Dying Declaration

What is a 'Dying Declaration'?

A dying declaration is a statement made by a declarant, typically someone unable to testify in court due to their death, explaining the cause or circumstances of their death. The principle behind admitting dying declarations is rooted in the maxim nemo moriturus praesumitur mentiri—"no one meets their maker with a lie". The assumption is that, under the shadow of death, individuals are more likely to speak the truth rather than lie to harm or protect others. The statement will be relevant in every case or proceeding in which the cause of that person's death comes into question.

Official Definition of 'Dying Declaration'

Term as Defined in Legislation(s)

Section 32(1) of the Indian Evidence Act of 1872 (IEA):

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 unreasonable delay or expense, are relevant when the statement is made as to the cause of death or as to any of the circumstances of the transaction which resulted in death.

Section 26(a) of the Bharatiya Sakshya Adhiniyam of 2023(BSA):

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 expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases, namely:—

(a) 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.

These statements are admissible even if the declarant did not anticipate their death when making them, provided the statement relates to the cause or circumstances leading to their death.

The Criminal Rules of Practice

The process of recording dying declarations is an essential legal procedure aimed at preserving a victim’s final statement regarding the circumstances leading to their death. Both Tamil Nadu and Andhra Pradesh follow a structured approach to ensure the reliability and admissibility of such declarations. However, while their fundamental principles remain similar, Tamil Nadu has implemented more detailed procedural safeguards compared to Andhra Pradesh’s relatively streamlined process.

Common Principles in Both States

In both Tamil Nadu and Andhra Pradesh, the primary purpose of recording a dying declaration is to establish the cause of death or the events leading up to it. The Magistrate recording the declaration is required to disclose their identity to the declarant before proceeding, ensuring transparency. Mental fitness of the declarant is a crucial consideration, and the Magistrate must confirm that the individual is in a sound state of mind to provide a coherent statement. This is typically done by asking simple questions and recording the declarant’s responses, signs, or gestures. When feasible, a medical officer’s certificate regarding the declarant’s mental condition should be obtained to further substantiate the reliability of the statement.

Both states also mandate that the dying declaration should be recorded as closely as possible in the declarant’s own words, preserving the authenticity of their account. The Magistrate should attempt to gather any information that can help identify the accused or other persons involved. Once the statement is recorded, it must be read back to the declarant to confirm its accuracy. If possible, the declarant should sign or provide a thumb impression on the document, followed by the Magistrate’s signature to authenticate the record. Additionally, police officers are strictly prohibited from being present before or during the recording of the dying declaration, ensuring that there is no undue influence on the declarant.

Tamil Nadu’s Detailed Procedural Safeguards

Tamil Nadu has established a more structured approach to recording dying declarations, incorporating several procedural safeguards. One of the key features of Tamil Nadu’s system is the nomination of Magistrates specifically tasked with recording dying declarations. The Chief Judicial or Metropolitan Magistrate is responsible for selecting these officials, and their names are publicly displayed on the court notice board. In emergency situations, however, any available Magistrate can record the declaration, even if they are not among those specifically nominated.

Further, Tamil Nadu’s rules emphasize the exclusion of relatives from the process, preventing potential influence on the declarant’s statement. Once the declaration is recorded, the Magistrate must create two photocopies, certify them, and distribute them accordingly. The original document is then sealed and sent to the jurisdictional court through a special messenger or registered post, ensuring its security. Additionally, a certified copy is provided to the Investigating Officer, albeit with restrictions on its public disclosure. Tamil Nadu also requires that one certified photocopy be stored securely in a sealed cover under the custody of the Magistrate.

Another distinctive aspect of Tamil Nadu’s process is its provision for language barriers. If the Magistrate does not understand the declarant’s language, they may engage a translator or utilize electronic recording methods to ensure accurate documentation. Finally, upon completing the process, the Magistrate is required to make an official entry in Judicial Form No. 11, maintaining a formal record of the declaration.

