J Indian Acad Forensic Med. July-September 2014, Vol. 36, No.

3 ISSN 0971-0973

Medico-Legal Aspects of Dying Declaration in India

1 2 3 4
Lohith Kumar, Kulbhushan, C. Behera, Anil Kumar

Abstract
A dying declaration is a statement made by a dying person as to the cause of his death or as to
any circumstances of the transaction that resulted in his death. The dying declaration forms the sole basis
of conviction if it is free from any kind of doubt and if it has been recorded in the manner as provided
under the law. It should inspire full confidence in its truthfulness and correctness. Not recording of dying
declaration will result in miscarriage of justice because the victim being generally the only eye-witness in
a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. It is for
the court to see that dying declaration inspires full confidence as the maker of the dying declaration is not
available for cross examination.
This article focus on the medico-legal and ethical aspects encountered while recording dying
declaration and its weightage in the court of law.

Key Words: Compos mentis, Courts, Dying declaration, Magistrate, Police officer

Introduction: The credence and relevancy of dying

A dying declaration is “a statement, declaration under the English law is only when
written or verbal made by a person as to the the declarant is in hopeless condition and under
cause of his or her death or as to the the expectation of death.
circumstances of the transaction resulting in his However in Indian law it is not
or her death”. [1] necessary that the deceased at the time of
It is based on the principle that dying giving the statement should be under the
declarations are made in the extremity when the expectation of death and the dying declaration is
party is at the point of death, and every hope of admissible not only in the case of homicide but
this world has gone, when every motive to also in civil suits. Under the English law, the
falsehood is silenced and the mind is induced by admissibility of dying declaration is confined to
the most powerful considerations to speak the criminal charges of murder or manslaughter
truth. A situation so solemn and so awful is only. [3, 4]
considered by the law as creating an obligation Compos Mentis:
equal to that which is imposed by a positive oath It is essential that the declarant must be
administered in a court of justice. in a sound state of mind (compos mentis) at
Thus the oath is not administered when the time of making the declaration. The doctor is
dying declaration is recorded. Its admissibility required to certify that the patient is in a sound
has been explained in the section 32 (1) of mental condition to make a statement before it is
Indian Evidence Act. [2] recorded. Most suicidal cases will have
There is a clear distinction between the predisposing medical conditions and psychiatric
evaluation of dying declaration under the Indian illness, which may trigger the victim to succumb
law and the English law. to death. The doctor who is giving fitness should
make a note of his/her predisposing medical
Corresponding Author: illness and state of consciousness during the
1
Assistant Professor, statement or else its validity remains
Dept. of Forensic Medicine, questionable. [5]
Kodagu Institute of Medical Sciences, Madikeri Most important point of consideration is
E-Mail: lohithkumar01m4247@gmail.com that victim was in a fit condition of mind to give
2
Assist. Prof, the statement when recording was started and
3
Assist. Prof, Dept. of Forensic Medicine, remained in fit condition of mind till the recording
All India Institute of Medical Sciences, Delhi
4
Director Prof & HOD, Dept. of Forensic Medicine,
of the statement finished. Merely stating that
VMMC & Safdarjung Hospital, Delhi patient was fit will not serve the purpose.
DOR: 12.10.2013 DOA: 23.12.2013 This can be best certified by the doctor
who knows best about the condition of the
patient. But even in conditions where it was not
possible to take fitness from the doctor, dying

