A dying declaration is a statement made as to the cause of a person’ s death, or as to any of the circumstances of the transaction, which resulted in the person’s death, made by the persons who ultimately die.
If the person making dying declaration survives, his statement is inadmissible as dying declaration but be relied on under section 157 Indian Evidence Act to corroborate his testimony, when examined can also be used to contradict him under section 145 Indian Evidence Act.
How it is recorded
As far as possible, a dying declaration should always be recorded by a magistrate and signed by him/her.
Thumb impression of signature is taken of the person making the statement. If a magistrate is not available, the police officers should himself record the statement, preferably in presence of witness and obtain the signatures of the declarant.
He should clearly state the reasons in his Case Diary and the statement itself for not summoning the magistrate to record the dying declaration.
If the doctor is not available on the spot, a few question must by asked to ascertain mental alertness of the victim and the response of the victim along with the questions must be recorded before recording the statement.
For instance question may be asked about the colour of the dress the victim is wearing, the day of recording his statement, and who are the relatives or friends standing beside the victim etc. to ascertain the mental alertness of the victim.
Procedure for recording dying declaration by police
- Date, venue and time of recording the statement.
- Name, age, father’s name etc. of the victim for proper identification.
- A few preliminary questions to ascertain the mental alertness of the victim and the questions and answers must be recorded.
- Statement in the form question of questions and answers in the language of the victim.
- Certificate stating the reasons for non-availability of the doctor and magistrate and the steps taken to secure their attendance.
- The name, designation and other particulars of the police officer recording the statement.
If it is recorded as a result of the questions put to the deceased and the answers given by him, these questions and answers must always be recorded to enable the Court to understand the full significance of the statement. It is, therefore, essential to record the questions in exact words they have been put and take town the actual words in which the answers are given.
The statement of the deceased should be recorded in his own words. When the IO or the magistrate recording the statement does not know the script of the language spoken by the deceased, he may record the statement in English.
Dying declaration can also be made by signs in answer to question put as to cause of death, especially when the declarant is not in a position to speak or write which will be admitted as verbal statements.
There can be a nod of assent. The case resembles the case of a DUMB/MUTE witness.
FIR is admissible as dying declaration if in a murder case the information report lodged by the deceased relates to the cause of his death, by virtue of section 32(1) of Indian Evidence Act.
The grounds on which a dying declaration is admitted are:
- Death of declarant
- Necessity: The victim being often the only eyewitness to the crime, the exclusion of his statement would tend to defeat the ends of justice.
- Sense of impending death, which creates a sanction equal to the obligation on oath.
Statements, written or oral must be proved. If the statement is oral, the persons who heard it must depose. If recorded, it must be proved by the evidence of the person who recorded it. If the statement made by the deceased does not relate to his death but to the death of another, it is not relevant, it is not relevant. It may be noted that the dying declaration cannot be proved unless the death of the person who made the declaration is also proved.