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Dying Declaration

The word dying declaration means a statement written on verbal of relevant facts made by a person who is dead or a dying declaration is a declaration written or verbal made by a person , as to the cause of his/her death or as to any of the circumstances of the transaction , which resulted in his/her death.

Oral or written statement made by person other than the witness which is testifying are not receivable to prove the truth of the facts stated .Evidence of such statement is said to be hearsay evidence .

That means facts are proved primarily by witness. Each witness must give evidence only of matters within his/her own knowledge.

Dying declaration is no complete unless full names and address of the persons involved are given in it. Therefore ,only because the deceased in his/her dying uttered first name similar to that of the accused , it was not proper to accept the persecution version based on such incomplete dying declaration.

Evidence of dying declaration is admissible not only against the person actually causing death but also against other persons participating in causing death.

Ground of admission of Dying declaration:

Dying declaration is of the utmost importance and the evidence as to it should be as exact and full as possible .The general rule is that hearsay evidence is no evidence and is not admissible in evidence. But dying declaration is admissible for the following two reasons.

  • As the victim is sole eye witness , exclusion of his/her evidence defeats the ends of justice.
  • Declaration made by a person under expectation of death are presumed to be true.

Underlying Principle or Maxim:

The admissibility of dying declaration is based on the maxim”Nemo Moritur Praesumntur Mentiri” means a man will not meet his/her maker with a lie in his/her mouth .In other words, a person who is about to die would not lie. Truth sits on the lips of a person who is about to die. Such person would not lie , because he/she has to face his /her Maker, the Almighty, in the other world. This is the reason why dying declaration is made admissible under the Section 11 of Evidence Act 2031.

Though dying declarations are not statements made on oath and no cross examination is possible , yet because of the solemnity of the occasion, which ensures truth more than a positive oath they are received in evidence. Absolute guarantee of truth cannot be expected even in case of statements made on oath in a court.

The another reason for admissibility of dying declarations in necessity. Where it is the only evidence available under the circumstances, rejection of it may result in injustice. The person , being no more in the world cannot be called in the court to testify and other evidence is not available to help in determining the truth.

Condition for admissibility of dying declaration:

For the admissibility of dying declaration , the following conditions are to be satisfied.

The declarant must have to died:

Dying declaration to be admissible , the declarant must be dead. If the declarant survives, it is not admissible under the Section 11 of Evidence Act 2031 but it will admissible as a corroborative evidence. In the case of Ram Prasad vs.State of Uttar Pradesh the Supreme Court of India has observed that “Dying declaration was recorded by the Judicial Magistrate but the declarant survived. It was held that the statement could not be used under the Section 32 of Indian Evidence Act 1872 but it could be used to corroborate his evidence under the Section 157 of the Evidence Act.

1. Injuries must have caused the death:

The declarant must have been dead as a consequence of the injuries inflicted , but not as a consequence of some other reason or ailment. In the case of Sunder Joshi vs.HMG.the Supreme Court of Nepal has observed that “the incident took place on 2038 – 06 -22.The victim was admitted in to the hospital on the next day .She lodged the First Information Report(FIR) as to cause of her injuries in the morning and died by the night on the same day. Supreme Court has taken FIR as dying declaration”.

2. Statement as to cause of death or circumstances leading to death:

The statement must relate to the cause of his/her death or circumstances of the case resulting in his/her death .Statements which relate the cause or circumstances not responsible for his/her death are not admissible as dying declaration under the Section 11 of Evidence Act 2031.

3. Cause of death must be in question:

The statement as to cause of death of the deceased person will be relevant only if the cause of his/her death is in question.

4.The statement must be complete:

To be admissible in evidence, dying declaration must be complete. This is a matter of common sense because the deceased might have added something in contradiction to things already stated. It is therefore, necessary that incomplete declaration should not be received in evidence.

  1. In trials for murder the dying declaration of the victim made under the sense of impending death, is admissible to prove the circumstances which are supposed to guarantee the truth of the statement in the solemnity of the occasion, when the sense of impending death created a sanction equal to the obligation of an oath.
  2. There must have existed a “settled, hopeless expectation of death” if death overtakes the deceased so rapidly that he/she has no time to reflect or know that he/she is dying , any statement by him/her as to the cause of death is admissible as a dying declaration [Rvs.Bedingfield(1879)14cox34].
  3. The person who is near to the death does not have any love, affection, hatred. They speak truth.
  4. The crime is generally done with the plan, so other witness may not be found in such places at this time. The victim himself/herself will be the best evidence for their death.
  5. A person who makes a dying declaration must, however, be competent at the time he/she makes a statement, otherwise, it is inadmissible

Evidentiary Value of Dying Declaration:

The evidentiary value of the dying declaration will vary according to the circumstances of a particular case in which it is made. While considering the value of dying declaration, the court take into account the whole but not part of it.

Some leading case on this point are-

Pasang Sherpa vs. Nepal Government, the Supreme Court of Nepal has observed that “Defendant has burnt his wife. Before death, deceased (wife) has said that her husband spread kerosene over her body from the stove kept in to the kitchen. He lit the fire and burnt and started to dance. She called for water but he kept dancing”.

Similarly in the case of Government of Nepal vs. Amber Bahadur Ale the deceased said that her husband came drunk and started to fight with me and spread kerosene oil over her and lit the fire.

Dying Declaration is not direct evidence:

Dying declaration is not direct evidence because the original author of the statement was not found on the earth when they made the statement, they did not make the statement in the face of the entire world but in the privacy which might have emboldened him/her to say what he/she would not even hint at in public. There was no opportunity for his/her opponent to test his/her statement by cross-examination[Phipson and Elliot, Manual of the evidence.Dying declaration is not the direct evidence so the reliability of the witness is not seen as compared to direct evidence.

Expression made by a person who cannot found:

Section 12 of Evidence Act 2031 has made elaborated provision stating the conditions when an expression made by person who can not be found is relevant.

The person who cannot be found means such type persons as

  1. Who is dead?
  2. Who has disappeared and not known to anybody
  3. Who has been interfering by his/her opponent from attending at the court
  4. Who is out of jurisdiction of the court?
  5. Who cannot be compelled to give evidence such as privileged witness
  6. Who cannot be procured easily without an amount of delay or expenditure

[1] S.P. Tyagi ,Manual of the Evidence ,(Delhi, University Law Publiching,2002),p.233

[2] V.R.Manohar, and Dhiraj Lal,,Law of Evidence ,19th edition(Mumbai:Wadhwa and Company Nagur Publication,2002)p.139

[3] Ram Prasad vs. State of Uttar Pradesh, AIR 1999 SC1969]

[4] Sunder Joshi vs. HMG,NKP, 2044,p.577]

[5] Gyanendra Br. Shrestha,Ain Sagraha(comment on acts with precent),Kathmandu , Pairavi Prakashan 2061,p.81,103]

[6] NKP,2065,p.326

[7] NKP,2064,p.1443]

[8] Universal Law Publishing Co.Pvt:2001) p.233,234

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