Dying Declaration

CHAPTER 1 RESEARCH SCHEME Introduction: A dying declaration is a statement made by a dying person as to the cause of his death or as to any circumstances of the transaction that resulted in his death. It is evidence under Section 32 (1) of Indian Evidence Act,1872. This section is an exception to the general rule that hearsay evidence is no evidence In this paper, the researcher will explore these facets namely – the scope and application of section 32 (1), the method of giving and recording a dying declaration and its evidenciary value by examining its interpretation by courts. Material examined:

The researcher has used the bare act of the Indian Evidence Act of 1872, and thereby used the various commentaries by eminent jurists and legal authors on The Indian Evidence Act 1872 to get a detailed and enhanced view of the scope and applicability of dying declaration. The researcher has also accessed websites like Manupatra and SCC online to have a full review of the relevant case law. Research Questions: 1) Whether there are parameters that affect the evidentiary value of Dying Declaration? 2) Whether weight is given by courts to dying declaration as evidence? 3) Whether dying declaration has got an evidentiary value? ) Whether dying declaration is an exception to the hearsay rule? 5) Whether there is a difference between English law and Indian Law regarding dying declaration? Hypothesis: 1) There are parameters that affect the value of Dying Declaration. 2) Weight is given by courts to dying declaration as evidence. 3) Yes. 4) Yes. 5) Yes. Research Methodology: The research methodology is doctrinal in nature. Primary and Secondary sources of data have been relied upon. CHAPTER 2 INTRODUCTION The maxim “Nemo moriturus praesumitur mentire” is basis for ”dying declaration”, which means ” a man will not meet his maker with a lie in his mouth”.

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A dying declaration is called as ” Leterm Mortem”. The word ” Leterm Mortem” means “Words said before death”. Recording of dying declaration is very important task. Utmost care is to be taken while recording a dying declaration. If a dying declaration is recorded carefully by the proper person, keeping in mind the essential ingredients of the dying declaration, such declaration retains its full value. Under the Federal Rules of Evidence, a dying declaration is admissible if the proponent of the statement can establish: 1. The declarant’s statement was made while under the belief that his death was imminent; and 2.

The declarant’s statement must relate to the cause or circumstances of what he believed to be his impending death. The declarant does not actually have to die for the statement to be admissible, but there must be a genuine belief that death was imminent and the declarant must be unavailable to testify in court. If the stipulations cannot be met, it would then constitute hearsay and not fall into the exception. As with all testimony, the dying declaration will be inadmissible unless it is based on the declarant’s actual knowledge.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him. ’’ Dying declaration is an exception to this. Under Common Law, the hearsay provisions of the Criminal Justice Act 2003 reformed the common law relating to the admissibility of hearsay evidence in criminal proceedings begun on or after 4 April 2005. Section 116 of said act talks about the exception to the inadmissibility of hearsay evidence in case the witness cannot attend and therein falls dying declaration.

In India, it is covered under the Indian Evidence Act 1872. Section 32 (1) makes an exception from the general rule that hearsay evidence is inadmissible. This section is an exception to the general rule that hearsay evidence is no evidence. The conditions in the section are that the statement has to be made as to the cause of the death or any of the circumstances of the transaction which resulted in his death, where the person’s death comes into question whether he was at the time of making such statement, in expectation of death or not. 1. 1 Section 32 (1) of Indian Evidence Act.

Sub-section (1) of Section 32 of the Evidence Act, any statement, 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, would constitute relevant facts. If as a result thereof, the Court is satisfied that the statement made by a person who is now dead is relevant, the same becomes admissible in terms of sub-section (1) of 32 section of the Evidence Act.

The second Para of the sub section makes it abundantly clear that the statement is admissible in civil as well as criminal proceedings and it is not necessary that the Person making the statement should be apprehending death at the time of making the statement. Thus, it is apt to say that admissibility of Dying declaration is explained in the section 32 (1) of Indian Evidence Act. The Hon’ble Apex Court in P. Mani vs. State of T. N. reported in has held as follows: “Indisputably conviction can be recorded on the basis of the dying declaration alone but therefore the same must be wholly reliable.

