The maxim “Nemo moriturus praesumitur mentire” means a man will not meet his maker with a lie in his mouth. Dying Declaration based on the maxim which is come from Roman law. Hearsay evidences are not given any weight age in the courts because the person who is giving this evidence is not telling his experiences but that of another person and who cannot be cross examined to verify the facts. Dying declaration is an exception to this rule because if this evidence is not considered very purpose of the justice will be forfeited in certain situations when there may not be any other witness to the crime except the person who has since died. Sometimes it the best evidence in such situations.
Its admissibility is explained in the section 32 (1) of Bangladeshi Evidence Act. According to this section when the statement is made by a person as to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or were not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which of his death comes into question.
In English law he must be under expectation of death only then this declaration is valid. This declaration is valid both in civil and criminal cases whenever the cause of death comes into question. Main thing is that if these declarations seem trustworthy to courts these retain their full values. Most important point of consideration is that victim was in a fit condition of mind to give the statement when recording was started and remained in fit condition of mind till the recording of the statement finished. Merely stating that patient was fit will not serve the purpose. This can be best certified by the doctor who knows best about the condition of the patient. But even in conditions where it was not possible to take fitness from the doctor, dying declarations have retained their full sanctity if there are other witnesses to testify that victim was in such a condition of the mind which did not prevent him from making statement. Medical opinion cannot wipe out the direct testimony of the eyewitness stating that the deceased was in fit and conscious state to make the dying declaration.
A dying declaration is an exception to the hearsay rule, which prohibits introducing evidence of out-of-court statements made by unavailable witnesses. The Federal Rules of Evidence have relaxed the common law standards for dying declarations and require the following conditions be met before introducing a dying declaration into evidence:
1. Awareness of imminent death: The declarant must, at the time he made his statement, believe that his death is imminent.
2. Actual death: At common law, the declarant must in fact be dead by the time the evidence is offered. But this is not required under the Federal Rule, although the declarant must be unavailable.
3. Homicide: At common law, the declaration may be used only in a homicide case. Under the Federal Rules, dying declarations are usable in civil suits and homicide cases, but not in non-homicide criminal cases.
4. Declarant is victim: At common law, declaration may be offered only in a trial for the killing of the declarant, not the killing of someone else. The Federal Rules no longer include this requirement.
5. Relating to circumstances of killing: Both at common law and under the Federal Rules, the declaration must relate to the causes or circumstances of the killing.
6. For accused: The statement may be admitted on behalf of the accused (though usually, it is admitted against him.)
Some Important Case Laws:
Chandra Sarkar Vs. The King (1937)
Held: Dying Declaration is such a statement which states a man about the cause of his death on about the circumstances which causes his death.
32(1) A dying declaration is valuable price of evidence and if it is free from suspicion and believed to be true, it may be sufficient for conviction.[ Shahbaz (1957) 9 DLR W.P.C. (Lah.)]
Paras yadav and others Vs. State of Bihar
Facts: Accused Paras Yadav and two others assaulted Sambhu Yadav at about 8.00 p.m. and gave him Chhura (knife) blow in abdomen. On hulla (noise) being raised some public persons and Sub-Inspector of Police, SH. Dinanth Singh reached the spot while he was on patrolling duty. He recorded the fardbeyan under section 307 IPC., The victim was shifted to hospital where he succumbed to the injuries at night of 8th February, 1983. The Sessions Court convicted the accused by relying on fardbeyan (Ext. 1) which was treated as dying declaration by the Learned Addl Sessions Judge. After appreciating the entire evidence on record the High Court has upheld the conviction of the appellants. Hence, this appeal by special leave is preferred.
Held: In out view, there is no reason to disbelieve the oral dying declaration and deposed by number of witnesses and as recorded in fardbeyan of deceased Sambhu Yadav. The fardbeyan was recorded by the Police Sub-Inspector on the scene of occurrence itself, within few minutes of the occurrence of the incident. Witnesses also rushed to the scene of offence after haring hulla gulla. The medical evidence as deposed by PW-II also corroborates the prosecution version. Hence, the Courts below have rightly convicted Paras Yadav for the offence punishable under section 302 IPC.
Keeping in view the above mentioned opinions of various courts it is suggested that whenever dying declaration is to be recorded it should be recorded very carefully keeping in mind the sanctity which the courts attach to this piece of evidence. It retains its full value if it can justify that victim could identify the assailant, version narrated by victim is intrinsically sound and accords with probabilities and any material evidence is not proved wrong by any other reliable evidence. It is perfectly permissible to reject a part of dying declaration if it is found to be untrue and if it can be separated. Conviction can be based on it without corroboration if it is true and voluntary. Dying declaration becomes unreliable if it is not as per prosecution version. This has been summed up the Supreme Court:
1. It is for the court to see that dying declaration inspires full confidence as the maker of the
dying declaration is not available for cross examination
2. Court should satisfy that there was no possibility of tutoring or prompting.
3. Certificate of the doctor should mention that victim was in a fit state of mind. Magistrate
recording his own satisfaction about the fit mental condition of the declarant was not
acceptable especially if the doctor was available.
4. Dying declaration should be recorded by the executive magistrate and police officer to record
the dying declaration only if condition of the deceased was so precarious that no other
alternative was left.
5. Dying declaration may be in the form of questions and answers and answers being written in the words of the person making the declaration. But court cannot be too technical.
Md. Shahnewaz Zwaki Advocate Judge Court, Dhaka, Bangladesh.