TRAINING MODULE ON DYING DECLARATION

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Nemomorituruspraesumiturmentir- maxim of Roman Law through which the concept of dying declaration entered English Law. It was then codified by Sir James Fitzjames Stephen in Section 32 of the Indian Evidence Act. The latin maxim when translated connotes ‘that no man meets death with a lie on his lips’.

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Judgement of the Hon’ble Supreme Court in KhushalRao v. State of Bombay, AIR 1958 SC 22. A landmark ratio in which the apex court opined that a dying declaration if properly recorded can form the sole basis for conviction. Therefore this is a legal instrument that each of us assembled here must wield with tremendous care and caution.

Keeping the objective of bringing heinous criminals to justice through conviction, it is prudent to offer certain points of caution that can ensure that dying declarations we record will stand the scrutiny of the courts: A. The credibility of the dying declaration rests upon the ability of the individual to be cogent and coherent in his thoughts and speech. Consequently, it is a primary requirement that a dying declaration must contain a certification by the doctor that the victim is in a mental and physical state where he/she can make a rational and conscious statement. The courts in KoliChunilal v. State of Gujarat have endorsed this requirement. B. Secondly it is desirable that a dying declaration be always recorded in a question and answer format. Rule 171(3) of the Bombay Police Manual Vol. III mandates this. We all know that a dying declaration recorded in the presence of a police officer would be hit by Sec. 162 of the CrPC and thereby be rendered inadmissible. Consequently, executive magistrates should confer with the investigation officer and prepare a draft questionnaire when they record the declaration. This would ensure that the contents of what is recorded is pertinent to the investigation itself. C. The Bombay Police Manual, further provides that dying declarations be recorded in the presence of a Panch. I would take this one step further to

2 add that as a rule of caution one should consider requesting the medical officer to act as a panchfor the recording of the declaration. This has the dual benefit of lending medical endorsement to the declaration, and further ensuring a credible panchawitness when the case comes up for trial. D. We are all further aware that an incomplete or sketchy declaration is valueless in the eyes of the law. In practical terms therefore, I feel that the declaration should contain a paragraph at its conclusion that affirms that the deponent had nothing further to say. E. Lastly, it is also desirable that a dying declaration be video recorded. This video can thereafter be presented before the courts after ensuring consistency in the hash value number and with an accompanying certificate under Sec. 65B of the Indian Evidence Act.