In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. ” Section 32 states the situation in which the statement made by a person becomes relevant and is an exception to the rule of inadmissibility of hearsay evidence.

The conditions are as follows – * Made by a person as to the cause of death * Or as to any of the circumstances of the transaction which resulted in death * In cases where the cause of person’s death is directly in question The cause of death should be the incident in question, if it is not proven that the victim succumbed to injuries caused by the incident his statement cannot be said to be a statement as to the cause of death. But if it is directly related to the cause of death like the diary of the deceased about the cause of her suicide have evidentiary value as dying declaration.

In a particular case, the statement made by the a person at the time of his recovery in a kidnapping case to the Investigationg Officer that he had been kidnapped by the accused was not admissible under this section as it did not disclose the cause of his death or circumstance of transaction which resulted in death as the deceased was murdered in an incident unrelated to the kidnapping case. The words ‘circumstances of the transaction that caused death’ are wider in scope that ‘as to the cause of death’ and resulted in death does not mean caused death, this difference has to be kept in mind.

It is not necessary that the person who made them must be under expectation of death and is relevant irrespective of the nature of proceedings. For a statement to attract this section, it isn’t necessary that the death should have a nexus in terms of fixed time with the statement but such statement should relate to the circumstances surrounding the event which ultimately led to the death and there should be nexus between the circumstances stated by the victim and the death.

Further, if the person who made the dying declaration, chances to live his statement becomes inadmissible as dying declaration but can be used to corroborate his testimony or contradict his testimony or used as an admission under S 23 when examined, the court cannot make note of this declaration. The grounds of admission of dying declaration are firstly , the necessity of the victim being generally the only ptincipal eye witness to the crime, the exclusion of the statement might deflect the ends of justice and secondly the sense of impending death, which creates a sanction equal to the obligation of an oath.

The onus of establishing the circumstances that would bring a statement within the scope of section 32 would lie on the party wishing to avail himself of the statement. These are the basic conditions to be fulfilled foremost, the method of giving and recording dying declaration will be tackled in the following chapter. 1. 2 How a dying declaration should be? There is no particular form of dying declaration. However, the best form of dying declaration is in the form of questions and answers.

However, whenever a dying declaration is being recorded in the form of questions and answers precaution should be taken that exactly what questions are asked and what answers are given by the patient those should be written. A dying declaration may be in the following forms: 1. Written form; 2. Verbal form; 3. Gestures and Signs form- In the case Queen vs Abdulla, it was held that if the injured person is unable to speak, he can make dying declaration by signs and gestures in response to the question. . If a person is not capable of speaking or writing he can make a gesture in the form of yes or no by nodding and even such type of dying declaration is valid. 5. It is preferred that it should be written in the vernacular which the patient understands and speaks. 6. A dying declaration may be in the form of narrations. In case of a dying declaration is recorded in the form of narrations, nothing is being prompted and everything is coming as such from the mind of the person making it. 1. 4 OBJECTS 1.

The presumption is ” a person who is about to die would not lie”. 2. It is also said that ” Truth sits on the lips of a person who is about to die”. 3. The victim is exclusive eye witness and hence such evidence should not be excluded. 1. 5 Who may record a dying declaration? 1. It is best that it is recorded by the magistrate. 2. If there is no time to call the magistrate, keeping in view the deteriorating condition of the declarant, it can be recorded by anybody e. g. public servant like doctor or any other person. 3.

It cannot be said that a dying declaration recorded by a police officer is always invalid. 4. If any dying declaration is not recorded by the competent Magistrate, it is better that signatures of the witnesses are taken who are present at the time of recording it. 1. 6 Important facts to be remembered before recording Dying Declaration: 1. The declarant was in a fit condition of mind to give the statement when recording was started and remained in fit condition of mind until the recording of dying declaration is completed. 2.

