Dying declaration.

A dying declaration is one of the exceptions to hearsay evidence, because of a historical

belief in their reliability and because of necessity. 1 A dying declaration is a statement which is
uttered by a deceased person the purpose of which is to establish the cause of death of that
person.

Ordinarily the statement would amount to hearsay but its admitted as one of the exceptions.
Its admission is premised on the fact that a man shall not meet his maker with a lie in
his mouth, the assumption is that because of the impending death, the person is caught in the
circumstances which almost resemble the taking of an oath upon cross examination.

Under Section 30 of the Evidence Act, it provides that statements which are written or oral of
relevant facts made by a person who is now dead are themselves relevant in a number of
situations;

a) When a statement is made by a person as to the cause of his/her death or

b) As to any of the circumstances of the transaction which resulted into his/her death, in
cases in which the death of that person comes into [Link] is immaterial whether
or not that person was immediate expectation of death

Therefore,a dying declaration is a statement uttered by a deceased person the purpose of

which is to establish the cause of death of that person.

The import of section 30 of the evidence act has been reistated in the case of Adongo V
Uganda2 wherein they cited the case of Oyee George V Uganda Court of Appeal Criminal
Appeal No.159 of 2003 stating that the jurisprudence on what constitutes a dying declaration
is envisaged under section 30 of the Evidence Act, the Court went on to state that a dying
declaration are those statements made by person who is dead as to the cause of his death or as
to the circumstances of the transaction which resulted in his/her death.

There is a difference between a dying declaration that is admissible under common law
and in our Ugandan Evidence Act.

a) Under common law, the dying declaration is only admissible in evidence where the
matter involves murder or manslaughter. However, the evidence act a dying
declaration is relevant in cases in which the cause of the death comes into question
1
Jackline Uwera Nsenga V Uganda Criminal Appeal No.824 of 2015
2
Criminal Appeal No.45 of 2010
 whatever maybe the nature of the proceedings in which cause of death comes into
issue therefore its not confined on only murder or manslaughter.
b) Under common law, a dying declaration is only admissible if the deceased was under
a hopeless expectation of death, In the case of R V Woodlock (1789)1 Leach 500,it
was stated that a dying declaration to be valid under common law the deceased must
have lost all hope of living that if he at least he had a chance however, then it cannot
be admitted. While under the Evidence Act it is admissible even when the deceased
had a chance of living.

Persons competent to make a dying declaration.

If the person lacks testamentary capacity the declaration would not valid, for instance;

 A child of tender years, in the case of R v Pike, court decided that a child of tender
age could not make a dying declaration. His statement was incompetent as a dying
declaration because the maker was not capable of giving evidence in court as a
witness.
 An insane person

Elements considered in admitting a dying declaration.

i. Death of the maker.

The person who made the dying declaration must be dead. In People V Maria (1940) 2 359
III 231,194 N.E 510,a statement in that case was dictated by police officers and signed by the
declarant. Although it recited that the declarant believed he was about to die and that he had
no hope of recovery, there was no evidence that a physician told him so. He asked for a
physician prior to the statement but did not request a priest until about an hour after the
statement was [Link] Illinois Supreme court held that the dying declaration should not
have been admitted, since there was not an adequate evidence showing that the declarant had
lost hope of recovery.

ii. The dying declaration must be a complete statement.

For the statement to be complete the deceased must have said all he wanted to say about the
circumstances or the cause of death. If the statement was interrupted by death then it would
not be taken as a complete statement.
In the case of Waugh V R (1950) A.C 203, where the deceased was allegedly shot by the
appellant just before he died he mentioned the name of his alleged assailant and said words to
the effect that I am innocent he shot me because............and thereafter lapsed into comma,
before he could finish. The statement was used at the trial as a dying declaration and on
appeal it was rejected as incomplete.

iii. It should be a free expression of the deceased.

The person must make the statement voluntarily without any coercion, duress or undue
influence. And where the statement is recorded the actual words should be adduced to court
and not just an interpretation of the words.

iv. Statement has to be corroborated

The case of Uganda V George Wilson Simbwa Supreme court Criminal Appeal No.37 of
1995, defined corroboration as evidence from other sources which supports the testimony of
the complainant and connects or tends to connect the accused person to the commission of
the crime.

