Recording of Dying Declaration

Ilma khan1
Introduction
Dying declaration is based upon the maxim “nemo moriturus pra esumitur mentire”which
means a man will not meet his maker with a lie in his mouth. A dying declaration is the last
declaration of a person who is likely to die. Dying declaration is based upon the principle
LETERM MORTEM meaning, Words said before death, and in the legal term it is known as
DYING DECLARATION .
A dying declaration can be composed or verbal made by an individual concerning the reason for
his passing or with regards to the conditions of the exchange bringing about his demise". It
makes the sole premise of conviction just when it is liberated from any uncertainty and when it
has been recorded according to the legitimate way. It is viewed as dependable and reliable proof
in light of the fact that nobody will meet his maker lying. Subsequently, it is an exemption for
the Hearsay rule, since who is giving prattle proof isn't telling his own encounters however of
someone else and who can not be questioned to confirm the realities given. Be that as it may, as
the individual who knows about the realities referenced in the segment is dead, any individual to
whom the assertion alluded to in the part is made, could give proof concerning what he heard.
The reason for admitting such evidence are,
(a) It is the best evidence available on record, and
(b) the event is grave, and the withering man is eye to eye with the individual to whom he makes
the statement with no rationale in lying.
Section 32(1) of the Indian Evidence Act deals with the admissibility of dying declaration,
which reads as follows 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 question2.
In English law the declarant should be under assumption for death only at that time this
statement is legitimate. It is acknowledged both in common and criminal cases at whatever point
the reason for death comes into question. Assuming we read the different decisions on the
tolerability of kicking the bucket revelation now and again different adjudicators have taken
inverse perspectives and various clarifications have been offered however the rationale in all
have been to give equity to individuals.
Manner of recording DYING DECLARATION:

1
Student of BA.LLB(HONS) LAW College Dehradun,UU
2
Indian evidence act , 1872 [section 32(1)]
 1. Rule 33 of criminal rules of practice deals with the manner to be followed by the
magistrate while recording DYING DECLARATIONS. It is as follows:
I. While recording a Dying Declaration, the Magistrate shall keep in view the fact
that the object of such declaration is to get from the declarant the cause of death
or the circumstances of the transaction which resulted in death.
II. Before taking down the declaration, the Magistrate shall disclose his identity and
also ask the declarant whether he is mentally capable of making a declaration. He
should also put simple questions to elicit answer from the declarant with a view to
knowing his state of mind and should record the questions and answers, signs and
gestures together with his own conclusion in the matter. He should also obtain
whenever possible a certificate from the Medical Officer as to the mental
condition of the declarant.
III. The declaration should be taken down in the words of the declarant as far as
possible. The Magistrate should try to obtain from the declarant particulars
necessary for identification of the accused. Every question put to the declarant
and every answer or sign or gesture made by him in reply shall be recorded.
IV. After the statement is recorded, it shall be read over to the declarant and his
signature obtained thereon, if possible, and then the Magistrate shall sign the
statement.

02. Rule 33 of Criminal Rules of Practice 3 itself says about the precautions to be taken by the
Magistrate while recording the Dying declarations. They are as follows:
1. The Magistrate shall disclose his identity to the declarant first.
2. He shall ask the declarant whether he is mentally capable of making a declaration.
3. He shall ask simple questions to elicit answers from the declarant to know his state of
mind.
4. Magistrate shall record questions and answers, signs and gestures together with his own
conclusion.
5. He should also obtain whenever possible a certificate from the Medical Officer as to the
mental condition of the declarant.
6. The declaration should be taken down in the words of the declarant as far as possible.
7. The Magistrate should try to obtain from the declarant the particulars necessary for
identification of the accused.
8. Every question put to the declarant and every answer or sign or gesture made by declarant
in reply shall be recorded.

3
Criminal rules of practice (visited on 7th march 2022)
 9. After recording statement, it shall be read over to the declarant and his signature should be
obtained thereon if possible.
03. Our Honourable High Court in a decision “P. Srinivasulu Versus State of Andhra
Pradesh4” reported in “2004 Law Suit (AP) 121” observed that:
“In the present case, as the deponent was unable to put the thumb mark since her
hands were burnt, her toe mark was taken. The Court can always take judicial
note of the fact that there used to be a practice previously prevailing of taking toe
marks when it was not possible to take thumb impressions of the hands of the
deponent. By mentioning the word 'signature', it causes considerable
inconvenience to the Magistrate and creates a doubt whether he can take thumb
impressions of the deponent or toe marks. Under the said circumstances, I am of
the considered view that the Rule itself requires amendment and it should be
clarified that in case of illiterate persons, and when a person is unable to put the
signature, thumb marks can be obtained. It should also be stated that in case hands
were burnt, the toe marks could be taken. It is a matter to be considered by the
High Court to bring about amendment to the necessary Criminal Rules of Practice
and Circular Orders, 1990”

