Dying Declaration
'' A person , who is about to die , would not lie''.
'' Truth sits on the lips of a person who is about to die''

The maxim “Nemo moriturus praesumitur mentire” is basis for ''dying declaration'', which means '' a man will not meet his maker with a lie in his mouth''. A dying declaration is called as '' Leterm Mortem''. The word '' Leterm Mortem'' means '' Words said before death''. Recording of dying declaration is very important task. Utmost care is to be taken while recording a dying declaration. If a dying declaration is recorded carefully by the proper person, keeping in mind the essential ingredients of the dying declaration, such declaration retains its full value.

Section 32 (1) of Indian Evidence Act.
A close scrutiny of section 32 (1) of Indian Evidence Act, it is vividly known when the statement is made by a person with regard to the cause of his death, or 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 irrespective of the person who made such declaration was expecting death or not . Thus, it is apt to say that admissibility of Dying declaration is explained in the section 32 (1) of Indian Evidence Act.

How a dying declaration should be?There is no particular form of dying declaration. However, the best form of dying declaration is in the form of questions and answers. However, whenever a dying declaration is being recorded in the form of questions and answers precaution should be taken that exactly what questions are asked and what answers are given by the patient those should be written.

A dying declaration may be in the following forms:1. Written form;
2. Verbal form;
3. Gestures and Signs form. In the case ''Queen vs Abdulla'', it was held that if the injured person is unable to speak, he can make dying declaration by signs and gestures in response to the question.
4. If a person is not capable of speaking or writing he can make a gesture in the form of yes or no by nodding and even such type of dying declaration is valid.
5. It is preferred that it should be written in the vernacular which the patient understands and speaks.
6. A dying declaration may be in the form of narrations. In case of a dying declaration is recorded in the form of narrations, nothing is being prompted and every thing is coming as such from the mind of the person making it. 

who may record dying declaration?
Any person can record dying declaration. it is not necessary that only govt employee, magistrate, or  police officer or concern person should record it.

Exceptions of Dying Declaration

The exceptions of ‘Dying declaration’ stipulate that where the statements made by dying persons are not admissible:

1. If the cause of death of the deceased is not in question: If the deceased made statement before his death anything except the cause of his death, that declaration is not admissible in evidence.

2. If the declarer is not a competent witness: declarer must be competent witness. A dying declaration of a child is inadmissible. In Amar singh v. State of Madhya Pradesh,1996 Cr LJ (MP) 1582, it was held by M.P. High Court that without proof of mental or physical fitness, the dying declaration was not reliable.

3. Inconsistent declaration: Inconsistent dying declaration is no evidentiary value.

4. Doubtful features: In Ramilaben v. State of Gujarat it was held by the court that second degree burn injuries, the injured dying 7-8 hours after the incident, four dying declarations recorded but none carried medical certificate. There were other doubtful features, evidence not taken into account.

5. Uninfluenced declaration: it must be noted that dying declaration should not be under influence of any one.

6. Untrue declaration: it is perfectly permissible to reject a part of dying declaration if it is found to be untrue & if it can be separated.

7. Incomplete declaration: dying declaration must be complete.

8. if the statement relates to the death of another person: If the statement made by the deceased does not relate to his death, but to the death of another person, it is not relevant.

9. Contradictory statements: if a declarant made more than one dying declarations & all are contradictory, then those all declarations lose their value.

10. Unsound person: where the married dying of burns was a person of unsound mind & the medical certificate vouchsafed her physical fitness for a statement & not the state of mind at the crucial moment, the court said that the statement could not be relied upon.

11. I If dying declaration is not according to prosecution: in the case of State of U.P. v. Madan Mohan the Apex Court held that:

1. It is for the court to see that dying declaration inspires full confidence as the maker of the dying declaration is not available for cross-examination.

2. Court should satisfy that there was no possibility of tutoring or prompting.

3. Certificate of doctor should mention that victim was in a fit state of mind. Magistrate recording his own satisfaction about the fit mental condition of the declarant was not acceptable especially if the doctor was available.

4. Dying declaration should be recorded by the executive magistrate & police officer to record the dying declaration only if condition of the deceased was so precarious that no other alternative was left.

5. Dying declaration may be in the form of questions & answers & answers being written in the words of the person making the dying declaration. But court cannot be too technical.

“Dying Declaration” is a legal concept refers to that statement which is made by a dying person, explaining the circumstances of his death. LORD LUSH, L.J., quoted that “A dying declaration is admitted in evidence because it is presumed that no person who is immediately going into the presence of his Maker, will do so with a lie on his lips. But the person making the declaration must entertain settled hopeless expectation of immediate death. If he thinks he will die tomorrow it will not do.”

LORD EYRE, C.B., also held that “The principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the part is at the point of oath, & when every hope of this world is gone; when every motive of falsehood is silenced, & the mind is induced by the most powerful consideration to speak the truth; a situation so solemn & awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in the court of justice.”

Dying declaration is admissible on the sole ground that it was made in extremis. And in India, its admissibility is explained in Sec-32(11) of Indian Evidence Act. It is cleared by the above mentioned statements given by different courts that dying declaration can be in any form but it must be recorded carefully & duly proved, which the courts make admissible as the “DYING DECLARATION”. .

Some important case-law on ''Dying declaration'':1. Autar Singh v. The Crown, AIR 1924 Lah 253

2. Pakala Narayana Swami v Emperor, AIR 1939 PC 47

3. Hanumant v. State of Madhya Pradesh , 1953CriLJ129

4. State v. Kanchan Singh, AIR 1954 All 153

5. Ratan Gond v. State of Bihar , 1959CriLJ108

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  1. Certificate of doctor should mention that victim was in a fit state of mind. Magistrate recording his own satisfaction about the fit mental condition of the declarant was not acceptable especially if the doctor was available. ruling please?


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