In any offense that is committed, only the victim and the accused know the truth and actual facts about the incident, and in order to prove their position, stories and statements are taken, which can be fake, false and biased. This is why the court always relies on statements given by the witnesses and other evidence to find the truth.
Despite this, there is a condition when the dying person’s statements are considered evidence and produced in the court of law. This type of documentary evidence is known as the dying declaration. It is also called “Leterm Mortem” which means as the words said before death. It is considered on a belief that a dying person will always tell the truth. This principle is from the Latin maxim- ‘nemo mariturus presumuntur mentri’, which means that a man will not meet his maker with a lie from his mouth.
A dying declaration is defined under SECTION 32(1) of IEA as a statement, verbal or written, made by a person as to the cause of death or as any of the circumstances of the transaction which resulted in his death. Unlike dying deposition, the accused and his lawyer are not necessarily be present while the statements are recorded.
Who can Record the Dying Declaration??
- It is preferred that the competent magistrate should record the statement as it has more evidentiary value because the magistrate knows how to record it correctly and is also an unbiased person. Section 164 of Cr.P.C, subsection (1) gives the magistrate the power to record the dying declaration.
- It has to be recorded in the presence of at least two witnesses. Rule 33 of the criminal rules of practice says about the magistrate’s precautions while recording.
- Suppose the person’s condition is deteriorating and there is no time to call the magistrate. In that case, it can be recorded by the doctor or the investigating police officer with two or more witnesses.
- Sometimes, a normal person can record it, like a family member or relative, depending upon the circumstance where the judicial magistrate, police officer, or doctor was unavailable. No matter the situation, to maintain the evidentiary value, the presence of witness is appreciated.
- While recording the statement, the role of witness is important because they can testify that the recording was done following all the rules and that the declarant was conscious and in a stable state of mind while recording.
Requirement and Procedure of Recording a Dying Declaration
- The main requirement of the dying declaration is that the statement is made when the declarant is in actual danger of death or the declarant has full apprehension to the danger, or death has occured, or declarant, if living, would be a competent witness to testify to the matter.
- While recording the statement, no oath is taken.
- The doctor should certify that the person is conscious and has a sound mind before the statement is recorded, and the magistrate can also ask simple questions to know the declarant’s state of mind.
- Leading questions cannot be asked. No suggestions should be made and no undue influence must be placed on the person.
- The declaration should be recorded in the words of the declarant. No addition, deletion of words or phrases should be made.
- It can be given in any language and can be oral or written, gestures or signs, question and answer, incomplete.
- If possible, the person should write his declaration and shall sign and attest it. Even if it is written with ink on hand, it is admissible as evidence in the court. If the person is unable to speak, then the questions that are asked to him along with his response as signs or gestures shall be recorded as a verbal statement.
- If any point that the declarant is not clear, only then questions to make it clear can be asked and should also be recorded. If the person recording finds that the statements are opinions and not facts, questions can be asked to uncover the facts.
- If the person becomes unconscious while recording then information so far gained should be signed by the doctor.
- After recording, it should be read over to the declarant and then attested using his signature or thumb impression along with sign and declaration of the doctor and witnesses.
- It is then sent to the magistrate in a sealed envelope and is produced as evidence during the trial.
Admissibility of Dying Declaration in Court
- A person’s dying declaration is admissible only if it mentions clearly about the cause of death.
- Generally, a declaration that is made by a child is not admissible. It is only considered reliable if proof of mental fitness and physical fitness is provided.
- It should be free, spontaneous and consistent. If the court feels it was influential, then the declaration will not be considered.
- After the death of the person, his dying declaration is accepted in the court as evidence. If he survives, then it cannot be admitted as a dying declaration but will have corroborative value.
Dying declaration stands equally among the other evidence related to a case as it contains the person’s final words stating the cause of death or the situation that led to his/her death.
Even though this documentary evidence has much criticism questioning its credibility, the court must scrutinize the declaration carefully and ensure that the declarant was in a sound state of mind and was not under any influence or pressure.
It is admissible in Indian court because of the belief that a man who is going to die, ends with all his needs and wants, and his interest is no more passionate for self deeds, so he seldom lies. The court has exclusive rights to reject the statements if found to be malicious and does not satisfy the requirements for its admissibility.