In a recent judgment, Justice Bhuyan observed that:
"Acceptability of a dying declaration is greater because the declaration is made in extremity. When a party is on the verge of death, one rarely finds any motive to tell falsehood."[1]

The concept of dying declaration dates back to ancient legal systems, including Roman and English common law. As per Roman law, the "testimonium mortis" which means testimony in the face of death was considered highly credible because it is believed that a person facing death would speak the truth. Similarly, the English common law also recognized the dying declaration which was later incorporated into Indian law during the colonial era.

The legal stance regarding dying declarations in India has been rooted in the Indian Evidence Act, 1872 and has been retained in the new criminal law concerning evidence, i.e., the Bhartiya Sakshya Adhiniyam, 2023.  By the term 'dying declaration' we get the general gist of the meaning of the statement or declaration made by a person who is conscious and knows they are about to die. It is an exception to the general rule against hearsay evidence, which is typically not admissible in a court of law.

Statutory provisions
Indian Evidence Act, 1872
Section 32 of the Indian Evidence Act, 1872 deals with the dying declaration, and it is extracted below:
32. Cases in which statement of relevant facts by the person who is dead or cannot be found etc. is relevant:- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases:

1. When it relates to cause of death: When the statement is 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, in cases in which the cause of that person's death comes into question.

Bhartiya Sakshya Adhiniyam, 2023

The new law retains the core principles governing dying declaration, and is extracted below:

• 26. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant – Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases, namely:
  
  1. when the statement is 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, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;

Essential Elements of Admissibility

What can be understood by the aforementioned sections is that the essential elements for upholding the admissibility of a dying declaration are:

• Actual danger to death: There should have been actual danger to death of the declarant at the time when the statement was made,
• Apprehension of death: the declarant should have had apprehension of his death,
• Death ensued: the declarant must have subsequently died.

It is also important to note that in case where the death has not ensued the statement is not admissible as a dying declaration. Evidentiary Value
Dying declarations are considered reliable and carry significant weightage in criminal trials, specifically in cases where the victim is the sole eyewitness to the crime. However, their admissibility depends upon the crucial examination of the facts and circumstances by the court to ensure its credibility. The declaration should inspire confidence about the truthfulness. In any case the court has doubts about the said declaration, it shall not be accepted. Burden of Proof
The burden of proof to prove that the dying declaration is voluntary, reliable, and is made in a conscious state of mind is borne by the prosecution. The defense can challenge the declaration on the grounds of coercion, external influence, tutoring, or inconsistency.

Dying Declaration to be recorded by:

• When a person whose evidence is essential to the prosecution of a criminal charge or to the proper investigation of an alleged crime, is in danger of dying before the inquiry proceedings or the trial of the case commences, his statement, if possible be recorded by a Judicial Magistrate.
   
• In case of emergency a dying declaration can be recorded by the medical officer or the police officer connected with the investigation of the case from which recording the dying declaration if he is of the opinion that death is imminent and there is no time to call a Judicial Magistrate.
   
• Recording a dying declaration, it can be ethically challenging, especially when the declarant is in extreme pain or distress. Medical officers and police officers must balance the need for evidence with the declarant's well-being.

Development through judicial pronouncements
The Supreme Court in various cases given the interpretation and admissibility of dying declarations.

Some key rulings are as follows:

• In the case of Pakala Narayana Swami v. Emperor (1939)[4] the expression 'circumstances of the transaction which resulted in his death' has been explained by the Privy Council. It was laid down that the corroboration of evidence must be there to consider a dying declaration reliable and that the said expression has a wider interpretation than the expression 'the cause of his death.'[5]
   
• The Supreme Court in the case Khushal Rao v. State of Bombay (1958)[6] held that an uncorroborated dying declaration can be the sole basis of conviction if it is found to be voluntary, truthful, and made in a conscious state of mind. The court emphasized the absence of any tutoring or prompting.
   
• Further, in the case State of Uttar Pradesh v. Ram Sagar Yadav (1985)[7] the court reiterated that a dying declaration should be approached with caution but can be the sole basis for conviction if it inspires confidence and is free from any suspicion of tutoring or coercion.

In a 2023 judgment by the Supreme Court, it reproduced 11 factors to determine the admissibility of the dying declaration. They are:

• Whether the person making the statement was in expectation of death?
• Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"
• Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?
• Whether the dying declaration was a product of prompting, tutoring, or leading at the instance of police or any interested party?
• Whether the statement was not recorded properly?
• Whether the dying declarant had opportunity to clearly observe the incident?
• Whether the dying declaration has been consistent throughout?
• Whether the dying declaration is a manifestation/fiction of the dying person's imagination of what he thinks transpired?
• Whether the dying declaration was itself voluntary?
• In case of multiple dying declarations, whether the first one inspires truth and is consistent with the other dying declarations?
• Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?

Conclusion
Dying declarations hold significant evidentiary value in Indian jurisprudence. They are admissible as an exception to the hearsay rule is rooted in the belief that a person on his deathbed is unlikely to lie. The principle which dates back to Roman and English Common Law, was codified in the Indian Evidence Act, 1872, and retained in the Bhartiya Sakshya Adhiniyam, 2023. The law basically presumes that such a declaration has no motive to be fabricated because the declarant has no motive to fabricate the truth when facing death.

Where section 32 and section 26 of the aforementioned Acts respectively outline the essential elements for the admissibility of a dying declaration, the courts also shaped the framework surrounding a dying declaration by the landmark cases as discussed above. The role of medical professionals, magistrates, and law enforcement officials is also crucial in this process.

Along with this, the court has to scrutinize a dying declaration carefully. It must ensure that the declaration is not the result of tutoring, prompting, or imagination; the deceased should be in a fit and proper state to make the declaration. But once the court is satisfied that the dying declaration is true and voluntary, it can base its conviction on it without corroboration.[9] Judicial precedents have further refined the principles governing dying declaration, emphasizing the need for corroboration, voluntariness, and the absence of any kind of external influence.

End-Notes:

• Rajendra v. State of Maharashtra 2024 (2024 INSC 422)
• The Indian Evidence Act, 1872, Section 32
• Bhartiya Sakshya Adhiniyam, 2003, Section 26
• 1985 AIR 416
• 'Dying Declaration-Its Applicability in Criminal Cases by Justice A.V. Chandrashekar' Karnataka Judicial Academy
• 1958 AIR 22
• 1985 AIR 416
• Irfan @ Naka v. The State of UP 2023 INSC 758
• Rajendra v. State of Maharashtra 2024 (2024 INSC 422)