The Significance and Procedure of Recording a Dying Declaration

In criminal trials, witnesses are the backbone of prosecution. But what happens when the only witness to a crime is the victim themselves – and they don’t survive to testify? This is precisely where a dying declaration steps in. It is the last statement of a person who dies under suspicious or violent circumstances, and Indian law treats it as one of the most potent forms of evidence available in court. Far from being a mere procedural formality, a dying declaration can, by itself, determine whether an accused is convicted or acquitted.

What is a dying declaration? 🔗

A dying declaration is a statement – oral, written, or even conveyed through gestures – made by a person regarding the cause of their death or the circumstances that led to it. The term is derived from the Latin phrase leterm mortem, meaning “words said before death.” In legal parlance, it is rooted in the maxim nemo moriturus prasumitur mentiri – a person on the verge of death is presumed not to lie. The logic is straightforward: when all hope of survival is gone, the motivation to fabricate a story largely disappears.

Under Indian law, the provision governing dying declarations has historically been Section 32(1) of the Indian Evidence Act, 1872. With the introduction of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaces the old Evidence Act, the same concept is now addressed under Section 26(a) of the BSA. The substance of the law, however, remains the same: a statement made by a deceased person about the cause or circumstances of their death is admissible as evidence whenever the cause of that death comes into question before any court.

Why is a dying declaration an exception to the hearsay rule? 🔗

One of the foundational principles of evidence law is that hearsay – a statement made outside the court, by someone not being examined – is generally inadmissible. Courts prefer direct, first-hand testimony that can be tested through cross-examination. A dying declaration is technically hearsay because the person who made it cannot be present in court to be questioned. Yet, Section 26(a) of the BSA carves out an explicit exception to this rule. The justification is that the gravity of impending death itself acts as a substitute for the oath taken in a courtroom. As the Supreme Court noted in Sher Singh v. State of Punjab (2008), the acceptability of a dying declaration is greater precisely because it is made in extremity – when a person is on the verge of death, there is rarely any motive to tell a falsehood.

Crucially, Indian law is broader than its English counterpart in this regard. Under English law, a dying declaration is only admissible in homicide cases, and the declarant must have been under an expectation of death at the time of making it. Indian law imposes neither of these conditions. The declarant need not have believed their death was imminent, and the statement is admissible in both criminal and civil proceedings, wherever the cause of death is in question.

Essential elements of a valid dying declaration 🔗

Not every statement made before death qualifies as a dying declaration. Courts insist on a clear set of requirements before treating such a statement as admissible evidence.

The declarant must subsequently die 🔗

This is a non-negotiable condition. A dying declaration is only relevant if the person who made the statement actually dies. If the person survives, the statement cannot be treated as a dying declaration – though it may still be used as other forms of evidence, such as a prior statement under the BSA. As observed in Ramprasad v. State of Maharashtra, if a person making a dying declaration survives, their statement cannot be admitted under Section 26 of the BSA.

The statement must relate to the cause of death 🔗

The declaration must concern the cause of the declarant’s death or the circumstances of the transaction that resulted in it. General statements about fear, suspicion, or unrelated matters do not qualify. The connection to the death must be direct and proximate. This was established as far back as the landmark Privy Council decision in Pakala Narayana Swami v. Emperor (1939), where it was held that while circumstances of the transaction are included, general expressions of fear not related to the occasion of death will not be admissible.

The declarant must be in a fit mental state 🔗

Courts pay very close attention to whether the person making the declaration was mentally fit and conscious at the time. A dying declaration made by someone who was unconscious or delirious carries no legal weight. In most cases, a medical certificate of fitness is obtained from the attending doctor before the declaration is recorded. Importantly, where an eyewitness confirms the declarant was fully conscious and coherent, medical opinion to the contrary may not override that finding.

The statement must be voluntary 🔗

Courts will reject a dying declaration that appears to have been made under coercion, tutoring, or prompting. The Supreme Court in multiple judgments has held that if a dying declaration is voluntary, credible, and consistent, it carries substantial sanctity and can form the sole basis of conviction without any corroboration. As observed in the case of Rekha v. State (cited by the Supreme Court in a dowry death matter), a declaration meeting these standards has full probative force.

Who can record a dying declaration? 🔗

There is no rigid rule specifying who must record a dying declaration for it to be admissible. A judicial magistrate is considered the ideal person to record it, and a declaration recorded by a magistrate in question-and-answer format carries the highest evidentiary weight. However, if a magistrate cannot be reached in time due to the deteriorating condition of the declarant, anyone – a police officer, a doctor, a family member, or even a bystander – can record it. The key is that the declaration is reliable, voluntary, and made by a person who was mentally fit.

That said, the credibility of the recorder matters. A declaration recorded by a police officer is admissible but subject to greater scrutiny for possible bias. A doctor’s recording is considered more neutral. A family member’s recording, while valid, is examined closely for potential influence. The person who records the declaration is called the “scribe.”

Procedure for recording a dying declaration 🔗

While there is no single prescribed format under the BSA, courts have over decades laid down best practices that greatly strengthen the evidentiary value of a dying declaration.

Step 1: Obtain a fitness certificate from the doctor 🔗

Before the recording begins, the attending doctor must certify that the injured person is conscious and mentally capable of making a coherent statement. This certificate is a critical prerequisite, especially when the declaration is being recorded by a magistrate. It ensures that the statement is not made under the influence of medication or in a state of delirium.

