Dying Declaration is of the utmost importance and the evidence as to it should
be exact and full as possible. The general rule is, 'hearsay evidence is no evidence and is
not admissible in evidence.' Section 32 and 33 of the Evidence Act are among
the Exceptions, as such dying Declaration is an exception to this general rule.
Statement made by a person who cannot be called as Witness:
Section. 32 Cases in which statement of relevant fact by person who is dead or cannot be found etc is relevant: Statements, written or verbal, of relevant facts made by a person who is dead, or cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be produced 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 which cases 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 made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
Following are the classes of person who cannot be called as witness under section 32 and their statements allowed to be proved in their absence.
1) Person who is dead:
2) Person who cannot be found
3) Who has become incapable of giving evidence: or
4) Whose attendance cannot be produced without unreasonable delay or expense?
Meaning and Definition:
"A dying declaration is a declaration written or verbal 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"
Illustration
Sam has been attacked by Anna. If Sam, shortly before death makes a declaration holding Anna, responsible for his injuries, it is called "Dying Declaration'.
Section 32(1) of The Indian Evidence Act defines,'dying declaration' as " a statement verbal or written made by a person who is dead or cannot be found, who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense, which under the circumstance of the case, appears to the court unreasonable, are themselves relevant facts in the following cases.
a) When it relates to cause of death
b) When it is made in course of business; or
c) Against the interest of maker; or
d) Gives opinion as to public right or custom or matters of general interest; or
e) Relates to existence of relationship; or
f) When it is made in will or deed relating to the family affairs; or
g) In document relating to transaction mentioned in section 13(a);
h) When it is made by several persons and expresses feeling relevant to matter in question
In short according to Section 32(1), “Dying declaration is a statement oral or written made by a person who is dead or cannot be found or incapable of giving evidence or whose attendance involves delay or expensive under the circumstances stated above, which the court considers reasonable “.
Before such statements are admitted in evidence, it must be proved that who made the statement is dead and gone and therefore cannot appear before the court unless this fact is proved, the statement is not admissible. When the statement is admitted under any of the clause of this section, it is substantive evidence and has to be considered along with other evidence. Dying declaration is an exception to the general rules as to relevancy of fact. The relevancy of fact provides that the statement made by witness in connection of fact or fact in issue are relevant but under Section 32 a statement made under certain circumstances become relevant , even though person is not called as a witness before the court. Dying declaration in fact is a surviving declaration. Declarant died and statement survives. It is declaration of a dead person.
The Conditions in this Section are:
1) It must be a statement, written or verbal
2) The person making statement must have died.
3) The statement relate to the cause of his death or the circumstances of the transaction which related in his death and not the cause of the death of someone else.
4) The cause of the person's death must be in question.
5) The person making statement must be in a fit condition to make the statement.
6) The statement must be competent
7) Declaration must be competent
Reasons For admissibility of dying declaration:
Dying declaration is admissible for the following two reasons....
1) As the Victim is sole Eye Witness, Exclusion of his evidence defeats the ends of justice.
2) Declaration made by a person under exception of death is presumed to be true.
Merits of Dying Declaration:
1) There is heavy conscience -, therefore law presume that there is a possibility of true statement as to the cause of his death. It has moral and religious aspect behind it because a person who is on the bed of death, about to die generally speaks true, so as to attain spiritual benefits in other world. This is relative element, which changes from person to person, personality and mentality person making Dying Declaration. So a person who is about to die, tells the truth and truth only is a half truth as in case of harden criminals. So it is the personality, circumstances and the character of the person making Dying Declaration that decides the relevancy of Dying Declaration.
2) There is no reason to implicate wrong person:
The person making Dying Declaration and mentioning in the name of the person responsible who has caused injuries to him which are likely to result in his death, generally will not implicate in a wrong person who is not at all responsible for such injuries.
3) There is no reason why he will avoid the name of the person who is responsible for his death and his worst enemy in his life. It is more logical and realistic concept because person who is on the bed of Death will not implicate the name of wrong person for the cause of his death, but he will not allow his enemy to go unpunished who is responsible for his death.
Infirmities/ Defects of Dying Declaration:
1) There is no oath administered:
When a person is called as witness in the Court he has to make a statement on oath. This is to have his inner conscience say truth and truth only. Law presume and expect person to state the truth. This is the theoretical aspect as it may be correct theoretically but not practically.
2) There is no cross-examination of such person making Dying Declaration:
The need of cross-examination is to judge the credibility of the witness. It is the right of Defense Council. Questions are put to the witnesses to extract the truth in case of Dying Declaration other party or defense council have no opportunity of cross-examination of the witness who is dead.
3) Witness is not present before the Court:
Behavior, manner of answering the question of witness before the Court is a vital aspect in law because it gives opportunity to the judges to judge the character, personality of the witness this element is absent in dying declaration and hence it is not accepted as a rule
Evidentiary Value of Dying Declaration:
The evidentiary value of dying declaration will vary according to the circumstances of a particular case in which it is made
Dying Declaration is evidence but it is a weak piece of evidence. It is to be corroborated by other evidence for example other facts and evidence supporting Dying Declaration.
It gives guidance to the Court, the has to accept the Dying Declaration as a suspicious statement, it is duty of the judge to consider the valuation of Dying Declaration. Such valuation of Dying Declaration depends upon many things as under
1) State of mind of declarant.
2) State of the body of declarant.
3) To whom the Declaration/Statement is made.
4) Who recorded the statement?
