Now a dying declaration can be recorded by anyone, according to a judgement passed by the Supreme Court in its reversal of a high court verdict.
The case: A dowry death where the woman's in-laws set her ablaze. She suffered 100% burns. Her statement was dismissed because the Madhya Pradesh High Court doubted its veracity.
The counter-argument was that she had suffered abuse in her matrimonial home and there was every reason to believe her. The SC agreed and according to a report, “You need not be a police officer, doctor or a magistrate to record the dying declaration, a statement accusing those responsible for the death of the person making his last possible statement".
The bench further added, "The person who records a dying declaration must be satisfied that the maker is in a fair state of mind and is capable of making such a statement...Moreover, the requirement of a certificate provided by a doctor in respect of such state of the deceased, is not essential in every case."
Besides the ability to gauge the state of mind, what cases will be exempt?
The court has specified that such an allowance will be certainly applicable in burns cases. It is true that it might help a lot of women who continue to go though this torture. But what if the burns are not as severe and she dies due to other complications?
The possibility of such declarations being questioned increases simply because the person recording them is likely to be close to the victim. The law relies on evidence, and it would be more sensible if the case was dealt with by the police.
On the face of it, this appears to be a move to ease the bureaucratic method of having a doctor or cop at hand. However, it could end up in further legal wrangles.
A person dying is not in a stable mental condition, so the very crux of the provision could be argued. What happens if the woman had a history of depression, quite possibly as a result of the incessant abuse? Would her dying declaration hold? Unlikely.
It may be used against her, whereas an 'authority' figure recording it could have helped. Some things do appear progressive and easy on paper, but their execution is not only never foolproof, it leads to even more problems.
I do not see why a declaration is needed at all. No woman will douse herself with kerosene and light a matchstick.
Imagine the complications where other means are used to kill. Suppose the woman has been strangled to death, or poisoned? The same queries might be posed in other cases, too, irrespective of gender.
It might sound like something from a bad film, but what if together with the dying declaration a helpful relative or friend manages to get other declarations, including property papers or even establishes a relationship closer than the one that exists? And since the 'recorder' is an expert at judging mental balance, and the victim is deemed to be in a state of sound mind, how will the court manage this side-effect?
© Farzana Versey
dying declaration is tricky and it is best recorded in the presence of magistrate or in front of credible witness (but the defence should have the right to cross examine )ReplyDelete
I think that is what I wrote about. Obviously, the defence will cross-examine once the matter reaches court.ReplyDelete