INTRODUCTION:

A fact to be proved by oral evidence must be stated before the court by a person who has first-hand knowledge on the facts to be proved. Second-hand evidence is loosely termed as hearsay evidence. When a witness appears before a court to give evidence of his first-hand knowledge, he takes an oath. Further, the opposing party has the right to cross examine him. At the same time, he must give a testimony, which may expose him to all the penalties in case of falsehood of such evidence.

Hearsay evidence is generally excluded on the following grounds:

1. He does not produce such evidence on oath
2. The opposing party has no opportunity to cross examine him or the original source of such information.
3. He is immune from all penalties of falsehood in such evidence.

Sometimes it may be impossible to procure the attendance of a witness or result in unreasonable expense who could have given direct evidence; the witness also could give evidence either written or oral which may reasonably be presumed to be true and thereby reliance can be placed on hearsay evidence.  There is an exception to the general rule that hearsay evidence would not apply which are stated in section 32 and section 33 of the Evidence Act.

Section 32 Evidence Act:

This section states that statements, written or oral, of relevant facts made by a person

1. Who is dead
2. Who cannot be found
3. Who has become incapable of giving evidence
4. Whose attendance cannot be procured without unreasonable delay or expenses according to the court Shall be considered to be relevant in the following circumstances:
   • When it relates to the cause of death; or
   • When is made in the course of business; or
   • When it is made against the interest of the maker; or
   • When it involves giving an opinion as to a public right or custom or matters of general interest; or
   • When it relates to the existence of a relationship; or
   • When it made in the will or deed relating to family affairs; or
   • When the document relates to a transaction mentioned in S. 13
   • When it made by several persons and expresses feelings relevant to the matter in question.

Statements Made in Course of Business [Sec., 32(2)

Sec. 32(2) declares relevant statements made by a person in the ordinary course of business and in particular when it consists of an entry/ memorandum in books; or in the discharge of professional duty; or acknowledgement of the receipt of any property; or of the date of a letter/document usually written or signed by him.

Illustration:

Where the question is as to a person’s date of birth, an entry in the diary of a deceased surgeon regularly kept by him stating that on a certain date he attended that person’s mother and delivered her of a son is relevant

Similarly, where the question is whether a person was in Calcutta on a given date, entries in the diary of a deceased solicitor (regularly kept by him) that he attended that person at a place in Calcutta is relevant.

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.

Statements Against Interest of Maker [Sec. 32(3)]

Under Sec. 32(3), “declarations against interest” include statements against the pecuniary or proprietary interest of the person making it, or when it would have exposed him to a criminal prosecution or suit for damages.

Illustration:

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 A’s account and held it at A’s orders, is a relevant fact.

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.

Sec. 32(3) is based on the ground that what a person says against his own interests is very likely to be true.

Thus, a statement made by a deceased in a deed, to the effect that he is governed by the Mitakashara law, is against his proprietary interest and admissible. A statement by a landlord who was dead, that there was a tenant on the land, was a statement against his proprietary interest and was held admissible

Declaration as to Public Rights [Sec. 32(4)]

Sec. 32(4) deals with declarations of deceased persons as to public right or custom, or matters of general interest. It is necessary that he made the declaration before any controversy as to such right, custom or matter had arisen. If the statement is regarding a private right, it cannot be admitted under this clause. The person making the declaration should be a person of competent knowledge.

Illustration:

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.

Declaration as to Relationship or Pedigree [Sec. 32 (5) & (6)]

Sec. 32(5) provides that a statement will be relevant when it relates to the existence of any relationship by blood, marriage or adoption as to whose relationship the maker had special means of knowledge and was made when before the question is dispute arose (i.e. ante litem mortem and not post liter mortem).

Thus, the statements made by deceased members of a family (in a pedigree or horoscope) are admissible in evidence if they are made before there was anything to throw doubt upon them.

Illustration: The question is, whether A, who is dead, was the father of B. A statement by A that B was his own, son, is a relevant fact.

Similarly, when the question was whether a certain person was the legitimate child, declaration by his deceased father and mother that he was born before marriage, was held to be admissible.

While Sec. 32(5) refers to statement relating to the existence of relationship between any person (living or dead), Sec. 32(6) is concerned with deceased persons only, Further, while under Sec. 32(5), the evidence is the declaration of a person who is deceased or whose attendance cannot be secured, under Sec. 32(6), the evidence is that of concrete things and is always written e.g. will or deed, tombstone, family pedigree/ portrait, coffin plates, etc.

Illustration: The question is, what was the date of 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.

The question is, whether, and when, A and B were married. An entry in a memorandum book by C (B’s deceased father) of B’s marriage with A on a given date, is a relevant fact.

