When the Maker of Dying Declaration Survives

The Supreme Court has held that a statement recorded as a dying declaration cannot be treated as evidence under Section 32 of the Evidence Act if the declarant survives. Instead, it’s considered a statement under Section 164 of the Code, usable for corroboration or contradiction. Confessions must be voluntary, truthful, and corroborated, and a statement in police custody is too ambiguous for conviction.

“5. It is trite law that when maker of purported dying declaration survives the same is not statement under Section 32 of the Evidence Act, 1872 (for short the ‘Evidence Act’) but is a statement in terms of Section 164 of the Code. It can be used under Section 157 of the Evidence Act for the purpose of corroboration and under Section 155 for the purpose of contradiction.

Supreme Court
State of U.P. vs. Veer Singh (2004) 10 SCC 117

We are in full agreement with the contention of the learned counsel that Ext.52 cannot be used as evidence under Section 32 of the Evidence Act though it was recorded as a dying declaration. At the time when PW.1 gave the statement he would have been under expectation of death but that is not sufficient to wiggle it into the cassette of Section 32. As long as the maker of the statement is alive it would remain only in the realm of a statement recorded during investigation.

Supreme Court
Ramprasad vs State of Maharashtra, (1999) 5 SCC 30

40. This Court in the case of Sharawan Bhadaji Bhirad & Others v. State of Maharashtra reported in (2002) 10 SCC 56 held that when a statement is recorded as a dying declaration and the victim survives, such statement need not stand the strict scrutiny of a dying declaration, but may be treated as a statement under Section 164, Cr.P.C.

41. Therefore, with the said statement inadmissible as a dying declaration, the question that arises is: whether the statement could be admissible either as a confession or as an extra-judicial confession?

42. The events surrounding the confession made by A1 while in hospital, and more significantly, in police custody, are too ambiguous to support conviction of the appellant.

43. Section 164 Cr.P.C. provides guidelines to be followed for taking the statement of accused as a confession. The one essential condition is that it must be made voluntarily and not under threat or coercion. This Court in Aloke Nath Dutta & Ors. v. State of West Bengal reported in (2007) 12 SCC 230 held as under: –

“87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to:
(i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.

Supreme Court
S. Arul Raja vs State of Tamil Nadu, (2010) 8 SCC 233