The term dying declaration is derived from “Leterm Mortem”, which means “Words before death”. The basis “dying declaration” is derived from the Latin maxim “Nemo moriturus praesumitur mentire”, which implies “a man will not meet his maker with a lie in his mouth”. A dying declaration is a declaration written or verbal made by a person, as to the cause of his death (by way of homicide or suicide) or as to any of the circumstances of the transaction, which resulted in his death. A dying declaration is considered credible and trustworthy evidence based upon the general belief that most people who know that they are about to die do not lie. A victim is an exclusive eye witness, thus the evidence cannot be excluded. There is no requirement as per Indian Law for the victim to be under expectation of imminent death. If the victim survives, the statement can be used to corroborate or contradict him in court; however survival diminishes the weight of the statement.

Illustration: X has been attacked by Y. If X, shortly before death, makes a declaration holding Y, responsible for his injuries, it is called “dying declaration“.

Though dying declarations are not statements made on oath and no cross- examination is possible, yet because of the solemnity of the occasion, which ensures truth more than a positive oath they are received in evidence. Absolute guarantee of truth cannot be expected even in case of statements made on oath in a Court.

Section 32(1) specifically deals with the concept of dying declaration in respect of a cause of death and it is assumed that such statements are relevant even whether the person who made them was not at the time when they were made. The general rule is, “hearsay evidence is no evidence and is not admissible in evidence”. Sections 32 & 33 of the Evidence Act are among the exceptions, as such dying declaration is an exception to this general rule.

The Supreme Court defined dying declaration in a way that, “when a statement is made by a person in the threat of his death or as to any circumstances which cause threat or results into his death, and when the cause of his death comes in question the statements made by him are admissible as evidence, such statement in law are compendiously called dying declaration.

The Supreme Court held that ‘the principle on which a dying declaration is admitted in evidence is indicated in the Latin maxim, ‘nemo morturus praesumitur mentire’, which means that a man will not meet his maker with a lie in his mouth. Information lodged by a person who died subsequently relating to the cause of his death is admissible in evidence under this clause.

“The dying declaration is admissible under Section 32 & because the statement not made on oath so that its truth could be tested by cross-examination, the court has to observe the closest inspection of the statement before acting upon it. And it is also assumed that the words of a dying man are of very serious nature because a person on the verge of death is not likely to tell lies or to connect a case to a malice prosecution of an innocent person. Once the court is satisfied that the dying declaration is true & voluntary and are not influenced, then the statements can be sufficient to prove the conviction even without further corroboration.”

Section 32 deals primarily with statements from people who are unable or have become incapable to give evidence. The section says that, “statements written or verbal, of relevant facts made by a person, who is dead or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expenses, which under the circumstance of the case, appears to the court unreasonable, are themselves relevant facts in the following cases.

1. When it relates to cause of death; or
2. When it is made in course of business; or
3. Against the interest of the maker; or
4. Gives opinion as to public right or custom or matters of general interest; or
5. Relates to existence of relationship; or
6. When it is made in will or deed relating to the family affairs; or
7. In document relating to transaction mentioned in Section 13(a); or
8. When it is made by several person and expresses felling relevant to matter in question”.

Section 32 makes relevant statement made by a person.

1. Who is dead;
2. Who cannot be found;
3. Who has become incapable of giving evidence; or
4. Whose attendance cannot be procured without unreasonable delay or expenses.

Dying declaration is admissible for the following two reasons:-

1. As the victim is sole eye witness, exclusion of his evidence defeats the ends of justice. Where is the only evidence available under the circumstances, rejection of it may result in injustice. The person, being no more in the world cannot be called in the Court to testify and other evidence is not available to help in determining the truth.
2. Declarations made by a person under expectation of death are presumed to be true.