Statements in Documents as to Custom or Right [Sec. 32(7)]

Under this clause, evidence can be given of a statement made in any deed, will, etc. which relates to any transaction by which any right or custom was created, claimed, modified, denied, etc.

This section derived his words and relevancy from section 13 of the same act which made the facts relevant when right or custom is in question.

Statement of Several Persons Expressing Feelings [Sec. 32(8)]

A statement is relevant if it was made by a number of persons and expressed feelings or impression on their part relevant to the matter in question. This section may be compared with Sec, 14, which deals with expression of feelings by an individual.

Illustration: 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 libelous character. The remarks of a crowd of spectators on these points may be proved.

Dying Declaration:

A dying declaration is thus an exception to hearsay evidence when such evidence relates to the cause of death or any circumstance of the transaction which results in the cause of death either oral or written and will be admissible as evidence. The same shall be relevant irrespective of the fact as to whether the person expected or was not expecting his death. Section 32(1) of the Act deals with dying declaration.

The concept of dying declaration is based on the Maxim “Nemo morture praesumntur mentiri” which means that the person who is about to die would not tell lie. Sec. 32 is an exception to the hearsay rule. The three main grounds on which dying declarations are admitted are:

• Death of the declarant,
• Necessity (only evidence available under the circumstances): the victim being generally the only eye-witness to the crime, the exclusion of his statement would tend to defeat the ends of justice, and
• The sense of impending death, which creates a sanction equal to the obligation of an oath. Nemo moriturus presumuntur tentri (no one when about to die is presumed to lie. “Truth sits upon the lips of dying men”.

The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth.

Distinction between English and Indian Law

There are several vital points of distinction between the English and the Indian law on the point of admissibility of dying declaration:

1. Firstly, in England, a dying declaration is relevant only in criminal cases where the cause of death is in question. In India, such statements are admissible both in civil and criminal proceedings; they are admissible even if the trial is not for a person’s death.
2. Secondly, under English law, the dying declaration is admissible only in the single instance of homicide i.e. murder or manslaughter. In India, cases of ‘suicide’ are also covered.
3. Thirdly, under English law, to be relevant, a dying declaration must have been made in expectation of death. The declaration must be made at a time when the maker is under settled and hopeless expectation of death. A declaration made without appreciation of immediate or impending death would not be admitted, however it is not necessary that it should come immediately after the statement. There is no such requirement under the Indian law. If the declarant has in fact died and the statement explains the circumstances surrounding his death, the statement will be relevant even if no cause of death had arisen at the time of the making of the statement.
4. Fourthly, under English law, it is necessary that the deceased should have completed his statement, before dying. In India, if the deceased has narrated the full story, but fails to answer the last formal question as to “what more he wanted to say”, the declaration can be relied upon.

Illustration:

1. Sam has been attacked by Anna: Here, if Sam, shortly before death makes a declaration holding Anna, responsible for his injuries, it is called “Dying Declaration’.
2. A killed B. Before his death, B made certain statement to doctor as to cause of his death e. who caused those injuries.

Now, as matter of general rule, his statement should not be proved for the reason that a dead man cannot be brought to the court to testify something on  oath. Dying declaration is primary evidence.

Essentials of a Dying Declaration:

Evidence as to Dying Declaration should be as exact and full as possible because there is no cross-examination of such person making Dying Declaration.

Hence, Court insists that dying declaration should be of such a nature as to inspire the full confidence of the Court in its correctness.

Essentials of Dying Declaration 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.

Case Laws:

SATISHCHANDRA .v. STATE OF MADHYA PRADESH [2014] 6 SCC 723):

 It is observed by the apex court that the declaration cannot be rejected on that ground alone if the declaration is otherwise acceptable and meets the requirement of Section 32(1) of the Evidence Act. A magistrate is expected to record the statement in the absence of the police. Steps must be taken to see that no interested persons remain there while recording the declaration.

Sharada v State of Maharashtra

Proximity of time between the statement and death. There has to proximate relationship between the death and circumstances of death.

Evidentiary Value of Dying Declaration

There is no rule of law that a dying declaration should not be acted upon unless corroborated. But ordinarily, it is not considered safe to convict an accused person only on the basis of a dying declaration because of its inherent weaknesses (discussed below):

1. It is hearsay evidence, not made on oath and its veracity cannot be tested by cross-examination in the court.
2. Very often, the dying man takes that last opportunity to implicate all his enemies.
3. In weighing the evidence of dying declaration, various factors or circumstances should be taken into consideration”:-
4. Nature of its content, consistency of statements made at different times;
5. Capacity to remember facts; opportunity of dying man for observation viz. availability of light if crime done at night,. to identify assailant.
6. Proximity of time between it and the accident; whether the statement made at the earliest opportunity and was not the result of any tutoring or prompting by interested parties (relatives). Thus, the opportunity to consult other persons is an important factor.

