| Introduction | Jurisprudence |
| Section | section 32(1) Indian Evidence act |
| Illustrations | |
| relevant case laws | Khushal rao vs St. of Bombay Sudhakar vs st. of Maharastra Patel Hiralal vs St. of Gujrat |
| present problem | question related |
| answers | decision as per our reasoning |
Generally, Dying Declaration is statement, whether oral or written, made by any person before his death. He made statement related to his death or circumstances of his death. It is an exception to the hearsay evidence.
It is based on the principle, ” Man will not meet his maker with lie in his mouth”.
Essentials of Dying Declaration:
1. Death of person is must. either by homicide or by suicide
2. Declarant died of injury to be proved.
3. The cause of declarant’s death must be in question
4. Statement must relate to cause of his death or circumstances of transaction which resulted in his death.
5. Declaration must be complete and consistent.
6. Declarant must be competent and in fit condition.
Statement may be of 2 types made by declarant:
- Statement as to cause of his death.
- Statement as to any of circumstance of transaction which resulted death.
Death should have been caused by same injury which has been revealed in dying declaration. Interval between statement and death is immaterial. Circumstance resulting in death must have proximate relation to actual occurence.
Forms of Dying Declaration:
- Oral
- Written
- Words/Gestures
Section 32(1) of Indian Evidence Act:
This section states that 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, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
-Dying Declaration should be recorded by Magistrate
-in case of multiple dying declaration, it should be consistent with each other(Patel Hiralal Joitaram vs St. of Gujrat)
Relevant Case Laws:
Khushal Rao vs State of Bombay
facts:
This landmark judgment deals with evidentiary value of dying declaration.
The Hon’ble Supreme Court in this case held that there is no absolute rule of law, or even a rule of prudence that a dying declaration unless corroborated by other independent evidence is not fit to be acted upon and made the basis of a conviction.
Facts – were 2 factions in Nagpur, and there were always quarrels between them. Kushal of one faction was not friendly with Baboolal of the other faction. Tukaram, Kushak, Sampat, and Mahadeo suddenly attacked Baboolal and inflicted injuries with swords and a spear. He was then taken to the hospital. The doctor examined him and stated that he was assaulted by a sword and a spear. A complaint was then made to the police by telephone. The police visited the hospital and took the dying declaration of the deceased. Baboolal made 3 successive dying declarations to the sub-inspector and to the Magistrate. The next morning, he died. However, these oral dying declarations were set aside by the High Court and have not been acted upon.
issue:
Whether the accused could be convicted only on the basis of DD?
Whether it is settled law that a dying declaration by itself can in no circumstances, be basis of a conviction?
Whether an accused can be convicted solely based on DD without corroboration with material particulars?
judgement:
Section 32(1) is an exception to the general rule ‘Hearsay is not an evidence.’ When a person makes a dying declaration, they are not expected to tell lies, so the test of cross-examination would not be available. A special sanctity should be respected as a dying declaration is granted by the legislature, unless clear circumstances are given in the evidence to show that the person was not anticipating death. It is not correct that if some part of a dying declaration is false, the whole declaration should be disregarded. It is not acceptable that a dying declaration should be accepted in part and rejected in another part (Emperor vs Permananda Dutt).
Courts provide some guidelines for the admissibility of a dying declaration: –
*Dying declaration can convict an accused solely based on this.
*Circumstances in which the dying declaration was made should be examined.
*Dying declaration is a weaker kind of evidence.
*Dying declaration should be recorded in a proper manner
*The court should check the reliability of the dying declaration according to the circumstances.
The dying declaration was made in a mentally fit condition by the deceased and made three successive DDs. The deceased saw the accused killing him and had a good memory. He made the dying declaration within half an hour after reaching the hospital and was able to recognize the accused. This shows that the dying declaration was the truthful version and there was no tutoring. The dying declaration was sufficient to convict Khushal of murder. The appeal was dismissed.The Court held that the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the court, in a given case, has come to the conclusion that the particular dying declaration was free from the infirmities.
Thus, once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
Finally, the Hon’ble Supreme Court in this case convicted the Appellant under Section 302 of IPC.
Sudhakar vs State of Maharastra
facts:
Ms Rakhi, a young girl of 20 years of age, working as a teacher in school at 300 Rs. p.m. On one day, she was raped by headmaster and a co teacher of that school.
She narrated this incident to her family and after 11 days she lodged FIR and narrated this incident and also narrated the delay in lodging FIR.
Having failed to withstand the humiliation of rape, she committed suicide on her sister’s house. Autopsy showed that the cause of death was poisoning.
Court relied upon the statement made to police as dying declaration under section 32 of IEA.
issue:
Whether the accused can be convicted solely on the basis of DD?
judgement:
To attract the provision of sec 32, it has to be proved that:-
- Statement made by person who is dead or cannot be found or whose attendance cannot be procured without delay and expression.
- Such Statement made under any of the circumstances (1)-(8) of sec 32.
Statement of victim who is dead is admissible. Statement of deceased relating to cause of death or the circumstances of the transaction which resulted in death must be sufficiently or closely connected with actual transaction.
It could be stretched to say referring to “circumstances of transaction” resulting in her death. This phrase was considered and explained in Pakala Narayan Swami vs Emperor.
The circumstances must be circumstances of the transaction general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of death will not be admissible.
