This document discusses the legal concept of a dying declaration. It defines a dying declaration as a statement made by a person about the cause of their death or circumstances leading to their death. Dying declarations are an exception to the hearsay rule and can be used as evidence in court. For a statement to be considered a dying declaration, certain conditions must be met: 1) the declarant must have died, 2) the statement must relate to the injuries or circumstances that caused the declarant's death, and 3) the cause of the declarant's death must be relevant to the case. The document outlines the principles and essentials of a valid dying declaration under Indian law.
This document discusses the legal concept of a dying declaration. It defines a dying declaration as a statement made by a person about the cause of their death or circumstances leading to their death. Dying declarations are an exception to the hearsay rule and can be used as evidence in court. For a statement to be considered a dying declaration, certain conditions must be met: 1) the declarant must have died, 2) the statement must relate to the injuries or circumstances that caused the declarant's death, and 3) the cause of the declarant's death must be relevant to the case. The document outlines the principles and essentials of a valid dying declaration under Indian law.
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This document discusses the legal concept of a dying declaration. It defines a dying declaration as a statement made by a person about the cause of their death or circumstances leading to their death. Dying declarations are an exception to the hearsay rule and can be used as evidence in court. For a statement to be considered a dying declaration, certain conditions must be met: 1) the declarant must have died, 2) the statement must relate to the injuries or circumstances that caused the declarant's death, and 3) the cause of the declarant's death must be relevant to the case. The document outlines the principles and essentials of a valid dying declaration under Indian law.
Copyright:
Attribution Non-Commercial (BY-NC)
Available Formats
Download as DOCX, PDF, TXT or read online from Scribd
A dying declaration is a declaration is a declaration oI statement written or verbal made
by a person as to the cause oI his / her death, or as to any oI the circumstances oI that transaction which resulted in his / her death. It is a statement, which must have been made by the deceased beIore his death. Dying declaration are statements made by a dying person as to the injuries which culminated in his death or the circumstances under which the injuries were inIlicted. For example: II A has been assaulted by B or has been attacked by B, and dies. A shortly beIore his death makes a declaration holding B responsible Ior the injuries inIlicted on him with spear. The statement oI A is admissible as it relates o the cause oI his death as a dying declaration at the trial against B. Statements made by a deceased long period beIore the occurrence resulting in his death are not dying declarations and not admissible under Article 46. Article 46 makes admissible, the statement oI a person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause oI death or deals with circumstances leading to death. Law relating to dying declaration. Article 46. Cases in which statement of relevant fact by person who is dead or cannot be found, etc, is relevant. Statements, written or verbal, oI relevant Iacts made by a person who is dead, or who cannot be Iound, or who has become incapable oI giving evidence, or whose attendance cannot be procured without an amount oI delay or expense which under the circumstances oI the case appears to the Court unreasonable, are themselves relevant Iacts in the Iollowing cases: 1- Statements or declaration by persons since deceased, viz. declaration relating to his case oI death. 2- Declaration made in course oI business or duty. 3- Declaration against interest. 4- Declaration as to public rights. 5- Declaration as to pedigree. 6- Declaration by testators in their wills, and 7- Declaration by several person expressing Ieelings.
Article 46(1) states 'When it relates to cause oI death:- When the statement is made by a person as to the cause oI his death, or as to any oI the circumstances oI the transaction which resulted in his death, in cases in which the cause oI death oI that person 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 expectation oI death and whatever may be the nature oI the proceeding in which the cause oI his death comes into question. Illustration (a) The question is, whether A was murdered by B; or A dies oI injuries received in a transaction in the court oI which she was ravished. The question is, whether she was ravished by B, or The question is, whether A was killed by B under circumstances that a suit would lie against B by A`s widow. Statements made by A as to the cause oI his or her death, reIerring respectively to the murder, the rape and the actionable wrong under consideration are relevant Iacts.
DYING DECLARTION IS AN EXCEPTION TO HEARSAY RULE: earsay means a statement made otherwise than by a person while giving oral evidence in the proceedings which is tendered as evidence oI the matters stated. earsay may be Iirst hand, when a witness says he heard someone else say, or second hand (or even more distant) when he relates to what he was told that someone else said. earsay evidence may be oral or documentary, oI Iact or oI opinion. Oral or written statement made by person who are not parties and who are not called as witnesses are inadmissible to prove the truth oI the matters stated. The eIIect oI general rule oI hearsay evidence is to prohibit certain oral and written statements oI person other that that witness who is giving evidence being related to the Court as evidence oI truth oI that which was asserted in the statement and notwithstanding the Iact that no better evidenced oI the Iacts stated is to be obtained. The provision oI article 46, inter alia providing admissibility of dying declaration in evidence, is exception to the hearsay rule. The exception to the hearsay evidence has been directed by necessity. The general ground oI admissibility oI the evidenced reIerred to in Article 46 is that no better evidence could be produced. BeIore such evidence is admitted, the Court must arrive at a Iinding on evidence Iormally and regularly taken and recorded that one or other oI the grounds speciIied in the Article 46 exists. The admission oI such deposition in evidence without such Iinding is illegal. Article 46 makes relevant the statements given by a deceased person as to the cause oI his death or as to any circumstances oI the transaction which resulted in his death, when the cause oI death comes into question. 1- It is a Cardinal Rule in Law oI Evidence that the direct evidence is the best evidence having great probative Iorce, as it is original, positive and based on 1 st hand knowledge. 2- The word direct evidence is opposed to mediate or alternate or what is technically called hearsay or second hand evidence. 3- Principle oI necessity has successIully been able to carve its way to get one oI the most important Articles making way to the use oI hearsay evidence. 4- Article 46 is one oI the most important Articles making way to the use oI hearsay evidence. 5- Article 46 provides cases in which statement oI relevant Iact by person who is dead or cannot be Iound is relevant.
