Critical analysis of dying declaration in India and the UK

Sheetal Kumar
Author:

Abstract: In terms of evidentiary value, a dying declaration is a powerful piece of incriminating information usually made in extremity as the individual is in the state of approaching death or has lost every hope of survival. In such an occasion, it is considered highly unlikely for someone to lie as there is a powerful consideration to speak the truth. However, this age-old practise of evidence collection is trenched with irregularities due to lack of legislative changes to adopt to the changing times. A cross jurisdictional analysis is therefore necessary to gain critical insight on the working of dying declaration in India and how this practise can be elevated so that there is improved criminal justice.

INTRODUCTION

A dying declaration is an assertion that an individual makes regarding the cause of their death or the circumstances that eventually resulted in their death. A dying declaration can be admitted as evidence even though such a statement is not made under oath nor can it be cross-examined for its credibility and are thus an exception to the inadmissibility of hearsay evidence.[1]This custom of giving evidentiary value to dying declarations can be traced back to a time as early as the 1500s.[2] The admissibility of such statements as reliable and strong pieces of evidence is hunched on the theory of necessity and due to religious beliefs. The maxim “Nemo moriturus praesumitur mentire” which means that a man will not meet the almighty with a lie in his mouth can be associated for the reason behind existing laws on dying declarations.[3] The existence of this religious sanction stems from a sense of belief that impending death makes a person’s mind equivalent to a virtuous and honest man under oath.[4]Additionally, there is a need for such evidence in situations where the only witness to a criminal activity would be the victim and there is no other eye-witness available. In such cases, exclusion of statements corroborating against a crime will defeat the ends of justice, leaving no recourse to the victim.

By analysing the differed treatment of dying declaration as valid evidence in Indian and English jurisprudence, this paper will argue that the very foundational basis of dying declarations are tremulous and requires critical introspection and needs some reformation to function better. This paper will also divulge on the importance of having such a provision and the kind of precaution that is required before placing complete reliance on such evidence.

COLONIAL INFLUENCE IN CRIMINAL LAWS OF INDIA

Criminal laws in India, with special reference to the Evidence Act of 1872 are colonial legislations which the British government took up as a way of “gifting” the people of India who were considered uncivilised, a ‘good’ government instead of a free government through the introduction of rule of law. Although the English in England stubbornly stood against codification of laws for themselves, the colonial institution acted as an “enlightened paternal despot” while codifying Indian laws.[5]In fact, the English Code of Evidence has been largely modelled from the Indian Evidence Act since it was enacted much after codification took place in India. However, while comparing the provision on dying declaration in the two countries, the position in England is much narrow and limited where a dying declaration under Section 26 will be admissible in cases of murder or manslaughter and under the condition that the person giving the statement must be under a hopeless state of expecting imminent death.[6]Whereas section 32(1) in India is much wider and applies to any civil or criminal suit and there is no pre-condition for the declarant to be under a state of expecting immediate death. The Indian Supreme Court has noticed this deviation of the Indian law and has observed the reason behind the same to the distinctive nature of Indian society and the diverse identity and character of our people, which has prompted an expansive reading of section 32(1) so as to avoid injustice.[7]

Using dying declaration as an important source of evidence is a common law inheritance which is founded on the assumption that “truth sits on the lips of a dying man”.[8]The provision in India and England on dying declaration, is founded on an ethical and religious base which continues to uphold the sanctity of such statements.[9] In fact the early English case of Commonwealth v Roddy[10]remarked that admission of dying declaration as valid evidence must not face extensive judicial scrutiny since the motive behind allowing such statements is for public good notwithstanding the fact that there are other pieces of evidence available. Such an interpretation places dying declaration at a place of immunity and divine sanctity in both the jurisdictions which has been challenged over time.

STATUTORY VARIATION AMONGST INDIA & ENGLAND

Laws on the admissibility of dying declaration vary drastically in India and England. In English law, a dying declaration needs to be made under the conviction of impending death, where the person making the statement has completely given up the hope of survival and has surrendered to death. However in India, the provision has not been streamlined this way, where it makes it immaterial whether the declarant was under the expectation of death or not. R v Jenkins[11]is an excellent example to show how this contrasting legal positions can affect dispensation of justice. In this case, the deceased gave out a statement which had the potential to implicate the accused, however she also stated that her statements are made on the basis of having “no present hope for recovery”. The English court declared that such a statement cannot be acknowledged as admissible evidence, because the declarant was not under a settled expectation of death since at the time of making her statement, she had hopes of recovery. This illustration sheds light on an important drawback of the current English law while determining the existence of imminent death when the deceased makes a statement. Since the Judge has to decide on this aspect on a case to case basis, there is room for subjective interpretation which can negatively affect the rights of the victim.

