Dying Declaration

Bharatiya Sakshya Adhiniyam, 2023

TANMOY MUKHERJEE INSTITUTE OF JURIDICAL SCIENCE

Dr. Tanmoy Mukherjee

[Advocate]

 

 Dying Declaration-

Tanmoy Mukherjee

[Advocate]

 

The Dying Declaration, under Section 26(1) of the Bharatiya Sakshya Adhiniyam, 2023, is an exception to the general rule of exclusion to the hearsay evidence. The statement of a person, written or verbal, on relevant facts, made after his death, is admissible in evidence if it refers to the cause of his death or to any circumstances of the transaction which resulted in his death.

To make such a statement admissible as substantive evidence, the person relying upon it should prove the making of such a statement as a matter of fact.

Reference Cases-

-KansRaj vs. State (2000) 5, SCC 207

-Gulam Hussain vs. State (2000) 7 SCC 254

To attract the provisions, the prosecution is required to prove:

 1. That the statement is of a person dead, or

 2. Cannot be found, or

 3. Whose attendance cannot be procured without any amount of delay or expense, or

 4. He is incapable of giving evidence, etc.

-KansRaj vs. State (2000) 5, SCC 207

-Gulam Hussain vs. State (2000) 7 SCC 254

Statement:

  Statement means which is stated. AIR 1959 SC 356.

  When a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act (Now is Section 26 of the Bharatiya Sakshya Adhiniyam).

-Maqsoodan vs. State of U.P. - AIR 1983 SC 126

-Ram Prasad vs. State of Maharashtra - AIR 1999 SC 1969 (Para 16)

Written & Verbal Statement:

Dying declarations need not be written. Oral evidence to prove the statement of the injured who died subsequently is admissible.  (1962) 2 Cr. L. J 540

Oral dying declarations testified to by several witnesses, including an independent witness and FIR.  Evidence of doctor vacillating as to the capability of dying declaration. Dying declaration is reliable. 1981 Cr. L. J 530.

Oral dying declaration to informant and another witness. F.I.R. by informant lodged within two hours of occurrence, containing the fact of dying declaration, is reliable. 1981 Cr. L. J 852.

Conviction based on dying declaration and the evidence of some witnesses. The fact of oral dying declaration being mentioned in the F.I.R. is to be believed. AIR 1979 SC 1497

A deceased gave the names of the assailants to his relatives. Oral dying declaration is believed. AIR 1982 Cr. L. J 3703

Oral dying declaration to father and mother. In F.I.R. lodged by the father oral dying declaration finds place. It is believed. 1993 Cr. L. J 304

A victim bride made an oral dying declaration. A Magistrate reached to record her dying declaration after her death. The oral dying declaration is to be believed. 1992 Cr. L. J 2294

An oral dying declaration was made by the deceased to his father and wife. The F.I.R. lodged by the father has reference to the dying declaration. The Doctor has not stated that the injury on the head would render the victim unconscious immediately. The oral dying declaration is to be relied upon. 1993 Cr. L. J 304

Oral dying declaration not recorded and is no evidence to establish that the deceased was in a fit condition to make the statement. On occasion such negligence or omission may give rise to reasonable doubt in favor of the accused.

-Paras Yadav vs. State of Bihar - AIR 1999 SC 644 (Para 8)

The statement made when the deceased was under expectation of death, becomes a dying declaration in evidence after the person's death.

-Ratan Singh vs. State - AIR 1997 Cr.L.J 853