Who may record :

Any individual can record kicking the bucket assertion made by the expired, yet the
individual who is recording biting the dust announcement should have some connection with
the perished either incidentally or by some reality. In any case, the specialist or cop hold
more worth in contrast with the ordinary individual. Explanation recorded by the judge is
viewed as more evidential as opposed to articulation recorded by the specialist, cop and by
the typical individual.
Rule 33 of Criminal Rules of Practice projects commitment on Magistrate to record the
Dying Declarations. Sub Rule (d) of Rule 2 of Criminal Rules of Practice says chief Judicial
Magistrate" incorporates the Chief Metropolitan Magistrate, "Officer" comprises of the
Metropolitan Magistrate, and "Unique Magistrate" comprises of Special Metropolitan
Magistrate. Thus, under Rule 33 of Criminal Rules of Practice, Judicial Magistrate is
engaged to report the Dying Declarations. Notwithstanding, in certain components of the
Country, Executive judges are recording the Dying Declarations.
It ought to be recorded by the judge however assuming there is no chance to call the officer
because of the difficult state of the casualty it tends to be recorded by anyone, for example,
local officials like specialist or some other individual. Courts doesn't permit the recording of
passing on statement by the cops however assuming there is no one is available to record it
composed by the cops are additionally considered by the courts. In the event that it isn't
recorded by the justice it is smarter to get the marks of the observers who are available at the
4
AIR ( 2004) DMC 64.
 hour of recording it. In consumed cases normally it is viewed as the individual isn't equipped
for making it because of the impact of consumes or because of the opiate sedation given to
treat burns.
The apex court has found this to be true in law, in cases where the person dies of burn
injuries. Court hold the opinion of that “the aw on the issue can be summarized to the effect
that law does not give any direction that who can record a dying declaration but just provided
that Magistrate is above all the person in subject for recording the statement, nor is there any
definite form, format or procedure for the same,” 5said a bench comprising of justices B S
CHAUHAN and Dipak Misra while quashing the high court order in the case of dowry death
acquittal case.
The person who records the dying declaration must make sure the fit state of mind and
consciousness of the declarant while making the statement.
Moreover, a dying declaration can be recorded by the normal person, or police officer, but if
it has been recorded by the judicial Magistrate than it would have more reliability and
credential value.
subsequent to being recorded ought to be perused to the declarant, who ought to attach their
mark/thumb impression to it and in the event that not, then, at that point, ought to make
reference to the justification behind not taking it toward the finish of the assertion. If the
declarant composes his assertion himself, the assertion ought to be marked and verified by
both the observer and exploring official. If the declarant becomes oblivious while the
assertion being recorded, individual who is composing it should evoke however much data
and sign it.When closed, it ought to be endorsed by the individual who is recording alongside
date and season of recording it, and furthermore acquire the mark of the autonomous
observer who can verify the substance of the archive. Such assertion will be honest and solid.
Assuming that a casualty blacks out trying to recording explanation, the evidentiary worth of
such inadequate announcement is again problematic. Regulation gives no data on this issue.
In the wake of recording articulation its classification is kept up with. It ought to be fixed in
an appropriate envelope with a seal and shipped off the concerned specialists and a copy
ought to be kept on the off chance that document, yet are generally not continued in daily
schedule. On the off chance that a declarant has made more than one kicking the bucket
revelations and assuming these are not at change with one another basically, they hold their
full worth. Assuming that these statements are conflicting, such passing on announcement
loses their value.
Dying declaration can be recorded by the following persons:
a) Recorded by a normal person
Dying declaration can be recorded by a normal person, only when judicial magistrate, police
officer and doctor is not available. The court can not reject the dying declaration but the
person who records the statement must show the fit state of mind and consciousness of the
5
State of M.P. V. Dal singh & ors AIR (2011) SSC 2297.
 deceased while recording the statement is not recorded by judicial Magistrate, doctor and
police officer. The statement would be admissible in a court of law,
b) Recorded by the doctor or a police officer
In case when there is no time to call the Magistrate, the
Doctor or a police officer can record the dying declaration. But while recording the dying
declaration one witness should be present at the time of recording the statement otherwise the
court would find the statement suspicious. Moreover, the statement recorded by the doctor,
late resulted that the declarant was not in a fit condition and the statement recorded by him
would not considered as evidence, rectify by the witness that the deceased was in a stable
condition to make the declaration. It was held in the case of N. RAM V. STATE6 that the
medical opinion can not wipe out the direct testimony of an eye witness which states that the
deceased was in a fit mental health and is able to make a dying declaration.
c) Recorded by the Magistrate
Whenever the statement is being recorded by the capable justice then it would be
viewed as more solid and it has more evidentiary worth as he ventured to know how
the withering statement ought to be recorded and the judge is a nonpartisan
individual. In addition, the justice has engaged to record it under segment 164 of
Cr.PC. in the event that there is no opportunity to call the officer because of the
difficult state of the casualty it very well may be recorded by anyone, for example,
community workers like specialist or some other individual. Courts doesn’t permit the
recording of biting the dust assertion by the cops yet assuming there is no one present
to record it composed by the cops are additionally considered by the courts. In the
event that it isn’t recorded by the justice it is smarter to get the marks of the observers
who are available at the hour of recording it. In consumed cases generally it is viewed
as the individual isn’t fit for making it because of the impact of consumes or because
of the opiate sedation given to treat consumes.
Section 164 Cr.PC states that subsection (1) enables the officer to record the assertion
of the perishing individual, regardless of regardless of whether he has locale over the
concerned case, and in situations where the justice who has no purview, all things
considered subsection (6) will apply.
Some relevant case laws:
1. The expired should be in a fit perspective and prepared to do saying something
at the hour of recording of kicking the bucket statement AIR 2001 SC 23837.
2. This court laid down the principle that for relying upon the
dying declaration the court must be conscious that the dying declaration was

