How should dying declaration be proved ?

When the dying declaration is verbal, it can be proved by examining the person in whose presence it was made. But where the dying declaration is recorded the person recording the dying declaration must be produced in court. In case of Ram Nath Madho Prasad V. State of Madhya Pradesh, AIR 1953 SC 420 : 1953 Cri LJ 1772 It was held that unless one is certain about the exact words uttered by a deceased, no reliance can be placed on verbal statements of witness and such oral declarations made by a deceased has to be proved . Value of dying declaration: Each case must be determined on its own fact , keeping in view the circumstances in which dying declarations were made ; it cannot be laid down as a general proposition that dying declaration is a weaker kind of evidence then other pieces of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence . In order to pass the test of reliability , a dying declaration hgas to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no oppurtinuity of testing the veracity of the statement by cross examination. Sometimes attempts have been made to equate a dying declaration with a evidence of an accomplice or the evidence furnished by a confession as against the maker , if it is retracted as against the others , even though not retracted . Evidential value of Dying Declaration : A dying declaration stands independentally as a good piece of evidence for sustaining a conviction. If it is found to be free from infirmity, and corroboration need not be sought for. Necessity for corroboration arises only where dying declaration presents suspicious features and infirmity invariably, it is subjected to strictest scrutiny and the court should be on guard to ensure that declaration is not the result of tutoring , prompting or imagination and that the deceased had the opportunity to observe and identify the assailants was in fit state to make a declaration.

Reliability of dying declaration: One of the important test of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance . if the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborative evidence lending assurance to the contents of the declaration refuse to act on it. Which was stated in Laxmi v Om Prakash , Air 2001 SC 2383 at 2391 : 2001 Cri LJ 3302. When conviction can be based only on dying declaration: New Delhi, Nov 29: The Supreme Court has ruled that a person can be convicted on the basis of a dying declaration as long as it was "trustworthy" even if other witnesses turn hostile. A Bench of Justices P Sathasivam and A R Dave in a judgement also held that even if the police mistakenly record a second FIR on the same case it does not in any manner cause prejudice to the accused. ""If dying declaration is trustworthy and if it can be shown that the person making the statement was not influenced by any exterior factor and made the statement which was duly recorded, it can be made a basis for conviction. "On perusal of the record, we find that in the instant case there was no doubt with regard to the truthfulness of the dying declaration and, therefore, in our opinion, it cannot be said that on the sole basis of dying declaration the order of conviction could not have been passed," Justices Dave writing the judgement said.

Incomplete dying declaration A dying declaration is irrelevant in evidence if it is in complete . Where the condition of deceased had become grave and at his own request the statement made by him in the presence of the doctor was taken down by the police but it could not be completed as he fell into the coma

from which he could not recover, it was held that, the dying declaration was irrelevant because on its face it was in complete and no one could tell what the deceased was about to add which was held in the case of Cyrial Waugh Vs King , 1950 ALJ 412 (PC). But , if the statement , though incomplete in the sense that the declarant could not state all what he wanted to state, yet whatever he stated is complete in respect of certain facts the statement would be excluded on the grounds of being incomplete. Oral declaration A statement made orally by the person who was struck down with a lathi blow on head and which was narrated by the witness who lodged the F.I.R as a part of F.I.R was accepted as a reliable statement for the purposes of section 32. The supreme court emphazised the need for corroboration of such declaration particularly in a case of this kind where the oral statement was made by the injured person to his mother and she being an interested witness her testimony needed corroboration from an independent witness. Such declaration has to be considered with care and caution . Admissibility of hearsay evidence : Hearsay testimony is secondhand evidence; it is not what the witness knows personally, but what someone else told him or her. Scuttlebutt is an example of hearsay. In general, hearsay may not be admitted in evidence, but there are exceptions. For instance, if the accused is charged with uttering certain words, a witness is permitted to testify that he or she heard the accused speak them. Dying Declarations Dying declarations of a victim that relate to facts surrounding the act that caused his or her dying condition are excepted from the hearsay rule. Such declarations are admissible in homicide cases. To be admissible as a dying declaration, the declaration must have been made while the victim was at the end of life (extremity) or under a sense of impending death and without hope of recovery.

