Custodial deaths in India - Dying declaration valid

The importance of 'dying declarations' is again under scanner.

 Custodial deaths in India - Dying declaration valid

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• The story: Custodial deaths are nothing new in India. They hardly ever result in convictions either. So when a special Central Bureau of Investigation (CBI) court awarded two policemen life sentences for the custodial death of a murder accused on the basis of the ‘Dying Declaration’ made by the victim prior to his death, it made news!
• Technical details: 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.

1. This is based on the maxim ‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his maker with a lie on his mouth.
2. The general rule under Section 60 of the Act is that all oral evidence must be direct - he heard it, saw it or perceived it.

• Rules for admission of Dying Declaration: The grounds of admission are on two broad parameters -

         The victim being generally the only principal eye-witness to the crime.
         The sense of impending death, which creates a sanction equal to the obligation of an oath in a court.

• Recording Dying Declaration: Anyone can record the dying declaration of the deceased as per law. However, a dying declaration recorded by a Judicial or Executive Magistrate will add an additional strength to the prosecution case. A dying declaration may in several cases be the “primary piece of evidence to prove the genesis of occurrence”. The only requirement for such a declaration to be held perfectly accountable in court is for the victim to volunteer the statement and be of conscious mind. The person who records the dying declaration must be satisfied that the victim is in a fit state of mind.
• Not an evidence: Though a dying declaration is entitled to great weight, the accused has no power of cross-examination. This is the reason the courts have always insisted that the dying declaration be of such a nature as to inspire full confidence of the court in its correctness. The courts are on guard to check if the statement of the deceased was a result of either tutoring, prompting or a product of imagination.
• Corroboration (supporting evidence): Some judgments noted that it is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence because a dying declaration does not contain the details as to the occurrence. It is not to be rejected, equally merely because it is a brief statement. On the contrary, the shortness of the statement itself guarantees truth.
• Medical opinion: Normally the court, in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration, can look up the medical opinion. But where the witness says that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.
• CBI: It is the premier investigating police agency in India, that functions under the superintendence of the Deptt. of Personnel, Ministry of Personnel, Pension & Public Grievances - which falls under the prime minister’s office.

 

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