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.
- 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 person�s 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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).
- 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
(a) The question is, whether A
was murdered by B
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
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.
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
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:
Statement made to or implicating relatives.
- There is no absolute rule of law that a dying declaration cannot be the
sole basis of conviction unless corroborated.
- Each case must go by its own facts.
- A dying declaration is not a weaker kind of evidence than any other
piece of evidence.
- 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.
- 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.
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
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
Authentication No: SP31163156362-17-920