Dying Declaration: Admissibility & Medical Fitness Rules

The Legal Framework

Naseem died of the injuries inflicted by Ranjit and Suraj. His statement, made before death and implicating his attackers, is governed by Section 32(1) of the Indian Evidence Act, 1872, which corresponds to Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023. These provisions declare relevant the statement of a dead person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, regardless of whether the person was, at the time of making it, under expectation of death. The illustration (a) to Section 32 captures this factual situation with precision — it states that statements made by A as to the cause of his death, where A dies of injuries, are relevant facts.

The underlying philosophy of the provision rests on two pillars of necessity. First, the victim is often the only eyewitness to the crime committed against him, and his voice must not be forever silenced merely because he can no longer take the stand. Second, the law presumes — drawing on the Latin maxim Nemo moriturus praesumuntur mentiri — that a person on the verge of death would not take falsehood to his grave. As the Supreme Court observed in Laxman v. State of Maharashtra (2002 6 SCC 710): "The situation in which a man is on the deathbed is so solemn and serene; it is for this reason the requirements of oath and cross-examination are dispensed with."

Ground I: Recorded by the Investigating Officer — Is It Fatal?

The Law Is Settled

The defence's first objection — that the dying declaration was recorded by the Investigating Officer — must be squarely rejected. The law does not prescribe any fixed authority before whom a dying declaration must be made or recorded. There is no provision in Section 32 of the IEA or Section 26 of the BSA that mandates recording by a Magistrate. The requirement of Magistrate-recording is nothing more than a rule of caution — a best practice — not an absolute rule of law.

The Supreme Court settled this question definitively in Kulwant Singh v. State of Punjab (2004 9 SCC 257 / AIR 2004 SC 2875): "It is not necessary that a dying declaration should be recorded in the presence of a Magistrate." In SP Devaraji v. State of Karnataka (AIR 2009 SC 1725), the Court reiterated that a dying declaration need not necessarily be recorded by a Magistrate only.

The position was further reinforced in State of Jharkhand v. Shailendra Kumar Rai (AIR 2020 SC 5393), where the Supreme Court held: "There is no Rule to the effect that a dying declaration is inadmissible when it is recorded by a police officer instead of a Magistrate. Although a dying declaration ought to ideally be recorded by a Magistrate if possible, it cannot be said that dying declarations recorded by police personnel are inadmissible for that reason alone." The admissibility of such a declaration must be decided on the facts and circumstances of each case.

The Caution That Applies

What the courts have consistently said, however, is that declarations recorded by investigating officers must be scrutinised with greater care and caution than those recorded by Magistrates. The practice of the Investigating Officer himself recording the declaration during the course of investigation is not to be encouraged, because the Investigating Officer is not a neutral party — he has an interest in the investigation and the outcome of the trial. As the Supreme Court noted in Lakhan v. State of M.P. (2010 8 SCC 514): "A dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by an officer of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration."

Therefore, the court must examine whether the Investigating Officer had sufficient time and opportunity to secure the services of a Magistrate. Where the officer had enough time but chose to record it himself, courts have viewed such declarations with greater suspicion. But where circumstances were exigent — as may well be the case in a hostel attack with a profusely bleeding, rapidly deteriorating victim — the Court would give due regard to the practical limitations under which the statement was recorded.

Ground II: Declarant Under General Anaesthesia and Absence of Medical Fitness Certificate

This is the more serious objection, and it must be examined with methodical care.

The Requirement of Mental Fitness

It is settled law that the cardinal prerequisite for the admissibility of a dying declaration is that the declarant must be in a fit physical and mental state at the time of making it. A person who is unconscious, delirious, or mentally incapacitated cannot make a valid dying declaration, for the simple reason that the declaration is supposed to be a conscious, deliberate communication. As summarised in Atbir v. Government of NCT of Delhi (2010 9 SCC 1): "The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction."

General Anaesthesia — A Fatal Infirmity?

If Naseem was genuinely under the effect of general anaesthesia at the time the statement was recorded, this is a matter of the utmost gravity. General anaesthesia induces a complete loss of consciousness — the patient is not merely sedated but rendered entirely unaware of their surroundings and incapable of rational perception or communication. A dying declaration recorded while the declarant is under general anaesthesia would, on its face, suffer from a profound infirmity of mental fitness, because the declarant could not have been conscious or in a position to comprehend questions or provide coherent answers.