1. In English law, a dying declaration is relevant only in criminal cases where the cause of death is in question“. In Indian law such statements are admissible both in civil and criminal proceedings; they are admissible even if the trial is not for a person’s death.
2. In English law, the dying declaration is admissible only in the single instance of homicide i.e. murder or manslaughter. In Indian law, cases of ‘suicide' are also covered.
3. In English law, to be relevant, a dying declaration must have been made in expectation of death. A declaration made without appreciation of immediate or impending death would not be admitted. In Indian law, there is no such requirement. If the person giving declaration has in fact died and the statement explains the circumstances surrounding his death, the statement will be relevant even if no cause of death had arisen at the time of the making of the statement.
4. In English law, it is necessary that the deceased should have completed his statement, before dying. In Indian law, if the deceased has narrated the full story, but tails to answer the last formal question as to “what more he wanted to say”, the declaration can be relied upon.

The recording of dying declaration can be done by 4 categories of persons:-

A dying declaration is to be recorded by Magistrate, who is also required to ascertain whether the victim is in a condition to record his/ her statement. There is no particular law that necessitates that a declaration can only be recorded by a magistrate.

It was said that a dying declaration made before a Judicial Magistrate has a higher evidentiary value. The Judicial Magistrate is presumed to know how to record a dying declaration. He is a neutral person.

A doctor is required to provide a fitness certificate to support the findings. However even with the absence of the fitness certificate, the declaration can still be considered reliable and truth worthy, given the victim was in a fit condition to make the statement. Wherein a dying declaration was recorded by a doctor in the form of question and answers in the presence of another witness, it was held that it was sufficient to convict the accused.

A clear and corroborated declaration cannot be rejected on the grounds that were recorded by a police officer. The Court is more cautious when they review dying declaration recorded by police officers. Where an injured person lodged the F.I.R. and then died, it was held to be relevant as a dying declaration.

A dying declaration recorded by police alone is relevant under Section 32 (1), however, it is better to leave such a statement out of consideration unless the prosecution satisfies the court as to why it was not recorded by a magistrate or a doctor. Only because certain names were included in F.I.R but were not mentioned in dying declaration docs not detract from the value of dying declaration and would not by itself prove the falsity of the declaration.

In a matter of dowry death, dying declaration cannot be rejected simply on the grounds that it was made to a relative. The Court is more cautious when they review such declaration.

It can be in written or verbal or in form of gestures and signs. A dying declaration recorded in the language of the declarant, increases the value of the evidence. Further, a dying declaration can be in form of question and answer or in the form of narration. A dying declaration is not complete if it does not reveal the relevant facts, names of the accused and circumstances leading to the death of the victim. Notes from the diary of the deceased can also be considered dying declaration if they refer to the transaction leading to her death or cause of her death, For example: - diary of a women who committed suicide due to cruelty.

The court cannot reject any dying declaration on the basis of the language. It can be recorded in any language Beat it Hindi, English, Urdu, Punjabi, Assamese etc. If this statement is in other language than the one which magistrate recorded then the precautions should be taken. meaning there why where is statement was in Hindi and the magistrate recorded in English but the precaution was taken in explaining every statement to the disease by the another person, it was held that this statement was the valid dying declaration. The only thing that should be taken care of is that it must be functioning as a piece of evidence with proper identification.

In Nirbhaya case 2013, a bench of justice Deepak Mishra, R Banumathi and Ashok Bhushan said a dying declaration should not necessarily be made by words or in writing and it could be through gestures. Not just words but even gestures can be made admissible in court now.

In this case, the throat of the deceased girl was cut and she being unable to speak indicated the name of the accused by the signs of her hand, this was held to be relevant as dying declaration and it was concluded that if an injured person is incapable of speaking, he may make his dying declaration in form of gestures and signs.

When the dying declaration is produced in the court as evidence the court must be satisfied that the dying declaration is not as a result of either tutoring or imagination of the dying man. The court must be satisfied that the dying declaration was given voluntarily and that the deceased was in a fit state of mind. If a dying declaration is found to be reliable then there is no need for corroboration conviction can be made on that basis alone.

It was said that the recording will have to be done in the by the deceased himself and tit should not be the dictation of someone else as this will create suspicion on the reliability of the evidence.

