AMITY UNIVERSITY

AMITY LAW SHOOL

Law of Evidence (LAW351)

Assignment
On
Dying Declaration
Submitted to:
Submitted by:
Nagesh1

Ms. Aprajita Singh

Yash Vardhan
B.A., LL.B (HONS.)
Semester- V
Section- B
A8111114088

1 e-mail: yashvardhan.nagesh@student.amity.edu

-ACKNOWLEDGEMENTI take this opportunity to express my profound gratitude and deep regards to my respected
teacher and guide Ms. Aprajita Singh, Assistant Professor, Amity Law School for her
valuable guidance, scholarly inspiration, which she have extended to me for the successful
completion of this endeavour. Her efforts can be only better expressed by coming up to her
expectations.
I sincerely acknowledge the help rendered by the libraian of the Amity University, Whose
cordial relations helped me for successful completion of assignment.
I have thoroughly study on the topic Dying Declaration

Yash Vardhan Nagesh

B.A.,LL.B(HONS.) SEMESTER 5th

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-TABLE OF CONTENTS-INTRODUCTION-3
-MEANING OF DYING DECLARATION-______________________________________3
-CONTENT AND SCOPE-____________________________________________________4
-TYPOLOGY: FORMS OF STATEMENT-______________________________________6
-NATURE AND REQUISITES OF DYING DECLARATION-______________________7
-EVIDENTRY VALUE OF DYING DECLARATION-____________________________11
-RECORD AND THE PROOF OF DECLARATION-____________________________15
-CASE LAWS-_____________________________________________________________17
-CONCLUSION-___________________________________________________________20
-BIBLIOGRAPHY-_________________________________________________________21

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-INTRODUCTION"Nemo moriturus praesumitur mentire. No one at the point of death is presumed to lie. "A
man will not meet his Maker with a lie in his mouth" -- is the philosophy in law underlying
admittance in evidence of dying declaration. "A dying declaration made by person on the
verge of his death has a special sanctity as at that solemn moment, a person is most unlikely
to make any untrue statement. The shadow of impending death is by itself the guarantee of
the truth of the statement made by the deceased regarding the causes or circumstances leading
to his death. A dying declaration, therefore, enjoys almost sucrose not status, as a piece of
evidence, coming as it does from the mouth of the deceased victim. Once the statement of the
dying person and the evidence of the witnesses testifying to the same passes the test of
careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence
and if the Court is satisfied that the dying declaration is true and free from any embellishment
such a dying declaration, by itself, can be sufficient for recording conviction even without
looking for any corroboration"--is the statement of law summed up by the Supreme Court in
Kundula Bala Subrahmanyam v. State of A.P2. ,and reiterated in Laxmi v. Omprakash3 The
Supreme Court further added such a statement, called the dying declaration, is relevant and
admissible in evidence 'provided it has been made by the deceased while in a fit mental
condition'.
Dying declaration is admissible in evidence. A dying declaration, if found reliable, can form
the basis of conviction. A court of facts is not excluded from acting upon an uncorroborated
dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands
on the same footing as any other piece of evidence. It has to be judged and appreciated in the
light of the surrounding circumstances and its weight determined by reference to the
principles governing the weighing of evidence.

-MEANING OF DYING DECLARATIONIn laymans language, we can say that dying declaration is the statement made by a person
who is dying. But in legal sense it has got a different meaning. It is not that all the statements
2 Kundula Bala Subrahmanyam v. State of A.P. (1993) 2 SCC 684)
3 Laxmi v. Omprakash (AIR 2001 SC 2383.)
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made by a dying person can be termed as dying declarations. It is only that statement of the
deceased, which he made before his death and which shows the cause of death or the
circumstances leading to his death can be termed as dying declaration, provided the death of
that person comes in question before a judicial authority.
None of the language dictionaries define the word dying declaration jointly but the words
dying and declaration has been shown separately the literal meaning of which a declaration or
statement which is going to die. But if we go by these meanings the whole meaning of dying
declaration will loose its significance. Therefore this meaning cannot be assigned to the term
dying declaration.

