THE LEGAL SIGNIFICANCE OF DYING DECLARATIONS: A STUDY

OF STATUTES AND CASE LAWS

A dying declaration, also known as “Leterm mortem” (words said before death), is a
statement made by a person who is about to die. The principle of dying declaration is
enshrined under Section 26 clause (a) of Bharatiya Sakshya Adhiniyam, 2023, which was
previously given under Section 32 of the Indian Evidence Act, 1872. It is an exception to the
general rule of evidence that oral evidence must be direct and hearsay evidence is
inadmissible which is given under section 55. It is admissible based on the doctrine of
necessity.

The concept of dying declaration is based on the principle “Nemo moriturus praesumitur
mentire”, which means a man will not meet his maker with a lie in his mouth.

Section 26 (a) allows statement from people who are deceased, missing, or unable to testify
to be used as an evidence in legal proceedings when it is about the cause of death or relevant
to circumstances leading to death , regardless of the declarant’s expectation of death.

APPREHENSION OF DEATH :-

In Indian law, the apprehension of death is not necessary, whereas in English law the
apprehension of death is necessary for the statement to be considered as a dying declaration.
If the declarant has died and the statement explains the circumstances surrounding the cause
of his death the statement will be relevant even if no cause of death had arisen when the
statement was made. This ground is laid down through various cases like , Sharad
Birdhichand Sarda v. State of Maharashtra (1984)1 & Pakala Narayan Swami v. King
Empress (1939)2 & Kulwant Singh v. State of Punjab (2004)3.

1
1984 AIR 1622
2
[1939] 1 MLJ 59
3
2004 AIR SCW 778
FORMS OF DYING DECLARATION :-

Dying declaration can be in any of the forms given below :-

 Written
 Verbal
 Gestures and Signs

In Queen-Empress v. Abdulla 4 , a woman indicated by gestures towards the person who had
cut her throat and it was held that “if the injured person is unable to speak, he can make a
dying declaration by signs and gestures in response to the question.”

In Nirbhaya Rape Case5 , Nirbhaya made her declaration through signs and gestures. The
court affirmed that declaration made through signs, gestures, or nods.

An FIR can also be considered as dying declaration. If someone dies after filling an FIR
stating his life was in danger, the FIR can be treated as a dying declaration based on the
circumstances. In K. Ramachandra Reddy v. Public Prosecutor (1976)6 , the deceased
lodged an FIR, which implicated the deceased. The court relied on the FIR to provide the
judgment.

FORMAT OF DYING DECLARATION :-

There is no specific format required for dying declaration, it may be in any format. However,
the best format of a dying declaration is in a question-and-answer form. It can also be in the
form of a narration. But it is not complete if it does not reveal the relevant facts like, name of
the accused, and circumstances leading to the victim’s death.

In Ratan Gond v. State Of Bihar (1958)7, it was held that statements by the deceased are
only relevant if they pertain to their own death and not to someone else’s.

A dying declaration recorded in the declarant’s language increases its evidentiary value.

4
(1885) ILR 7 All 385
5
AIR 2017 SUPREME COURT 2161
6
1976 AIR 1994
7
AIR 1959 SC 18
RECORDING OF DYING DECLARATION :-

The best form of a dying declaration is the one recorded by a Magistrate, who is authorized
under section 183 of BNSS. However, the presence of a judicial or executive magistrate is
not mandatory. According to the Supreme Court’s guidelines, anyone can record the dying
statement. It can be recorded by a doctor, public servant, relative, or police officer. If it is not
recorded by a Magistrate, witnesses’ signatures should be obtained. It is important that the
person must be in a sound mind when the declarant gives the statement. A fitness certificate
of the declarant by a doctor is merely a precautionary measure. In its absence, the dying
declaration shall not be inadmissible.

CORROBORATION AND EVIDENTIARY VALUE OF DYING DECLARATION :-

In Khushal Rao v. State Of Bombay 8 & Rajendra Ramdas Kolhe v. State Of

Maharashtra (2024)9, the Apex Court laid down the following principles related to Dying
Declaration :-

 Dying Declarations as Sole Evidence: There is neither a rule of law nor prudence
that a dying declaration cannot be acted upon without corroboration.
 Conviction without Corroboration: A true & voluntary declaration needs no
corroboration. Court must be convinced of its truth, & if satisfied, can convict even
without additional evidence.
 Case-by-Case Evaluation: Each case should be judged based on the specific facts
and circumstances of the dying declaration.
 Equal Weight: A dying declaration is as valid as any other evidence.
 Reliability: A dying declaration is most reliable when recorded by a competent
Magistrate in a question-and-answer format with the victim’s signature.
 Suspicious Declaration: If the dying declaration is suspicious, it should not be acted
upon without corroborative evidence.
 Circumstantial Considerations: Courts must consider the circumstances under
which the declaration was recorded.

