When a dispute, whether relating to a civil or criminal matter, reaches the court there will always be a number of issues which one party will have to prove in order to persuade the court to find in his or her favour. The law must ensure certain guidelines are set out in order to ensure that evidence presented to the court can be regarded as trustworthy. The law of evidence governs the use of testimony (e.g., oral or written statements, such as an affidavit) and exhibits (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by the trier of fact, such as jury) in a judicial or administrative proceeding (e.g., a court of law).

. Introduction.

The best evidence in documentary evidence is the original document itself1[1] which is also

known as primary evidence. The “best evidence rule” is to that effect that in any proceeding in

the court of judicature where a party intends to rely on a document the document itself must

be produced2[2]. This is the evidence that the courts prefer to any other evidence. However

there are circumstances when secondary evidence which may take the form of certified copies

of the original document or copies of it produced by mechanical means to be adduced in court

1In every civilized legal system we can be classified the laws in two categories 1. Substantive Law2. Procedural laws. The Law of evidence is one of the most important part of the procedurallaw. The law of evidence plays a very important role in the effective functioning of the judicialsystem. The law of evidence is an indispensable part of both substantive and procedural laws. Itimparts credibility to the adjudicatory process by indicating the degree of veracity to beattributed to 'facts' before the forum. This paper enables the student to appreciate theconcepts and principles underlying the law of evidence and identify the recognized forms ofevidence and its sources. The subject seeks to impart to the student the skills of examinationand appreciation of oral and documentary evidence in order to find out the truth. The art ofexamination and cross-examination, and the shifting nature of burden of proof are crucialtopics. The concepts brought in by amendments to the law of evidence are significant parts ofstudy in this course.Total No. of Lectures

INTRODUCTION

 The object of every judicial investigation is the enforcement of a right or liability that depends on certain facts. The law of evidence can be called the system of rules whereby the questions of fact in a particular case can be ascertained. It is basically a procedural law but it has shades of substantive law. For example, the law of estoppel can defeat a man’ right. Law of Evidence is one of the fundamental subjects of law and therefore we must study it in detail and depth.

in the satisfactory explanation of absence of best evidence which the courts require to be

adduced.

2. Definitions.

Black’s law dictionary defines a document as something tangible on which words symbols or

marks are recorded.3[3] Section 2(b) of the Evidence Act Cap 6 defines a document to mean any

matter expressed or described upon any substance of letters, figures or marks or by more than

any one of those means, intended to be used or which may be used, for purpose of recording

The term ‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ that mean ‘to show clearly, to discover, to ascertain or to prove.’

 

OBJECT OF THE STUDY OF THE LAW OF EVIDENCE

 Evidence refers to anything that is necessary to prove a certain fact. Thus, Evidence is a means of proof. Facts have to be proved before the relevant laws and its provisions can be applied. It is evidence that leads to authentication of facts and in the process, helps in rationalising an opinion of the judicial authorities.

Further, the law of evidence helps prevent long drawn inquiries and prevents admission of excess evidence than needed.  

 

TYPES OF EVIDENCE

1. Direct

2. Circumstantial

3.Hearsay

4. Documentary

5. Oral

6. Scientific

7. Real

that matter. And documentary evidence at section 2(c) of the Evidence Act means all

documents produced for the inspection of court.

Humpery SJ in Hill v R 4[4] stated that: “… a document must be something which affords

information …to constitute a document, the form which it takes is immaterial, it may be

anything, on which the information is written or inscribed, paper, stone or metal.

8. Digital

Law related to evidence and proof is nothing but rules that must be observed in particular situations before certain forums.

If the other party in a legal proceeding admits guilt, all is well. The other party can also deny the allegations in the plaint and the existence of certain facts ma be called into question. Then the parties or their witnesses have to give evidence in the court of law so that the court may decide whether the facts exist or not. Interpretation of agreed facts is a rarity and in most cases the existence or non existence of facts as to be shown and therefore, the law of evidence plays a very important role.

Illustration: X has entered into a contract with Y to sell his house for an amount of INR 10,000. In case of a breach of contract of contract by either X or Y, a Court of Law cannot decide the rights and liabilities unless the existence of such a contract is proved.

In Indian Evidence Act, we will study who is a competent witness, on whom does the burden of proof lie and other things.

 

ARE SUCH RULES NECESSARY

The rules and regulations of evidence are essential. One view says that the court has to arrive at the truth and hear all there is to a case and then arrive at a just conclusion. And accordingly, the law of evidence poses a hindrance with its qualifications and requisites. Other view says that without rules it will take ages to resolve any case and it is too much discretion at the hands of men who will remain unchecked. The Indian Evidence Act, 1872 maintains the right proportion of rules that are not too pedantic or too discretionary. Rules of the law of evidence have to be strong so that the foundation of the administration of justice remain intact and strong.