Had this case been adjudicated in India, the statement of the deceased would be admissible as a substantive piece of evidence. Here, any statement of the declarant regarding the cause of their death or the circumstances that surround their death will be admitted under section 32(1) of the evidence act.[12]The word ‘circumstance’ added to “transaction which resulted in his death” in this provision is capable of expanding the meaning of what constitutes admissibility.[13]There need not even be a direct connection between the circumstance described and the eventual death. It would even suffice if the statement of the deceased refers to any circumstance which can be connected to the transaction that led to the criminal offence.[14]Such an expansive interpretation can aid the victim who is subjected to grave injury and there being no eye-witness to testify against the crime. Admitting statements of the deceased helps in meeting the ends of justice. However, the more expansively this provision is interpreted, the more powerful a dying declaration becomes which has the potential to endanger a fair trial from the point of the accused since there seems to be no opportunity to cross-check the claims of the declarant.

Recognising this bias within the provision, the Supreme Court has placed some limit over the admission of statements by the deceased. The dying declaration relating to the circumstances that led to the actual transaction of death must have close nexus to the actual transaction. This is because, ‘circumstances of transaction’ cannot be considered synonymous to circumstantial evidence.[15]General statements of the deceased which expresses fear or suspicion over an individual must not be admitted.[16]Over time, the Indian courts have developed the clarity rule while examining a dying declaration and admit statements that are clear, unambiguous and precisely matches the prosecution story.[17]In such instances, the court is usually leaning towards using such a dying declaration as incriminating evidence.

Another important distinction is that a dying declaration in England will only be admissible for cases of homicide in contrast to India where a dying declaration will be acceptable evidence in any case where the death of the declarant is in question. In the infamous case of R v Mead,[18]the accused was charged with perjury. However, he shot the complainant before a trial could ensue. The victim gave a dying declaration which enclosed evidence surrounding the crime of perjury which was held inadmissible by the court. This was because, under the English laws, a dying declaration will be considered as valid evidence only if the subject matter of the suit is the death the deceased and the circumstances of the death is the main subject of the declaration. This would mean that a dying declaration of a victim of rape will not be admissible to prove the rape allegation since the death of the deceased is not a subject matter of the charge.[19]While in India, due to the lack of restrictions imposed on the provision, the dying declaration can be used as admissible evidence even in a trial for a rape allegation and other ancillary criminal offences instead of being confined to only those where the death of the declarant is of the subject matter. Thus, Section 32(1) makes a dying declaration relevant regardless of the nature of proceedings which led to the declarant’s death unlike the British system.

SCOPE OF EVIDENTIARY VALUE

The strict and narrow application of the English law as compared to the Indian position, leads to another distinction regarding the evidentiary value of dying declaration in the two jurisdictions. This distinction has been highlighted by several Supreme Court judges in India while adjudicating cases on this subject. In Jasunga S/o Akumu v. R,[20]the court emphasised on the textual difference between the two laws on dying declaration to hold that the weight one attaches to a dying declaration under section 32(1) would be much lesser than that under the common law legislation. This difference is the result of the lack of the special need in India to have a conscious understanding of giving up the means to survive by the concerned declarant. While it is an undeniable fact that dying declarations are important pieces of evidence which are necessary in many situations, there is still a realm of controversy on the value one can attach to such statements and basing such statements solely for conviction of the accused. Over time, courts in India have time and again stressed on the need for dying declarations to pass the test of reliability before it can be completely banked on since this piece of evidence cannot be cross-checked for its genuineness or veracity. This means, before a dying declaration is admitted, it must be put through strict scrutiny since the provision in India gives an expansive interpretation unlike the common law rules.

The differed definition of dying declaration in the two jurisdictions means that in English law, the acceptance and relevancy of such a statement will come into question only when the declarant was under a hopeless expectation of death. In India, the burden of scrutiny attached to a dying declaration does not arise out of the expectation of death which is presumed to guarantee the truth in that statement but rather more on the situation surrounding the making of the statement and the real nature of record that has been made.[21]In some of the earlier precedents, the Supreme Court had warned that it would not be just to convict an individual by solely relying on uncorroborated dying declarations.[22] Over time this has been overruled by courts where now it is possible to convict an accused on the sole basis of uncorroborated dying declaration provided that it can be shown as truthful and voluntary. One of the most important judicial decisions on this front was in Khushal Rao v State of Bombay[23]where the Supreme Court laid down certain guidelines on the evidentiary value one can attach to a dying declaration which continues to operate till this day. Here the court has decreed that Indian jurisprudence does not have any prefixed rule of law which restricts the court from using dying declaration as the sole basis for convicting an accused unless it has been corroborated. The court held that there is no value to the notion that a dying declaration can be classified as a weak piece of evidence. Therefore, a dying declaration would hold value equivalent to any other piece of evidence whose relevancy and admissibility would be judged based on the surrounding circumstances of each case.