To sum up dying declaration is the combination of the following ingredients:- a. It relates to the case oI death; b. It includes the circumstances with resulted into death; c. It is relevant when the cause oI declarant`s death come into question whatever may be the nature oI proceedings irrespective oI the Iact whether such statement was made under the expectation oI death or otherwise.
Principles of dying declaration: a. There is no speciIied Iorum beIore whom such declaration is required to be made. b. There is no bar that it cannot be made beIore a private person. c. Dying declaration can be oral. Non recording oI the same does not give Iatal blow to the prosecution case. d. There is no legal requirement that the declaration must be read over or it must be signed by its maker. e. It is not a legal requirement that dying declaration should have been made under immediate apprehension oI death. I. Dying declaration should be inIluence Iree. (No be prompted by relatives, Iriends, etc.) g. In order to prove such declaration the person by whom it was recorded should be examined. h. Such declaration becomes substantive evidence when it is proved that it was made by the deceased. i. Corroboration oI a dying declaration is not a rule oI law, but requirement oI prudence. j. Such declaration when proved by cogent evidence can be made a base Ior conviction.
ESSENTIALS OR CONDITIONS FOR RELEVANCY AND ADMISSIBILITY OF DYING DELARATION: 1- The declarant must have died: For a statement to be admissible as a dying declaration, the declarant must die aIter making the statement. II the declarant survives and does not die, the statement cannot be used as a dying declaration.
2- The dying declaration must be a statement written or verbal: The dying declaration may be written or verbal which includes oral, signs and gestures. Signs and gestures such as nod or a shake oI head oI a dying person, unable to speak, in answer to question put to him can be used as dying declaration.
3- Injuries are the cause oI his death: BeIore the statement oI a person as to cause oI his death may be used as dying declaration it must be proved that his death was caused by the injury he received in the incident Ior which accused is being prosecuted. II a person dies not on account oI injuries which are inIlicted on him but on account oI some other reasons or ailment the dying declaration would not be admissible.
4- Circumstances oI the transaction which resulted in his death: The words resulted in his death` do not mean cause oI his death. The expression any oI the circumstances oI the transaction which resulted in his death are wide enough to include the motive oI the alleged crime.
The Statement may be made beIore the cause oI death has arisen, or beIore the deceased has any reason to anticipate being killed. The circumstances must be the circumstances oI the transaction; general expressions indicating Iear or suspicion, whether oI a particular individual or otherwise and not directly related to the occasion oI the death, will not be admissible. The circumstances must have some proximate relation to the actual occurrence. Any statement made by the deceased long beIore the incident murder will not be admissible. Some times letters written even 5 years prior to the event are admissible in evidence under article 46.
5- The Cause oI the death oI the declarant must be in question: A dying declaration would be relevant in any proceedings, Civil or Criminal, where the cause oI death comes into question. Where ever the cause oI person`s death is a point at issue, the statement will be admissible. The statement as to cause oI death or as to any circumstances oI the transaction which resulted in his death is relevant. The nature oI the proceeding in which the cause oI death comes into question need not necessarily be a charge oI murder or homicide. It may be a charge oI a diIIerent nature or it may be a civil action.
6- The declaration must be complete: A dying declaration must be complete, Irom the point oI view oI the declarant. II he has said all that he wanted to say it would be relevant. But it happens that aIter making same statements he is about to add something more when he becomes unconscious and dies, the statement would be an incomplete dying declaration and thereIore, will not be relevant. The reason Ior incomplete dying declaration not being admissible is that no one can tell what the deceased was about to add.
7- Declaration to be taken as a whole: Though there is a controversy on this point, in some case it has been held that it must be taken as a whole. II a statement is admissible, it must either go in a whole or not at all. Parts oI the statements made here and there can not be divested Irom their context Ior the purpose oI supporting the prosecution case. II a portion oI a dying declaration is untrue, the rest oI it cannot be necessarily rejected and iI part oI it is shown to be Ialse, the court may declare to believe the rest without corroboration.
