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DYING DECLARATION
Statement by persons[1] who cannot be called as witnesses (Ss.32 and 33)
QUESTION BANK
- What is a dying declaration? Enumerate the grounds on which dying declarations are admitted in Evidence.
- What is a dying declaration? How it is recorded? What is its judicial value?
- What is a dying declaration? Evaluate evidentially the significance of the dying declaration.
SYNOPSIS
Introduction: –
- STATEMENTS BY PERSONS WHO CAN NOT BE CALLED AS
WITNESSES (SS.32, 33, AND S.158): –
1) DYING DECLARATION (S.32(1)): –
- A) Reasons for the admissibility of dying declaration: –
- Necessity: –
- Presumption: –
- B) Conditions of admissibility: –
- A person making a statement must have died: –
- Injuries must have caused the death: –
- As to the cause of his death or circumstances resulting in his death.
- Cause of death must be in question: –
- Declaring must be in a fit condition to make a statement: –
- The declaration must be complete: –
- The distinction between English and Indian Law: –
- Civil / Criminal: –
- The expectation of death: –
- Competency of Declarant: –
- D) Evidentiary value of dying declaration: –
Dying declaration to be reliable following conditions are to be fulfilled –
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2) STATEMENT MADE IN THE COURSE OF BUSINESS (S.32(2)): –
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3) STATEMENTS AGAINST THE INTEREST (CL.3): –
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4) OPINION AS TO PUBLIC RIGHT OR CUSTOM (CL.4): –
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5) STATEMENT RELATING TO THE EXISTENCE OF A RELATIONSHIP
(CL.5): –
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- STATEMENT IN WILL OR DEED RELATING TO FAMILY AFFAIRS (CL.6): –
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- STATEMENT MADE IN A DOCUMENT RELATING TO TRANSACTIONS (CL.7): –
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8) STATEMENTS BY SEVERAL PERSONS EXPRESSING FEELING
RELEVANT TO THE MATTERS IN QUESTION (CL.8): –
Introduction: –
Ss. 32 and 33 deal with the relevancy of statements made by persons who cannot be called witnesses. S. 60 of the Evidence Act insists that oral evidence must be direct in all cases. In other words, hearsay evidence is no evidence (Refer to a topic on direct and hearsay evidence). However, S. 32 is an exception to the above rule contained in S. 60.
I. STATEMENTS BY PERSONS WHO CAN NOT BE CALLED AS WITNESSES[2] (SS.32, 33 AND S.158): –
Statements written or verbal of relevant facts made by a person who –
- is dead, or
- cannot be found, or
- has become incapable of giving evidence or
- cannot be produced without unreasonable delay or expenses–
are themselves relevant in the following cases –
1) DYING DECLARATION (S.32 (1)): –
- When a statement is made by a person as to-
- the cause of his death, or
- the circumstances of the transaction that resulted in his death.
- When the cause of his death is in question – such statements are relevant.
- Whether a person who made them was or was not, at the time when they were made under an exception of death, and
- Whatever may be the nature of the proceedings in which the cause of his death comes into question.
Illustration: –
- The question is whether A was murdered by B or A died of injuries received in a transaction in the course of which she was ravished; the question is whether she was ravished by B; or
- The question is whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.
- Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.
A dying declaration is the statement of a person who has died explaining the circumstances of his death.
A) Reasons for the admissibility of dying declaration[3]: –
There are two reasons for which the dying declaration is admissible. In fact, dying declarations are not statements made on oath, and no cross-examination is possible because the deponent is already dead. Yet, it is admissible in evidence due to the following two reasons, viz.
i) Necessity: –
The person injured is dead and is naturally and necessarily the main witness in the case. Therefore, he is likely to know more about the circumstances of his death than anybody else.
ii) Presumption: –
The main principle on which dying declaration is admitted is expressed in the maxim ‘mariturus prossumitur nensiri’, which means a man will not meet his maker (God) with a lie in his mouth. The question asked is, why should he deceive the world by telling a lie when he cannot get the benefit of his lies?
B) Conditions of admissibility: –
For the admissibility of the dying declaration, the following conditions are to be satisfied –
(1) The person making the statement must have died: –
The person who made the statement must have died. As the name suggests, a dying declaration is a statement made by a person as to the case of his death or any of the circumstances of the transaction that resulted in his death.
