Introduction

A Dying Declaration means the statement of a person who has died explaining the
circumstances of his death. It can be said to be a statement made by a mortally injured
person, indicating who has injured them and/or the circumstances surrounding their
injury. The injured is aware that he/she is about to die and while the declaration is
hearsay, it is admissible since it is believed that the dying person does not have any
reason to lie.

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 a 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"1

Sub-section (1) of Section 32 of the Evidence Act, any statement, written or

verbal, of relevant facts made by a person who is dead, or who cannot be found, or who
has become incapable of giving evidence, or whose attendance cannot be procured
without an amount of delay or expense which, under the circumstances of the case,
appears to the Court unreasonable, would constitute relevant facts. If as a result thereof,
the Court is satisfied that the statement made by a person who is now dead is relevant, the

1
Laxmi v Omprakash 2001 Cri.L.J.3302
same becomes admissible in terms of Sub-section, (1) of Section 32 2 of the Evidence
Act.3

Admissible-

It is not always necessary that a dying declaration should be certified by a doctor

before reliance could be placed on the same. But then in the absence of any such
certificate, the Courts should be satisfied that from the material on record it is safe to
place reliance on such uncertified declaration.4
The basic infirmity committed by the High Court is in assuming that for a dying
declaration to be admissible in evidence, it is necessary that the maker of the statement, at
the time of making statement, should be under the shadow of death. That is not what
Section 32 of the Indian Evidence act says. That is not the law in India. Under Indian law,
for dying declaration to be admissible in evidence, it is not necessary that the maker of
the statement at the time of making the statement should be under shadow of death and
should entertain the belief that his death was imminent. The expectation of imminent
death is not the requirement of law.5
Unless the statement of a dead person would fall within the preview of Section
32(1) of the Indian Evidence Act, there is no other provision under which the same can be
admitted in evidence. In order to make the statement of a dead person admissible (written
or oral), the statement must be as to the cause of her death or as to any of the
circumstance of the transactions which resulted in her death, in cases in which the cause
of death comes into question.6

2
Section 32- Statements, written or verbal, or relevant facts made by a person who is dead, or who cannot
be found, or who has become incapable of giving evidence, or whose attendance cannot be procured
without an amount of delay or expenses which, under the circumstances of the case, appears to the Court
unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death—When the statement is made by a person as to the cause of his
death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the
cause of that person’s 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 proceeding in which the
cause of his death comes into question.
3
B. Shashikala v. State of Andhra Pradesh, MANU/SC/0052/2004
4
Chacko v. State of Kerala, AIR 2003 SC 265
5
State of Haryana v. Mange Ram, AIR 2003 SC 558
6
Inderpal v. State of U.P., 2003 SCC (Cr) 1049
 Evidential value of the writings contained in diary of deceased-wife is that of a
dying declaration. On the principle underlying admissibility of dying declaration in
evidence that truth sits on the lips of a dying person and the Court can convict an accused
on the basis of such declaration where it inspires full confidence, there is no reason why
the same principle should not be applied when such a dying declaration speaking of the
cause of the death exonerates the accused unless there is material available to form an
opinion that the deceased while making such statement was trying to conceal the truth
either having been persuaded to do so or because of sentiments for her husband.7
There is no format as such of dying declaration neither the declaration need to be
of any longish nature or neatly structured. As a matter of fact, perfect wording and neatly
structured dying declaration bring about an adverse impression and create a suspicion in
the mind of the Court since dying declarations need not be drawn with mathematical
precision. The declarant should be able to recollect the situation resulting in the available
state of affairs.

Accomplice-

Dying Declaration cannot be equated with the evidence of an accomplice or the

evidence furnished by a confession as against the maker.8

Abrupt Ending/ Incomplete-

When the dying declaration abruptly ends, due to deteriorating condition of the
patient then this cannot affect the evidentiary value of the dying declaration since it is
complete in so far as the appellant’s role is concerned.9

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
7
Ramesh Kumar v. State of Chattisgarh, (2001) 9 SCC 618
8
Khushal Rao v. State of Bombay, 1958 Cr LJ 106
9
Munir Ahmed v. State of Rajasthan, AIR 1989 SC 705
relied upon if there was no time or facility available to the prosecution for adopting a
better method.10
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.11

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.12 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.13

