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Dying Declaration (Section 32 Indian Evidence Act)
Definition :
It is an oral or written statement of a person, who is dying as a result of some unlawful act, relating to the material facts of cause of his death or bearing on the circumstances. If there is time, executive magistrate should be called to record the declaration. Before recording the statement, the doctor should certify the compos mentis meaning that the person is conscious and his mental faculties are normal. If the condition of victim is serious and there is no time to call magistrate, the doctor should take the declaration in person in presence of two witnesses. The statement can also be recorded by the village headman, police or any other person, but its evidential value is less. While recording the Dying declaration, oath is not administered, because of the belief that the dying person tells the truth.
Statement: The statement should be recorded in the victim’s own words, without any alteration of terms or phrase. Leading questions should not be put. The declarant should be permitted to give his statement without any undue influence, outside prompting or assistance. If a point is not clear, question may be asked to make it clear, but the actual question and answer received is recorded. After recording the declaration should be read over to the declarant and his/her signature or thumb impression is taken. The doctor and witness should also sign.
If the statement is written by declarant himself, he should sign and also countersigned by the doctor and the witness. Statement must be a fact and not an opinion. If it is an opinion, the question must be asked to bring out the basis of that conclusion. If the declarant becomes unconscious while giving statement, the doctor must record as much information as available and sign it. If the declarant is unable to speak but able to make signs to answer to question put to him, this can be recorded and considered as Verbal Statement.
Admissibility: Dying declaration is admissible against accused as well as all persons involved in the incident which resulted in declarant’s death. In India if the declarant at the time of giving statement; was under sound state of mind, the dying declaration is admissible as evidence in the court of law, even if he was not expected to die at the time of giving statement. The statement is important to identify the offender and clear the innocent.
The declaration is sent to magistrate in a sealed cover and produced in trial and accepted as evidence in case of death of the victim in all civil or criminal cases where the cause of death is under enquiry.
Person recording dying declaration must be present in court to testify it. If the declarant survives, the declaration is not admissible but has corroborative value.