Step 2: Record in the absence of the police (if by magistrate) 🔗

When a magistrate records the declaration, it is advisable to do so without the police present. This prevents any perception of coercion or coaching by investigating officers, safeguarding the voluntariness of the statement.

Step 3: Use question-and-answer format wherever possible 🔗

While no format is mandatory, the question-and-answer method is strongly preferred. It records exactly what was asked and what the declarant said in response, leaving little room for ambiguity. A narrative form is equally valid, and in some cases may feel more natural – but the Q&A format is the gold standard in court.

Step 4: Record in the declarant’s own language 🔗

The declaration should be recorded in the language in which the injured person speaks most comfortably. Courts cannot reject a dying declaration solely on the basis of the language used. The goal is accuracy – to capture exactly what the person said, not what the recorder understood or paraphrased.

Step 5: Obtain signature or thumb impression 🔗

Once the statement is recorded, the declarant’s signature or thumb impression should be obtained wherever possible. While this is not strictly mandatory, it significantly strengthens the declaration’s authenticity and reduces the scope for subsequent challenges.

Step 6: Send the declaration to court via special messenger 🔗

Once recorded, the dying declaration should be sealed and sent directly to the court through a special messenger. It must not be handed over to the police or left unsecured, as this could compromise its integrity as evidence.

Forms of dying declaration 🔗

A dying declaration does not have to be spoken aloud. Indian courts have consistently held that a declaration made through gestures, nods, hand movements, or even eye signals is perfectly valid. In the landmark case of Queen Empress v. Abdullah, a woman whose throat had been slit was unable to speak. She communicated through gestures, and the court accepted her declaration as admissible evidence. Similarly, in Laxman v. State of Maharashtra (2002), the Supreme Court upheld a declaration made by a burn victim who could not speak, affirming that the medium of communication does not determine its legal validity – the key is that the declarant was able to convey their meaning clearly.

A dying declaration can also take the form of a written note, an FIR lodged by the victim before death, a suicide note, or even a history recorded by a doctor in the patient’s medical file. The Supreme Court has held that an FIR recorded from a victim who subsequently dies can be treated as a dying declaration, provided it relates to the cause of their death.

Evidentiary value and corroboration 🔗

One of the most significant aspects of dying declarations in Indian law is that they can stand alone as the sole basis for conviction. In the foundational case of Khushal Rao v. State of Bombay (1958), the Supreme Court firmly settled that there is no absolute rule requiring a dying declaration to be corroborated by independent evidence before it can sustain a conviction. Each case must be evaluated on its own facts. If the court is satisfied that the declaration is true, voluntary, and made by a person in a fit state of mind, it can convict the accused on that basis alone.

That said, corroboration is still advisable when the declaration appears incomplete, inconsistent, or where there are doubts about the mental state of the declarant at the time of recording. Where there are multiple dying declarations – such as one recorded by the police and another by the magistrate – courts must analyse each one and determine which, if any, should be relied upon. Contradictions between multiple declarations do not automatically invalidate them; minor inconsistencies are considered natural and do not necessarily undermine the core statement.

Dying declarations in dowry death cases 🔗

Dying declarations have particular significance in cases involving dowry deaths and domestic violence. These are situations where the crime often takes place behind closed doors, leaving the victim as the only available witness. A bride who is set on fire and later makes a statement naming her husband or in-laws has provided evidence that is difficult to dismiss. Courts have repeatedly relied on dying declarations in such cases to secure convictions, even without corroborating witnesses, provided the declaration was clearly and voluntarily made.

Key limitations and grounds for rejection 🔗

A dying declaration is not infallible. Courts will not act upon it in several circumstances. If the declarant was unconscious at the time and incapable of making any statement, any purported declaration must be rejected. If the court finds that the statement was the product of tutoring, coaching, or external pressure, it loses its probative value. An incomplete declaration – where the person could not finish due to deteriorating health – may require corroboration before a court relies on it. And if the prosecution’s version of events is in direct conflict with what the dying declaration states, the declaration ordinarily cannot be used to support that version of events. The court must carefully scrutinise every dying declaration to rule out the possibility that it was the result of imagination, bias, or improper recording.

What do you think? If a dying declaration is made to a family member under rushed circumstances – without a doctor’s fitness certificate or a magistrate’s presence – should courts adopt a stricter threshold before relying on it for conviction? And given the growing prevalence of video-recording technology, should India mandate audio-visual recording of all dying declarations to strengthen their reliability in court?

References

1. https://www.writinglaw.com/dying-declaration-under-evidence-act/
2. https://www.mha.gov.in/sites/default/files/2024-04/250882_english_01042024_0.pdf
3. https://www.drishtijudiciary.com/current-affairs/principles-of-dying-declaration
4. https://blog.ipleaders.in/dying-declaration-2/
5. https://lawbhoomi.com/evidentiary-value-of-a-dying-declaration/
6. https://www.legalbites.in/amp/bharatiya-Sakshya-adhiniyam//dying-declaration-under-bharatiya-sakshya-adhiniyam-2023-1116247
7. https://www.drishtijudiciary.com/to-the-point/bharatiya-sakshya-adhiniyam-&-indian-evidence-act/dying-declaration
8. https://lawgicalshots.com/dying-declaration-under-bharatiya-sakshya-adhiniyam-2023/
9. https://www.myjudix.com/post/dying-declaration-under-bsa-bharatiya-sakshya-adhiniyam-notes
10. https://www.legalserviceindia.com/Legal-Articles/dying-declarations-under-bharatiya-sakshya-adhiniyam-2023-legal-provisions-case-law-and-evidentiary-value-in-criminal-trials/