Condition of Patient-

A dying declaration must be closely scrutinized as to its truthfulness like any

other important piece of evidence in the light of the surrounding facts and circumstances
of the case, bearing in mind, on one hand, that the statement is by a person who has not
been examined in Court on oath and, on the other hand, that the dying man is normally
not likely to implicate innocent persons falsely. When the dying declaration is recorded,
the person who records the statement is consciously making the statement understanding
the implications of the words he uses and the responsibility of the Court is greater in
10
Dalip Singh v. State of Punjab, (1979) 4 SCC 332
11
State of Punjab v. Amarjit Singh, AIR 1988 SC 2013
12
Laxman v. State of Maharashtra, AIR 2002 SC 2973
13
Kulwant Singh & Ors. v. State of Punjab, (2004) 9 SCC 257
holding that it was so made when in fact it is found that the man dies a few minutes
afterwards.14
Where the medical testimony is clear that the deceased could not make the
statement (dying declaration) after the receipt of injuries, the ocular version be
disbelieved.15

Corroboration-

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.16
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.17
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.18

Declarant Survives-

It is trite law that when the maker of a purported dying declaration survives, the
same is not statement u/s 32 of the Indian Evidence Act but is a statement in terms of
Section 164 of the Cr.P.Code. It can be used under section 157 of the evidence Act for the

14
Lallubhai Devchand v. the State of Gujarat, AIR 1972 SC 1776
15
Purshottam v. State of Madhya Pradesh, 1980 Cr LJ 1298
16
Girdhar Shankar Tawade v. State of Maharashtra, (2002) 5 SCC 177
17
State of U.P. v. Ram Sewak, (2003) 2 SCC 161
18
P. V. Radhakrishnan v. State of Karnataka, AIR 2003 SC 2859
purpose of corroboration and under Section 155 of the evidence Act for the purpose of
contradiction.19

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 man’s 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 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.20

Infirmities-

Where the testimony of the eye-witness is inconsistent with the medical evidence,
it is unsafe to rely upon such dying declaration as when the dying declaration according
to the prosecution has been made at two different places but from the doctor’s evidence it

19
State of U.P. v. Veer Singh, 2004 SCC (Cr) 1672
20
Uka Ram v. State of Rajasthan, (2001) 5 SCC 254; Kishan Lal v. State of Rajasthan, (2000) 1 SCC 310
is found that it was improbable that the deceased would have been in a position to walk
or to speak, the dying declaration be disregarded.21
Mere non-mention of the names of certain eye-witnesses in dying declaration will
not diminish the value of their testimony.22
When there are serious discrepancies in the account given by the witnesses, it is
unsafe to place reliance on the dying declaration.23
If the evidence of eye-witnesses was to be rejected on the ground that it was
inconsistent with the dying declaration then it would, in the circumstances not necessarily
follow that the dying declaration was also unreliable and unworthy of credence.24
If in a given case a particular dying declaration suffers from any infirmities, either
of its own or as disclosed by other evidence adduced in the case or circumstances coming
to its notice, the Court may as a rule of prudence look for corroboration and if the
infirmities be such as render the dying declaration so infirm as to prick the conscience of
the Court, the same may be refused to be accepted as forming safe basis of conviction.25

Necessity-

A dying declaration is admissible in evidence on the principle of necessity and

can form the basis of conviction if it is found to be reliable. While it is in the nature of an
exception to the general rule of forbidding hearsay evidence, it is admitted on the
premises that ordinarily a dying person will not falsely implicate an innocent person in
the commission of a serious crime. If, in the facts and circumstances of the case, it is
found that the maker of the statement was in a fit state of mind and had voluntarily made
the statement on the basis of personal knowledge without being influenced by others and
the court on strict scrutiny finds it to be reliable, there is no rule of law or even of
prudence that such a reliable piece of evidence cannot be acted upon unless it is
corroborated.26

Oath-
21
Bhagwan Das v. State of Rajasthan, AIR 1957 SC 589
22
Surat singh v. State of Punjab, AIR 1977 SC 705
23
Bhaiyan v. State of Madhya Pradesh, AIR 1978 Sc 36
24
Kusa v. State of Orissa, (1980) 2 SCC 207
25
Laxmi v. Om Prasad, AIR 2001 SC 2383
26
Jai Karan v. State of NCT Delhi, AIR 1999 SC 3512
 The general principle on which this species of evidence is admitted is that they are
declarations made in 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 the truth; a situation so solemn and
so lawful is considered by the law as creating an obligation equal to that which is
imposed by a positive oath administered in a Court of justice.27

