Introduction
As to the cause of death, the statement made by a person regarding any of the circumstances of the transaction that culminated in his death prior to his death is "Dying Declaration".

Dying Declaration is admitted based on the principle that 'a man will not meet his maker with a lie on his mouth'. Section 32 of the Indian Evidence Act, 1872 deals with Dying Declaration.

Dying Declaration can be oral also. An oral Dying Declaration without infirmities is a very valuable piece of evidence.

A Dying Declaration relating to the cause of death of the declarant is very important and a very valuable piece of evidence during the trial of a case of homicide and in case of suicide. A Dying Declaration whether oral or written is substantive evidence.

A Dying Declaration is not only evidence regarding the cause, the mode, and the transaction of the death of the person, but it is also an important piece of evidence regarding all aspects of the crime and all participants who attacked not only the declarant but others also at the same time and place within the knowledge of the declarant.

Principle of Dying Declaration

Dying Declaration stands on the maxim 'Nemo Moriturus Praesumitur Mentire' which implies that a man will not meet his creator with a lie in his mouth.

A general principle of law on which this type of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of his worldly interest is gone, when every motive in falsehood is silenced and the mind is prompted by the most powerful consideration to speak the truth.

In the case of Uka Ram v. State of Rajasthan, AIR 2001 SC 1814, it was held by the Supreme Court that a person would not die with the lie on his lips because he had to meet the supreme power of this world, that is, God. It was further observed by the court that in men's mind the sense of imminent death produces the same feeling as that of a righteous man under oath; therefore, the chances of falsehood are eliminated.

Procedure of Recording Dying Declaration:

• Normally when a person seriously injured is in a condition to make a statement, a requisition shall be given either by the Investigating Officer or by the Medical Officer to the nearest Judicial Magistrate to record his Dying Declaration.
• Doctor's Opinion should be taken regarding general mental health condition of the declarant.
• No opportunity should be given to interested person to be present at the time of Dying Declaration to influence, prompt, tutor or guide the declarant.
• The Dying Declaration must as far as possible be complete by itself.
• The person making the Dying Declaration must be speaking from personal knowledge of the facts.
• If reduced to writing by the Police, the Dying Declaration should be in the form of questions and answers and in the very language and words of the declarant in first person with exactitude. The names of the accused and eyewitnesses, if mentioned shall be clearly written so that a doubt about their identity shall not arise.
• The declarant should invariably put his signature on the Dying Declaration.
• If the declarant is an illiterate or if he is incapacitated from signing for any reason, his thumb impression should be taken.
• A note should be made in the Dying Declaration given reasons why signature of the declarant was not taken.
• When the declarant being in a serious condition and unable to speak, makes signs by hand or head, the person recording the Dying Declaration must record the precise nature of the signs which the declarant made.

Weakness of Dying Declaration

There is one weakness in a Dying Declaration, and it is that the accused has no chance to cross-examine the deceased and therefore it cannot be given the same value as a statement made in the court.

If the Person Making Dying Declaration Survives
In the case of Maqsoodan v. Uttar Pradesh (1983) 1 SCC 218, it was held by the Supreme Court that if the person making Dying Declaration survives, then her statement cannot be used as Dying Declaration under section 32 (1) of the Indian Evidence Act, 1872. However, it can be used for the purpose of corroboration under section 157 of the Indian Evidence Act, 1872 and for contradiction under section 145 of the Indian Evidence Act, 1872.

Multiple Dying Declaration

Four Dying declarations:
One accusing the husband, the other accusing the husband and in-laws, third and fourth read with first and second are found to be not consistent. When based on such dying declaration the in-laws are acquitted, the husband should also have been acquitted. AIR 2007 SC 2666

Where there is more than one Dying Declaration which are not consistent, conviction cannot be based on any of the Dying Declarations. AIR 2009 SC 2111

When deceased has given some names in the Dying Declaration recorded earlier, and in subsequent Dying Declaration if he adds names of some more persons or implicates more persons as assailants, such Dying Declaration becomes suspicious in the eyes of law, and it was viewed that the deceased could have been prompted to implicate innocent persons to wreak vengeance.