State of Assam v M. Ahmed AIR 1983 SC 274:

In a wife burning case, the wife remained alive for about 8 days after receiving burn injuries, but did not tell to anybody visiting her in the hospital as to how she came to receive the burns. When her uncle visited her, she stated that her husband had set her on fire. The Supreme Court held that statement seemed to have been tutored by the uncle.

Thus, it is necessary that the dying declaration must be subjected to a close scrutiny (proved beyond reasonable doubt) in respect of all the relevant circumstances of the case. The declaration must be true and voluntary.

Further dying declaration can be taken into consideration when it is :

• Recorded by a competent magistrate (with certain exception);

In Mannu Raja v. State of M.P. AIR 1976 SC 2199 case, the Supreme Court observed that although a dying declaration recorded by police officer during the course of investigation is admissible u/s 32 of Act it is however better to leave such dying declaration out of consideration unless and until the prosecution satisfies the court as to why it was not recorded by magistrate or a doctor.

• The said statement must be recorded in the exact words;
• There must not be any scope of influence from the third party, and hence the declaration must be made soon after the incident that is the reason of the death; and
• There must not be any ambiguity regarding the identity of the offender or cause of death.

Case Laws :

PATEL HIRALAL JOITARAM V STATE OF GUJARAT (AIR 2001 SC 2944)

Facts and Issue – In this case, the statement made by the deceased woman in the FIR, where she wrongly mentioned the 2nd part of the name of the accused had been clarified by her by giving a clarifying statement under Sec. 161, Cr.PC.

The issue was whether her statement had been covered by Sec. 32(1) of the Evidence Act to be a reliable dying declaration ?

Observations – The Apex Court observed: By Sec. 32(1), two categories of statements are made admissible in evidence and further made as substantive evidence. They are:-

1. Statement as to the cause of death
2. Statement as to any of the circumstances of the transaction which resulted into death

The second category has wide range of facts hence anything which has nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the sub section.

Therefore the classificatory statement made by the deceased under section 161 Cr.PC would fall within the ambit of section 32 (1) of the Evidence Act.

Rattan Singh v State of H.P. (AIR 1997 SC 768):

The statement of a woman made before the occurrence in which she died 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.

The court observed: When the deceased made the statement that appellant was standing with a gun she might or might not have been under the expectation of death, but that does not matter. The fact spoken by her has subsequently turned out to be a circumstance which intimately related to the transaction which resulted in her death. The collection of the words in Sec.

32(1) “circumstances of the transaction which resulted in his death“ is apparently of wider amplitude than saying “circumstances which caused his death”. There need not be direct necessary nexus between’ “circumstances” and “death”. It is enough if the words spoken by the deceased have reference to any circumstances, which has connection with any of the transaction which ended up in the death of the deceased.

Dying Declaration can be used as a Sole Basis of Convictions

In Ram Nath Madho Prasad v State of M.P. (AIR 1953 SC 420), the Supreme Court observed: “It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination…”By subsequent decisions, however, the Court has over-ruled its above ruling.

Khushal Rao vs. State of Bombay (AIR 1958 SC 22)

In this case, the deceased made four separate and identical declarations before the doctor, police inspector, magistrate and to other persons, stating that he has been assaulted by Khushal and one other person.

The question was whether the accused could be convicted only on the basis of this declaration, or the declaration needed corroboration?

According to Madras High Court, a declaration can be relied without corroboration, if the court is convinced of its truth, i.e., there is no suspicion of its credibility.

The Supreme Court, agreeing with Madras High Court, laid down the following principles:

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 be determined on its own facts keeping in view the circumstance in which the dying declaration was made.
3. A dying declaration is not a weaker kind of evidence than any other piece of evidence.It stands on the same footing as any other piece of evidence.
4. A dying declaration cannot be equated with a confession or evidence of approver, as it may not come from a tainted source. If it is made by a person whose antecedents are as doubtful as in the other cases, that may be a ground for looking upon it with suspicion.
5. Necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the court in a particular case come to the conclusion that a particular declaration is not free from infirmities.
6. 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, e.g. whether there was sufficient light if the crime was committed at night; whether the capacity of the declarant was not impaired at the time of the statement; that the statement has been consistent throughout if he had several opportunities for making a dying declaration; and that the statement was made at the earliest opportunity and was not the result of tutoring by interested parties.
7. A dying declaration recorded by a competent Magistrate in a proper manner in the form of questions and answers, and in the words of the maker as far as practicable stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and character.
8. If the court, after taking everything into consideration, is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense. The court must, of course, be fully convinced of the truth of the statement, and naturally, it could not be fully convinced if there were anything in the surrounding circumstances to raise suspicion as to its credibility.