8- Declaration should be precise: The dying declaration should be short, concise and to the point. Detailed statement covering the minutest details could not be expected Irom the declarant who is under severe stress and agony. The mere Iact that the dying declaration did not contain the detailed version oI the occurrence was no ground to disbelieve it.
9- The declarant must be competent: The person who is making a dying declaration must be competent. Even a dying declaration made by an inIant is admissible but the competency oI the minor has to be determined in terms oI Article 3 oI the Qanun-e-Shahadat Order, 1984.
10-The declarant must be in a Iit condition: BeIore dying declaration is sought to be proved under article 46, it must be shown that the declarant was in a Iit state oI mind to make the dying declaration, that the declarant was conscious oI the surroundings and oI the person who attacked him. REASONS FOR ADMISSIBILITY AND VALIDITY OF DYING DECLARATION: The admissibility oI dying declaration is based on the maxim 'Nemo Mortiturus Praesumutur mentire which means A man will not meet the Maker with a lie in his mouth. The presumption is that when a person is conscious oI his impending death, when he is conIident oI his Iast dissolution or when he has resigned Irom the hope oI survival, then in such cases he would not lie because A man will not meet his Maker with a lie in his mouth`. owever, experience shows that very oIten the dying man takes that last opportunity to implicate all his enemies and thus wreak a sweet vengeance on them. ence, the dying declaration should be admitted with utmost care when accepting as evidence. RULES FOR ADMISSIBLITY OF DYING DECLARATION: In Khushal Rao vs State of Bombay AIR 1958 SC 22 ], where the appellant was convicted Ior the oIIence oI murder on the basis oI the dying declaration oI the victim, the supreme court while dismissing the appeal laid down the Iollowing rules: (i) It cannot be laid down as an absolute rule oI law that a dying declaration cannot Iorm the sole basis oI conviction unless it is corroborated. (ii) Each case must be determined on its own Iacts keeping in view the circumstances in which the dying declaration was made. (iii) It cannot be laid down as a general proposition that a dying declaration is a weak kind oI evidence than other pieces oI evidence. (iv) A dying declaration stands on the same Iooting as any other piece oI evidence and has to be judged in the light oI surrounding circumstances and with reIerence to the principles governing weighing oI evidence. (v) A Dying declaration which has been recorded by a competent magistrate in a proper manner i.e. in the Iorm oI questions and answers and in the words oI the maker as Iar as practicable stands on a much higher Iooting than a dying declaration which depends on oral testimony which may suIIer Irom all the inIirmities oI human memory and character. (vi) In order to test the reliability oI a dying declaration the court has to keep in view the circumstances like the opportunity oI the dying man Ior observation, Ior example, whether there was suIIicient light iI the crime was committed at night; whether the capacity oI the man to remember the Iacts stated has not been impaired at the time he was making the statement by circumstances beyond his control; that the statement had been consistent throughout iI he had several opportunities oI making a dying declaration apart Irom the oIIicial record oI it; and that the statement had been made at the earliest opportunity and was not a result oI tutoring by interested parties. (vii) A dying declaration cannot be made to equate with the evidence oI an accomplice or the evidence Iurnished by a conIession as against the maker, iI it is retracted and as against the others even though not retracted. (viii) II the court is satisIied that the dying declaration was the truthIul version as to the circumstances oI the death and assailants oI the victim, iI can depend on solely on the dying declaration and the conviction can be laid saIely.
THE TEST FOR THE ACCEPTANCE OF DYING DECLARTION BY COURTS: (ADMISSIBILITY AND VALIDITY):
In a number oI cases it has been held that iI the statement oI the dying person passes the test oI careIul applied by the court, it becomes more reliable evidence and does not require corroboration. The two things main things which a court must take care oI Ior examining a dying declaration are that (1) It is not the result oI coaching, tutoring or prompting oI some body. (2) and that the deceased was in a Iit state oI mind to make the statement and made the statement without any enmity. owever, the general questions to be considered are as under: i. Whether the maker had the physical capacity to make the dying statement. ii. Whether the maker had opportunity to recognize the assailants. iii. Whether there were chances oI mistake on the part oI the dying man in identiIying and naming his assailants. iv. Whether it was Iree Irom prompting Irom any outside quarter and was not inconsistent with the other evidence. v. Whether the witness who heard the deceased making the statements heard him correctly and whether their evidence can be relied on. vi. Whether enmity exists between the parties among themselves or prosecution witness and accused person.
