Introduction G

Introduction
In the law of evidence, the dying declaration is a testimony that would be admitted as evidence in
Criminal law trials because it constituted the last words of a dying person. The rationale is that a
person who is dying or believes so would have less intention to give a false or fabricated
testimony, and so, the statement carries with it some reliability. In clear words, a statement by
someone who is conscious and knows that death is imminent concerning what he or she believes
to be the cause or circumstances of death that can be introduced into evidence during a trial in
some certain cases.
A dying declaration is considered trustworthy evidence based upon the general belief that most
people who know that they are about to die do not lie. As a result, it is an exception to the
Hearsay rule, which prohibits the use of a statement made by someone other than the person who
repeats it while testifying during a trial, because of its inherent untrustworthiness. A dying
declaration is usually introduced by the prosecution, but can be used on behalf of the accused.
Concept of “Dying declaration”
Dying Declaration means a statement, may be written or verbal of relevant facts made by a
person, who is dead. It is the statement of a person who had died explaining the circumstances of
his death. This is based on the maxim ‘nemo mariturus presumuntur mentri’ which means a man
will not meet his maker with lie on his mouth. Zanzibar law recognizes this fact that ‘a dying
man seldom lies.’ Or ‘truth sits upon the lips of a dying man.’ It is an exception to the principle
of excluding hearsay evidence rule. Here the person (victim) is the only eye-witness to the crime,
and exclusion of his statement would tend to defeat the end of justice. Section 32 of The
Evidence act, no. 9 of 2016 deals with the cases related to that person who is dead or who cannot
be found.
Section 32: Cases in which statements of relevant fact by person who is dead or cannot be found.
—statement, written or verbal, or relevant facts made by a person who is dead, or who cannot be
found, or who has become incapable of giving evidence, or whose attendance cannot
be procured without an amount of delay or expanse which, under the circumstances of the case
appears to the Court unreasonable, are themselves relevant facts in the following cases:
(1) When it relates to cause of death. (2) Or is made in course of business. (3) Or against interest
of maker. (4) Or gives opinion as to public right or custom or matters. (5) Or relates to existence
of relationship. (6) Or is made in will or deed relating to family. (7) Or in document relating to
transaction mentioned in section 13, clause (a). (8) Or is made by several persons and expresses
feelings relevant to matter in question.
But here, we are studying about ‘dying declaration’ which deals with the cases relate to cause of
death. It is mentioned in sub-section (1) of section 32 of Zanzibar Evidence act.
Section 32 (1) When it relates to cause of death.—When the statement is made by a person as to
the cause of his death, or as to 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 whether the person who made them was or was not, at the time
when they were made, under exception of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.
Form of dying declaration
There is no format as such of dying declaration neither the declaration need to be of any longish
nature or neatly structured. As a matter of fact, perfect wording and neatly structured dying
declaration bring about an adverse impression and create a suspicion in the mind of the Court
since dying declarations need not be drawn with mathematical precision. The declarant should be
able to recollect the situation resulting in the available state of affairs.
A dying declaration may be in the following forms:
1. Written form;
2. Verbal form;
3. Gestures and Signs form. In the case Queen v 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 everything is coming as such
from the mind of the person making it.
Essential conditions for the admissibility of dying declaration 