So, the first condition is that unless the declarant is dead, the declaration cannot be made admissible as a dying declaration. But if after making a statement as to injuries on his body, he did not die, then the statement would not be called a dying declaration under S.32(1). Still, it may be admissible Under section 157 of the Evidence Act as corroborative evidence.
(2) Injuries must have caused the death: –
The injuries must have caused the death. If a person dies not because of injuries inflicted on him but due to other reasons or ailments, the dying declaration would not be admissible.
(3) As to the cause of his death or circumstances resulting in his death[4].
The statements relate to the cause of his death or the circumstances of the case resulting in his death.
In Moti Singh Vs. State of Uttar Pradesh[5].
Facts: – The accused, Moti Singh, and seven other persons were tried for the murder of one Gangacharan. The Court convicted Moti Singh and Jagdamba Prasad, and others were acquitted. The deceased Gangacharan, who had been attacked and admitted to the hospital, made a dying declaration. He died 20 days after his discharge from the hospital, and before the post-mortem was conducted, the dead body was cremated.
Issue:- Whether the dying declaration was admissible.
Held: – That the dying declaration was inadmissible because there was no evidence as to what caused the death of Gangacharan. The court further observed that when it was not established that Gangacharan had died as a result of injurious received in the incident, his statement relating to the incident could not be said to be relating to the cause of his death. The appellants were, therefore, acquitted.
In Pakala Narayan Swamy Vs. Emperor[6].
Facts: – On March 20th, K told his wife that he was going to Berhampore, as P’s wife had written and asked him to come and receive payments due to him. On March 21st, K left his house in time to catch the train to Berhampore, where P lived with his wife. On March 23, K’s body, cut into pieces, was found in a trunk, which was purchased for P. P was tried for the murder of K.
Privy Council held: – That the statement made by K (deceased) to his wife was admissible under S.32 (1) as a ‘circumstance of the transaction’ that resulted in K’s death.
Sometimes, a letter written by the deceased 5 years before his death was admitted as a dying declaration under S.32(1)[7].
4. Cause of death must be in question: –
A dying declaration is relevant only if the cause of his death is in question. However, if the cause of the death of any other person is in issue, the dying declaration is not admissible.[8].
5. Declarant must be in a fit condition to make a statement: –
The person expecting death due to injuries must be in a fit condition to make a statement.
In a statement of Haryana Vs. Harpal Singh[9].
Facts: – The defence contended that the declarant was not in a fit state of mind to make a dying declaration because his pulse was not palpable, blood pressure was not recordable, and the patient was in a gasping condition.
Court Observed: – Normally, whenever a Magistrate is required to record a dying declaration, he poses preliminary questions to the person to ensure that the person is conscious of the surroundings and is in a fit state of mind to make a dying declaration. Also, where a doctor certified that the deceased was at the time of making the declaration conscious and was in a fit state of mind is sufficient and can be proved even though the pulse was not palpable, blood pressure was not recordable. The patient was in a gasping condition.
6. The declaration must be complete: –
To be admissible in evidence, a dying declaration must be completed. An incomplete dying declaration is not admissible. Where the declarant dies before completing the declaration, such an incomplete declaration cannot be accepted in evidence.
In Abdul Sattar Vs. The State of Mysore[10].
Facts: The deceased stated, “I was going home when I came near the house of Abdul Majid Sattar, and he shot me from the bush. He ran away, I saw”. After that, he was unable to answer any further questions.
Held: – The statement was held to be admissible because it was complete regarding the accused having shot dead the deceased.
C) The distinction between English and Indian Law: –
1. Civil / Criminal: –
Under the Indian Evidence Act, ‘dying declaration’ is admissible in civil and criminal cases in which the declarant’s death is questioned. But under English Law, it is admissible only in cases of homicide wherein the death of the deceased is in question.
2. Expectation of death: –
Under English Law, a ‘dying declaration’ must be made under the expectation of death, i.e., a person making the declaration must be sure and confident (at the time of making the declaration) of his death.
In R.V.Jenkins[11]
Facts: – The deceased, who was shot at by the accused, made a dying declaration to a clerk of the Magistrate who was deputed to record the dying declaration. In the statement, she said, “I am making this declaration without hope of recovery”, and the clerk of the Magistrate who recorded the statement read over the statement; when it was read over, she asked the clerk to write the words “At Present” at the end of the present statement.