INTRODUCTIONDying declaration is bases on the maxim “Nemo moriturus praesumitur mentire” i.e. a man will not meet his maker with a lie in his mouth. Hearsay evidences are not given any weightage inthe courts because the person who is giving this evidence is not telling his experiences but that of another person and who cannot be cross examined to verify the facts. Dying declaration is an exception to this rule 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. Sometimes it the best evidence in such situations. Its admissibility is explained in the section 32 (1) of Indian Evidence Act. According to this section

It can also be said that the Act seeks to enact a correct and uniform rule to followed and prevent indiscipline in admitting evidence.  

 

INTRODUCTION TO IEA

The Indian Evidence Act, 1872 is largely based on the English law of Evidence. The Act does not claim to be exhaustive. Courts may look at the relevant English Common Law for interpretation as long as it is not inconsistent with the Act.

The Act consolidates, defines and amends the laws of evidence. It is a special law and hence, will not be affected by any other enactment containing provisions on matter of evidence unless and until it is expressly stated in such enactment or it has been repealed or annulled by another statute.

Parties cannot contract to exclude the provisions of the Act. Courts cannot exclude relevant evidence made relevant under the Act. Similarly, evidence excluded by the Act will be inadmissible even if essential to ascertain the truth.

 

THE LAW OF EVIDENCE IS THE LEX FORI

Law of evidence is part of the law of procedure. That why it is called the lex fori or the law of the court or forum. It means that Indian courts know and apply only the Indian law of evidence. Thus, the competency of a witness, whether a fact is proved or not is determined by the law of the country where the question arose, where the remedy is sought to be enforced and where the court sits to enforce it. For example, if a legal proceeding is going on in Sri Lanka and evidence is taken in India for the said proceeding whether by commission or by assistance of courts in India, the law which will be applied during such recording of evidence will Sri Lankan Law of Evidence.

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 5[1]In English law he must be under expectation of death only then this declaration is valid. This declaration is valid both in civil and criminal cases whenever the cause of death comes into question. If we read the various judgments on the admissibility of dying declaration at times various judges have taken diagonally opposite views and different explanations have been offered though the motive in all have been to provide justice to the people. Main thing is that if these declarations seem trustworthy to courts these retain their full values. Most important point of consideration is that victim was in a fit

 

THE LAW OF EVIDENCE IS THE SAME IN CIVIL AND CRIMINAL PROCEEDINGS

A civil case of will and murder will have the same law of evidence. For example, the date of death has to be clarified or confirmed for the will to come into existence and a murder date has to be set for proceeding further with the criminal investigations too. There are, however, certain sections that apply exclusively to civil matters and others that apply exclusively to criminal cases. In civil cases, mere preponderance of evidence may be enough but in criminal cases the prosecution must prove its case beyond reasonable doubt and leave the other alternatives presented very unlikely and highly suspect.

 

BASIC PRINCIPLES OF EVIDENCE

The Act deals with Relevancy of Facts, Mode of Proof and Production and Effect of Evidence. The following principles are called the basic principles and The exceptions to the above principles, the exact application has been set out very clearly in the Act:

1. Evidence must be confined to the matters in issue.

2. Hearsay evidence may not be admitted.

3. The best evidence must be given in all cases.

4. All facts having rational probative value are admissible in evidence,unless excluded by a positive rule of paramount importance.

 

condition of mind to give the statement when recording was started and remained in fit condition of mind till the recording of the statement finished. Merely stating that patient was fit will not serve the purpose. This can be best certified by the doctor who knows best about the condition of the patient. But even in conditions where it was not possible to take fitness from the doctor, dying declarations have retained their full sanctity if there are other witnesses to testify that victim was in such a condition of the mind which did not prevent him from making statement. 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. 6[2]Second most important point to be considered is that it should not be under the influence of any body or

HISTORY OF THE LAW OF EVIDENCE 

Today we have two basic of evidence upon which rules are formulated. One rule is that only the facts bearing importance to the matter being heard should be looked into by the courts and second that all facts that will help the court to reach a decision are admissible unless otherwise excluded like a client confessing to his legal counsel.

