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Dying Declaration
Introduction
Dying Declaration is a statement made by the person while he was dying and states the
reason for his death. The statement given by the dying person can be circumstantial or
tells the cause for his death. Hence, the statement given just before the death of a person
is called Dying Declaration.

The person who is conscious of Compos Mentis and knows that death is about to happen
can make a declaration and state the cause of his death and that statement will be
Admissible and treated as Evidence in the Court.

Declaration made by the deceased person can be in oral, written and by conduct.

Definition
Section 26 BSA, 2023: Statements by
persons who can not be called as
witnesses( same Section 32 of Indian
Evidence Act 1872)
• Statements written or verbal of relevant facts made by a person
• who is dead,
• Who can not be found,
• Who has become incapable of giving Evidence,
• Whose attendance can not be procured without an amount of delay or expenses
which under the circumstances of the case appears to the court unreasonable are
relevant facts When the statement is Made by the person as to the
• Cause of his death,
• As to any circumstances of the transaction which resulted in his death,
• In cases in which the cause of that persons 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 proceedings in which the cause of his death
comes into question.

The statement made by the deceased person will be treated as Evidence and Admissible in a
Court of law.

The reason behind this can be followed by Latin maxim Nemo

Mariturus Presumuntur Mentri
which means that “Man Will Not Meet His Maker With Lying On His
Mouth. More precisely in our Indian law, it is the fact that the dying man can never lie
or Truth sits on the lips of dying man. Hence, the Dying Declaration is Admissible and
considered as Evidence in Court, and can be used as a weapon to punish the culprit.

Format of Dying Declaration

There is no particular form to be employed in making the Dying Declaration. it can be
Oral, Written, Gestures & Signs, Thumb impression, can also be in the form of
Question Answer

Possibly the declaration should be in written form in the exact words stated by the person
who made the statement. When a magistrate records the dying declaration, then it should
be in Question-Answer form as the magistrate will opt the maximum information rightly

Gesture and Signs

In the case of Queen-Empress v. Abdullah[1] the appellant was charged with the
offence of murder before the court of session.

That he had murdered one DULARI, a prostitute by cutting her throat through RAZOR.
It seems that one-morning dulari with her throat cut was taken to the police station and
from there to the dispensary. She was alive till the morning. The post-mortem report
shows that the windpipe and the anterior wall of the gullet had been cut through. When
Dulari was taken to the police station, she was questioned by her mother in the presence
of a sub-inspector. She was again questioned by the sub-inspector, deputy magistrate and
subsequently by the assistant surgeon.

She was unable to speak but conscious and able to make gestures and signs. Magistrate
asked dulari, as who had wounded her, but due to the injured condition dulari was unable
to speak. After that, The magistrate mentioned several names one by one and asked if they
had wounded her. Dulari moves her hand forward and backwards and made negative and
affirmative signs. Subsequently, the magistrate asked whether Abdullah had wounded her,
for that dulari waved her hand made the sign in the affirmative, the magistrate recorded
the statement. After that question was put to her that if she been wounded with a knife or
sword. In this regard, dulari makes a negative sign, again magistrate asked her if she had
been wounded with the RAZOR. She in answer to this made an affirmative sign.

In this way, the magistrate records the dying declaration of Dulari and the same was
accepted as evidence to prosecute Abdullah.

Similarly, in the recent “Nirbhaya’s Rape Case,” Dying Declaration was made
by her in the form of sign and gesture.

The first declaration was recorded by the doctor when she was admitted in the hospital
on the night of December 16, 2012 and

the second on December 21 by the sub-divisional magistrate during which she gave exact
details of the misshaping.
The third declaration was recorded by the metropolitan magistrate on December 25 and
was mostly by gestures.

The bench said that as far as the third dying declaration is concerned, this court has already
held that the dying declaration made through signs, gestures or by nods are
admissible as evidence.

Oral and written

When the person gives the name of the murderer to a person present and written by any
of them then it is a relevant dying declaration.

An oral dying declaration is admissible in evidence as an exception to the general rule of

evidence that hereby evidence is no evidence in the eyes of law. The oral dying declaration
made before his wife, father-in-law and other near relatives were made in the conscious
state. Is relevant.