This is strikingly different from a case where the declarant is merely under the effect of pain-relief medication, mild sedation, or suffering from distress caused by burns or bodily injuries but remains conscious and oriented. Courts have consistently held that ordinary sedatives or analgesics administered in hospitals do not, by themselves, render a declarant unfit, particularly when the declarant is demonstrated to be answering questions coherently. As highlighted by studies cited in the jurisprudence, neither burns nor the drugs generally administered in their treatment normally affect the higher functions of the brain.

The defence, therefore, must establish as a fact — not merely as an assertion — that Naseem was truly under general anaesthesia at the precise moment the statement was recorded. If the prosecution can demonstrate through medical evidence, the testimony of the attending doctor, or the conditions of the recorded statement itself that Naseem was conscious, oriented, and capable of rational communication at the relevant time, the defence's claim collapses. The burden of showing that the declaration was recorded at a time when Naseem was unfit lies on the party challenging its admissibility.

Absence of Medical Fitness Certificate — A Rule of Caution, Not Law

The defence further contends that the absence of a medical fitness certificate is independently fatal to the admissibility of the declaration. This argument stands conclusively answered by a Constitution Bench of the Supreme Court in Laxman v. State of Maharashtra (2002 6 SCC 710 / AIR 2002 SC 2973). Speaking through Pattanaik J., the Court held with clarity:

"The absence of the certificate of the doctor as to the fitness of mind of the injured person would not render his dying declaration to be unacceptable. What is essentially required is that the person who records the statement must be satisfied that the injured person was in a fit state of mind. Certification by the doctor is only a rule of caution. Voluntary and truthful nature of the statement can be established otherwise."

This overruled a line of earlier High Court decisions that had made the medical certificate an indispensable requirement. After Laxman, the law is clear: the certificate is desirable but not mandatory. Where the person who recorded the declaration satisfies the Court that he applied his mind to the declarant's condition and was convinced of his fitness — whether through his own questions and observations or through other witnesses present — the declaration does not stand vitiated merely because no formal certificate was obtained.

This position was reaffirmed by the same Supreme Court in Bhagwan v. State of Maharashtra (2019 8 SCC 95 / AIR 2019 SC 4170) and Dayaram v. State of Madhya Pradesh (2020 13 SCC 382), where the Court repeated that the Laxman principle remains the governing rule on this question.

Where, however, the medical incharge of the ward has specifically stated on record that the injured person was not in a fit condition to make any statement, the court would be reluctant to rely on the declaration — as was held in Jai Karan v. State NCT of Delhi (1999 8 SCC 161 / AIR 1999 SC 3512). That authority cautions the court that the absence of a certificate is one thing; the presence of contradicting medical testimony is quite another.

Decision

Taking together the principles applicable to this case, the plea of the counsel for Ranjit and Suraj must be assessed as follows:

First, the objection based on recording by the Investigating Officer does not render the dying declaration per se inadmissible. Under Section 32(1) of the IEA / Section 26(a) of the BSA, a dying declaration may be made to any person — including a police officer. The Court must scrutinise such a declaration with greater care, but the mere identity of the recorder does not destroy admissibility.

Second, the objection based on the absence of a medical fitness certificate is specifically overruled by the Constitution Bench in Laxman v. State of Maharashtra. The certificate is only a rule of caution. If the person recording the declaration was satisfied of Naseem's fitness — by his own observations, by questions put to Naseem, or by the testimony of those present — the declaration does not fail merely because no certificate was attached.

Third, the claim that Naseem was under general anaesthesia is a question of fact that goes to the weight and reliability of the declaration, not automatically to its admissibility. If, upon examination of the evidence, the Court is satisfied that Naseem was conscious and answering coherently — and that the claim of anaesthesia is either factually incorrect or refers to a period before or after the recording — the declaration would be accepted. If, on the other hand, it is proved that Naseem was truly under the effect of general anaesthesia at the precise moment of recording and was therefore incapable of conscious rational communication, the Court would treat that as an infirmity sufficient to decline to act upon the declaration, particularly if it is the sole piece of evidence. A declaration made while the declarant is genuinely unconscious, as the Supreme Court itself declared in Atbir v. Government of NCT of Delhi, is one that "suffers from infirmity and cannot form the basis of conviction."

The plea for acquittal on the narrow technical grounds advanced by the defence — that the recorder was an Investigating Officer and that no fitness certificate was obtained — does not succeed. Whether the broader claim of anaesthesia is borne out by evidence remains the decisive question of fact for the trial Court. If it is not so borne out, Ranjit and Suraj cannot escape conviction on the strength of the dying declaration, provided the Court is otherwise satisfied that it is true, voluntary, and worthy of credence.