Whether recorder of dying declaration should depose about contents of dying declaration in his evidence before court?

It is not necessary for us to delve into the matter at any great length, in view of the fact that relied upon judgment was overruled by a Full Bench of the High Court itself in Ramesh S/o. Gyanoba Kamble v. State of Maharashtra MANU/MH/1547/2011 : 2011 (6) Mh. L.J. 927. The legal position, expressed by the Full Bench of the High Court, was recorded as under:

In the result, we are of the opinion that for proving a dying declaration recorded by a person/Magistrate/Executive Magistrate it is not essential requirement of law that the recorder should repeat, while deposing before the Court, the contents of the declaration in the words spoken by the deceased as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In other words, the recorder of a dying declaration need not depose before the Court, in the words spoken by the deceased, about the name/description, and the act of the accused, which resulted in his death. Accordingly, the question referred to this Full Bench is answered in negative.

We are satisfied in holding, that the conclusion which was drawn by the Full Bench of the High Court in Ramesh S/o. Gyanoba Kamble's case (Supra), after examining the issue at great length, and after taking note of a large number of judgments rendered by the Supreme Court, is the correct legal position, on the issue. In the above view of the matter, it was wholly impermissible for the High Court to have overlooked, the two dying declarations of the deceased Nalu Sunil Potdukhe, as had been recorded by PW-2 Rameshwar Amnerkar and PW-6 Ashok Latare.

IN THE SUPREME COURT OF INDIA

Crl. A No. 2053 of 2010

Decided On: 01.09.2016

Sunil Vs. State of Maharashtra

Hon'ble Judges/Coram:

J.S. Khehar and Arun Mishra, JJ.

Citation:(2017) 11 SCC 260.

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Whether magistrate recording dying declaration should depose about contents of dying declaration?

In our opinion, the recorder of "a statement/dying declaration" does not offer himself for cross examination as if he is the deceased. He is only supposed to bring the statement of the deceased on record and prove the contents thereof. As a matter of fact, the dying declaration can be proved even if its recorder is not available, being dead or who cannot be 

found or, for any reason whose attendance cannot be procured. Any other person such as a Doctor / Nurse, if states, that he/she was present when the deceased made such statement, in our opinion, may be sufficient to admit the dying declaration. In that eventuality, if such witness deposes before the Court that he was present when the statement was recorded by a Magistrate, he heard the deceased making such statement, saw the Magistrate recording it, taking the signature / thumb impression of its maker, and also putting his signature thereon etc. may be sufficient to prove the contents of such statement. Whether to form conviction on the basis thereof, however, would be a matter of appreciation of evidence. It is common knowledge that Magistrates /Executive Magistrates who are always willing and make themselves available to record dying declarations are often called by Police. In some cases, we find that a particular Magistrate records 10/15 dying declarations in a week or 20/25 in a month. In such a situation, it would be humanly impossible for any Magistrate to remember contents of the statements recorded by him and to reproduce while deposing before the Court. It is true that Magistrate while under examination can refresh his memory as provided for under Section 159 of the Evidence Act. That being so, in our opinion,

expecting the Magistrate, after referring to the statement recorded by him, to repeat and/or reproduce contents thereof, would be too technical and would create violence to logic. In criminal trials, while dealing with such evidence Courts have to be rational and realistic and need not take dogmatic and hyper technical approach. The Courts cannot ignore or turn its mind/attention away from the truth of the cause, in disregard to its duty to prevent miscarriage of justice.

Bombay High Court

Ramesh S/O Gyanoba Kamble vs The State Of Maharashtra on 12 August, 2011

Bench: D.B.Bhosale, S.B. Deshmukh, Shrihari P. Davare

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