Context

• Recently, a special CBI court on July 16 convicted two policemen and awarded them life sentences for the custodial death of a murder accused, who was burnt alive inside a police station in Karnal.

• The judgment relied heavily on the ‘dying declaration’ made by the victim prior to his death.

What is a Dying Declaration?

• The law presumes that no person will meet their maker with a lie in their mouth.

• 

  The Section 32 of the Indian Evidence Act, 1872 deals with cases in which statement of relevant fact is made by a person who is dead or cannot be found.

• The general rule under Section 60 of the Act is that all oral evidence must be direct i.e. he heard it, saw it or perceived it.
• The grounds of admission under a dying declaration have been based on two broad rules:
  • The victim being generally the only principal eye-witness to the crime; and
  • The sense of impending death, which creates a sanction equal to the obligation of an oath
• The grave position of the person is also the reason in law to accept veracity of his statement, dispensing with the requirements of oath and cross-examination.
  • An exclusion of this dying declaration would also leave the court without a scrap of evidence.

Reasons to set aside Dying Declaration

• It is worthwhile to note that the accused has no power of cross-examination.
• It is the reason the courts have always insisted that the dying declaration be of such a nature as to inspire full confidence of the court in its correctness.
• The courts are on guard to check if the statement of the deceased was a result of either tutoring, or prompting or a product of imagination.
• The court in such cases must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant.
• The courts look to determine that such declarations are voluntary, unless it is proved that the declaration was tainted with animosity and a result of tutoring.
• The Supreme Court had even noted that the declaration made through signs, gestures or by nods are admissible as evidence.

Who can record dying declarations?

• Anyone can record the dying declaration of the deceased as per law.
• The law does not compulsorily require the presence of a Judicial or Executive Magistrate to record a dying declaration.
  • A dying declaration cannot be relied upon as the solitary piece of evidence unless recorded by a Judicial or Executive Magistrate.
• A dying declaration recorded by a Judicial or Executive Magistrate will muster additional strength to the prosecution case though.
• A dying declaration may in several cases be the primary piece of evidence to prove the genesis of occurrence.
• The only requirement for such a declaration to be held perfectly accountable in court is for the victim to volunteer the statement and be of conscious mind.
• The person who records the declaration must be satisfied that the victim is in a fit state of mind.

Do dying declarations always need corroboration?

• A dying declaration can form the sole basis of conviction and the rule requiring corroboration is merely a rule of prudence.
• The judgments have noted that it is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
• If the court is satisfied that the declaration is true and voluntary it can base conviction on it, without corroboration.
• The court has to scrutinize the declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination.
  • It should not be acted upon without corroborative evidence where a dying declaration is suspicious.

• A dying declaration which suffers from infirmity cannot form the basis of conviction and merely because a dying declaration does not contain the details as to the occurrence.

Source: Indian Express

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