In the case of Kamla v. State of Punjab, AIR 1992 SC 374, it was ruled by the Supreme Court that when there are multiple Dying Declarations made by one or several persons and they are inconsistent with each other, such Dying Declarations must be corroborated with each other and be examined considering other circumstantial evidence.

Complaint/Statement Turning into Dying Declaration

A complaint given by the injured person to the S.H.O. / O.C. of a Police Station will become a Dying Declaration if he dies later due to those injuries. Hence, a statement of an injured person recorded under section 161 CrPC is also treated as Dying Declaration if the injured person later succumbs to the injuries.

If an accused person is charged with causing death of the deceased, a complaint made to the police prior to the crime by the deceased expressing apprehension of death at the hands of the accused is admissible under section 32(1) of the Indian Evidence Act, 1872.

Who Can Record the Dying Declaration?

Any person may record the Dying Declaration. But the Declaration should preferably be recorded by a Judicial Magistrate, if readily available. Where this is not practicable and where the injured person is fast collapsing and there may be no time for summoning the Judicial Magistrate, the Investigating Officer himself in the presence of a Medical Officer can record a Dying Declaration after obtaining a certificate from the doctor to the effect that the patient is collapsing but is in a condition to make a statement. Even a doctor may record Dying Declaration. In emergent cases, even Police Officers can record Dying Declaration.

Dying Declaration need not be recorded by the Judicial Magistrate only, it can be recorded by any other person as well. AIR 2009 SC 1725

Judicial Magistrate is empowered to record Dying Declaration under Rule 33 of Criminal Rules of Practice though Executive Magistrates are recording the Dying declaration in some parts of the country.

The Fit State of Mind of a Victim

In the case of Babso Kale v. State of Maharashtra (2019, 4 SCC 739), it was ruled by the Supreme Court that when there is a doubt as to the veracity of any Dying Declaration that whether the victim was in a fit state of mind to make the statement then in such case the Dying Declaration cannot be treated as a sole basis for conviction unless corroborated with some other evidence too.

Corroboration of Dying Declaration

If there is corroboration for the Dying Declaration, it is so much the better, as the Dying Declaration would then be invested with the stamp of truth.

In the case of Sharad Birdhi v. State of Maharashtra, AIR 1984 SC 1622, it was held that a suicide note cannot be used as the sole basis for conviction unless corroborated by other substantive pieces of evidence.

It is not necessary that the deceased should always sign a Dying Declaration though the signature of the deponent will increase the evidentiary value.

Dying Declaration Recorded by a Police Officer

Even if the Dying Declaration is made to a Police Officer it is admissible in evidence and its use is not barred by section 162 CrPC. Even if it has been made orally in the presence of any person, it can be proved in court by the oral evidence of that person. If the declarant subsequently dies, the declaration becomes admissible. If, however he survives it will be useful if made before a Judicial Magistrate or any person other than a Police Officer to corroborate his oral evidence as a witness in court. It will be treated as a statement under section 162 CrPC, if it is made before a Police Officer.

Where the Magistrate or the Doctor is not available, the Police Official present may record the Dying Declaration.

In the case of Dalip Singh v. State of Punjab, AIR 1953 SC 364, it was held by the Supreme Court that the Dying Declaration made to a Police Officer is relevant.

Incomplete Dying Declaration

Though the Dying Declaration is incomplete by reason of the deceased not being able to answer further questions in his condition, yet the statement so far as it goes to implicate the accused, could be relied upon by the prosecution, provided it is quite categorical in character and complete by itself in so far as the implication of the accused is concerned. A Dying Declaration must be viewed in its entirety and not in parts.

Delay in Recording Dying Declaration

Inordinate delay in recording Dying Declaration reduces the evidentiary value of the same.

