Published On: 14th August 2026
Authored By: Urmila Biswas
Department of Law,
University of Calcutta
INTRODUCTION
The apex court of our country, on 15th May 2024, upheld the conviction of an ex-army personnel for murdering his wife 22 years ago. The Supreme Court further held in this case that the court of law uses an authentic dying declaration to convict an accused without any further evidence. It was held by the bench of Justice Abhay S. Oka and Ujjal Bhuyan that careful inspection and inquiry are needed to ensure that the dying declaration is voluntary.[1] The term dying declaration essentially means a statement made by a person as to the cause of his death or the transaction that resulted in his death. It can be the sole purpose for which an accused might be convicted during court proceedings. The concept is based on the legal maxim “nemo moriturus proesumitur mentiti”, which means that a man will not meet his maker with a lie in his mouth. The Dying Declaration has occupied an important place in the law of evidence. The Indian Judiciary over the years has accepted the principle of dying declaration, and its admissibility is widely prevalent.
DYING DECLARATION & INDIAN EVIDENCE ACT
The Indian Evidence Act, 1872[2], in its provision, mentions certain special statements in Section 32[3]. It is particularly used in situations when a person is dead, or a person cannot be found, or when a person is deemed incapable of giving evidence in a case, or a person’s attendance cannot be obtained without delay. Especially Section 32 (1)[4] mentions the principle of ‘Leterm Mortem’, which means the words spoken before death. These words are spoken in a situation of extremity when the party is at the point of death, or the person states the cause of their death under the notion of expectation of death, or the circumstances which led to their death. Thus, these statements are considered as evidence without regard to the nature of the proceedings. It is considered that when a person is at the point of death, he is induced by no more falsehood and malafide motive, and their mind is inclined towards the positive intent of speaking the truth. The leverage of the situation demands that law considers it as an obligation to accept the correctness of the statement.
DYING DECLARATION & THE BHARATIYA SAKSHYA ADHINIYAM
The Concept of a Dying Declaration has been provided in Section 26(a)[5] of the Bharatiya Sakshya Adhiniyam. The contents of this act are mostly similar to the Indian Evidence Act of 1872, or rather an improvised version of the act. Similarly, the provision of Section 32(1)[6] of the Indian Evidence Act, 1872, is similar to the provisions of Section 26(a)[7] of the Bharatiya Sakshya Adhiniyam. Thus, this provision also presumes that a person who is about to die, or the circumstances and transaction which led to his death, are all correct and true after considering the extremity of the situation. A person is not presumed to lie at his deathbed, even in legal proceedings.
ESSENTIALS OF DYING DECLARATION
A few essentials need to be fulfilled in case of a dying declaration. The declarant must believe that they are about to die, and the statements must directly relate to the individual’s death. Firstly, the relevance of the statement needs to be checked, whether there is any connection between the statements and the cause of death. If there is any conflict between them, then the court of law does not accept it as evidence. The second important essential is the consistency of the statement, if the statements are inconsistent, then it is not accepted as evidence by the court. The third and probably the most important point is the presence of free will; that is, the deceased should have made this statement voluntarily and in the presence of free will. The court of law only accepts voluntary statements, which are not induced or forced by anyone.
If the declaration of the statements is not complete, and it does answer important questions as to the ongoing case, it shall not be admitted as evidence. Moreover, along with all the above essentials being fulfilled, a medical certificate also needs to be brought before the court. The medical certificate shall contain whether the deceased was capable of understanding the meaning of the statements made by him. The person making the statements must be mentally competent to understand the gravity of the situation.
FORMS OF DYING DECLARATION
There are different forms in which a dying declaration can be conveyed; it may be oral as well as in writing. It can be communicated through gestures, signs, glances, and even nods. It is very well settled that the dying declaration need not always be in writing and not even in the format of a questionnaire. The Supreme Court also upheld this fact in a case where it stated that considering the gravity of the situation, and sanctity of the statement. As the dying declaration is made by a person who is about to die, or may be apprehending his death, or stating about the circumstances which led to his death, it cannot be disregarded because it is not in question-answer format. The statement cannot be declared as unreliable in such situations.
ADMISSIBILITY OF AN INCOMPLETE DYING DECLARATION
In general terms, an incomplete dying declaration is not admissible in a court of law. However, if the deceased has provided all the relevant information concerning the case, and there is no sense of ambiguity, then it is considered an admissible dying declaration. It cannot be stated as inadmissible merely because some facts have not been supplied. In the landmark case of Puran Chand v. State of Haryana (2010)[8], it was held that minor inconsistencies or incomplete facts do not render the dying declaration inadmissible. It was also stated that if there are major inconsistencies as to the facts of the case, then the declaration is deemed inadmissible.
CAN A DYING DECLARATION BE RECORDED AND BY WHOM?
The dying declaration can be recorded in many ways. In the Nirbhaya Rape Case[9], the dying declaration was made by the victim to the sub-divisional magistrate. The Dying Declaration was made by the victim mostly by gestures and signs. Thus, this case is the living evidence of the fact that dying declaration by gestures and signs are admissible in the court of law. A declaration is usually recorded in the language of the declarant. It ensures that the declaration is more reliable and valid.
