Dying Declaration: Conviction, Signs & Surviving Declarants

Dying Declaration: Conviction, Communication by Signs, and the Surviving Declarant

Critically Examining the Statement: "It is Settled Law That It Is Not Safe to Convict on a Dying Declaration"

The statement quoted above originates from the Supreme Court's decision in Ram Nath Madhoprasad v. State of M.P. (AIR 1953 SC 420), where the Court declared: "It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration." This proposition, though frequently cited in the early decades after the Evidence Act came into force, does not represent the law as it stands today. It was expressly overruled, distinguished, and replaced by a more nuanced and empirically sound approach. To treat it as "settled law" today would be a grave jurisprudential error.

The Old Position and Why It Was Untenable

The judicial anxiety underlying the old rule was not without foundation. A dying declaration is made by a person in great physical pain, without the sanctity of an oath, and without the opportunity of cross-examination. The accused has no means of testing the veracity of the declarant. Courts in the early period were therefore reluctant to convict on such evidence unless it was supported by independent corroboration. However, this caution gradually hardened into an inflexible rule that no conviction should be based on a dying declaration alone — a rule that has since been firmly rejected.

The Supreme Court, in its landmark five-judge Bench decision in Khushal Rao v. State of Bombay (AIR 1958 SC 22), expressly disagreed with the earlier position and overruled it. Justice Bhagwati, speaking for the Court, held that "it is not a rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated by other independent evidence. The rule requiring corroboration is merely a rule of prudence which has ripened into practice, but has not hardened into a rule of law." The Court declared that a dying declaration is substantive evidence — not merely corroborative evidence — and like any other piece of substantive evidence, it does not require mandatory corroboration.

The Law as Settled Today: The Khushal Rao Guidelines

The principles laid down in Khushal Rao have been consistently followed and enriched by subsequent decisions. The Supreme Court in Atbir v. Govt. of NCT of Delhi (2010 9 SCC 1) reiterated these principles comprehensively, and they were once again affirmed in Mukesh v. State for NCT of Delhi (2017 6 SCC 1 — the Nirbhaya case). The principles, as they now stand under Section 32(1) of the IEA (= Section 26(a) of the BSA, 2023), are:

A dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
The court must be satisfied that the declarant was in a fit state of mind at the time, and the declaration was not the result of tutoring, prompting, or imagination.
Where the court is satisfied that the declaration is true and voluntary, it can convict without corroboration.
It is not an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless corroborated — the rule requiring corroboration is merely a rule of prudence.
Where the dying declaration is suspicious, it should not be acted upon without corroboration.
A declaration suffering from infirmity — such as where the deceased was unconscious and could never have made any statement — cannot form the basis of conviction.
The court must scan the statement to see if it was prompted by any motive of vengeance or ill will.
The brevity of the statement is not a ground for rejection — shortness may actually guarantee truth.
Where an eyewitness affirms that the deceased was not in a fit and conscious state, medical opinion cannot prevail over the direct evidence of that witness.

This is the settled and authoritative statement of the law today, and the proposition that corroboration is always required must be treated as having been definitively buried by Khushal Rao and every major decision that followed.

The Critical Position: When Corroboration Becomes Necessary

The rejection of a blanket corroboration rule does not, however, mean that courts act mechanically. The critical analysis of a dying declaration involves a holistic assessment. There are specific circumstances where even post-Khushal Rao, courts have insisted on corroboration as a matter of judicial prudence:

Where there is inconsistency between multiple dying declarations — as in Sharda v. State of Rajasthan (AIR 2010 SC 408), where two declarations attributed death to a stove-burst and only the third implicated the mother-in-law, the Supreme Court overturned the conviction.
Where the declaration was not recorded promptly and there is reason to believe it may have been put into the mouth of a dying person whose resistance against falsehood was ebbing away.
Where the declaration was recorded by a police officer without proper certification of fitness, and no independent witness attested to the declarant's condition.
Where the declaration is incomplete or appears to be the product of leading questions designed to extract a particular answer.
In Punjab v. Parveen Kumar (2005 9 SCC 769), the Court held that where two dying declarations stood by themselves without any other reliable evidence to test their truthfulness, no reliance could be placed on them.

The Supreme Court in Munnu Raja v. State of Madhya Pradesh (AIR 1976 SC 2199) went so far as to state: "The court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity." This represents the high-water mark of the liberal approach.

Whether a Statement Made by Signs Is Equally Admissible

This question goes to the heart of the word "verbal" in Section 32 of the IEA (= Section 26 of the BSA, 2023), which says that statements, "written or verbal", of relevant facts are relevant when made by unavailable persons. The word chosen by the draftsman is not "oral" but "verbal" — and this distinction is not accidental.

The Landmark Case of Queen Empress v. Abdullah (1885 ILR 7 All 385)

In this celebrated case, the victim's throat had been cut and she could not speak. Questions were put to her and she responded through signs and gestures — nods and movements. A majority of the Full Bench of the Allahabad High Court, per Petheram C.J., held that the word "verbal" means "by words" — and words need not be spoken; they may be communicated through signs and gestures that convey the same meaning. The Chief Justice observed: "From the earliest times it has been held that the words of another person may be so adopted by a witness as to be properly treated as the words of the witness himself. It need not necessarily be confined to spoken words if it appears that the signs were intended to communicate assent or dissent to specific propositions." The sole Indian judge on the Bench, Mahmood J., dissented and argued that "verbal" could only mean spoken words — but his view did not prevail.