In Sunil Kashinath Raimale Vs State oI Maharashtra | 2006 CrLJ 589 (Bom) |, it has been held that in a bride burning case, where Iather oI the deceased-wiIe accompanies her to the hospital and was present at the time oI recording oI the dying declaration, the possibility oI tutoring could not be ruled out especially when the statement oI the Iather showed that he had some grudge against the accused husband oI the deceased. In order to pass the test oI reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view oI the Iact that the statement has been made in the absence oI the accused who had no opportunity oI testing the veracity oI the statement by cross examination. But once the court has come to the conclusion that the dying declaration was the truthIul version as to the circumstances oI the death and the assailants oI the victim, there is not question oI Iurther corroboration and the dying declaration can Iorm the basis oI conviction. In order to test the reliability oI the dying declaration the court has to keep in view the circumstances like the opportunity oI the dying man Ior observation, whether the capacity oI the man to remember the Iacts 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 iI he had several opportunities oI making a dying declaration, a part Irom the oIIicial record oI it; and that the statement had been made at the earliest opportunity and was not the result oI tutoring by interested parties. To be reliable the dying declaration should be truthIul as they were voluntarily made by the deceased while he was in a Iit state oI mind. HO ARE ENTITLED TO RECORD THE DYING DECLARTION? A Dying declaration may be made to anyone i.e. to a Police OIIicer, to a doctor or to any person but iI it is made to a Magistrate and is recorded by him, then it will have greater evidentiary value. (1)Recording by Magistrate: Though it is not essential that a dying declaration should be recorded by a Magistrate, yet ordinarily, whenever an injured person is in precarious condition, the investigating oIIicer should requisition the services oI a Magistrate Ior recording the Dying Declaration. The Magistrate being a disinterested witness and a responsible oIIicer and there being no material oI circumstance to suspect that he had any ,32:8 against the accused or was any how interested Ior Iabricating a dying declaration, the question oI doubt on the dying declaration recorded by the Magistrate would not arise.
(2)Recording by Investigating Officer (Police Officer): Although a police oIIicer is competent to record dying declaration but the courts have deprecated such practice. The Investigating oIIicer is a person naturally interested in the success oI his investigation, thereIore, he may record the statement oI victim, who is in a precarious condition, without requisitioning the services oI the Magistrate. ThereIore, where an investigating oIIicer had plenty oI time and Iacility to procure the services oI a Magistrate Ior recording a dying declaration, the dying declaration recorded by the investigating oIIicer should be excluded Irom consideration iI he did not requisition the services oI Magistrate. Where however, the police oIIicer tries to procure the services oI a Magistrate but the Magistrate was not available, then the statement recorded by him in such circumstances is admissible under Article 46(1). Where an investigating oIIicer has recorded the statement oI an injured in the ospital as FIR, the FIR so recorded can serve as dying declaration aIter the person succumbing owing to injuries.
(3)Recording by duty doctor: Where the dying declaration was made by the deceased to the Doctor in the ospital, in absence oI any material to suspect that the doctor had any ,32:8 against the accused the statement oI the doctor who was a responsible oIIicer and an uninterested witness, could not be discarded. Such a dying declaration is a reliable one. Where the deceased narrated to the duty doctor at the time oI her admission in the hospital as to how she received burn injuries and the doctor recorded it, it was held to be admissible as dying declaration. Where the doctor recorded the dying declaration oI the deceased aIter waiting Iro the police Ior long as the condition oI the victim was deteriorating Iast and later on the police recorded the dying declaration continuing Iurther details which could not be said to be improvement, conviction as the basis oI such dying declaration is proper. Where no relation oI the deceased was present and hence there was no question oI tutoring, her condition being serious, recording oI her dying declaration by the duty doctor was held to be proper and in the circumstances oI the case even Iitness certiIicate oI the hospital incharge was not necessary. Where the dying declaration recorded by the doctor suIIers Irom inIirmities and was uncorroborated, it could not Iorm the basis oI conviction. Where the judicial magistrate was shown to be unavailable, the dying declaration recorded by the doctor in the absence oI any extraneous pressure can be relied upon Ior sustaining the conviction.
(4)Recording by any other person: Where the dying declaration is recorded by a person who is not a Magistrate, Doctor or Investigating OIIicer, the same is still admissible in evidence. Some times the circumstances are such that beIore the injured is taken to the hospital or to the police station he expires, so it is not possible that a Magistrate, Doctor or Police OIIicer to record the Dying Declaration. In this case the statement may be recorded by any other person. Where the injured died on the way while he was being taken to hospital in the bullock cart by the prosecution witnesses. On the way he disclosed to the said witnesses that he has been assaulted by the accused persons to the eIIect which they deposed beIore the court which was supported by medical evidence and the surrounding circumstances convincingly. The dying declaration made to the witnesses was accepted. PROCEDURE FOR RECORDING DYING DECLARTION: (1) CertiIication by the Medical OIIicer as to the mental and Physical Fitness oI the Declarant: Attempt should not be made to get the statement recorded by Magistrate unless the doctor had made a certiIicate that the deceased was in a Iit state to give statement. This certiIicate may by on the dying declaration itselI or it may be on a separate Iorm but it must be IulIilled in spirit and substance. The note by the doctor shall make it clear that apart Irom the condition oI the patient, the doctor shall certiIy the time when the dying declaration was recorded, the Iact that the doctor has certiIied the condition oI the patient, both prior to the dying declaration being recorded and aIter it has been completed.
