Dying Declaration under Section 32(1) of the Evidence Act, 1872: Essential Ingredients, Evidentiary Value, and Admissibility upon Declarant's Survival

Q. What is a dying declaration? What are its essential ingredients? If the declarant survives after making the dying declaration, can it be admitted in evidence?   (3^rd BJS, 2007)

 Ans.  Under section 60 of the Evidence Act, 1872- the general rule is that oral evidence must be direct. ‘Dying declaration’ is admissible as an exception to ‘hearsay rule.’

Dying Declaration:

Dying declarations are statements oral or documentary made by a person as to the cause of his death or as to the circumstances of the transactions resulting in his death. The grounds of admission of a dying declaration are:

Firstly, necessity, for the victim being generally the only principal eye-witness to the crime, the exclusion of his statement defeat the ends of justice; and

Secondly, the sense of impending death which creates a sanction equal to the obligation of an oath.

Practical example:

The Situation: A is found with fatal stab wounds and rushed to the hospital.

The Statement: Moments before passing away, A tells the attending doctor, "B stabbed me in the chest behind the market."

Legal Application: A's statement directly explains the cause of death. It is relevant and admissible as a dying declaration to prove whether B murdered A.

Essential ingredients dying declaration:

Under Section 32(1) of the Evidence Act, 1872, the essential ingredients for a dying declaration to be admissible are:

1.         Death of the Declarant: The maker of the statement must be dead at the time the declaration is tendered into evidence. The burden of proving the death lies on the party offering the statement.

2.         Statement Relates to Cause of Death or Circumstances: The statement must relate directly to the cause of the declarant's death, or to any of the circumstances of the transaction that resulted in their death.

3.         Proximate Connection: The circumstances mentioned in the statement must have a proximate relation to the actual occurrence resulting in death.

4.         Cause of Death in Question: The cause of the declarant's death must be directly in question or relevant in the proceeding.

5.         Fit State of Mind: The declarant must be fully conscious and in a fit state of mind at the time of making the declaration.

6.         Expectation of Death Not Required: It is not necessary that the declarant was under an expectation or apprehension of death at the time the statement was made.

7.         Admissible in Civil and Criminal Cases: The declaration is relevant and admissible in both civil and criminal proceedings, covering cases of both homicide and suicide.

8.         Form of Declaration: The statement may be written, oral, or expressed through signs and gestures if the declarant is conscious but unable to speak.

If the declarant survives after making the dying declaration, can it be admitted in evidence?

Issue

Whether a statement recorded as a dying declaration can be admitted into evidence if the injured person survives after making it.

Rule

• Loss of Substantive Status: When a person survives, their statement cannot be used as a substantive piece of evidence as a traditional dying declaration.
• Admissibility as a Former Statement: If the surviving declarant appears as a witness in court, the prior statement becomes admissible for two specific purposes:
• Corroboration (Section 157, Evidence Act): It can be used to support or confirm the witness's oral testimony given in court, provided it was made before an authority legally competent to investigate the fact (such as a Magistrate).
• Contradiction (Section 145, Evidence Act): It can be used to challenge or expose inconsistencies in the witness's testimony.

Application

• Why the Change Happens: A statement is initially recorded as a dying declaration under the expectation that the injured victim will succumb to their injuries.
• Effect of Survival: Because the declarant survives, they are now available to testify in court under oath and face cross-examination.
• Role in Court: Consequently, the prior recorded statement (for instance, one taken by a Magistrate during investigation) is treated as a former statement of a living witness rather than a dying declaration.
• The judge compares the earlier statement with the survivor's testimony on the witness stand to see if it supports what they say today (corroboration) or conflicts with it (contradiction).

Conclusion

Yes, the statement is admissible in evidence, but not as a dying declaration. Because the declarant survived, the statement cannot serve as direct substantive proof of the crime. Instead, it is admitted solely to corroborate (under Section 157) or contradict (under Section 145) the survivor's testimony if they appear as a witness.