-CONTENT AND SCOPEUnder common law, a statement made by a person on the point of death is admissible in
evidence even if it is hearsay. That is, if X told Y that Z had stabbed him, then if Y told a
court under oath what X had said, this may be admissible evidence against Z. The reason this
is acceptable, while other forms of hearsay are not, is that it is assumed that a person who is
dying, and knows this to be the case, is unlikely to lie. To be admissible, the declaration must
be made by a person who has a genuine believe that death is imminent. The believe need not
necessarily be reasonable, and he may subsequently recover. Of course, if he does then he
would be expected to testify himself.
It becomes relevant under section 32 (1) of the Evidence Act. It is an exception to the rule of
hearsay and makes admissible the statement of the deceased whether the death is homicidal
or suicidal provided the statement relates to the cause of death or exhibits circumstance
leading to his death. Greater solemnity and sanctity are attached to the words of a dying man
because a person on the verge of his death is not likely to tell lies or to concoct a case as to
implicate an innocent person but the court has to be on the guard against the statement of the
deceased being a result of either tutoring, prompting or a product of his imagination. The
court shall also be satisfied that the deceased was in a fit state of mind to make the statement
after he had a clear opportunity to observe and identify the assailants. Once the court is
satisfied about its authenticity and voluntariness, the court can found a conviction on the
basis thereof in the absence of any corroboration.
If the statement has been made when the deceased was under the expectation of death, it
becomes a dying declaration in evidence after her death. Nonetheless, even if she was
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nowhere near the expectation of death, still such statement would become admissible under
section 32(1) of the Indian Evidence Act, 1872; though not as dying declaration as such,
provided it satisfies one of the two conditions set forth in section 32(1) of the Act.
A dying-declaration not being a deposition in Court, neither made on oath nor in the presence
of the accused nor therefore not tested by cross-examination is yet admissible in evidence as
an exception to the general rule against the admissibility of hearsay. The admissibility is
founded on the principle of necessity. The weak points of a dying declaration serve to put the
court on its guard while testing its reliability and impose on the court an obligation to closely
scrutinize all the relevant attendant circumstances.4 One of the important tests of the
reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that
the deceased was in a fit state of mind and capable of making a statement at the point of time
when the dying declaration purports to have been made and/or recorded. The statement may
be brief or longish. It is not the length of the statement but the fit state of mind of the victim
to narrate the facts of occurrence which has relevance. If the court finds that the capacity of
the maker of the statement to narrate the facts was impaired or the court entertains grave
doubts whether the deceased was in a fit physical and mental state to make the statement the
court may in the absence of corroborate evidence lending assurance to the contents of the
declaration refuse to act on it.
English Law vis-a vis Indian Law
There is a distinction between the evaluation of a dying declaration under the English Law
and that under the Indian Law. Under the English Law, credence and the relevancy of a dying
Declaration is only where a person making such a statement is in a hopeless condition and is
expecting imminent death. So under the English Law, for its admissibility, the declarant
should have been in actual danger of death at the time when they are made, and that he
should have had a full apprehension of this danger and the death should have ensued.
Under the Indian Law, the dying declaration is relevant whether the person who makes it was
or was not under expectation of death at the time of declaration. Dying declaration is
admissible not only in the case of homicide but also in civil suits. Under the English Law, the
admissibility rests on the principle that a sense of impending death produces in a mans mind
the same feeling as that of a conscientious and a virtuous man under oath. The general
principle on which this species of evidence are admitted is that they are declarations made in
4 Tapinder Singh v. State of Punjab 1971 (1) SCJ 871
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extremity, when the party is at the point of death, and when every hope of this world is gone,
when every motive to falsehood is silenced and the mind is induced by the most powerful
considerations to speak only the truth. If evidence in a case reveals that the declarant has
reached this state while making a declaration then within the sphere of Indian Law, while
testing the credibility of such dying declaration, weightage can be given, of course,
depending on the other relevant facts and circumstances of the case.