Oral Dying Declaration-

It can be relied upon. When the doctor was available there was no justification for
the Police officer to record the dying declaration.28

Test of Reliability-

Though in law there is no bar in acting on a part of the dying declaration, it has to pass
the test of reliability. Section 32(1) of the Indian Evidence Act is an exception to the
general rule that hearsay evidence is not admissible evidence and unless evidence is
tested by cross examination it is not creditworthy. A dying declaration made by a person
on the verge of his death has a special sanctity as that solemn moment a person is most
unlikely to make any untrue statement. The shadow of impending death is by itself
guarantee of the truth of the statement of the deceased regarding circumstances leading to
his death. But at the same time the dying declaration like any other evidence has to be
tested on the touchstone of credibility to be acceptable. It is more so, as the accused does
not get an opportunity of questioning veracity of the statement by cross examination. The
dying declaration if found reliable can form the basis of conviction.29

Two Dying Declarations-

When there are two dying declarations and there was inconsistency between them
and there was no other evidence evidence to prove the prosecution case, it was not safe to
act solely on the said declarations to convict the accused persons.30
27
Muthu Kutty and Anr v State byInspector of Police, MANU/SC0979/2004
28
State(Delhi Administration) v. Laxman Kumar, AIR 1986 SC 250
29
Narain Singh v. State of Haryana, AIR 2004 SC 1616
30
Lella Srinivas Rao v. State of U.P., (2004) 9 SCC 713
 Conclusion

A statement, written or oral, made by a person who is dead as to the cause of his
death or as to any of the circumstances of the transaction which resulted in his death, in
case in which the cause of that person's death comes into question, becomes admissible
under section 32 of the Evidence Act. Such statement made by the deceased is commonly
termed as dying declaration. There is no requirement of law that such a statement must
necessarily be made to a Magistrate. What evidentiary value or weight has to be
attached to such statement must necessarily depend on the facts and circumstances of
each particular case. In a proper case, it may be permissible to convict a person only
on the basis of a dying declaration in the light of the facts and circumstances of the
case.
 Case Analysis

 Visharam v. State of Madhya Pradesh31

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 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.

31
AIR 1993 SC 250
 Goverdhan Raoji Ghyore v State of Maharashtra 32

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 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.

32
1993 Cr. L.J. 3414 SC
 Sohal Lal @ Sohan Singh and Ors. v. State of Punjab33

This is again an important case dealing with the principle reading more than one dying
declaration. This is a case of Dowry death where an F.I.R. was lodged with regard, to the
unnatural death, in suspicious circumstances, of one Kamlesh Rani. The gist of the F.I.R.
was that Kamlesh Rani was being harassed by her husband-Sohan Lal @ Sohan Singh
(first appellant), mother-in-law Harbans Kaur (second appellant) and sister-in-law
Kanchan (third appellant), who ill treated her to extract dowry from her parents. And that
Kamlesh Rani had been admitted in Hospital with extensive burn injuries as she had been
set on fire by her husband, Sohan Lal, mother-in-law. Harbans Kaur, father-in-law,
Sarwan Singh, and sister-in-law, Kanchan after pouring kerosene oil on her, after
conniving with one another. .

The case of the prosecution rests mostly on two declarations made by Kamlesh
Rani, one on 2.4.1996 to the Naib Tehsildar-cum-Executive Magistrate, Lakhbir Singh
(PW 6) at 3.15 p.m. and the second statement made under Section 161 of the Cr. P.C.,
recorded by Satnam Singh, A.S.I. (PW 11) at 7.10 p.m. on 7.4.1996. It also rests on the
oral testimony of the witnesses for corroboration of the statements made in the said
declaration.

The hon’ble Supreme Court upholding the decision of the constitution bench in Laxman
v. State of Maharashtra (2002) 6 SCC 710, stated that, the juristic theory regarding
acceptability of a dying declaration is that such declaration is made in 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 man is induced by the most powerful
consideration to speak only the truth. Notwithstanding the same, great caution must be
exercised in considering the weight to be given to this species of evidence on account of
the existence of many circumstances which may affect their truth.

