Mumbai: A full bench of the Bombay High
Court has held that a Magistrate or any other person who records a dying declaration of a victim is not required in law to repeat it verbatim in the court in order to prove it.
A Magistrate may record 20-25 dying declarations in
a month and it would be impossible for him to remember and
repeat what he has recorded in a trial. Even if his memory is
refreshed it would meet the logic, Justice D B Bhosale, S B
Deshmukh and S P Davare said in their judgement recently.
The judges opined that while dealing with such
evidence in criminal trials, "the Courts have to be rational
and need not take a dogmatic or hyper-technical approach".
The bench held, "If a dying declaration in writing
needs to be repeated in the words of the deceased as to the
cause of his death, then there would be no difference between
oral and written dying declaration and it would not be
necessary to reduce a dying declaration in writing. Such an
anomaly would frustrate the purport of the statute".
The judges said that a Magistrate who records the
dying declaration is not required to be acquainted with the
facts and circumstances of the case. He does so at the request
of investigating agency or police.
Sometimes a doctor or a police officer may record the
cause of death in medical papers on the basis of statement
made by the victim. "They are all independent witnesses and
are in no way concerned with the facts and circumstances of
the case", the bench observed.
A dying declaration "can be proved even it its
recorder is not available, is dead or cannot be found or
cannot be produced. Any other person such as doctor or nurse
who states that they were present when the deceased made the
statement may be sufficient to admit the dying declaration,"
the judgement, written by Justice Bhosale, said.
Whether such dying declaration would be enough to
convict an accused, would, however, be a matter of
appreciation of evidence, the bench held.