Truth Sits On The Lips Of A Dying Man – An Overview
Jul. 18, 2020 • Architi Batra
[The author Pragya Vaishnav is a 4th year (B.A.LL.B.) law student at Indore Institute of Law]
Truth sits upon the lips of dying men, And falsehood, while I lived, was far from mine. - Matthew Arnold
INTRODUCTION
The dying declaration is a crucial and integral part of the case as evidence of the particular incident. It is to be considered that the person who is on his deathbed won’t lie and always tell the truth. There is eminent legal maxim ‘nemomoriturus prae-sumitur mentire’ which means a man will not meet his maker with a lie in his mouth. When any crime has been committed there is two-person involved in the same offence, the one who committed the crime or inflicted harm to the deceased and another one is a person against whom the crime had been committed.
The term dying declaration is derived from” Leterm Mortem”, which means “Words before death”. The basis “dying declaration” is derived from the Latin maxim “Nemo moriturus praesumitur mentire”, which implies” a man will not meet his maker with a lie in his mouth”.[1]
The dying declaration is considered as true and free from any kind of tormenting as the victim is not under the influence and pressure of anything. The personal statement is only admissible when the person who making statement dies. The person who has made dying declaration if survive then it won’t come under section 32 (1) of the evidence act when it relates to cause of death.[2]
Our Indian judiciary assures that every individual should get justice, it is a fundamental principle to provide justice to the victim. The victim is the only person who can narrate the whole story about the incident in the court of law. The victim's story plays a crucial role in the proceeding, and the same facts become very vital when it comes in the form of dying declaration. According to the abovementioned principle, it is considered that a dying man never lies. But there is a certain exception to this rule, not all dying declaration is to be considered as prime evidence. The dying declaration should have a connection with the incident, the victim should be physically and mentally sound person if they not then the statement will be not considered as a reliable one.
A DYING DECLARATION IS IN FORM OF:- As the person who is in death-bed or dead then it won’t be possible for them to come in the court of law. The victim statement holds prime importance in the proceedings, as it is not feasible for them to made dying declaration in any specific or particular form, therefore, they have given liberty to make the statement in the following forms:-
- Written
- Verbal
- Gesture: - In the case of Queen v. Abdulla it was concluded that if an injured person is incapable of speaking, he may make his dying declaration in the form of gestures and signs.[3]
- Vernacular language
DYING DECLARATION AND HEARSAY PRINCIPLE
Broadly defined, "hearsay" is testimony or documents quoting people who are not present in court, and hearsay evidence are inadmissible for lack of a first-hand witness. When the person being quoted is not present, establishing credibility becomes impossible, as does cross-examination.[4]
Accordingly, the idea of the necessity for the evidence and circumstantial probability of trustworthiness with conjoined value has been responsible for exceptions to the hearsay rule. Few other reasons have also been advanced to this end which is :[5]
(i) Where the circumstances are such that the sincere and accurate statement would naturally be uttered and no plan of falsification be formed;
(ii) The danger of easy detection or the fear of punishment would avoid falsification or counteract its force;
(iii). Where the statement made under the conditions of publicity that an error if occurred probably have been detected. The dying declaration being an exception to the hearsay rule rests on the reason for divine punishment. It is thus amply clear that dying declaration as provided under section 32(1) of the Act may be proved by evidence.[6]
Since the Indian justice delivery system is based on the principle of natural and fair justice & believes that every person is innocent until they are proven guilty for the crime. When it comes to the admission of the victim’s dying declaration as evidence who is not present in the court of law brings the question on the credibility of the statement of the victim, a victim won’t go through the process of cross-examination. It can be possible that the victim has made falls statement against the person. Therefore the dying declaration goes through certain assessment after which the dying declaration is admissible in the court of law.
Competency of recording dying declaration:- There is a certain person who can compete to record the statement of a dying person.
- Magistrate
- Police officer
- Public servant
- Doctor
- Police constable
- family members
- friends
LANDMARK CASES: -
There some landmark judgement mentioned below which deals with the admissibility of the dying declaration in the court of law
In Uka Ram v. State of Rajasthan Apex Court held that “when a statement is made by a person as to cause of his death or as to any circumstances of the transaction which resulted into his death, in the case in which cause of his death comes in question is admissible in evidence, such statement in law is compendiously called dying declaration”.[7]
In Laxmi v. Omprakash the Court very categorically said that a dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the cause or circumstances leading to his death.[8]
The Supreme Court in the case of Surajdeo Oza v. State of Bihar does not give an affirmative answer to the question and held that merely because the dying declaration is a brief statement it is not to be discarded. On the contrary, the length of the statement itself guarantees the truth.[9]
CONCLUSION: -
The dying declaration is a piece of chief evidence as it is helpful to trace the real culprit of the crime. Although this principle won’t apply when the victim survives. In the prominent NIRBHAYA RAPE CASE, the victim has made the dying declaration through sign and gesture. A dying declaration is not always in a descriptive manner, sometimes it just works as clue for the court and law enforcement agency to latch the accused. However, the incomplete dying declaration made by victim cannot be admissible in the court of law as reliable evidence.
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[1] The Free Dictionary By Farlex, Thefreedictionary.com, https://legal-dictionary.thefreedictionary.com/Corpus+Juris (last visited 11/05/2020
[2] Section 32(1) in The Indian Evidence Act, 1872
[3] Queen-Empress v. Abdullah,1885 ILR 7 ALL 385
[4] Mariah-wodjacz , Objection: Hearsay! What is the hearsay rule, and what are the exceptions to it?
https://www.legalzoom.com/authors/mariah-wodjacz
[5] M.C Sarkar, supra note 8 at 709
[6] Tapinder Singh v. the State of Punjab (1970) 2 SCC 113; Sharad B. Sarda v. the State of Maharashtra, AIR 1984 SC 1622.
[7] 10 April 2001
[7] (2001) 6 SCC 118
[8] AIR 1979 SC 1505, 1979 CriLJ 1122, 1980 Supp (1) SCC 769, 1979 (11) UJ 412 SC
Other references:-
- Rai diva, dying declaration, 15 Aug 2019, https://blog.ipleaders.in/dying-declaration-2/ last visited 12.05.2020
- Anushka, Dying declaration, 20 April 2019, http://lawtimesjournal.in/dying-declaration/#_edn10, last visited 12.05.2020
- Justice A.V.Chandrashekar, Dying Declaration – Its Applicability in Criminal Cases, https://kjablr.kar.nic.in/sites/kjablr.kar.nic.in/files/11.%20Dying%20Declaration%20-%20Its%20applicability%20in%20Criminal%20Cases.pdf, last visited 12.05.2020
- Dr Onkar Nath Tiwari, COGENCY OF DYING DECLARATION: ANALYSIS, http://ili.ac.in/pdf/don.pdf last visited 12.05.2020