In the case of Amar Singh v. State Of Rajasthan[2]. The deceased’s mother and brother
gave the evidence, that the deceased made the statement month prior to the incident of
suicide by her that the appellant, her husband used to taunt the deceased saying that she
had come from a hunger house and the appellant himself go to the house of deceased and
asked for 10.000/-. It was held that the dying declaration and appellant were convicted
under section 304B and 498A of IPC

The Court referred to Pakala Narain Swamy v. Emperor[3]. in which Lord Atkin: held
that the circumstances of the transaction which resulted in the death of the declarant
will be admissible if such transaction has some proximate effect.

Incomplete Dying Declaration

Dying declaration made by the person, which is found to be incomplete can not be
admissible as evidence.

When the condition of the deceased is grave and at his own request a statement made by
him in the presence of the doctor and later taken by the police but could not be completed
as the deceased fell into a coma from which he could not recover. It was held that the
dying declaration was not admissible in court as the declaration appears to be incomplete
on the face of it.

Exception to above rule

But the statement, though it is incomplete in the sense but conveys the declarant all
necessary information or what he wanted to state, yet stated as complete in respect of
certain fact then the statement would not be excluded on the ground of its being
incomplete.

The deceased stated, “I was going home when I came near the house of Abdul Majid,
Sohail shot me from the bush. He ran away. I saw.” this was the dying declaration made
by the deceased and further was unable to answer the questions. It was held that there is
no question of incompleteness so far as the context of the case is concerned. In the case
of Muniappan v. State of Madras[4]. The deceased made the dying declaration
as follows :
“Sir,

This day 24th January 1960 in the afternoon at 12:30 Muniappan son kola goundan of
kamnav-kurechi stabbed me in my body with a knife.”

Soon the deceased died after the statement. His thumb impression was taken after he was
dead. This declaration against Muniappan was complete and admissible.

Question- Answer form

Dying Declaration can be made in the form of Question-answer. the deceased, in some of
her statement, did not state the actual part played by the appellant. She merely answered
the questions put to her. The court held that when questions are put differently then the
answer will also appear to be different. At first glance, the detailed description of the
offence may appear to be missing but the statement of the deceased construed reasonably.
However, when the magistrate records the dying declaration, it must be preferred to be
recorded in the form of a question-answer must be preferred. If there is nothing to doubt
that the person who records the statement made by the deceased exact word to word,
would not make any difference merely because the same was not recorded in the form of
question and answer.

Reason for admitting dying declarations in

evidence
A dying declaration is admitted in evidence that is truly based on the principle of “Nemo
moriturns proesumitur mentiri (man will not meet his maker with a lie in his mouth माणूस
तोंडात खोटे बोलून त्याच्या ननमाात्याला भेटणार नाही). Dying declaration does not require any
corroboration as long as it creates confidence in the mind of the Court and free from any
form of tutoring. In case Uka Ram v. State of Rajasthan[5]. Court held that dying
declaration is admitted upon consideration is made in extremity; when the maker of the
statement is at his bed end, every hope of this world is gone; and every motive of falsehood
is silenced and mind induced to speak only truth. Indian law recognises this fact that “a
dying man seldom lies”. "मरणारा माणूस क्वचिति खोटे बोलतो."

Fitness of the declarant should be examined

At the time of giving a declaration, the person who’s making the statement must be in a
fit state of mind. If the court has the doubt about the mental soundness of the maker of
dying declaration, it is unsafe and unfair for the base on such a statement.

Where the dying declaration was recorded by the doctor who himself certified that the
patient was in a fit condition for giving the statement, his non-mentioning that the patient
was in a fit mental condition and throughout remained conscious would be of no
consequence. In case State of M.P. v. Dhirendra kumar[6]. The mother-in-law of the
deceased was in the position to reach the upstair within 5 to 6 minutes after hearing the
cry of the deceased. According to the opinion of the autopsy surgeon, the deceased was
able to speak about 10-15 minutes. The Supreme Court did not agree with the view of the
High Court that the deceased is not in a position to make the dying declaration, as it was
reaffirmed by the autopsy report and circumstances of the case that the deceased was in a
fit state of mind to talk when her mother-in-law reached the place where the deceased was
dying.
Whereas in the case State of Orissa v. Parasuram Naik[7]. The accused, the husband was
alleged that he poured petrol on the body of his wife and lit a fire. Whereof extensive burn
injuries were sustained by the deceased wife. It was held that the oral dying declaration to
her mother can not be accepted because there was no certificate by medical officer
certifying that the deceased was medically fit to make a statement.

