Evidence of Magistrate who recorded dying declaration-Procedure to be followed
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