-TYPOLOGY: FORMS OF STATEMENTA statement though not defined in the Act means something that is stated. The element of
communication to another person is not necessary before something is stated can be treated as
a statement. The declaration may be oral or written. It cannot be rejected merely on the
ground that it was not reduced to writing. The evidence of a witness who heard it made may
prove it. It cannot be treated as a deposition unless made in the presence of the accused and
before a magistrate. It is settled law that there is no legal requirement that a dying declaration
must necessarily be recorded in question-answer form. A dying declaration recorded in an
informal manner and as a narrative is fully admissible and is a relevant piece of evidence.
Any adequate method of communication, whether by words or by signs or otherwise, will
suffice provided the indication is positive and definite, and seems to proceed from an
intelligence of its meaning
ORAL DYING DECLARATION
Oral means by words. It is not necessary that the dying declaration shall be in a written form
or a question answer form. Where the dying declaration is oral, the exact words stated by the
deceased to the witness are of utmost importance. In order to be acted upon, the evidence
with regard to an oral dying declaration should be subjected to strictest and closest
circumstances. Where the oral dying declaration is found true and gets corroboration from
material particulars available on record it can form the basis of conviction of an accused.
STATEMENT BY SIGNS AND GESTURES
Signs made by an injured person either by a nod of the head to indicate assent or by the sign
or motion of fingers or hand in answer to questions put to him for finding out the identity of
the individual causing the injury amounted to verbal statement within the meaning of this

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clause. A reply made by signs, by a person unable to speak, in answer to a question put to
him, taken together with the question amounts to a verbal statement.
This was laid down by the Full Bench of the Allahabad High Court in Queen- Empress v.
Abdullah5 where 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, that was held to be relevant as
dying declaration
WRITTEN DYING DECLARATIONS
The statement of a deceased person in document is known as dying declaration in writing. It
is seen in very few cases that there comes before the court any dying declaration written by
the deceased. It is because the condition of the deceased, most of the times is very sensitive
and serious where he is not really in a state or in a position to write down the causes and
circumstance leading to his death or condition. It is because of this that the practice of oral
dying declaration and by gestures and signs was encouraged and admitted by the courts.
Letters written by a deceased disclosing the circumstances and cause of his or her death is
also admissible under section 32(1). Moreover, a particular document which is the copy of
the original is also admissible under this section as a relevant fact and also as an admission
under section 21 of the Indian Evidence Act.

-NATURE AND REQUISITES OF DYING DECLARATIONA dying declaration is admissible under section 32 of the Indian Evidence Act, 1872, only in
cases in which the cause of the declarant's death comes into question. The nature of the
proceedings in which the cause of his death comes into question need not necessarily be a
charge of murder or homicide. It may be a charge of murder or homicide, or rape or dacoity
etc. It may be a charge of a different nature or it may be a civil action as per second para of cl
(1).
The only material point is that the cause of death must come into question irrespective of the
nature of the proceeding in which it comes into question. A dying declaration may be that on
a final consideration of the evidence, the cause of death is found to be not connected with the
injuries caused; but the test is not what the final finding in the case is, but whether the cause
of the death of the person making the statements comes into question in the case.
5 I.L.R. (1185) 7 All.385
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Nevertheless, whatever be the nature of the proceeding, the cause of the death of the
declarant must be brought into question.
STATEMENT MUST BE COMPLETE
Whatever the declaration may be, it must be complete in itself, for, if the dying man appears
to, have intended to qualify it by other statements which he is prevented by any cause from
making, it will not be received. But where the dying declaration, though incomplete
otherwise, by reason of the deceased not being able to answer further question, but is
complete so far as the accused having murdered the deceased was concerned, it can be relied
upon by the prosecution.6 The statement offered must not be merely a part of whole as it was
expressed by the declarant; it must be complete as far as it goes. But it is immaterial how
much of the whole affair of the death is related, provided the statement includes all that the
declarant wished or intended to include in it.
DETAILS IN DYING DECLARATION
A dying declaration does not need to contain details to merit its acceptance. The shortness of
the statement itself appears to be the guarantee of its truth. Where a dying declaration is
exhaustive and coherent one, containing every details of prosecution story, it smacks of
concoction and fabrication. [ S.D. Ojha v. State of Bihar AIR 1979 SC 1505]
PROXIMITY BETWEEN TIME OF STATEMENT AND DEATH
The test of proximity cannot be literally issued and practically reduced to a cut and dried
formula of universal application. Distance of time would depend upon or vary with the
circumstances of each case. There can be no hard and fast rule laid down. But as far as
possible according to the various pronouncements of the honble Supreme Court the
Proximity between the time and statement is to be when there should not be any unnecessary
delay in recording the dying declarations.
The problem of proximity was first time raised before the Supreme Court in Sharad v.
Maharashtra AIR 1984 SC 1622. A married woman had been writing to her parents and other
relatives about her critical conditions at the hands of her in laws. She lost her life some four
months later. Her letters were sought to be proved as dying declaration. The court held that
the statements were not so remote in time as to loose their proximity with the cause of death.
Fazal Ali J. conducted a vast survey of authorities and stated the following propositions:
6 Abdul Sattar v. State of Mysore AIR 1956 SC 168
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1. a declaration will be relevant whether death is homicide or suicide, provided it relates to

