162 (1) of Code of Criminal Procedure provides that any statement to the police officer in the course of investigation is inadmissible, does it apply to dying declarations too?
While the courts have been hesitant to take admissions made to an investigating officer, the same clause mentions an exception to those cases which fall under the bracket of section 32(1) of the Indian Evidence Act. The courts have often conceded that the practice of making dying declarations to police officers must not be encouraged.[45] In cases where it can be reasonably explained why an investigating officer had to take the dying declaration, the same should be considered by the courts, however, they must be able to recognize the genuineness of the same. Often investigating officers with the greed of having a successful investigation may tamper with the dying declaration. This would lead to miscarriage of justice which is why the courts are rightly hesitant. Circumstances need to be considered case via case.
- What happens in cases when the doctors have provided no certification that the declarant was mentally fit to give a declaration?
There is no rule of a prerequisite of a doctor’s certificate to ensure the admissibility of a dying declaration. Courts are of the opinion that the person who is recording the dying declaration must be convinced that the declarant is fit enough to do so. [46] While arguments have often been made on the absence of a medical certificate, there can be situations wherein the doctor could not have been called. In such situations completely disregarding the declaration would be absurd. The courts must not deny such declarations and check the truthfulness of the contents of the declaration. The courts should rely on the declaration once they are convinced that it is not tutored independent of a doctor’s report.
BROADENING THE SCOPE OF ARTICLE 32 (1)
As we have established above, The English understanding of dying declarations is narrower than the Indian understanding as per the law. ‘Circumstances of transaction’ in section 32 (1) is absent in the books of English law. In Rattan Singh v. State of H. P, [47] the court explained ‘circumstances of transaction’ mean that there need not be a direct nexus between circumstance and death. Distant circumstances are also admissible in court as long as there is a nexus with the transaction that resulted in death.
“It is enough if the words spoken by the deceased have reference to any circumstance that has connection with any of the transactions that ended up in the death of the deceased. Even distant circumstances can also become admissible under the subsection provided it has nexus with the transaction that resulted in death.”[48]
The phrase ‘circumstance of transaction’ leaves room for some form of limitation. Perhaps “circumstantial evidence” is a broader meaning to include all relevant facts and admit it as evidence. For example, a declaration which explains motive cannot be admitted in evidence but for being closely connected to the transaction itself as a circumstance.[49]
CONCLUSION
We can safely conclude that the Indian understanding of dying declarations is a lot broader than the English understanding of the same. However, it is imperative to note the Indian understanding is not barred of limitations. In conclusion, this paper has recognized certain limitations and provided criticisms for the same. The paper also critically points and tries to answer certain confusions that may arise from the bare reading of section 32 (1) of the Indian Evidence Act. We also have suggested a few amendments in the way law is dealt with respect to dying declarations. These statements are looked at different ways in different countries. However, the only thing which becomes imperative while looking and whether to admit or refuse to admit this evidence is that it strikes the right balance between justice for the deceased and the rights of the accused.
REFERENCES
[1] Student, 18jgls-samridh.s@jgu.edu.in, BA-LLB, 3rd year (Batch of 2023)
[2] Student, 18jgls-chirayu.vb@jgu.edu.in, BA-LLB. 3rd year (Batch of 2023)
[3] Indian Evidence Act, 1872.
[4] Roderick Munday, Musings on the Dying Declaration, 22 Anglo-Am. L. Rev. 42, 42 (1993).
[5] Indian Evidence Act, 1872, S.32 (1), Act No. 1 of 1872, S.32 (1).
[6] Kishan Lal v. State of Rajasthan, A.I.R. 1999 S.C. 3062.
[7] Sudhakar & Anr v. State of Maharashtra, AIR 2000 SC 2602
[8] Ratan Singh v. State of Himachal Pradesh (1996).
[9] Id.
[10] Pakala Narayana Swami v Emperor, AIR 1939 PC 47
[11] Onkar v. State of Madhya Pradesh , 1974 CriLJ 1200 (MP)
[12] Id.
[13] State v. Maregowda, 2002 (1) RCR (Criminal)376 (Karnataka) (DB)
[14] Supra Note 3.
[15] The Indian Evidence Act, Act no. 01 of 1872, § 32(1).
[16] Id.
[17] R v. Woodcock (1787) 1 Leach 500, 504.
[18] Id.
[19] State of UP v. Madan Mohan. AIR 1989 SC 1519.
[20] Viramji Mohatji Thakore v. State of Gujarat, 2005 (2) GLR 1622
[21] Harbans Singh v State of Punjab, AIR 1962 SC 439
[22] Id.
[23] [Vol. I] Rajendran A, [‘Evolution of Dying Declaration or whether Dying Declaration still Sacrosanct?’] [Criminal Law Journal, 2002]
[24] Sunder vs. State of Uttaranchal, (2016), 10 SCC 611.
[25] Laxman vs. State of Maharashtra, 2001, 6 SCC 710.
[26] Id.
[27] R v Jenkins, (1869) LR 1 CCR 187.
[28] R v. Mead and Belt, (1823), 1 Lew C.C. 184.
[29] SUDIPTO SARKAR & V. R. MANOHAR, SARKAR ON EVIDENCE PG 634 (15TH ED. 1999).
[30] Peter Nicolas, ‘I’m Dying to Tell You What Happened’: The Admissibility of Testimonial Dying Declarations
Post-Crawford, 37 Hastings Const. L.Q. 487, at 493.
[31] Id.
[32] The Indian Evidence Act, 1872, Act No. 01 of 1872, § 32(1) (India).
[33] Id.
[34] Supra note 4.
[35] Panchhi v. State of U.P., (1998) Cri LJ 4044 (SC).
[36] Irfan Nabi, Dying Declaration: A comparative Study, (last visited Mar 3, 2020), https://www.academia.edu/9267517/Dying_Declaration_A_comparative_Study.
[37] Jasunga S/o Akumu v. R, (1954) 21 EACA 331.
[38] Footnote: The Law Commission Of England in its 245th report on “Evidence in Criminal Proceedings : Hearsay and Related Topics”
[39] Neha Vijayvarigya, Admissibility Of Dying Declaration: Whether Justified, pg. 177 (2006).
[40] Supra Note 3.
[41] Ashutosh Salil, An Analysis of Indian and English Position of Dying Declaration, J 297, Cri.L.J. (2005).
[42] Ram Nath Madho Prasad v. State of M.P., AIR 1953 (SC) 420.
[43] Supra note 16.
[44] M.G. Amin, Assumptions behind Sanctity of Dying Declarations, pg. 175 (1995).
[45] Atul Gandhi v. State of Assam, (1990) Cri. L. J. 1049. Babura v. State of Rajasthan, (1993) Cr. L. J. 2696.
[46] Laxman v. State of Maharashtra, (2002) Cri LJ 4095.
[47] Cri LJ 833: AIR (1997) (SC) 768.
[48] Chand Sarda v. State of Maharashtra, (1984), AIR 1984 (SC) 1622.
[49] C. Narayan v. State of Kerala, (1992) Crt: LJ 286Q.