It is apparent that a statement made before a police officer cannot be proved against the person making it unless it is made in the immediate presence of a Magistrate as provided under section 25 and 26 of the Indian Evidence Act but what if the statement made by a victim to a police officer is in the form of a dying declaration?

Section 32(1) of Indian Evidence Act states:
When it relates to cause of death: When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

It positively declares a dying declaration to be relevant in a proceeding. But the question which needs determination is whether a dying declaration made to a police officer is admissible or not?

In the case of Machhi Singh and others v. State of Punjab (1983) 3 SCC 470, It was held that a dying declaration is not unreliable merely because it was made before a police officer. The magistrate in this case could not be summoned for recording the dying declaration because the deceased was making good recovery.

Where the statement of the deceased is recorded by a police officer in a routine manner as a complaint and not as a dying declaration the statement can be relied upon if it is proved that the evidence of the prosecution witness is clearly established beyond reasonable doubt that the deceased was conscious and was in a fit state of health to make the statement.

It was observed in the case of State of Rajasthan v. Wakteng (2007) 14 SCC 550. It was also seen that the conviction can be solely on the basis of dying declaration without any corroboration provided the same should be made voluntarily and is true. The court also has to ensure that the statement was not the result of tutoring or any product of some fascination.

In the case of Atbir v. Government of NCT of Delhi (2010) 9 SCC 1, The issues before the Hon'ble court was- Whether dying declaration made before a police officer without any corroboration by any other independent witness is sufficient to convict the accused for capital punishment?

The following were observed in this case:

• It cannot be a ground to reject the whole prosecution case merely because a dying declaration was not recorded by a magistrate. However, if it appears from the record of the case that the dying declaration is not reliable, a question may arise as to why the magistrate was not called for recording the dying declaration.
   
• The court has to satisfy that the deceased was in a fit state of mind to make the statement and was in clear capacity to observe and identify the assailant and the statement was made without any influence. Once the court is satisfied that the dying declaration is true and voluntary it is sufficient for the purpose of conviction.
   
• All the murders that took place in this case were extremely brutal and it falls under the category of rarest of the rare case and the accused was sentenced to death penalty.

Conclusion:
Statement made to a police officer or statement made in a police custody is substantially not admissible by the virtue of section 25 and 26 of the Indian Evidence Act. However, if the statement is a dying declaration and recording of the same was not done by the magistrate it is admissible in the court of law. The court has to make sure that the statement was true and voluntary. The evidentiary value of dying declaration is very high as the assailant can even be sentenced to capital punishment solely on the basis of dying declaration provided it falls under the category of rarest of the rare case.