Context: A special CBI court on July 16 convicted two policemen and awarded them life sentences for the custodial death of a murder accused, who was burnt alive inside a police station in Karnal, Haryana.

• The judgment relied heavily on the ‘dying declaration’ made by the victim prior to his death.

What is a dying declaration?

• The law presumes that no person will meet their maker with a lie in their mouth.
• Section 32 of the Indian Evidence Act, 1872 deals with cases in which statement of relevant fact is made by a person who is dead or cannot be found.
• The general rule under Section 60 of the Act is that all oral evidence must be direct — he heard it, saw it or perceived it.

The grounds of admission under a dying declaration have been based on two broad rules

• The victim being generally the only principal eye-witness to the crime;
• The sense of impending death, which creates a sanction equal to the obligation of an oath.

What can be reasons that may lead the court to set aside such a declaration?

• Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination.
• This is the reason the courts have always insisted that the dying declaration be of such a nature as to inspire full confidence of the court in its correctness.
• The courts are on guard to check if the statement of the deceased was a result of either tutoring, or prompting or a product of imagination.
• The court in such cases must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant.
• Courts look to determine that such declarations are voluntary, unless it is proved that the declaration was “tainted with animosity and a result of tutoring.”
• The Supreme court had noted that the dying declaration made through signs, gestures or by nods are admissible as evidence.
• In case of Orissa vs Parasuram Naik, 1997, the court held that the oral dying declaration cannot be accepted because there was no medical officer certifying that the deceased was medically fit to make a statement.

Who can record dying declarations?

• Anyone can record the dying declaration of the deceased as per law.
• The law does not compulsorily require the presence of a Judicial or Executive Magistrate to record a dying declaration.
• A dying declaration recorded by a Judicial or Executive Magistrate will muster additional strength to the prosecution case though.
• A dying declaration may in several cases be the “primary piece of evidence to prove the genesis of occurrence.
• The only requirement for such a declaration to be held perfectly accountable in court is for the victim to volunteer the statement and be of conscious mind.
• The person who records the dying declaration must be satisfied that the victim is in a fit state of mind.

Do dying declarations always need corroboration?

• A dying declaration can form the sole basis of conviction. The rule requiring corroboration is merely a rule of prudence.
• Several judgments have noted that it is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.
• If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination.
• Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence.

For a fit mental condition

• Normally the court, in order to satisfy whether deceased was in a fit mental condition to make the dying declaration, can look up to the medical opinion.
• But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.
• Additional Information
• CBI is the premier investigating police agency in India. It functions under the superintendence of the Deptt. of Personnel, Ministry of Personnel, Pension & Public Grievances - which falls under the prime minister’s office.