In the law of evidence, a dying declaration is a testimony that would normally be barred as hearsay but may in common law nonetheless be admitted as evidence in criminal law trials because it constituted the last words of a dying person. In the case of Shivaji s/o Tukaram Patdukhe v. the State of Maharashtra, a bench headed by Justice PV Hardas rejected the dying declaration recorded by a Special Executive Magistrate on the basis that it was read over to the declarant and said that it does not inspire the confidence of the court.
A division bench of Justice A B Chaudhari and Justice P N Deshmukh rejected the precedent holding that it is neither the ratio nor the obiter dicta of the decision of the apex court that the dying declaration has to be rejected only because the contents of it were not read over and admitted to being correct by the declarant. Thereafter a full bench of the judges of Bombay High Court held that neither the provision of Section 32(1) of the Evidence Act nor any decision of the Apex Court prescribes any particular format in which a dying declaration is to be recorded. It can be oral as well as written. In case of an oral dying declaration, it is not possible to read it over to the declarant. Similarly, if it is written then there is no need to make a column of confirming that it was read over to the declarant. Hence a dying declaration cannot be rejected merely because it was not read over to the declarant.