SHOULD A SUICIDE NOTE BE LEGALLY ADMISSIBLE AS DYING DECLARATION EVIDENCE?

The intention of the writer while putting pen to paper is for their suicide note to be read after their demise. Therefore, the declarant may be more inclined to produce a fabricated account of the instances which forced him into killing himself.

DEFINITION

Dying declaration is the statement of a declarant before his or her death about the cause of their death which might be used to implicate a guilty party. It derives its origin to the legal maxim “nemo moriturus praesumitir mentire” which means that “man would not meet his creator with a lie on his lips” in Latin.

PRIMARY LAW

Dying Declaration is used in criminal cases in India. According to section 32(1), The Indian Evidence Act, 1872, suicide notes also qualify as dying declaration in a court of law. This is because statements of the nature of dying declaration do not need to be under expectation of death. These statements also need not be directly related to the cause of the death; they could entail description of any particular event in the chronology of the entire incident leading up to the death of the victim.[1] This practice is considered unjust for the following reasons: –

1. FABRICATION

It was argued in Garza v Delta Tau Delta Fraternity National[2] that a suicide note is a one-sided account of the incidents leading up to such degradation of the mental make-up of the declarant that he chooses to end his life. The intention of the writer while putting pen to paper is for the note to be read after his demise. Therefore, the declarant may be more inclined to produce a fabricated account of the instances which forced him into killing himself. The court held the suicide note inadmissible in this case. The same tendency to fabricate was also recognized as a factor to disbelieve a suicide note in People v Bartelini.[3] If the suicide note is accepted as dying declaration under section 32(1) of the Indian Evidence Act, the guilty would attract section 306 of the Indian Penal Code for abetment of suicide. Since Indian law incriminates not only on direct relation to death shown in the dying declaration but also on indirect averments made to someone, suicide notes become all the more relevant to punish for abetment of suicide.

2. MENTAL STATE

The mental state of the declarant at the time of making the dying declaration is taken into account for the purposes of its admissibility. The mental state of a person at the time of writing a suicide note is understood to be either of a confused or angry nature.[4]

Kushal Rao v State of Bombay[5] decided that dying declaration of a person who has committed suicide could in itself form the basis for establishing the culpa of the person responsible for such suicide if the correctness of mental state of the deceased is established and other evidence corroborate the evidence in the suicide note.

It is not wise to punish someone on the basis of suicide notes as the mental state of the person writing it is targeted towards all things they believe to be the cause of their condition at that time. For example, students flunking in their board examinations might resort to killing themselves and blaming the school and society for it. These averments could not form the cause of apprehending people. Enunciated in V Venkataraman v State[6] it is stated that-

“A person cannot be punished on the basis of the suicide note of another if he was a coward or a man of weak mentality.”

In the case of Sanju v State of MP[7] this very principle can be seen in practice where the victim and the accused, the aggressor advised the deceased “to go and die” during an exchange of altercations. The court dismissed the name of the applicant in the suicide note in this case as evidence of mens rea for an action under section 306 for abetment of suicide even in light of corroborating circumstances.

3. REVENGE

It has been reported previously that Indians tend to frame people in their suicide notes if there is bad blood between them.[8] Sharad Birdichand Sarda v State of Maharashtra[9] pointed out that the mental make-up of those who commit suicide is of a fantastical nature; they tend to live in a world of fantasies and emotions. Hence, they might be more susceptible to concocting a false account in their suicide notes just to avenge their foes.

4. COUNTER-EXAMINATION

Cases of homicide are markedly different from those of suicide and the same standards cannot follow. The declarant does not record the dying declaration (suicide note) in the presence of a Magistrate. Therefore, it is not possible to counter-question him to check the veracity of the averments made in his submission after his death when the suicide note is tested for admissibility. This puts further question marks on the motive of the declarant. Having knowledge that there is no accountability even if a false account is provided may lead to questionable suicide notes.

CONCLUSION

To judge the culpability of an accused from a suicide note is treading on thin ice. The challenges for a court are those that have been mentioned here. Even if the result is correct nine times of ten, it is too risky a test to continue with. The preliminary onus of proving the facts set out in the suicide note must be on the declarant himself.[10] The court has unjustly replaced the principle of presumption of innocence with that of presumption of guilt in a case of dying declaration.[11]

The need of the hour is for the legislation to act on this question and specifically lay out the conditions in which a suicide note could be considered by a court as dying declaration.[12] For the time being, it is unfeasible to ask the judiciary to draw the line between ‘what is’ and ‘is not’ an exemplar suicide note to qualify as dying declaration.


REFERENCES

[1] The Indian Evidence Act 1872, s 32.

[2] 916 SO 2D 185.

[3] 35 NE 2D 29.

[4] M R Sreenivasa Murthy, K Syamala, ‘Do Dying Lips Always Speak the Truth? Admissibility of Dying Declaration in Case of Suicide’ (2018) 2 SCC Cri J-22.

[5] 1958 AIR 22.

[6] (2015) 2 LW (Cri) 277.

[7] (2002) 5 SCC 371.

[8] Law Commission of India, Review of the Indian Evidence Act, 1872 (Law Com No 185, 2003).

[9] (2014) 12 SCC 595.

[10] Murthy (n 4).

[11] Sat Prakash v State of Haryana (2015) 16 SCC 475.

[12] Stephen F Rose, ‘Can a Suicide Victim Be Taken at Her Word: The Louisiana Supreme Court Declares a Suicide Note Inadmissible Hearsay in Garza v. Delta Tau Delta Fraternity National’(2007) 81 Tul L Rev 1715.

 

Cover Image Credits: Nilay J., Abhinab C.

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