5) Whether the statement is recorded in the same language and in a same word of the declarant. Even though Dying Declaration is said to be of weak piece of evidence it is relevant in the Indian Evidence Act, because it is the best available evidence as to the cause of his death after his death.
Statement made by a person who cannot be called as Witness:
Section. 32 Cases in which statement of relevant fact by person who is dead or cannot be found etc is relevant: Statements, written or verbal, of relevant facts made by a person who is dead, or cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be produced 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 which cases 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 made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
Following are the classes of person who cannot be called as witness under section 32 and their statements allowed to be proved in their absence.
1) Person who is dead:
2) Person who cannot be found
3) Who has become incapable of giving evidence: or
4) Whose attendance cannot be produced without unreasonable delay or expense?
Meaning and Definition:
"A dying declaration is a declaration written or verbal 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"
Illustration
Sam has been attacked by Anna. If Sam, shortly before death makes a declaration holding Anna, responsible for his injuries, it is called "Dying Declaration'.
Section 32(1) of The Indian Evidence Act defines,'dying declaration' as " a statement verbal or written made by a person who is dead or cannot be found, who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense, which under the circumstance of the case, appears to the court unreasonable, are themselves relevant facts in the following cases.
a) When it relates to cause of death
b) When it is made in course of business; or
c) Against the interest of maker; or
d) Gives opinion as to public right or custom or matters of general interest; or
e) Relates to existence of relationship; or
f) When it is made in will or deed relating to the family affairs; or
g) In document relating to transaction mentioned in section 13(a);
h) When it is made by several persons and expresses feeling relevant to matter in question
In short according to Section 32(1), “Dying declaration is a statement oral or written made by a person who is dead or cannot be found or incapable of giving evidence or whose attendance involves delay or expensive under the circumstances stated above, which the court considers reasonable “.
Before such statements are admitted in evidence, it must be proved that who made the statement is dead and gone and therefore cannot appear before the court unless this fact is proved, the statement is not admissible. When the statement is admitted under any of the clause of this section, it is substantive evidence and has to be considered along with other evidence. Dying declaration is an exception to the general rules as to relevancy of fact. The relevancy of fact provides that the statement made by witness in connection of fact or fact in issue are relevant but under Section 32 a statement made under certain circumstances become relevant , even though person is not called as a witness before the court. Dying declaration in fact is a surviving declaration. Declarant died and statement survives. It is declaration of a dead person.
The Conditions in this Section are:
1) It must be a statement, written or verbal
2) The person making statement must have died.
3) The statement relate to the cause of his death or the circumstances of the transaction which related in his death and not the cause of the death of someone else.
4) The cause of the person's death must be in question.
5) The person making statement must be in a fit condition to make the statement.
6) The statement must be competent
7) Declaration must be competent
Reasons For admissibility of dying declaration:
Dying declaration is admissible for the following two reasons....
1) As the Victim is sole Eye Witness, Exclusion of his evidence defeats the ends of justice.
2) Declaration made by a person under exception of death is presumed to be true.
Merits of Dying Declaration:
1) There is heavy conscience -, therefore law presume that there is a possibility of true statement as to the cause of his death. It has moral and religious aspect behind it because a person who is on the bed of death, about to die generally speaks true, so as to attain spiritual benefits in other world. This is relative element, which changes from person to person, personality and mentality person making Dying Declaration. So a person who is about to die, tells the truth and truth only is a half truth as in case of harden criminals. So it is the personality, circumstances and the character of the person making Dying Declaration that decides the relevancy of Dying Declaration.
2) There is no reason to implicate wrong person:
The person making Dying Declaration and mentioning in the name of the person responsible who has caused injuries to him which are likely to result in his death, generally will not implicate in a wrong person who is not at all responsible for such injuries.
3) There is no reason why he will avoid the name of the person who is responsible for his death and his worst enemy in his life. It is more logical and realistic concept because person who is on the bed of Death will not implicate the name of wrong person for the cause of his death, but he will not allow his enemy to go unpunished who is responsible for his death.
Infirmities/ Defects of Dying Declaration:
1) There is no oath administered:
When a person is called as witness in the Court he has to make a statement on oath. This is to have his inner conscience say truth and truth only. Law presume and expect person to state the truth. This is the theoretical aspect as it may be correct theoretically but not practically.
2) There is no cross-examination of such person making Dying Declaration:
The need of cross-examination is to judge the credibility of the witness. It is the right of Defense Council. Questions are put to the witnesses to extract the truth in case of Dying Declaration other party or defense council have no opportunity of cross-examination of the witness who is dead.
3) Witness is not present before the Court:
Behavior, manner of answering the question of witness before the Court is a vital aspect in law because it gives opportunity to the judges to judge the character, personality of the witness this element is absent in dying declaration and hence it is not accepted as a rule
Evidentiary Value of Dying Declaration:
The evidentiary value of dying declaration will vary according to the circumstances of a particular case in which it is made
Dying Declaration is evidence but it is a weak piece of evidence. It is to be corroborated by other evidence for example other facts and evidence supporting Dying Declaration.
It gives guidance to the Court, the has to accept the Dying Declaration as a suspicious statement, it is duty of the judge to consider the valuation of Dying Declaration. Such valuation of Dying Declaration depends upon many things as under
1) State of mind of declarant.
2) State of the body of declarant.
3) To whom the Declaration/Statement is made.
4) Who recorded the statement?
5) Whether the statement is recorded in the same language and in a same word of the declarant. Even though Dying Declaration is said to be of weak piece of evidence it is relevant in the Indian Evidence Act, because it is the best available evidence as to the cause of his death after his death.
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