The person making the Dying Declaration need not be under an imminent apprehension of his death. It becomes relevant only if the person dies.

Mere fact that the police did not file charge sheet against some of the accused, whose names find place in the Dying Declaration will not reduce the value of Dying Declaration because the persons who were let off from the category of accused may have been involved due to ulterior motives.

Kushal Rao v. State of Bombay

In the case of Kushal Rao v. State of Bombay, the Supreme Court held:

1. That a Dying Declaration cannot form the sole basis of conviction unless it is corroborated, cannot be laid down as an absolute rule of law that.
2. Keeping in view the circumstances in which the Dying Declaration was made, each case must be determined on its own facts.
3. A Dying Declaration is a weaker kind of evidence than other pieces of evidence, cannot be laid down as a general proposition.
4. That a Dying Declaration must be judged in the light of surrounding circumstances and stands on the same footing as another piece of evidence and with reference to the principles governing weighing of evidence.
5. That a Dying Declaration which has been recorded in the words of the maker of the declarant and by a competent Judicial Magistrate in the proper manner in the form of questions and answers as far as practicable, may suffer from all infirmities of human memory and human character.
6. The court has to keep in view the circumstances like the opportunity of the Dying man for observation that in order to test the reliability of a Dying Declaration, for example, there was sufficient light if the crime was committed at night, that the statement has been consistent throughout and that the statement had been at the earliest opportunity, and it was not tutored by interested parties.

Dying Declaration Without Corroboration

A Dying Declaration can be acted upon without corroboration is well settled as a matter of law. That Dying Declaration cannot be acted upon unless it is corroborated, there is not even a rule of prudence, which has hardened into a rule of law. The primary intention in fact of the court is to find out whether the Dying Declaration is true. If it is not a question of corroboration arises; it is only if the circumstances surrounding the Dying Declaration are not clear or convincing that the court may for its assurance look for corroboration for Dying Declaration.

Its major purpose is to render admissible any evidence from a person who dies before the case is heard in court. Under Section 157 of the Indian Evidence Act, such a Dying Declaration must have corroborative evidence to support it before it can be accepted. The usual circumstances are homicide, where a statement, either verbal or written, from a person who dies subsequently, is used as part of the evidence at trial. Normally a Judicial Magistrate should record such a Dying Declaration from a mortally injured person, but in cases of urgency, only a doctor may be present in which case he has the duty to take down what the dying person said.

Dying Declaration Recorded By Doctor

The Supreme Court held that doctor was a disinterested respectable person and was justified and indeed duty bound to record the Dying Declaration as the condition of the victim was serious and there was no time to call the Magistrate. Where the Dying Declaration was recorded by the doctor treating the victim and attested by another doctor, and their positive statement was that she was conscious at the time of giving the statement, the Supreme Court observed that there is nothing to disbelieve their evidence and inferences as to her inability to speak cannot be drawn from the mere fact that she had 80% burn injuries.

It upheld the conviction based on the said Dying Declaration. If such a declaration is taken by a doctor, he must attempt to get the patient to sign, some bystanding witnesses should also sign it, after which the declaration is forwarded to a Judicial Magistrate. A Dying Declaration recorded by a Magistrate, however, stands on a much higher footing than the oral declaration or the one recorded by the Investigating Officer. Unlike English law, in India, for the statement to be valid, as the wounded person need not be convinced that he is dying, but he must be of sound mind at the material time.

Where the doctor before whom the Dying Declaration is alleged has been made is not examined, the Dying Declaration becomes doubtful, and it can be discarded.

Form of Recording Dying Declaration

There is no prescribed form to record a Dying Declaration and no rigid rule can be made of the same. That the deponent is in a fit state of mind and quite alert in making statement relating to injuries sustained by him, the man who records the Dying Declaration must satisfy himself. If a medical officer is present or if his attendance can be secured at the time, he may be asked to certify before the declaration is recorded whether the declarant is in a fit state to make a statement.

