Section 32(1) of the Evidence Act makes dying declarations admissible in evidence when such a dying declaration relates to the cause of the death or any of the circumstances of the transmission which resulted in the death of the person by whom the dying declaration is made.
A dying declaration may itself be the F.I.R. in the case and investigation may start on its basis.
A dying declaration in such a case may be recorded even by a police officer. A dying declaration may also be recorded by a police officer in the course of the investigation.
For instance if the Investigation Officer records the statement of an injured person under Section 161 in the course of the investigation into the case which might have been originally registered under Section 324, 325, 326, 307 etc., of the Indian Penal Code and if the injured person subsequently dies and the provision of law under which the case was registered is altered into Section 302, then also a dying declaration becomes admissible in evidence as substantive piece of evidence under Section 162 (2) Cr.P.C., but generally dying declarations recorded by the Investigating Officers after the commencement of the investigation are not viewed with favour and they are not accepted by courts as axiomatic. But, the same infirmity does not attach to dying declarations recorded by police officer which constitutes the F.I.R. in the case.
Sometimes Magistrates are required to record the statement of a person who is in imminent danger of death.
On receiving a requisition to record a dying declaration, the Magistrate should at once proceed to the hospital where the said person is being treated.
The principle on which the dying declaration is admitted is indicated by the Maxim of the Law - nemo moriturus proesumitur mentiri - a man will not meet his Maker with a lie in his mouth.
The statements 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 are relevant whatever may be the nature of the proceedings in which the cause of the death of the person who made the statement comes into question.
On reaching the hospital, the Magistrate should verify the particulars of the person who is expected to give the declaration. Then he should inform the intended declarant that he is a Magistrate and that he would record the declaration. The name and other particulars should be noted as given by the declarant.
While recording a dying declaration, the Magistrate shall keep in view the fact that the object of such declaration is to get from the declarant the cause of probable death or the circumstances of the transaction which may result in death. Before taking down a declaration, the Magistrate may put some simple questions to elicit answers from the declarant with a view to know his state of mind, and record every questions put to the declarant and every answer given in reply.
The recording should be in the form of questions and answers. As far as practicable, the declaration should be recorded in the exact words of the declarant. It should be ipsissima verba of the person making it.
It should be a complete record conveying the whole of what the declarant wished or intended to say. It has to be recorded carefully. When the declarant is not able to speak, his dying declaration made by signs or gestures in response to questions, should be meticulously recorded.
In such cases, the record should show the question put and the nature of the signs made in reply. The record should be so complete as to avoid all scope of misapprehension.
The Magistrate should also note the patient's condition, the manner of making the statement, and also, the persons, if any, near the patient. After completing the recording, the statement must be read over and explained to the deponent and his signature or mark obtained thereon, if possible.
Then the Magistrate should append a certificate staling that he has recorded the whole statement truly and correctly and that it has been read over and explained to the deponent who admitted it to be correct. It shall also be signed, wherever possible, by the Medical Officer concerned, who will clarify with regard to the state of mind of the declarant.
In cases where the accused has been already arrested and committed to judicial custody and is readily available, it will be proper that the dying declaration be recorded, so far as the circumstances may permit, in his presence and he may be allowed to put questions, if necessary.