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Defining the Dying Declaration: Jurisprudential Implications of the Declarant’s Survival

Rakibul Islam

•December 14, 2023•6 min read

A 'dying declaration' refers to a testamentary statement made by an individual under the imminent apprehension of death, concerning the circumstances surrounding the fatal event or other material facts pertaining to the cause of their demise.

A dying declaration is a form of evidence provided by an individual while facing the imminent prospect of death, concerning the cause or circumstances of that death. Within the framework of the laws of evidence, the concept of the dying declaration holds a position of singular importance. As a general rule, the testimony of a person is inadmissible in their absence; however, the dying declaration serves as a crucial exception. Its admissibility is strictly contingent upon the death of the declarant. This article examines the definition, historical foundations, procedural requirements, and the legal implications should the declarant survive.

Defining the Dying Declaration

A dying declaration is a species of evidence provided by a person contemplating their own demise, detailing the causes or circumstances surrounding their end. According to Section 32(1) of the Evidence Act, 1872, a statement made by a person as to the cause of their death, or as to any of the circumstances of the transaction which resulted in their death, constitutes a dying declaration. For example, if Rahim is charged with the murder of Karim, and Karim—prior to his death—provides a statement to a physician describing the brutal torture he suffered at the hands of Rahim as the cause of his condition, that statement is characterized as a dying declaration.

Section 32(1) of the Evidence Act stipulates that in cases where the cause of a deceased person’s death comes into question, any statement made by that person regarding the cause or the circumstances of the transaction leading to their death is relevant, regardless of whether the declarant was under an expectation of death at the time the statement was made, or regardless of the nature of the proceeding. Thus, a declaration may be oral or written, and the declarant's subjective belief regarding their impending death is not a strict condition for admissibility. The vital criterion is that the statement must relate to the cause or the specific circumstances of the death. The court, however, must exercise extreme caution, ensuring the spontaneity, veracity, and reliability of the statement before admitting it as evidence.

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The Foundations of the Dying Declaration

In Roman law, the concept was recognized through *Nuncupative wills*, or oral deathbed declarations. Ancient Greece similarly accepted such declarations as valid legal proof. Islamic jurisprudence also provides for such declarations, particularly concerning the transfer of property, known as *Marj-ul-Maut*. The fundamental premise of the dying declaration is the assumption that “a person on their deathbed cannot tell a lie.” This is captured in the Latin maxim *Nemo moriturus praesumitur mentire*—a person about to die is presumed not to lie. A harrowing modern application of this occurred in the case of Nusrat Jahan Rafi (19), a student who was set on fire for refusing to withdraw sexual harassment charges against her school principal. On her deathbed, she identified her attackers and described how kerosene was poured over her. Her dying declaration, corroborated by other circumstantial evidence, led to the conviction and death sentence of 16 perpetrators.

Essential Conditions for Admissibility

Dying declarations are admissible in both civil and criminal proceedings, provided specific criteria are met: * The declarant must die shortly after the declaration is made. * The death of the declarant must be the subject of the investigation or judicial inquiry. * The declarant must have made the statement regarding the cause or circumstances of the transaction resulting in their death prior to passing.

Who May Record a Dying Declaration?

There is no legal mandate restricting the recording of a dying declaration to a specific authority; anyone may record it. Under Section 164 of the Code of Criminal Procedure, 1898 and Rule 467 of the Police Regulations of Bengal (PRB) 1943, magistrates are authorized to record it. Similarly, police officers may do so under Section 161 of the CrPC and Rule 265 of the PRB. Furthermore, physicians, local chairmen, or village police may record such statements. However, regardless of the recorder, the declaration must be proven in court through witness testimony.

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Procedural Requirements for Recording

While a dying declaration can be oral or written, strict procedural norms ensure its integrity: * **Identity:** The declarant’s name, age, occupation, and address must be clearly recorded. * **Language:** The declaration must be captured in the declarant's own words. A record of the declarant's mental and physical condition at the time of the statement is also required. * **Timing:** The exact date and time of the declaration must be noted. * **Location:** The venue where the statement was made must be documented. * **Witnesses:** At least two witnesses should be present, and their identities must be recorded. * **Content:** The subject matter must be stated clearly. * **Authentication:** The declarant should hear the record read back to them and provide a signature or thumbprint. The witnessing parties must also sign the document. While declarations regarding paternity or marital status may be accepted, declarations concerning the gift of property are governed by personal (Islamic) law and are not considered "dying declarations" under this evidentiary framework.

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Legal Consequences if the Declarant Survives

If the individual survives, the statement ceases to be a "dying declaration" and is instead classified as a "dying disposition." Under Section 32(1) of the Evidence Act and PRB Rule 266, the death of the declarant is a condition precedent for the statement to be treated as a dying declaration. However, if the declarant survives, the statement remains admissible in other capacities. If recorded by a magistrate, it may serve as an admission or confession under Section 24 of the Evidence Act, Section 164 of the CrPC, and PRB 467. If recorded by police or medical personnel, it may be used as oral testimony or as a previous statement under Section 145 or Section 157 of the Evidence Act to contradict or corroborate the witness during trial.

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The acceptance of the dying declaration rests on two pillars: first, the necessity of reality—the deceased is often the only eyewitness to the crime, and justice would be defeated without their account. Second, the presumption that a person on their deathbed, facing the afterlife, is unlikely to perjure themselves. Consequently, in the eyes of the court, a dying declaration carries the same weight as testimony given under oath.

Rakibul Islam

Author & Contributor, MaroonPaper

Contributing insightful research and analytical essays on law, politics, history, and international affairs for MaroonPaper.