It is improper to reject the dying declaration on the ground that the fitness of the maker
depends solely on the certificate of the doctor and the magistrate himself did not require
independently as to whether the deceased was in a fit state to make a dying declaration.

As in the case of Arvind Kumar v. State of Rajasthan[8]. The accused is charged with an
offence under Sections 304B and 498A of IPC. The dying declaration was recorded by
Naib-Tahsildar but did not take any certificate from the doctor regarding the fit state of
mind of the deceased nor there was any endorsement by the doctor. The doctor testified
that the dying declaration was recorded by the reader of Naib-Tahsildar. No preliminary
questions were asked from the deceased before recording his statement. The naib-
Tahsildar also stated that he did not seal the recorded statement of the deceased and carbon
copies provide instead of the original copy of dying declaration of the deceased during
cross-examination. The mother of deceased categorically refused to put a signature or
thumb impression on dying declaration which showed that the dying declaration made in
the hospital room was a lie. All these facts created doubt and truthfulness of dying
declaration and held that the alleged dying declaration could not be admissible and reliable
document as it suffered from a number of infirmities. However, the accused were
convicted on the basis of entire evidence.

In case Dhanraj and other v. State of Maharashtra[9]. The dying declaration was
challenged on the ground that no medical certificate was attached to the condition of the
deceased. However, the deceased went to the hospital all alone by changing different
vehicle in the way. The statement of doctor and magistrate was on record to indicate that
the deceased was in a fit state of mind to give a statement. Such circumstances can be used
as supporting evidence about the mental condition of the deceased.

When the deceased made a dying declaration and while stating that fell into a coma before
completing the statement, it would have a serious effect on his capacity to make such a
statement. Certificate of fitness given by the doctor with regard to this condition of the
deceased. Such an opinion should be accepted by the court. If the circumstances so
demand, such opinion must be carefully balanced with all other surrounding facts and
circumstances.

In a case Rajeev Kumar v. State of Haryana[10] medical opinion shows that the deceased
larynx and trachea were charred by heat. It was clarified that when larynx and trachea are
charred, the person can not speak but when they are in the process of being charred, he
can speak. The second medical opinion was if the vocal cords or larynx is charred of a
person, he may be able to speak but not clearly and it will be difficult to understand. The
medical report of two is not in variance with the ocular evidence that the deceased was in
a position to speak when dying declaration was recorded and the court can rely on such
dying declaration.
Who should record the dying
declaration?
Any person can record the dying declaration made by the deceased, but the person who is
recording the dying declaration must have some nexus with the deceased either
circumstantially or by some fact. However, the doctor or police officer hold more value
as compared to the normal person. As far as the dying declaration is concerned the
magistrate entrusted to record the dying declaration, as the statement recorded by him is
considered more evidential rather than statement recorded by the doctor, police officer
and by the normal person.

The Supreme Court has found this to be true in law, at least in cases where the person dies
of burn injuries. Court hold the opinion that “The law on the issue can be summarized to
the effect that law does not give any direction that who can record a dying declaration but
just provided that magistrate is above all the person in subject for recording the statement,
nor is there any definite form, format or procedure for the same,” said a bench of Justices
B S Chauhan and Dipak Misra while quashing the high court order in the case of dowry
death acquittal case.

The person who records the dying declaration must be satisfied that the maker is in a fit
state of mind and conscious while making the statement.

Moreover, a dying declaration can be recorded by a person, or even by the police officer,
but if it is recorded by the judicial magistrate that it will have more credential value and
reliability.

Recorded by a normal person

A dying declaration can be recorded by a normal person. As in some circumstances where
the judicial magistrate, police officer and doctor is not available, the Court can not reject
the dying solely statement made before the normal person. But the person who records
the statement must show that the deceased was in a fit state of mind and conscious while
making the statement no matter if the statement is not recorded by Judicial Magistrate,
doctor and police officer. The statement is admissible in a court of law.