Among others from ancient Hindu Period, Vasistha recognised 3 kinds of evidence:

1. Lekhya (Documentary Evidence)

2. Sakshi ( Witnesses)

3. Bukhti ( Possession)

4. Divya (Ordeals)

 Though the concept of justice in Islam is that it is a divine disposition, the Mohammedan law givers have dealt with evidence in various forms as indicated by the table below:

1. Oral that may be Direct Hearsay

2. Documentary (Less preferred than oral)

Initially at many places and in many beliefs, the parties to litigation would fight each other and it was believed that divine help will come to the rightful party. Trial by battle has been abrogated only in 1817. The trials by ordeal included a person on bed of hot coals or putting ones hand n boiling water. Anyone who suffered injury was held to be impure and guilty. Though it was believed that providence will not let harm come to the innocent, often it was the priests who manipulated the tests so that certain people could go scot-free.

prepared by prompting, tutoring or imagination. Even if any one of these points is proved then dying declaration is not considered valid. If it becomes suspicious then it will need corroboration. If a person has 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 contradictory than these lose value. Best form of dying declaration is in the form of questions and answers. If it is in the form of narrations it is still good because nothing is being prompted and every thing is coming as such from the mind of the person making it. 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 declaration is valid. Whenever this is being recorded in the form of questions

It was believed that if a guilty man touches the corpse it would show a reaction and then the man should be punished. Accordingly refusal to touch a corpse was also admission of guilt by the accused.

The most cruel evidence law existed in Europe with respect to witch hunts and witch craft. The woman suspected of being a witch was tied up and thrown into a pond. If she floated p, she was a witch and was burned alive at stake. If the woman were to sink to the bottom of the pond, she was not a witch. Unfortunately she would be dead by then but nevertheless innocent in the eyes of law.

Confessions due to torture are not unknown today either.

INTRODUCTION

 The object of every judicial investigation is the enforcement of a right or liability that depends on certain facts. The law of evidence can be called the system of rules whereby the questions of fact in a particular case can be ascertained. It is basically a procedural law but it has shades of substantive law. For example, the law of estoppel can defeat a man’ right. Law of Evidence is one of the fundamental subjects of law and therefore we must study it in detail and depth.

The term ‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ that mean ‘to show clearly, to discover, to ascertain or to prove.’

 

OBJECT OF THE STUDY OF THE LAW OF EVIDENCE

 Evidence refers to anything that is necessary to prove a certain fact. Thus, Evidence is a means of proof. Facts have to be proved before the relevant laws and its provisions can be applied. It is evidence that leads to authentication of facts and in the process, helps in rationalising an opinion of the judicial authorities.

and answers precaution should be taken that exactly what questions are asked and what answers are given by the patient those should be written. It is preferred that it should be written in the vernacular which the patient understands and speaks. It is best that it is recorded by the magistrate but if there is no time to call the magistrate due to the deteriorating condition of the victim it can be recorded by anybody e.g. public servant like doctor or any other person. Courts discourage the recording of dying declaration by the police officers but if there is no body else to record it dying declarations written by the police officers are also considered by the courts. If these are not recorded by the magistrate it is better that signatures of the witnesses are taken who are present at the time of recording it. In burn cases usually it is debated the person is not capable of making dying declaration due to the effect of burns or due

Further, the law of evidence helps prevent long drawn inquiries and prevents admission of excess evidence than needed.  

 

TYPES OF EVIDENCE

1. Direct

2. Circumstantial

3.Hearsay

4. Documentary

5. Oral

6. Scientific

7. Real

8. Digital

Law related to evidence and proof is nothing but rules that must be observed in particular situations before certain forums.

If the other party in a legal proceeding admits guilt, all is well. The other party can also deny the allegations in the plaint and the existence of certain facts ma be called into question. Then the parties or their witnesses have to give evidence in the court of law so that the court may decide whether the facts exist or not. Interpretation of agreed facts is a rarity and in most cases the existence or non existence of facts as to be shown and therefore, the law of evidence plays a very important role.

to the narcotic sedation given to treat burns. But Gupta and Jani have opined that neither effect due to burns nor the drugs used to treat burns victims conventionally affects the higher functions. Therefore they safely concluded that compos mentis is not affected either by burns or by its treatment7[3]. 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 valid8[4] 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 file9[5]. 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

Illustration: X has entered into a contract with Y to sell his house for an amount of INR 10,000. In case of a breach of contract of contract by either X or Y, a Court of Law cannot decide the rights and liabilities unless the existence of such a contract is proved.

In Indian Evidence Act, we will study who is a competent witness, on whom does the burden of proof lie and other things.