The fact of fit condition of mind of declarant can be best certified by the doctor. 3. Yet, in case of where it was not possible to take fitness from the doctor, dying declaration has retained its full sanctity if there are other witnesses to testify that declarant was in fit condition of the mind which did not prevent him from making dying declaration. 4. However, it should not be under the influence of any body or prepared by prompting, tutoring or imagination. If any dying declaration becomes suspicious, it will need corroboration. 5.

If a declarant made more than one dying declarations and if these are not at variance with each other in essence they retain their full value. If these declarations are inconsistency or contradictory, such dying declarations lose their value. CHAPTER 2 EFFECT OF FITNESS OF DECLARANT ON THE EVIDENTIARY VALUE OF DYING DECLARATION Dying declaration itself presupposes that the person making it must be in a state of unwell or ill health, in such a situation the fitness or the capability of the declarant to make such statements becomes an important question.

A dying declaration can be in writing or oral or maybe made by signs and gestures in answers to questions when the declarant is unable to speak. Certificate from the doctor and particularly his endorsement that the patient is not only conscious but in a fit condition to record dying declaration is a must, without which it may be rendered suspect . in a particular case, declaration was found reliable without the endorsement of the doctor in view of the evidence of the Magistrate that the deceased was in a fit state of mind to give her statement.

It is considered better if the declaration is in the form of question answer, for better clarity but even in the form of narration is admissible. If it is in question answer form, it reduces ambiguity and there is directness whereas when it is a narration the irrelevant needs to be sifted out from the narrative to get the relevant part. In a particular case of murder of a person by burning, the victim while undergoing treatment gave statements regarding how she was given a blow with an iron pipe and pushed in an oven by the accused.

The court held that this could not be discarded merely on the basis that it wasn’t in question answer form and the doctor hadn’t certified the fitness when the Investigating Officer stated that the deceased was conscious at the time of recording the declaration and that was considered sufficient. In burn cases usually it is debated the person is not capable of making dying declaration due to the effect of burns or due to the narcotic sedation given to treat burns. But it is opined that neither effect due to burns nor the drugs used to treat burns victims conventionally affects the higher functions.

If the person making it is imbecile or is of tender age and was incompetent to testify due to this reason,that dying declaration would not be valid. The court has held that in the absence of certificate of doctor or other reliable evidence regarding the mental and physical fitness of the deceased to make a statement, a dying declaration cannot be relied on for conviction of the accused. In a case the accused in a poisoning case was rushed to the hospital where he was held to be unfit to make any statement, the oral declaration by him about how he poisoned the deceased and then himself was held to be unreliable.

Further, mere medical certificate in not sufficient it also has to be substantiated by the doctor. There are conflicting judgements regarding the requirement of a medical certificate, this conflict was resolved by the Constitution Bench in the case of Laxman Vs State of Maharashtra. The Supreme Court ruled that absence of certification of the doctor as to the fitness of the mind of the declarant would not render the dying declaration unacceptable, the essential requirement is that the person who records it must be satisfied that the deceased was in a fit state of mind.

Certification by a doctor is only a rule of caution; the truthful and voluntary nature can be established otherwise. CHAPTER 3 EFFECT OF FORM OF DYING DECLARATION ON EVIDENTIARY VALUE OF DYING DECLARATION Form of dying declaration means the circumstances in which the declaration was made, the method of recording and to whom it was made. The section does not specify the method of recording a dying declaration. The courts have decided on the facts and circumstances of each case as to whether declaration recorded in a particular manner is admissible, some general principles have evolved.

A dying declaration must be recorded in the exact words of the declarant and should, if possible contain the signature or the thumbprint of the deceased and the requirement of a medical certificate that has already been discussed in the previous chapter. Recording of the declaration by the investigating officer is generally discouraged and it is desirable that it be recorded by the Magistrate. Since the section doesn’t explicitly say that it must be recorded by the magistrate, declaration recorded by the police personnel cannot be discarded on that ground alone.