the cause of death or exhibits circumstances leading to death.
2. the test of proximity cannot be literally issued and practically reduced to a formula of
universal application.
For a statement to be attracted under section 32(1) it is not necessary that death should have a
nexus in terms of fixed time, with the statement, nor that the victim who made the statement
should essentially be in apprehension of immediate death. The conditions are that the
statements should relate to the circumstances surrounding the event, which ultimately led to
the death. There should be nexus between the circumstances stated by the victim and the
death.
In Paniben v. State of Gujrat7, yet another important case on this aspect, Justice Mohan
summed up the principles governing dying declarations as decided by the decisions of the
Supreme Court which are as follows:
1. There is nether a 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 on it,
without corroboration
3. The court has to scrutinize the dying declaration carefully and must ensure that the
declaration is not a result of tutoring prompting or imagination. And that the deceased was in
a fit state of mind to make the declaration.
4. Where 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 infirmities cannot form the basis of conviction.
7. Merely because a dying declaration does not 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 be discarded on the contrary
shortness of the statement in itself guarantees truth
9. Normally court in order to satisfy whether deceased was in a fit mental condition to make
the dying declaration has to look to the medical opinion. But where the eyewitness has stated

7 AIR 1992 SC 1817

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that deceased was in a fit state to make his dying declaration, the medical opinion cannot
prevail.
10. Where the prosecution version differs from the version given in the dying declaration the
said declaration cannot be acted upon.
DELAY IN RECORDING DYING DECLARATION
The Supreme Court on various occasions has emphasized the aspect that there shall no be
unnecessary delay in recording of dying declaration .however, when the delay is reasonable
and is the demand of the circumstance then the dying declarations are held to be admissible.
Where delay in recording the dying declaration is explained by the prosecution, he dying
declarations in those cases are admissible. Where the dying declaration was recorded by the
magistrate five hours later after the incident, it was held to be no inordinate delay and as there
was no possibility of tutoring, the dying declaration was also vitiated.8
FITNESS OF THE DECLARATION
While making the dying declaration, the state of mind of the declarant is to be given prime
importance. only if he is in a state to make a statement shall his statement be recorded and it
is only when he has the mental faculties active that the dying declaration is to be held valid. If
the the consciousness state and the good mental condition of the declarant is certified by the
the doctor and the answers to the questions are given in a coherent manner, its veracity cannot
be affected by the reason of certain infirmities in it.
Where one dying declaration was recorded by the doctors when the capacity of the deceased
to remember was not impaired and the same was corroborated by the circumstantial and
medical evidence and the other was recorded by the Magistrate when his memory was
impaired and he could not tell the name of the doctor and particularly his endorsement that
the patient is not only conscious but is in a fit condition to record dying declaration is a must
without which the dying declaration may be rendered heavily suspect. But where the duty
doctor recorded the dying declaration when the deceased was in a serious condition and there
was no chance of tutoring, the fitness certificate by the hospital in charge was not necessary.9
If the dying declaration is recorded after obtaining the fitness certificate from the doctor and
the endorsement is also obtained after recording the declaration, then in that case the dying
8 [ Koli Chunilal Savji v. State of Gujrat AIR 1998 SC 2857].
9 [ State of Rajasthan v. Ganesh Das 1995 Cr. L.J 25]

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declaration is admissible. But the supreme court has also delivered a different view in a
number of cases, where it has stated that the certificate of the doctor as to the mental health is
not sufficient and the magistrate must ascertain the declarants mental health, where the
magistrate failed to do so and the declarant was not giving coherent and consistent statements
in response to his questions which also were not recorded, in these circumstances the dying
declaration is held to be unreliable.