The Indian position regarding providing corroboration to a dying declaration is quite analogous to the English laws. There is thus no bar in admitting a dying declaration as the sole piece of evidence which can be used to even convict the accused but while doing so the court must do the job of balancing between the rights of the accused and the delivery of complete justice.[24] Though a dying declaration can have such a strong evidentiary power, the lack of verification of such statements will leave the accused compromised no matter how much the court tries to balance the rights of the accused. This is why courts in many occasions go out of their way to ensure that the statement made by the deceased is of such nature that it instils complete confidence over the correctness of the statement.[25] The judiciary will thus have the burden of ensuring that the statement of the declarant was not a consequence of prompting or tutoring and the deceased was in a healthy state of mind to make a clear statement and correctly identify the assailant.

Although section 32(1) has been liberally interpreted over the years, the provision makes it quite clear that a dying declaration can only be used when the death of the declarant is being investigated. This has the potential to be exclusionary when for example two people, A and B are being attacked in a location that has no witness around. Both of them end up dead, however, A was able to give a dying declaration and has given details about the assailant. This declaration would be admitted for the trial of A’s death but would not be admitted for the trial of B’s death which almost seems to be a senseless exclusion. In such a situation, non-admission of the declarant’s statement would lead to a massive miscarriage of justice. In fact, the 69thlaw commission report on the Indian Evidence Act highlighted this very issue and observed that the section 32(1) is capable of being interpreted even wider than what is done as of now. Additionally, the report suggested adding an Explanation II for this section which would state the following: “The circumstances of the transaction which resulted in the death may include facts relating to the death of another person.”[26]This is an excellent suggestion which can be of much needed assistance to carry out complete justice considering how expansively the provision of dying declaration has been interpreted over the years in India.

PPROCEDURE FOLLOWED FOR RECORDING A DYING DECLARATION

It is critical to note that although the provision for dying declaration could be considered expansive, it still remains silent on the aspect of to whom such a dying declaration must be made. This has explicitly not been mentioned in this provision for the simple reason that a person who is about to breathe his last, it would almost defeat the entire purpose of the provision if the declarant is made to undergo any rigorous procedure to record his statement. This means, a dying declaration can be recorded by a family member, the police, a medical examiner or the judicial magistrate according to the state of affairs of each case in both India and England. Section 162(1) of the CrPC debars any statement made to a police officer as inadmissible during the course of investigation. Clause (2) of the same section issues an exception to dying declaration under section 32(1) of the evidence act.[27]Even so, the Indian courts have remarked about their hesitation to admit dying declaration that has been recorded by an investigating officer since the officer would be highly inclined to ensure the success of the investigation process and therefore try to tamper with the statement making it highly prejudicial to the accused. In the Supreme Court case of Dalip Singh v. State of Punjab,[28]the Supreme Court has categorically remarked that it would be better and fair to leave out any dying declaration recorded by the police officer investigating the crime until the prosecution can sufficiently show legitimate reasons for not recording the statement with a judicial magistrate or a doctor. It is better to take recourse to such statements only if there was no time or opportunity to record it elsewhere. Similar sentiment has been shared by several High Courts as well where the recording of dying declaration my police must not be encouraged by the court.[29]Even after these judgements, there has not been any general rule propounded that a dying declaration recorded by an investigating officer is inadmissible and depends completely on a case to case basis. This leaves a lot of discretionary power to the judges and gives rise to possibilities of subjective interpretation.

Similarly there is no strict requirement of a certification by a medical officer regarding the mental wellness and fitness of the declarant for a dying declaration to be admitted by the court. The Supreme Court has in fact clarified on this contention that a procedural formality cannot nullify the evidentiary value of a dying declaration. The only requirement of the court was to check if ample steps were taken to ensure that any person who is recording the statement of the deceased is satisfied that the they are in a fit state of mind to make truthful and accurate statements.[30]This is because, a lot of times there can be situations where it is not possible to get a doctor to do a medical examination of the declarant and therefore statements recorded cannot be rejected solely on the basis of lack of certification.