 

ARE SUCH RULES NECESSARY

The rules and regulations of evidence are essential. One view says that the court has to arrive at the truth and hear all there is to a case and then arrive at a just conclusion. And accordingly, the law of evidence poses a hindrance with its qualifications and requisites. Other view says that without rules it will take ages to resolve any case and it is too much discretion at the hands of men who will remain unchecked. The Indian Evidence Act, 1872 maintains the right proportion of rules that are not too pedantic or too discretionary. Rules of the law of evidence have to be strong so that the foundation of the administration of justice remain intact and strong.

It can also be said that the Act seeks to enact a correct and uniform rule to followed and prevent indiscipline in admitting evidence.  

 

INTRODUCTION TO IEA

The Indian Evidence Act, 1872 is largely based on the English law of Evidence. The Act does not claim to be exhaustive. Courts may look at the relevant English Common Law for interpretation as long as it is not inconsistent with the Act.

on the back of hand) or injury e.g. injury on the right hand in a right handed person. In the absence of such conditions if there is thumb impression and this is not witnessed by disinterested persons a doubt may be created whether this was done after the person died to take revenge by some interested person. There is usually no time limit that dying declaration becomes invalid if the person died after many months after making the declaration. Cases are on record when it was considered valid after 4 months. Even the HISTORY given by the injured recorded by the doctor in the case file has been considered as dying declaration by the honorable Court if it is mentioned that the patient told in the history that incident occurred in

The Act consolidates, defines and amends the laws of evidence. It is a special law and hence, will not be affected by any other enactment containing provisions on matter of evidence unless and until it is expressly stated in such enactment or it has been repealed or annulled by another statute.

Parties cannot contract to exclude the provisions of the Act. Courts cannot exclude relevant evidence made relevant under the Act. Similarly, evidence excluded by the Act will be inadmissible even if essential to ascertain the truth.

 

THE LAW OF EVIDENCE IS THE LEX FORI

Law of evidence is part of the law of procedure. That why it is called the lex fori or the law of the court or forum. It means that Indian courts know and apply only the Indian law of evidence. Thus, the competency of a witness, whether a fact is proved or not is determined by the law of the country where the question arose, where the remedy is sought to be enforced and where the court sits to enforce it. For example, if a legal proceeding is going on in Sri Lanka and evidence is taken in India for the said proceeding whether by commission or by assistance of courts in India, the law which will be applied during such recording of evidence will Sri Lankan Law of Evidence.

 

THE LAW OF EVIDENCE IS THE SAME IN CIVIL AND CRIMINAL PROCEEDINGS

A civil case of will and murder will have the same law of evidence. For example, the date of death has to be clarified or confirmed for the will to come into existence and a murder date has to be set for proceeding further with the criminal investigations too. There are, however, certain sections that apply exclusively to civil matters and others that apply exclusively to criminal cases. In civil cases, mere preponderance of

such and such manner which was responsible for the death of the victim10[6]. 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 recorded11[7]. But when patient remained admitted in hospital for sufficient days i.e. for 8 days FIR cannot be treated as dying declaration12[8]. 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 Act13[9].

evidence may be enough but in criminal cases the prosecution must prove its case beyond reasonable doubt and leave the other alternatives presented very unlikely and highly suspect.

 

BASIC PRINCIPLES OF EVIDENCE

The Act deals with Relevancy of Facts, Mode of Proof and Production and Effect of Evidence. The following principles are called the basic principles and The exceptions to the above principles, the exact application has been set out very clearly in the Act:

1. Evidence must be confined to the matters in issue.

2. Hearsay evidence may not be admitted.

3. The best evidence must be given in all cases.

4. All facts having rational probative value are admissible in evidence,unless excluded by a positive rule of paramount importance.

 

HISTORY OF THE LAW OF EVIDENCE 

Today we have two basic of evidence upon which rules are formulated. One rule is that only the facts bearing importance to the matter being heard should be looked into by the courts and second that all facts that will help the court to reach a decision are admissible unless otherwise excluded like a client confessing to his legal counsel.

Among others from ancient Hindu Period, Vasistha recognised 3 kinds of evidence:

1. Lekhya (Documentary Evidence)

CASE LAWS: Paras yadav and others Vs. State of Bihar14[1] Facts Accused Paras Yadav and two others assaulted Sambhu Yadav at about 8.00 p.m. and gave him Chhura (knife) blow in abdomen. On hulla (noise) being raised some public persons and Sub-Inspector of Police, SH. Dinanth Singh reached the spot while he was on patrolling duty. He recorded the fardbeyan under section 307 IPC., The victim was shifted to hospital where he

2. Sakshi ( Witnesses)

3. Bukhti ( Possession)

4. Divya (Ordeals)

 Though the concept of justice in Islam is that it is a divine disposition, the Mohammedan law givers have dealt with evidence in various forms as indicated by the table below:

1. Oral that may be Direct Hearsay

2. Documentary (Less preferred than oral)

Initially at many places and in many beliefs, the parties to litigation would fight each other and it was believed that divine help will come to the rightful party. Trial by battle has been abrogated only in 1817. The trials by ordeal included a person on bed of hot coals or putting ones hand n boiling water. Anyone who suffered injury was held to be impure and guilty. Though it was believed that providence will not let harm come to the innocent, often it was the priests who manipulated the tests so that certain people could go scot-free.