(2) Should be conscious and voluntary: The person recording the dying declaration must be satisIied that the dying man was making a conscious and voluntary statement with normal understanding and responsibility oI the court is greater in holding that it was so made especially when it is Iound that the man will die a Iew minutes aIter recording the dying declaration.
(3) Should be precise and complete: A dying declaration should be short, concise and to the point. It is not the requirement oI law that the person making the dying declaration should make an elaborate and exhaustive statement so as to cover each and every aspect oI the incident and narrate the whole history oI the case. It must be complete as incomplete dying declaration is not admissible.
(4) Must be made soon aIter the alleged incident: II a dying declaration is made by a person soon aIter the incident oI attack on him then it can have greater evidentiary value. In dowry death cases, the dying declaration must be recorded as quickly as possible aIter the victim reaches the hospital without any time being lost as the condition rapidly deteriorates with the set oI time and the doctor must certiIy that the victim was personally asked about the incident and that too independently oI all those accompanying her and that the correct answers given must Iind place in medico legal register. II there is an interval or there is a time gap then there is every possibility oI that dying declaration being tempered on account oI the impression gathered Irom other persons. II there is an interval it provides opportunity to the person to think over and bring all his enemies to the scene implicating them to take a sweet revenge.
(5) Must have been recorded in the exact words in which it is made: As Iar as possible the dying declaration must have been recorded in the exact words in which it was spoken by the declarant. Where the dying declaration is recorded in the language oI the declarant it requires added strength and reliability. Any suggestion that the deceased had said something by mistake cannot be entertained.
(6) Signature oI Thumb Impression oI the declarant be taken: II the declarant is in such a condition that he is in a position to sign and thumb mark the dying declaration then the statement should generally bear the signature and thumb impression, otherwise it may not be admissible in evidence.
(7) Should be in question and Answer Iorm: Dying declaration should be preIerable in question and answer Iorm but the same is not laid down as universal rule. Generally dying declaration ought to be recorded in question and answer Iorm but iI it is not elaborate and consists only oI a Iew sentences and is in the actual words oI the maker, the mere Iact that it is not in question and answer Iorm cannot be a ground against its acceptability or reliability.
(8) Must be signed by the scribe oI the dying declaration: Where there was no certiIication oI the scribe oI the dying declaration that what ever he had scribed was the correct statement oI the deceased, such a dying declaration could not be relied upon to sustain conviction.
FORM OF RECORDING DYING DECLARATION: There is no particular Iorm to be employed in the making a dying declaration. The Article 46 provides that it may be written or verbal. ThereIore, it may be oral or in writing or may even be partly oral and partly in wring. On the other hand it may be neither oral nor written i.e., it may consist oI some signs or gestures made by the deceased. The declaration should be in the exact words oI the person making it. It is better iI it is recorded in the language oI maker. It should be in the question and answer Iorm. A dying declaration may be made expressly by means oI letters or by means oI words spoken. A conviction can no doubt be based on an oral dying declaration, but is has to be trustworthy and Iree Irom every blemish capable oI inspiring conIidence. In Queen Vs. Abdullah (1885) 71 LR All 385 ] it has been held that a dying declaration can also be made through signs and gestures and these signs and gestures are regarded as verbal statements within the meaning oI section 32 (Now article 46). The appellant Abdullah was charged beIore the court oI Sessions with a murder oI one Dulari, a prostitute by cutting her throat with a razor. Although she was conscious she was not in a position to speak as her wind-pipe and the anterior wall oI the gullet had been cut through and also had a cut on her thumb. When she was conscious and able to make signs though she was unable to speak. The Magistrate mentioned several names and asked regarding them one by one iI they had wounded her. She waived her hand backward and Iorward and thus making a negative sign. Then she was questioned that whether Abdullah had wounded her. On this she moved her hand up and down. This was understood to be a sign oI aIIirmative by the Magistrate recording the statement. Again a question was put to her iI she had been wounded with sword or KniIe. She made a negative sign with her hand. When the question was put iI she had been wounded with a razor, she made an aIIirmative sign with her hand. She made a negative sign Ior the question whether she was awake when her throat was cut. She made an aIIirmative sign when she was asked whether she was asleep at that time. She made a negative sign when asked whether she had been wounded in the night and she made an aIIirmative sign Ior the question whether she was wounded in the morning. She made an aIIirmative sign Ior the question whether she had recognized Abdullah. Evidence was oIIered by the prosecution to prove the questions put to her and the signs she made in answer. Objection was taken on behalI oI the accused that under section 32 (now Article 46) only written or verbal (or oral) statements made by a deceased