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Recording of Dying Declaration

1) Dying declarations are an exception to the hearsay rule and are considered credible evidence as those facing imminent death are unlikely to lie. 2) The proper procedure for recording a dying declaration outlined in the Criminal Rules of Practice includes identifying oneself to the declarant, determining their mental state, recording their exact words along with questions and responses, and obtaining their signature or thumbprint if possible. 3) While judicial magistrates are typically responsible for recording dying declarations, in emergencies police or medical officials may do so, provided they ensure the declarant is mentally fit and their statement is correctly understood and impartially recorded.

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197 views6 pages

Recording of Dying Declaration

1) Dying declarations are an exception to the hearsay rule and are considered credible evidence as those facing imminent death are unlikely to lie. 2) The proper procedure for recording a dying declaration outlined in the Criminal Rules of Practice includes identifying oneself to the declarant, determining their mental state, recording their exact words along with questions and responses, and obtaining their signature or thumbprint if possible. 3) While judicial magistrates are typically responsible for recording dying declarations, in emergencies police or medical officials may do so, provided they ensure the declarant is mentally fit and their statement is correctly understood and impartially recorded.

Uploaded by

sarayusindhu
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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You are on page 1/ 6

…..1….

Sri B. GAUTAM PRASAD,


st
1 Additional District & Sessions Judge,
Srikakulam.

RECORDING OF DYING DECLARATION

(I) IMPORTANCE OF DYING DECLARATIONS:

01. Dying Declaration is a legal concept refers to the effect that the
statement which is made by a dying person explaining the circumstances of
his death.
The word Dying Declaration itself tells the meaning. A statement by a
person who is conscious and knows that death is imminent concerning what
he believes to be the cause or circumstances of his death. A dying
declaration is considered credible and trustworthy evidence based upon the
general belief that most people who know that their about to die “do not lie”.
As a result, it is an exception to the general rule “hear say”, which prohibits
the use of a statement made by some one other than the person who
repeated it while testifying during trial.

02 Section 32(1) of the Indian Evidence Act deals with the


admissibility of dying declaration, which reads as follows:
Statements, written or verbal, of relevant facts, made by a person who
is dead, or who cannot be found, or who has become incapable of giving
evidence, or whose attendance cannot be procured, without an amount of
delay or expense which, under the circumstances of the case, appears to the
court unreasonable are themselves relevant facts in the following cases:
(1) When it relates to cause of death:- When the statement 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, in cases, in which the cause of that
persons’ death comes into question.
Such statements are relevant whether the person who made them was
or was not, at the time when they were made, under expectation of death,
and whatever may be the nature of the proceeding in which the cause of his
death comes into question.

So, recording of dying declaration becomes very important.


…..2….

(II) MANNER OF RECORDING DYING DECLARATIONS:

01. Rule 33 of Criminal Rules of Practice deals with the manner to


be followed by the Magistrate while recording Dying Declarations: It reads as
follows:

1. 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 death or the circumstances of the transaction which
resulted in death.

2. Before taking down the declaration, the Magistrate shall disclose his
identity and also ask the declarant whether he is mentally capable of
making a declaration. He should also put simple questions to elicit
answer from the declarant with a view to knowing his state of mind and
should record the questions and answers, signs and gestures together
with his own conclusion in the matter. He should also obtain whenever
possible a certificate from the Medical Officer as to the mental condition
of the declarant.

3. The declaration should be taken down in the words of the declarant as


far as possible. The Magistrate should try to obtain from the declarant
particulars necessary for identification of the accused. Every question
put to the declarant and every answer or sign or gesture made by him
in reply shall be recorded.

4. After the statement is recorded, it shall eb read over to the declarant


and his signature obtained thereon, if possible, and then the Magistrate
shall sign the statement.

02. Rule 33 of Criminal Rules of Practice itself says about the


precautions to be taken by the Magistrate while recording the Dying
declarations. They are as follows

1. The Magistrate shall disclose his identity to the declarant first.

2. He shall ask the declarant whether he is mentally capable of


making a declaration.

3. He shall ask simple questions to elicit answers from the declarant


to know his state of mind.

4. Magistrate shall record questions and answers, signs and


gestures together with his own conclusion.

5. He should also obtain whenever possible a certificate from the


Medical Officer as to the mental condition of the declarant.
…..3….

6. The declaration should be taken down in the words of the


declarant as far as possible.

7. The Magistrate should try to obtain from the declarant the


particulars necessary for identification of the accused.

8. Every question put to the declarant and every answer or sign or


gesture made by declarant in reply shall be recorded.

9. After recording statement, it shall be read over to the declarant


and his signature should be obtained thereon if possible.

