Evidence Law: Indian Evidence Act, 1872 / Bharatiya Sakshya Adhiniyam, 2023 (BSA)
Dying Declaration Recorded by Police Officer
Dying Declaration Recorded by a Police Officer under the Bharatiya Sakshya Adhiniyam, 2023: Admissibility, Scrutiny and Case Laws
A dying declaration recorded by the very officer investigating the case sits uncomfortably in a statute that shuts out almost everything the police record. The Adhiniyam nevertheless admits it, and courts act on it every day. The reason is that the exclusionary provisions are directed at statements by the accused, not at statements by the victim, and the procedural bar on police statements carries an express exception for statements as to the cause of death.
1. Why the Question Arises
Two provisions might be thought to exclude such a declaration, and neither does.
Provision | What it excludes | Why it does not apply |
|---|---|---|
Section 23(1) and 23(2), BSA | A confession made to a police officer, and a confession made while in police custody | Both are directed at a confession by a person accused of an offence. A dying declaration is a statement by the victim, who is not an accused. Section 23 has no application at all |
The bar on statements made to the police during investigation | Statements recorded in the course of investigation, which may be used only to contradict the maker when he is examined as a witness | The provision of the Bharatiya Nagarik Suraksha Sanhita, 2023 corresponding to Section 162 of the Code of Criminal Procedure, 1973 contains an express exception for statements falling within clause (a) of Section 26 of the Adhiniyam — that is, dying declarations |
⚠ The two exceptions are of different kinds Section 23 does not except dying declarations; it simply never reaches them, because it deals with confessions by an accused. The procedural bar on police statements, by contrast, would on its terms cover a statement recorded from an injured person during investigation, and it therefore carries an express exception for statements falling within the dying-declaration clause. The result is the same either way, but the reasoning differs and the distinction is worth stating precisely. |
2. Admissibility and Weight
Question | Position |
|---|---|
Is a dying declaration recorded by a police officer admissible? | Yes, without qualification |
Can a conviction rest on it alone? | Yes, where the court is satisfied that it is true, voluntary and made in a fit state of mind |
Is it inferior in law to one recorded by a Magistrate? | No. There is no rule of law grading dying declarations by the identity of the recorder |
Is it scrutinised more closely? | Yes, as a matter of practice. The recorder is an official concerned with the outcome of the investigation |
What is the first question the court asks? | Why a Magistrate was not summoned, where there was time to do so |
Does an unexplained failure to summon a Magistrate defeat it? | Not automatically, but it materially weakens the declaration and the court will look for support |
📖 Khushal Rao v. State of Bombay, AIR 1958 SC 22 Held: There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. A dying declaration stands on the same footing as any other piece of evidence and must be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. It is not a weaker kind of evidence than any other. A declaration recorded by a competent Magistrate stands on a much higher footing than one which depends upon oral testimony that may suffer from the infirmities of human memory. Ratio: The identity of the recorder goes to weight and not to admissibility, but a Magistrate's record is recognised as standing higher. |
📖 Laxman v. State of Maharashtra, (2002) 6 SCC 710 Held: A Constitution Bench held that a dying declaration can be oral or in writing, and any adequate method of communication would suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate, and when such a statement is recorded by a Magistrate there is no prescribed form. Certification by a doctor is essentially a rule of caution, and what is essentially required is that the person recording the declaration must be satisfied that the deceased was in a fit state of mind. Ratio: No provision requires a Magistrate to record a dying declaration, which removes the principal objection to a police-recorded declaration. |
📖 Paniben v. State of Gujarat, (1992) 2 SCC 474 Held: The court must scrutinise a dying declaration to ensure that it is not the result of tutoring, prompting or imagination, and must be satisfied that the deceased was in a fit state of mind. A declaration which is not consistent with the medical evidence, or which is incomplete, or where the deceased was not in a fit state of mind, cannot be relied upon. Merely because a declaration is brief, it does not follow that it is unreliable. Application: The same principles govern a police-recorded declaration; the difference is in the closeness with which they are applied. |
3. What the Court Examines
Matter | What supports the declaration | What undermines it |
|---|---|---|
Availability of a Magistrate | The declarant's condition was critical and there was no time; or a Magistrate was summoned and could not attend in time | A Magistrate was available and no explanation is offered for not calling him |
Presence of a doctor | A doctor was present, certified fitness before and after, and endorsed the record | No doctor present, no certificate, and no evidence of fitness at all |
Fitness of the declarant | The recorder recorded his own satisfaction, and the doctor deposes that the declarant was conscious and coherent | The declarant had extensive burns, was under sedation, or was semi-conscious |
Manner of recording | The declarant's own words, ideally in question-and-answer form, read over and acknowledged | A summary in the officer's language; no reading over; a thumb impression with no explanation |
Who was present | Independent persons, or hospital staff | Only police personnel and the deceased's relatives, throughout |
Promptness | Recorded immediately on the officer's arrival | Recorded hours later, after relatives had access to the declarant |
Consistency with the medical evidence | The account matches the post-mortem as to the weapon, injuries and their situation | Irreconcilable with the medical findings |
Consistency with other declarations | The account matches what the declarant told the doctor and the relatives | It differs materially from an earlier account |
4. Why a Magistrate Is Preferred in Practice
No rule of law prefers one recorder over another, but a practical order of preference is discernible in the decisions, and it reflects the diminishing independence of the recorder and the diminishing reliability of the record.