Before the Magistrate starts to record the dying declaration, the certificate of fitness must be obtained from the medical expert and only then should he proceed Apart from the Magistrate, investigating officer and the duty doctor, a dying declaration deposed to by independent witnesses can also be admissible. In a particular case a 70 year old lady was attacked and robbed, a watchman and shepherd hearing the noise entered the shed where the victim lay injured. The victim on questioning narrated the incident and named the assailant to them and then to her sister who arrived at the scene.

She died two days later at the hospital. The three deposed to the court as to what they were told and nothing was shown as to why these three natural witnesses would depose falsely. The court held that it could not be rejected especially because it was corroborated by a promptly lodged FIR. Generally it ought to be recorded in question answer form but if it is elaborate and consists of only a few sentences and is in the actual words of the maker, the mere fact that it is not in question answer form does not make it unreliable.

As a measure of safety original dying declaration should be sent to the court like FIR and its Photostat should be kept in the case file . It does not matter that the person has put a thumb impression or signed it if this is duly witnessed. But in the court question does arise if a person who can sign puts a thumb impression. If a literate person putting the thumb impression is in such a condition that he cannot sign e. g. he was lying in the bed and could not get up to sign it or it was inconvenient for him to put thumb impression due to his condition (intravenous drip on the back of hand) or injury e. . injury on the right hand in a right handed person. Even the history given by the injured recorded by the doctor in the case file has been considered as dying declaration by the honourable Court if it is mentioned that the patient told in the history that incident occurred in such and such manner which was responsible for the death of the victim . Hence it is important that if such history is written as narrated by the victim it should be recorded carefully, keeping in mind the mentioned finding of the court.

First information report got recorded by the police has been taken as dying declaration by the honorable Supreme Court, when the person did not survive to get his dying declaration recorded . But when patient remained admitted in hospital for sufficient days i. e. for 8 days FIR cannot be treated as dying declaration . A suicidal note written found in the clothes of the deceased it is in the nature of dying declaration and is admissible in evidence under section 32 of Indian Evidence Act

In a case, a statement by the deceased was neither corroborated nor proven, it was held that such a statement is separable from the other part of the statement that was corroborated by the evidence, that part was admitted as it is not correct to hold that if a part of the dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole dying declaration. The person who records the dying declaration must be satisfied that it was natural and voluntarily made.

This means that there must be no shadow of coercion or tutored declaration. Sometimes the relatives of the declarant or the accused are present in the room which may colour the deceased’s statements, this must be kept in mind. Where the declarant gave two declarations, the one that was in correct form and found to be reliable as to the history of the case was admitted. Each will have to be considered on its own merit as to its evidentiary value and cannot be rejected because of the contents of the other.

Law relating to appreciation of evidence in the form of more than one declaration is well settled, it is not the plurality but the reliability that adds weight to the case. Consistency in the declarations is an important point, discrepancies and contradictory stands must be noted and as a rule of prudence corroboration must be sought from other evidence. The chronology of the multiple declarations made is irrelevant, there is no rule that the earlier one is preffered. Dying declarations and eye witness account cannot be equally valued, if the two are compared, the eyewitness account stands on a higher footing.