as to the cause oI her death were admissible in evidence and that the signs were not verbal within the meaning oI section 32 oI the Evidence Act. Overruling the objection, it was held that the questions and the signs taken together might be regarded as verbal statements made by a person as a cause oI the death within the meaning oI section 32 oI the Evidence Act, and thereIore, admissible in evidence as the signs and gestures oI the deceased is deemed to have adopted the words employed by others. In ALEXANDER VS THE KING AIR 1937 PC 24 ], where the victim whose throat was cut by the accused was alive Ior some time and being questioned regarding the accused she answered the questions by signs and nods not being able to speak. The deceased described the accused by signs and when she was asked whether that person was the accused, she showed her assent by nod. It has been held that the sign made by the deceased constitute a verbal statement resembling the case oI a dumb person and was relevant and admissible in evidence. PROOF OF DYING DECLARATION: When the dying declaration is verbal it can be proved by examining the person in whose presence the statement was made. But where the dying declaration is recorded the person recording the statement is to be examined beIore the court, and he will prove the writing beIore the court. The Dying declaration may be proved by the evidence oI a witness who heard it being made. Where the declarant mentions the name oI the accused in the presence oI the doctor who gave him preliminary treatment and the doctor`s evidence is Iound to be very clear and unshaken in any manner in the cross examination, the dying declaration is reliable. Generally, the dying declaration cannot be treated as a deposition unless made in the presence oI the accused and beIore the Magistrate. owever, where the deIence admits the document, no Iormal prooI is necessary and it can be read in evidence Ior all purposes though it author is not examined beIore the court. The written record oI a dying declaration, not taken down in the presence oI the accused, is admissible, when it is proved by a witness that the statements contained therein were, in his presence recorded by a Magistrate, and read over the deceased who admitted their correctness. In POTHAKAMURI SRI NIVASULU VS STATE OF AP AIR 2002 SC 2780 ] where an old woman was attacked and robbed oI her ornaments by the watchman oI a garden and another watchman and a shepherd noticed the assailant leaving the garden. On questing the victim narrated the incident and named the assailant to them and to her sister who reached there being inIormed oI the incident she was taken to hospital where the doctor Iound her unconscious and aIter two days she died. The three deposed in the court as witness as to what the deceased had told them. The dying declaration deposed to by these independent and natural witnesses was accepted. The court held that it could not be rejected on the ground oI the assumption that the deceased had become unconscious and speechless aIter the injuries. HEN DYING DECLARATION CANNOT BE TAKEN INTO CONSIDERATION: 1. Incomplete: A dying declaration is inadmissible in evidence iI it is incomplete. II while making the declaration the victim became unconscious due to coma Irom which he could not recover such incomplete dying declaration was not admissible as no one could tell what the deceased was about to add.
2. False: II the accused proves by evidence that the deceased gave Ialse evidence, with the ill intention to implicate the accused in the case, then the dying declaration cannot be taken into consideration. Where a portion oI dying declaration oI deceased is Iound to be Ialse, the court can reject that portion iI it can be separated and act upon the rest, provided the Ialse portion is not likely to destroy the kernel or truth contained in the dying declaration.
3. Suspicious Circumstances: Where the prosecution case is totally based on dying declaration which is impregnate with so many suspicious circumstances creating a doubt as to its genuineness, such evidence oI dying declaration would not be taken into consideration.
4. Tutoring: II it is proved that there was discussion between the injured person and any interested person beIore giving the dying declaration or such person giving such declaration was tutored, then the dying declaration cannot be considered.
5. Delay: II unduly delay has occurred in recording the dying declaration, the veracity oI it may be aIIected.
6. Cross cases: Where in a Iight between two parties or rival groups, several persons died on both sides and cross cases Ior death oI either party were started. In such circumstances the dying declaration oI one could not be used against members oI his own party.
7. Infirmities: Where there were inIirmities in dying declaration regarding state oI deceased to make oral dying declaration and unnatural conduct oI witness to whom dying declaration was allegedly given by the deceased which was disclosed to the police aIter two days oI death oI the deceased, the accused was entitled to the beneIit oI doubt.
8. Death of another person: A dying declaration oI one person is not a relevant Iact with regard to the question about the death oI another person.
9. hen death not due to injuries in the same occurrence: The statement given by the injured to the Investigating OIIicer and also the FIR lodged by him, was held not admissible as dying declaration under Article 46 because there was no evidence to connect his death during trial to the injuries caused to him in the same occurrence.
10.Accused already named: II somebody had already named who the accused was and that Iact came to the knowledge oI the declarant beIore making the statement, then such statement cannot be considered as a dying declaration.