281
J Indian Acad Forensic Med. July-September 2014, Vol. 36, No. 3 ISSN 0971-0973

declarations have retained their full sanctity if The law does not provide direction on
there are other witnesses to testify that victim who can record a dying declaration. The
was in such a condition of the mind which did Supreme Court Bench of justices B S Chauhan
not prevent him from making statement. and Dipak Misra while reversing an acquittal in a
Medical opinion cannot wipe out the dowry death case ordered by Madya Pradesh
direct testimony of the eyewitness stating that High Court said that any member of the public
the deceased was in fit and conscious state to can record the statement of a dying declaration,
make the dying declaration. but he should make sure that the one making
Recording of the statement should not the statement should be conscious and his
be under the influence of anybody or prepared mental status are normal. [6]
by prompting, tutoring or imagination. Even if But ideally, magistrate should record the
any one of these points is proved then dying statement in all cases and if not possible at least
declaration is not considered valid. If it becomes in allegation cases, so that exact cause of death
suspicious then it will need corroboration. from the declarant can be elicited on the spot
Ideally the treating doctor should give and long waiting trails can be avoided. It cannot
fitness for statement as he knows best about the be said that a statement recorded by a police
condition of the patient keeping in mind the pre- officer is always invalid.
existing diseases of the declarant. The practice of investigating police
He should also record date and time of officer himself recording a dying declaration
giving compos mentis. Most important point of during the course of investigation is ideally not to
consideration is that declarant was in a fit state be encouraged as he may influence on the
of mind to give the statement when recording declarant statement. Dying declaration should
was started and remained in fit condition till the be recorded in the presence of independent
recording of the statement finished. witnesses by recording the date and time of
Merely stating that patient was fit will not starting and ending of statement.
serve the purpose. But the court has held that Declarant should not be under the
even if no certificate was affixed that the influence of anybody nor prepared by prompting,
declarant was under fit state of mind, the tutoring or imagination.
recorded statement still carries validity as the Even if any one of these points is
sense of impending death produces in man’s proved then dying declaration is not considered
mind to make true statement. [5] valid. Court has held that, if an investigating
Recording of Dying Declaration: officer records dying declaration not in local
Indian law doesn’t provide any dialect to which the deceased belonged makes
prescribed manner, format or procedure for the dying declaration suspicious. [5]
recording dying declaration. But ideally it is But the court did not mention anything
recorded in local dialect in narrative form. on the validity of the recorded declaration where
It gives less chance of asking leading declarant is illiterate and investigating officer not
questions and nothing is being prompted. In understanding the local language of declarant.
question and answer forms, most of the points The declaration after being recorded
will be missed and the declarant concentrates should be read over to the declarant, who
only on the questions which he was asked. should affix his or her signature/ thumb
Calcutta High Court has ruled that impression to it and if not, then should mention
where a dying person is unable to speak and the reason for not taking it in the end of the
can make only signs to the questions put to him, statement. If the declarant writes his statement
such questions and signs put together might be himself, the statement should be signed and
regarded as ‘verbal statement’ made by a attested by both the witness and investigating
person as to the cause of his death within the officer. If the declarant becomes unconscious
meaning of S 32 of Indian Evidence Act, and are while the statement being recorded, person who
therefore admissible in evidence. [1] is writing it must elicit as much as information
The accuracy of such verbal statement and sign it.
and the investigating officer having influence on When concluded, it should be signed by
declarant, recording such verbal statement the person who is recording along with date and
remains questionable. time of recording it, and also obtain the
signature of the independent witness who can
corroborate the content of the document.
Such declaration will be truthful and
Who Can Record Dying Declaration? reliable. If a victim loses consciousness in the
middle of recording statement, the evidentiary

282
J Indian Acad Forensic Med. July-September 2014, Vol. 36, No. 3 ISSN 0971-0973

value of such incomplete declaration is again declaration Performa, so that all the statements
questionable. Law does not provide any can be precisely recorded in it.
information on this issue. After recording The purpose behind this is, no single
statement its confidentiality is maintained. data will be missed and the procedure will be
It should be sealed in a proper envelope recorded in an ideal way.
with a seal and sent to the concerned authorities Most of the errors in dying declaration
and a photocopy should be kept in case file, but are due to lack of knowledge among police
are usually not followed in routine. If a declarant officers, which could be minimized by training
has made more than one dying declarations and them. The court has to give proper guidelines for
if these are not at variance with each other in recording dying declaration by clearly defining
essence, they retain their full value. If these grey areas. This will improve the validity and
declarations are inconsistent, such dying reliability of the statement to a far more extent.
declaration loses their value. [5] References:
Conclusion: 1. K. Mathiharan, K Kannan. Medical Evidence and Medical Witness,
Modi’s Medical Jurisprudence and Toxicology. 24thed, Lexis Nexis
Great importance is attached to a dying Butterworth’s; 2011. p. 42-50.
declaration by courts, and if properly recorded 2. Gorea RK, Aggarwal OP. Critical Appraisal of Dying Declaration.
keeping in mind all the essential ingredients, can JIAFM. 2004; 26(1): 24-26.
form the basis of conviction. 3. Bhajju @ Karan Singh vs. State Of M.P. on 15 March, 2012.
Available from: http://indiankanoon.org/doc/166873249/.
Verdicts of higher courts on dying 4. Dr.Mukesh Yadav. Dying Declaration: A Vital Medicolegal Evidence.
declaration shows it is used as corroborative JIAFM 28 (4) 2006: 155-158. Available at www.iafmonline.in.
evidence as most of the recorded statements 5. Narayan Joshi. Dying declaration, Medical Jurisprudence and
have incomplete details which make it invalid. All Toxicology, 2nd ed, Kamal Publishers; 2011. P. 192-218.
6. Mahapatra, D. Anyone can record a dying declaration, Supreme
the hospitals should have their standard dying Court rules. The Times of India. 24 May 2013; Page 7 (Col. 1).

Review Research Paper

283