The Magistrate is empowered to record the dying declaration irrespective of the fact that whether he has the jurisdiction to try the case or not as per Section 164[10] of the Code of Criminal Procedure. The Dying Declaration can also be recorded by the person who has some relation to the victim. There is no necessity to have a blood relation with the victim, it can be a circumstantial relation or relation employing facts. However, the person needs to prove the fact that the person who made the dying declaration was in a fit state of mind and capable of giving evidence when it was recorded. However, a dying declaration can be recorded by a Magistrate, police officer, or by any other person. But it holds maximum prominence when taken by the doctor or a police officer rather than by any normal person.
RECORDING IN DIFFERENT LANGUAGES
The Dying Declaration can be recorded in the language of the declarant or the language of the court. The declaration can not he held as invalid merely on the ground of language by the court of law. In the prominent case of B. Shashikala v. State of Andhra Pradesh[11] there were some major questions about the dying declaration. The victim’s dying declaration was made in Hindi, but the Magistrate asked the question in English, while the Doctor acted as a translator between them. It was held in this case that since both the Magistrate and the Doctor had working knowledge of Hindi, the victim had no scope to induce the statements wrongfully, especially in the presence of the translator. Thus, the declaration was rightfully considered during the proceedings by the court of law.
MULTIPLE DYING DECLARATIONS
The Supreme Court has held that multiple dying declarations can be relied upon only when there is consistency in all the declarations. There should be a nexus between the facts of the case and the statements of the other witnesses. If both the conditions are fulfilled, then only the statements of the deceased are permissible as a witness. The nature of the dying declaration can be truly understood when the facts of the case match with the dying declaration of the deceased. The two essentials in this regard are: There should be consistency in all the dying declarations; if the declaration does not match, it shall be examined with the facts of the case, or the witnesses shall be examined.
The landmark case of Sher Singh v. State of Punjab[12] should be mentioned in cases of multiple declarations. The victim had made three declarations in this case, and all of them were recorded. The question arose as to which one of the declarations should be used by the court as evidence in its proceedings. The Court of law held that the third declaration, which was consistent with the second declaration, should be admissible. The first declaration was made immediately by the victim when he was admitted to the hospital and was made under force or duress. Thus, the first declaration was inadmissible due to its involuntary nature.
WHETHER AN EXPECTATION OF DEATH IS NECESSARY?
The English law generalizes the concept and puts forward the fact that the victim in a case should not be under the expectation of death. Since the concept of dying declaration is borrowed in India from the English law, we can conclude that even if the statement is made at a time when no cause of death has arisen, the statement will be admissible in the court. Not all the statements of declarations need to be made only before the death of the person. In Pakala Narayan Swami v. Emperor[13] it was held in this case that the letter given by the deceased to his wife before going to the place where he was killed was relevant. In this case, the court stated that a dying declaration can be any statement that explains the cause of death or the circumstances of the transaction explaining his death; thus, it is admissible under Section 32 of the Indian Evidence Act of 1872. Hence, statements to any of the circumstances of the transaction that resulted in the death would be included.
IS THE DEATH OF THE DECLARANT A NECESSARY CONDITION?
The death of the declarant stands out to be a necessary condition in one pretext or the other. What will be the consequence if the declarant of the dying declaration does not die after recording the declaration? In such a situation, when the declarant does not die even after recording the dying declaration, then the statements shall not be used in the court of law as a dying declaration. The declarant shall be brought before the court as a witness against the accused, he confronts the accused in the court of law. The dying declaration can only be admissible when the death of the declarant occurs. Moreover, the dying declaration is recorded only on the presumption of the death of the accused.
DISTINCTION BETWEEN SUICIDE AND DYING DECLARATION
The main difference between a Suicide and a Dying Declaration is that in case of suicide, a person ends his life through his actions, but the Dying Declaration is when the declarant records a statement about the cause of his death. Suicide is generally a person’s individual decision to end life, whereas a dying declaration is when there is a need to provide evidence about the cause of death or to provide clarity or evidence on how the death occurred. A Dying Declaration is admissible in a court of law, but historically, suicide was not given the same status.
RELEVANCE OF FIRST INFORMATION REPORT AS A DYING DECLARATION
Whenever a person lodges a First Information Report (F.I.R.) in any police station and dies after the same. The First Information Report (F.I.R.) shall be treated as a dying declaration in the court of law, which is put forward by the police officer. The Supreme Court in the case of Sharad Birdhi Chand Sarda v. State of Maharashtra[14] emphasized that a dying declaration, including a First Information Report (F.I.R.), should be trustworthy and should not be influenced by any third party. The Apex Court, in the case of Bhajju @ Karan Singh v. State of Madhya Pradesh[15] reiterated that a First Information Report (F.I.R.) made by the deceased before death could be treated as a dying declaration, provided that it is recorded after maintaining all the legal requirements of voluntariness, coherence, and the absence of any form of force or duress.
