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Dying Declaration in Burn Cases DYING DECLARATION IN BURN CASES Dissertation submitted in part fulfillment for the requirement of the Degree of LL.M Submitted by Supervised by AMIT SINGH Prof(Dr.) JAGBIR SINGH DAHIYA NATIONAL LAW UNIVERSITY DELHI (INDIA) 2019 DECLARATION BY THE CANDIDATE I hereby declare that the dissertation entitled “Dying declaration in burn cases” submitted at National Law University, Delhi is the outcome of my own work carried out under the supervision of Dr. Jagbir Singh Dahiya, Professor of Law, National Law University, Delhi. I further declare that to the best of my knowledge, the dissertation does not contain any part of the work, which has not been submitted for the award of any degree either in this University or any other institutions without proper citation. Amit Singh Roll No.16 LL.M. 18 National Law University, Delhi New Delhi May 21, 2019 i CERTIFICATE OF SUPERVISOR This is to certify that the work reported in LL.M. dissertation entitled “Dying Declaration in burn cases”, submitted by Amit Singh at National Law University, Delhi is a bonafide record of his original work carried out under my supervision. Dr. Jagbir Singh Dahiya Professor of Law National Law University, Delhi New Delhi May 21, 2019 ii ACKNOWLEDGEMENT I feel proud to acknowledge the able guidance of my esteemed supervisor Prof. (Dr.) Jagbir Singh Dahiya, National Law University, Delhi, who helped me to complete my dissertation successfully. His mentorship is paramount in the successful completion of my work. His encouragement and valued suggestions are greatly appreciated for which my mere expression of thanks does not suffice. I acknowledge with pleasure to thank the library and computer staff of the National Law University, Delhi for their assistance and support. This research work bears active encouragement and guidance of my friends and it would never have been possible to complete this study without an untiring support from my family. I am greatly indebted to the various writers, jurists and all others from whose writings and literature, I have taken help to complete this dissertation. Amit Singh iii LIST OF ACRONYMS & ABBREVIATIONS AIR All India Reporter Anr. Another Cr. Criminal Cri.L.J. Criminal Law Journal HC High Court NCT National Capital Territory SC Supreme Court SCC Supreme Court Cases U.K United Kingdom U.P Uttar Pradesh U.S United States V. Versus Vol. Volume iv LIST OF STATUTES 1. The Indian Evidence Act, 1872. 2. The Indian Penal Code, 1860. 3. The Code of Criminal Procedure, 1973. 4. Protection of Women from Domestic Violence Act, 2005. v LIST OF CASES 1. N Ram v. State, AIR 1988 SC 912: 1988 Cri LJ 1485 2. Khushal Rao v. State of Bombay, AIR 1958 SC p.22 3. Satishchandra v. State of Madhya Pradesh, 2014 6 SCC 4. State of U.P v. Krishangopal, AIR 1988 SC p.2154 – paragraph 13 5. Pakala Narayana Swami v. Emperor, AIR 1939 privy council 6. Laxman v. State of Maharashtra, AIR 2002 SC 2973 7. Paniben Smt. v. State of Gujarat, A.I.R 1992 S.C 1817= 1992 Cr. L. J 2919(S.C) 8. Kundanbala Subrahmanyam v. The State of Andhra Pradesh, 1993 SCC(2) 684 9. Padmaben Shamalbhai Patel v. the State of Gujarat, 1991 SCC(1) 744 10. Dalip Singh vs. The state of Punjab, (1979) 4 SCC 332a 11. Tapinder Singh v. State of Punjab, 1970 AIR 1566 12. Laxmi v. Om Prakash(2001) 6 SCC 118 13. Ram Nath Madho Prasad v. State of M.P AIR 1953 SC 420 14. Latoor Singh v. NCT of Delhi 2015 SCC Online Del 8103 15. Munnu Raja and ors v. State of M.P, 1976 AIR (SC) 2199 vi TABLE OF CONTENTS TITLE PAGE NO. DECLARATION BY THE CANDIDATE I CERTIFICATE OF SUPERVISOR II ACKNOWLEDMENT III LIST OF ABBREVIATION IV LIST OF STATUTES V TABLE OF CASES VI TABLE OF CONTENTS VII CHAPTER -1 1 - 7 INTRODUCTION 1 1.1 INTRODUCTION 1 1.2 LITERATURE REVIEW 2 1.3 STATEMENT OF PROBLEM 4 1.4 OBJECTIVES OF RESEARCH 5 1.5 RESEARCH QUESTIONS 5 1.6 SCOPE OF RESEARCH 6 1.7 RESEARCH METHODOLOGY 6 vii 1.8 CHAPTERIZATION 6 CHAPTER - 2 8 - 1 8 RATIONALE BEHIND DYING DECLARATION 8 2.1 RATIONALE 8 2.2 PROCEDURE 12 CHAPTER 3 19 - 2 6 DEMOGRAPHY AND MEDICO LEGAL ASPECTS IN THE HOMICIDAL, ACCIDENTAL OR SUICIDAL 19 NATURE OF BURNS 3.1 POSITION OF WOMEN 19 3.2 FIRE AND BURNS 20 3.3 DEMOGRAPHY 21 3.4 MEDICO LEGAL ASPECTS 22 CHAPTER - 4 27 - 3 9 DYING DECLARATION- APPLICATION, 27 PRECAUTIONS AND PRINCIPLES 4.1 APPLICATION AND RELIGION 27 4.2 APPLICATION AND PRECAUTIONS 30 4.3 APPLICATION IN CRIMINAL CASES 33 CHAPTER – 5 39-42 