Andhra Pradesh’s Simplified Approach

In contrast, Andhra Pradesh follows a less intricate procedure without additional administrative steps. Unlike Tamil Nadu, there is no requirement for the nomination of specific Magistrates, meaning that any Magistrate can record a dying declaration without prior designation. Similarly, there is no explicit mention of emergency provisions, though it is generally assumed that any Magistrate available at the time can undertake the process. Andhra Pradesh’s rules do not include restrictions on the presence of relatives, focusing solely on excluding police officers.

The state also lacks specific requirements regarding photocopying, certification, or secure storage of the dying declaration. There is no mandate for sending the original statement in a sealed cover through a special messenger or registered post, nor is there a requirement to provide a certified copy to the Investigating Officer. Furthermore, Andhra Pradesh does not specify the need for a translator or electronic recording if the declarant speaks a language unknown to the Magistrate. Additionally, there is no formal requirement for making entries in a judicial form after completing the recording. This contrast highlights the variation in procedural rigor among Indian states while maintaining the overall integrity of the dying declaration process.

Model Police Manual

Under the Model Police Manual, a dying declaration may be recorded by any individual, though it is preferable for a Magistrate to document it whenever possible. If a Magistrate is unavailable, the responsibility may fall on a medical professional, and in their absence, the investigating officer may record the statement in the presence of a witness. Even if a dying declaration is made to a police officer, it remains admissible in court, as its evidentiary value is not negated by Section 162 of the Code of Criminal Procedure (Cr.P.C.). Additionally, an oral declaration made in the presence of any individual can be introduced as evidence through the testimony of that person. However, for the statement to be legally recognized as a dying declaration, the declarant must ultimately succumb to their injuries. If the individual survives, a declaration made before a Magistrate or any non-police authority can serve to corroborate their testimony in court. Conversely, if the statement was provided to a police officer, it will be treated as a statement under Section 161 of the Cr.P.C.

The preferred format for recording a dying declaration is through a structured question-and-answer method, ensuring that the declarant’s exact words are transcribed verbatim. Whenever possible, the declarant should be asked to sign the statement. If they are unable to sign due to illiteracy or physical incapacity, a thumb impression should be obtained instead. In cases where the declarant dies before signing or affixing their thumb impression, the declaration remains valid, provided a note is included explaining the reason for the absence of a signature or impression.

When a declarant is in critical condition and unable to communicate verbally, but is capable of responding through gestures or movements of the head or hands, the individual documenting the declaration must meticulously record the exact nature of these non-verbal cues. Prior to recording the statement, the person documenting it must also confirm the declarant’s mental fitness to provide a statement. When feasible, a medical officer should certify the declarant’s mental state.

Though incomplete dying declarations are not inherently inadmissible, they must demonstrate that the declarant was conscious and capable of making a meaningful statement at the time. Even if the declarant was unable to complete their response due to their deteriorating condition, any portion of the statement provided with clarity and intent may be admitted as evidence, provided it is neither vague nor ambiguous. Additionally, a dying declaration can form the basis for registering a First Information Report (FIR), further reinforcing its significance in legal proceedings.

Term as Defined in Official Government Report(s)

The Law Commission of India’s 69th Report, 1977(The Indian Evidence Act, 1872)

The 69th Report made two main recommendations regarding Section 32(1), which deals with dying declarations-

First Recommendation:

• Proposed adding an Explanation to make statements relating to the death of others also admissible (not just statements about one's own death.

• Reasoning: The Report argued that since the words 'transaction' and 'circumstances' should be construed widely, and since a dying person is likely to speak the truth, this logic should apply equally to statements about others' deaths.

Second Recommendation:

• Proposed dropping the words "whether or not the person who made it was under expectation of death" from the clause.
• Reasoning: The Report relied on the English case R. v. Woodcock (1789), which required that the maker of the statement must be 'on the point of dying'.
• The Report disagreed with the 1871 Select Committee's view that whether a statement was made in contemplation of death should affect the weight of the evidence rather than its admissibility.

