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.
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