Endorsement of dying declaration not a must, says Bombay high court

In an important ruling, a full bench of the Bombay high court has held that a dying declaration cannot be discarded merely because the deceased didn’t endorse it as being correctly recorded.

A dying declaration – often made in cases where a victim has been attacked - cannot be rejected merely for want of endorsement by the deceased, said the bench comprising justice RK Deshpande, justice SB Shukre and justice MG Giratkar. “It will always depend upon the facts and circumstances of each case,” said the bench.

The full bench said neither Section 32(1) of the Evidence Act, nor the apex court has prescribed any particular format for recording dying declarations. It said a dying declaration can be oral as well as written, and in case it’s oral, there’s no question of it being read over to the declarant.

“If that be so, how can such insistence be in respect of written dying declaration?” said the full bench. “We are, therefore, unable to hold such requirement as mandatory and that in the absence of it, the dying declaration would become unreliable or unsustainable.”

In 2004, the high court had adopted a view that a dying declaration minus an endorsement by the deceased person was not acceptable. Since then, different benches of the high court have reversed convictions for several persons held guilty merely on the basis of dying declarations.

The reference was made after a bench headed by justice AB Chaudhari in 2015 refused to accept the prevailing view. It held that if recording of the dying declaration is by an independent person, who is neither a relative nor interested in deposing against the accused, there should be no hesitation in accepting this version, unless such a version is shaken in the cross-examination.

“The absence of endorsement of the dying declaration by a doctor regarding the fitness of the declarant, or because the statement was not read over and explained to the declarant, cannot be the reason for holding it unacceptable, if the court is otherwise satisfied that such a dying declaration inspires confidence,” the court said.