In order to test the reliability of a dying declaration, the court has to keep in view the circumstances like the opportunity which declarant had for observation, whether his capacity to remember facts hadn’t been impaired at the time, that the statement was made at the earliest possible time, that it wasn’t the result of tutoring. Thus, in the absence of statutory guidelines of the form of or method of recording a dying declaration, courts have evolved some guidelines to be generally followed depending upon the facts and circumstances of the case. CHAPTER 4

ADMISSIBILITY AND EVIDENTIARY VALUE OF DYING DECLARATION It is very essential to know the conditions for admissibility and evidentiary value of a dying declaration. 4. 1 CONDITIONS FOR ADMISSIBILITY 1. The declarant, who gave dying declaration, should have died. 2. Admissibility of dying declaration is explained in the section 32 (1) of Indian Evidence Act. 3. When the statement is made by a person as to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made this was expecting death or not. 4. The dying declaration must be complete. 5. The cause of death must be explained by the declarant or at least the circumstances which resulted to his/her death must be explained. 6. The declarant, who makes dying declaration, must be conscious and coherent. 7. The declarant must be sound state in mind. 8. The cause of death of declarant must be in question. 9. However, the declarant need not be under expectation of death unlike English Law. 10. The declarant need not be under shadow of death. 1. The dying declaration may be in verbal form. 12. The whole dying declaration must be taken into consideration by the Court but not some portion of it. 13. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. 14. Corroboration to dying declaration not necessary. 15. Exact words of deceased in dying declaration need not be stated. 16. It is immaterial that the person put a thumb impression or signed a dying declaration if the declaration is duly witnessed. 17.

If a declarant, who is lying in the bed, is unable to get up to sign due his condition, or it is convenient for him to put thumb impression, he can put thumb impression. 18. There is usually no time limit that dying declaration becomes invalid. 4. 2 EVIDENTIARY VALUE 1. Evidentiary value of dying declaration will change from case to case according to fact and circumstances of each case. 2. A dying declaration must be recorded in exact words spoken by the declarant. 3. If a competent Magistrate records a dying declaration in question and answer form , such dying declaration will have much evidentiary value. . If a dying declaration is recorded no sooner does the information receive than the dying declaration is recorded, tutoring by interested persons can be avoided. 5. In case more than one dying declarations, all such declarations must be identical. 6. In Jai Prakash vs State of Haryana, it was observed that ” a statement of victim which was recorded by the police officer in hospital. Later, such statement was taken to be a dying declaration. 7. In some cases, F. I. R was also considered as a dying declaration. 8.

Inconsistent dying declaration is no evidentiary value. ( Smt Kamla vs State of Punjab) 9. The dying declaration recorded by the Clerk in the presence of Magistrate not inadmissible. Scribe need not be produced to prove it. 10. Despite there is a dying declaration, Court seeks further corroboration. However, Conviction can be based on it without corroboration if it is true and voluntary. 11. Replies by signs and gestures constitute verbal statement resembling the case of a dumb person and is relevant and admissible in evidence. 12.

Dying declaration is an exception to hearsay evidence because if this evidence is not considered very purpose of the justice will be forfeited in certain situations when there may not be any other witness to the crime except the person who has since died. 13. Dying declaration is valid both in civil and criminal cases whenever the cause of death comes into question. 14. Dying declaration not attested by wife or doctor present there. Smacks of concoction. Inconsistency in oral and medical evidence. Conviction cannot be based on such evidence. 15.

It is perfectly permissible to reject a part of dying declaration if it is found to be untrue and if it can be separated [ Nand Kumar v. state of Maharastra. ]. 16. Declarant suddenly dying and his thumb impression taken after his death held dying declaration admissible in evidence. (AIR 1962 SC 1252) CHAPTER 5 RELEVANT CASE-LAW AS TO ”DYING DECLARATION”: 1. The Hon’ble Apex Court in Kalawati W/o, Devaji Dhote vs. State of Maharashtra has held that, in respect of the principles governing dying declaration, which could be summed up as under: i.

There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. ii. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. iii. The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased has an opportunity to observe and identify the assailants and was in a fit state to make the declaration. iv. Where the dying declarati0on is suspicious, it should not be acted upon without corroborative evidence. v.

Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. vi. A dying declaration which suffers from infirmity cannot form the basis of conviction. vii. Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. viii. Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. ix. Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion.

But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. 2. Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. 3. In N Ram vs State, it was held that medical opinion cannot wipe out the direct testimony of the eyewitness stating that the deceased was in fit and conscious state to make the dying declaration. 4. In the case ”State v.