A dying declaration has to be corroborated because the test of cross examination

maybe wholly wanting, and the particulars of violence may have occurred under
circumstances of confusion and surprise this was stated in the case of Kasode V Uganda
Criminal Appeal No.0419 of [Link] went ahead and said that it is very unsafe to base a
conviction solely on the dying declaration made in the absence of the accused and not subject
to cross examination unless there is satisfactory corroboration.

In the case of Oyee George V Uganda Court of Appeal Criminal Appeal No.0159 of
2003,the need of corroboration was emphasized by court laying down the following
conditions before any weight can be attached to a dying declaration;

 Whether the deceased was certain about the identity of the attackers.
 If the attack occurred at the night when visibility is difficult the court must be certain
that there was no mistaken identity.
 The fact that the deceased may have told different people that the Appellant was his
attacker doesnot necessarily mean that the deceased was accurate.

The rationale for corroboration is premised on the fact that the physical or mental
weakness consequent upon approach of death render dying declarations dangerous kind of
evidence. There is no opportunity for cross examination and usually they are made in the
absence of the accused persons.

However, where a case does not require corroboration the court can go ahead to convict. In
the case of Jasunga V R (1954) 21 EACA,it was stated that there is no rule of law that to
support a conviction there must be corroboration of the dying declaration, it is just a mere
practice.

In the case of Mzibulo Edward V Uganda supreme Court Criminal A ppeal No.17 of
1995 it was stated that a cogent dying declaration maybe relied upon even without being
corroborated.

It should be noted that a dying declaration cannot corroborate other evidence because itself it
needs corroboration.

v. Time

Time is immaterial while admitting dying declarations. In the case of R V Kabatereine, two
days before the deceased was burnt to death, she had made a statement to her head man that
the accused had threatened to burn her house because she had caused the death of her father
by witchcraft. The issue was whether the statement to the headman made two days before
was a rightly admissible declaration as it was directly related to the occasion of the death of
the deceased.

The principles that govern a dying declaration are that;

1. Such evidence has to be handled with great care.3

2. Repetition to different witnesses is not a guarantee of the accuracy of a dying
declaration as it may amount to mere consistency on the part of the deceased. 4
3. Courts always take caution by generally examining the circumstances under which
the dying declarations were made.5

In the case of Kasode & anor V Uganda Criminal Appeal No.0419 of 2015,it was stated
that the trial judge believed the evidence of the dying declaration for the following
reasons;
3
Tindigwihura v. Uganda Criminal Appeal No. 9 of 1987
4
Okethi Okale and others v. R [1965] EA 555
5
Sabiti Vicent and others V Uganda Criminal Appeal No.140 of 2001
 1. The deceased had a clear mind when he made the dying declaration and was not
confused about what he was saying when he stated that the appellants were the
assailants.
2. The dying declaration was cogent because the deceased identified the respective
appellants by name.
3. The fact that the appellants were well-known to the deceased made the dying
declaration more cogent

Dying declarations as a necessity.

The admissibility of a dying declaration in evidence is founded on the principles of necessity.

A dying declaration is not given on oath nor subjected to cross examination. But as a piece of
evidence, it stands on the same footing as any other piece of evidence. If found reliable, a
dying declaration can form the basis of a conviction.

Proximity with the actual occurrence

In Antonio Barugahare and Others Versus. Republic 6 court noted that a dying declaration is
admissible as prosecution evidence when there is some proximate relation to the actual
occurrence. In this case, the deceased had been killed by the appellant, and a longtime friend
of the deceased testified that the deceased confided in her six weeks before her murder, that
the appellant had asked her to marry him and pay his poll tax; the former to which she
rejected, and the latter to which she offered no response. The evidence of this supposed dying
declaration was rejected by court, although the appellant was convicted based on other
evidence.

Contradictions and inconsistencies in dying declarations.