The Law Commission of India’s 185th Report, 2003 (Review of the Indian Evidence Act, 1872)

The 185th Law Commission Report rejected both recommendations of the 69th Report regarding Section 32(1), grounding its position in several landmark judicial decisions:

1. On Statements About Death of Others: The Commission firmly rejected extending Section 32(1) to include statements about others' deaths, primarily based on Ratan Gond v. State of Bihar. In this case, the Supreme Court explicitly held that the words 'his death' in Section 32(1) are unambiguous and statements by a dying person regarding another person's death are inadmissible. This decision was supported by earlier High Court decisions in In re Peria Chelliah Nadar and Kappanaiah v. R.
2. On Expectation of Death: The Commission strongly defended retaining the phrase "whether or not the person who made it was under expectation of death" based on a series of authoritative decisions:
   • Pakala Narayana Swami v. Emperor: The Privy Council explicitly held that dying declarations can be admissible even if "made before the deceased has any reason to anticipate being killed." This established that anticipation of death is not a prerequisite for admissibility.
   • Tehal Singh v. State of Punjab: Justice Chinnappa Reddy directly addressed this issue, stating: "Apart from the fact that S.32 of the Evidence Act does not require that a statement should be made in expectation of death...".
   • Sudhakar v. State of Maharashtra: A three-judge bench of the Supreme Court reviewed the law on dying declarations and reaffirmed the principle that statements need not be made in expectation of death to be admissible. However, they emphasized the importance of proximity between the statement and death.
   • Kansraj v. State of Punjab: This case also reinforced the same principle while emphasizing the proximity requirement.

The Commission also noted the contrast with English law, as exemplified in R v. Perry, where Lord Alverstone CJ established that English law requires a "settled hopeless expectation of death". Under English law:

• The declarant must have no hope of recovery, however slight
• Death must be imminent and impending, not merely deferred
• If these conditions are met, it doesn't matter if the person survives for days or weeks

The Report also addressed related developments in the contemporary jurisprudence, noting that the Supreme Court in State of UP v. Ramesh Prasad Misra had resolved an earlier conflict by holding that Section 32(1) should be interpreted broadly to include statements about motive behind the criminal act.

The Report concluded that given this consistent line of precedent, along with the clear statutory framework, there was no justification for altering Section 32(1) as suggested by the 69th Report. The existing provision has worked effectively within the Indian legal system and maintains an appropriate balance between admissibility and reliability of dying declarations.

Term as Defined in Case Law(s)

The Supreme Court has eloquently summarized the legal principles governing dying declarations in Kundanbala Subrahmanyam v. State of A.P., a position reaffirmed by R.C. Lahoti J. in Laxmi v. Omprakash. The Court emphasized that statements made by individuals at the brink of death carry exceptional weight, as a person facing imminent death is unlikely to fabricate information. The impending reality of death itself serves as an assurance of the truthfulness of such declarations regarding the cause or circumstances of their demise.

Dying declarations are thus regarded as highly credible evidence, and once they withstand judicial scrutiny, they become a crucial basis for conviction. If the Court determines that the statement is truthful and untainted by exaggeration, a dying declaration alone can be sufficient to establish guilt, without requiring corroboration. However, while such statements hold significant evidentiary value, courts must exercise caution, given that the declarant is unavailable for cross-examination. It is essential for the judiciary to ascertain that the statement was made voluntarily, without external influence, coaching, or vindictiveness.

Furthermore, before accepting a dying declaration, the Court must be convinced that the deceased was mentally fit to provide the statement. Once its authenticity is established—ensuring it was given freely and without external interference—the Court may rely on it for conviction without requiring additional supporting evidence. While seeking corroboration is generally advisable, it is a matter of judicial prudence rather than a strict legal requirement. This principle has been reiterated in cases such as Uka Ram v. State of Rajasthan, Tapinder Singh v. State of Punjab, and Dandu Laxmi Reddy v. State of A.P.