33
MANU/SC/0808/2003
 The situation in which a man is on the deathbed is so solemn and serene, is the
reason in law to accept the veracity of his statement. It is for this reason the requirements
of oath and cross-examination are dispensed with. Since the accused has no power of
cross-examination, the courts insist that the dying declaration should be of such a nature
as to inspire full confidence of the court in its truthfulness and correctness. The court,
however, has always to be on guard to see that the statement of the deceased was not as a
result of either tutoring or prompting or a product of imagination. The court also must
further decide that the deceased was in a fit state of mind and had the opportunity to
observe and identify the assailant. Normally, therefore, the court in order to satisfy
whether the deceased was in a fit mental condition to make the dying declaration looks
up to the medical opinion.

But where the eyewitnesses state that the deceased was in a fit and conscious state
to make the declaration, the medical opinion will not prevail, nor can it be said that since
there is no certification of the doctor as to the fitness of the mind of the declarant, the
dying declaration is not acceptable. A dying declaration can be oral or in writing and any
adequate method of communication whether by words or by signs or otherwise will
suffice provided the indication is positive and definite. In most cases, however, such
statements are made orally before death ensues and is reduced to writing by someone like
a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary 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 the
there is no requirement of law that a dying declaration must necessarily be made to a
Magistrate and when such statement is recorded by a Magistrate there is no specified
statutory form for such recording. Consequently, what evidential value or weight has to
be attached to such statement necessarily depends on the facts and circumstances of each
particular case. What is essentially required is that the person who records a dying
declaration must be satisfied that the deceased was in a fit state of mind.

Where it is proved by the testimony of the Magistrate that the declarant was fit to
make the statement oven without examination by the doctor the declaration can be acted
upon provided the court ultimately holds the same to be voluntary and truthful. A
certification by the doctor is essentially a rule of caution and therefore the voluntary and
truthful nature of the declaration can be established otherwise."

The court held that the dying declaration was made by the deceased Kamlesh Rani and
that there is no need to discard it and that when she made the dying declaration she was
in a fit mental condition to do so and was fully conscious of what she was saying.

 Kusa & Ors v State of Orissa34

The dying declaration for the appellant was attacked on three grounds. In the first
place, it was submitted that as the deceased Antarjami was in a state of shock, it was
unsafe to rely on the dying declaration; secondly it was contended that as the dying
declaration was incomplete, it should not be acted upon and thirdly it was pointed out
that Antarjami had implicated some persons other than the accused also in the assault
on him and his brother, and therefore, the dying declaration could not be said to be
true.

So far as the first contention is concerned, whether the deceased was in a state
of shock, it is true that the doctor who had recorded the dying declaration had stated
that the deceased was in a state of shock because he had received a serious injury in the
abdomen which had to be stitched. The doctor was, however, not cross-examined as to
the fact whether or not despite the shock, the deceased had retained his mental faculties.
On the other hand, a bare perusal of the dying declaration, and the coherent and
consistent statement made by the deceased clearly reveals the fact that was fully
conscious and was not suffering from any confusion or hallucination.

The deceased had clearly stated that the motive for the occurrence was the
dispute about partition. He had also named the four appellants and stated that he and
his brother were assaulted by voltes and lathis, and it is not disputed by the
prosecution that the appellants were armed with these weapons. It is true that while
naming the appellants, the deceased also named some other persons but the mere fact
34
AIR 1980 SC 559
that those persons were not challaned does not detract from the value of the dying
declaration because it may well be that what the deceased was saying was true and
the persons who were left out from the category of accused in the FIR or the challan
were due to ulterior motives.

In Khushal Rao v State o/Bombait was pointed out that s 32(1) of the Evidence Act
attached special sanctity to a dying declaration and unless such a dying declaration
can be shown to be unreliable, it will not affect its admissibility. It was further held
that although a dying declaration has to be closely scrutinised, once the court comes
to the conclusion that it is true, no question of corroboration arises. The court held
that there is no absolute rule of law, or even a rule of prudence which has ripened
into a rule of law, that a dying declaration unless corroborated by other independent
evidence, is not fit to be acted upon, and made the basis of a conviction.

In Khushal Rao's AIR 1958 SC 22 case the court did not approve of the law laid down in
the earlier decision. To the same effect was a later decision of the Supreme Court in the case
of Tarachand Damu Sutar v State of Maharashtra [1962] 2 SCR 775 was rendered by five
judge which took the view that once a dying declaration was found to be true, it could be
acted upon without any corroboration. Thus, the view taken in Ram Nath Madhoprasad
& Ors v State of'MadhyaPradesh AIR 1953 SC 420 overruled by the decision. Same view
was taken in the case of Munnu Raja v State of Madhya Pradesh (1976) 3 SCC 104.