-EVIDENTRY VALUE OF DYING DECLARATIONThe principle on which dying declarations are admitted in evidence is based upon the legal
maxim nemo moriturus praesumitur mentire ie a man will not meet his maker with a lie in his
mouth. Before relying upon a dying declaration, the court should be satisfied that the
deceased was in a fit state of mind to make the statement. Once the court is satisfied that the
dying declaration was true, voluntary and not influenced by any extraneous consideration, it
can base its conviction without any further corroboration as a rule requiring corroboration is
not a rule of law but only a rule of prudence.
It is absolutely necessary for the protection of society that dying declarations should be
received, for otherwise a premium would be held out for the commission of crime. It is the
nature of crimes of violence that they should be committed with the greatest possible secrecy;
and thus, it must sometimes occur that the only testimony, often only direct testimony against
an accused is to be found in the dying declaration of his victim. That is why the law made it a
relevant fact, and usually a dying declaration, which records the very words of the dying man
unassisted by interested persons, is most valuable evidence.
In the dying declaration the deponent is not not administered oath, nor opportunity is given to
the accused to cross-examine the deponent. In the light of these shortcomings, the courts have
to apply the strictest scrutiny to the statement before it is acted upon despite the great
solemnity and sanctity attached to it as a person who anticipated immediate death is not
supposed to lie. The court has to keep in mind the state of mind of the deceased, whether he is
capable of making such statement when he anticipated immediate death. It is in fact for the
court to satisfy itself whether the statement made in the circumstances is true or concocted.
Once, the court is satisfied that the statement is voluntary then in that case alone the
conviction can be passed on mere dying declaration without further corroboration.

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Keeping in view the circumstances in which the dying declaration was made. It cannot be laid
down as a general proposition that a dying declaration is a weaker kind of evidence than other
piece of evidence. It stands on the same footing as another piece of evidence and has to be
judged in the light of surrounding circumstances and with reference to the principles
governing the weighing of evidence. The rule requiring corroboration is a rule of prudence,
and it has been held in a number of cases that there is no rule of law which requires that a
dying declaration should not be acted upon unless it is corroborated. A dying declaration if
acceptable provides a safe ground for conviction of the accused and a court need not look for
any corroboration thereof.10
RELEVANCY AND ADMISSIBLITY
A dying declaration made by a person as to his cause of death or any of the circumstances of
the transactions which resulted in his death, in cases win which the cause of death comes into
question, is relevant under sction 32 and is also admissible in evidence. though dying
declaration is indirect evidence being a piece of hear say, yet it is an exception to the to the
rule again admissibility of hearsay evidence. indeed, it is substantive evidence and like any
other evidence requires no corroboration for forming the basis of conviction of the accused.
But then the question as to how much weight can be assigned to the dying declaration is a
question of fact and has to be determined on the facts of each case.
WEIGHT ATTACHED TO DYING DECLARATIONS
A man will not meet his maker with a lie in his mouth is the maxim that is applied in case
of dying declarations. A dying declarations made by the victim in a fit mental condition and
on the verge of death has a special sanctity, at the solemn moment, a person is most unlikely
to make an untrue statement, the shadow of impending death in itself is the guarantee of the
truth of his declaration as to the cause and the circumstances leading to his death, a dying
declaration hence is held to be almost sacrosanct.
In order to test the reliability of the dying declaration the court has to keep in view like the
circumstances which the person on the point of death had for observation, whether his
capacity to remember the facts stated by him, had not been impaired by him at the time he
was making the statement, that the statement was made at the earliest opportunity and is in no
way a result of tutoring by any interested parties. The dying declaration stands on the dame
10 [State v. Kanchan AIR 1954 All 53]