Guidelines given by the Supreme Court:

1. It is for the court to see that dying declaration evokes full self assurance as the maker of the dying declaration is no longer available for cross-examination.
2. Court satisfy that there was no opportunity of tutoring or prompting.
3. Certificate of medical doctor ought to point out that sufferer was once in a healthy state of mind. Magistrate recording his very own satisfaction about the healthy mental situation of the declarant was not acceptable specially if the physician was available
4. Dying assertion be recorded via the government magistrate & police officer to record the dying statement only if circumstance of the deceased was so precarious that no other alternative was left.
5. Dying declaration may additionally be in the shape of questions & answers & answers being written in the phrases of the man or woman making the death declaration. But courtroom cannot be too technical.

For admissibility of dying declaration, the following conditions are to be satisfied.

Dying declaration to be admissible, when the declarant dies. If the declarant survives, it is not admissible under Section 32(1). The death need not occur immediately after the making of the statement. If the person making the declaration chances to live, his statement is inadmissible as a ‘dying declaration’, but it might be relied on under Section 157 to corroborate his testimony or to contradict him under Section 145. Further, it can he used to corroborate the evidence in court under Section 6 and Section 8. The fact that the person is dead must be proved by the person proposing to give evidence of his statement. Further, the deceased must be proved to have died as a result of injuries received in the incident. Where A made a statement shortly after an injury, and he was admitted in hospital and thereafter discharged, but after 5 days he died of high fever, the statement made by him is not admissible under Section 32(1).

The interval between the time of death and the statement is immaterial. If there is nothing to show that the death is caused by the injuries regarding which the deceased gave his statements then those are not admissible as dying declaration.

In this case, dying declaration was recorded by the Judicial Magistrate. But, the declarant survived. It was held that the statement/declaration could not be used under Section 32, but it could be used to corroborate his evidence under Section 157 of the Evidence Act.

The statement must relate to the cause of his death or circumstances of the case resulting in his death. Statements which relate to cause or circumstances not responsible for his death are not admissible as dying declaration under the Clause (1) of Section 32. If the statement made by the deceased does not relate to his death, but to the death of another person, it is not relevant.

For example, where the wife made a statement that her husband is killed by Z and then she committed the suicide.

In this case, a married woman had been writing to her parents and other relatives about her critical condition at the hands of her in-laws. She lost her life some four months later. Her letters were held to be admissible as dying declaration. The court also pointed out that Section 32 (1) is applicable to cases of ‘suicide’ also. Thus, the statements made before a person has received any injury or before the cause of death has arisen or before the deceased has any reason to anticipate of being killed are relevant as dying declarations, but such statements should have a direct relation to the cause or occasion of death.

The statement as to cause of the death of the deceased person will be relevant only if the cause of his death is in question. For example: - X and five other persons were charged with having committed a dacoity in a village. X, who was seriously wounded while being arrested, made before his death a dying declaration as to how the dacoity was committed and who had taken part in it, the declaration made by X, is not admissible in evidence.

If the deceased fails to complete the main sentence (as tor instance, the genesis or motive for the crime), a dying declaration would be unreliable. However, if the deceased has narrated the full story, but fails to answer the last formal question as to “what more he wanted to say”, the declaration can be relied upon. A dying declaration ought not to be rejected because it does not contain details or suffers from minor inconsistencies. Merely because it is a brief statement, it is not to be discharged.

When a dying declaration was given to multiple people (such as the doctor, police, parents etc.) then each of the dying declarations will have to be consistent with each other or otherwise the dying declaration will not be admissible. If there are multiple dying declarations with inconsistencies pertaining to relevant facts of the case, cause of death, factor leading to the death of the accused or name and identities of the accused would lead to rejection of the declaration.

The admissibility of statement under Section 32 is based on the assumption that the maker of the statement was competent to take oath as a witness. A dying declaration of child is inadmissible.

The exceptions of ‘Dying declaration’ stipulate that where the statements made by way of demise folks are not admissible:

1. If the reason of demise of the deceased is no longer in question. If the deceased made declaration before his demise something except the reason of his death, that announcement is now not admissible in evidence.
2. If the declarer is no longer a competent witness, declarer ought to be competent witness. A dying declaration of a child is inadmissible.
3. Inconsistent & Incomplete declaration: Inconsistent & incomplete dying declaration is no evidentiary value. If the declaration does not state the reason or person behind death then it is of no value.
4. Uninfluenced declaration: it ought to be stated that death announcement must not be under impact of any one.
5. Untrue declaration: it is perfectly permissible to reject a part of dying declaration if it is observed to be untrue & if it can be separated.
6. Contradictory statements: if a declarant made more than one death declarations & all are contradictory, then those all declarations lose their value.

