August 1, 2021

The Last-Ditch Attempt Required During The Last Breath

Human Rights

Introduction and Argument

Dying declaration refers to the statement made by a person about the cause of his death or about the circumstances of the transaction which resulted in his death.[1] It is governed by the statutory authority of Section 32 (1)[2] of The Indian Evidence Act 1872, which specifies the conditions for admissibility of a dying declaration. The aim of this article is to discuss the jurisprudence behind these specified conditions for the admissibility of a dying declaration. Towards this aim, the article shall delve into a comparative analysis with the English law of dying declaration and it shall be seen that the Indian law of dying declaration is wider in scope than the English law. The article shall adopt the position of supporting the relevant Indian law in this regard.

Comparative Analysis of Indian and English Law

According to Section 32 (1)[3] of the Indian law, dying declarations are admissible in both civil and criminal cases, and, expectation of death is not required for a statement to be accepted as a dying declaration. This position of the Indian law is completely opposite to that of the English law.

According to the English law, a dying declaration can only be admitted if the declarant of statement was under settled and hopeless expectation of death at the time of making the statement.[4] Moreover, in English law, such statements are admissible only in cases of murder or manslaughter.[5] The reason why a dying declaration is admitted in evidence is because of the presumption that no person who is immediately going into the presence of his Maker, will do so with a lie on his lips (known as nemo moriturus proesumitur mentiri in Latin).[6] In R. v. Woodcock,[7] Eyre, C.B.’s ruling indicated that dying declarations are evidentially equivalent to evidence given on oath;[8] and thus the admissibility and reliability of the dying declaration under English law arises from the presumption that it is true because a dying person made it.

The concept of meeting the Maker fails in Indian law because of paragraph 2 of Section 32 (1)[9] of The Indian Evidence Act, which clearly states that the person making the declaration need not be under the expectation of death. This means that since the declarant is not expecting to die, he does not expect to meet his Maker and consequently, the presumption that “truth sits upon the lips of dying men”[10] fails. Thus, the very foundation from which the sincerity and sanctity of the dying declaration arises under the English law gets taken away under the provisions of the Indian law.[11]

It is argued that this provision of the English law which mandates expectation of death for the acceptance of a statement as dying declaration; because of the presumption that a dying man shall not lie; is an archaic,[12] unnecessary and fruitless requirement. It is archaic because this presumption of meeting the Maker has its basis in a religious and spiritual God-fearing idea.

Such a presumption might have been justified during the 12th century when Christianity infused daily life and people were afraid to utter false words for fear of angering their Maker;[13] but in the present world where modern schools of religious thought like atheism are also in place, the question of meeting the Maker would not even be considered by some people. Hence, the assumption that expectation of death guarantees truthfulness of the utterance of the declarant is quite illogical. As a matter of fact, the declarant may even view the dying declaration as a last opportunity to inflict a final injury upon his enemies.[14] It is not necessary that the expectation of death will make a reckless man truthful,[15] because often it may happen that emotions like anger, vengeance, maliciousness, deceit, materialism, etc persist in the individual till his final breaths.[16]

Not only does the requirement of expectation of death serve no purpose towards ensuring the truthfulness of the dying declaration, it also creates numerous problems, most of them pertaining to matters of proof.[17] The criteria for satisfying the requirement of “settled and hopeless expectation of death” is extremely subjective and tricky because the process of ascertaining the existence of knowledge of approaching death is to be done by the judges depending upon the circumstances of each case.[18] And often, this can create an unnecessary obstruction and hassle for the prosecution while bringing in evidence.

This is highlighted by the situation which arose in the case of R v. Jenkins;[19] wherein the victim said that she was making her statement “with no hope of recovery at present”. The court held that the use of the words “at present” indicated that the woman did have some hope of recovery and hence her statement could not be used as a dying declaration. This judgement highlighted how an inference of even the slightest hope of recovery by the judges could lead to inadmissibility of an otherwise perfectly adequate dying declaration. It also enumerated how subjective such inferences can be because of the possibility of multiple interpretations of the declarant’s words.[20]

It is argued here that, many a times, even victims who have been fatally wounded and know that there is no chance of their survival, while making their dying declaration might still irrationally nurse the faint hope that they would recover. Such a situation often occurs in cases where the victim goes into denial of his predicament,[21] or in cases where the idea of death is a foreign and unlikely happening in the victim’s mind.

