The Concept of Leterm Mortem in Evidence Law

“A person, who is about to die, would not lie.”

Nemo moriturus praesumitur mentire’ is the maxim on which the concept of a dying declaration is based. It literally means a man won’t meet his maker with a false mouth. A dying declaration is the exception to the rule of hearsay evidence that renders the evidence impermissible in court. Hearsay[1] is a term applied to kinds of testimony given by a witness who relates, not what he personally knows, but what others have told him or what he has detected aforementioned by others. Hearsay evidence[2] means the evidence based on what has been reported to a witness by others rather than what he or she has observed or experienced.

Indian Law recognizes the concept of dying declaration under section 32(1) of Indian Evidence Act, 1872 as cases in which statement of relevant fact by person who is dead or can’t be found is relevant.

Section 32(1) of the Indian Evidence Act, 1872

Section 32 of the Indian Evidence Act, 1872 is read as follows-

“Section 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant –Statements that are written or verbal made by a person of relevant facts who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:

  • When it is regarding the cause of death
  • Or is made in the course of business
  • Or against the interest of the maker
  • Or gives an opinion as to the public right or custom or matters of general interests
  • Or regarding the existence of a relationship
  • Or is made in Will or deed related to family affairs
  • Or in a document related to transaction mentioned in section 13, clause (a)
  • Or is made by several persons and expresses feelings relevant to the matter in question.[3]

But here we are talking about ‘dying declaration’ that deals with the cases related to cause of death. It is mentioned in subsection (1) of section 32 of the Indian Evidence Act, 1872 as.

(1) When it relates to cause of death – Whenever any statement is made by a person regarding the cause of his death, or regarding 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 maker of the statement was or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.[4]

Information provided by a person regarding the cause of his death who died subsequently is admissible in evidence under this clause.[5]

The Concept of Leterm Mortem

The term dying declaration has been derived from the word ‘Leterm Mortem’ which means ‘words before death’ & is based on the maxim ‘Nemo moriturus praesumitur mentire’. The word dying declaration or Leterm Mortem has not been provided under Indian Evidence Act, 1872 but section 32 (1) of the Act talks about it as – cases in which statement of relevant fact by person who is dead or can’t be found, etc. is relevant when it relates to cause of death.

A dying declaration is a statement made by a person referring to the cause of his death or circumstances leading to his death and such a statement is admissible in court.[6] It is a statement made by one who is dead regarding the cause of his death or regarding any circumstances of the transaction which resulted in his death and such statements are relevant under section 32 of Evidence Act in cases in which his death comes into question, whether the person who made there was or was not, at the time when they were made, under the expectation of death and the nature of proceeding can be of any nature in which the cause of his death comes into question.[7]

Forms of Dying Declarations

There is not any specific form or methodology to be applied in making a dying declaration. It can be oral, in writing, or partly oral and partly in writing, or it can also be in the form of some signs or gestures by the deceased.[8]

Thus a dying declaration may be in

  1. Oral or verbal form: Statements can be made orally or verbally by the one who is under the expectation of death. An oral statement of the person struck down with lathi blow on head narrated by the witness who lodged the F.I.R. as a part of the F.I.R. is a valid statement for the purposes of section 32.[9]
  2. Written form: The declaration can also be in written form by one who is under the expectation of death.
  3. Gestures & Sign form: The person who is not able to speak can make a dying declaration by signs and gestures in a reply to a question[10]
  4. Question-Answer Form: The most suitable form of dying declaration is the form of questions and answers. Precaution should be taken while recording the statement in question and answer form by the person who is recording it.

When a magistrate writes a dying declaration, it should preferably be recorded in question and answer form.[11] If there is nothing to suspect that the person recording the dying declaration recorded exactly what was stated by the deceased, it would make no difference even if the same was not put down in form of question and answer.[12]

Language of Dying Declarations

It is certainly better to record the dying declaration in the language of the maker. But it would not affect the evidentiary value of the dying declaration because it was recorded in another language if the person recording it is well conversant into the languages.[13] For example, if the statement of dying declaration is in Telugu and one doctor records it in the English language but another doctor explains the statement of recording to the injured person clearly, the statement is said to be a valid dying declaration.[14]

Evidentiary Value of Dying Declarations

The evidentiary value of dying declaration is based upon the facts and circumstances of each case. In the case of Kusa v. State of Orissa[15] the Supreme Court of India ruled that conviction can be based solely on dying declaration that can be judged on its own platform. However, it is necessary for the Court to scrutinize the statement carefully before basing the conviction on the dying declaration by observing mitigating facts and circumstances of the case. This is because a dying declaration is admitted without oath and can also not be cross-examined. Therefore, it is upon the court to carefully scrutinize the declaration. The Court shall also be satisfied, that there was no tutoring, the deceased was in a sound state of mind and the declaration was not the creation of his imagination. The Court shall also acknowledge the solemnity and sanctity of the words of a dying man while doing this. If the Court finds the declaration reliable, a conviction can be based without further corroboration.[16] In Khushal Rao v. State of Bombay[17],the Court provided the following principles pertaining to dying declaration:

(i) If the court has scrutinized the dying declaration then it can be the basis of the conviction.

