Dying declaration is a statement which may be oral or written, given by a person who is dying of an unlawful act. The declaration is relating to the material facts of cause of his death or bearing on the circumstances.
It is taken in the presence of the Executive Magistrate and two witnesses. If the victim is dying and there is no time to call the Executive Magistrate, then the dying declaration may be taken by the doctor. A statement can also be taken by the village headman, police or any other person but it will have less evidential value.
Before taking the declaration, the doctor should make sure that the victim is compos mentis (mental faculties are normal). Oath is NOT administered as it is assumed that a dying person does not lie.
Leading questions should not be asked. The declaration should be noted in the words of the declarant. The statement should be a fact and not an opinion or conclusion.
The declaration should be read over to the declarant and signed by the declarant, the doctor and the witnesses.
On the other hand a Dying Deposition, is a statement of a person recorded by the Magistrate under Oath, in the presence of the accused or his lawyer. The lawyer has the right to cross question the witnesses.
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