Recorded by the doctor or a police officer

If there is no time to call the magistrate keeping in the mind the deteriorated condition of
the declarant, the statement can be recorded by the doctor or by a police officer. But one
condition must be coupled with it that while recording the statement there shall one or
two-person present there as a witness otherwise the Court may find the statement to be
suspicious. Moreover, the statement record by the doctor, later endorses that the declarant
was not in a stable condition and his statement would not be considered as evidence,
rectify by the witness that the deceased was in a fit state of mind and conscious to make
the declaration. It was held in the case of N. Ram v. State[11] that the medical opinion
can not wipe out the direct testimony of an eye witness which states that the deceased was
in a fit mental condition and able to make a dying declaration.
Recorded by the magistrate
When the deceased statement recorded by the competent magistrate has deemed to be
considered as reliable and attracts the evidentiary value as he presumed to know how the
dying declaration should be recorded and he is a neutral person. Moreover, the magistrate
has empowered to record the dying declaration under 164 of Cr.P.C.

Section 164 Cr. P.C states that SubSection (1) gives power to the magistrate to record the
statement of the dying person, no matter whether he has jurisdiction over that case or not,
and in case where the statement recorded by the magistrate who has no jurisdiction in that
case subsection (6) will apply. Here the word “statement” does not confine to only the
statement by the deceased and witness but also include a statement of the accused, in order
to satisfy himself, but the accused statement will not amount to a confession.

Subsection (1) states that: any judicial magistrate and metropolitan magistrate shall have
the power to record the dying statement made by the dying person, whether the magistrate
has jurisdiction in that particular case or not, he will be able to record the state provided
under this chapter or by any other law for the time being enforced, or at the time before
the commencement of trial and investigation.

Section 164 provides a warning. Under this provision the magistrate who record the
statement should tell the accused that he has to made only statement which shall not be
amount to confession, but if he did so, then the confession can be used against him for the
purpose of conviction. This is the sine qua non for recording confession. The other
important requirement is that the Magistrate must raised questions from the wrongdoer to
satisfy himself that the confession made by the accused was voluntary so as to enable him
to give the requisite certificate under subsection(4) of this chapter. The judicial magistrate
here tell the accused that he is not bound to make a confession, but he did not ask the
question from the accused in order to satisfy in question, whether the statement made by
the accused is voluntary or not.

In Mahabir Singh v. State of Haryana[12] the Court held that, Where the Magistrate did
not clear the rule that the statement made by the accused should not be amount to
confession, if he does so then it will be used as evidence against him, can not be
considered. The Magistrate must satisfy himself that the statement made by the accused
voluntary, no pressure or force was used on the accused while making the confession. Any
mark of the person of the accused to vitiate the voluntary character of the confession.
When was held not only inadmissible under the section but it could not be used under the
other provision of Indian Evidence Act such as sections 21 & 29.

Language of the statements

As far as the language of the statement is concerned, it should be recorded in the language
of the deceased in which he is fluent or may possible than in Court language. The court
cannot reject the dying statement on the basis of the language in which it was made. It can
be recorded in any language. Even if the dying declaration is made by the deceased in
Urdu, Hindi, Punjabi languages, it was considered that statement could not be denied on
the ground of language in which it was made solely or on the ground that it was recorded
in Urdu. When the statement was given by the deceased in Urdu and the magistrate
recorded it in English than in that case precaution should be taken while in explaining
every statement to the deceased by another person, it was declared that the statement was
the valid dying declaration.
Statements made in different languages
When two dying declaration was recorded in two different languages on is in Marathi and
the other is in Hindi and the deceased were proficient in both the language the statement
could be the basis of conviction as it was held in the case of Amar Singh Munna Singh
Suryavanshi v. State of Maharastra[13].

Points to remember

1. Dying declaration made by the deceased can be recorded in any language.

2. If the statement was recorded in another language than the one which magistrate
recorded, then precautions should be taken to explain each and every aspect and
phrase.
3. The court cannot deny or discard the dying declaration only on the ground of
language.

In Biju Joseph v. State Of Kerala[14] it was observed by the court that only ground that
the statement of the deceased made was in her own language can not reduce it value of
the dying declaration. It was given by the High Court Of Kerala:

“Presumed that the statement made by the deceased when he was dying recorded in his
language in which he has command or fluent, does not vitiate it value and court can not
denied or rejected on that basis. Judicial magistrate entrusted with the duty to convert the
statement in court language. And such translation process would not affect the credibility
that dying declaration”.

Multiple dying declarations

Supreme Court Of India in concern to multiple dying declarations, it can be considered
upon without corroboration if there is no breakdown of fact in all the dying declaration.
If all the dying declarations are similar to each other and state correctly the cause of death,
and there is no contradiction between the statement it can be admissible But if the dying
declaration is different from each other and there is a contradiction between them, then
court will cross-examine the facts of the case or can examine the statements of other
witnesses to determine the truth and sanctity of statement regarding the case.

