Can the identification through Dying Declaration be considered and made relevant?

One of the cardinal principles of law of evidence suggests that facts must always be proved by direct evidence. Section 60 of the Evidence Act, provides that oral evidence in all cases must be direct and that hearsay evidence is inadmissible due to its inaccurate and untrustworthy nature.

However, necessitated by its extraordinary nature an exception is made for a Dying Declaration i.e. a statement of a person just before he died explaining the circumstances of his death. It is based on the maxim nemo mariturus presumuntur mentri i.e. a man will not meet his maker with lie on his mouth. Identification through a dying declaration is considered by courts and is undoubtedly relevant in ensuring justice is served.[1]

This principle has been codified in Section 32 of Indian Evidence Act and as a result Statements made by a person as to the cause of his death or as any of the circumstances of the transaction which resulted in his death are themselves relevant facts and admissible in evidence and in fact it could form the sole basis of conviction.[2]

Conversely it is also necessary that Courts ensure that the record of the dying declaration is correct and faithful. Therefore, as far as possible the dying declaration should be recorded in the manner hereinafter prescribed, and in the event of death of the person making it, should be submitted at the enquiry or trial. [3]

What is the impact of incomplete statements?
The dying declaration in order to be admissible in evidence under Section 32 (1) of the Evidence Act must be materially and substantially complete. In Cyril Waugh v. The King[4] it was held that the dying declaration was inadmissible because, prima facie, it was incomplete and no one could tell what the deceased was about to add.

The Supreme Court through a plethora of judgements has clarified that in certain cases even an incomplete declaration can be admissible.

In the case Abdul Sattar v. State of Mysore[5], it was held that although the dying declaration is incomplete since it had unmistakably pointed out the guilt of the accused, it can be made admissible under Section 32 (1).

Furthermore, it has been held that a dying declaration need not be exhaustive and disclose all the surrounding circumstances. It cannot be ruled out entirely because of an omission to refer to a particular circumstance of the transaction. [6]

Thus, in India the Supreme Court has laid down that even though a statement is incomplete as long as the dying declaration unmistakably points out the guilt of the accused then there is no harm in relying on such incomplete declaration. [7]

What is the evidentiary value of a Statement if declarant survives

Another point of contention is when even though a dying declaration is recorded the declarant does not end up dying.

A statement made is only converted in dying declaration when the victim/ declarant dies. If the declarant does not die, then the declarant can be used as a witness in the court against the accused. It is said that the dying declaration is only recorded on the presumption that the declarant is about to die. And the declarant won’t lie just before dying. But if the declarant does not die then the statement can’t be admissible as dying declaration.

In Ramprasad vs the State of Maharashtra[8] it was observed by the Supreme Court that while making the statement, the declarant should have been under the expectation of death and if a person making dying declaration survives, then his statement cannot be used under section 32 of the Indian Evidence Act but it is a statement in terms of section 164 of CrPC.

It is also important to note that Sec.32 does not prescribe an ascertained nexus of time between the declaration and the death of the declarant.

Thus, a the statement becomes a dying declaration only if the victim dies.

Evidentiary value of dying declaration together with exceptions thereof
Through a catena of judgements like Khushal Rao v. State of Bombay, Kusa v. State of Orissa[9] and K.R. Reddy v. Public Prosecutor,[10] the Supreme Court has culled out following principles related to the evidentiary value of dying declaration:

1. A dying declaration can be the sole basis of conviction. A true and voluntary declaration needs no corroboration since the shadow of impending death is by itself the guarantee of the truth of the statement made. [11]
2. A dying declaration is not a weaker kind of evidence than any other piece of evidence;
3. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.
4. A dying declaration stands on the same footing as another piece of evidence & has to be judged in the light of surrounding circumstances & with reference to the principle governing the weight of evidence.
5. A dying declaration should wherever possible be recorded by a competent Magistrate in the form of questions and answers in the words of the maker of the declaration
6. In order to test the reliability of a dying declaration, the court has to keep in view the circumstances like the opportunity of the dying man for observation.
7. The Court is required to be satisfied, that there was no element of tutoring, the deceased was in a fit state of mind and the statement was not a product of his imagination.