Maregowda,”, it was held that ”A suicide note written found in the clothes of the deceased it is in the nature of dying declaration and is admissible in evidence under section 32 of Indian Evidence Act”. 5. Dying declaration becomes unreliable if it is not as per prosecution version. In the case of ” State of UP v. Madan Mohan,” , the Hon’ble Supreme Court of India held: 1. It is for the court to see that dying declaration inspires full confidence as the maker of the dying declaration is not available for cross-examination 2. Court should satisfy that there was no possibility of tutoring or prompting. . Certificate of the doctor should mention that victim was in a fit state of mind. Magistrate recording his own satisfaction about the fit mental condition of the declarant was not acceptable especially if the doctor was available. 4. Dying declaration should be recorded by the executive magistrate and police officer to record the dying declaration only if condition of the deceased was so precarious that no other alternative was left. 5. Dying declaration may be in the form of questions and answers and answers being written in the words of the person making the dying declaration.

But court cannot be too technical. 6. In Barati vs State Of U. P, it was held that ”There was no reason to discard the dying declaration made by the appellant to the police sub-inspector, The trial Court was wrong in rejecting the dying declaration to the police (F. I. R. ) on the ground that the deceased had stated to the doctor that he had become unconscious after the occurrence. There was nothing in the statement recorded by the doctor to indicate that the deceased remained unconscious for. a long time and as such was not in position to lodge the F.

I. R. The fact that the language used in the dying declaration made to the doctor was rather chaste would not go to show that the said statement could not have been made by the deceased. As to the language used in the dying declaration there is nothing abnormal or unusual in the same person using colloquial language while talking to one person and using refined language while talking to another person. ” CHAPTER 6 CONCLUSION In sum, a dying declaration is not to be believed merely because no possible reason can be given for accusing the accused falsely.

It can only be believed, if there are no grounds for doubting it all. Each case must be determined on its own facts, keeping in view the circumstances in which the dying declaration was made. It cannot be laid down as a general proposition, that a dying declaration is a weaker kind of evidence than other pieces of evidence. It stands on the same footing as another piece of evidence, and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence.

The problem with the section, despite the court made guidelines is its case specific nature. there is uncertainty as to when it is admissible and when it isn’t which should be clearly addressed, especially in cases like dowry burnings where there is a huge scope for tutored declarations and of lawyers taking advantage of a situation. Having said this, Dying declarations in different situations need to be handled accordingly, there can be no cut and dried way and the basic principle of section 32 need to be applied as per the case at hand. Research Question : Whether there are parameters that affect the evidentiary value of Dying Declaration? Section 32 (1) excepts dying declaration from the hearsay rule. The preceding chapters have discussed the conditions that affect the evidentiary value of dying declaration namely, the fitness of the declarant, the requirement of a medical certificate, the form of recording a dying declaration and by whom. Though the section lays down no such conditions the courts have laid down these general guidelines but also that each case must be determined keeping in mind the particular facts and circumstances of a case.

Hypothesis hence proven. * Whether weight is given by courts to dying declaration as evidence? So what is the evidentiary value of a dying declaration, can dying declaration be the sole basis of conviction? Yes, once a dying declaration is found to be true and voluntary, even in the absence of corroboration, it can be the sole basis of conviction. The rule of corroboration is merely a rule of caution and prudence by the courts and if it passes the scrutiny of the courts, it can be fully relied upon.

Where the certificate of fitness has been obtained, where the declarant was in a fit state to make the statements and there is no suspicion regarding the circumstances even minor irregularities such as the form not being in question-answer, is not a basis to set aside the dying declaration. Hypothesis hence proven. * Whether dying declaration has got an evidentiary value? The above study of case laws lays down that dying declaration has got an evidentiary value. There are no formalities to be observed in regard to the emission of dying declarations.