And to interpret this faint optimism as a non-expectation of death in the victim’s mind and to use it to disqualify the dying declaration is an appalling practice which gets mandated under the English law. What if a settled hopeless expectation of death can safely be inferred from the gravity of the dying man’s injuries,[22] but he still voices a tiny hope of survival? To disqualify his dying declaration claiming that the man did not “expect to die” seems extremely unfair. Moreover, in situations involving medical practitioners, sometimes doctors are optimistic and try to boost their dying patients’ morale; which might compromise the declarant’s expectation of death, thus jeopardizing the admissibility of his dying declaration.[23]

Even if one were to argue in favour of the English law by saying that the officials can directly ask the declarants whether they are under a settled hopeless expectation of death, and thus furnish acceptable dying declarations as evidence, there is always the possibility that the officials have been instructed about the legal requirements of the dying declaration, and as a result the declarant shall only express his “expectation of death” in order to comply with the legal requirements of the form of the dying declaration, thus depriving his statement of the sincerity that the court wants.[24]

Since the English law restricts the applicability of the dying declaration by only limiting it to cases of murder and manslaughter, and excludes it from evidence in other offences such as that of perjury,[25] robbery, rape, assault with intent to do grievous bodily harm,[26] etc, it is argued that the English law is rejecting valuable evidence that could have actually helped in bringing the perpetrators to justice, thus creating an obstruction to evidence. Indian law, on the other hand, does not have any such arbitrary[27] restriction. In India, a woman’s dying declaration would be admissible in evidence even if the subject matter of the charge is rape and not that of her death, provided that the question of her death arises in the charge of rape.[28] Whereas on the other hand, the same scenario would see the English law rejecting her dying declaration as evidence to prove rape because the subject matter of the charge was that of rape and not murder.

The English law further mandates that the declarant needs to have been a competent witness for his dying declaration to be admissible, and thus a dying declaration made by a four years old child would not be admissible because a child cannot have the ‘deep impression that he is soon to render an account to his Maker’.[29] Herein, it seems that this restriction is not just about the competency of the child as a witness but also about how the English law does not accept those dying declarations in which it appears that the religious sense of accountability to the Maker was not present.[30] On the contrary, under Indian law, tender age cannot be the reason for the exclusion of a child’s dying declaration.[31]

Conclusion

Therefore, it is concluded that the Indian law, being much wider and broader in scope than the English law regarding dying declarations,[32] is better than the latter because it allows for greater flexibility in bringing in statements as dying declarations, something which greatly helps in attainment of justice.

References

[1] Section 32 (1), The Indian Evidence Act (1872)

[2] The Indian Evidence Act (1872)

[3] Section 32 (1), The Indian Evidence Act (1872)

[4] R. v. Jenkins, (1869) L.R. 1 C.C.R. 187: 20 L.T. 372: 17 W.R. 621: 11 Cox. C.C. 250 (H.L.).

[5] R. v. Mead, (1824) 2 B. & C. 605: 107 E.R. 509 (K.B.).

[6] Lush, L.J., In R. v. Osman, (1831) 15 Cox. C.C. 1.

[7] Eyre, C.B., R. v. Woodcock, (1789) 1 Leach 500: 168 E.R. 352; “they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth.”

[8] Roderick Munday, “Musings on the Dying Declaration”, Anglo-American Law Review 22, no. 1 (January-April 1993): 42-72, page number 45, url: http://heinonline.org/HOL/Page?handle=hein.journals/comlwr22&div=10&start_page=42&collection=journals&set_as_cursor=1&men_tab=srchresults#

[9] The Indian Evidence Act (1872)

[10] Irfan Nabi, “Dying Declaration: A Comparative Study”, (Academia), Date Accessed: 26 June 2020, url: https://www.academia.edu/9267517/Dying_Declaration_A_comparative_Study

[11] Irfan Nabi, “Dying Declaration: A Comparative Study”, (Academia), Date Accessed: 26 June 2020, url: https://www.academia.edu/9267517/Dying_Declaration_A_comparative_Study

[12] Raghvendra Singh Raghuvanshi, “Dying Declaration – ‘A Man Will Not Meet His Maker With A Lie In His Mouth’”, (SSRN) posted February 27, 2010, page number 4, Date Accessed: 26 June 2020, url: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1558972

[13] Raghvendra Singh Raghuvanshi, “Dying Declaration – ‘A Man Will Not Meet His Maker With A Lie In His Mouth’”, (SSRN) posted February 27, 2010, page number 4, Date Accessed: 26 June 2020, url: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1558972

[14] Roderick Munday, “Musings on the Dying Declaration”, Anglo-American Law Review 22, no. 1 (January-April 1993): 42-72, page number 45, url: http://heinonline.org/HOL/Page?handle=hein.journals/comlwr22&div=10&start_page=42&collection=journals&set_as_cursor=1&men_tab=srchresults#

[15] A. A. Jr. Hoehling, “Dying Declarations,” Georgetown Law Journal 3, no. 1 (1914-1925): 8-16, page number 15, url: http://heinonline.org/HOL/Page?handle=hein.journals/glj3&div=6&start_page=8&collection=journals&set_as_cursor=12&men_tab=srchresults

