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.

  1. As the victim is sole eye witness , exclusion of his/her evidence defeats the ends of justice.
  2. 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.

7.11. Condition for admissibility of dying declaration:

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

  1. 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 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