What is the Dying Declaration and how is it used?
Dying declaration has been in the news recently. A special court of CBI convicted two policemen and sentenced them for life imprisonment for committing a grave crime. The two policemen were responsible for custodial death of a murder accused, who had been burnt live inside a police station of Karnal. The judge relied on the dying declaration made by the victim prior to his death.
What has happened?
The deceased man's name was Bhuvan and he had been accused of the murder of a photographer in July 2007. He sustained burn injuries on September 1, 2007 and died on September 3, 2007 at PGIMS, Rohtak.
CBI had mentioned that he had disclosed before dying, in his declaration that he was implicated with 2007 murder case and was in the police custody where he was physically tortured.
It was a barbaric act committed by the police, said the CBI. To extract his confession, the police inspector Pawan parked a motorcycle beside him and took out petrol from it to burn him while inquiring about his involvement in the murder case. Pawan used a matchstick to set him on fire, said Dutt in his declaration.
What is the Dying Declaration?
The law presumes that no person would meet their maker with a lie in their mouth. So section 32 of the Indian Evidence Act 1872 deals with cases in which a statement of relevant fact is made by a person who is dead or cannot be found.
A general rule under Section 60 of the Dying Declaration is that all oral evidence must be direct . This means either one must have heard it or seen it. The grounds of admission under a dying declaration have been based on two principles:
Only principal eye witnesses to the crime are allowed
The sense of impending death that can create a sanction equal to the obligation of oath.
As said by the judge, when any party is on the verge of death, and there is no hope to stay alive, all falsehood is silenced and the mind provides extremely powerful considerations to remain truthful. Thus dying declaration is a perfect evidence.
So, Section-32(1) of Indian Evidence Act, 1872, defines dying declaration as “a statement written or verbal of relevant facts made by a person, who is dead. It is the statement of a person who had died explaining the circumstances of his death.”
When is the Dying Declaration Not Valid evidence?
It is considered to hold a great weight but the accused has no power of cross examination in this case.
This is the reason why courts always insist that it must be full proof with no strings loose. The courts would also want to check if the declaration was made under force poor torture to misdirect the judgement.
The courts generally go for supportive evidence or corroboration but the law does not make this condition essential at all.
Can a doctor record Dying Declaration?
Yes, Dying declaration can be recorded by a magistrate, a doctor, a police officer or even a village head.
Does the dying declaration need to be written?
No the dying declaration can be written, oral, verbal or through gestures. All of these are acceptable in the court.
When is the dying declaration admissible?
Dying declaration can be considered evidence only when the person making the statement dies and the cause of the person's death comes into question
Who records dying declaration?
Rule 33 of Criminal Rules of Practice states that Judicial Magistrate is empowered to record the Dying Declarations