‘Dying Declaration Can Be the Sole Basis for Convicting the Accused’

Abstract

According to Section 32 (1) of the Indian Evidence Act, 1872 a dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs will suffice provided the indication as regards the culpability of the accused is positively and definitely established. When a dying declaration 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 the man who is about to die. 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. What evidentiary value or weight has to be attached to a dying declaration 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 even 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. Dying declaration recorded on the basis of nods and gestures is not only admissible but possesses evidentiary value, the extent of which depends upon who recorded the statement, what is his educational attainment, what gestures and nods were made, what were the questions asked whether they were simple or complicated- and how effective or understandable the nods and gestures were.