[16] Raghvendra Singh Raghuvanshi, “Dying Declaration – ‘A Man Will Not Meet His Maker With A Lie In His Mouth’”, (SSRN) posted February 27, 2010, page number 4, Date Accessed: 26 June 2020, url: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1558972

[17] Roderick Munday, “Musings on the Dying Declaration”, Anglo-American Law Review 22, no. 1 (January-April 1993): 42-72, page number 55, url: http://heinonline.org/HOL/Page?handle=hein.journals/comlwr22&div=10&start_page=42&collection=journals&set_as_cursor=1&men_tab=srchresults#

[18] Irfan Nabi, “Dying Declaration: A Comparative Study”, (Academia), Date Accessed: 26 June 2020, url: https://www.academia.edu/9267517/Dying_Declaration_A_comparative_Study

[19] R. v. Jenkins, (1869) L.R. 1 C.C.R. 187

[20] R. v. Jenkins, (1869) L.R. 1 C.C.R. 187; there could be an alternative interpretation of the words “at present”, as specified by Chief Baron when he said – “She may have meant to say, not that she had absolutely no hope, but that at present she had not (any hope), but she hoped still that ultimately a change might come and then she might recover.”

[21] Aviva A. Orenstein, “Her Last Words: Dying Declarations and Modern
Confrontation Jurisprudence”, University of Illinois Law Review 2010, Articles by Maurer
Faculty, Paper 6: 1411-1460, page number 1424, url: https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1004&context=facpub

[22] Roderick Munday, “Musings on the Dying Declaration”, Anglo-American Law Review 22, no. 1 (January-April 1993): 42-72, page number 55, url: http://heinonline.org/HOL/Page?handle=hein.journals/comlwr22&div=10&start_page=42&collection=journals&set_as_cursor=1&men_tab=srchresults#

[23] Roderick Munday, “Musings on the Dying Declaration”, Anglo-American Law Review 22, no. 1 (January-April 1993): 42-72, page number 57, url: http://heinonline.org/HOL/Page?handle=hein.journals/comlwr22&div=10&start_page=42&collection=journals&set_as_cursor=1&men_tab=srchresults#

[24] Roderick Munday, “Musings on the Dying Declaration”, Anglo-American Law Review 22, no. 1 (January-April 1993): 42-72, page number 58, url: http://heinonline.org/HOL/Page?handle=hein.journals/comlwr22&div=10&start_page=42&collection=journals&set_as_cursor=1&men_tab=srchresults#

[25] R. v. Mead, (1824) 2 B. & C. 605: 107 E.R. 509 (K.B.).

[26] Roderick Munday, “Musings on the Dying Declaration”, Anglo-American Law Review 22, no. 1 (January-April 1993): 42-72, page number 51, url: http://heinonline.org/HOL/Page?handle=hein.journals/comlwr22&div=10&start_page=42&collection=journals&set_as_cursor=1&men_tab=srchresults#

[27] Roderick Munday, “Musings on the Dying Declaration”, Anglo-American Law Review 22, no. 1 (January-April 1993): 42-72, page number 50, url: http://heinonline.org/HOL/Page?handle=hein.journals/comlwr22&div=10&start_page=42&collection=journals&set_as_cursor=1&men_tab=srchresults#

[28] Irfan Nabi, “Dying Declaration: A Comparative Study”, (Academia), Date Accessed: 26 June 2020, url: https://www.academia.edu/9267517/Dying_Declaration_A_comparative_Study

[29] R. v. Pike, (1829) 3 C. & P. 598: 172 E.R. 562; Parke, J., said – “We allow the declaration of persons in articulo mortis to be given in evidence, if it appears that the person making such declaration was then under the deep impression that he was soon to render an account to his Maker. Now, as this child was but four years old, it is quite impossible that she, however, precocious her mind, could have had that idea of a future state which is necessary to make such a declaration admissible.”

[30] Raghvendra Singh Raghuvanshi, “Dying Declaration – ‘A Man Will Not Meet His Maker With A Lie In His Mouth’”, (SSRN) posted February 27, 2010, page number 4, Date Accessed: 26 June 2020, url: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1558972

[31] Irfan Nabi, “Dying Declaration: A Comparative Study”, (Academia), Date Accessed: 26 June 2020, url: https://www.academia.edu/9267517/Dying_Declaration_A_comparative_Study

[32] Irfan Nabi, “Dying Declaration: A Comparative Study”, (Academia), Date Accessed: 26 June 2020, url: https://www.academia.edu/9267517/Dying_Declaration_A_comparative_Study


Author Details: Nayan Prakash (O.P. Jindal Global University)

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