In the law of evidence, a dying declaration occupies a very special position. Ordinarily, statements made by a person who is not examined as a witness are treated as hearsay and are inadmissible. However, the Indian Evidence Act, 1872 makes an important exception to this rule by recognizing dying declarations as relevant and admissible evidence. The principle is based on the belief that a person who is facing death is unlikely to tell a lie, as famously expressed in the maxim “Nemo moriturus praesumitur mentire” (a man will not meet his maker with a lie in his mouth).
Dying declarations are most commonly used in criminal cases relating to homicide, dowry death, suicide, and grievous injuries, where the victim is no longer available to testify in court.
Definition of Dying Declaration
A dying declaration refers to a statement made by a person as to the cause of his death or as to the circumstances of the transaction which resulted in his death. This concept is embodied in Section 32(1) of the Indian Evidence Act, 1872. According to this provision, such a statement is relevant whether the person who made it was or was not under expectation of death at the time of making it, and it becomes admissible once the person dies.
Unlike English law, Indian law does not require the declarant to be under immediate expectation of death. The relevance depends on the subject matter of the statement, not on the mental belief of approaching death. The declaration can be oral, written, or even conveyed through signs and gestures, provided it clearly reflects the intention and mental fitness of the declarant.
Legal Foundation and Scope under Indian Law
The legal basis of dying declaration lies in Section 32(1) of the Evidence Act, which is an exception to the rule against hearsay contained in Section 60. The scope of this provision is very wide. It covers not only statements directly naming the accused but also statements explaining how, when, and under what circumstances the incident occurred.
The Supreme Court in Kushal Rao v. State of Bombay (1958) held that a dying declaration is not a weaker form of evidence and can form the sole basis of conviction if it is found to be true, voluntary, and reliable. However, courts remain cautious because the maker of the statement cannot be cross-examined. Therefore, the procedure of recording a dying declaration becomes critically important to ensure its evidentiary value.
Who Can Record a Dying Declaration
Ideally, a dying declaration should be recorded by a Judicial Magistrate, as this gives the statement the highest degree of credibility. However, law does not restrict recording to a Magistrate alone.
A dying declaration may also be recorded by:
- A Doctor, especially when death is imminent
- A Police Officer, when a Magistrate is not available
- Any other person, including relatives or witnesses
Courts prefer declarations recorded by a Magistrate because such recording is presumed to be neutral and free from influence or coercion. Nevertheless, even a declaration recorded by others can be accepted if it satisfies legal tests.
Procedure for Recording a Dying Declaration
Though the Evidence Act does not prescribe a rigid format, courts have evolved a well-settled procedure through judicial precedents to ensure reliability.
Medical Certification of Fitness
Before recording the statement, the person recording it should ensure that the declarant is in a fit physical and mental condition. This is usually done through a doctor’s certificate stating that the patient is conscious and capable of making a statement. In Laxman v. State of Maharashtra (2002), the Supreme Court clarified that medical certification is a rule of prudence, not an absolute requirement, but its absence requires greater scrutiny.
Recording in Question-Answer Form
The declaration should preferably be recorded in a question and answer format to remove ambiguity. The questions must be simple and unleading, ensuring that the declarant narrates the incident voluntarily and clearly.
Language and Exact Words
The statement should be recorded in the language of the declarant, and as far as possible, in his exact words. Any translation should be accurate and faithful to the original meaning.
No Influence or Tutoring
All interested persons, including police officers, relatives, or parties connected with the accused, should be kept away during recording. This ensures the statement is free from coercion, prompting, or influence.
Signature or Thumb Impression
After recording, the declaration should be read over to the declarant, and if possible, signed or thumb-marked by him. In cases where the declarant cannot sign, an endorsement to that effect should be made.
Evidentiary Value of Dying Declaration
A properly recorded dying declaration has high evidentiary value. Courts have repeatedly held that a truthful and voluntary dying declaration can form the sole basis of conviction, even without corroboration.
However, corroboration is generally sought where:
- The declaration is ambiguous or inconsistent
- There are multiple dying declarations with contradictions
- The statement suffers from procedural defects
In Paniben v. State of Gujarat (1992), the Supreme Court laid down important principles for evaluating dying declarations, emphasizing scrutiny, consistency, voluntariness, and mental fitness.
Mnemonic to Remember Dying Declaration: “D-E-A-T-H”
- D – Declarant must die after making the statement
- E – Explanation of cause or circumstances of death
- A – Admissible under Section 32(1)
- T – Truthful, voluntary, and mentally fit
- H – Hearsay exception
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