Dying declaration can only be taken into consideration when it is

1. Recorded by a competent magistrate (with certain exception),
2. The said statement must be recorded in the exact words,
3. There must not be any scope of influence from the third party, and hence the declaration must be made soon after the incident that is the reason of the death,
4. There must not be any ambiguity regarding the identity of the offender or cause of death.

It is very important to note that such a statement must not be made under the influence of anybody or it must not be given by promoting or tutoring. In case there is such a suspicion, then such dying declaration needs evidence to corroborate.

(This case is generally read for understanding dying declaration and admissibility of evidence under section 162 of Cr.P.C.) This is an appeal case against the judgment of the High Court of Patna where the appellant was convicted for the murder of one Kurree Nukaraju and was sentenced to death.

The accused’s wife had taken some money from the deceased a year ago in 1936. On 20th March 1937, the deceased received a letter inviting him to come to Berhampur for collecting his dues but the letter was unsigned. There was a general suspicion that the letter was sent by the accused’s wife but the judge was not satisfied with the handwriting evidence that was given. The deceased set for Berhampur but he never came back. His body was found on 23rd March 1937 from a passenger train in Puri in an unclaimed trunk in seven pieces. The post-mortem report confirmed that its murder.

During the investigation, it was found that the trunk was bought on behalf of the accused. Evidence was given by the washerman of the accused who bought it on behalf of the accused and also by the shop-keeper who sold the trunk.

A number of questions arose in this case:

1. Whether the statement of the deceased’s wife that the deceased told him that he was going to collect his dues from the accused’s wife will be treated as a dying declaration or not?
2. Whether the statements given by the accused’s during the investigation will be protected under section 162 of CrPC or not?

The Judgment was given by a 5-judge bench of the Privy Council and it was delivered by J. Atkin.

Re, 1st Issue: In this issue, a variety of questions arose, previously it was suggested that the statement must be made after the transaction has taken place and the person making the statement must be in a near-death situation.

In the present case, the lordships declared that the natural meaning of the words of section 32(1) of the Indian evidence act does not convey any such limitations.

The statement may be made before the cause of death has arisen or even before the deceased had any reason to anticipate getting killed but the circumstances must be circumstances of the transaction and any general expression of suspicion or fear from any individual or otherwise that is not directly related to the case will not be admissible.

The circumstances must have some proximate relation with the actual occurrence.

In the present case, the cause of the deceased’s death comes into question. Here the transaction is the one when the deceased was murdered on 21st or 22nd March and his body was found to be in a trunk which was proved to be bought on behalf of the accused, in this case the statement made by the deceased on 20th and 21st march that he was going to a meet the accused’s wife who lived in the same house as that of the accused appears clearly to be a statement that is in relation to the circumstances of the transaction which caused the death of the deceased.

Therefore, the statement was said to be was rightly admitted.

Re, 2nd Issue: Another issue that was discussed in this case was whether the statements made by the accused to the police before his arrest was admissible as evidence. The lordships referred to various case laws in this regard and ultimately came to the conclusion that the statement made by a person during the investigation will not be admissible as evidence in court even if the statements are made by the person who is ultimately the accused and such statements are protected under section 162 of Cr.P.C.

In this case, the Lordships gave detailed reasoning with regard to the decision on the second issue.

1. The lordships reasoned that in section 162 of Cr.P.C. the mention of the words “any person” would mean each and every person giving their statement. During an investigation, many people are suspected to be the accused and all of them may have to give their statements. The fact that the section prohibits the signing of the recorded statements should essentially mean that the section should be applicable to the accused person also.
2. It was also stated that if the intention of the legislature was otherwise or if they’re meant to be an exception, then it can be safely expected that the it would be expressed in the section. In this case, the lordships could not see any reason for departing from the plain meaning of the words used in the section.
3. Section 25 of the evidence act also supports the decision. Section 25 says that no confessions made to a police officer shall be proved against an accused person. In addition to this reference to sections, 26 and 27 were also given.