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footing as any other piece of eveidence and has to be judged in the light of the surrounding
circumstances with reference to the principles governing the weight to be attached.
Where a dying declaration is amply corroborated, not only by the eyewitnesses but also by
circumstantial evidence and by medical evidence regarding the situs of the injuries, the dying
declaration is to be admissible. A dying declaration cannot be contradicted by extraneous
evidence of witnesses and it has ro stand by itself or not at all.11
CORROBORATION OF DYING DECLARATION
It is well settled that dying declarations shall have to be dealt with due care and upon proper
circumspection. Though corroboration thereof not essential as such, but its introduction is
otherwise expedient to strengthen the evidential value of the declaration. Independent
witnesses may not be available but there should be proper care and caution in the matter of
acceptance of the dying declaration as a trustworthy piece of evidence.
It is rarely found in a criminal case that the description of the incident and injury described in
the dying declaration gets full corroboration from the medical evidence contained in the
injury report and the post-mortem report. In such cases, still the dying declaration can be
relied upon.
Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can
base its conviction without any further corroboration. It cannot be laid down as an absolute
rule of law that the dying declaration cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is merely a rule of prudence.
DYING DECLARATION AS SOLE BASIS OF CONVICTION
Dying declaration if found to be true and voluntary, can form the sloe basis of conviction and
needs no corroboration. Such a statement is admissible not only against the person actually
causing death but also against other persons participating in causing the declarants death.
The declarations having not been recorded in question- answer form is no ground to discredit
it.
APPRECIATION OF DYING DECLARATION
The evidence with regard to dying declaration must be very carefully and critically
scrutinised, as the accused has no opportunity to challenge such statement by way of cross11 [ State v. Motilal AIR 1968 All 83]
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examination. If the dying declaration is truthful and corroborated conviction can be based on
the same. Great sanctity is attached to the words of a dying man because a person on the
verge of death is not likely to tell lies, but the court must be satisfied that the deceased was in
a fit state of mind to make the staten1ent. A dying declaration recorded in suspicious
circumstances cannot be made basis for conviction unless it is corroborated. When it suffers
from some infirmities, it requires corroboration.
The evidence furnished by the dying declaration must be considered by the court just as the
evidence of any other witness, though undoubtedly some special considerations arise in the
assessment of dying declaration which do not arise in assessing the value of statement made
in court by a' person claiming to be a witness of the occurrence. In the first place, the court
has to make sure as to what the statement of the dead man actually was, and secondly, the
court has to be certain about the identity of the persons named in the dying declarations. A
dying declaration which has been recorded by a competent magistrate in the proper manner
stands on much higher footing than a dying declaration which depends upon oral testimony
which may suffer from all infirmities of human character, and that in order to test the
reliability of a dying declaration the court has to keep in view the circumstances like the
opportunity to the dying man for observation for example, whether there was sufficient light
if the crime was committed at night, whether the capacity of the man to remember the facts
stated had not been impaired at the time he was making the statement, by circumstances
beyond his control and that the statement was not the result of tutoring by the interested party
By and large, inter alia, the following three tests can be devised in order to answer the
question whether dying declaration is true:
(i) Was the victim in a position to identify the assailant?
(ii) Whether the version narrated by the victim is intrinsically sound and accords with
probabilities?
(iii) Whether any material part, emphasis being laid on material part, is proved to be false by
other reliable evidence?12
(iv) To base conviction on the dying declaration the court must be satisfied that the deceased
was in a fit state of mind to make the statement after the deceased had a clear opportunity to
observe and identify the assailants and that he was making statement without any influence or
rancor.

12 [State of Gujrat v. Rabari Pancha Punja 1981 Cr LJ (NOC) 170 (Guj) (DB)]
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Witnesses should not be allowed to prove a dying declaration as if it is a substantive piece of

evidence. The relevant fact to be proved is the statement made by the deceased and that
statement is not the document made by the magistrate, but the verbal statement made by the
deceased person. The only way of proving a declaration is by the oral evidence of some
witness, who heard it made and who can refresh his memory by referring to the note made by
him and read over by him at or about the time the statement is made.
DYING DECLARATION AND MEDICAL EVIDENCE
Merely because a dying declaration is not accompanied by a medical opinion that the
deceased when made the statement was in a fit state of mind, it does not affect the reliability.
The fact that the dying declaration is produced only during the trial is immaterial, if it is
corroborated by the evidence of the prosecution witnesses and the evidence of the doctor.
Where the medical evidence showed that the deceased received such injuries that he could
not survive for more than 10-30 minutes, but the dying declaration was proved by the direct
evidence of the eye-witnesses, the Supreme Court held that the medical evidence could not
wipe out the dying declaration. The dying declaration was believed and the accused were
convicted for charge of murder under s 302, IPC13.

-RECORD AND THE PROOF OF DECLARATIONDying declarations may be oral or written although in most cases such statements are made
orally before death ensues and is reduced to writing by someone, eg, a magistrate, a doctor, a
police officer &c. If it is recorded, no oath is necessary, the accused need not be present, nor
is the presence of a magistrate absolutely necessary, although to assure authenticity it is usual
to call a magistrate, if available, for recording the statement of a man about to die. When a
person whose evidence is required is in imminent danger of death, his statements should be
recorded by a magistrate exercising judicial functions. There is no requirement of law that a
dying declaration must necessarily be made to a Magistrate. What evidentiary value or weight
has to be attached to such a statement, must necessarily depend on the facts and
circumstances of each particular case.

