Can a mere dying declaration be the sole basis for convicting an accused? A Legal Analysis on Dying Declaration under Relevant Laws, Principles and Precedents

Section 32(1): When the statement is made by person as to the cause of his death, or as to 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 person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

Key Ingredients under Section 32(1):

1.     The maker of the statement must be dead, and their death must be the subject matter of the charge/proceeding.

2.     The statement must relate to the cause of death or the circumstances of the transaction which resulted in death.

3.     It can be oral, written, or by signs/gestures. It can be recorded by a Magistrate, a police officer, or a doctor, or conveyed to a private individual though a Magistrate's recording carries higher evidentiary value.

Established Principles set by the Apex Court:

·         Exception to Statutory Rule of Hearsay Evidence: Hearsay evidence (second-hand information) is generally not allowed in court. A dying declaration is a major statutory exception to this rule. This principle is based on the Latin maxim "Nemo moriturus praesumitur mentire"—meaning a man will not meet his maker with a lie in his mouth ("Truth sits upon the lips of a dying man"). It is relevant for that a person who is dying and facing imminent death normally will not falsely implicate innocent persons, even if those persons are their enemies (Milon @ Shahabuddin Ahmed vs. State (53 DLR 464).

·         No Expectation of Death Required: Unlike English common law, Bangladeshi law does not require that the person must have been under an expectation of imminent death when they made the statement. Section 32(1) itself provides that such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. In Humayun Matubbar vs. State (51 DLR 433), it was observed that a dying declaration does not require the declarant to be under the expectation of immediate death, nor is its admissibility restricted only to homicidal deaths.  

·         Applicability: It is relevant regardless of whether the proceeding is criminal or civil, as long as the cause of the person's death comes into question. In other words, a dying person's last words can be used as evidence in court for any kind of legal case, as long as the court is trying to figure out how or why that person died.  

·         Can a mere dying declaration be the sole basis for convicting an accused?

A dying declaration can form the sole basis of a conviction without needing independent corroboration, provided the court finds it 100% truthful, voluntary, and reliable. In Khushal Rao v. State of Bombay, MANU/SC/0107/1957 : AIR 1958 SC 22) the Supreme Court of India held that  A mere dying declaration can be the sole basis for convicting a person, but only if the court finds it completely trustworthy, voluntary, and free from any doubt. There is no absolute rule of law that requires independent corroboration (proof from other sources) before acting on a dying declaration. In Bangladesh in State vs. Kabel Molla and others (55 DLR 108) it was held that reaffirmed that a well-recorded, trustworthy dying declaration can serve as a firm and sufficient basis for the conviction of an accused. Again in State vs. Babul Hossain (52 DLR 400) it was held that if the correctness or truthfulness of a dying declaration is doubtful, it cannot be safely relied upon. To base a conviction on it, the court must be fully satisfied that the statement is reliable and free from tutoring. But the statement shall be excluded if proven to be untrue or made under threats, coercion, inducement, or fraud (Sonali Bank vs. Hare Krishna Das (49 DLR 282).

Therefore, the evidentiary value of a dying declaration ultimately depends not merely on its existence, but on the court's satisfaction as to its truthfulness, voluntariness and reliability.

References

1. The Evidence Act, 1872, Section 32(1).
2. Milon @ Shahabuddin Ahmed v. State, 53 DLR 464.
3. Humayun Matubbar v. State, 51 DLR 433.
4. State v. Kabel Molla and others, 55 DLR 108.
5. State v. Babul Hossain, 52 DLR 400.
6. Sonali Bank v. Hare Krishna Das, 49 DLR 282.
7. Khushal Rao v. State of Bombay, MANU/SC/0107/1957; AIR 1958 SC 22.
8. https://www.lawyersnjurists.com/

 

 

BD Law Post/Masum