There are a number of later decisions also to the same effect. It is thus manifest
that a person on the verge of death is most unlikely to make an untrue statement unless
prompted or tutored by his friends or relatives. In fact, the shadow of immediate death
is the best guarantee of the truth of the statement made by a dying person regarding to
his death which are absolutely fresh in his mind and is untainted or discoloured by any
other consideration except speaking the truth. It is for these reasons that the Evidence Act
attaches a special sanctity to a dying person passes the test of careful scrutiny applied by
the courts, it becomes a most reliable piece of evidence which does not require any
corroboration. Suffice it to say that it is now well established by a long course of
decisions of this court that although a dying declaration should be carefully scrutinised
but if after perusal of the same, the court is satisfied that the dying declaration is true
and is free from any effort to prompt the deceased to make a statement and is coherent
and consistent, there is no legal impediment in founding the conviction on such a dying
declaration even if there is no corroboration.

 Surinder Kumar v State of Haryana 35

Sheema, second wife of appellant Surinder Kumar, sustained 70 per cent burn injuries on
16 May 1987, and ultimately succumbed to those injuries on 22 May 1987. Surinder
Kumar and his son Sanjiv from his first wife were tried for the murder of Sheema and
also for subjecting her to cruelty. The trial court convicted both of them under ss
302/34 and 498A, IPC. They were sentenced for life and a fine of Rs 500 on the first
count, and rigorous imprisonment for two years, and a fine of Rs 200 on the second
count. The High Court on appeal maintained their conviction and sentence under ss
302/34, IPC. They were, however, acquitted by the High Court of the offence under ss
498A, IPC. This appeal by way of special leave was by the appellants against their
conviction and sentence.

The conviction of the appellants was based on the dying declaration made by
the deceased in the hospital before a judicial magistrate. The doctor certified that the
patient remained conscious during the period her statement was recorded. The judicial
magistrate recorded a certificate that the statement of Sheema was recorded by him and
it contained true version of her statement and she had thumb-marked the same. The
court was satisfied that in view of the doctor's certificate, there was no infirmity in the
recording of the dying declaration by the magistrate and the same inspire confidence.

The advocate appearing for the appellants contended that or Ashok Tandon (PW
11) who admitted the deceased in the hospital recorded that the patient 'allegedly' got

35
1992 Supp (2) SCC 559
burns while cooking food on a gas stove. He further contended that PW 11 had deposed
that at the time of his examination, the patient was conscious and she told him that she
got the burn injuries while cooking food on a gas stove. It was further argued that the
statement made by Sheema before the doctor giving cause of her death was the earliest
version, and amounted to a dying declaration. According to the accused there being
two contradictory statements by the deceased, the dying declaration recorded by the
magistrate was not worthy of credit and the conviction could not be based on the same.
The court did not agree. It was the accused Surinder Kumar who brought his wife
Sheema to the hospital and he remained present while the deceased was examined by
PW 11. It was nowhere mentioned in the record that what was recorded by PW 11 was
stated by the deceased. It is evident that what was recorded by PW 11 could not be the
version of Sheema herself.

Had it been so, PW 11 might not have used the word 'alleged' while recording
that the patient received injuries while cooking food on a gas stove. He did not mention
anywhere on the record about the state of mind of Sheema. It was nowhere recorded
whether she was conscious or not. The court observed that it was difficult to believe that
PW 11 made his deposition in the court on the basis of his memory. It was more
probable that what was recorded by PW 11 was at the instance of the husband who was
accompanying his wife at the time of her examination by him. On the above reasoning,
both the courts below had rejected the defence argument that what was recorded by PW
11 was at the instance of the deceased. The court saw no infirmity in the judgments of
the courts below and agreed with the reasoning and the conclusions reached by the High
Court.

 Kishan Lai v State of Rajasthan36

There is a distinction between the evaluation of a dying declaration under English

law and that under Indian law. Under English law, credence and relevancy of a
dying declaration is only when a person making such a statement is in a hopeless
36
(2000) 1 SCC 310
condition and expecting imminent death. Similarly, 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 full apprehension of this danger and
that the death should have ensued. Under 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 the declaration. A dying declaration is admissible not only in case of homicide, but
also in civil suits. Under English law, the admissibility rests on the principle that a
sense of impending death produces in a man's mind the same feeling as that of a
conscientious and virtuous man under oath.