Confirmation by the Privy Council: Chandrasekhara Alisandiri v. King (LR 1937 AC 220)

A woman's throat was half-slit and she could only make signs and gestures. In response to the question "Was it Alisandiri?", she gave a nod of assent. The Privy Council confirmed the majority view in Abdullah and held that answers by signs and gestures are admissible as verbal statements within Section 32. The Council drew an analogy with Section 119 of the IEA (= Section 125 of the BSA, 2023), which expressly permits a witness who is dumb to give evidence by writing or signs — reasoning that if the legislature was prepared to treat signs as equivalent to words for testimony in court, the same approach should apply to dying declarations made outside court.

The Supreme Court's Authoritative Statement

The Supreme Court in Laxman v. State of Maharashtra (2002 6 SCC 710) laid down definitively: "A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite." This is the governing test — not the form of communication, but whether the communication is positive and definite. In Meesala Ramakrishna v. State of A.P. (1994 4 SCC 182), the Court held that a statement made through signs and nods amounts to a verbal statement and is relevant and admissible.

Even in the Nirbhaya case — Mukesh v. State for NCT of Delhi (2017 6 SCC 1) — the dying declaration was recorded partly in writing and partly by signs and gestures through multiple-choice questions put to the victim who was unable to speak coherently due to her injuries. The Supreme Court upheld the admissibility and reliability of this declaration and sentenced all accused persons to death on the strength of it, among other evidence.

Precautions in Declarations by Signs

While admissible, declarations made by signs require special judicial caution. The Privy Council in Chandrasekhara observed that "evidence of signs of an ambiguous or uncertain character ought not to be admitted at all." The test is whether the signs are positive and definite and whether the declarant is affirmatively adopting specific words placed before them through the questions. A nod to a question "Was it Alisandiri?" clearly adopts the name; an ambiguous gesture to a vague question does not. Courts have also distinguished between responses to leading questions and responses to open questions — the former may be of lesser weight though not less admissible, since even the formulation of questions as leading questions has been held unobjectionable in the context of dying declarations, given the physical condition of the declarant.

When the Declarant Survives: Position in Law

The opening paragraph of Section 32 of the IEA (= Section 26 of the BSA, 2023) contemplates statements made by persons who are dead, cannot be found, have become incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense. The fundamental prerequisite for a dying declaration is therefore the death of the declarant. As Illustration (a) to Section 104 of the IEA expressly states: "A wishes to prove a dying declaration by B — A must prove B's death."

The legal consequence is stark and unambiguous: if the person who made the statement survives, the statement cannot be admitted as a dying declaration under Section 32(1). In Emperor v. Ram Sattu (4 Bom LR 434), this was laid down early. The principle has been consistently affirmed since, and the BSA, 2023 in its commentary on Section 26(a) makes clear: "Should he survive his injuries, his statement cannot be proved under Section 32."

What Happens to the Statement Then?

The survival of the declarant does not render the statement a nullity in the eyes of the law. It simply changes its legal character and the provisions under which it may be used. The legal position that has evolved through case law is as follows:

1. As Corroborative Evidence under Section 157 IEA (= Section 160 BSA, 2023)

If the person who made the statement survives and gives evidence as a witness at trial, the earlier statement — made when the person believed they might die — can be used to corroborate their testimony in court under Section 157 of the IEA (= Section 160 of the BSA, 2023). Section 157 provides that a former statement made by a witness relating to the same fact may be proved to corroborate later testimony. However, there is a caveat: if the statement was made to a police officer during investigation, Section 162 of the CrPC, 1973 bars its use even for corroboration under Section 157 — since Section 162 bars the use of statements made to the police in the course of investigation for any purpose.

2. As Contradictory Evidence under Section 155 IEA (= Section 158 BSA, 2023)

Conversely, if the witness at trial gives testimony inconsistent with the earlier statement, the earlier statement can be used to contradict the witness under Section 155 of the IEA (= Section 158 of the BSA, 2023), read with Section 145 of the IEA.

3. As a Statement Recorded under Section 164 CrPC, 1973

If the statement was recorded by a Magistrate under Section 164 of the CrPC, 1973, it acquires a special character. It can be used as a statement recorded under that section — admissible for contradicting the deponent if he turns hostile or for corroborating his testimony as a witness. As observed in the commentary on Section 26(a) of the BSA, 2023: "It becomes a statement under Section 164, CrPC. It can be used under Section 157 for the purpose of corroboration and under Section 155 for the purpose of contradiction."

4. Elevated Evidentiary Quality

The courts have also recognised that a statement made by an injured person who subsequently survives — though not admissible as a dying declaration — possesses a quality of evidence that is higher than a mere statement under Section 161 of the CrPC recorded during police investigation. In Ranjit Singh v. State of M.P. (AIR 2011 SC 255): "Such a statement has to be taken as of a superior quality and of a higher value than that recorded under Section 161 CrPC. It can also be used under Section 157 as the former statement of a witness for corroboration purposes."

The interesting and practically significant case of Shrawan Bhadaji Bhirad v. State of Maharashtra (2002 10 SCC 56) involved an unlawful assembly, several of whom were injured. Some survived. Statements recorded then and there — under fear that death might occur — were not treated as dying declarations for those who survived, but the Supreme Court did not disturb the conviction based on them when read with other evidence. This illustrates the pragmatic approach courts take — the statement retains evidential value even when it cannot be technically labelled a dying declaration.

The Governing Principle in Summary

The death of the declarant is not a technicality — it is the foundational condition that activates Section 32(1). Without it, the statement is inadmissible as a dying declaration, but it is not without legal utility. Used to corroborate testimony, to contradict an inconsistent witness, or as a Section 164 CrPC statement, it remains a potent piece of evidence — just differently classified and differently valued. The law maintains a careful and principled distinction between evidence that speaks from the grave and evidence that can be tested by the living witness in court, and the difference in legal treatment is entirely logical.