Describe the dying declaration with its recording and evidential value.

Definition and Basis

• It is an exception to the rule excluding hearsay, justified on two grounds: the maxim "nemo moriturus praesumitur mentire" — a dying person is presumed not to lie, having nothing to gain; and necessity, since the best witness to the crime is by definition unavailable
• Two features of Indian law differ from English law and are examined repeatedly: the declarant need not be under an expectation of death when making the statement; and it is admissible whatever the nature of the proceeding in which the cause of death comes into question, not only in a trial for homicide
• The person must subsequently die for the statement to be used as a dying declaration. If the person survives, the statement is not lost — it becomes usable as a former statement to corroborate or contradict their evidence, and the person can then give evidence in person

Recording a Dying Declaration

• 1. Assess and certify mental fitness — the doctor examines the patient and records that they are conscious, oriented and mentally sound (compos mentis). This certification is the doctor's essential contribution and the point most often attacked → 2.
• Send for a magistrate if time permits — an executive magistrate ideally, and a declaration so recorded carries the greatest weight.
• Do not delay if the patient is deteriorating → 3.
• Exclude relatives and interested persons where possible, to avoid any suggestion of tutoring or prompting → 4.
• Record in the declarant's own words and own language, verbatim, without paraphrase, translation or tidying, and without leading questions → 5.
• Obtain the signature or thumb impression of the declarant
• if they cannot, record the reason → 6.
• Have it witnessed, and note the date, time and place, and the names of all present → 7.
• RE-certify mental fitness at the end, since the challenge is usually that the patient lapsed during the statement → 8.
• Seal and forward it to the magistrate, and record in the case sheet that it was taken and dispatched

Evidential Value and Special Situations

• A dying declaration may be the sole basis of conviction without any corroboration, if the court is satisfied that it is voluntary, truthful and made by a person in a fit state of mind — a principle repeatedly affirmed by the Supreme Court
• Its weight depends on the circumstances of recording — a declaration recorded by a magistrate with medical certification and the patient's thumb impression is far stronger than an oral statement reported by a relative
• It is not invalidated because it was not recorded by a magistrate, or because the doctor did not certify fitness where the fact is otherwise established, or because it is brief or incomplete
• Multiple and inconsistent declarations are considered together; the court examines which is more reliable, and a material inconsistency may render all of them unsafe to rely upon
• A statement by signs or gestures is admissible where the person cannot speak — as after a throat injury or with a tracheostomy — provided the questions and the responses are recorded exactly
• Burns cases are the commonest setting in India, particularly deaths of young married women; the declaration is often the only direct evidence, and the possibility of tutoring by the family makes the safeguards especially important. Extensive burns do not by themselves render a person unfit to make a declaration, and this must be assessed rather than assumed

Applied Aspects

• Record it yourself if a magistrate cannot come in time; a declaration recorded by a doctor with proper safeguards is admissible, and one never recorded is worth nothing
• Do not lead the patient; asking "did your husband pour kerosene on you?" destroys the value of whatever answer follows, whereas "what happened?" preserves it
• Write the exact words, including the ones that do not fit; a declaration that reads too smoothly invites the suggestion that it was composed
• Do not withhold analgesia to keep the patient lucid; that is not permissible, and the doctor's duty is to the patient. Record what was given and when, and assess fitness on examination rather than on assumption
• Do not refuse to record one because you feel it is a police matter; the opportunity is usually brief and does not recur, and a doctor is competent to record it
• Note the time precisely, and the names of everyone present; these details are what the cross-examination will be built around
• A statement by signs is valid where the person cannot speak, provided the questions and responses are recorded exactly — which matters in throat injuries and after tracheostomy
• If the patient survives, the statement is not wasted; it can be used to corroborate or contradict their evidence, so there is never a reason not to record one
• Extensive burns do not by themselves make a person unfit to make a declaration; fitness is assessed on examination, not assumed from the percentage burned
• Record it even if a magistrate has already been sent for; a second consistent declaration strengthens the case, and the patient may not survive the wait