In Okethi Okale and Others Versus Republic 7 the deceased died from a septic wound on
his head, caused by the impact of a blunt object against his head. The evidence against the
appellants, was the testimony of the deceased’s widow, and a dying declaration made to the
deceased’s brother. The trial judge dismissed the testimony of the deceased’s widow as it was
tainted with several contradictions and inconsistencies and formed a theory of what happened
in the ordeal and accepted the testimony of the deceased’s brother, who told court that the
deceased told him that Okethi Okale had attacked and wounded him. Given that sixteen days
elapsed between the attack on the deceased and the deceased’s death, court found that the
6
[1957] 1 EA 149
7
[1965] 1 EA 555
testimony of the deceased’s brother was not a dying declaration, as it was not made in the
anticipation of death. Court dismissed the appellants conviction and accepted their appeal.

A dying declaration should not be tainted with contradictions as court will reject it.

The legal significance of dying declarations is as follows:

1. Exception to the Hearsay Rule: Dying declarations are an exception to the hearsay rule,
which means they can be admitted as evidence in court even if the declarant is unavailable to
testify.

2. Admissibility: Dying declarations are admissible as evidence in court, providing valuable

insights into the circumstances surrounding a person's death.

3. Relevance: Dying declarations are relevant to the cause or circumstances of the declarant's
impending death, making them crucial evidence in homicide trials and other cases.

4. Reliability: Dying declarations are considered reliable due to the declarant's settled and
hopeless state of mind, which reduces the likelihood of fabrication or manipulation.

5. Corroborative Evidence: Dying declarations can serve as corroborative evidence,

supporting other evidence and strengthening the prosecution's case.

6. Justice: Dying declarations can help ensure justice is served by providing critical evidence
in cases where the victim is unable to testify

limitations of dying declarations:

1. Reliability concerns: Dying declarations may be unreliable due to the declarant's physical
or mental state, leading to potential inaccuracies or fabrications.

2. Lack of cross-examination: Since the declarant is unavailable, their statement cannot be

tested through cross-examination, potentially limiting its value.

3. Mental capacity: The declarant's mental capacity or consciousness may be questionable,

affecting the statement's reliability.

4. Contextual limitations: The statement may be made in a context that limits its relevance or
reliability, such as in the presence of family members or medical professionals.

5. Evidentiary weight: Dying declarations may be given less evidentiary weight than other
types of evidence, such as direct testimony or physical evidence.
Circumstances when a dying declaration is meaningless/cannot be relied upon

Following are the circumstances when a dying declaration held meaningless:

(i) When the relatives of the declarant arrange with him as to what he has to say. 8

(ii) When the maker of a dying declaration is proved to have been unconscious or semi-
conscious at the spot and died a few minutes after the making of the declaration.9

(iii) Where there is clear discrepancy between the facts mentioned in the dying declaration
and those in the statements of the witness10

(iv) When a dying declaration contradicts itself in its various parts 11

(v) Where the identity of accused could not be established through the dying declaration.12

In conclusion ,a dying declaration is a statement made by a deceased person immediately

after death and it can be admissible in court, it becomes relevant where the death of the
person coms into question and as a practice it has to be corroborated though where court find
the statement cogent it maybe admitted without the need for corroboration as discussed
above.

8
Varand v. Emperor, AIR 1944 Sind 137.
9
Bhagwan Dass v. State, MANU/SC/0037/1957 : AIR 1957 SC 589: 1957 Cr LJ 889: 1957
SCJ 515: 1957 MPC 564: 1957 SCC 308: 1957 SCA 836: 1957 BLJR 678: 1957 All LJ 722.
10
Bapu Rao v. State of Maharashtra, AIR 1968 SC 855.
11
Jaya Ram v. State of Tamil Nadu, AIR 1976 SC 791.
12
Shabir Mohmad Syed v. State of Maharashtra, MANU/SC/0948/1997 : (1997) 11 SCC 499:
AIR 1997 SC 3808: 1997 Cr LJ 4416: 1997 AIR SCW 3724: JT 1997 (8) SC 1: 1997 (3) SCJ
157: 1998 Sc Cr R 33: 1997 SCC (Cri) 1226.