Examining the Legality of Dying Declaration and the Principles Governing It

Dying Declaration means an oral or written statement of relevant facts made by a person, who is dead.

A ‘Dying Declaration’ under law is a statement constitutes covered under the Indian Evidence Act which is admissible in the Court of law to establish the cause of death or circumstances leading to death in cases where the cause of that person’s death comes into question. Recently, the High Court of Orissa in the case of Shyam Sundar Jena v. State of Orissa discussed the comprehensive principles governing dying declarations and remission of sentence.

The background of the case was:
  • The appellant in the case was convicted under Section 302 of the Indian Penal Code, 1860 (IPC) for murdering his wife by burning her.
  • His wife, who had sustained extensive burn injuries, succumbed to it and died after recording a dying declaration in a hospital.
  • Professor of Surgery of the Medical College and Hospital where she was admitted gave the certificate that she was in a fit state of mind to do so and the Executive Magistrate had recorded the dying declaration in presence of several other witnesses.
  • The said conviction of the appellant was solely based on the dying declaration of the deceased
The veracity of the dying declaration was contested in the case since there was no independent corroboration of the same. It was argued that it cannot be the sole basis of conviction for a charge as grave as murder.

Analysis of the Court:

       I.  Examining the Veracity of a Dying Declaration:

The Supreme Court in the case of Khusal Rao v. The State of Bombay examined whether or not a judgment of conviction recorded only on the basis of the dying declaration stands scrutiny or not. The Supreme Court held that it was not an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated. It further held:
  • That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;
  • That  it cannot  be  laid  down  as  a  general proposition that a dying declaration is a weaker  kind  of  evidence than other pieces  of  evidence;
  • That a dying declaration stands on the same footing as another piece of evidence and has to be  judged in the light of surrounding circumstances and with reference to the principles  governing the weighing  of evidence;
  • That a  dying  declaration which   has   been   recorded by a competent  Magistrate  in  the  proper manner,  that  is  to  say,  in  the  form  of questions and answers, and, as far  as practicable, in the words of the maker of the  declaration,  stands  on  a  much higher footing than a dying declaration which  depends  upon  oral  testimony which  may  suffer  from  all the  infirmities  of  human  memory  and human character, and
  • That in order to  test  the  reliability of a dying declaration, the court has to keep in view, the  circumstances  like the opportunity of  the dying person for observation,
  • That the statement has been consistent throughout if the dying person had several opportunities of making a dying declaration apart from  the official record of it; and
  • That the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.  
Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion  that  the  dying declaration was  the  truthful version as to the circumstances of  the  death  and  the assailants of the victim, there is no question of further corroboration. If, on the other  hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it  is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot  form the basis of  a conviction.

It is the duty of a Court to be on guard that the statement of a deceased must never be as a result of either tutoring, prompting or a product of imagination. A Court must be satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once a Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.

The High Court in the case decided against overturning the conviction of the appellant to acquittal holding that the dying declaration should be viewed with suspicious

    II.  Pre-Requisites to Prove the Veracity of a Dying Declaration:
 
  • There 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.
  • The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.
  • Where dying declaration is suspicious it should   not   be   acted   upon   without corroborative evidence.
  • Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
  • A dying declaration which suffers from infirmity cannot form the basis of conviction.
  • Merely 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,  it  is  not  be  discarded.  On the contrary, the shortness of the statement itself guarantees truth.
  • Normally  the  court  in  order  to  satisfy whether  deceased  was  in  a  fit  mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit  and  conscious  state  to  make  this  dying declaration,  the  medical  opinion  cannot prevail.
  • Where  the  prosecution  version  differs from  the  version  as  given  in  the  dying declaration,  the  said  declaration  cannot  be acted upon.
 
 III.  Law on Remission of Sentence:

On the issue of remission of sentence, it was argued that the appellant was in custody for more than seventeen years and, therefore, the sentence should be remitted to the period undergone.  In the case of Union of India v. V.Sriharan, the Supreme Court had held that the sentence of imprisonment for life in terms of Section 53 read with Section 45 of the IPC only means imprisonment for rest of the life of the prisoner subject to the right to claim remission as provided under Articles 72 and 161of the Constitution of India to be exercised by the President and the Governor of the State and also as provided under Section 432 of The Code Of Criminal Procedure, 1973 (Cr.P.C.)
There are two types of remissions:
  • One type of remission is what is earned by a prisoner under the Prison Rules or other relevant rules based on their good behaviour or other such stipulations prescribed.
  • The other remission is the grant of it by the appropriate Government in exercise of its power under Section 432 of the Cr.P.C. 
Therefore, in the latter case when a remission of the substantive sentence is granted under Section 432 Cr.P.C., only then the earned remission can take place and not otherwise.   Similarly in the case of a life imprisonment, unless there is a commutation of such sentence for any specific period, there would be no scope to count the earned remission. In either case, it will again depend upon an answer to the second part of the first question based on the principles laid in Swamy Sraddananda v. State of Karnataka. The Supreme Court held that a convict undergoing  the  life  imprisonment  can  always  apply  to the authority concerned for obtaining remission either under  Articles  72  or  161  of  the  Constitution  or  under Section 432 of the Cr.P.C. and the authority would be obliged to consider the same reasonably. 

The right to apply and invoke the powers under the above mentioned provisions does not mean that one can claim the mentioned benefit as a matter of right. All that can be claimed is a right to be fairly heard.  Ultimate  decision whether remissions be granted or not is entirely left to the  discretion  of  the  authorities  concerned,  which discretion ought to be exercised in a manner known  to law. The only right of the convict recognized is a right to apply to the competent authority and have their case considered in a fair and reasonable manner.