Recorder | Independence | Quality of the record | Practical standing |
|---|---|---|---|
Magistrate | Complete. No interest in the outcome | Prescribed procedure under Section 183, BNSS; certificate of fitness; memorandum; may be recorded by audio-video electronic means | Highest |
Doctor | High. Professionally disinterested, and best placed to assess fitness | Ordinarily a note in the case papers; no prescribed form | High |
Police officer | Limited. The recorder is investigating the very case | Variable. May be a proper written record, or a summary | Admissible, closely scrutinised |
Relative or bystander | Ordinarily interested | No record at all; reproduced from memory at the trial | Lowest, though it may be acted upon where the witness is reliable |
⚠ The absence of a Magistrate must be explained The single most common ground on which a police-recorded declaration is attacked is that a Magistrate could readily have been summoned and was not. Where the hospital is in a town with a Magistrate available, where the declarant survived for hours, and where no explanation is offered, the court will ask why the investigating officer preferred to record the statement himself. The answer, or its absence, frequently decides the point. |
5. Particular Situations
5.1 The first information report as a dying declaration
Where the injured person himself lodges the first information report and afterwards dies of the injuries, the report becomes admissible as a dying declaration under Section 26(a). This is an important qualification to the ordinary rule that a first information report is not substantive evidence.
Position of the informant | Status of the FIR |
|---|---|
The informant survives and is examined as a witness | Not substantive evidence. It may be used to corroborate him under Section 160 or to contradict him under Section 148 |
The informant dies of the injuries | Substantive evidence as a dying declaration under Section 26(a), and may found a conviction |
The informant was the accused and the report is confessional | Wholly inadmissible under Section 23, save for any portion within the proviso to Section 23(2) — Aghnoo Nagesia |
5.2 Recording by a subordinate officer
No provision confines the recording of a dying declaration to an officer of any particular rank. A head constable or an assistant sub-inspector may record it, and the record is admissible. The rank of the recorder bears on weight rather than on admissibility, and the question in each case is whether the declaration was faithfully recorded and whether the declarant was fit.
5.3 Where the declarant is illiterate
Requirement | Why it matters |
|---|---|
The declaration must be read over to the declarant | He cannot verify a document he cannot read. Reading over is the only means by which he can adopt it |
The thumb impression must be explained | Whose thumb, taken by whom, and in whose presence. A thumb impression on a paper the declarant never heard read is worthless |
The language used must be one the declarant understood | A declaration recorded in a language foreign to the declarant, without an interpreter, cannot be his statement |
Independent attestation is desirable | A hospital attendant or a person unconnected with the investigation attesting the record materially strengthens it |
6. The Modern Safeguards
Two provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 bear directly on the practice, and both improve the position where they are used.
Provision | Effect on dying declarations |
|---|---|
Section 183, BNSS, 2023 | Any Magistrate of the district in which the information was registered may record the statement, whether or not he has jurisdiction in the case. This removes a jurisdictional obstacle that previously delayed the summoning of a Magistrate to a hospital |
Proviso to Section 183(1), BNSS, 2023 | The statement may be recorded by audio-video electronic means. Where used, the condition of the declarant, the manner of questioning and the words spoken all become verifiable, and most of the usual objections fall away |
⚠ An audio-video record is an electronic record Where a dying declaration is recorded by audio-video electronic means, the recording must be proved under Sections 57, 61 and 63 of the Adhiniyam. Where it falls within the Explanations to Section 57 — for instance where it is produced from proper custody and is not disputed — it is primary evidence. Where a copy is tendered, the certificate prescribed by the Schedule to Section 63(4) is required, with the hash value in Part A and the expert declaration in Part B. |
7. Assessing a Police-Recorded Declaration
Step | Question | If the answer is adverse |
|---|---|---|
1 | Is it a dying declaration — a statement by a person now dead, as to the cause of his death or the circumstances of the transaction? | Section 26(a) does not apply. Consider Sections 4 and 6 |
2 | Was the declarant in a fit state of mind? | It cannot be acted upon, however faithfully recorded |
3 | Was it recorded in the declarant's own words, and read over to him? | The record may not be his statement at all |
4 | Was a Magistrate available, and is the failure to summon one explained? | The declaration is materially weakened, and the court will look for corroboration |
5 | Is it consistent with the medical evidence? | It cannot be relied upon |
6 | Is it consistent with any other declarations? | The court must determine which, if any, is reliable |
7 | Are there indications of tutoring or prompting? | Corroboration becomes essential |
8 | Taken as a whole, does it inspire confidence? | No conviction can rest upon it |
8. The Position in Summary
- Section 23 has no application. It excludes confessions by an accused, and a dying declaration is a statement by the victim.
- The procedural bar on police statements carries an express exception for statements falling within the dying-declaration clause.
- No provision requires a Magistrate to record a dying declaration — Laxman.
- A conviction may rest on a police-recorded declaration alone, where it is true, voluntary and made in a fit state of mind.
- It is scrutinised more closely as a matter of practice, because the recorder is investigating the case.
- The failure to summon an available Magistrate must be explained, and an unexplained failure is the commonest ground of attack.
- Fitness, faithful recording and consistency with the medical evidence are the three matters on which such declarations are usually decided.
9. Related Topics and Provisions
Topic or provision | Connection |
|---|---|
Dying Declaration — Section 26(a) | The essentials, forms and evidentiary value |
Multiple Dying Declarations | Where the police-recorded version differs from another account |
Dying Declaration vs Dying Deposition | The distinction between a declaration and evidence recorded on oath |
Confession under Sections 22, 23 and 24 | The provisions that exclude confessions but not dying declarations |
Substantive Evidence and Corroborative Evidence | The status of a first information report, and when it becomes substantive |
Section 39, BSA | Medical opinion as to fitness and as to the cause of death |
Sections 57, 61 and 63 and the Schedule, BSA | Proof of a declaration recorded by audio-video electronic means |
Section 183, BNSS, 2023 | Recording of statements by a Magistrate, and the audio-video safeguard |