Requirements of Dying Declaration

Sudhakar and Ors. vs. State of Maharashtra (17.07.2026 - SC) : MANU/SC/0431/2000

Case Note:
(1)Indian Evidence Act, 1872 - Section 32-Indian Penal Code, 1860-Sections 376 and 306-Dying declaration-What is?-Requirements for reliance-To make statement admissible, necessary to show that statement was cause of death or with respect to circumstances of transaction resulting in death-Facts in statement required to be shown connected with cause of death whether directly or indirectly-Rape case-Prosecutrix making statement after 11 days of occurrence-Circumstances stated not suggesting that maker under normal circumstances would commit suicide after more than five and half months-High Court not justified in relying upon statement of prosecutrix as dying declaration-Case law analysed elaborately. AIR 1939 PC 47, 1984 (4) SCC 116 and 1998 (2) SCC 45, followed.

Section 32 of the Evidence Act is an exception to the general rule of exclusion of the hearsay evidence. Statement of a witness, written or verbal, of relevant facts made by a person who is dead or cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense, are deemed relevant facts under the circumstances specified in sub-sections (1) to (8). Sub-section (1) of Section 32 with which we are concerned, provides that when the statement is made by a person as to the cause of his death or as to any circumstances of the transaction which resulted in his death, being relevant fact, is admissible in evidence. Such statements are commonly known as dying declarations. Such statements are admitted in evidence on the principle of necessity. In case of homicidal deaths, statements made by the deceased is admissible only to the extent of proving the cause and circumstances of his death. To attract the provisions of Section 32 for the purposes of admissibility of the statement of a deceased, it has to be proved that : (a)The statement sought to be admitted was made by a person who is dead or who cannot be found or whose attendance cannot be procured without an amount of delay and expense or is incapable of giving evidence, (b)Such statement should have been made under any of the circumstances specified in sub-sections (1) to (8) of Section 32 of the Evidence Act. As distinguished from the English Law, Section 32 does not require that such a statement should have been made in expectation of death. Statement of the victim who is dead is admissible in so far as it refers to cause of his death or as to any circumstances of the transaction which resulted in his death. The words “as to any of the circumstances of the transaction which resulted in his death” appearing in Section 32 must have some proximate relation to the actual occurrence. In other words, the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. Due weight is required to be given to a dying declaration keeping in view the legal maxim “Nemo moriturus praesumitur mentire”, i.e., a man will not meet his Maker with a lie in his mouth. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of a statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. However, in cases where the original recorded dying declaration is proved to have been lost and not available, the prosecution is entitled to give secondary evidence thereof.

The death of declarant long after making the dying declaration did not mean that such a statement lost its value merely because the person making the statement lived for a longer time than expected. But to make the statement admissible, it has to be shown that the statement made was the cause of the death or with respect to the circumstances of the transaction which resulted in his death. The facts mentioned in the statement are, however, required to be shown connected with the cause of the death whether directly or indirectly.

(2)Indian Penal Code, 1860 - Sections 376 and 306-Evidence Act, 1872-Section 32-Code of Criminal Procedure, 1973-Section 154-Rape and abetment to commit suicide-Conviction and sentence-Validity-Statement made by prosecutrix after 11 days of occurrence-Suicide committed by her after more than five and half months of occurrence-Her statement not showing that she would commit suicide-Statement cannot be regarded as dying declaration-High Court not justified in treating it so-No cogent and reliable evidence to connect appellants with commission of crime-Delay in lodging F.I.R.-Non-examination of material witnesses-Witnesses turning hostile-Such circumstances assuming importance-Prosecutrix attending school for two days after incident of rape said to have been committed in school by appellants being headmaster and assistant teacher of school-Mother of prosecutrix stating that she told her about incident when she stopped going to school-Prosecution finding beyond reasonable doubt that appellants committed forcible sexual intercourse-Appellants cannot be convicted and sentenced merely on suspicion-When charge of rape not proved-Appellants cannot be held for abetment of ultimate offence of suicide-Investigating and prosecution agencies not acting promptly and diligently-Appellants acquitted.