Dying Declaration, WhatsApp Voice Note and CDR
In Dhanbad, Neha, 28, suffers 70% burns at her home. Her mother-in-law and husband take her to hospital after two hours. A Judicial Magistrate records her dying declaration at 9:40 p.m. in the presence of a doctor; she says her husband poured kerosene after a quarrel over dowry. She dies at 2 a.m. The next day her sister gives police a WhatsApp voice note of 40 seconds, said to be sent by Neha two hours before the fire, saying 'if anything happens, my husband is responsible'. Police seize the husband's phone and the sister's phone, prepare a seizure memo, but do not record hash values and do not obtain a certificate under Section 63 BSA. The CDR of the husband's phone, produced by the service provider with a certificate, shows his location near the house at 7 p.m. The defence objects that the voice note is hearsay, the CDR is inadmissible without the service provider's witness, and the dying declaration is suspicious because it was recorded late and the doctor's certificate is on a separate sheet.
1. Rule on the admissibility of the WhatsApp voice note and the CDR.
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Voice note. A WhatsApp voice note is an electronic record. If it is produced as secondary evidence, Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (earlier Section 65B of the Evidence Act) requires a certificate identifying the record and describing how it was produced. The police did not record hash values or obtain a certificate. The seizure memo alone does not authenticate the recording. The court should ask whether the original device is produced, whether the sender's identity and the recording's integrity can be proved, and whether the sister can explain the context. Without these, the voice note is weak and may be inadmissible as secondary electronic evidence.
CDR. A CDR is also an electronic record, but the service provider has supplied a certificate. Section 63(4) permits a certificate from the person in charge of the device or the relevant activity. The service provider's witness is not always necessary if the certificate is valid and the record is produced in the regular course. The CDR is relevant, but location near the house at 7 p.m. is only corroborative; it does not prove the act.
Conclusion. Admit the CDR subject to proof of the certificate; exclude the voice note unless the original device and certificate are produced or the defect is cured.
2. What is the evidentiary value of the dying declaration? Can it be the sole basis of conviction?
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Admissibility. A dying declaration is admissible under Section 32 of the Evidence Act, 1872, now Section 26 of the Bharatiya Sakshya Adhiniyam, 2023. It need not be recorded by a Magistrate, and it can be oral. The Magistrate's record here has the doctor's opinion on fitness, though on a separate sheet. The separate sheet is not fatal if the doctor is examined and the link is proved.
Sole basis. A dying declaration can be the sole basis of conviction if the court is satisfied that it is voluntary, truthful, coherent, and made in a fit mental condition. The court must scrutinise the surrounding circumstances: 70% burns, two-hour delay in hospital, possible tutoring, and the presence of the husband's family. The late recording is explained by the need for treatment and stabilisation; it is not automatically suspicious.
Voice note. The voice note was made two hours before the fire. It is not a dying declaration unless it relates to the cause of death or the circumstances of the transaction resulting in death. It may be relevant to motive or state of mind, but it is not substantive proof of the overt act. It can corroborate the dying declaration if authenticated.
Approach. The court should read the dying declaration as a whole, compare it with the medical evidence, and look for corroboration from the CDR and the voice note only if admissible. Conviction can rest on the dying declaration alone, but the court must give reasons for accepting it.
3. What procedure should the investigating officer have followed for the electronic evidence, and what should the trial court do about the defect?
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Preservation. The IO should have seized the devices, sealed them, recorded their make, model, and IMEI numbers, prepared a hash value of the voice note, and kept a forensic clone. The chain of custody from seizure to forensic examination should be documented. A Section 63 BSA certificate should identify the electronic record, describe the device, and state that the copy was produced by a computer or communication device in regular use.
CDR. The service provider should give a certificate for the CDR and produce the relevant records. The IO should examine the nodal officer or person in charge if the certificate is defective.
Trial court. The court should decide admissibility before the document is exhibited. If the voice note is tendered as secondary evidence without a certificate, it should be excluded. The court may permit the prosecution to summon the IO or the service provider and to produce the original device, but it cannot cure a fundamental authentication defect by mere oral assertion. The court should also warn itself that a WhatsApp screenshot or forward is easily manipulated and requires strict proof.