13 [ Nanahau Ram v. State of Madhya Pradesh AIR 1988 SC 912]

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The right to offer the declaration in evidence is not restricted to the prosecutor, but it is
equally admissible in favour of the accused. When a Judge is sitting with a jury, the
admissibility of this evidence in any particular case is a question to be decided by the judge
alone. Before the statement can be admitted, proof must be given that the person is dead, and
the burden of this is upon the person who wishes to give the statement in evidence. The
recording of a dying declaration which may subsequently be produced as evidence in a court
of justice is a grave and solemn proceeding. Unauthorised persons should not be permitted to
crowd round when the declaration is being made. It is the bounden duty of the magistrate to
take every possible step to ensure that no influence is brought to bear on the declarant and
that he is not prompted or aided in any way in making his statement. The proceeding should
be so conducted that the declarant is as free from personal influence in emitting his
declaration, as he would be if he were giving evidence in a court of law It is the burden of the
prosecution to prove the physical and mental condition of the dying man that he was fit to
make the declaration. The person who records a dying declaration must be satisfied that the
dying man is making a conscious and voluntary statement with normal understanding.
BEFORE POLICE
Better and more reliable methods of recording a dying declaration of an injured person should
be taken recourse to and the one recorded by the Police Officer may be relied upon if there
was no time or facility available to the prosecution for adopting a better method.
The practice of Investigating Officer himself recording the dying declaration during the
course of investigation ought not to be encouraged and it would be better to have dying
declaration recorded by magistrate. But no hard and fast rule can be laid down in this regard.
It all depends upon the facts and circumstances of the case.
Where dying declaration is recorded by a police officer, omission of the signature of the
police officer does not impinge upon the truthfulness of the dying declaration.14
1. A dying declaration recorded by a police officer during the course of investigation is
admissible in evidence.
2. It is better to leave such dying declaration out of consideration until and unless the
prosecution satisfies the court as to why it was not recorded by a magistrate or a doctor.

14 [Mange Ram v. State 1990 Cr. L J 183 (Del)]

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3. It is not prudent to base the conviction on a dying declaration made to an investigating

officer.
4. The practice of the investigating officer himself recording a dying declaration during the
course of the investigation should not be encouraged.
5. There is no presumption against the veracity of the investigating officers, but is not prudent
to base the conviction on a dying declaration made to an investigating officer.
BEFORE MAGISTRATE
There is no requirement of law that a dying declaration must necessarily be made to a
Magistrate and when it is recorded by a magistrate, there is no statutory form for such
recording. The evidentiary value depends on facts and circumstances of each particular case.
The person who records a dying declaration must be satisfied that the deceased was in a fit
state of mind. A certification of doctor is essentially a rule of caution and, therefore, the
voluntary and truthful nature of the declaration can be established otherwise. This is a well
settled rule now, by this Constitution Bench judgment of the Supreme Court.
Section 32 of the Indian Evidence Act nowhere states that the dying declaration must be
recorded in the presence of a Magistrate or in other words no statement which has not been
recorded before the Magistrate cannot be treated to be a dying declaration.
DYING DECLARATION RECORDED BY DOCTOR
The doctor is the best person to opine about the fitness of the deceased to make the statement.
Where the doctor finds that the life is ebbing fast in the patient, and there is no time to call
the police or the magistrate, in such a situation the doctor is justified, indeed he is duty bound
to record the dying declaration of the deceased. He is a disinterested and respectable witness
also. The court should not refuse to act on the dying declaration recorded by the doctor.