They may be verbal or written, or made by signs and nods in reply to question, and may be made to officials or non-officials. There is neither rule of law nor or prudence that dying declaration cannot be acted upon without corroboration. A dying declaration can be accepted and acted upon without corroboration, provided that such declaration is scrutinized and recorded in absence of the accused. If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration.

For this purpose the court has to apply strictest scrutiny and has to be on guard to ensure that the declaration is not the result of torturing, prompting or imagination and that the deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. * Whether dying declaration is an exception to the hearsay rule? The eight clauses of s 32 may be regarded as exceptions to the general rule. The purpose and reason of the hearsay rule is the key to the exceptions to it, which are mainly based on two considerations: a necessity for the evidence and a circumstantial guarantee of trustworthiness.

Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the tests applied to admissible evidence, namely, the oath and cross-examination. Section 32(1) is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. Therefore, the hypothesis stands proved. * Whether there is a difference between English law and Indian Law regarding dying declaration?

The Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law where only the statements which directly relate to the cause of death are admissible. The second part of cl (1) of s 32, namely, the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question is not to be found in the English law. The distinction has been clearly pointed out in the case of Rajindra Kumara v State, Where the following observations were made:

In the English law, the declaration should have been made under the sense of impending death, whereas under the Indian law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death. The first clause of section 32 is widely different from the English law upon the subject of dying declaration, according to which: (a) this description of evidence is not admissible in any civil case; and (b) in criminal cases only in the single instance of homicide, i. e. urder or manslaughter, where the death of the deceased is the subject of the dying declaration. On the other hand, under IEA 1872 the statement is relevant whatever maybe the nature of the proceeding, in which the cause of the death of the person who made the statement comes into question. Section 32(1), illustration (a) gives an example of the charge of rape. Further, according to English law, certain conditions are required to have existed at the time of declaration, namely, it is necessary that the declarant should have been in actual danger of death; secondly.

That he should then have had a full apprehension of his danger and lastly, that death should have ensued. But, under IEA 1872the statement is relevant whether the person who made it was not at the time when it was made, under expectation of death. Under the Indian law for the declaration to be relevant under s 32(1), it is not necessary that the declaration should have been made when the person making the same was in actual danger of death and had given up all hope of recovery at the time when he made the declaration. Before the statement can be admitted under this section, the declarant must have died.

Where a person making a dying declaration chances to live, his statement cannot be admitted in evidence as a dying declaration, though it may be relied on under section 157 to corroborate the testimony of the complainant when examined in the case. Therefore the hypothesis stands proved. ——————————————– [ 1 ]. Constitution of the United States of America [ 2 ]. Peter Murphy, Evidence, proof, and facts: a book of sources, Oxford University Press, 2005,p 20 [ 3 ]. (2006) 3 SCC 161 [ 4 ]. Moti Singh Vs State of UP AIR 1964 SC 900 [ 5 ]. Ramesh Kumar Vs State if Chattisgarh 2001 CrLJ 4724 [ 6 ].

State of UP Vs Shashi Shekhar 2004 CrLJ 2961 [ 7 ]. Arvind Kumar Dubey, The Law of Evidence, Central Law Agency, 1997, p 230 [ 8 ]. Ameer Jan Vs State of Karnataka 2004 CrLJ 1801 [ 9 ]. Heera Lal Vs State of UP, 2001 CrLJ 2849 [ 10 ]. PV Radhakrishna Vs State of Karnataka AIR 2003 SC 2859 [ 12 ]. ILR 7 385 [ 13 ]. Sir John Woodroffe & Syed Amir Ali, Law of Evidence, Dr V kesava Rao (ed), vol II, 18th edn, 2009, p. 1998. [ 14 ]. Saharay HK, Law of Evidence, Eastern Law House 2008, p297 [ 15 ]. Vithal Sadashiv Vs State of Maharashtra 1994 CrLJ 2035 [ 16 ]. Natwar Singh Bhabhor Vs State of Gujarat 2008 CrLJ 4074 [ 17 ].