The Supreme Court in Rattan Singh v. State of H.P. has aptly elucidated the scope of Section 32(1) of the Indian Evidence Act. The phrase "circumstances of the transaction which resulted in his death" is of broader import than merely referring to the "circumstances which caused his death." A direct causal link between the circumstances and the death is not mandatory; rather, it suffices if the deceased's statement pertains to any circumstance connected to any aspect of the transaction culminating in death.

Furthermore, the requirement of proximity is not rigid—circumstances that are temporally or spatially distant may still be admissible under this provision, provided they bear a nexus with the transaction leading to the deceased’s death. Essentially, for a statement to be admissible under Section 32(1), it must be sufficiently or intrinsically linked to the transaction resulting in death, rather than being a mere remote or unrelated assertion.

In Moti Singh v. State of U.P, the Supreme Court of India propounded the thesis that when a person is not proved to have died as a result of the injuries received in the incident his statement cannot be said to be a statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death.

The Supreme Court in Kushal Rao v. State of Bombay clearly articulated the legal principles governing dying declarations as follows:

1. It is not an absolute rule of law that a dying declaration must be corroborated to serve as the sole basis for conviction.
2. The admissibility and weight of a dying declaration must be assessed on a case-by-case basis, considering the specific facts and the circumstances in which it was made.
3. A dying declaration is not inherently weaker than other forms of evidence; its evidentiary value is not to be diminished merely because the maker is unavailable for cross-examination.
4. It must be evaluated in the same manner as any other piece of evidence, considering the surrounding circumstances and applying established principles of evidentiary assessment.
5. A dying declaration recorded by a Magistrate in a question-and-answer format carries greater evidentiary weight due to its formal and structured nature.
6. To determine the reliability of a dying declaration, the court must consider factors such as the deceased’s opportunity to observe the incident (e.g., the presence of sufficient lighting at the scene), their ability to recall and narrate events accurately, the consistency of statements over time, and whether the declaration was made at the earliest opportunity without being influenced by interested parties.

Types of Dying Declaration

Oral and Written Declarations

• Oral declarations generally require corroboration due to their inherent limitations in terms of verification and cross-examination.
• Written declarations, especially those recorded by magistrates, carry higher evidentiary value.
• In Pakala Narayana Swami, the Privy Council accepted the deceased's oral statement about his intention to meet someone as a valid dying declaration, establishing that such statements can be admissible even when made before the deceased had any reason to anticipate death.

Gestures and Signs

• The law recognizes that a dying person who cannot speak may still communicate through gestures or signs.
• In Queen-Empress v. Abdullah, the court established that nodding the head or making signs in response to questions constitutes a valid verbal statement.
• This principle extends to situations where victims cannot speak due to their injuries (like a slit throat) but can still identify their assailant through gestures.

Communication Requirement

• While generally statements need not be communicated to be valid (as per Bhogilal Pandey v. State of Bombay), dying declarations are an exception.
• For dying declarations specifically, recording and communication are essential elements of admissibility.
• This requirement exists because the declarant is no longer available to verify the contents of the statement.
• The Supreme Court in Sahoo v. State of U.P. and Ajay Singh v. State of Maharashtra has emphasized this distinction for dying declarations

Question and Answer Format

• Dying declarations can be recorded in a question-and-answer format to capture the exact responses of the declarant.
• This format enhances reliability by providing context and clarity to the declarant's statements
• Even incomplete responses may be admissible if they contain essential information about the cause of death or circumstances.

Rules Governing Dying Declarations

First Opportunity Rule

A dying declaration must be recorded at the earliest opportunity to avoid manipulation. Courts have allowed delays if justified by the declarant’s medical condition. For instance, a two-day delay was excused in G.S. Walia v. State of Punjab, as the declarant was unfit to speak. Similarly, in State of Maharashtra v. H.K. Chanriwal, delays were assessed case by case, considering circumstances like recovery time.

Precision and Clarity Rule

The statement must be clear and precise, though brevity or omission of some details does not invalidate it. Declarants are expected to provide simple, straightforward accounts. This approach was upheld in Kishanlal v. State of Rajasthan, and Surajdeo Ojha v. State of Bihar.