It was believed that if a guilty man touches the corpse it would show a reaction and then the man should be punished. Accordingly refusal to touch a corpse was also admission of guilt by the accused.

The most cruel evidence law existed in Europe with respect to witch hunts and witch craft. The woman suspected of being a witch was tied up and thrown into a pond. If she floated p, she was a witch and was burned alive at stake. If the woman were to sink to the bottom of the pond, she was not a witch. Unfortunately she would be dead by then but nevertheless innocent in the eyes of law.

succumbed to the injuries at night of 8th February, 1983. The Sessions Court convicted the accused by relying on fardbeyan (Ext. 1) which was treated as dying declaration by the Learned Addl Sessions Judge. After appreciating the entire evidence on record the High Court has upheld the conviction of the appellants. Hence, this appeal by special leave is preferred. Held

Confessions due to torture are not unknown today either.

 

THE MODERN LAW AS IT PREVAILS

The concrete evidence of the ‘law of evidence’ comes from the times of the Britishers. In 1837, an Act was a passed whereby even a convicted person was allowed to give evidence. Subsequently, parties to litigation could be witnesses for their respective sides. Charles Dickens ridiculed this law and questioned the honesty of such witnesses. After all, who will testify against himself or to his disadvantage? Between 1835 and 1855, there are eleven Acts that touch upon the subject of law of evidence. And these were consolidated.

In 1856, Sir Henry Summer Maine, the then law member of the Governor General’s Council was asked to prepare and Indian Evidence Act. His draft was found unsuitable for the Indian conditions. So it fell to Sir James Fitzjames Stephan who became the law member in 1871 to come up with the Indian Evidence Act. His draft bill was approved and came into being as the Indian Evidence Act, 1872 and came into force from 1st September 1872. Before independence, many states had already accepted this law as the law in their respective state. After independence, the Indian evidence Act was held to be the law for all Indian courts.

 

 

THE MODERN LAW AS IT PREVAILS

The concrete evidence of the ‘law of evidence’ comes from the times of the Britishers. In 1837, an Act was a passed whereby even a convicted person was allowed to give

In out view, there is no reason to disbelieve the oral dying declaration and deposed by number of witnesses and as recorded in fardbeyan of deceased Sambhu Yadav. The fardbeyan was recorded by the Police Sub-Inspector on the scene of occurrence itself, within few minutes of the occurrence of the incident. Witnesses also rushed to the scene of offence after haring hulla gulla. The medical evidence as deposed by PW-II also corroborates the prosecution version. Hence, the Courts below have rightly convicted Paras Yadav for the offence punishable under section 302 IPC.

evidence. Subsequently, parties to litigation could be witnesses for their respective sides. Charles Dickens ridiculed this law and questioned the honesty of such witnesses. After all, who will testify against himself or to his disadvantage? Between 1835 and 1855, there are eleven Acts that touch upon the subject of law of evidence. And these were consolidated.

In 1856, Sir Henry Summer Maine, the then law member of the Governor General’s Council was asked to prepare and Indian Evidence Act. His draft was found unsuitable for the Indian conditions. So it fell to Sir James Fitzjames Stephan who became the law member in 1871 to come up with the Indian Evidence Act. His draft bill was approved and came into being as the Indian Evidence Act, 1872 and came into force from 1st September 1872. Before independence, many states had already accepted this law as the law in their respective state. After independence, the Indian evidence Act was held to be the law for all Indian courts.