A dying declaration is not admissible when (this list is illustrative, not exhaustive)

1. the deceased made statement before his death about anything except the cause of his death,[12]
2. the decision is doubtful, inconsistent, substantially incomplete, proved to be untrue and influenced through coercion,[13]
3. the declarer is not a competent witness for instance in Amar Singh v. State of Madhya Pradesh,[14] it was held that without proof of mental or physical fitness, the dying declaration was not reliable.
4. the statement made by the deceased does not relate to his death, but to the death of another person, it is not relevant[15]

Evidentiary value of Dying Declaration based on suspicion

Where the prosecution case purely based on dying declaration which is plagued by so many suspicious circumstances creating a doubt as to its genuineness, such evidence of dying declaration would hardly be sufficient to maintain the conviction.

When the dying declaration recorded by Magistrate was neither signed by the deceased not contained date and time of its recording. In the absence of any explanation for being given by the prosecution that the deceased was not in a position to sign it, the dying declaration was held to be inadmissible. [16]

In 2011 the Bombay High Court in Natha Shankar Mahajan v. State of Maharashtra[17], held if there is any suspicion about this dying declaration, the benefit must go to the accused.
Thus, a dying declaration is not to be believed only if there are patent suspicious circumstances surrounding the same.

Evidentiary value of a Medical officers opinion and about the fit and conscious state of the deceased, effects of being medicated, delusional etc

A dying declaration recorded by a medical officer is admissible and of evidentiary value, as a doctor is an independent person can never be disbelieved.[18] In cases where the doctor finds that the life is ebbing fast in the patient and there is no time either to call the Police or the Magistrate in such a situation the doctor is justified, indeed he is duty-bound to record the dying declaration.[19] He is not only a respectable witness but an impartial expert and, thus, his recording of declaration deserves respect.[20]

While recording the statement of the victim, it is very important to examine the health of the victim. It is of paramount importance that the magistrate is cognizant of the impact of drugs administered, which could lead to erroneous statements. Judicial Magistrate or the doctor as the circumstance may be should satisfy himself that the victim is in a fit condition to give a statement to ensure if that the person is conscious of the surroundings and is in a fit state of mind to make the dying declaration. [21] A certificate proving that the statement given was in fit condition and it is true should be obtained by the judicial magistrate from the doctors examining the victim.

Conclusion and suggestions to improve the prevailing Law of the Land
Dying declaration is of paramount evidentiary value and can be a sole factor for conviction of the accused in cases of heinous crimes like murder, dowry death and rape. Hence, while it should undoubtedly be recorded carefully with all the procedure that the court has mentioned the following are suggestions to improve the reliability and veracity of dying declarations.

Firstly, guidelines could be issued mandating that as far as practicable, the dying declaration should be video recorded by the magistrate so it can be examined and analysed for its veracity. With an increasing number of the population having smartphones this solution could greatly reduce disputes regarding dying declarations.

Moreover, in certain exceptional and urgent circumstances where it is not possible for a magistrate or doctor or any authorized individual to record a dying declaration, anybody should able to record a video of a dying declaration which should be admissible in court.

Furthermore, stricter guidelines should be issued for proper implementation of the rules laid down to ensure the veracity and sanctity of the declaration is upheld.

Lastly, awareness should be spread amongst the general public about dying declaration and its importance.

End-Notes
[1] P.V. Radhakrishna v. State of Karnataka, 2001 (6) SCC 118
[2] Singh v. The State (AIR 1962 SC 439)
[3] Khushal v. State of Bombay (AIR 1958 SC 22)
[4] 54 Cal WN 503
[5] AIR 1979 SC 1505
[6] State v. Govinda Pillai, AIR 1952 Trav. & ch 449.
[7] Gopal v. State of M.P, AIR 1972 SC 1557.
[8] 1999 SCC(Cr) 651
[9] 1980 2 S.C.C. 207
[10] 1976 SCC (3) 618
[11] Laxmi v. Omprakash, (2001) 6 SCC 118.
[12] State of Gujarat v. Rabri Pancha Punja. Cri LJ. 1981;NOC: 171 (Guj) 11
[13] Nand Kumar v. state of Maharastra. Cri LJ 1988; 1313 12
[14] 1996 Cr LJ (MP) 1582,
[15] State of UP v. Madan Mohan. AIR 1989 SC 1519:1989 Cri LJ 1485h
[16] State of M.P. v. A Singh, (2005) 3 SCC 169.
[17] (2011) 15 SCC 219
[18] Sripatrao v. State of Maharashtra (2000) 10 SCC 320
[19] AMA Rehman v. State of Gujarat, AIR 1976 SC 1782
[20] Gulzarilal v. State of Haryana, AIR 2016 SC 795
[21] State of Haryana v. Harpal Singh, AIR 1978 SC 1530 1978 Cr.LJ 1603 (SC).