Dying declaration
Source: By Pallavi Singhal: The Indian Express
A special CBI court on 16 July 2021 convicted two policemen and awarded them life sentences for the custodial death of a murder accused that was burnt alive inside a police station in Karnal. The judgment relied heavily on the ‘dying declaration’ made by the victim prior to his death.
The law presumes that no person will meet their maker with a lie in their mouth. So Section 32 of the Indian Evidence Act, 1872 deals with cases in which a statement of relevant fact is made by a person who is dead or cannot be found.
The general rule under Section 60 of the Act is that all oral evidence must be direct — he heard it, saw it or perceived it. The grounds of admission under a dying declaration have been based on two broad rules — one, the victim being generally the only principal eye-witness to the crime; and two, the sense of impending death, which creates a sanction equal to the obligation of an oath.
The CBI judge elaborated on this:”When the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice.”
This grave position of the person is also the reason in law to accept veracity of his statement, dispensing with the requirements of oath and cross-examination. An exclusion of this dying declaration would also leave the court without a scrap of evidence.
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, 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.
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.
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.
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 the 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.