11.Plurality of declaration (conflicting declarations): Where there are more than one dying declarations and they are inconsistent with each other, it is not possible to pick out one such declaration wherein the accused is implicated. Such dying declaration cannot be basis Ior conviction. The inconsistent dying declarations show the deceased`s conIused state oI mind or the intention to implicate the accused with whom he had previous grudge or enmity. The Iact that two diIIerent versions were there in which a set oI two diIIerent persons were indicated, the mere Iact that one name was common in both the versions, could not be a basis Ior convicting the named person. II there are two diIIerent dying declaration giving two diIIerent versions, a serious doubt arises about truthIulness oI the declaration.
12.hen the injured survives: Some times the dying declaration oI an injured person is recorded expecting that he shall succumb to injuries but he survives. In such cases his declaration cannot be used as a substantive piece oI evidence. The declaration in such cases can be use Ior corroboration or contradiction in case the declarant appears as a witness.
13.Declarant person of unsound mind: Where the person making the dying declaration was oI unsound mind, then unless there is a certiIicate oI the Doctor stating that the person is in a mentally Iit condition to make the statement, such statement could not be relied upon.
14.Declarant person a minor: Although the dying declaration oI a minor is admissible in evidence but when the person making the dying declaration is a minor, the courts generally do not rely upon such a statement unless it is satisIied that he IulIils the competency oI witness as provided in article 3 oI the Qanun e Shahadat.
15.Cause of death or circumstances leading to death are not in question: A dying declaration is not admissible in such proceedings in which either the cause oI death or the circumstances leading to the death oI the declarant are not in question. Defences in cases of where dying declaration is available in evidence: 1- All the deIences available against other type oI evidence oI witnesses. Such as enmity. 2- Dying declaration is incomplete. 3- Accused has not been speciIically identiIied. 4- Exact Role oI the accused not provided. 5- Dying declaration is inconsistent with the other available evidence. 6- Dying declaration is belied by other available evidence, such as medical record or conIidence inspiring evidence oI eye witnesses. 7- Dying declaration is ambiguous. 8- Declarant did not qualiIy as a witness under Article 3 oI QSO, 1984. 9- Prompting by others. 10-Declaration does not relate to cause oI own death or circumstances leading to own death. 11-Declarant still alive. 12-Dying declaration beIore I.O. is sometimes not admissible in evidence. owever, it may be used.
CASE LA: a. 1973 SCMR 26 Muhammad Abdullah Vs. Muhammad Safdar Khan.
The deceased (Muhammad YusuI), who was a B.A., B.Ed. and possibly the eadmaster oI the local school, was an inIluential person. e was instrumental in getting Muhammad SaIdar Khan (respondent no. 10 elected Iirst as a member and then as the Chairman oI the Union Council. But, thereaIter, the deceased turned against him because the said respondent had started indulging in undesirable activities and a Iew months beIore his death the deceased actually managed to get a no- conIidence resolution passed against the said respondent by the Union Council. As a result oI this resolution, the respondent no. 1 was removed Irom the Chairmanship oI the Union Council. It is alleged that the respondent no. 1 was annoyed with the deceased and actually threatened him oI dire consequences. On the day oI the occurrence Muhammad RaIiq a real brother oI the respondent no. 1, accused slapped one Allah Ditta on the pretext that he and the deceased were openly opposing the respondent no. 1. Allah Ditta inIormed the deceased who then along with other witnesses proceeded with him to the shop oI Muhammad RaIiq. While on the way the respondent no. 1 opened Iire upon the deceased who was taken to the hospital in injured condition. In the hospital Sub-Inspector Gulzar Ahmad who reached the hospital gave application to the doctor seeking permission to record statement oI the injured. The certiIicate was granted and he recorded dying declaration. ThereaIter Magistrate was called and the sub-inspector again applied Ior seeking permission to record statement, which was allowed. The Magistrate then started recording evidence but the deceased during recording oI statement died. Both these dying declarations were produced in evidence besides the statements oI other witnesses. The Supreme Court observed that the Iirst statement (1 st Dying declaration) recorded by the Investigating oIIicer was not admissible in evidence as the Investigating OIIicer did not take precaution oI excluding relatives oI deceased while recording statement. Dying declaration in circumstances cannot be relied upon. The Supreme Court observed that the second statement (2 nd Dying Declaration) was incomplete and thereIore, could not be relied upon because no one can tell what the deceased would have Iurther added. Further more the injuries to the other party were not disclosed in evidence thereIore, the same could not be relied upon. The accused party had acted in selI deIence. All the accused were acquitted in circumstances.
b. 1972 SCMR 40. Ali Akhtar Hussain Vs The State.