 

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Gulam Hussain Vs State of Delhi15[2]

Facts In the instant case the Dying Declaration Exhibit PW 22/B was recorded by PW 22 ASI Balwan Singh in the hospital on 14-10-1989 at about 6.30 a.m. after getting an opinion from the Doctor that the injured was fit for statement. The endorsement of the doctor is recorded as Exhibit PW 22/A. Legal Issue: Learned counsel appearing for the appellants submitted that as the statement was recovered by the investigating officer, which was treated as FIR, the same could not be treated as dying declaration and was inadmissible in evidence. Held The submission has no substance because at the time of recording the statement PW 22 Balwan Singh did not possess the capacity of an investigating officer as the investigation had not commenced by then. Such a statement can be treated as a dying declaration, which is admissible in evidence under section 32 (1) of the Evidence Act. After critically scanning the statement of PW 22 ASI Balwan Singh and details of Exhibit PW 22.B, we have no hesitation to hold that the aforesaid statement was voluntarily made by the deceased which was reduced to writing and have rightly been treated as dying declaration after the death of the marker.

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DYING DECLARATION: A NEED FOR CHANGE The substantive law defines the rights, liabilities, disabilities and extent of such rights, liabilities and disabilities etc. of the parties. Determination of rights, liabilities sought to be enforced by a party is adjudicated by a court of law in a judicial proceeding. The adjective law provides for the manner in which and the method by which such adjudication is carried on in arriving at a conclusion as the existence of the right or liability sought to be enforced. The law of evidence is the branch of law, which deals with proof which may, from a practical stand point, be stated as establishing the essential facts relating to the right claimed or liability sought to have enforced by proper legal means to the satisfaction of the court16[3]. The evidence of a fact is that which goes to prove it-something which would satisfy an inquirer of the facts' existence. Courts of law usually have to find that certain facts exist before pronouncing on the rights, duties, and liabilities of the parties and such evidence as they will receive in furtherance of this task is described as 'judicial evidence'17[4]. Judicial evidence consists of the testimony, documents, things, and facts which a court may accept as evidence of facts in issue in a given case. In India the law of evidence as applied in judicial proceedings is mainly contained in the Indian Evidence Act 1872. The general rule is that in order to prove fact best evidence must be furnished and direct evidence is the best evidence18[5]. Hence, as a general rule the admissibility of hearsay evidence is excluded though there are exceptions to it. The theory that hearsay evidence should not -be a Howled is-that the many 'impossible sources of inaccuracy and untrustworthiness which may be underneath bare untested assertion of a witness can best be brought to light and exposed, if they exist, by the test of cross-examination19[6]". Dying declaration is one of the exceptions to the direct evidence stated above and the necessity is for its admissibility. The victim, a prominent witness to the occurrence, being dead in the absence of any other witness exclusion of the dying declaration may lead to the acquittal of the accused resulting in miscarriage of justice. Hence the need for this exception. . It may be stated here that the law requires that the evidence in a court of justice should be given on oath. Oaths, however, it is well known , are not peculiar to courts of justice, nor are they even are incarnation of the municipal law-having been in use before societies were formed or cities built, and the most solemn acts of political and social life: bring guarded by their sanction 20[7]". An Oath is an application of the religious sanction. It is calling the God to witness in aid of a declaration by man. Therefore, nothing but the belief in God, and that He will reward and

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punish us according to our deeds, is necessary to qualify a mall to take an oath. A witness who violates the sanctity of oath by narrating facts untrue to his knowledge exposes himself to be punished fix perjury. Furthermore, the testimony of a witness in a court is liable to be scrutinized and sifted by cross-examination, but the dying declaration is not subject to any of the above safeguards to guarantee its truth. Under the English law the earliest statement of the rule that a declaration by a dying man as to the cause of his death is admissible evidence in a trial for murder or manslaughter is to be found in dictum of Coke in the Star Chamber21[8]. As to the principle underlying the acceptance of dying declaration Lord Eyre C. B. held that: The principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the part is at the point of oath, and when every hope of this world is gone; when every motive of falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth; a situation so solemn and awful is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in the court of justice22[9]. Thus, the rationale is that no one would wish to die with a lie on his lips. Under the English law dying declaration is admissible only in cases of homicide. "Where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declaration23[10]." Therefore, the dying declaration is not admissible in civil cases as also in criminal cases excepting prosecution for homicide. It can be safely said that the dying declaration has been allowed "to stand only upon the ground of public necessity of preserving the lives of the community to bring manslayers to justice. For it often happens that there is no third person present to be an eye witness in other cases of felony, namely, the party injured is himself destroyed24[11]". At the same time the dying declarations are admissible on the sole ground that they were made in extremis. The danger of impending death being equivalent to the sanction of an oath, the declarants are, therefore, considered as standing the same situation as if they were sworn. Hence, were the declarant living he would be incompetent to testify and his dying declarations are inadmissible. The rules for admissibility of dying declaration in India are contained in section 32 (1) of the Indian Evidence Act 187225[12]. It is a statement written or oral of a person who is dead and the same is with respect to the cause of his death or the circumstances resulting in his death. The statement is relevant in any judicial proceedings where the cause of death of that person is in issue. 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

