Admissibility of the dying declaration as a piece of evidence is a powerful course of action taken by the courts to provide justice to the dead, and there is no possibility of cross-examination since this could only occur in rare situations.

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What is a dying declaration?

The dying declaration derives from the proverb "Nemo Moriturus Praesumitur Mentire," which translates to "a man will not face his creator with a liar in his lips." This proclamation is also known as Leterme Mortem, or words said before death.

This is of tremendous importance in court since it leads to severe allegations against the defendant. A dying deposition is sometimes confused with the concept of a dying declaration, but the two are distinct with only a thin line separating them: a 'dying deposition' is recorded by a Magistrate in the presence of the accused's attorney, whereas a 'dying declaration' is typically recorded in the presence of both a Magistrate and doctors to eliminate the possibility of false implication.

If the dying declaration was not admissible in court, it would have cleared several criminals of their horrific deeds. In some instances, however, the admissibility of this statement might potentially result in a biased judgment against an innocent party.

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Role of doctors

1. The Judicial Magistrate has the authority to document a dying declaration. Nonetheless, in some regions of the country, Executive Magistrates record dying declarations. In the absence of a Magistrate and due to the urgency of the situation, the Courts will occasionally accept the dying declarations recorded by the Police Officers and Medical Officers operating at the scene.
2. The right approach for recording a dying declaration by a magistrate, a physician, or a police officer is to ensure that the declarant is in a fit mental condition to make the declaration. If the declarant is not in a fit condition to provide a statement, the Magistrate shall make a notation that the declarant was not in a fit condition to deliver a statement. The recommendation of the on-duty physician is also crucial.

But in the absence of any certification about the sound mental condition of the deceased, Does the dying declaration holds any significance? The recent HC verdict answers the question.

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Legal case summary 

The High Court of Orissa has ruled that deathbed declarations made to a doctor are admissible in court since the doctor can best judge the patient's mental condition.

The HC panel of Chief Justice Dr S. Muralidhar and Justice Radha Krishna Pattanaik made this comment after a burn sufferer died after recording a statement to her doctor.

Holding that a declaration cannot be doubted since there was no certificate establishing the dead's mental condition at the time of recording, the court remarked, In the current instance, the deceased gave her statement before P.W.10 and by then, she had already been in the hospital for more than 15 days. As a doctor, P.W.10 could comprehend the victim's language and evaluate her mental condition.

It's not that someone else recorded the victim's deathbed statement and its acceptance is thus suspicious for lack of doctor's certification. The lack of a certificate on Exhibit 4 regarding the deceased's mental condition is of little consequence, according to the court, since it was documented by a doctor.

The appellant's attorney claimed before the High Court that the Additional Sessions Judge erred by finding the appellant guilty without properly evaluating the evidence and being uninformed of the admissibility of dying statements. He further argued that the dying statement before the doctor was not valid since it lacked an endorsement stating that the death was of sound mind.

Counsel for the appellant further noted that the doctor had enough time to examine the victim and record her deathbed statement in front of the I.O. or a Magistrate, but he did not.

The AGA argued that the deceased disclosed to her family that the Appellant set her on fire by pouring kerosene on her body, which could not have been discarded by the lower court. She also made a statement before the I.O. reiterated it and revealed the same to the doctor just before her death.

The AGA supported the dying pronouncements made by the dead and said it is well-settled that a dying declaration may be the only foundation of conviction provided it is accurate and voluntary. Referring to the argument that the doctor did not attach a certificate to the dying declaration or record it in front of the I.O. or Magistrate, the AGA argued that the evidence does not lose its probative value.

Initially, the appellant admitted the victim to the hospital stating the fire was an accident. After the victim's revelation, FIR was filed. The deceased's statement under Section 161 Cr.P.C. was considered a dying declaration together with one recorded by the doctor while she was being treated. No concrete proof supports the purported occurrence.

"The prosecution's view is based on deathbed statements and oral evidence," the court said.

The appellant's lawyer used court rulings in Shyam Shankar Kankaria v. State of Maharashtra 2006 and Rupa Tiria v. State of Odisha 2012 to argue that dying statements are not reliable since they did not follow the proper process.

AGA argued that a doctor's certification is a guideline of caution and that the declaration's veracity may be verified. He also referenced Supreme Court judgements in Sohan Lal @ Sohan Singh et al. v. the State of Punjab, Kushal Rao v. State of Bombay AIR 1958, and State of U.P. V. Veerpal et al.

Referring to the Supreme Court order in Shyam Shankar Kankaria, the Court thought that in Shyam Shankar Kankaria, the Supreme Court held that the dying declaration can be the sole basis of conviction, but the court had to be on guard to ensure that it was not on account of tutoring, prompting, or imagination, and that the deceased was in a fit state of mind.

“In the instant case, the deceased made her stabbing confession while in a fit state of mind,” the Court said As a doctor, P.W.10 could comprehend the victim's language and evaluate her mental condition.

It's not that someone else recorded the victim's deathbed statement and its acceptance is thus suspicious for lack of doctor's certification. The absence of a certificate on Ext.4 regarding the deceased's mental condition is not a worry, according to the courts, since it was documented by a doctor.

The evidence of P.W.10, when read with P.W.1 and P.W.2, suggests that the deceased was initially unable to speak, but after regaining consciousness, she disclosed the appellant's conduct and the dying declaration under Ext.4 were recorded, the court noted, adding that it had no reason to reject the dying declaration.

"In light of the circumstances, the Court finds no reason to reject the dying statement," the HC panel said.

Referring to the Supreme Court order in Laxman v. the State of Maharashtra, the HC bench said:

"In the decision (supra), the dying declaration was recorded by a Magistrate and there was no certification by the doctor regarding the victim's fitness of mind and in that context held that it would not if so facto render the declaration unacceptable, since, its evidentiary value would rather depend on the veracity of the declaration."

In this case, P.W.10 is the doctor who documented the victim's dying statement, hence he was the proper person to examine the victim's health. Since P.W.10 recorded the decedent's deathbed statement a few days before her death, while she was able to speak, the court does not see any basis to reject it for lack of a certificate.

Referring to past Supreme Court decisions, the HC court said, "In the Sohan Lal case, it was decided that even without a doctor's endorsement on the deceased's mental state, there can be no cause to dismiss it, particularly since nothing was on record to doubt the Tahasildar's bona fide.

In Kushal Rao, the Supreme Court stated that if a dying statement proved to be a true account of a declarant, no additional verification would be required and repeated the requirement that a dying declaration must pass the reliability test. In Veerpal, the Supreme Court referred to Kushal Rao and said, “A deathbed statement is appropriate if the court is convinced that the dead was mentally competent to depose and it was made sincerely and voluntarily.”

As the doctor could comprehend the victim's language, the bench ruled that the deathbed statement was admissible in court. The doctor might also analyse the victim's mental condition.

The HC bench upheld the previous court ruling, saying:

"In light of the aforementioned analysis, the Court thinks that the evidence of persecution was appropriately grasped by the learned court below to declare the Appellant responsible for causing the death of the deceased."

The appellant's defence cannot be supported given the prosecution's evidence. The prosecution proved its case beyond a reasonable doubt, hence the court sees no cause to overturn the conviction.

For further case descriptions, readers are suggested to go through the attached references.

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Dying declaration checklist

Click here to see references

Disclaimer- The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of M3 India.

About the author of this article: Dr Monish Raut is a practising super specialist from New Delhi.