To whom the statement is to be made and its form:-
A statement of dying declaration could be made to any person – a doctor, a Magistrate, a friend
or near relative, a police officer. However, a statement recorded by a Magistrate or doctor is
considered more reliable, and that recorded by a police officer or close relative not (require more
scrutiny).
No particular form of recording a statement is prescribed. The statement could be written, oral or
even verbal (e.g., gestures). 
The person making the statement must have died:-
The death need not occur immediately after the making of the statement. However, the death
must occur. If the persons making the declaration chances to live, his statement is inadmissible
as a dying declaration. 
Statement must relate to the cause of his death or the circumstances of the transaction which
resulted in his death:-
If the statement made by the deceased does not relate to his death, but to the death of another, it
is not relevant. For example, where the wife made a statement that her husband is killed by Z and
then she committed the suicide. 
The cause of death must be in question:-
The declaration under section 32(1) must relate to the death of the declarant. In Dannu Singh v.
Emperor, A and five other persons were charged with having committed a dacoity in a village.
A, who was seriously wounded while being arrested, made before his death a dying declaration
as to how the dacoity was committed and who had taken part in it. It was held that declaration
was not admissible in evidence against other persons, as it does not relate to his death, but relates
to participation of his associates in the dacoity. 
The statement must be complete and consistent:-
If the deceased fails to complete the main sentence (as for instance, the genesis or the motive for
the crime), a dying declaration would be unreliable. However, if the deceased has narrated the
full story, but fails to answer the last question as to what more he wanted to say, the declaration
can be relied upon. 
Declarant must be competent as a witness:-
It is necessary for the relevancy of a dying declaration that the declarant, if he had lived on,
would have been competent witness. Thus, in a prosecution for the murder of a child, aged four
years, it was proposed to put in evidence, as a dying declaration, what the child said shortly
before her death. The declaration was held to be inadmissible. 
Other points:-
Where the injured person was unconscious, dying declaration should be rejected. Where for
some unexplained reasons the person who noted down (scribe) the statement was not produced,
the declaration was not accepted as an evidence.
Where an injured person lodged the F.I.R. and then died, it was held to be relevant as dying
declaration.
Evidentiary Value of Dying Declaration
In K.R. Reddy v. Public Prosecutor, evidentiary value of dying declaration was observed as
below:
“The dying declaration is undoubtedly admissible under section 32 & not being statement on
oath so that its truth could be tested by cross-examination, the court has to apply the scrutiny &
the closest circumspection of the statement before acting upon it. While great solemnity and
sanctity is attached to the words of a dying man because a person on the verge of death is not
likely to tell lies or to connect a case as to implicate an innocent person, yet the court has to be
on guard against the statement of the deceased being a result of either tutoring, prompting or a
product of his imagination. The court must be satisfied that the deceased was in a fit state of
mind to make the statement after the deceased had a clear opportunity to observe & identify his
assailants & that he was making the statement without any influence or rancor. Once the court is
satisfied that the dying declaration is true & voluntary, it can be sufficient to found the
conviction even without further corroboration.”
In Khushal Rao v. State of Bombay, Apex Court laid down the following principles related to
dying declaration :
(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction
unless corroborated. A true & voluntary declaration needs no corroboration.
(ii) A dying declaration is not a weaker kind of evidence than any other piece of evidence.
(iii) Each case must be determined on its own facts keeping in view the circumstances in which
the dying declaration was made.
(vi) In order to test the reliability of a dying declaration the court has to keep in view the
circumstances like the opportunity of the dying man for observation, for example, whether there
was sufficient light if the crime was committed in the night; whether the capacity of man to
remember the facts stated had not been impaired at the time he was making the statement by
circumstances beyond his control; that the statement has been consistent throughout if he had
several opportunities of making a dying declaration apart from the official record of it; & that the
statement had been made at the earliest opportunity & was not the result of tutoring by interested
party.”
Exceptions to Dying Declaration The exceptions of ‘Dying declaration’ stipulate, 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 is held that without proof of mental or physical fitness, the dying declaration is
not reliable.
3. Inconsistent declaration: Inconsistent dying declaration has no evidential value.
4. Doubtful features: In Ramilaben v. State of Gujarat (AIR 2002 SC 2996): Injured died
7-8 hours after incident, four dying declarations recorded but none carried medical certificate.
There were other doubtful features too, so it is not acted upon.
5. Influenced declaration: It must be noted that dying declaration should not be under
influence of anyone.
CONCLUSION:
Keeping in mind the above mentioned opinions of various courts it is suggested that whenever
dying declaration is to be recorded it should be recorded very carefully keeping in view the
sanctity which the courts attach to this piece of evidence. It retains its full value if it can justify
that victim could identify the assailant, version narrated by victim is intrinsically sound and
accords with probabilities and any material evidence is not proved wrong by any other reliable
evidence.
References
 Ashutosh Salil, “An Analysis of Indian and English Position of Dying Declaration’ J
297,Cri.L.J.2005
 Sudipto Sarkar & V. R. Manohar, Sarkar on Evidence, 15th edn
 Dying Declaration, at http:/www.lawyersclubindia.com/articles
 Dr. R. K. Gorea, “Critical Appraisal of Dying Declaration”JIAFM, 2004, 26(1).
 Avatar Singh “Principles of the Law of Evidence,16th ed.2007,
 M. Monir, “Law of Evidence” 7th ed
 Neha Vijayvarigya, "Admissibility Of Dying Declaration :Whether Justified”2006 (1)
Cri.LJ

Introduction G

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Essential conditions for the admissibility of dying declaration 

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