Meaning, Admissibility, and Court Precedents

Introduction to Dying Declaration in Nepal

When a crime occurs, only the accused and the victim truly know the facts. The court must rely on evidence to uncover the truth. Among the various types of evidence under Nepalese law, the dying declaration stands out as a crucial exception to the hearsay rule under the Evidence Act of Nepal.

Concept of Dying Declaration

A dying declaration is founded on the German maxim “Nemo moriturus praesumitur mentire”, meaning “a man will not meet his maker with a lie in his mouth.”
Historically recognized even before formal evidence laws, dying declarations are considered reliable because individuals facing imminent death have little motive to lie. Ancient religious beliefs and the principle of necessity further justify their admissibility. Medha Law and Partners leading law firm in Nepal.

Rationale for Admissibility

• Imminent death is believed to encourage truthfulness.

• Victims are often the sole eyewitnesses to the crime.

• Excluding such statements may result in loss of vital evidence and miscarriage of justice.

• Supported by religious and moral principles encouraging honesty before death.

Admissibility of Dying Declarations in Nepal

Under Article 37 of the Evidence Act, a dying declaration made by a person aware of their impending death and related to the cause of their death can be treated as direct evidence when testified to in court.

Forms of Dying Declaration

• Written statements

• Oral statements

• Partly oral and partly written

• Gestures or signs

• Combination of the above

Essential Conditions for Admissibility

For a dying declaration to be admissible in Nepal:

Legal and Procedural Conditions

• The declarant must have died by the time the statement is presented.

• The statement must be made voluntarily and without coercion.

• It must relate directly to the cause or circumstances of death.

• The declarant must have abandoned hope of survival.

• Mental and physical fitness of the declarant is essential.

• There should be no contradictory dying declarations.

• The person who heard the statement must be legally competent to testify.

Judicial Interpretation and Precedents

The Supreme Court of Nepal has clarified the scope of dying declarations:

Key Cases

• Jitendra Karki v. Nepal Government – set criteria for admissibility.

• Sundar Raj Joshi v. Nepal Government – held that an FIR signed by the victim before death may qualify as a dying declaration under Section 11 of the Evidence Act, 2031.

• Nepal Government v. Murari Dhamala – stressed corroboration when reliability is in question.

Exceptions and Limitations

• Declarant must be competent and aware.

• Must be free from coercion, influence, or deception.

• Statement should be complete and unambiguous.

• Must be consistent with the cause of death.

Evidentiary Value and Corroboration

While courts can convict solely on a truthful dying declaration, they generally exercise caution. Corroboration is encouraged, especially in cases involving multiple inconsistent statements.

Judicial Trends in Nepal

The interpretation of dying declaration in Nepal has evolved through case law. Although the Evidence Act does not explicitly define it, courts have established parameters to assess credibility, voluntariness, and consistency with other evidence.

Conclusion

Dying declarations in Nepal hold significant weight in criminal trials. Despite being hearsay, they are admissible under strict conditions due to their perceived reliability. Guided by the Evidence Act and reinforced by Supreme Court precedents, these declarations serve as the last voice of the victim—ensuring that justice is pursued even when the victim cannot testify in person.