Held: The appeal was dismissed by the Privy Council.

In this case, the court said that corroboration after a dying declaration is only a matter of prudence. Justice Dr. Arijit Pasayat gave 11 points in Para No. 6 of this judgment, on the basis of which conviction of an accused can be done by Dying declaration:

1. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
2. If the Court is satisfied that the dying declaration is true and voluntary it can base a conviction on it, without corroboration.
3. The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
4. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
5. Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected.
6. A dying declaration which suffers from infirmity cannot form the basis of conviction.
7. Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected.
8. Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
9. Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
10. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
11. Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted.

The Supreme Court observed that merely because the deceased had suffered 100% burn injuries, it cannot be said that he/ she was incapable to make a statement which could be acted upon as dying declaration.

The contention taken in this case was that the victim had suffered 100% burns and he was already in critical condition and further to that, his condition was regularly deteriorating. It was contended that in such a critical and deteriorating condition, he could not have made proper, coherent and intelligible statement. The accused in this case were held guilty of causing death of Sher Singh by putting him on fire.

Rejecting this contention, the bench of Justice AM Khanwilkar and Justice Dinesh Maheshwari observed thus: “Irrespective of the extent and gravity of burn injuries, when the doctor had certified him to be in fit state of mind to make the statement; and the person recording the statement was also satisfied about his fitness for making such statement; and when there does not appear any inherent or apparent defect, in our view, the dying declaration cannot be discarded. Contra to what has been argued on behalf of the appellants, we are of the view that the juristic theory regarding acceptability of statement made by a person who is at the point of death has its fundamentals in the recognition that at the terminal point of life, every motive to falsehood is removed or silenced. To a fire victim like that of present case, the gravity of injuries is an obvious indicator towards the diminishing hope of life in the victim; and on the accepted principles, acceleration of diminishing of hope of life could only obliterate the likelihood of falsehood or improper motive. Of course, it may not lead to the principle that gravity of injury would itself lead to trustworthiness of the dying declaration. As noticed, there could still be some inherent defect for which a statement, even if recorded as dying declaration, cannot be relied upon without corroboration. Suffice would be to observe to present purpose that merely for 100% burn injuries, it cannot be said that the victim was incapable to make a statement which could be acted upon as dying declaration.”

In year 2018, Hon’ble Supreme Court acquitted a convict by setting aside the judgment of the High Court of Chattisgarh which had convicted her for murder, after finding lacunae in the dying declarations.

In case the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make the statement and if there are no suspicious circumstances, the dying declaration may not be invalid solely on the ground that it was not certified by the doctor. Insistence for certification by the doctor is only a rule of prudence, to be applied based on the facts and circumstances of the case. The real test is as to whether the dying declaration is truthful and voluntary“.

In December 2019, Delhi High Court held that a dying declaration would simply not become unreliable, just because it was recorded by an Executive Magistrate instead of a Judicial Magistrate. Challenging the order of the conviction as recorded by the trial court, the counsel of the accused raised following issues:

1. The dying declaration can't be accepted as voluntary, as at the stage of recording of the statement, the victim was under the influence of drug called 'Fortwin', which materially affected her mental state.
2. The dying declaration can't be relied upon as it was recorded by an Executive Magistrate, instead of a Judicial Magistrate, which is in violation of Chapter 13A of Delhi High Court Rules.

The court rejected the first claim of the appellants by relying upon the post mortem report, MLC as well as the statement of the medical practitioner.

The medical practitioner has stated that at the time of recording of the declaration, the victim was fit to give a statement.

Moreover, the medical reports reflect that the statement was recorded more than 24 hours of administering the said drug. Therefore, the argument of victim not being in a proper mental state is refuted. On the second issue of the dying declaration being recorded by an Executive Magistrate, the court noted that: 'The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.'

• Adv. Abhishek Gupta (Natraj Legal Solutions)
• Delhi High Court
• Ph: 9999052336,8700521407
• E-mail: adv.abhishek3995@gmail.com