Dying Declaration vs Dying Deposition, Dying Deposition vs Dying Declaration, Dying Declaration and Dying Deposition
- Dying deposition is almost a dying declaration. The main difference being that it is always recorded by a magistrate in presence of the accused or his/her lawyer.
- The Magistrate records the evidence after administering oath in presence of the accused or his lawyer.
- Legally, the dying deposition is more valuable than dying declaration as the accused has got the opportunity to challenge and cross-examine.
- The Medical Officer’s presence is not indispensable, but he/she may have to certify the mental fitness of the patient.
- However, currently this is not in practice in India. There is no provision of dying deposition in IEA, so it is not followed in India.
- Dying declaration is a statement, verbal or written (or even by gestures) made by a deceased person before his/her death, relating to the circumstances leading to death.
Dying declaration should fulfill following ingredients:
- Person making the statement is likely to die.
- Statement must be made as to the cause of his/her death or the circumstances resulting in his/her death.
- The cause and manner of his/her death must be in question.
- Statement must be complete.
- Declarant must be of competent mental state to make the statement.
Differentiation of Dying deposition & Dying declaration
Let’s take a look over Dying deposition vs Dying declaration :
S.No. Feature Dying declaration Dying deposition 1. Statement Recorded by anyone-magistrate/doctor/village
headman/police/any member of public
Always recorded by a Magistrate 2. Oath@ Not required Must 3. Type of evidence* Documentary Oral 4. Cross-examination Not performed Done 5. Leading questions# Not asked 6. Legal value Less Much more 7. Admissibility, if declarant survives Not admitted, but has corroborative value Fully admitted 8. Nature Merely recording of statement Complete court procedure 9. Accused or his counsel Not present Always present 10. Role of doctor Assess compos mentis^ and
Record the statement in absence of Magistrate,
but in presence of witnesses
Assess compos mentis
Statement always recorded by the Magistrate
11. Practice in India Followed Not followed
*Medical Evidence is defined as legal means to prove or disprove any medico-legal issue in question. It is of two types : Documentary, & Oral.
#Leading questions must not be asked, if objected to by the adverse party, in an examination-in-chief or in re-examination, except with the permission of the court (Sec. 142 IEA Indian Evidence Act).
@Perjury : A witness who after taking oath or making a solemn affirmation, willfully makes a false statement
which he knows or believes to be the false (Sec. 191 IPC and Sec. 344 CrPC) is liable to be prosecuted for perjury under Sec. 193 IPC with imprisonment upto 7 years and fine.
^Compos mentis : Having full control of one’s mind i.e. sound mind.