The statement of the deceased should match the facts and circumstances of the case. It is
very important to understand the character of multiple dying declarations. Points to be
considered in multiple dying declarations:

1. There should be regularity in all the dying declaration.

2. If all the dying declaration does not match or say overlap, then the court will
examine the facts of the case with the dying declaration Or examine the
witnesses.

In Kushal Rao v state of Bombay[15] that case Court set the importance rules for dying
declaration and what is the right process or manner to record it. In this case, if the dying
statement made by the deceased. That it should be recorded in the form of question answer
form, shall be endorsed/supported by the doctor that the deceased was in good mental
state, can be recorded by the person who is legally entitled to record, if there are multiple
dying declarations than it should be consistent, so that the court can rely on it.
The Supreme Court has held that multiple dying declarations can be reliable when it made
without corroboration if consistency is maintained throughout the statement. Otherwise,
the courts would have to cross-examine the statements of other witnesses to determine the
truth in a criminal trial.

Expectations of death is not necessary

Under English Law, the victim should not be under any expectation of death. Evidence
Act has taken this law from English law. If the statement has been made even when no
cause of death had arisen then also the statement will be relevant. It is not important at all
that the statement recorded should be just before the death of the victim.

In Pakala Narayan Swami v Emperor[16], it was held that the letter given by the deceased
to his wife before going to the place where he was killed was relevant. The court said that
the statement made must be at any rate near death or the circumstances of the transaction
explaining his death is relevant under section 32 of Evidence Act. In this case, the court
stated that dying declaration can be any statement that explains the cause of death or the
circumstances of the transaction explaining his death. Hence, statements as to any of the
circumstances of the transaction which resulted in the death would be included.

F.I.R as a dying declaration

In a situation where a person dies after, when a F.I.R was lodged and stating that his life
was in danger, it is relevant to be recorded as circumstantial dying declaration.

In the case of Munnu Raja and another v. State of M.P[16] the Supreme Court Of India
observed that statement made by injured person recorded as FIR can be deemed as dying
declaration and such declaration is admissible under Section 32 of Indian Evidence Act.
It was also observed by the court that dying declaration must not shows the whole incident
or narrate the case history. Corroboration is not necessary in this situation, Dying
declaration can be declared as the exclusive evidence for the purpose of conviction.

If the declarant does not die

When the dying declaration given by the deceased is recorded. But the question arises that
after the dying declaration was recorded and the deceased is still alive, was the statement
holds the same effect. In that situation, the deceased now turned to be a witness against
the accused to narrate what the actual story was. As the dying declaration itself mentioned
the word dying, so it is necessary that there must be an expectation of death on the part of
the declarant.

Dying declaration Case laws and

landmark Judgments
Pakala Narain Swami v. Emperor Case
The deceased was a man of about 40. He had been a peon in the dewan of Pithapur. Pakala
Narain Swami, the accused, was married to one of the daughters of dewan of pithapur.
After marriage pakalana narain swami and his wife went to live at Berhampur about
250miles away from pithapur. In the year of 1993, they came back to pithapur and where
they stayed with the dewan. They seemed at that time to have been in need of money, and
during 1936 the wife of the accused borrowed money from the deceased at various times
an amount of Rs. 3,000. On Saturday 18th March 1937, the deceased received a letter
from the accused inviting him to come that day or the next day to Berhampur. The
deceased left his house in order to go there and catch the train of Berhampur. He did not
come back. On 23rd March 1937, the body of the deceased was found in steel trunk in the
third class compartment at puri. The body has been cut into seven portions. The body of
the deceased was identified by his widow. The accused was tried and convicted for murder
and was sentenced to death.

During the trial, the widow of the deceased stated before the court that on the day her
husband showed her a letter and said that he was going to Berhampur as the appellant’s
wife had written to him to come and receive payment of his dues.

