Why this is not admissible if the declarant survives?

The question arises when the declaration of dying is recorded and the declarant does not die. The statement is converted into a dying statement only when the victim/declarant dies. If the declarant does not die, the declarant can be used against the accused as a witness in court. It is said that the dying statement is only recorded on the presumption that the declarant is about to die. But if the declarant does not die then the statement cannot be admissible as a dying statement.

English Law	Indian Law
It is admissible only on a criminal charge of homicide or manslaughter.	It is admissible in all proceedings, civil or criminal.
The declarant should have been in real danger of death for his admissibility at the time they were made, and that he should have had full apprehension of this danger and the death should have followed.	The dying statement is relevant whether the person making it was or was not under the expectation of death at the time of the declaration.

 

When can dying declaration can become the sole basis for conviction?

A dying declaration can form the sole basis of conviction. The rule requiring corroboration is merely a rule of prudence.

Several judgments have noted that it is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination.

 

Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. A dying declaration which suffers from infirmity cannot form the basis of conviction and merely because a dying declaration does not contain the details as to the occurrence. It is not to be rejected, equally merely because it is a brief statement. On the contrary, the shortness of the statement itself guarantees truth.

 

Normally the court, in order to satisfy whether deceased was in a fit mental condition to make the dying declaration, can look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.

Where can the courts set aside such declaration?

Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. This is the reason the courts have always insisted that the dying declaration be of such a nature as to inspire full confidence of the court in its correctness.

 

The courts are on guard to check if the statement of the deceased was a result of either tutoring, or prompting or a product of imagination. The court in such cases must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Courts look to determine that such declarations are voluntary, unless it is proved that the declaration was “tainted with animosity and a result of tutoring.” The Supreme court had even noted that the dying declaration made through signs, gestures or by nods are admissible as evidence.

Who can record dying declarations?

Anyone can record the dying declaration of the deceased as per law. “The law does not compulsorily require the presence of a Judicial or Executive Magistrate to record a dying declaration or that a dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by a Judicial or Executive Magistrate,” the CBI court in the present case has held.

 

A dying declaration recorded by a Judicial or Executive Magistrate will muster additional strength to the prosecution case though. A dying declaration may in several cases be the “primary piece of evidence to prove the genesis of occurrence,” it observed.

 

The only requirement for such a declaration to be held perfectly accountable in court is for the victim to volunteer the statement and be of conscious mind. The person who records the dying declaration must be satisfied that the victim is in a fit state of mind.

Dying Declaration	Dying Deposition
It is a statement made by a deceased person to anybody who happens to be present when it is made.	It has to be made before a Magistrate and in the presence of the accused.
It is not made on oath.	It must be made on oath and before a person authorised by law to take evidence.
It is subject to cross-examination.	It is subject to cross-examination.
It is weaker than dying deposition.	It is stronger than a dying declaration.

 

 

 

But in the case of Orissa vs Parasuram Naik, 1997, the accused was alleged to have poured petrol on the body of his wife and lit a fire causing extensive burns. It was held that the oral dying declaration cannot be accepted because there was no medical officer certifying that the deceased was medically fit to make a statement.

 

How the Supreme Court had ruled about dying declaration in different cases?

In Ramnath v State, the Supreme Court observed that the conviction of an accused is not safe without further corroboration solely on the evidence provided in the dying statement, as such a statement is not subjected to oath and cross-examination, and as the person making such a declaration may be physically as well as mentally confused at that time and may draw upon his imagination while making the statement.

 

However, In this case, those observations of their Lordships were found to be ‘ obiter dicta ‘ by nature and the following guidelines are laid down in Khushal Rao c. Bombay.

 

A dying declaration can not constitute the sole basis for conviction as an absolute rule of law unless this is confirmed.

It has to be established on its own facts, taking into consideration the circumstances of the death declaration.

As a general proposition, it can not be stated that a dying statement is a weaker kind of evidence than other evidence

The dying statement shall be based on the same basis as other evidence and shall be judged on the basis of the circumstances surrounding it and the principles governing the assessment of the evidence.

A dying statement written by a competent judge, that is in the proper manner, in the questions and answers form, as far as possible, according to the declarant’s maker, is much more relevant than the dying statement, which may be affected by all the infirmities of the human memory and character, depending on oral witness.

In order to test the reliability of a dying statement, the court must consider several circumstances, such as the dying man’s opportunity for observation, etc. Therefore, in order to pass the reliability test, a dying statement must be subjected to very close scrutiny, bearing in mind that the statement was in the absence of the accused, who had no opportunity to test the veracity of the statement by cross-examination. But once the court has concluded that the dying statement was the truthful version of the victim’s death circumstances and assailants, there is no further question of further corroboration. On the other hand, after examining the death statement in all its aspects and testing its veracity, the Court has concluded itself that it is not reliable by itself and that it suffers from infirmities, then it can not form the basis without corroboration of a conviction. The need for corroboration is not the inherent weakness of a death statement as evidence, but the fact that the court concluded, in a particular case, that a dying statement was not free of the above-noted infirmities or other infirmities that could be disclosed in evidence in this case.

Landmark cases

• In the case of Uka Ram v State of Rajasthan, the Court held that, in the event that the cause of his action is questionable, a person’s statement of the cause of his death or of any circumstances of transaction that led to his death is admissible as evidence, the statement in law is categorically called the dying declaration.
• In Chirra Shivraj v State of Andhra Pradesh, the Court held that relying on the dying declaration is an extremely dangerous mechanical approach simply because it is there. The court shall examine the death declaration scrumptiously with a microscopic eye, to find out if it is voluntary, genuine, made in the conscious state of mind and without being influenced, and if such condition is fulfilled, the court held that the order of a conviction cannot be declared on the basis of sale of the dying declaration.
• In Sudhakar v State of Madhya Pradesh, the Apex Court held that the court should ensure that the declaration is not a tutoring or encouraging statement or an imagination product. The court has to find out from the proof recorded that the deceased had a fit state of mind and a good chance to see and identify the perpetrator. The court normally relies on the medical evidence for concluding whether the dying person is in a fit state of mind, but if the person who records the statement states that the deceased is fit and conscious, the medical opinion is not dominant and it can neither be said that because a doctor does not have a certificate of fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the death statement must be convinced of the fitness of the deceased. If the Magistrate’s testimony shows that the declarant was fit to make the statements without the doctor’s opinion, action can be taken if ultimately, the Court considers it voluntary and true.
• In Uttar Pradesh v Madan Mohan, the court stated that it was for the court to see that the dying statement inspired complete confidence since the manufacturer of the dying statement was not available for cross-examination, the court should be satisfied that there was no possibility of tutoring or prompting, the doctor’s certificate should state that the victim was in a fit state of mind, Magistrate recording his own satisfaction with the declarant’s fit mental condition was not acceptable especially if the doctor was unavailable, the Magistrate, police officer and executive should record the dying statement only if the deceased’s condition was so precarious that no other option left.
• In Kusa v. State of Orissa, the Supreme Court held that a death declaration would be unreliable if a deceased fails to complete the main sentence. But if he tells the whole story without replying to the last formal question as to what he wanted to say more, the statement could be relied on.