CONCLUSION

It is clear to see that a dying declaration can be classified as an important piece of evidence even to this day to the extent that it can warrant conviction of the accused even without any corroboration. An analysis of the position in both England and India highlights the sacred position dying declaration holds under the law of evidence. However, the traditional argument rests on how no one would want to see their maker with a lie in their mouth which feels like a dangerous proposition in a modern legal system thus being problematic in its operation. Such a prefigure could maybe still hold true for god-fearing religious individuals in our society but in the current era, this blindsided faith would not apply to a large portion of our current population. Critics of this notion have opined that it is best to apply the exception of dying declaration for the cause of public necessity where there might be circumstances where there isn’t equally satisfying proof of similar facts alleged in a criminal case which can lead to miscarriage of justice.

The problem is therefore not over the existence of dying declaration as an exception to the hearsay rule but rather the perception of it in common law jurisprudence. It is very much possible for individuals to be influenced and motivated by hate and the idea of revenge which can prompt them to lie or fabricate their statements even while anticipating death. It is important to create a caveat within the law to ensure that statements made out of spite and anger are excluded from admission. The legal position on dying declaration in India must therefore embody the following with strict application: first, although there are some legal precedents on this issue, there needs to be a binding opinion on the fact that dying declarations need not always be true, making it important to give other evidences the same level of importance in a trial. Second, if a dying declaration is being solely relied to convict an accused, the court must be satisfied beyond reasonable doubt that the statement of the declarant is wholeheartedly true and reliable by taking cue from the common law jurisprudence. Lastly, section 32(1) must be amended to include statement of the declarant regarding death of other persons in order to do complete justice.

[1] Vepa P. Sarathi, Law of Evidence, 75-76 (6th ed, Eastern Book Company, 2015)

[2] 5 J.H Wigmore, Evidence Trials At Common Law, 218-219 (3rd ed, Little Brown & Co, 1940)

[3] Dr. Onkar Nath Tiwari, Cogency of Dying Declaration: Analysis, ILI Law Review, (2018) <http://ili.ac.in/pdf/don.pdf> (Last visited on Dec 2, 2020)

[4] 1 Sudipto Sarkar & V. R. Manohar, Sarkar on Evidence, 633-634 (15th ed, Wadhwa and Co, 1999)

[5] Elizabeth Kolsky, “Codification and the Rule of Colonial Difference: Criminal Procedure in British India.” Law and History Review, JSTOR, vol. 23, (2005) <https://www.jstor.org/stable/30042900?seq=1#metadata_info_tab_contents> (Last visited on Nov 28, 2020)

[6] Jaishree Anant Khandekar v. State Of Maharashtra (2009) 11 SCC 647

[7] Sudhakar and Another v. State of Maharashtra, AIR 2000 SC 2602 para 7 (India)

[8] Supra note 2

[9] M. G. Amin, “Assumptions behind sanctity of dying declarations” 7 NLSJ, p. 88 (1995)

[10] (1898) 39 A. 211

[11] (1869) LR 1 CCR 187

[12] The Indian Evidence Act, 1872 § 32(1)

[13] Rattan Singh v. State of H.P (1997) 4 SCC 161 (India)

[14] Supra note 4

[15] C. Narayan v. State of Kerala, (1992) Cri LJ 2860 (India)

[16] Pakala Narain Swamy v. Emperor AIR 1939 PC 47; Sharad B. Sarda v. State of Maharastra, AIR 1984 SC 1622 (India)

[17] Gopal v. State of M.P AIR 1972 SC 1557 (India)

[18] (1824) 2 B & C 605

[19] 1 Sudipto Sarkar & V. R. Manohar, Sarkar on Evidence,634-635 (15th ed, Wadhwa and Co, 1999)

[20] (1954) 21 EACA 331

[21] Ramesh Kumar, “Logic of Relying on Dying Declaration Alone”, Criminal Law Journal (1992) <https://www.aironline.in/legal-articles/Logic+of+Relying+on+Dying+Declaration+alone> (Last visited on Dec 2, 2020)

[22] Ram Nath Madho Prasad v. State of M.P AIR 1953 SC 420  (India)

[23] AIR 1958 SC 22 (India)

[24] Paniben v. State of Gujarat AIR 1992 SC 1817 (India)

[25] Muthukutty v. State of T.N, AIR 2005 SC 1473 (India)

[26] 69th Law Commission of India Report, The Indian Evidence Act, 1872 (1977) <http://lawcommissionofindia.nic.in/51-100/Report69.pdf> (Last visited on Dec 1, 2020)

[27] Code of Criminal Procedure, 1973, § 162 (1) & (2)

[28] AIR 1979 SC 1173 (India)

[29] Atul Gandhia v. State of Assam, 1990 Cri. L. J. 1049 (Gau), Babura v. State of Rajasthan, 1993 Cr. L. J. 2696 (Raj)

[30] State of M.P. v. Dal Singh, AIR 2013 SC 2059 (India)