The lordship of the privy council held that the statement related to the circumstances of
the transaction which resulted in the death of the deceased so it was relevant. They also
held that the statement made by the deceased that he was proceeding to the spot where he
was killed or as to his reason for proceeding or that he was going to meet him would each
of them be circumstances of the transaction. However, circumstances must have some
proximate relation to the actual cause and must be related to the transaction which resulted
in death. For instance, in case of prolonged poisoning, they may be related to date at the
considerable distance from the date of the actual fatal date. It is not necessary that there
should be a known transaction other than the death of the declarant has ultimately been
caused comes into question. In the present case the cause of death comes into question,
the transaction is one in which the deceased was murdered on 21th march or22nd march,
the statement that he was setting out the place where the accused lived and to meet a
person, the wife of the accused, who lived together with the accused’s appears to be clear
statement as of some transaction which resulted in his death.

Note: This case is important to be discussed here, as earlier in the article it was stated
that the deceased can make a statement by sign and gesture or there are some
circumstances that reflect the cause of the death and transaction of the situation
collateral to it. In that case, the statement made by the deceased hold strong basis
for conviction.

1. Lakhan v. State of M.P.[18] in this case supreme court provides that, when the
condition is satisfied that the dying declaration made by the deceased is true and can
be relied upon, as the declarant is found to be conscious and mentally fit while making
the statement, and the statement made by him proven to be voluntarily and no
compulsion was there while making the statement and can be put for the sole basis of
conviction. In that situation there is no need for corroboration is necessary.

In case of multiple dying declarations consists which consist in the form of irregular
interval and contradict each other, dying declaration recorded by the person who is entitled
to record like magistrate then there is no doubt and can be found to be reliable. But in
circumstances where it was observed that the statement made by the deceased is not
voluntarily but due to some force or compulsion, then the court raised suspicion on that
dying declaration and Court should re-examine the statement of witness and other facts in
order to determine the truth.
 2. In the case of State of Punjab v. Parveen Kumar[19], the Supreme Court set forth
some measure to test the veracity in the case when there is more than one dying
statement. The court provides that there must be a series of examinations in order to
determine the truth. If the statements provide different versions and do not couple with
given facts, then the court must opt for other evidence in their record to clarify the
things so that truth can be inferred.
3. In the case of Sudhakar v. State of Madhya Pradesh[20], the Supreme Court while
deciding the issue of multiple dying declarations, which varying from other statements
and have no series related to each other, this will raise a doubt in the eyes of court to
whether the statement should be believed or not, in order to clear the issue the Court
has given some directions which help to guide while exercise the judgment by court in
such matters, examined.

The Court put forward the point that when multiple dying declarations made by the
declarant, if found either contradictory or are at variance and having no nexus to each
other to a large extent and narrate another version of the story, then the test of common
reasonableness would be applied while examining which dying declaration is
corroborated by circumstantial evidence. Further, when the dying declaration was made
the condition of the deceased at the time of making of each declaration concerned, medical
report of the deceased, truthfulness of statements made by deceased, possibility of
deceased being tutored, are some of the points which would guide while exercise of
judicial function by court in such matters.

The Supreme Court also observed that the dying declaration is the statement made
when a person is at there bed end, as the word dying declaration itself signifies its
meaning. A person having a serious apprehension of death and there shall be no
chances for his survival. At this point, the court assumed that whatever the statement
made by the declarant is purely true as the man will never meet his maker with a lie
on his lips and person will speak only truth.

4. Natha Shankar Mahajan v. State of Maharashtra[21] in this case the supreme court
ruled that if there is a doubt about the statement made by the deceased, in that case, the
gain will transfer to the accused. As this is the correct Law preposition. Moreover on
the other was round if the statement found to be true and reliable ten it can be used
solely as the purpose of the convection.
5. The Supreme Court in the case of Surajdeo Oza v. State of Bihar[22] does not give
an affirmative answer to the question and held that merely because the dying
declaration is a brief statement it is not to be discarded. On the contrary, the length of
the statement itself guarantees the truth.

The Court has to scrutinize the dying declaration carefully and examine each and every
sort of situation and must ensure that the declaration is not the result of tottering prompting
of imagination and the deceased had the opportunity to observe and identify the accused
and was in a fit state while making the dying declaration.

Dying deposition
Dying deposition is almost a dying declaration. The main difference between both is that
the dying deposition is always recorded in the presence of a magistrate. Whereas dying
declaration can be recorded even by a normal person, doctor and by a police officer.
 A deposition is recorded when the lawyer of the accused is present and magistrate record
the dying declaration. But dying declaration has no such conditions, but the evidentiary
value will be more if the statement is recorded by the magistrate. However, it can be
recorded by the doctor or police officer also.

