Q. What is “Dying Declaration”? Whether the dying declaration by itself can be the basis for conviction? Give an example with case law. [MPCJ 2011]
Ans. Section 32(1) of the Evidence Act contains provision for the relevancy of what is called dying declaration under English Law on the basis of doctrine of necessity and convenience. Unlike English law, it need not to be necessarily made when declarant was under expectation of death. Under Indian law, if death of the declarant is proved due to injuries received from the accused then following statement assumes the character of dying declaration wherever the cause of the death of such person comes into question-
- Statement as to cause of his death.
- Statement as to any of the circumstances which resulted into his death. This category can envelop a far wider amplitude than the first category. On its scope Privy Council had held in Pakala Narayana Swami Vs. Emperor (1939) 66IA66,81 that there has to be a proximate relationship between the statement and the circumstances of the death. Although, over the years this proximate test has been liberalised in order to overzealously admit the best evidence on the record. Later on, the Hon\\\’ble Apex Court has held in Sharad Birdhichand v state of Maharashtra that under the question of proximity all that is required is that there should be nexus between circumstances stated by the victim and his death. Still further, the Hon\\\’ble Apex Court has held in Patel Hiralal Joitram v state of Gujrat that anything which has a nexus with the death of declarant whether proximate, distant, direct or indirect can fall within the purview of the second category of the section 32(1) of the act. Therefore, proximity test stands reduced to the nexus test and the statement is relevant if the circumstances are sufficiently or closely connected with the actual transaction of death.
Evidentiary value of the dying declaration:- Section 32(1) of the Evidence Act furnishes relevancy to dying declaration. Admissibility of such relevant statement is the first step and once it is admitted then the court has to consider how far it is reliable. Unlike English Law, in the Indian legal system the evidentiary value of the dying declaration is not always founded on the Latin maxim Nemo Moriturus Praesumitur mentire (a man will not meet his maker with a lie in his mouth) but when such circumstances are absent then obviously it reduces the weight of evidence.
Undoubtedly, there are certain circumstances/weak point which act against the evidentiary value of the dying declaration. Like, it is hearsay evidence and neither given on oath nor its maker available far cross examination. But, it is taken care of by the fact that dying declaration is made by the person on the death bed and such solemn position operates equal to the obligation of oath and also in substitute of the cross-examination.
On the point of corroboration, the Hon,ble Apex Court in its Locus classicus judgment Kushal Rao Vs State of Maharashtra AIR 1958 SC 22 overruled its own judgment in Ram Nath Madho Prashad v State of M.P, AIR 1953 SC 420 which necessarily required corroboration of the dying declaration to be made ground of the conviction and laid down following guiding principal to appreciate the evidentiary value of the dying declaration.
- That there is no absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated.
- That the evidentiary value of dying declaration has to be judged according to principles governing the weighing of evidence with due regard to fact and circumstances of the case.
- Dying declaration is neither weaker kind of evidence nor can be equated with accomplice evidence. It stands on the same footing as another piece of evidence.
- The dying declaration has to be tested on the anvil of priority rule and reliability test which includes whether it was recorded by magistrate in question-answer form, whether dying man had opportunity of observation due to availability of the sufficient light at the crime scene, whether capacity to remember was unimpaired, whether statement was made at the earlier opportunity ruling out the possibility of tutoring and whether declarant while making dying declaration was in a fit state of mind.
Thus, if the court is satisfied that the dying declaration is true and voluntary then it being a substantive evidence can be the sole basis of conviction without any corroboration.