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the statement should be apprehending death at the time of making the statement Thus, it may be noted that, the Indian law as to admissibility of dying declaration makes a departure from the English law inasmuch as it is not limited to the cases of homicide and the restriction of expectation of death has not been recognized. The declaration is admissible irrespective of whether the declarant was in the danger of impending death at the time of making the statement. Thus, the basis which has been considered to have taken the place of Oath and ensuring the truthfulness of the statement has not been made a condition for its admissibility. The court is under an obligation to closely scrutinize all the pros and cons of the circumstances while valuating a dying declaration since it is not a statement made on oath and is not tested on the touch stone of cross- examination. In Ram Nath v. State of Madhya Pradesh26[13] the Supreme Court has held that: It is settled law that it is not safe to convict an accused person merely on the evidence of a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally or physically in a state of compassion and might be drawing upon his imagination while he was making the declaration27[14]. Thus, the Supreme Court has laid a stress, as a safeguard, on corroboration of the dying declaration before it is acted upon. But the same court later, in Kushal Rao v. State of Bombay28[15] has held this observation to be in the nature of obiter dicta and observed that "it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of the conviction unless it is corroborated." In Harbans Singh V. State of Punjab29[16] the Supreme Court has held that "it is neither a rule of law nor of prudence that a dying declaration requires being corroborated by other evidence before a conviction can be based thereon." In State of U. P. v. Ram Sagar Yadav30[17] the Supreme Court has observed: There is not even a rule of prudence which bas hardened into a rule of law that a dying declaration cannot be acted upon unless corroborated. The primary effort of the court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the court may, for its assurance, look for corroboration to the dying declaration. Hence, as a rule of law or prudence there is no requirement as to corroboration of the dying declaration before it is acted upon. The basis for its admissibility is the conviction of the court that it is true. The court may look for the corroboration of a dying declaration if the circumstances under which it is made happen to be vague. The element of vagueness could

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crop up due to several reasons, namely, the inability of the dying man to perceive things properly due to pain or injury inflicted upon him or due to dwindling vision when he is on the verge of death. Another important factor that forms basis of the admissibility of a dying declaration is the morality or religious condition of the dying man, Truth sits on the lips of a dying man who has a sense of impending death. But if the dying man was under no expectation of death, could it be presumed that even then his religious or moral fiber would get strengthened impelling him to speak the truth. We strongly feel that it is not always the case. Truth would sit on the lips of a dying man only if he is under expectation of death. The Indian law does not insist on the element of expectation of death while the English law does. We feel that Section 32 (1) be amended so as to include the word "expectation of death' to make its admissibility more in consonance with the reasons for which it has been enshrined in the Indian Evidence Act.

CONCLUSION:Keeping in view the above mentioned opinions of various courts it is suggested that whenever dying declaration is to be recorded it should be recorded very carefully keeping in mind the sanctity which the courts attach to this piece of evidence. It retains its full value if it can justify that victim could identify the assailant, version narrated by victim is intrinsically sound and accords with probabilities and any material evidence is not proved wrong by any other reliable evidence. It is perfectly permissible to reject a part of dying declaration if it is found to be untrue and if it can be separated. Conviction can be based on it without corroboration if it is true and voluntary. Dying declaration becomes unreliable if it is not as per prosecution version. This has been summed up the Supreme Court:1. It is for the court to see that dying declaration inspires full confidence as the maker of theDying declaration is not available for cross examination2. Court should satisfy that there was no possibility of tutoring or prompting.3. Certificate of the doctor should mention that victim was in a fit state of mind. MagistrateRecording his own satisfaction about the fit mental condition of the declarant was notacceptable especially if the doctor was available.4. Dying declaration should be recorded by the executive magistrate and police officer to recordthe dying declaration only if condition of the deceased was so precarious that no otheralternative 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 declaration. But court cannot be too technical.

A Dying Declaration means the statement of a person who has died explaining the circumstances of his death. It can be said to be a statement made by a mortally injured person, indicating who has injured them and/or the circumstances surrounding their injury. The injured is aware that he/she is about to die and while the declaration is hearsay, it is admissible since it is believed that the dying person does not have any reason to lie.

Nemo moriturus praesumitur mentire. No one at the point of death is presumed to lie." "A man will not meet his Maker with a lie in his mouth" -- is the philosophy in law underlying admittance in evidence of dying declaration. "A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sucrose not status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration"

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 Section 32 of the Evidence Act.