Illustrations

1. A case where the deceased was given the statement to his father that I inhale the
poison because of my heartbreak and the same was conveyed to the police and
Basis Dying declaration Dying deposition

While here, administering oath is

Oath Here, the oath is not administered.
important.

Cross- But here, the witness can be cross-

Here, cross-examination is not allowed.
examination examined by the lawyer.

The dying declaration can be recorded by Whereas, it can be recorded by the

Recorded by
a normal person, doctor, police officer and magistrate in the presence of accused
whom
by the magistrate. or by his lawyer.

There is no such provision of dying

Applicability It is applicable in India.
deposition.

It superior and has more value than

Value It has less value.
the dying declaration.

father of the deceased also said that the deceased was conscious and in a fit state
of mind and the same was endorsed by the autopsy report. After that when the
police investigate the matter it was found to be true that the cause of his suicide
is the girl who used to aid and abet him to commit the suicide. Hence the
statement recorded by the normal person(father) has admissible in a court of
law. This is the example of dying declaration.
2. In a case where a woman is burnt by his father-in-law. And the woman was
admitted to the hospital by the neighbour and when the police were informed
about the matter they came to rely on the statement of the deceased but the
doctor tells them that the deceased is not in a position to answer the question.
After 2nd and 3rd day when the woman is in better condition and subsequently
magistrate was available to record the dying statement and the accused lawyer
was also there. The statement is recorded and this is called dying deposition.

Distinction Between Dyeing declaration & dying

deposition
Medical report
Medical reports are those reports which are provided by the doctor usually in criminal
cases, they are admitted as evidence in a court of law when a doctor provides oral evidence
while taking the oath. The report includes the mental condition, fitness of the disease
whether he is able to give the statement or not. And sometimes forensic and autopsy
reports also clarify that the deceased was saying right in his dying declaration. For
example, there was a case in which the mother of the deceased, when hearing the cry of
her son immediately reached to their room, where the deceased made the dying declaration
in front of his mother that he was in love with some girl and she left her and due to this
he commits the suicide. The time to reach in his room was estimated by the police in their
investigation was about 2 minutes.

Here the question comes that if the mother was really saying the truth about the declaration
as there was no one when the deceased was making the statement, the absence of medical
fitness will remain in the dark. But the autopsy report conferred that decrease is the
condition to survive for 6-8 minutes. So that the mother statement can be admissible in a
court of law. In that perspective the role of medical report become crucial and if
sometimes, if there is a plotting in dying declaration (which rarely happens as the law
presumed that no one meet his maker with a lie on his lips) the report may contract the
statement which creates the sense of suspicion and the statement made by the deceased
can not be regarded as the sole base for the conviction. But the medical report did not
discard the statement on the basis of the report in which it was stated that the nature of
injuries sustained by the deceased. Moreover, if the medical report states the fitness of the
deceased while taking the statement of the deceased by magistrate then there is no need
for a separate test of fitness by the magistrate.

Doctor statement
It is necessary that the dying declaration recorded by a magistrate should be endorsed by
the doctor, as it gains more evidentiary value. But there are many situations when the
statement is recorded by the doctor as due to circumstantial reasons and unavailability of
magistrate. So the statement of doctor is regarded to be true and being a doctor, he
understands about the condition of the deceased whether the deceased is able to make
dying declaration or not. In the case where a burnt wife had been admitted in the hospital
and the doctor who operates her, disclose the fact that the husband of her pour kerosene
oil and set ablaze to her. At this point, the doctor records the statement point by point.
Later on, it was found that records are also in favour and did not contradict the statement
made by the deceased. The court held that the doctor has no other motive to make a false
statement and the value of statement recorded by the doctor is admissible. But the
statement made by the doctor is proven more relevant when there is an eye witness in
order to endorse that particular dying declaration.

Dowry death, wife burning

When there is a situation after the three or four months of the marriage, where the wife is
burnt by her husband or husband relatives for dowry purposes or for monetary gain. And
in relation to this, she expressing the danger and threat to her life is somehow the
expression which depicts the circumstance which leads to the death of the deceased. But
when there is a contradiction found in the statement by the deceased, it would raise the
presumption of suspicion and decrease its value as evidence. In case where wife by way
of plotting set ablaze to her and when she was admitted to hospital, where she made the
statement that her husband set on fire to her after some point of time it was discovered in
the police investigation that the children of the deceased state that their father will never
do this kind of act, moreover they also said that the deceased was tried for committing
suicide earlier. And police also found that the relation between the husband and wife is
not good. And deceased also think that her husband had some extramarital affair. All the
facts show that there was a motive to lie. So the court held the dying declaration to be
falsehood and set aside the conviction. And the court has reason to believe, as the person
who took the deceased to the hospital was none other than her husband.