DIFFERENCE BETWEEN DYING DECLARATION & DYING DEPOSITION
The dying deposition is almost a dying declaration, the main difference is in terms of recording the statements. While the Dying Declaration is recorded in the presence of the Magistrate, doctor, police officer, or even by any normal person, the Dying Deposition can only be recorded in the presence of the Magistrate. The essentials of a Dying Deposition are that it needs to be recorded in the presence of the accused in front of the Magistrate by the advocate of the accused. Though the Dying Declaration has no such essentials, but the evidentiary value of the statement recorded by the magistrate is more than any other normal person recording the statements. Moreover, the process of administering the oath is important in the case of a Dying Deposition, which is not the same in case of a Dying Declaration, as the oath is not administered.
CRITICISM OF DYING DECLARATION
Every coin has two sides; the same is true in the case of the Dying Declaration, as the negative side cannot be ignored. The concept of a Dying Declaration has been criticized by several legal scholars since the 19th century. The critics pointed out that a person always desires to give up the responsibility of his wrong-doing on another person; a person is also in the weakest state of physical and mental capacity when he approaches his death, several questions are put forward about the procedure that is how a statement can be made in the absence of the accused, especially when it is admissible as prominent evidence in a court of law. Some critics are of the view that it is dangerous evidence as there is no scope of cross-examination on the side of the accused. There is a very high scope of manipulating the pieces of evidence if proper supervision is absent while recording the dying declaration. The victim, being a human being, has a high chance of being influenced by others’ opinions and also by force or duress. Thus, considering all the points stated above, the Dying Declaration stands out to be dangerous.
LANDMARK CASES
- Bhairon Singh v. State of Madhya Pradesh[16]
In this case, the dead body of the deceased was found in a well of the village. The cause of the death was held to be drowning. The trial court also stated that the incident was an accident, and the accused was set free. But, later on, the trial court reversed its judgment and held the accused as guilty under Section 498-A[17] of the Indian Penal Code as well as Section 3[18] of the Dowry Prohibition Act, 1961. The accused was punished with a rigorous imprisonment for three years, along with a fine of Rs. 15,000/- (Fifteen thousand rupees only). When the case was brought before the High Court, the brother of the deceased stated before the court of law that the accused used the deceased to get a job from him. Moreover, the accused also constantly demanded Rs. 1,00,000/- (Rupees One Lakh only) as dowry from the deceased, on refusal of which the accused, by putting a cloth over the mouth of the deceased, inhumanly beat her. Thus, the High Court also convicted the accused by making some changes in the judgment.
- Khushal Rao v. State of Bombay[19]
This is another prominent case where the court of law, that is, the Supreme Court, held that a reliable Dying Declaration can be the main ground on which an accused can be convicted. There is no need for any further evidence in this regard. If the declaration is unambiguous, then it is a credible source of evidence that can be accepted by the Court. However, it needs to be ensured that there was no form of undue inducement, the declarations should not be imaginary, and the deceased should be mentally fit and sound.
CONCLUSION
The above discussions very clearly uphold the point that the concept of a Dying Declaration is very crucial in our Indian Justice System, especially concerning the criminal justice system. These declarations are admitted as evidence in the court of law because it is believed that the person who is at his deathbed will not lie. Despite its reliability and credibility, proper safeguards are essential to ensure that the statements and declarations are solely used for the cause of justice. Moreover, if a declaration is made with malafide intent or was a product of coercion or imagination of the victim, then it can be rejected by the court of law. We can conclude that a crucial examination of the facts of the case is essential to determine the admissibility of the Dying Declaration in a court of law.
REFERENCES
[1] Authentic dying declaration can be sole basis for conviction of accused: SC/ Suchitra Kalyan Mohanty Available at:
https://www.newindianexpress.com/thesundaystandard/2024/Jun/02/authentic-dying-declaration-can-be-sole-basis-for-conviction-of-accused-sc (Accessed: March 31st, 2025).
[2] INDIAN EVIDENCE ACT, 1872.
[3] INDIAN EVIDENCE ACT. SEC. 32.
[4] INDIAN EVIDENCE ACT. SEC. 32(1).
[5] THE BHARATIYA SAKSHYA ADHINIYAM. SEC.26(a).
[6] SUPRA 5.
[7] SUPRA 6.
[8] Puran Chand v. State of Haryana 2010 AIR SCW 367.
[9] Nirbhaya Rape Case (2017) 6 SCC 1.
[10] THE CODE OF CRIMINAL PROCEDURE. SEC.164.
[11] B. Shashikala v. State of Andhra Pradesh AIR 2004 SUPREME COURT 1610.
[12] Sher Singh v. State of Punjab 1983 AIR 465.
[13] Pakala Narayan Swami v. Emperor (1939) 41BOMLR428.
[14] Sharad Birdhi Chand Sarda v. State of Maharashtra 1984 AIR 1622.
[15] Bhajju @ Karan Singh v. State of Madhya Pradesh 2012 4 SCC 327.
[16] Bhairon Singh v. State of Madhya Pradesh AIR 2009 SUPREME COURT 2603.
[17] INDIAN PENAL CODE. SEC.498-A.
[18] DOWRY PROHIBITION ACT, 1961.SEC 3.
[19] Khushal Rao v. State of Bombay 1958 AIR 22.