Ordinarily a Dying Declaration may be taken down in the form of a simple narrative. If any occasion arises for putting questions to the deponent, the Judicial Magistrate should record the questions as also the answers, which he receives to enable the court to judge the value of answers given by the declarant. Not merely their substance, the actual words of the declarant should be taken down and the statement may be as full as the physical condition of the declarant will permit.

It is the duty of the person recording the declaration to take every possible precaution to ensure making of a free and spontaneous statement by the declarant without any prompting suggestion or aid form any other person.

Welfare of the Victim to be Kept in Mind

Medical officers, Magistrates and Police Officers must all realise that the welfare of the injured man is the first consideration and in no circumstances must proper medical treatment be impeded or delayed for securing the recording of a Dying Declaration.

Dying Declaration by Signs, Nod of the Head, or Motion of Fingers or Hands
An injured person, due to serious nature of the injuries, may not be able to speak. In such a situation, a reply made by the injured by signs, by a nod of the head, or motion of fingers or hands in answer to the questions put to him for finding out the identity of the culprit, along with the question put to him, shall be recorded by the Judicial Magistrate, Doctor or any other person recording the Dying Declaration.

A Dying Declaration made by a person in which he gives answers to questions put to him either by pointing out with his finger or by making other signs or gesture is admissible in evidence.

In the case of Queen Empress v. Abdullah (1885, ILR 7 ALL 385), it was held by Allahabad High Court that no form is prescribed for recording of Dying Declaration and a Dying Declaration can either be in the form of an oral statement, written, gesture, signs, or nods.

When the Person Making Dying Declaration Becomes Unconscious

Where the person making the Dying Declaration becomes unconscious or dies, and the statement is not complete, the Medical Officer should record such statement as he has been able to record and note that the declarant became unconscious and died at that stage and should put his signature and obtain the signature of some bystanding respectable person. It is not proper to take the thumb impression of the declarant on the Dying Declaration after his death.

Dying Declaration Recorded by Investigating Officer

The practice of recording Dying Declaration by Investigating Officer ought not to be encouraged, but when the Dying Declaration is recorded by the Investigating Officer, it is admissible under section 32 of the Indian Evidence Act, 1872.

Dying Declaration should, if possible, be written by the person recording them.

Where a Dying Declaration is recorded by a police or medical officer, it should be recorded in the actual words of the declarant in full detail in question and answer from, with respectable witnesses being present. The declarant should be asked to affix his signature or mark to it after it is read over to him. The accused or his pleader, if present, should be allowed to put questions to the declarant.

When concluded, the declaration should be signed by the police or medical officer recording it, along with obtaining the signatures of respectable witnesses over it. It should then be forwarded in a sealed envelope direct to the Judicial Magistrate who would ordinarily enquire into the case. If it can be avoided, no police officer who is engaged in the investigation into the case should be present when the Dying Declaration is recorded.

Where Dying Declaration is not Available

Where the original Dying Declaration is not available, the prosecution is entitled to give its secondary evidence, which may consist of the statement of the Judicial Magistrate who recorded it and the official who has made a copy from the original, testifying that the copy is a correct one.

Some Court Rulings On Dying Declaration

Even if death occurred after a few days, Dying Declaration cannot be discarded. AIR 2007 SC 1932

Though the entries made by the deceased in his diary before his death cannot be treated as Dying Declaration, it still has the same evidentiary value. AIR 2001 SC 3877

Statement made in the Dying Declaration about the events which have a nexus with the death is a part of Dying Declaration. AIR 2001 SC 2944

Evidence of the witness who took the injured on motorcycle cannot be discarded on the ground that his clothes are found to be not stained with blood. AIR 2007 SC 1932

In the case of Pakala Narayana Swami v. Emperor, AIR 1939 PC 47, it was held by the court that the statement made by the deceased to his wife when he was going to collect money from some persons was admissible as Dying Declaration under section 32 (1) of the Indian Evidence Act, 1872.