The general principle on which this species of evidence is admitted is that they
are declarations made in 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 other relevant facts and
circumstances of the case.

In the present case, the dying declaration was after two months of the alleged
incident. It was not at a time when the deceased was expecting imminent death. Neither
the post-mortem nor the deposition of the doctor carry any definite inference that the
cause of death was on account of burning. There was a conflict between two dying
declarations, in one there was inter se inconsistency as revealed in the depositions of
the witnesses, in the other there was no naming of any accused when made before a
magistrate. The court held that on such an evidence, the trial court rightly declined to
base a conviction, but the High Court committed a manifest error in placing reliance on
it.
 Tehal Singh v State of Punjab37

The head constable who recorded the dying declaration in this case had stated in his
evidence that he put questions to the deceased and recorded his answers. He stated that
he recorded what the deceased stated, 'in his own way'. It does not mean that he
recorded something other than what the deceased stated. All that it meant was that the
language was his but the substance was that of the deceased. No infirmity could be
attached to the dying declaration on this account.

The dying declaration was recorded by the head constable Kulwant Singh at the
hospital in the presence of the medical officer Dr Pasricha. We were taken through the evidence
of Kulwant Singh and we were The learned counsel also contended that the medical evidence
namely that of PW 9, who conducted the post-mortem, is in conflict with the version
given in the dying declaration that after the deceased fell down, the three appellants
inflicted injuries with knives and axes. PW 9 in the cross-examination gave his opinion
that the injuries as found would show that they might have been inflicted while the
injured was standing. No doubt in the dying declaration, it was mentioned that the
deceased was beaten by A 3 and that he had fallen down. But that did not mean that he
would not have made an attempt to get up and stand.

The opinion given by PW 9 was not in direct conflict with the version given in
the dying declaration. Apart from the dying declaration, Ex PI, there was also the
evidence of PWs 2-4 which had been relied upon by the High Court. PW 2 after
witnessing the occurrence immediately rushed to the police station and informed the
police. As a matter of fact, his name was mentioned in the dying declaration itself. PW
4 deposed that he was selling groundnuts on a pushcart. He knew the accused and
deposed that these accused persons attacked the deceased. The evidence of these two
witnesses lent ample corroboration to the dying declaration. Therefore, we saw no
grounds to interfere with the findings of the High court.

37
AIR 1979 SC 1347
 Lella Srinivasa Rao v. State of Andhra Pradesh38

An important case regarding the admissibility of more than one dying declarationThe
deceased was married to the appellant on 24 th January, 1988. It appears that some
differences cropped up between them to which we shall refer later in this judgment. On
the 15th August, 1990 the deceased Bhavani set fire to herself and her 1-1/2 years old
daughter at about 12.45 p.m. She had closed the door of her room and after pouring
kerosene oil on herself and her child set herself ablaze. When she cried in pain her
neighbours came to her rescue, got the door opened, and put off the fire. She was taken to
the Government Hospital, Chirala along with child. Intimation was sent by the hospital
authorities to the Magistrate for recording the dying declaration of the deceased. On such
request PW-13 the II Additional Munsif Magistrate, Chirala visited the hospital at 3.05
p.m. and recorded the dying declaration of Bhavani which was exhibited at the trial as
Ex.P-18. The dying declaration was recorded by him between 3.30 p.m. and 3.40 p.m.
The said dying declaration is in question answer form and was recorded in the presence
of the treating physician who certified that Bhavani was conscious when the dying
declaration was recorded. The Munsif Magistrate read over the contents to the deceased
in the presence of the Doctor and on Bhavani admitting the statement to be correct, she
affixed her thumb impression on the dying declaration.There is another dying declaration
on record Ex.P-19 which was recorded by Head Constable.

In the first dying declaration there is only a general allegation against the mother-
in-law, accused No. 2, in the second dying declaration the allegation of harassment is
against the husband as well as the mother-in-law and the immediate cause for the suicide
was her being harassed by her husband, the appellant herein, after her parents had left. It
cannot be disputed that the two dying declarations are not consistent with each other. The
complicity of the appellant herein is disclosed only in the second dying declaration