(ii) The criteria for judging dying declaration is based on its own platform and it is not considered a weaker kind of evidence.

(iii) It is necessary for the court to observe the facts and circumstances in which the dying declaration was made.

(iv) If a dying declaration is recorded by competent Magistrate in the form of questions and answers with the signature of the victim then it is considered most reliable.

(v) The circumstances in which the declaration was recorded shall be taken into consideration by the court. It can observe the sufficiency of light in the room where the statement was recorded, it can observe an opportunity to tutor the victim, it can observe the state of mind of the victim, it can observe a delay in recording the statements and it can also observe relevancy of statement with the facts of the case.

Exceptions to Dying Declarations

There are various exceptions to a ‘dying declaration’ which are as follows

  1. Inconsistent dying declaration: Any statement of the deceased before his death which doesn’t say anything about the cause of his death then there is no value of declaration as it is not admissible in evidence.
  2. Competency of declarer: The person who is giving a dying declaration must be a competent witness. A dying declaration of a child or person of unsound mind is not admissible.
  3. Doubtful features in the declaration: If there are some doubtful features in the dying declaration then it is not accepted as evidence.
  4. Influenced declaration: A declaration given after tutoring by someone is not admissible.
  5. Untrue declaration.
  6. Incomplete declaration.
  7. Statement relating to the death of another person.
  8. Contradictory statements.[18]

Dying Declarations in England & India

The rules relating to dying declaration in England are not quite the same as those in India:

  1. A dying declaration is inadmissible in civil cases in England while in India it is admissible in civil cases which are in question.
  2. A dying declaration is admitted only in a single instance of homicide, i.e., murder or manslaughter in England though in India whatever may be the nature of the proceeding if the reason for the death of the deponent comes in question his dying declaration is relevant.
  3. According to English Law, certain conditions must exist when a declaration is made, viz
    (a) Declarant ought to have been in actual danger of death. In other words, the statement must be made after he sustained the injuries;
    (b) and he should have been apprehensive of this threat and have surrendered all expectations of recovery, and
    (c) that demise should have caused. In India, the presence of the last condition is absolutely essential.
    But the existence of the conditions (a) and (b) are not necessary for India.[19]

Conclusion

A dying declaration is a statement made by a person pertaining to the cause of his death or circumstances leading to his death. Nemo moriturus praesumitur mentire is the basis of dying declaration, i.e., nobody at the hour of death is supposed to lie & he will not meet his producer with a false mouth. Indian law acknowledges it as ‘a dying man seldom lies’ or ‘truth sits upon the tips of dying man’.

Whenever a dying declaration is recorded it ought to be recorded cautiously keeping in mind sanctity which the courts attach to this bit of evidence despite there is no chance of oath of dying man. It is accepted only because it was made in extremity.


[1] Hearsay, Black’s Law Dictionary (10th ed. 2014).

[2] Hearsay Evidence, Collins English Dictionary, https://www.collinsdictionary.com/dictionary/english/hearsay-evidence (Last Visited May 28, 2020).

[3] Dr. Avtar Singh, Principles of the Law of Evidence 183-185 (21st ed. Central Law Publications, 2014).

[4] Indian Evidence Act §32(1872).

[5] Emperor v. Mohd. Shaikh, (1942) 2 Cal. 144.

[6] Uka Ram v. State of Rajasthan, AIR 2001 S.C. 1814.

[7] Ram Bihari Yadav v. State of Bihar, AIR 1988 SC 1850.

[8] Batuk Lal, The Law of Evidence 304 (22nd Ed. Central Law Agency, 2018).

[9] Vishram v. M.P., AIR 1993 SC 250.

[10] Queen vs. Abdulla, ILR (1885) 7 All. 385.

[11] Ravi Chandra v. State of Orissa, AIR 1980 SC 1738.

[12] Lal, Supra note 8, at 304.

[13] State of Maharashtra v. Gopichand, 1985 Cr LJ 784.

[14] P. Babu v. State of A.P., (1993) Cr LJ 3574.

[15] AIR 1980 SC 559.

[16] K.R. Reddy v. Public Prosecutor, AIR 1976 SC 1994.

[17] AIR 1958 SC 22.

[18] Shipra Arora, Dying Declaration- Section 32(1) of Indian Evidence Act, Legal Service India.com, http://www.legalservicesindia.com/article/1682/Dying-Declaration-Section-32(1)-of-Indian-Evidence-Act.html (Last Visited May 30, 2020).

[19] Lal, Supra note 8, at 329.

Azhar Ahmad from Government New Law College, Indore

“I am a B.A.LL.B. student specifically interested in Constitutional,Criminal and Family law. I am a Mooter, Debater, Quizzer and Poet with the pen name ‘Chillax Diary'”

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