In the case of Habib Osman Vs. State of Maharashtra 1979, the Supreme Court has held that "great weight must naturally and necessarily be attached to the Dying Declaration recorded shortly after the occurrence".

Dying Declaration made by the deceased in hospital, first to Police Officer, second to Magistrate, after doctor certified deceased fit to make declaration, both declarations similar in substance and content and corroborated by the deceased's mother, brother and sister, conviction can be sustained. 1986 CRL Li 836 AIR 1985 Supreme Court, Allahabad Criminal Appeal No. 69 of 1975 dt. 22.01.1985 State of U.P. Appellant v. Ramu Sagar Yadav and other respondents

In the case of Jayamma & Anr v. State of Karnataka, a three judges' bench of the Supreme Court while setting aside the order of acquittal of the Karnataka High Court disbelieved the Dying Declaration on the following grounds:

1. The narration of events was too accurate to be believed to be true in the Dying Declaration.
2. It appeared beyond human probabilities to narrate the details of the incident with such a high degree of accuracy, the deceased being an illiterate person.
3. Owing to 80% burn injuries the possibility of the victim not fit to give any statement could not be ruled out, and the conduct of the police officer was also held to be doubtful.
4. Contradictions in the statements of the doctor and the police officer with respect to the nature of injuries.
5. No endorsement of 'Fit State of Mind' before recording the Dying Declaration.
6. Motive of 'Homicidal Death' was doubtful.
7. Unusual conduct of relatives of not registering a complaint, which supported the alternate theory that the victim might have committed suicide.
8. Prosecution had sufficient time to call for the assistance of a Judicial Magistrate to record the Dying Declaration, however, it failed to do so.

It was also held in this case that if the Dying Declaration gives a cogent and plausible explanation of the occurrence and has been recorded in accordance with law, the court can convict the accused relying upon it as the solitary piece of evidence.

When deceased was adversely motivated and the eyewitness evidence inspired confidence, eyewitness account will prevail over Dying Declaration. This refers to the case of Shivkaran s/o Gaanpati Gaikwad v. State of Maharashtra and Ors (2023 BHC),

In the case of Sumitra Bande v. State of Chhattisgarh (2023), it was held that if the Dying Declaration has already been recorded by the Executive Magistrate, the police Officers should not re-record it.

It was held in the case of Surinder Kumar v. State of Punjab 2012 SC that to record Dying Declaration in the form of questions and answers may not always be possible.

Conclusion
Dying Declaration is a substantive piece of evidence and should preferably be recorded by a Judicial Magistrate. Only in the confirmed absence of the Judicial Magistrate, it should be recorded by a doctor or police officer or any other person. Conviction can be based on the solitary evidence of Dying Declaration if it is corroborated by other evidence and found to be reliable and based on cogent grounds. There should not be unexplained and inordinate delay in recording of Dying Declaration.

While giving Dying Declaration the declarant should be in mentally fit condition and conscious. It is advisable not to make more than one Dying Declaration; if a declarant makes multiple Dying Declarations there should be no inconsistency or contradiction in these Dying Declarations.

References

1. https://www.writinglaw.com/case-laws-related-to-dying-declaration-under-evidence-act/
2. https://theleaflet.in/supreme-court-clarifies-law-on-dying-declaration/
3. https://www.livelaw.in/top-stories/supreme-court-conviction-dying-declaration-without-corroboration-190878/
4. https://www.linkedin.com/pulse/admissibility-probative-value-dying-declaration-under-rishabh-jain
5. https://districts.ecourts.gov.in/sites/default/files/Forth%20Topic_1.pdf
6. https://bonumlex.com/dying-declaration-words-said-before-death/
7. https://books.google.com/books?id=8wslBQAAQBAJ
8. https://archive.org/stream/in.ernet.dli.2015.145370/2015.145370.Medico-legal-Companion_djvu.txt
9. https://www.academia.edu/43210283/Functions_Roles_and_Duties_of_Police_in_General
10. https://bnblegal.com/nemo-moriturus-praesumitur-mentire/

Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565