In most jurisdictions, if the statement is to be introduced at a trial for criminal homicide, the person making the declaration must actually have died. If that person did not die, he or she would, of course, appear as a witness. A transcript of oral evidence of the dying declaration of the victim is admissible and may be repeated in court provided it is shown that the person knew that he was dying when the declaration was made, that the statement pertained to his own homicide, and that he was competent to testify. In the trial of A for murder, for example, the statement the deceased made, a few minutes before his death, that A shot him will be held admissible. Certification of the doctor in dying declaration:

The recording should be done in the presence of two independent witnesses unconnected with the case, at the earliest opportunity, preferably in question and answer form, questions also being recorded, recording the same words and in languages spoken by the declarant , with date, time and venue of recording. So far as possible the putting of leading questions should be avoided. The person may record what is said to him by the injured. If during the course of recording of the statement, it becomes necessary to put any question in order to elucidate what is stated by the declarant , it may be permissible to do so. But such questions must be recorded. If the injured person is in a position to append his signature or to put his thumb signature on such a statement, signature or thumb impression should be obtained. If the injured is in his senses, but not in a position to speak by mouth in a coherent way, he may put short questions and answers given by gestures may be noted.

The contents of the dying declaration are read over to the patients and it is certified that the contents are read over to the patient and he agrees with them. The date, time and place of recording is noted, the declaration is signed by the doctor, the patient and the two witnesses and the report is sent to the magistrate in a sealed cover. If the hands of the victim are badly burnt and neither his signature nor thumb impression could be obtained, this fact should be mentioned by the person recording the statement. Sudden Death before taking thumb impression: The fact that on account of sudden death, the declarants thumb impression was taken after his death would not make the declaration inadmissible.

Dying Declaration-Mental Condition:

In Sham Shankar Kankaria vs. State of Maharashtra, (2006) 13 SCC 165, this Court held as under:"10. This is a case where the basis of conviction of the accused is the dying declaration.The situation in which a person is on deathbed is so solemn and serene when he isdying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Besides, should the dying declaration be excluded itwill result in miscarriage of justice because the victim being generally the onlyeyewitness in a serious crime, the exclusion of the statement would leave the courtwithout a scrap of evidence.11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists thatthe dying declaration should be of such a nature as to inspire full confidence of the courtin its correctness. The court has to be on guard that the statement of deceased was notas a result of either tutoring or prompting or a product of imagination. The court must befurther satisfied that the deceased was in a fit state of mind after a clear opportunity toobserve and identify the assailant. Once the court is satisfied that the declaration wastrue and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dyingdeclaration cannot form the sole basis of conviction unless it is corroborated. The rulerequiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which c ould be summed up asunder as indicated in Paniben v. State of Gujarat(1992) 2 SCC 474 (SCC pp.480 -8 1,para 18)

Dying declaration referring to motive of accussed admissibility: When motive is a circumstance of the transaction which resulted in death of the declarant it may also be revelant it was held in Sharad V. State of Maharashtra AIR 1984 SC 1622 : 1984 Cri LJ 1738:1984(2) crimes 235.

The motive factor available in the statement of the deceased cannot be discarded as a remote circumstance , if it is otherwise intimately connected with the circumstances of the transaction which resulted in his death. The statement of the deceased must disclose that the circumstances espically narrated by him have some direct of proximate bearing on the causes contributed in the transaction which ultimately resulted in his death. The deceased need not say or apprehend that he would be killed by the person whos conduct was referred to in his statement. The deceased telling her daughter three days immideately prior to death about property dispute between her and the accused .The motive can be inferred there from-Suraj V state ,1994 Cri LJ 1155 AT 1162 (Ker).