Recording Of Dying Declaration- Instructions for Magistrates

Recording Of Dying Declaration

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 proceeding 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 question 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 verbs 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 stating 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.

Value of Dying Declaration: – It is not possible to lay down any hard and fast rule when a dying declaration should be accepted, (i.e., acted upon) or not, beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances. The Supreme Court on a review of the relevant provisions of the Evidence Act and the decided cases in different High Courts has ruled [AIR 1958, SC 22 and AIR 1970, SC 1566]

1- that it cannot be laid down as an absolute rule of law that a dying declaration cannot Form the sole basis of conviction unless it is corroborated;

2. that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made ;

3. that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence ;

4. that a dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence ;

5. that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character ; and

6. that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the fads stated has not been impaired at the time he was making the statement by circumstances beyond his control ; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it ; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

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