38
MANU/SC/0172/2004
 The hon’ble Supreme Court held that having noticed the evidence on record and
having noticed the inconsistency between the two dying declarations, we do not find it
safe to base the conviction of the appellant on the basis of the second dying declaration.
As noticed earlier, in the first dying declaration there is no mention about the appellant
having treated the deceased with cruelty or of his having caused harassment to the
deceased. In fact, his name does not find place in the relevant portion of the first dying
declaration. The first dying declaration was recorded by a Magistrate after taking all
necessary precautions. The deceased was in a position to make a statement which was
certified by the treating physician who was also present when the statement was recorded.
Only 5 minutes thereafter another statement was recorded by the Head Constable and in
that dying declaration allegations have been made against the appellant and fact stated
relating to the immediate cause which led the deceased to commit suicide which are
attributable to the appellant, though there is a statement that her mother-in-law also used
to harass her. Accordingly, we allow this appeal and acquit the appellant of the charge
under Section 498-A I.P.C

 Kulwant Singh and Ors. v. State of Punjab39

The parties had disputes both as regard boundaries of their agricultural land as also as
regard irrigation of their respective field. The statement of one Partap Singh on a
certificate issued by the doctor that he was fit to make a statement was recorded Partap
Singh, however, succumbed to his injuries. The issue was whether the statement of Partap
Singh recorded on 18.6.1987 should be construed to be a dying declaration

The court observed that section 32 of the Indian Evidence Act, 1872 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. The fact that the investigating officer from the beginning intended to
take the statement of Partap Singh is not in dispute. The endorsement made by the doctor
in Ex.PQ/1 and Ex.PR/1 would clearly show that he had not been found fit to make such

39
MANU/SC/0060/2004
statement. Only on the fifth day i.e. 18.6.1987, the statement of Partap Singh could be
recorded.
Section 32 of the Indian Evidence Act also does not state that a dying declaration should
be made only in expectation of death and in that view of the matter the fact that Partap
Singh died on 26.6.1987 after a period of one week is of no consequence. Explanation-I
appended to Section 32 specifies that when the statement is made by a person as to the
cause of his death, or any of the circumstances of the transaction which resulted in his
death where cause of death of that person's death comes into Question would be a
relevant factor.

In Ramawati Devi v. State of Bihar [AIR 1983 SC 164], this Court observed :
"...A statement, written or oral, made by a person who is dead as to the cause of his death
or as to any of the circumstances of the transaction which resulted in his death, in case in
which the cause of that person's death comes into question, becomes admissible under
section 32 of the Evidence Act. Such statement made by the deceased is commonly
termed as dying declaration. There is no requirement of law that such a statement must
necessarily be made to a Magistrate. What evidentiary value or weight has to be attached
to such statement must necessarily depend on the facts and circumstances of each
particular case. In a proper case, it may be permissible to convict a person only on the
basis of a dying declaration in the light of the facts and circumstances of the case. In the
instant case, the dying declaration has been properly proved..."

In Tehal Singh and Ors. v. State of Punjab [AIR 1979 SC 1347], this Court
negatived the contention that a dying declaration should be made only in expectation of
death, stating :
"... We do not also see any force in the suggestion of Dr. Chitale that the statement of
Harmel Singh was not made in expectation of death and was, therefore, not entitled to
weight. Apart from the fact that Section 32 of the Evidence Act does not require that a
statement should be made in expectation of death, it is clear from the evidence that the
condition of Harmel Singh was serious at that time. In the requisition made by the
Medical Officer to the Police it has been clearly mentioned that the condition of Harmel
Singh was serious. The very circumstance that Dr. Pasricha advised that Harmel Singh
should be removed to Bhatinda Hospital for better treatment clearly indicates that the
condition of Harmel Singh was serious..."
In that view of the matter, the statement of Partap Singh, in the courts opinion, would be
admissible under Section 32 of the Indian Evidence Act.

 Narain Singh and Anr. v. State of Haryana40

Four persons faced trial for allegedly causing homicidal death of one Kaushal Singh
(hereinafter referred to as 'the deceased') after abducting him. All the four accused
persons faced trial for the offences punishable under Sections 364, 302, 323 read with
Section 34 of the Indian Penal Code, 1860 (for short 'the IPC'). They were found guilty of
the charged offences. Sentences of life imprisonment, rigorous imprisonment for 10 years
and two months respectively were imposed for three offences, and fine with default
stipulation in case of non-payment of fine. The statement of deceased was recorded under
Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Cr.P.C.') which was
treated subsequently to be the dying declaration.