State of Karnataka Vs Akkamahadevi 2005 CrLJ 707 [ 18 ]. AIR 2002 SC 2973 [ 19 ]. State of Karnataka Vs Shariff AIR 2003 SC 1074 [ 20 ]. Amina Vs State of Rajashtan 2002 CrLJ 4431 [ 21 ]. Pothakumari V State of AP AIR 2002 SC 2780 [ 22 ]. State of Karnataka v. Shivalingappa ILR 1985 KAR 936 [ 23 ]. State of Karnataka Vs Shariff AIR 2003 SC 1074 [ 24 ]. AIR 1976 2199 [ 25 ]. State of Punjab v. Kikar Singh [ 26 ]. State v. Maregowda,2001 CriLJ 4491 [ 27 ]. Nandakumar Natha Vs State of Maharashtra [ 28 ]. Dil Bahadur Tamang V State of Sikkim 2005 CrLJ 786 [ 29 ]. State of Maharashtra Vs Sanjay D Rajhans AIR 2005 SC 97 [ 30 ].

Ratanlal and Dhirajlal, The law of Evidence, 23rd Edition, 2010, p629 [ 31 ]. ibid [ 32 ]. Yet, it was held that ”Dying declaration incomplete as deceased not being able to answer further, held could be relied upon. (AIR 1956 SC 168). ” [ 33 ]. State of Haryana vs Manageram & others (AIR 2003 SC 558) [ 34 ]. Pakala Narayana Swami vs Emperor [ 35 ]. (1998) 7 SCC 284 [ 36 ]. AIR 1993 SC 374. [ 37 ]. (52 Cr. L. J 883) [ 38 ]. AIR 1981 SC 1578. [ 39 ]. Cri LJ 1988 1313 [ 40 ]. 2009(1) Supreme 800 [ 41 ]. Munnu Raja and another vs. The State of Madhya Pradesh (1976) 2 SCR 673) [ 42 ].

State of Uttar Pradesh vs. Ram Sagar Yadav and Others AIR 1985 SC 416 [ 43 ]. K. Ramachandra Reddy and another vs. The Public Prosecutor (AIR 1976 SC 1994) [ 44 ]. Rasheed Beg vs. State of Madhya Pradesh(1974 (4) SCC 264) [ 45 ]. Kala Singh vs. State of M. P. (AIR 1982 SC 1021) [ 46 ]. Ram Manorath and others vs. State of U. P. (1981 (2) SCC 654) [ 47 ]. State of Maharashtra vs. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617) [ 48 ]. Srajdeo Oza and Others vs. State of Bihar ( AIR 1979 SC 1505) [ 49 ]. Nanahau Ram and another vs. State of Madhya Pradesh (AIR 1988 SC 912) [ 50 ]. Mohanlal Gangaram Gehani vs.

State of Maharashtra (AIR 1982 SC 839) [ 51 ]. AIR 1988 SC 912: 1988 Cri LJ 1485 [ 52 ]. 2002 (1) RCR (Criminal) 376 (Karnataka) (DB) [ 53 ]. AIR 1989 SC 1519 [ 54 ]. 1974 AIR 839, 1974 SCR (3) 570 [ 55 ]. Tara Chand v State AIR 1962 SC 130. [ 56 ]. Pappachan v State of Kerela (1993) 2 Ker LT 384. [ 57 ]. Ram Chandra Reddy v Public Prosecutor AIR 1976 SC 1994. [ 58 ]. Kundula Bala Subramanyam v State of Andhra Pradesh (1993) 2 CC Cases 153 (SC). [ 59 ]. AIR 1960 Punj 310. [ 60 ]. Tehal Singh v State of Punjab AIR 1979 SC 1347 [ 61 ]. Gundanidhi Sundara v State of Orrisa AIR 1984 CrLJ 1215.