It is a written or oral 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 (S.32, I.E.A.). If there is time, Executive magistrate should be called to record the declaration. Before recording the statement. the doctor should certify that the person is conscious and his mental faculties are normal (compos mentis). If the condition of the victim is serious, and there is no time to call a Magistrate, the doctor should take the declaration in the presence of two witnesses. The statement can also be recorded by the village headman, police or any other person, but its evidential value will be less. While recording the dying declaration, oath is not administered, because of the belief that the dying person tells the truth.
The statement should be recorded in the man’s own words, without any alteration of terms or phrases. 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 the answer received should be recorded. It should then be read over to the declarant, and his signature or thumb impression is taken. The statement made must be of fact and not opinion. If the declaration is made in the form of an opinion or conclusion, questions should be asked by the recorder to bring out the facts that are the basis for the conclusion. While recording the statement, if the declarant becomes unconscious, the person recording it must record as much information as he has obtained and sign it. If the dying person is unable to speak, but is able to make signs in answer to questions put to him, this can be recorded and it is considered as a “verbal statement”. The doctor and the witness should also sign the declaration. If the statement is written by the declarant himself, it should be signed by him, the doctor and the witnesses.
The declaration is admissible not only against an accused who killed the declarant, but also against all other persons involved in the same incident which resulted in his death. In India, if the declarant is in a sound state of mind at the time of making the declaration, it is admissible in Court as evidence, even if the declarant was not under expectation of death at that time. The declaration is sent to the Magistrate in a sealed cover. It is produced at the trial and accepted as evidence in case of death of the victim in all criminal and civil cases, where the cause of death is under enquiry. The person recording the declaration will have to give evidence in the Court to prove it. If the declarant survives, the declaration is not admitted, but has corroborative value, and the person is called to give oral evidence. The statement is important to identify the offender or to clear innocent persons.
It is a statement of a person on oath, recorded by the Magistrate in the presence of the accused or his lawyer, who is allowed to crossexamine the witness. This procedure is not followed in India.