Thus, a true and voluntary declaration needs no corroboration.

Kusa vs. State of Orissa (AIR 1980 SC 559)

In this case, the deceased made a dying declaration before a doctor. It was clear in all respects. However, the appellants challenged it on the following grounds:

• It did not contain all those names which were included in F.I.R.
• The account of eye-witnesses is also different
• The deceased was in a state of shock, thus his statement could not be relied.
• The declaration was incomplete as the deceased did not answered the last question put to him (To wind up the statement the doctor asked the injured if he had anything else to say, he lapsed into unconsciousness without answering this question).

The court observed that only because certain names were included in F.I.R. but were not mentioned in dying declaration does not detract from the value of dying declaration and would not by itself prove the falsity of the declaration.

Court has laid down governing principles (precautions) in several judgments, which could be summed up as under.

1. There is neither rule of law nor of prudence that no dying declaration cannot be acted upon without corroboration. If the court is satisfied that dying declaration is true and voluntary, it can base conviction on it without corroboration [State of U.P. Vs. Ram Sagar Yadav AIR 1985 SC 416]
2. A dying declaration which suffers from infirmity cannot form the basis of conviction.\
3. The court has to scrutinize the dying declaration carefully and must ensure that it is not the result of tutoring, prompting or imagination.
4. Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected [Kaka Singh v State of M.P. AIR 1982 SC 1021].
5. Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.
6. Brief statement not to be discarded. Shortness of the statement itself guarantees truth [Surajdeo Oza vs.State of Bihar AIR 1979 SC 1505].
7. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon [State of U.P. v Madan Mohan AIR 1989 SC 1519].
8. In case of more than one statement, the first in point of time must be preferred. If plurality is trustworthy and reliable it has to be accepted [Mohanlal Gangaram Gehavi v State of Maharashtra AIR 1982 SC 839].
9. Normally the court in order to satisfy whether the deceased was in a fit mental condition (so as to observe and identify the assailant) to make the dying declaration looks up to the medical opinion. But where the eye witness or Magistrate said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [Laxman v State of Maharashtra (2002) 6 SCC 710].

Discrepancy in Dying Declarations: Credibility of Dying Declaration

In Kishan Lal v State of Rajasthan (AIR 1999 SC 3062), certain dying declarations were made by the deceased nearly two months after the incidence of burning. In the first oral declaration made before her relatives, the deceased mentioned the names of the accused. In the second declaration before the magistrate she could not mention the name of the accused on the ground that she could not recognize any accused because of fire darkness coming to her eyes. Second declaration not only giving to conflicting version but there was inter se discrepancy in depositions of witnesses given in support of the oral dying declaration. Also, the medical evidence clearly showed that the deceased died due to some aliments and not due to burn injuries. The court held that in such circumstances the conviction cannot be based on such dying declarations.

Dying Declaration Made to Police whether Admissible

STATE OF KARNATAKA V SHARIFF (AIR 2003 SC 1074)

“In this case, the deceased, wife of the respondent, before succumbing to injuries, made statement to the A SI. The question arose whether the dying declaration made before the police officer is reliable and admissible as evidence. The court observed that

a dying declaration recorded by police cannot be discarded on that ground alone. There is no requirement of law that a dying declaration must be made to a magistrate.

However, In Dalip Singh v State of Punjab AIR 1979 SC, 1173 court had laid down that it is better to leave such a statement, out of consideration unless the prosecution satisfies the court as to why it was not recorded by a magistrate. or a doctor.

In Munnu Raja vs. State of M.P. (1976) 3 SCC 104, This court observed: “The practice of investigating officers himself recording a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declaration are always trustworthy, but what we want to emphasize is that better and more reliable methods should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.” In the aforesaid case, the court admitted the statement made to I.O. at the Police Station by the deceased as admissible evidence.

In State of Punjab v Amarjit Singh (AIR 1988 SC 2013 It was observed that no hard and fast rule could be laid down in this regard and it all depends upon the facts and circumstances of each case.

In Ram Bihar Yadav v State of Bihar: (1998) 4 SCC 517, it was held that a dying declaration which was not in question-answer form can be accepted. It should, however, be in the actual words of the maker of the declaration.

Conclusion

The principle on which evidence of dying declaration is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of the world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. However, dying declaration must be  true and voluntary.