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Dying Declaration (Section 32 Of Indian Evidence Act)

Dying Declaration is admissible in evidence being hearsay evidence. This piece of hearsay evidence is admissible as an exception to the general rule of evidence that hearsay evidence is no evidence in eye of law and it should be discarded as general rule because the evidence in all cases must be direct.

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases.
  1. When it relates to cause of death: When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that personís death comes into question.

    Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

  2. Statement is made in course of business: When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods securities or property of any kind; or of a document used in commerce written or signed by him or of the date of a letter or other document usually dated, written or signed by him.

  3. Statement against interest of maker: When the statement is against the pecuniary or 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.

  4. Statement gives opinion as to public right or custom, or matters of general interest: When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest of the existence of which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

  5. Statement relates to existence of relationship: When the statement 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 had special means of knowledge, and when the statement was made before the question in dispute was raised.

  6. Statement is made in will or deed relating to family affairs: When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

  7. Statement in document relating to transaction mentioned in section 13, Clause (a): When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a).

  8. Statement is made by several persons and expresses feelings relevant to matter in question: When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Examples
(a) The question is, whether A was murdered by B or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B. The question is, whether A was killed by B under such circumstances that a suit would lie against B by Aís 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.

Dying declaration in English law

A Dying declaration means the statement of a person who has died explaining the circumstances of his death. According to English law the statement is relevant only when the charge is that of murder of manslaughter.

The basis of the rule as to dying declaration was explained in the early case of R vs Woodcock, explained the general principle:

Proximity of time between statement and death

There has to be proximate relationship between the statement and the circumstances of death. In Rattan Singh v. H.P. the statement of a woman made before the occurrence in which she did that the accused was standing near her with a gun in his hand and this fact being one of the circumstances of the transaction was held to be admissible as a dying declaration being proximate in point of time and space to the happening.

Acceptance of Pakala ruling by Supreme Court.

It is settled law that it is not safe to convict an accused person on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subjected to cross examination and because the maker of it might be mentally and physically in a state of confusion.

Where there is more than one dying declaration. It was held by Supreme Court that the conviction based on such conflicting and discrepant dying declaration was liable to be set aside.

Some general Propositions:
  1. There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated.
  2. Each case must go by its own facts.
  3. A dying declaration is not a weaker kind of evidence than any other piece of evidence.
  4. A dying declaration which has been properly recorded by a competent magistrate, that is to say, in for of questions and answers and, as far as practicable in words of the maker of declaration of reliable.
  5. To test the reliability of a dying declaration, the court has to keep in view the circumstances like the opportunity of the dying man of observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the declaring was not impaired at the time of the statement, that the statement has been made at the earliest opportunity and was not the result of tutoring by interested parties.

Statement made to or implicating relatives.
The Supreme Court laid down in a case that a dying declaration made to the relatives of the deceased, when properly proved can also be trusted.

F.I.R as dying declarations and statements recorded by police.
In State of Karnataka v. Shariff, the Supreme Court observed that a dying declaration recorded by police cannot be discarded on the grounds alone. There is no requirement of law that a dying declaration must necessarily made to a magistrate.

Conclusion
Dying declaration no doubt is an important piece of evidence to guide the courts in the onerous task of finding the truth. Though it suffers from a serious blemish still carries much weight. It constitutes radical departure from the established principles of evidence as the statement and its veracity cannot be cross examined and virtually admissibility of hearsay evidence. Courts have never been allergic to allow conviction solely on the basis of testimony of a witness who cannot be available before the court to testify the substance of the statement which forms the basis of its judgment.

Basic to the whole process is the avowed sanctity of a man who utters last word before leaving the world and honestly averring the involvement of a person who inflicted injuries on him leading his ultimate death. Such a statement has got statutory permission but the courts have cautioned before endorsing such permission. Real danger which tempted courts to formulate rigid parameters of caution is the misuse of such statements by either parties to the proceeding.

Obviously prosecution will try to find force in it enabling him to punish the offender and the defense in shattering the prosecution story by weakening the force therein to establish doubts for getting exonerated from the criminal liability for which he is facing trial. Between these two extremes much depends upon the adjudicating officer to give due and reasonable weight to such evidence. In due course of time Indian courts have evolved the principle of caution and what is Marshalled is clarity rule.

If the statement is clear, unambiguous, pointed and match or support the prosecution story beyond and unerringly courts will lean heavily in favour of using the statement. Thus, courts emphatically suggested for due caution and if the statement stands to meet the parameters there is enough scope to rely upon it. Evidence of a fact is to be adduced and the balance of its admissibility has to be accepted by the presiding adjudicator.

Award Winning Article Is Written By:†Mr.Mohd Aqib Aslam

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