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Summary of Workshop Paper on Dying Declaration SUMMARY OF WORKSHOP PAPER ON DYING DECLARATIO N …................................................................................................... A person who is about to die would not lie, as truth sits on the lips of a person who is about to die....! Introduction : Dying declaration is based on the maxim “Nemo moriturus praesumitur mentire” It means a man will not meet his maker with a lie in his mouth. The statements made by a person as to the cause of his death or as to circumstances of the transaction resulting in his death is called a dying declaration. Indian law recognizes the fact that ‘a dying man seldom lies.’ Or ‘truth sits upon the lips of a dying man.’ Section 32(1) of the Indian Evidence Act, 1872 explore the concept of dying declaration. Section 32 deals with the cases related to that person who is dead or who cannot be found. A dying declaration is called as '' Leterm Mortem''. The word '' Leterm Mortem'' means '' Words said before death''. A dying declaration is admissible in evidence even though it has not Workshop Core Paper On Dying Declaration 2 been made on oath and the person making it can-not be cross-examined. It is an exception to the rule of hearsay evidence. Admissibility of a dying declaration as a relevant piece of evidence is guided by the principle of necessity and religious belief of the olden days. The necessity being, that in cases, where victim is the only eye- witness to crime, the exclusion of his statement might defeat the ends of justice. The religious sanction behind admissibility comes from the belief that, a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath. A person who makes a dying declaration must, however, be competent to make the statement at the time he or she makes it, otherwise, it is inadmissible. A dying declaration is usually introduced by the prosecution, but can be used on behalf of accused as well. Recording of dying declaration is very important task. Utmost care is required to take while recording a dying declaration. If a dying declaration is recorded carefully by the proper person, keeping in mind its essential ingredients, such declaration retains its full value. OBJECT ➢ It is a presumption that, ''A person who is about to die would not lie''. Workshop Core Paper On Dying Declaration 3 ➢ It is also said that ''Truth sits on the lips of a person who is about to die''. ➢ The victim is exclusive eye witness and hence such evidence should not be excluded. (P.V. Radhakrishna v. State of Karnataka, Criminal Appeal No. 1018/2002 Decided By Hon'ble Apex Court On 25.07.2003) Section 32 Of Indian Evidence Act, 1872 Cases in which statements of relevant fact by person who is dead or cannot be found: Statement, written or verbal, or relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of case appears to Court unreasonable, are themselves relevant facts in the following cases: (1) When it relates to cause of death. (2) Or is made in course of business. (3) Or against interest of maker. (4) Or gives opinion as to public right or custom or matters. (5) Or relates to existence of relationship. (6) Or is made in will or deed relating to family. (7) Or in document relating to transaction mentioned in section 13, clause (a). (8) Or is made by several persons & expresses feelings relevant to matter in Workshop Core Paper On Dying Declaration 4 question. But here, we are concerned only with dying declaration which deals with the cases related to cause of death as mentioned in sub-section (1) of section 32 of Indian Evidence Act. Section 32 (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. (See Ulka Ram v. State of Rajasthan, Crminal Appeal No. 149/2000, Decided by Hon'ble Apex Court on 10.04.2001) Illustration: The question is, whether A was murdered by B; or A dies of injuries received in a transaction in course of which she was ravished. The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow. Statements made by A as to cause of his or her death, Workshop Core Paper On Dying Declaration 5 referring respectively to murder, rape & actionable wrong under consideration are relevant facts. Scope Of Dying Declaration • It is a statement written or oral of a person who is dead, with respect to the cause of his death or the circumstances resulting in his death. The statement is relevant in any judicial proceedings where the cause of death of that person is in issue. The second part of section 32 (1) makes it abundantly clear that the statement is admissible in civil as well as criminal proceedings and it is not necessary that the person making the statement should be apprehending death at the time of making the statement. Thus, it may be noted that, the Indian law as to admissibility of dying declaration makes a departure from the English law inasmuch as it is not limited to the cases of homicide and the restriction of expectation of death has not been recognized. Thus, the basis which has been considered to have taken the place of Oath and ensuring the truthfulness of the statement has not been made a condition for its admissibility. • The court is under an obligation to closely scrutinize all Workshop Core Paper On Dying Declaration 6 the pros and cons of the circumstances while valuating a dying declaration since it is not a statement made on oath and is not tested on the touch stone of cross- examination. • In Ram Nath v. State of Madhya Pradesh (AIR 1953 SC 420), Hon'ble Supreme Court held that: It is settled law that it is not safe to convict an accused person merely on the evidence of a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally or physically in a state of compassion and might be drawing upon his imagination while he was making the declaration. Thus, the Supreme Court has laid a stress, as a safeguard, on corroboration of the dying declaration before it is acted upon. • But Later In Khushal Rao v. State of Bombay (1958 SCR 552), Hon'ble Apex Court held this observation to be in the nature of obiter dicta and observed that, "It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of the conviction unless it is corroborated." • Thereafter, In Harbans Singh V. State of Punjab (1962 Workshop Core Paper On Dying Declaration 7 AIR 439), Hon'ble Supreme Court held that, "It is neither a rule of law nor of prudence that a dying declaration requires corroboration by other evidence before a conviction can be based thereon." • Thenceforth, Further In State of U. P. v. Ram Sagar Yadav (1985 AIR 416) Hon'ble Supreme Court observed that, “The primary effort of the court is to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing then the court may, for its assurance, look for corroboration to the dying declaration. Dying Declaration: An Exception To Rule Against Hearsay • Black's Law Dictionary defines hearsay as, "A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. • The general rule is that in order to prove fact best evidence must be furnished and direct evidence is the best evidence. Hence, as a general rule the admissibility of hearsay Workshop Core Paper On Dying Declaration 8 evidence is excluded though there are exceptions to it. Dying declaration is one of the exceptions to the direct evidence as stated above and the necessity is for its admissibility. The victim, a prominent witness to the occurrence, being dead in the absence of any other witness, exclusion of the dying declaration may lead to the acquittal of the accused resulting in miscarriage of justice. Hence, there is need for this exception. • It may be stated here that the law requires that the evidence in a court of justice should be given on oath. An oath is an application of the religious sanction. A witness who violates the sanctity of oath by narrating facts untrue to his knowledge exposes himself to be punished for perjury. Furthermore, the testimony of a witness in a court is liable to be scrutinized and tested by cross-examination, but the dying declaration is not subject to any of the above safeguards to guarantee its truth.
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