Witness made statement in expectation of death did not die

In Maqsoodan and Ors. v. State of U.P., AIR 1983 SC 126, this Court dealt with an issue wherein a person who had made a statement in expectation of death did not die. The court held that it cannot be treated as a dying declaration as his statement was not admissible under Section 32 of the Indian Evidence Act, 1872 (hereinafter called the Act 1872), but it was to be dealt with under Section 157 of the Act 1872, which provides that the former statement of a witness may be proved to corroborate later testimony as to the same fact.

A similar view has been re-iterated by this Court in Ramprasad v. State of Maharashtra, AIR 1999 SC 1969, as the Court held:

Be that as it may, the question is whether the Court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before “any authority legally competent to investigate the fact” but its use is limited to corroboration of the testimony of such a witness. Though a police officer is legally competent to investigate, any statement made to him during such an investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a Magistrate is not affected by the prohibition contained in the said section. A Magistrate can record the statement of a person as provided in Section 164 of the Code and such a statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a Magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof.

This has also been reiterated in Gentela Vijayavardhan Rao and Anr. v. State of Andhra Pradesh, AIR 1996 SC 2791; and State of U.P. v. Veer Singh and Ors. AIR 2004 SC 4614.

Thus, in view of the above, it can safely be held that in such an eventuality the statement so recorded has to be treated as of a superior quality/high degree than that of a statement recorded under Section 161 Cr.P.C. and can be used as provided under Section 157 of the Act 1872.

AIR 2011 SC 255 : (2011) CriLJ SC 283 : JT 2010 (12) SC 167 : (2010) 11 SCALE 391 : (2011) 4 SCC 336