But the statement made by deceased that he was proceeding to spot where he was killed or that he was going to meet a particular person, or that he have been invited by such person to meet him would be circumstance of transaction.
Such statement might indeed be exculpatory of the person accused.
Circumstance must have some proximate relation to the actual occurrence.
In this case, there is record that prosecutrix made statement has disclosed her mind for committing suicide. She commit suicide after 5 and half months, this is not a justifiable circumstance.
Accused didn’t convict for the offence solely based on DD as prosecution failed to prove beyond reasonable doubt that appellant had committed forcibe sexual intercourse. Therefore they get acquittal.
Patel Hiralal Joitaram vs State of Gujrat
facts:
Asha Ben, victim, was in a wedlock with Vinod Bhai and had 2 children.
Hiralal Joitaram (Appellant) developed affair with the sister of Asha Ben. She had expressed her detestation to her sister (Shradha Ben) and also mentioned it to some other person.
On 21st October, Asha Ben was proceeding to the school to bring her children home and on the way, Appellant came there and burned her down with a lighter.
She started screaming and quickly ran towards a water flow to escape from fire. She reached the water column near the railway station and water followed extinguished the flames but her clothes burnt into ashes.
Among the pedestrians, a lady come and flanked Asha with some clothes to cover up her nudity and take her to the hospital.
She made statement to inspector and magistrate and mentioned “Hiralal Patel” as culprit but she made correction by saying that she made a mistake inadvertently and that it was Hiralal son of Lalchand, i.e., Hiralal Lalchand.
issue:
Whether dying declaration of the victim established the identity of her assailant unmistakably as that of the accused?
Whether the identity of the assailant of the victim is established as the identity of the accused herein?
judgement:
SC observed that doctors who treated the victim claimed in her autopsy that she was died by the burns sustained on 21st Oct needed no countenance mere academic possibilities when the prosecution case regarding death of the deceased was established on broad probabilities.
Multiple dying declaration were given in this case.
Essential ingredients of multiple DD are:-
- DD given by the deceased must be consistence with one other.
- If all DD are not identical, the Court will analyze the facts of the case with the dying statement, or examine the witnesses.
It is inconceivable that appellant would not have known that setting a human being ablaze after soaking her clothes with inflammable liquid would cause her death as the type of burn resulting therefrom would at least be “likely” to cause her death (if, not they are sufficient in the ordinary course of nature to cause her death).
The fact that she died only after a fortnight of sustaining those burn injuries cannot evacuate the act out of the contours of the “2ndly” clause of Section 300 of IPC.
The apex court concluded that admissibility of DD as evidence is initial step and once the court accepts the DD then next thing is the reliability of DD.
Deceased mistaken in the name of Appellant and it is inconceivable that Appellant would not have known inflammable liquid would cause her death.
The prosecution had established the identity of the assailant. The multiple DD given by deceased are admissible as they all are consistent with one another and voluntarily given in her fit state of mind. - Finally, SC considered the DD of the victim and upheld the Appellant’s conviction by the HC of Gujarat and dismissed the appeal.
Present Problems:
Daniel, Mike and Gabby were classmates and were staying in a rented flat. One day they had argument on a trivial matter. Both Daniel and Mike attacked Gabby with sticks lying in the storeroom. Gabby and his girlfriend Suzaine fell down and were bleeding when some neighbours took them to the nearby hospital in an unconscious state. On being informed, the local police reached nursing home. Before Gabby succumbed to his injuries his Statements were recorded by investigating officer when Gabby was still under anesthesia and there was no certificate of medical fitness also. Meanwhile Judicial Magistrate recorded the Statement of Suzaine thinking that she too might succumb to injury but she survived. Can these Statements be used as evidence under Section 32? Is it permissible to use these as substantive evidence?
Answer: Statement of Gabby will not be admissible as he is not in mentally fit condition and Suzaine ‘s statement also will not be admissible as she survived.
Marriage of Akash with Deepika was solemnized in 2009. Six years thereafter, in the morning Deepika was got admitted in hospital alleging that she had consumed unknown acid at matrimonial home. Police was informed by the hospital authorities. Sub-Inspector reached the hospital and found that Deepika was unable to speak due to acid burns in her throat. On the fifth day, Sub-Inspector recorded her statement that acid was poured in her mouth by accused persons which led to registration of the case under section 498A, 307, IPC. Later Magistrate visited the hospital, obtained opinion of the Doctor that patient was conscious and coherent. The Magistrate then put some question to Deepika and thereafter recorded her statement. Thereafter Deepika left this world. On behalf of the state, reliance has been place on the evidence led by the prosecution inducing the dying declaration. On the other hand, on behalf of defence it is argued that no reliance can be place on the dying declaration as medical opinion does not show that victim was in a position to give any statement. Decide.
Answer: Her statement will be admissible as it was recorded by Magistrate when she got conscious and showing reliance has been placed on the evidence led by prosecution inducing dying declaration. Conviction can be done solely on Dying Declaration.
M receives a telephone call, after which he prepares to leave his residence. Upon inquiry by his wife H, he tells her that he is going to Agra to meet Z, who has promised to repay an old unpaid debt. After reaching Agra, M is murdered. Does the above statement of M to H fall within the purview of section 32(1) of the Indian Evidence Act, 1872? Give reasons with the help of case law.
Answer: His statement will be admissible as per section 32(1) “circumstance of transaction” (pakala narayan swami)