03. Our Honourable High Court in a decision “P. Srinivasulu Versus


State of Andhra Pradesh” reported in “2004 Law Suit (AP) 121” observed
that:
“In the present case, as the deponent was unable to put the
thumb mark since her hands were burnt, her toe mark was
taken. The Court can always take judicial note of the fact that
there used to be a practice previously prevailing of taking toe
marks when it was not possible to take thumb impressions of the
hands of the deponent. By mentioning the word 'signature', it
causes considerable inconvenience to the Magistrate and
creates a doubt whether he can take thumb impressions of the
deponent or toe marks. Under the said circumstances, I am of
the considered view that the Rule itself requires amendment and
it should be clarified that in case of illiterate persons, and when a
person is unable to put the signature, thumb marks can be
obtained. It shall also be stated that in case hands were burnt,
the toe marks could be taken. It is a matter to be considered by
the High Court to bring about amendment to the necessary
Criminal Rules of Practice and Circular Orders, 1990”

(III) WHO CAN RECORD DYING DECLARATIONS:

01. Rule 33 of Criminal Rules of Practice casts duty on Magistrate to


record the Dying Declarations. Sub Rule (d) of Rule 2 of Criminal Rules of
Practice says “Chief Judicial Magistrate” includes the Chief Metropolitan
Magistrate,m “Magistrate” includes the Metropolitan Magistrate, and “Special
Magistrate” includes Special Metropolitan Magistrate. So, under Rule 33 of
Criminal Rules of Practice, Judicial Magistrate is empowered to record the
Dying Declarations. However, in some parts of the Country, Executive
Magistrates are recording the Dying Declarations.
…..4….

02. In case of non-availability of the Magistrate and in view of the


urgency, some times the Dying Declarations recorded by the Police Officers
and the Medical Officers working there, the Courts are accepting the Dying
Declarations recorded by the Police Officers and the Medical Officers.

03. The proper method for recording dying declaration by a


Magistrate or a doctor or a police official is that they should see that the
declarant is in a fit state of mind to give declaration. If the declarant is not in a
fit condition to give statement, the Magistrate should not proceed further
beyond making a note that the declarant was not in a fit condition to give
statement. The endorsement of the duty doctor is also equally important.

Some relevant case laws:


1. The deceased must be in a fit state of mind and capable of
making a statement at the time of recording of dying declaration
AIR 2001 SC 2383.

2. Prior to recording of statement of deceased, the doctor shall do a


thorough and professional assessment of physical and mental
condition of the patient. 1998 Crl.LJ 585.

3. Dying declaration is not mandatorily required to be recorded by


any Magistrate or particular person. However, it is normally
accepted that such declarations would be recorded by Magistrate
or by doctor to eliminate chances of any doubt of false
implication. 2010 AIR SCW 5494.

4. More sanctity is attached to a dying declaration recorded by


Magistrate since the recording of dying declaration by a
Magistrate assures the Court that the statement has been
correctly understood and truthfully recorded by an impartial
person. 2010(3) SCC (Crl.) = 2010 AIR SCW 5993.

5. At the time of recording of dying declaration as far as possible


the language used by maker of declaration should be used.
(1999)3 Mah. LJ 581 (DB) Bomaby.

6. Dying declaration cannot be rejected merely because it was


recorded in other language than that deposed by deceased 2001
Crl.LJ 3780.

7. The prosecution should specifically bring on record that


deceased had heard the statement recorded by Executive
Magistrate and she admitted it to be true and correct. This is not
mere formality but an essential part while recording the dying
declaration. 2000 (2) Mah. LJ 3 (DB) Bombay.
…..5….

8. The Magistrate who had recorded dying declaration and the


doctor who certified about the condition of the deceased out to be
summoned as a witness 2000(2) ALT (Crl.) 448.

9. Where Magistrate was not present at the time of recording of


statement of deceased and statement recorded by the Head
constable was fully convincing, it can be safely relied upopn. AIR
1997 SC 234.

10. Statement recorded by police officer is reliable when evidence of


doctor w`as showing that the deceased was fit to making
statement at that time AIR 1983 SC 164.

11. Although a dying declaration could not be rejected on the ground


that in absence of any other person available it was recorded by
a police officer as the deceased was in a critical condition, the
dying declaration was left out of consideration as it contained a
statement which was a bit doubtful AIR 1979 SC 1173.

12. Where police personnel who recorded dying declaration did not
mention time required for recording it and did not obtain medical
certificate on completion of recording of dying declaration that the
victim was conscious such dying declaration was not reliable.
2010(3) AIR Bomb. R.27 (DB).

13. Where doctor apprehended that the injuries could result into
death of deceased and therefore he sent for Magistrate to record
dying declaration but the Magistrate was reported to be out of
town, the doctor was most capable and authorized person to
record the dying declaration. The dying declaration recorded by
doctor after certifying that deceased was in full senses and the
statement was read over to him and on which after fully
understanding the deceased had put his thumb impression, is
itself sufficient to base conviction of accused. 1991 All
(Crl.R.)303.

14. Where dying declaration recorded by doctor was suffering from


infirmities and also it was uncorroborated by other evidence,
conviction solely on basis of such dying declaration was not
proper. 1995 Crl.LJ 2412. (DB) (Orisha)

Conclusion:

So, the role of Magistrates in recording dying declarations is very


important.

B. GAUTAM PRASAD,
st
1 Additional District & Sessions Judge,
Srikakulam.
…..6….

WORKSHOP-I

Paper presentation on

RECORDING OF DYING DECLARATIONS

By
B. GAUTAM PRASAD,
st
1 Additional District & Sessions Judge,
Srikakulam.

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