8
1958 SCR 552
9
[2024] 6 S.C.R. 740
In K. Ramachandra Reddy v. Public Prosecutor (1976) 10, the FIR lodged by the deceased,
which clearly implicated the accused and detailed the incident, was deemed relevant as a
dying declaration. Since dying declaration are not made under oath and cannot be cross-
examined, the court must carefully scrutinize them. The court must ensure there was no
tutoring, the deceased was in a fit state of mind, and the statement was not a product of
imagination. If the court finds the declaration reliable, a conviction can be based on it without
further corroboration.

FACTORS STRENGTHENING DYING DECLARATION :-

 Recorded by a competent Magistrate.

 Transcribed in the exact words spoken.
 Deceased had a good opportunity to observe.
 Incident occurred in a well-lit area.
 Made shortly after the incident.
 Multiple consistent statements by the deceased. (In Nirbhaya Rape Case11 : multiple
dying declarations were recorded such as :-
December 16, 2012: 1st declaration recorded by a doctor in the hospital.
December 21, 2012: 2nd declaration recorded by a SDM, detailing the incident.
December 25, 2012: 3rd declaration recorded by a metropolitan magistrate, primarily
through gestures.
All the above recorded declarations were consistent to each other.)
It was also held in Kashmira Devi v. State of UK (2020)12 & Nagabhushan v. State
of Karnataka (2021)13, that each dying declaration must be considered independently
on its own merit regarding its evidentiary value. One declaration cannot be rejected
solely because of the content of another. The court must evaluate each declaration in
its correct perspective and determine which one reflects the true state of affairs.

10
1976 AIR 1994
11
AIR 2017 SUPREME COURT 2161
12
(2020) 11 SCC 343
13
AIRONLINE 2021 SC 112
WHAT HAPPENS IF THE DECLARANT SURVIVES?

If the declarant survives, his dying declaration is inadmissible under section 26(a). He will be
treated as a normal witness. He should testify in court and the adverse party must be given a
chance to cross examine them. His testimony should be used for corroboration under Section
160 of BSA. It can be contradicted under Section 148 by the adverse party.

DIFFERENCE BETWEEN ENGLISH AND INDIAN LAW

In English law dying declarations are admissible only in criminal charges of homicide or
manslaughter, while in Indian law dying declarations are admissible in all proceedings,
weather civil or criminal.

In English law the declarant must have been in real danger of death, fully apprehending this
danger, and death should have followed. However, in Indian law the dying statement is
relevant regardless of whether the declarant expected death at the time of the declaration.

In English law the declaration must be a competent witness, while in Indian law this is less
clear, the declarant’s credibility can be challenged like any other witness.

CONCLUSION

Dying declarations remain a vital evidentiary tool in criminal trials, especially in cases where
the victim is the sole witness to the crime. Indian courts have consistently upheld their
admissibility while emphasizing safeguards against misuse. The Indian Evidence Act, 1872,
and the Bharatiya Sakshya Adhiniyam, 2023, together with judicial precedents, have ensured
that dying declarations are treated with the seriousness they deserve.

However, the application of dying declarations must be approached with caution to avoid
wrongful convictions. Courts must rigorously evaluate factors such as voluntariness,
coherence, and freedom from external influence. The judiciary's responsibility extends to
ensuring that these declarations are recorded under proper procedural safeguards and
subjected to strict scrutiny to prevent miscarriages of justice.
As legal principles evolve with technological advancements, the admissibility of electronic
dying declarations is likely to gain greater acceptance. Moving forward, courts may need to
balance traditional doctrines with emerging modes of evidence collection, ensuring that
justice is upheld while adapting to contemporary realities. Ultimately, the sanctity of dying
declarations rests on their ability to deliver justice fairly and impartially, reinforcing their
indispensable role in the Indian legal system.