Dying Declaration via Translation & Voice Sample Law in India

Dying Declaration Through Translation and Voice Comparison of a Witness

Part I: Evidentiary Value of a Dying Declaration Made in Tamil, Translated in Hindi by a Doctor, and Recorded in Hindi by a Magistrate Who Does Not Understand Tamil

The Nature of the Problem

The factual matrix presents a layered problem of testimonial reliability. The dying person spoke in Tamil. A doctor who knew Tamil heard her and translated what she said into Hindi. The Magistrate, who understood no Tamil, recorded what the doctor told him — in Hindi. The question then is: what value does such a declaration carry in evidence, and is it admissible at all?

To answer this, one must begin with the provision that makes dying declarations relevant in the first place. Section 32(1) of the Indian Evidence Act, 1872 — now corresponding to Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023 — provides that a statement made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, is a relevant fact, irrespective of whether the declarant was at the time under expectation of death. The section is broad in its sweep — a dying declaration can be made to anybody, in any language, orally or in writing, in any form. The law imposes no particular procedural form as a condition of relevance. As the Supreme Court held in Laxman v. State of Maharashtra (AIR 2002 SC 2973): "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." The requirement of oath and cross-examination is dispensed with because the sanctity of the dying moment is itself treated as a powerful inducement to truth.

Language of the Declaration

The first question is whether a dying declaration must be recorded in the language in which it was made. There is no mandatory rule that demands this, but the courts have repeatedly expressed a preference for it. The Bombay High Court observed in Najjam Faroqui v. State of West Bengal (1992 Cr LJ 2574) that "the dying declaration recorded in the language used by the declarant acquires added strength and reliability." This is good sense — a declaration reproduced in the same tongue as it was spoken is free from the distorting effects of translation, and the court can be satisfied that what is recorded is what was actually said.

Where, however, the declaration is recorded in a different language, it is not ipso facto inadmissible. In Rajasthan v. Bhup Ram (1997 1 Supreme Today 405), the Supreme Court held that "assuming that the deceased gave her statement in her own language, the dying declaration would not vitiate merely because it was recorded in a different language." The difference in language affects the weight and reliability of the declaration, not its admissibility in law.

The Role of the Translator in the Chain of Communication

The real difficulty in the present problem is the interposition of two intermediaries between the dying person and the written record. The Tamil-knowing doctor is the translator, and the Magistrate is the scribe who records only what the doctor tells him. This creates what may be called a double-remove from the declarant's own voice: the declaration passes from the declarant's lips in Tamil → to the doctor's comprehension → to the doctor's Hindi translation → to the Magistrate's written record in Hindi.

Indian courts have expressed serious concern where a dying declaration is not recorded directly from the declarant's own words. It was held in one instance that where a Magistrate was recording a declaration at the instance of another officer who was translating from Sindhi to Hindi, and the constable was writing it down in Marathi, conviction based solely on such a declaration was unsustainable. The underlying concern is pellucidly clear: the dying person's actual words are twice removed from the written record, and the possibility of distortion, omission, or misinterpretation at the translation stage is real and cannot be ignored.

This is a fundamentally different situation from a declaration merely recorded in a different language. There, the Magistrate hears the declarant directly, understands the substance (even if through an interpreter present in the room), and records it. Here, the Magistrate has no personal knowledge whatsoever of what the declarant said — he is entirely dependent on what the doctor tells him. The doctor's translation is thus a second layer of hearsay interpolated within the body of the dying declaration itself.

Admissibility: Not Automatic Rejection, But Heightened Scrutiny

The law does not require automatic rejection of such a declaration. Section 32 and its BSA equivalent draw no distinction between declarations made directly and those transmitted through translators. The courts have consistently refused to lay down rigid rules of inadmissibility. What the courts insist upon, however, is rigorous scrutiny to verify the reliability of the translation process.

The following are the factors that the court must take into account when assessing the evidentiary value of such a declaration:

First, the competence and impartiality of the translator. The doctor must be demonstrated to have a genuine knowledge of both Tamil and Hindi. His competence to translate must be proved — ideally, he should be examined as a witness and should depose that the translation accurately reflected what the declarant said. If the doctor is examined in court and testifies to the accuracy of the translation, the Magistrate's record gains in reliability.

