Dying Declaration under Bharatiya Sakshya Adhiniyam, 2023

A dying declaration is a statement made by a person regarding the cause of their death or circumstances leading to it when they are under the expectation of imminent death. A dying declaration is an exception to the hearsay rule and is admissible. Hearsay evidence is considered inadmissible in the Indian courts. There is, however, a certain line of exceptions to this rule which makes dying declaration admissible. Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 provides a list of eight such exceptions.

Dying declaration is mentioned expressly in Section 26(a). If the principle behind the admissibility of dying declaration is to be discussed, the same stems from the fact that if a person believes in imminent death, the statements that he gives must carry a sense of seriousness along with being truthful. This can very well be equated to a person's statements while he is under oath. Thus, this does not give rise to the need for corroboration of the statements made by the person.

There does, however, exist, criteria that must be cross-checked before making the said dying declaration admissible. This criterion is very generic and includes aspects such as first, the person giving the dying declaration must be in imminent danger of death, second, they must be aware of this danger of death, third, death must have subsequently occurred. Further let us discuss various other aspects of dying declaration such as admissibility, who can record it and the relevant applicable procedure for the same.

Admissibility and Evidentiary Value of Dying Declaration

The two key principles justifying the admissibility of a Dying Declaration are:

(i) Doctrine of Necessity – It becomes necessary to rely on the victim's account when they are the only direct witness and are unable to testify in court due to their impending death.

(ii) Solemnity and Sanction of Death – The belief that a dying person would not lie, as they are facing death and are presumed to speak only the truth in their final moments

This gives an almost sacred status as evidence, to a dying declaration. The court plays the role of examining, rather thoroughly, the dying declaration made by the respective person and also supporting testimony of witnesses; which once done, makes the said dying declaration a trustworthy piece of evidence. Once the court can establish that the dying declaration is truthful and also free from any sort of external influences including bias, the same can be used as a crucial piece of evidence for conviction, without any further corroboration.

Strict court standards are put to use for assessing the reliability of the dying declaration. Courts verify its clarity, consistency with other facts and circumstances of the case, the effect of any external influences (if any), and specifics of the statement such as correct identification of the alleged person. The person making the dying declaration must also be relevant and of sound mind while making the said dying declaration for it to be admissible. No conviction is made if there is even an iota of doubt on the dying declaration’s authenticity.

Key points regarding the admissibility of dying declaration can thus be summed up as:

1. The dying declaration at hand must have been made at the first opportunity.
2. The dying declaration must be precise and clear.
3. In the case of multiple dying declarations, each should infer the same meaning and perpetrator.
4. There mustn’t be any sort of external pressure on the person making the dying declaration.
5. The person making the dying declaration must be mentally and physically competent while giving the said declaration.

Who can record the Dying Declaration?

It is imperative to note that a dying declaration when made in front of a judicial magistrate, definitely holds greater evidentiary value, but there are certain other circumstances as well that provide credibility to the said declaration. The same can be done in front of the following:

• Magistrate: This is considered the most reliable form of declaration and holds the highest evidentiary value.
• Police Officer: Such dying declarations are also put to a thorough check for bias.
• Doctor: This is considered valid owing to the doctor being an impartial and independent professional.
• Family Member: However, it must be thoroughly checked for bias in this case.

Procedure of Recording Dying Declaration

Dying declarations may not always be in a written form. The same can be communicated either through mind or other bodily gestures, which might include hand movements, nods and even eye glances. It does not matter honestly, if the communication of the dying declaration is verbal or non-verbal. What matters is that the same must be clear and definite. It must also demonstrate a true understanding of what the person making it intends to reflect upon.

However, it does become important to note that even if the dying declaration includes all the aspects mentioned above, the same shall not be accepted unless it undergoes thorough and strict scrutiny. Dying declaration can be recorded through many sources. The BSA, 2023 does not provide any exhaustive list of persons who are eligible for recording the same. The only thing that matters and varies is the evidentiary value.

The person who records the dying declaration must certify that the declarant was mentally fit to make the dying declaration. This certification does not necessarily mean the involvement of a doctor to certify the mental capacity. Another aspect is that the declaration must be recorded in the words of the declarant himself instead of being interpreted and rephrased by the person recording it.

Courts have, on several occasions, given clarifications with regards to how the dying declarations may be recorded, in respect to the format. The same can either be in the form of a simple narrative that describes the incident and the involved aspects, or else it can be in a question-answer format. While there does not exist any precise format, the court relies heavily on the circumstances of the case at hand to decipher whether the dying declaration seems valid and credible.

Case Laws

The Indian Courts have time and again underscored the significance of the dying declaration. Since the introduction of Bharatiya Sakshya Adhiniyam (BSA) has not impacted Section 32(1), these landmark cases still hold precedential value:

a) In the landmark case of Pakala Narain Swami v. Emperor (1939)41 BOMLR 428, laid the foundation stone of the dying declaration in India. This case emphasises the interpretation of ‘circumstances’, thereby concluding that circumstances of a specific transaction which resulted in death will be admissible under Section 32(1) of the Indian Evidence Act 1872, in case the same has a proximate nexus with the event.

b) The Hon’ble Supreme Court of India in the case of Kushal Rao v. State of Bombay (1958) AIR 22 SC held:

there is no absolute rule of law, nor a well-established rule of prudence that has evolved into a legal mandate, requiring a dying declaration to be corroborated by independent evidence before it can be relied upon for conviction. No decision of this Court, aside from the one already cited, has been presented as authority for the proposition that a dying declaration must necessarily be supported by additional independent evidence to be acted upon by a court.

c) The Hon’ble Supreme Court of India in the recent case of Abhishek Sharma v. State (NCT of Delhi) (Criminal Appeal No. 1473 of 2011), denied the admissibility of the dying declaration devoid of material particulars and acquitted the accused, as the dying declaration merely named the accused, and were inconsistent with other evidence.

Conclusion

As can be understood from the material above, it can be inferred that dying declarations are very crucial pieces of evidence that assist in uncovering the truth directly from the victim’s perspective. The statements are highly significant and if verified, hold the capacity to lead to conviction of the alleged offender. Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023 prescribes various situations whereas final words from the individuals who have encountered the offender are to be given high importance. This provision is much broader than its

English counterpart and is based on principles that are rather quite different. Indian courts have consistently shown their flexibility and admissibility of dying declarations which proves their reliance on the same in convicting the accused. The core value behind the dying declaration as can also be inferred from the discussion above is the sanctity of a person’s last words, especially in cases where they are referring to somebody responsible for their injuries that are ultimately leading to their death.

Courts, however, also project caution while relying on such statements which shows that they do not necessarily want to give judgments unless the statement is verified through a multipronged approach which includes checking the clarity and accuracy of the said statement. Thus, dying declaration forms a critical aspect of the criminal justice administration system.

References

[1] Bharatiya Sakshya Adhiniyam 2023

[2] Dying Declaration under Bharatiya Sakshya Adhiniyam 2023, Available Here

[3] Akash R. Goswami, Dying Declaration, Available Here

[4] Indian Evidence Act, 1872