Held: – Since she suggested adding the words “At present”, she had some ray of hope for survival. Therefore, the statement is inadmissible in evidence.
However, under Indian Law, whether the declaration is made with the expectation of death is immaterial.
3. Competency of Declarant: –
Under Evidence Law, a person making a declaration must be competent. It means that the dying declaration made by an infant is not admissible.
However, the Indian Evidence Act does not provide such a bar. The dying declaration of a major or minor is admissible in Indian Law.
D) Evidentiary value of dying declaration: –
The evidentiary value of the dying declaration may vary according to the circumstances of a particular case in which it is made. If the Court is convinced that it is true, it can bear conviction. No strict rule of Law requires that the dying declaration should not be acted upon unless corroborated. However, generally, it is not considered safe to convict an accused only on the basis of a dying declaration without further corroboration.
A dying declaration, to be reliable, must fulfil the following conditions–
- The dying declaration should have been recorded by the competent person.
- The dying declaration should have been recorded in the exact words in which it was stated.
- The dying declaration should have been recorded soon after the incident so that impressions of tutoring by a third person do not come.
- The incident must have occurred in a lighted place.
- The dying declaration should inspire confidence to make it safe to act upon it.
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2) STATEMENT MADE IN THE COURSE OF BUSINESS[12] (S.32 (2)): –
This clause makes the statement relevant, which is written or verbal of relevant facts, made in the ordinary course of business by a person who is dead, cannot be found, has become incapable of giving evidence, or whose appearance cannot be procured without unreasonable delay or expression.
Illustrations: –
(a) The question is as to the date of A’s birth.
An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that on a given day, he attended to A’s mother and delivered her of a son, is a relevant fact.
(b) The question is whether A was in Calcutta on a given day.
A statement in the diary of a deceased solicitor regularly kept in the course of business that on a given day, the solicitor attended A at a place mentioned in Calcutta for the purpose of conferring with him upon specified business is a relevant fact.
(c) The question is whether a ship sailed from Bombay harbour on a given day.
A letter written by a deceased member of a merchant’s firm, by which she was chartered, to their correspondents in London to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.
(d) The question is whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.
(e) The question is, what was the cause of the wreck of a ship?
A protest made by the Captain whose attendance cannot be procured is a relevant fact.
(f) The question is, what was the price of grain on a certain day in a particular market? A statement of the price, made by a deceased Baniya in the ordinary course of his business, is a relevant fact.
The illustrations (b) and (c) of S.21 are also instances of statements in the course of business. The reason for admitting such statements is that the statements having been made in the usual course of a business without any ulterior motive ensures some truth in them.
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3) STATEMENTS AGAINST THE INTEREST[13] (CL.3): –
Clause 3 declares that a statement of the person who is dead, etc., is admissible when it is against the pecuniary and proprietary interest of the person making it or when, if true, it would expose him or would have exposed him to criminal prosecution or to a suit for damages.
Illustration: –
(g) The question is whether rent was paid to A for certain land.
A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact.
(h) The question is whether A and B were legally married.
The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant.
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4) OPINION AS TO PUBLIC RIGHTS OR CUSTOM[14] (CL.4): –
This clause makes the relevant opinion of a dead person, etc., regarding the public right or custom or any matter of public or general interest.
Illustration: –
(i) The question is whether a given road is a public way.
A statement by A, a deceased village headman, that the road was public is a relevant fact.
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5) STATEMENT RELATING TO THE EXISTENCE OF A RELATIONSHIP[15]
(CL.5): –
The statement of a dead or who cannot be found etc., relates to the existence of any relationship (by blood, marriage, or adoption) between persons as to whose relationship (by blood, marriage, or adoption) the person making the statement has special means of knowledge, and when the statement was made before the question in dispute was raised, is relevant.
In S.Ramkrishna Pillai V. Tirunarayana[16].
Held: – It should be borne in mind that to have special means of knowledge, the declarant should be related to the family (by blood or marriage). In India, statements from the deceased, servants, and dependents are admissible to prove a relationship.