Second, whether the Magistrate satisfied himself about the fitness of the declarant. The Constitution Bench of the Supreme Court in Laxman v. State of Maharashtra (AIR 2002 SC 2973) held that the person recording the declaration must be satisfied that the injured person was in a fit state of mind — whether that satisfaction is derived from a medical certificate or from the recorder's own observation. In the present case, the Magistrate had no personal communication with the declarant and relied entirely on the doctor. There is, therefore, a serious question as to whether the Magistrate could have formed any independent satisfaction about the declarant's fitness.

Third, whether the declaration is recorded in verbatim or in substance. The ideal rule is that the actual words of the declarant must be recorded as far as possible. The AP High Court Criminal Rules of Practice, Rule 16(3), require that every question put and every answer given by the declarant be recorded when a Magistrate records the declaration. This ideal is doubly impossible when the Magistrate does not understand the declarant's language and is recording only a translation.

Fourth, corroboration. The Supreme Court, in Kushal Rao v. State of Bombay (AIR 1958 SC 22), laid down that where a dying declaration is not in the most satisfactory form — where it suffers from any infirmity — the courts, as a rule of prudence, must look for corroboration before acting on it. The triple-language situation in the present problem is precisely the kind of infirmity that demands corroborative evidence before the declaration can safely be made the basis of a conviction.

Evidentiary Value: The Balanced Position

The balanced view that emerges from the authorities may be stated as follows. A dying declaration made in Tamil, translated orally into Hindi by a Tamil-knowing doctor, and recorded in Hindi by a Magistrate who does not understand Tamil is:

Relevant and admissible under Section 32(1) of the Evidence Act / Section 26(a) of the BSA, 2023, as there is no rule of law that excludes it;
Of reduced evidentiary value compared to a declaration directly recorded in the declarant's language or in a language understood by the recording Magistrate;
Not safe to act upon alone, unless supported by cogent evidence that the doctor's Tamil was adequate, the translation was faithful, the declarant was in fit condition, and the declaration is otherwise corroborated;
Liable to be rejected if the prosecution fails to examine the doctor as a witness and fails to establish the accuracy of the translation, or if there is any serious question about the declarant's fitness — because the Magistrate's personal ignorance of Tamil makes independent verification by him impossible.

The doctor, in such a case, becomes a critical witness — effectively the person who recorded the substance of the declaration. He must be examined to prove what the declarant actually said, and the Magistrate's record serves only as corroborating documentation of what the doctor told him.

Part II: Can A Prosecution Witness Be Directed to Get His Voice Tape-Recorded for Voice Comparison?

The Problem Stated

A appears as a prosecution witness. During cross-examination, he is confronted with a tape-recorded conversation. The accused applies to the court seeking a direction to A to allow his voice to be tape-recorded, so that his sample voice can be compared with his alleged voice in the disputed tape. The question is: can the court issue such a direction, and if so, under what provision?

Tape Recording as Evidence

Before addressing the specific question, it is useful to recall the legal framework governing tape-recorded conversations. In R.M. Malkani v. State of Maharashtra (AIR 1973 SC 157), the Supreme Court recognised that tape-recorded conversations are admissible provided the following conditions are satisfied: the conversation is relevant to the matters in issue, the voice of the speaker is identified, and the accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing or tampering with the tape. In Rama Reddy v. V.V. Giri (AIR 1971 SC 1162), it was held that a previous statement recorded on tape can be used not only to corroborate or contradict a witness but also to test his veracity and impeach his impartiality.

The confrontation of witness A with a tape during cross-examination raises the question: is the voice on the tape truly A's voice? To establish this, the accused moves for a sample voice recording for comparison. This is entirely logical — just as handwriting is compared under Section 73 of the Evidence Act (now Section 72 of the BSA, 2023), the accused contends that voice should similarly be capable of comparison.

The Power of the Court Under Section 73 of the Evidence Act / Section 72 of the BSA

Section 73 of the Indian Evidence Act, 1872 provides:

"In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved... The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person."

The corresponding provision in the Bharatiya Sakshya Adhiniyam, 2023 is Section 72, which reproduces the same provision with the addition that "This section applies also, with any necessary modifications, to finger impressions."

The question is whether the power under the second paragraph of Section 73 — which allows the court to direct a person present in Court to write words for comparison — can be extended by analogy to voice comparison. The section, on its face, speaks of writing. However, the third sub-paragraph of Section 72 of the BSA, 2023, adds that "This section applies also, with any necessary modifications, to finger impressions." This signals a legislative inclination to treat the section as a general enabling provision for specimen comparison — and the words "with any necessary modifications" suggest that the provision is not exhaustively confined to handwriting alone.

