Introduction
According to Section 32 of the Indian Evidence Act of 1872, a dying declaration is a statement made by a person who is dead or cannot be found or whose presence cannot be secured without causing delay which the court believes to be unreasonable and will be considered as relevant for the case. Before dissecting the section and language used therein, it is necessary to first discuss the premise on which the above section is constructed.
Section 32 is based on the Latin maxim ‘nemo moriturus praesumitur mentire’ which means that no one can meet his maker with a lie in his mouth. The reason why dying declarations become relevant for evidence is that it is believed that when a person is on his deathbed, he will not have any malice or ill-will in his heart and consequently will not lie about the facts.
The Apex court has many times clarified the position on the evidentiary value of dying declarations in a catena of decisions over the years. The latest judgement on the subject is of Manjunath v. State of Karnataka [1] passed in the month of November 2023. In this case, the court listed all the previous decisions of the court including pre-independence cases and discussed the basic principles involved in recording dying declarations.
Dissecting The Provision Under Section 32(1) Of Indian Evidence Act,1872
If we peruse the language used in Section 32, we observe that two expressions are used i.e. ‘cause of his death’ and ‘circumstances of the transaction leading to his death’. In comparison, the expression ‘circumstances of the transaction’ is a broader term than ‘cause of the death’ because the former can cover a range of events which ultimately result in the death of a person whereas the latter expression seems to specify a particular reason for the death.
In the Pakala Narayan Swamy v. Emperor case, the Privy Council clarified the meaning of “Circumstances of the transaction.” This phrase refers to various details surrounding a particular event. The court provided examples, such as someone going to a place where they were later murdered, the reasons for their visit, the person they were going to meet, or the one who invited them.
These examples help us understand that the “circumstances of the transaction” include all relevant details about a situation in legal terms. But the expression is not to be confused with circumstantial evidence. Now that this distinction is cleared, we move to the next part of the section which becomes even more important since the article focuses on that aspect. Section 32 says that the statement of relevant facts or the dying declaration will become relevant only when the cause of the death of the person making the statement comes into question.
This aspect becomes important in cases where two or more dying declarations are made as part of the same incident (as happened in the case of Tejram Patil v. State of Maharashtra[2]). And lastly, the third element in the section is about the irrelevancy of the expectation of the person who makes the statement of whether he will die or not. That expectation doesn’t matter and won’t affect the relevancy of the dying declaration.
Moreover, Section 32(1) includes not only the cases of homicides but also covers suicide cases and the dying declaration becomes relevant in all cases regardless of the nature of the proceeding i.e. it is relevant in both civil as well as criminal cases. This third element distinguishes the Indian position from the English position where the law only covers the cases of homicides and the nature of the proceeding that is criminal and not civil.
The Legal Position On Dying Declarations
The court in the case of Sharad Birdhichand Sarda v. State of Maharashtra[3] explained the working of Section 32(1) and held that it is an exception to the rule of hearsay evidence and also to the rule of cross-examination. The value of cross-examination cannot be adequately emphasized and in the case of dying declaration, this procedure cannot be followed since the person is not available for cross-questioning. A dying declaration if found credible and reliable can form the sole basis for conviction. This principle is established in a number of decisions such as Khushal Rao v. State of Bombay[4], Suresh Chandra Jana v. State of West Bengal[5] and Jayamma v. State of Karnataka[6].
There are multiple factors which are to be kept in mind while adjudging the credibility of a dying declaration such as the percentage of burns, the presence of a judicial magistrate, the presence of doctors, the time gap between the incident and the recording of the dying declaration. Moreover, the certificate of ‘fitness of mind’ by the doctor is considered a rule of prudence and not a necessity.[7]
In Paniben v. State of Gujarat[8], the court held that the statement must be free from tutoring, prompting or imagination. When there are multiple dying declarations, each statement should be evaluated individually and the number of statements does not affect their significance. What matters is the reliability of the declaration.[9] Moreover, in Surajdeo Ojha v. State of Bihar[10], it was held that the brevity and preciseness of a dying declaration is no reason to reject it. Instead, the more detailed the statement, the more doubtful it will be.
The legal position on the above principles is fairly decided and without any uncertainties. The issue arises when two declarations are made about the same incident, and the declaration of one person is relied upon to establish the death of another person.
Tejram Patil V. State Of Maharashtra: An Unclear Stance
This 2015 case is unique in the sense that it deals with the aspect of two dying declarations being made as part of the same incident where a statement given by one is used to prove the death of another. The brief facts of the case were that the husband poured kerosene over his wife, causing her burns, and the wife’s mother came to save her and she also got burned in the process. The daughter gave her statement and the mother gave her statement. The court discarded the statement of the daughter since her statement was doubtful and was considered unreliable. However, the interesting point is that the court accepted the mother’s dying declaration to prove the daughter’s death and convicted the husband based on that statement.
The court here has made an error in interpreting Section 32. If we read the language of the section, it clearly mentions that the statement of relevant facts will become relevant only when the death of the person making the statement comes into question. Here, the mother’s death was not in question. The charge on the husband was of the murder of his wife. The statement given by the mother should not have been taken into consideration to convict the husband. It can act as a piece of corroborative evidence since the mother was a witness to the incident. But her statement can’t be used to convict the husband as a solitary piece of evidence.
The court in clear words has said, “It is thus clear that the dying declaration is admissible not only in relation to the cause of the death of the person making the statement and as to the circumstances of the transaction which resulted in his death, if the circumstances of the said transaction relate to the death of another person, the statement cannot be inadmissible when circumstances of ‘his’ death are integrally connected to the circumstances of death of such other person.”[11]
This stance of the court is in clear conflict with the interpretation of the section. The court is trying to cover the mother’s declaration under the expression ‘circumstances of the transaction which resulted in his (Daughter’s) death’. While that may be correct, the court is forgetting the next part of the section which says ‘in cases in which the death of the person making the statement comes into question’. This is a serious point of contention that the court has completely ignored and thus the legal position regarding the same is muddied and unclear.
Conclusion
As stated above, the position concerning dying declarations has been fairly settled in recent years. However, the above bone of contention remains. Instead of convicting the husband under Section 32(1) of the Indian Evidence Act, the court could have applied Section 6 of the Act, which deals with facts closely related to the main issue and forms part of the same transaction. Hopefully, the legal clarity on this matter will emerge in the future.
[1] Criminal Appeal No. 866 of 2011, 2023 INSC 978
[2] AIR 2015 CrLJ 1829
[3] (1984) 4 SCC 116
[4] AIR 1958 SC 22
[5] (2017) 16 SCC 466
[6] (2021) 6 SCC 213
[7] Laxman v. State of Maharashtra (2002) 6 SCC 710
[8] (1992) 2 SCC 474
[9] Amol Singh v. State of Madhya Pradesh (2008) 5 SCC 468
[10] 1980 Supp SCC 769
[11] Supra Note 3
This article is written and submitted by Aayushi Gupta during her course of internship at B&B Associates LLP. Aayushi is a 3rd Year BA. LLB. (Hons.) student at National Law University, Jodhpur.