The prosecution case is that the appellant and the deceased were neighbours living in the locality known as Karbala Road in Sahiwal. It is alleged that the appellant used to tease the grown up sister oI the deceased which led to the quarrel between the parties. The appellant gave beating to the deceased on two occasions. On the day oI the occurrence in the morning the appellant and the deceased had altercated and exchanged abuses to each other because the appellant had objected to the visit to the house oI the deceased oI his two Iriends namely Nazir Ahmad and Muhammad RaIiq PWs. On the same day in the evening the deceased along with the above named PWs went to the Lris Cinema Ior seeing the picture. The show was to start at 6.30 p.m. the deceased and his two Iriends were standing in the Iront oI the booking window. The appellant reached on the spot and gave a push to the deceased with his shoulder. The deceases suspected trouble by the appellant and leIt the Cinema along with his companions. When they were at a short distance Irom the Cinema the appellant came running and attacked and inIlicted blows to him with a kniIe. The incident is alleged to have been witnessed by Nazir Ahmad and Muhammad RaIiq and also by Muhammad Ali and Muhammad Anwar PWs. Sher Shah. ASI who was on patrol duty recorded the statement oI the injured and Fir was lodged on the basis oI the statement. AIter reaching the hospital the deceased died. At the trial, the prosecution case was supported by the ocular evidence oI Iour witnesses and reliance was placed on the dying declaration oI the deceased recorded by the ASI. Supreme Court held that Both Muhammad Ali and Muhammad Anwar were proved to be stock witnesses oI the police. The court held that it appears that the investigation oI the police oIIice was not above board. e has mentioned in the dying declaration names oI two eye witnesses namely Muhammad Ali and Muhammad Anwar who were stock police witnesses. These witnesses have been disbelieved by the court below and thereIore, the dying declaration is deIective Ior this reason. In these circumstances much reliance cannot be placed on the dying declaration. The evidence oI other witness were also not believed. The counsel Ior the complainant party argued that the statement oI other witnesses is corroborated by the evidence oI dying declaration. The court held that one piece oI tainted evidence cannot be corroborated by another tainted piece oI evidence. ThereIore, the accused were acquitted.
c. 1972 SCMR 651. Sher Bahadur Vs The State.
The prosecution case is that on the 30.04.1968 at 2.30 p.m. the deceased and his son PW2 Badi uz zaman were taking tea at their bala khana in Bannu city when the appellants and the co-accused appeared on the rooI oI the adjacent shop oI Muhammad Ayaz. The two appellants were each armed a Double Barrel Shot gun while their companions were carrying Single Barrel shotguns. The Iired towards Gulbaz Khan and his son PW Badi uz Zaman as a result oI which both oI them were injured. Appellants then descended the stairs and disappeared. The two injured were taken to the city hospital Bannu and there statements were recorded by the Assistant Sub Inspector Riaz ussain who having learned oI the occurrence at the Bazar went to the civil hospital. Gulbaz Khan succumbed to his injuries on the same day at about 10 p.m. and the usual inquest report was prepared and his body was sent Ior post mortem examination. Subsequently the accused persons were substituted by another group oI accused persons and evidence was accordingly changed by the witnesses. The declaration oI both the injured were taken down when they were lying in injured condition on the same bed and both had added to the story. As regard the dying statement oI the deceased it suIIers Irom inIirmity. The motive was later on changed. This motive was never mentioned in the statement oI dying declaration. As a matter oI Iact reading the dying statement and the Iirst inIormation report one gets the impression that the real culprits were the accused person who were acquitted during trial. The dying statement is undoubtedly the statement oI an interested person and in the Iact and circumstances oI the case is also required to be corroborated beIore it could be accepted. The evidence oI PWs Badi uz Zaman and dying statement both having come Irom interested persons, one cannot be regarded as corroboration oI the other Ior this would not be an independent corroboration, there is no independent corroboration available Ior dying statement. Furthermore, as both the injured were available on the same bed at the time oI recording oI statement, prompting could not be ruled out. So the dying declaration cannot be relied upon. Accused were acquitted in circumstances.
d. PLD 1995 Quetta 56. The State Vs. Doda.
In this case the Iull bench oI onourable igh Court oI Quetta held that: i. There is no mandatory pre-requisites oI the law that a dying declaration cannot be made beIore a police oIIicer or that it should always be in writing. Dying declaration can be oral and communicated by means oI gestures when the victim cannot speak due to his critical condition. ii. Dying declaration alone cannot be made a sole basis to award conviction unless corroborated but such corroboration is not a rule oI law but a requirement oI procedure. iii. It is not essential Ior the admissibility oI dying declaration that deceased must have been apprehending death at the time oI making it. Only requirement is that such disposition must relate to the cause oI makers death or the circumstances which resulted in his death. iv. Dying declaration requires a thorough scrutiny beIore placing reliance on it and ordinarily it should not be presumed that truth always sat on the lips oI person who is expecting death. v. Dying declaration recorded at Police station in presence oI deceased`s relatives is always suspected to place implicit reliance on it. vi. Dying declaration must be Iree Irom every sought oI taint and independently corroborated Ior saIe reliance to record the conviction. vii. Dying declaration oI the deceased did not appear to be true and not been recorded according to the established principles and was not corroborated by an independent evidence. Such dying declaration could not be saIely relied upon to sustain conviction.