It is worth noting that the Supreme Court in State of Bombay v. Kathi Kalu Oghad (AIR 1961 SC 1808) held that directing a person to furnish specimen handwriting or thumb impression does not violate Article 20(3) of the Constitution (the right against self-incrimination) because providing specimen handwriting or fingerprints is not "testimony" in the constitutional sense — it is merely a physical act of furnishing a sample for comparison, and not a testimonial compulsion to confess. This principle has been extended by analogy to voice samples. In Ritesh Sinha v. State of Uttar Pradesh (AIR 2013 SC 1841), the Supreme Court, by a two-judge Bench, referred the question of whether a Magistrate can be directed to obtain a voice sample from an accused to a larger Bench, precisely because the existing provisions of the Code of Criminal Procedure and the Evidence Act did not expressly deal with voice comparison. The Supreme Court, while referring the matter, did not deny the power of the court to obtain voice samples — it only questioned the procedural source of that power.

Analogy to Section 73 and Judicial Reasoning

The correct judicial approach is this. Section 73 of the Evidence Act (Section 72 of the BSA) empowers the court to direct any person present in Court to write words for comparison. This provision has been understood as a recognition of the court's power to require a person to furnish a specimen to facilitate comparison with a disputed sample. The word "writing" in the section has been construed in the context of its time — the Evidence Act was enacted in 1872 when voice recording technology did not exist. The Bharatiya Sakshya Adhiniyam, 2023 has extended the provision to finger impressions, acknowledging that the court's comparison power must keep pace with available science.

By a purposive reading of Section 73 of the Evidence Act, and more clearly under Section 72 of the BSA, the court has the inherent power to direct a witness present in court to furnish a specimen voice recording for comparison — particularly when:

The witness has been confronted in cross-examination with a disputed tape recording purporting to contain his voice;
The issue of voice identity is directly relevant to the assessment of the witness's credibility;
The specimen voice recording is sought not for any testimonial or incriminating purpose but purely for the purpose of comparison — a mechanical or physical act analogous to giving specimen handwriting.

In addition to Section 73, the court's power under Section 165 of the Evidence Act (now Section 167 of the BSA, 2023) — which gives the judge the widest power to ask any question or order the production of any document in the interest of discovering the truth — also supports the grant of such a direction. The court's inherent power to secure all available means of verifying the truth of testimony places this squarely within judicial authority.

The Constitutional Dimension

The direction to furnish a specimen voice recording does not violate Article 20(3) of the Constitution. As the Supreme Court held in Kathi Kalu Oghad, the constitutional protection against self-incrimination extends to testimonial compulsion — to compelling a person to be a witness against himself by extracting from him information that amounts to personal testimony. The act of speaking certain words into a recording device, so that the voice may be compared mechanically with a disputed sample, is not testimony in the constitutional sense. It is no different in principle from writing words for comparison under Section 73. The witness is not being asked to admit any fact — he is merely being asked to furnish a physical sample of his voice.

The Answer to the Problem

To answer the problem directly: yes, the court can direct witness A to get his voice tape-recorded, so that his sample voice may be compared with the alleged voice in the disputed tape recording. This direction may be issued under:

Section 73 of the Indian Evidence Act, 1872 (Section 72 of the BSA, 2023) — by a purposive and extended reading of the court's power to direct a person present in court to furnish a specimen for comparison;
Section 165 of the Indian Evidence Act, 1872 (Section 167 of the BSA, 2023) — which invests the judge with the broadest power to ask any question or order any production of material in the interests of finding the truth;
The inherent power of the court to regulate its own proceedings and to take all necessary steps to ascertain the truth, confirmed by the constitutional principle that furnishing a voice sample is not "testimonial" within the meaning of Article 20(3).

The sample recording, once obtained, may then be compared by an expert in forensic voice analysis — or, where the court deems appropriate, by its own perusal — to determine whether the voice in the disputed tape belongs to the witness. The court would, however, be well-advised to act cautiously in undertaking such comparison itself and should ordinarily seek the opinion of a qualified expert, following the principle laid down in cases where the Supreme Court cautioned courts against undertaking comparison of handwriting unaided by expert evidence.