The court he that Though in law there is no bar in acting on a part of the dying
declaration, it has to pass the test of reliability. Section 32(1) of the Indian Evidence Act,
1872 (in short 'the Evidence Act') is an exception to the general rule that hearsay evidence
is not admissible evidence and unless evidence is tested by cross-examination it is not
creditworthy. A dying declaration made by a 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 guarantee of the truth of the
statement of the deceased regarding circumstances leading to his death. But at the same
time the dying declaration like any other evidence has to be tested on the touchstone of
credibility to be acceptable. It is more so, as the accused does not get an opportunity of

40
MANU/SC/0095/2004
 questioning veracity of the statement by cross-examination. The dying declaration if
found reliable can form the base of conviction.

 Suraj Mai v State of Punjab41

To prove the charge leveled against the appellant, the prosecution had relied upon the
dying declaration Ex PI supported by the evidence of PWs 5, 6 and 17. Of the witnesses
PW 5 had not supported the prosecution case as he had resiled from his earlier
statement made under s 161, Cr PC and as such, he had been treated as a hostile
witness.

It is true that the medical officer PW 4 after supporting the entire prosecution version in
his chief-examination, towards the end of his cross-examination stated that he did not
know whether the statement recorded by the ASI was correct or not, and he had not
attested the same as he was not satisfied with the correct recording of the statement
from Rajbir Singh. However, PW 4 has not stated that the deceased gave any other
name except the name of the present appellant as the assailant in this case. Not even a
suggestion had been addressed to the medical officer to any other witness that the
deceased gave different name, but the ASI recorded the name of the appellant as the
assailant. As already pointed out, the assailant was none other than the brother of the
deceased himself. Therefore, it was far-fetched to suggest or even imagine that the ASI
could have substituted the name of the appellant as the assailant leaving out the name
of the real assailant.

 Abdul Sattar v State of Mysore 42

41
1992 Cr. L.J.520
42
AIR 1956 SC 168.
Section 32, Evidence Act 1872—along with the evidentiary value of statements as to
death, the dying declaration and the question of admissibility in evidence is
discussed in this case study.The dying declaration in a murder case was incomplete by
reason of the deceased not being able to answer further questions in his condition. at
the time, the statements so far as they went to implicate the accused in the affair were
quite categoric in character and they definitely indicated that it was the accused who had
shot the deceased. There was also corroboration for the dying declaration.
Held that the statement in regard to the accused having shot the deceased was
complete in itself and it could not be said that any further questions would have elicited
any information which would run counter to the same. Under the circumstances, the
dying declaration, though incomplete otherwise, was complete so far as the accused
having shot the deceased was concerned and could certainly be relied upon by the
prosecution. The corroboration of the dying declaration invested it with a stamp of
truth which went a long way towards incriminating the accused.9"
It was not correct to convict an accused person merely on the evidence of a dying
declaration without further corroboration because such a statement is not made on oath
and is not subject to cross-examination. Moreover, the maker of it might be mentally and
physically in a state of confusion and might well be drawing upon his imagination
while he was making the declaration .

We are of the opinion that these observations do not help the appellant at all. In
the dying declaration before us, even though the same was incomplete by reason of the
deceased not being able to answer further questions in his then condition, the statement
so far as they went to implicate the Accused No 1 in the affair were quite categoric in
character and they definitely indicated that it was the Accused No 1 who had shot the
deceased.

 Kishan Lai v State of Rajasthan 43

There is a distinction between the evaluation of a dying declaration under English

law and that under Indian law. Under English law, credence and relevancy of a
43
(2000) 1 SCC 310
dying declaration is only when a person making such a statement is in a hopeless
condition and expecting imminent death. Similarly, 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 full apprehension of this danger and
that the death should have ensued. Under 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 the declaration. A dying declaration is admissible not only in case of homicide, but
also in civil suits.

Under English law, the admissibility rests on the principle that a sense of
impending death produces in a man's mind the same feeling as that of a conscientious
and virtuous man under oath. The general principle on which this species of evidence
is admitted is that they are declarations made in 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 other relevant facts and circumstances of the case.

In the present case, the dying declaration was after two months of the alleged
incident. It was not at a time when the deceased was expecting imminent death. Neither
the post-mortem nor the deposition of the doctor carry any definite inference that the
cause of death was on account of burning. There was a conflict between two dying
declarations, in one there was inter se inconsistency as revealed in the depositions of
the witnesses, in the other there was no naming of any accused when made before a
magistrate. The court held that on such an evidence, the trial court rightly declined to
base a conviction, but the High Court committed a manifest error in placing reliance on
it.