The Evolution of Dying Declaration Under Indian Evidence Law

Does the solemnity of the prospect of death truly guarantee truthfulness, or does relying on the victim’s final words open the doors to grave miscarriages of justice in criminal trials?

Introduction

The very idea that the last words of the victim can serve as a criterion for judging the accused rests upon a philosophical belief that a person facing death is unlikely to lie. The doctrine of dying declaration seeks to incorporate such a time-honored maxim into legal positivism.
A dying declaration is a statement by a person concerning the circumstances or cause of his death, which may be received as evidence after his death. It is one of the exceptions to the hearsay rule, particularly in situations such as dowry death, acid burns, and domestic violence, where the victim is the only possible eyewitness to the crime. The relevance of dying declarations stems from the fact that a considerable number of murders go unpunished due to the absence of credible eyewitnesses.

A woman suffering severe burn injuries tells the Magistrate, “My husband poured kerosene on me and set me on fire.” She later dies. Her statement may be admitted in court as a dying declaration.

Historical Background

The principle behind dying declarations, as the name suggests, is that when a person is in extremis, the fear of dying makes him incapable of lying or at least discourages him from doing so.

This rule was crystallized in England by the maxim “Nemo moriturus praesumitur mentiri” (A person on the verge of death is presumed not to lie).

When Sir James Fitzjames Stephen drafted Section 32(1) of the Indian Evidence Act, 1872 (IEA), he essentially adopted the English doctrine with a modification. In England, a dying declaration was admissible only in cases of homicide when the victim had a contemporaneous expectation of death. The Indian Evidence Act, on the other hand, does not require such an expectation. Fitzjames Stephen’s formulation sought to create room for India’s diverse social and legal needs.

The rationale behind this exception to the hearsay rule is twofold: necessity and sanctity.

1. The necessity factor is embedded in the fact that in situations where the victim is the only eyewitness to the crime, his testimony ought to be admissible even after his death to ensure that the offender does not go unpunished.
2. The sanctity factor stems from the belief that the prospect of death is sufficiently solemn for a person to tell the truth even without the sanctity of a court oath.

Statutory Position: IEA VS. BSA

The statutory formulation which governed dying declarations for about a century and a half has recently been superseded by the Bharatiya Sakshya Adhiniyam, 2023 (BSA). Statutes governing dying declarations in India have evolved over time:

1.IEA u/s 32(1) / BSA u/s 26(a): Statements made by the deceased person concerning the cause of his death, or any circumstances of the transaction of which he was the victim resulting in his death, are relevant facts in an action in which the cause of such death is in question.
2.Expectation of Death: The expectation of death at the time of making the statement is not required by either the IEA or the BSA.
3.Civil / Criminal Jurisdiction: Both Acts apply to civil and criminal proceedings in India.
4.Survivors: If the victim survives after making his statement, then it cannot be used under IEA u/s 32(1) or BSA u/s 26(a). However, it may be used under IEA u/s 145 or 157 or their counterparts in the BSA to prove any fact or otherwise.
5.Digital India: While IEA u/s 32(1) has been amended to expressly include electronic records under IEA u/s 65B, the BSA has incorporated electronic and digital records within the statutory text itself.

Landmark Cases

The relevance of dying declarations and their admissibility as evidence has been firmly established by the Indian judiciary. Some landmark rulings include:

1. Khushal Rao v. State of Bombay, AIR 1958 SC 22The Supreme Court held that a trustworthy and reliable dying declaration can be used as the sole piece of evidence to convict the offender.
2. Paniben v. State of Gujarat, (1992) 2 SCC 474The Court ruled that where multiple dying declarations contradict each other on some material facts, they are not admissible unless there is sufficient corroborating evidence.
3. Laxman v. State of Maharashtra, (2002) 6 SCC 710A Constitution Bench of the Supreme Court held that a doctor’s fitness certificate is only a precautionary measure and not mandatory if the recorder is satisfied that the victim/complainant is compos mentis.
4. P.V. Radhakrishna v. State of Karnataka, (2003) 6 SCC 443The Court held that the phrase “circumstances of the transaction” in Section 32(1) of the IEA must be interpreted liberally so as to include all the facts which occurred proximate to his death.
5. Atbir v. Govt. (NCT of Delhi), (2010) 9 SCC 1The Court ruled that even victims of severe burns (over 90%) should be considered fit to record dying declarations if their mental faculties are sound.
6. Queen-Empress v. Abdullah, (1886) ILR 8 All 131The Court ruled that a dying declaration in the form of signs or gestures communicated by a person who was unable to speak was admissible as evidence.