The statement must be made before the dispute arises. Declaration after controversy is to be regarded as lacking the guarantee of truthfulness.
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6) STATEMENT IN WILL OR DEED RELATING TO FAMILY AFFAIRS[17] (CL.6): –
When the statement of a person who is dead or who cannot be found, etc., relates to the existence of any relationship (by blood, marriage, or adoption) between persons deceased and is made in any will or other deed relates to the affairs of the family to which any of such deceased person (about whose relationship it relates) belonged, or in any family pedigree, or upon any tombstone, family portrait or other things on which such statements are usually made, and when such statement was made before the question in dispute was raised, is admissible.
The difference between Cl.5 and Cl.6 is that Cl.5 admits evidence of written or oral statements as to the relationship between persons living and between persons living and dead. In contrast, Cl. 6 admits evidence of only recorded statements about the deceased person’s relationship. In both cases, the statement should have been made before the question in dispute as to such a relationship had arisen.
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7) STATEMENT MADE IN A DOCUMENT RELATING TO TRANSACTIONS[18] (CL.7): –
This clause applies to statements of the deceased, etc., if the statement is contained in any deed, will, or other document relating to the transaction mentioned in S.13(a), i.e., the transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied or which was inconsistent with its existence.
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8) STATEMENTS BY SEVERAL PERSONS EXPRESSING FEELINGS RELEVANT TO THE MATTERS IN QUESTION[19] (CL.8): –
The statements made by a number of persons expressing feelings or impressions, i.e. opinions relevant to the matter in question, are admissible when those persons are dead or incapable of giving evidence, and the testimony of other persons may prove such statements.
Illustrations: –
A sues B for libel expressed in a painted caricature exposed in a shop window.
The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.
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[1] मृत्यू पूर्व जबाब [मौत के पूर्व जवाब ]
[2] साक्षीदार म्हणून बोलविता न येणा-या व्यक्तींषी केलेले विधान/निवेदन [साक्षीदार म्हणून बोलविता न येणाÚया व्यक्तींषी केलेले विधान/निवेदन ]
[3] मृत्यू पूर्व जबाब स्विकारण्याची कारणे [प्रसवपूर्व देखभाल स्वीकार करने के कारण ]
[4] विधान हे मयताच्या कारण संबंधी अथवा त्याच्या मृत्यूस कारणीभूत परस्थिती संबंधी असते [एक बयान मृत्यु के कारण या उसकी मृत्यु की ओर ले जाने वाली परिस्थितियों के बारे में है ]
[5] [AIR 1964 SC 900]
[6] [AIR 1939 P.C. 47]
[7] Ranjith Singh Vs. State of Punjab [AIR 1952 H.P.81]
[8] In Re Paria Chelliah Nadar. [AIR 1942 Mad. 450]
Facts: – The death of a woman who made a dying declaration was not in question but the death of her husband.
Held: – The dying declaration of his wife is not admissible in which the husband’s death is in the issue.
[9] [AIR 1978 SC 1430]
[10] [AIR 1956 SC 168)
[11] [1869]
[12] उद्योगाच्या ओघात केलेले विधान [उद्योग के दौरान एक बयान[ ]
[13] स्वतः च्या हिताविरुद्ध जबाब [खुद के खिलाप जवाब]
[14] सामाजिक अधिकार अथवा प्रथे संबंधीचे मत [सामाजिक अधिकार या रिवाज का एक दृश्य ]
[15] अस्तित्वात असलेल्या संबंधा संदर्भात केलेने केलेने विधान [मौजूदा रिश्ते के संबंध में दिए गए बयान ]
[16] [AIR 1932 Madras 198]
[17] मृत्यूपत्र अथवा कौटुंबिक कामकाजाबद्दलचा लेख यामध्ये विधान [पारिवारिक मामलों के बारे में एक वसीयत या लेख में एक बयान ]
[18] व्यवहारासंबंधी कागदपत्रात केलेेले विधान [ लेन-देन दस्तावेज़ में दिया गया एक बयान ]
[19] प्रश्नांकित विशयासंबंधी भावना व्यक्त करणारे अनेक व्यक्तींनी केलेले विधान [प्रश्न में विषय के बारे में भावनाओं को व्यक्त करने वाले कई व्यक्तियों द्वारा दिया गया बयान ]