6
https://indiankanoon.org/doc/1918323/
7
State Of Madhya Pradesh v. Dal Singh And Others
 voluntary and further it was recorded correctly and above all the maker was in a
fit condition – mentally and physically – to make such statement8.
3. Declaration recorded by Taluka Executive Magistrate – Technical objection
regarding unavailability of doctor’s certification and endorsement as to mental
fitness of deceased, is liable to be rejected in as much as same is a mere rule of
prudence and not the ultimate test as to whether or not the said dying declaration
was truthful or voluntary.9
4.when a statement is made by a person as to cause of his death or as to any
circumstances of transaction which resulted into his death, in case in which cause
of his death comes in question is admissible in evidence, such statement in aw are
compendiously called dying declaration 10
5. the principle on which a dying declaration is admitted in evidence is indicated
in latin maxim, nemo morturus procsumitur mentri, a man will not meet his maker
with a lie in his mouth. Information lodged by a person who died subsequently
relating to the cause of his death, is admissible in evidence under this clause11

Conclusion:
The dying declaration is one of the main proofs that is allowed in court as dying declaration
revelation can be a sole reason for conviction of denounce. Henceforth, it ought to be recorded
cautiously with all the methodology that the court has referenced. It ought not be altered by any
stretch of the imagination by anybody. In the event that the perishing affirmation is fragmented,
it is particularly to be dismissed by the court. It is on the court prudence to check in the event
that the withering assertion is recorded cautiously or not. it is the affirmation made by the person
who will kick the bucket, and that declaration will be considered as evidence in court, how his
passing caused and who is the mugger. There are numerous conditions that relied on the dying
explanation that it should be in an adequate manner as kicking the pail show is the weapon who
arraigned the upbraided and stayed as strong verification. The decency of will bite the dust show
recognized in our Indian court considering the way that the law accepts that in Leterm Mortem
i.e in his last dividing words the man will not at any point lie as anyone will meet his maker with
a falsehood extremely popular. This is because a man who will pass on, end with all of his
prerequisites and necessities and his benefit isn't any more excited for self deeds so he seldom
lies.

8
Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, A.P., AIR (2008) SC 19
9
Vikas Vs. State of Maharashtra, 2008 ALL SCR 531 : (2008)2 SCC 516
10
ulka ram v. state of Rajasthan AIR (2001) SC 1814
11
P.V. Radhakrishna. v. State of Karnataka (2003) 6 SCC 443
In any case, passing on announcement is seen as vindictively made then the court has the honor
to excuse the affirmation. Then again there are various conditions and conditions which joined
with passing on attestation for its appropriateness which discussed previously. Dying
Declaration" is a legitimate idea alludes to that explanation which is made by a perishing
individual, making sense of the conditions of his passing. Master LUSH, L.J., cited that "A
perishing presentation is conceded in proof since it is assumed that no individual who is quickly
going into the presence of his Maker, will do as such with a lie all the rage. However, the
individual making the announcement should engage settled miserable assumption for guaranteed
demise. Assuming he figures he will pass on tomorrow it won't do."
Master EYRE, C.B., additionally held that "The standard on which this types of proof is
conceded is, that they are revelations made in limit, when the part is at the mark of promise, and
when each desire for this world is gone; when each thought process of deception is hushed, and
the psyche is initiated by the most impressive thought to talk reality; a circumstance so grave and
dreadful is considered by regulation as making a commitment equivalent to that which is forced
by a positive pledge managed in the official courtroom."
Passing on statement is permissible on the sole ground that it was made in extremis. Also, in
India, its suitability is made sense of in Sec-32(11) of Indian Evidence Act. It is cleared by the
previously mentioned assertions given by various courts that perishing affirmation can be in any
structure however it should be recorded cautiously and appropriately demonstrated, which the
courts make acceptable as the "DYING DECLARATION”