Who Can Record a Dying Declaration?

Although the law does not specifically state who can record a dying declaration, courts give preference to individuals based on certain criteria:

1. A Judicial Magistrate is the most preferred recorder of a dying declaration. This is because of his education, independence, and lack of interest in the case.
2. The next preferred person is a doctor or medical officer. A doctor’s evidence is more admissible if the dying person had approached him for help before recording the declaration.
3. The third preferred person is a Police Officer. The evidence recorded by a police officer is subject to strict scrutiny.

The ordinary person, including close relatives, can record the declaration only in unavoidable circumstances. The evidence recorded is subject to scrutiny on whether the person was tutored, biased, or used any form of coercion.

Essentials of a Valid Dying Declaration

For a dying declaration to be admissible in court, there are several legal tests and procedures:

1. A dying declaration must be made by the victim when conscious and not in a clouded mind.
2. A person should give the declaration while not in the grip of delusion or excitement. This is to prevent such words from being used to coerce the other party. In addition, when recording it, the person recording should ensure that the dying person is not being coerced, bribed, or pressured in anyway to give evidence.
3. If, when recording the declaration, a person is interrupted or declines to give further information on a significant item that seems important, then that information must be carefully evaluated.
4. If the identity of the accused is not explicitly stated or described, the judge may determine that the claim does not qualify as a dying declaration. When making the declaration, the victim should use words that can be understood.
5. If possible, make the statement in whatever language the victim is comfortable using and sign it in person or take a thumbprint

Forms of Dying Declaration

A dying declaration may take a variety of forms depending on how it is recorded:

It can be written or oral. The declaration can also be dictated. The question-answer approach is recommended since it makes it easier to detect any leading questions.A dying declaration could be in the form of gestures, signs, or nods. This is common when the person is too weak, injured, or disfigured in the throat to speak. For example, Queen-Empress v Abdullah (1886).
A dying declaration can also be in the form of audio or video recordings. The latter tends to be more reliable since it can help establish the condition of the victim, whether he or she was forced, and whether tutoring took place.

Comparative Perspective & Suggestions

India’s position on dying declarations is comparatively broader than in England and the US. In England, a victim’s last words admissible only in cases of homicide ( R. v. Woodcock, (1789) 168 Eng. Rep. 352). In the US, Federal Rule of Evidence 804(b)(2) makes dying declarations admissible in homicide cases as well as in civil proceedings, but only if the victim had an expectation of imminent death. India, on the other hand, does not require such an expectation (IEA s 32(1), BSA s 26(a)), and allows dying declarations in both criminal and civil cases.

To enhance the evidentiary value of dying declarations, the following measures may be taken:

• Record dying declarations in audio-video mode in hospitals to capture the veracity of the victim’s body language and tone of voice.
• Develop SOPs for police, doctors, and others who record the victim’s statements.
• Use cryptographic hash and digital timestamp to preserve the integrity of digital records.

Conclusion

India’s jurisprudence on dying declarations is the result of an adaptation of the English common law doctrine which rested on religious beliefs into modern statutory law. Dying declarations have been used as evidence of crimes in India ever since the enactment of the IEA in 1872. The transition from Section 32(1) of the IEA to Section 26(a) of the BSA maintains the essential elements of Section 32(1) of the IEA, thus preserving both stare decisis and the sanctity of the victim’s last words while simultaneously protecting the accused from a wrongful conviction.

References

1. The Indian Evidence Act, 1872, Section 32(1).
2. The Bharatiya Sakshya Adhiniyam, 2023, Section 26
3. Official text: India Code – Bharatiya Sakshya Adhiniyam, 2023
4. Queen-Empress v. Abdullah, (1886) ILR 8 All 131.
5. Khushal Rao v. State of Bombay, AIR 1958 SC 22.
6. Paniben v. State of Gujarat, (1992) 2 SCC 474.
7. Laxman v. State of Maharashtra, (2002) 6 SCC 710.
8. P.V. Radhakrishna v. State of Karnataka, (2003) 6 SCC 443.
9. Atbir v. Government (NCT of Delhi), (2010) 9 SCC 1.
10. Law Commission of India, 69th Report on the Indian Evidence Act, 1872 (1977).
11. Law Commission of India, 185th Report: Review of the Indian Evidence Act, 1872 (2003).