-CASE LAWSVisharam v. State of Madhya Pradesh AIR 1993 SC 250

A cattle belonging to the appellants trespassed into the field of the deceased and damaged the
crops, which gave rise to a quarrel ultimately leading to the present occurrence. PW 1 who is
the father of the deceased and PW 5 who is no other than the wife of Kamal Kishore, one of
the deceased persons, would be the last person, in such a situation, to implicate the appellants
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falsely leaving out the real culprits. Both the courts discussed the evidence of PWs 1 and 5.
W it was also observed that PW 1 in the FIR itself has mentioned about the earlier dying
declaration and has also given the necessary details. Nothing significant has been elicited in
his cross-examination. Likewise, PW 5 deposes that she also reached the place of occurrence
and found Chandra Shekhar lying unconscious and that her husband Kamal Kishore was
conscious and on being asked, he told her that the six appellants attacked him and beat him.
Thereafter, Kamal Kishore was taken to the hospital.
In the cross-examination she has affirmed the same and her evidence does not suffer from any
infirmities. The doctor who examined Kamal Kishore, on being cross-examined, no doubt
stated that ordinarily injuries found on the head of Kamal Kishore could cause
unconsciousness but it could not positively be said that they would have caused immediate
unconsciousness. Relying on this admission, the learned counsel submitted that it is not safe
to rely on the oral dying declarations. It must be noted that the doctor did not categorically
state that Kamal Kishore would have been unconscious immediately after receipt of the
injuries and could not have been in a position even to speak that much. We have carefully
examined the evidence of FWs 1 and 5 and also for reasons given by both the courts below
and they are satisfied that no interference is called for. The appeal is accordingly dismissed.
Goverdhan Raoji Ghyore v State of Maharashtra 1993 Cr. L.J. 3414 SC
The learned sessions judge did not accept the dying declaration recorded by the police. The
learned sessions judge referred to the statement of the prosecution witness Madhukar and
noted that the said witness stated that the deceased stated in her dying declaration that her
husband put kerosene on her body, but the police did not record it and also did not allow the
panchas to read the dying declaration. The learned sessions judge was of the view that the
evidence of the said witness had suggested that the police must not have recorded the dying
declaration exactly according to the statement of Sunanda.
After giving our anxious consideration to the respective submission made by the learned
counsel for the parties, it appears to us that the dying declarations should not have been
discarded by the learned sessions judge. The learned sessions judge should have noted that
both the dying declarations were similar in material particulars. The minor discrepancies in
the two dying declarations were not sufficient to invalidate either of the two dying
declarations. Even if the first dying declaration recorded by the police officer is not taken into

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consideration, we do not find any reason to discard the second dying declaration recorded by
the Taluk magistrate.
Such dying declaration was recorded by Taluk magistrate after obtaining a certificate from
the doctor that the deceased was in a fit state of mind to make the statement. Even after
recording such dying declaration, the learned magistrate obtained a further recording
certificate from the doctor that the deceased was in a fit state of mind to make the statement.
The distinction sought to be made out by the learned sessions judge that a fit state of mind
and a conscious state of mind were not the same thing, is too hypertechnical in the facts and
circumstances of the case. The learned magistrate put the questions to the deceased as to
whether she was in a fit state of mind to make the statement, the dying declaration was
required to be discarded.

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-CONCLUSION-

Dying Declaration is a legal concept refers to that statement which is made by a dying
person, explaining the circumstances of his death. LORD LUSH, L.J., quoted that A dying
declaration is admitted in evidence because it is presumed that no person who is immediately
going into the presence of his Maker, will do so with a lie on his lips. But the person making
the declaration must entertain settled hopeless expectation of immediate death. If he thinks he
will die tomorrow it will not do.
LORD EYRE, C.B., also held that The principle on which this species of evidence is
admitted is, that they are declarations made in extremity, when the part is at the point of oath,
& when every hope of this world is gone; when every motive of falsehood is silenced, & the
mind is induced by the most powerful consideration to speak the truth; a situation so solemn
& awful is considered by law as creating an obligation equal to that which is imposed by a
positive oath administered in the court of justice.
Dying declaration is admissible on the sole ground that it was made in extremis. And in India,
its admissibility is explained in Sec-32(11) of Indian Evidence Act. It is cleared by the above
mentioned statements given by different courts that dying declaration can be in any form but
it must be recorded carefully & duly proved, which the courts make admissible as the
DYING DECLARATION

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-BIBLIOGRAPHY-

S. No.
1.

S. No.
1.

S. No.
1.

-BOOKS REFERREDDr. Avtar Singh, Principles of The Law of Evidence, (Central Law Publications)

-STATUTE REFERREDThe Indian Evidence Act, 1872.

-MISCELLANEOUShttp://www.legalservicesindia.com/article/article/dying-declaration-section-32(1)of-indian-evidence-act-1682-1.html

2.

http://www.lawyersclubindia.com/articles/DYING-DECLARATION-2639.asp

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