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DYING DECLARATION


Section 32 of The Indian Evidence Act, 1872:

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 persons 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) or 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) or 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 a criminal prosecution or to a suit for damages.

(4) or 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) or 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) or 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) or 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) or 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.


Illustrations


(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; 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.

(b) 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 A's mother and delivered her of a son, is a relevant fact.

(c) 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.

(d) The question is, whether a ship sailed from Bombay harbour on a given day.

A letter written by a deceased member of a merchants 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.

(e) 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 As account and held it at A's orders is a relevant fact.

(f) 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.

(g) 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.

(h) 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.

(i) The question is, whether a given road is a public way.

A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(j) 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 banya in the ordinary course of his business, is a relevant fact.

(k) The question is, whether A, who is dead, was the father of B.

A statement by A that B was his son, is a relevant fact.

(l) The question is, what was the date of the birth of A.

A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is, whether, and when, A and B were married.

An entry in a memorandum book by C, the deceased father of B, of his daughters marriage with A on a given date, is a relevant fact.

(n) A sues B for a 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.

Section 32 (1) of the Indian Evidence Act deals with “Dying Declarations”; it is the statement of a fact given by a person before his death and is relevant to the circumstances detailing the cause of his death. All the statements given by the person are considered relevant, whether, the person who made them, at the time of giving the said statement, was or was not, at the time when it was made, under expectation of death.


Dying Declaration is the only kind of evidence which is exception to the ‘Hearsay Evidence’.


What is the definition of Hearsay Evidence?

Hearsay Evidence is nowhere defined in The Indian Evidence Act, 1872, Hearsay Evidence is commonly known as second hand evidence. These evidences are considered as ambiguous and can be misleading because the person who deposes such evidences before the court has heard it through someone and was not direct witness to the said act or situation.


Section 60 of the Indian Evidence Act, 1872, reads as follows:-


60. Oral evidence must be direct. Oral evidence must, in all cases whatever, be direct; that is to say

 if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;


if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:


Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:


Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

The person who died after issuing the statement (Dying Declaration) cannot be called as a witness before the Court of Law for cross examination, therefore, the statement of the deceased who gave statement is considered as hearsay evidence but is declared to be relevant under the ‘Doctrine of Necessity’.

Dying Declaration given by a dead person is always considered relevant by Court of law because it considers the Maxim, “Nemo Moriturus Presumitur Mentri” which means “No person will meet his maker with a lie in his mouth” or “ the person will be presumed to say truth at the time of his death”.

Dying declaration even though considered as hearsay evidence is still admissible as evidence because the dying person has a knowledge that he cannot appear before the court to testify the statements given by him and therefore the knowledge of the dead person should be brought to the knowledge of the court through some other person to whom he has given such statement known as dying declaration.

Dying Declaration are considered relevant under the following circumstances:

* If the said declaration is directly related to the cause of death of its maker;

* If the said declaration is made in course of transaction or circumstances of the death of maker;

* If the said declaration is made against interest of maker;

* If the said declaration is a opinion as to Right, Custom;

* If the said declaration is in existence of any type of relationship;

* If the said declaration is made in the form of last testament or Will or Deed of family;

* If the said declaration is made in relation to transaction under Section 13 (a);

The Dying Declarations can be brought into consideration and shall be considered relevant in whatever nature of the proceedings in which the cause of death of the person who gave dying declaration comes into question. In short Dying Declaration can be used in both Civil as well as Criminal proceedings.

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