Consistency Rule

In cases with multiple dying declarations, courts prioritize consistency. Minor variations may not affect reliability, but material discrepancies demand scrutiny. For example, in Paneershelvan v. State of Tamil Nadu, consistency across declarations was crucial, while R.V. Satyanandam v. P.P. Andhra Pradesh, highlighted the need to assess which statement reflects the true state of affairs.

Exclusion of Intervention Rule

Statements must be free from external influence or tutoring. Courts discard declarations that seem fabricated, particularly if they include improbable details given the declarant’s condition. For example, in Bakshish Singh v. State of Punjab, and Govt. of NCT Delhi v. Nitin G. Shah, any signs of tutoring or external influence led to the rejection of the declaration.

Fit Physical and Mental Condition Rule

The declarant must be in a fit state of mind. Medical certification is preferred but not mandatory if the recorder is satisfied about the declarant’s fitness. This was demonstrated in State v. Laxman, and Darshan v. State. However, declarations made without certification may face scrutiny unless corroborated by circumstances (Narendra Kumar’s Case).

Competency of Recording Dying Declarations

General Competency

The law does not restrict who can record a dying declaration; it can be addressed to any person, including a Magistrate, police officer, doctor, or even a family member. However, the person recording the declaration must ensure the declarant is in a fit mental and physical state to provide a reliable statement (Laxman v. State of Maharashtra; State of M.P. v. Dal Singh)​.

Magistrate's Role

A dying declaration recorded by a Judicial Magistrate holds higher evidentiary value due to the Magistrate’s independence and expertise in legal procedures (S.D. Koli v. State of Maharashtra). While it is not mandatory for declarations to be made before a Magistrate, their involvement adds credibility (Ravichander v. State of Punjab)​.

Police Officer's Role

A declaration recorded by a police officer is admissible, especially in emergencies where no Magistrate is available. For instance, in Bhagirathi v. State of Haryana, the statement recorded by a head constable on receiving a fitness certificate from a doctor was accepted. However, caution is required, and corroboration is often necessary to ensure credibility (Dilip Singh v. State of Punjab)​​.

Doctor's Role

Doctors, being independent and impartial, are considered credible recorders of dying declarations. Their involvement is justified when time is critical, such as when the declarant’s life is ebbing and there is no time to summon the police or a Magistrate (Sripatrao v. State of Maharashtra; AMA Rehman v. State of Gujarat)​​.

Family Members' Role

Declarations made to family members are treated with caution due to the risk of bias or fabrication. Courts have often discouraged reliance on statements recorded by private individuals, including relatives, unless corroborated (Dayal Singh v. State of Maharashtra)​​.

Comparative Perspective: Indian vs. English Law

Under English law, for a statement to be considered a dying declaration, the person making the statement must be in the expectation or anticipation of death. In contrast, Indian law does not require the declarant to be under the expectation of death at the time of making the statement for it to be admissible as a dying declaration (Inayat Khan v. Emperor; B. Sharda v. State of Maharashtra; Tahal Singh v. State of Punjab).

Additionally, English law restricts the admissibility of dying declarations to criminal charges related to homicide or manslaughter. On the other hand, Indian law permits the admissibility of such statements in both civil and criminal proceedings wherever the issue of death is involved. Under English law, a dying declaration is admissible only when death has occurred, whereas Indian law allows the use of a dying declaration even if the declarant survives. In such cases, the statement is not considered under Section 32 but under Section 157 of the IEA to corroborate the facts.

Furthermore, Indian law permits the admissibility of dying declarations in cases of suicide, a provision not available under English law (Kishan Lal v. State of Rajasthan).

Way Ahead

• Training for Magistrates and Officers: Proper training will ensure that dying declarations are recorded accurately and according to legal protocols.

• Standardized Recording Procedures: Implementing standardized protocols across jurisdictions will enhance the consistency and reliability of such declarations.