CONCLUSION 39 BIBLIOGRAPHY X-XI viii BOOKS X STATUTES X JOURNALS X ARTICLES XI ix CHAPTER 1 INTRODUCTION 1.1 INTRODUCTION It has been an old-age adage that a person about to die never lies; he will speak the truth regardless. This old age adage comes from the maxim ―Nemo moriturus praesumitur mentire” meaningthat a person will not meet God by saying a lie with his mouth1. This old –age adage has been adopted in the criminal law system with the belief that a dying man will never lie about his killer; also it was within reason that if there is no witness the testimony of the dead man is needed to identify the killer. The criminal law system uses evidence to prove a case in the court and as a matter of law dying declaration has been given importance in the criminal system as evidence. Understanding the meaning of dying declaration is very important to understand its role in the criminal system. A dying declaration is termed in common law as ―Leterm Mortem‖ which literally means ―the statement made before death‖. As a matter, dying declaration falls within the ambit of hearsay evidence, however due to the fact that a dying declaration is just that; the last statement made by a dying person in relation with his death, it is accepted as evidence in a criminal court. The basic rationale is that there is less or no incentive for a person about to die to lie and more important the last words of the person are of utmost important as he would have knowledge about the events leading to his death or the cause of his death.2 Hence, even though the person cannot be examined on oath, the evidence given in person, a dying declaration carries weight and reliability in the court. The concept of dying declaration has evolved over time. The concept evolved in the medieval courts of Europe and was adopted by the common law courts3. The concept 1Shipra Arora, Dying Declaration Section 32(1) of Indian Evidence Act, (January 15,2019 10.00am) http://www.legalservicesindia.com/article/1682/Dying-Declaration-Section-32(1)-of-Indian-Evidence- Act.html, 2 Fordham Law Review, 1970, The Admissibility of Dying Declaration, Volume 38 Issue 3, Pg. 509 3Aviva A Orenstein, ―Her Last Words: Dying Declaration and Modern Confrontation Jurisprudence‖, Articles by Maurer Faculty, Paper 6, Maurer School of Law : Indiana University,2010, (January 17,2019 9.30 p.m) 1 then was adopted in various countries, especially the commonwealth countries. In India, Section 32 clause 1 of the Indian Evidence Act, 18724 makes any statement made by a dying person relevant and admissible in court of law if it is related to the cause or circumstances regarding his death. A catena of judgments has rendered dying declaration to be irrefutable evidence in criminal courts that cannot be demolished. A dying declaration has been laid much importance for identifying the offender and using as conclusive proof towards proving the guilt of the accused. Dying declaration has been considered critically important in burn cases. Many questions had arisen as to the admissibility and credibility of dying declaration in burn cases where the percentage of burns has been extensive. There have been many questions raised over the admissibility of dying declaration, its policy of admissibility, the correct procedure of recording dying declaration and others. More often than not in burn cases the most important question is if the degree of burn is more than 90% and the victim has sustained massive damage, whether the victim‘s dying declaration will be given credence and till whatextent. Recent judgement by Justice A.K Sikri and Amitava Roy in the case of Ramesh and ors v. state of haryana has put emphasis on that the percentage of burns suffered cannot be held as a determinative factor that would affect the credibility of the dying declaration5. 1.2 Literature Review Fordham Law Review, 1970,The Admissibility of Dying Declaration, is an article on the admissibility of dying declaration. The article also sees the admissibility and rationale of admitting dying declaration as evidence in criminal cases. The https://www.repository.law.indiana.edu/facpub/6 4 Section 32 of The Indian Evidence Act, 1872 Cases in which statement of relevant fact by person who is dead or cannot be found, etc, is relevant: (1). When it relates to cause of death—When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person‘s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
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