Evidentiary value of dying declaration

In the case of K.R Reddy v. Public Prosecutor[25], it was observed by the court that the
evidentiary value of dying declaration made by the deceased:

There is no doubt that the dying declaration is admissible in court under section 32(1) of
the Indian Evidence Act. and there is no compulsion while making of dying declaration
to take an oath, but the truth of the statement can be determined by the cross-examination.
The court has to ascertain necessary measures to check the sanctity of the statement made
by the deceased. As in India law, it was presumed that the man who is going to die, not
meet his maker with a lie on his lips this is because, when the person is at his bed end all
the desire and greed of person come to an end so probably there is no motive to lie. After
that, the court must be satisfied with the condition that the deceased must be in a fit state
of mind while making the statement. After all the measures assured by the court and
satisfied that the statement is made voluntarily and true then it will be sufficient to accept
the statement to finding conviction even without the corroboration.

In Khushal Rao v. State of Bombay[26] Apex Court laid down the following principles
related to dying declaration :

(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated. A true & voluntary declaration needs no corroboration.

(ii) A dying declaration is not a weaker kind of evidence than any other piece of evidence;

(iii) Each case must be determined on its own facts keeping in view the circumstances in
which the dying declaration was made.

(iv) A dying declaration stands on the same footing as other pieces of evidence & has to
be judged in the light of surrounding circumstances & with reference to the principle
governing the weight of evidence.

(v) A dying declaration which has been recorded by a competent Magistrate in the proper
manner, that is to say, in the form of questions and answers, &, as far as practicable in the
words of the maker of the declaration stands on a much higher footing than a dying
declaration which depends upon oral testimony which may suffer from all the infirmities
of human memory & human character.

Exception of dying declaration

There are many circumstances in which the statement made by the dying person is not
admissible in a court of law. These conditions are as follows:
 1. If there is no question for consideration about the cause of death of the deceased.
For example, if a person in his declaration state anything which is not remote or
having a connection with the cause of death than the statement is not relevant
and hence not be admissible.
2. The declarant must be competent to give a dying declaration, if the declaration
is made by the child then the statement will not be admissible in court as it was
observed in case of Amar Singh v. State of M.P[27] that without the proof of
mental fitness and physical fitness the statement would not be considered
reliable.
3. The statement which is inconsistent has no value and can not be considered as
evidentiary in nature.
4. The statement made by the deceased should be free from any influential
pressure and should be made spontaneous.
5. It is perfectly allowed to the court if they reject any untrue statement which
contradicting in nature.
6. If the statement is incomplete in the sense which means it can not answer the
relevant questions which are necessary to found guilty, and on the counterpart,
statement deliver nothing so it will not be deemed to consider.
7. Doctor’s opinion and the medical certificate should with the statement and
support that the deceased is capable of understanding what statement he makes.
8. If the statement is not according to the prosecution. In this regard, the following
points should be taken into consideration by the apex court.

• While making the statement deceased must be in fit mind of the state.
• Should be recorded by the magistrate or by a police officer and person in a
case when deceased was so precarious
• A dying declaration should be recorded in question-answer form and written in
words of the persons exactly who gives the statement.

Conclusion
The dying declaration is not specifically mentioned in our penal law under Section 32(1)
of IPC. it is the statement made by the person who is going to die, and that statement will
be considered as evidence in court, how his death caused and who is the mugger. There
are many conditions that relied upon the dying declaration that it should be in an adequate
manner as dying declaration is the weapon who convicted the accused and stood as strong
evidence. The admissibility of dying declaration accepted in our Indian court because the
law presumes that in Leterm Mortem i.e in his last parting words the man will never lie
as anyone will meet his maker with a lie on his lips. This is because a man who is going
to die, end with all his needs and wants and his interest is no more passionate for self
deeds so he seldom lies.

However, the dying declaration is found to be maliciously made then the court has the
right to reject the statement. Or there are other situations and circumstances which coupled
with dying declaration for its admissibility which discussed above.