Admissible

It is not always necessary that a dying declaration should be certified by a doctor before reliance could be placed on the same. But then in the absence of any such certificate, the Courts should be satisfied that from the material on record it is safe to place reliance on such uncertified declaration. The basic infirmity committed by the High Court is in assuming that for a dying declaration to be admissible in evidence, it is necessary that the maker of the statement, at the time of making statement, should be under the shadow of death. That is not what Section 32 of the Indian Evidence act says. That is not the law in India. Under Indian law, for dying declaration to be admissible in evidence, it is not necessary that the maker of the statement at the time of making the statement should be under shadow of death and should entertain the belief that his death was imminent. The expectation of imminent death is not the requirement of law. Unless the statement of a dead person would fall within the preview of Section 32(1) of the Indian Evidence Act, there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible (written or oral), the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. Evidential value of the writings contained in diary of deceased-wife is that of a dying declaration. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the Court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking of the cause of the death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husband. There is no format as such of dying declaration neither the declaration need to be of any longish nature or neatly structured. As a matter of fact, perfect wording and neatly structured dying declaration bring about an adverse impression and create a suspicion in the mind of the Court since dying declarations need not be drawn with mathematical precision. The declarant should be able to recollect the situation resulting in the available state of affairs.

Accomplice

Dying Declaration cannot be equated with the evidence of an accomplice or the evidence furnished by a confession as against the maker.

Abrupt Ending/ Incomplete

When the dying declaration abruptly ends, due to deteriorating condition of the patient then this cannot affect the evidentiary value of the dying declaration since it is complete in so far as the appellant’s role is concerned.

Before Police

Better and more reliable methods of recording a dying declaration of an injured person 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 a better method. The practice of Investigating Officer himself recording the dying declaration during the course of investigation ought not to be encouraged and it would be better to have dying declaration recorded by magistrate. But no hard and fast rule can be laid down in this regard. It all depends upon the facts and circumstances of the case.

Before Magistrate

There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when it is recorded by a magistrate, there is no statutory form for such recording. The evidentiary value depends on facts and circumstances of each particular case. The person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. A certification of doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise. This is a well settled rule now, by this Constitution Bench judgment of the Supreme Court.Section 32 of the Indian Evidence Act nowhere states that the dying declaration must be recorded in the presence of a Magistrate or in other words no statement which has not been recorded before the Magistrate cannot be treated to be a dying declaration.

Condition of Patient

A dying declaration must be closely scrutinized as to its truthfulness like any other important piece of evidence in the light of the surrounding facts and circumstances of the case, bearing in mind, on one hand, that the statement is by a person who has not been examined in Court on oath and, on the other hand, that the dying man is normally not likely to implicate innocent persons falsely. When the dying declaration is recorded, the person who records the statement is consciously making the statement understanding the implications of the words he uses and the responsibility of the Court is greater in holding that it was so made when in fact it is found that the man dies a few minutes afterwards.

Where the medical testimony is clear that the deceased could not make the statement (dying declaration) after the receipt of injuries, the ocular version be disbelieved.

Corroboration

It is well settled that dying declarations shall have to be dealt with due care and upon proper circumspection. Though corroboration thereof not essential as such, but its introduction is otherwise expedient to strengthen the evidential value of the declaration. Independent witnesses may not be available but there should be proper care and caution in the matter of acceptance of the dying declaration as a trustworthy piece of evidence. It is rarely found in a criminal case that the description of the incident and injury described in the dying declaration gets full corroboration from the medical evidence contained in the injury report and the post-mortem report. In such cases, still the dying declaration can be relied upon. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

Declarant Survives

It is trite law that when the maker of a purported dying declaration survives, the same is not statement u/s 32 of the Indian Evidence Act but is a statement in terms of Section 164 of the Cr.P.Code. It can be used under section 157 of the evidence Act for the purpose of corroboration and under Section 155 of the evidence Act for the purpose of contradiction.

English Law vis-a vis Indian Law

There is a distinction between the evaluation of a dying declaration under the English Law and that under the Indian Law. Under the English Law, credence and the relevancy of a dying Declaration is only where a person making such a statement is in a hopeless condition and is expecting imminent death. So under the English Law, for its admissibility, the declarant should have been in actual danger of death at the time when they are made, and that he should have had a full apprehension of this danger and the death should have ensued. Under the Indian Law, the dying declaration is relevant whether the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English Law, the admissibility rests on the principle that a sense of impending death produces in a man’s mind the same feeling as that of a conscientious and a virtuous man under oath. The general principle on which this species of evidence are 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 only the truth. If evidence in a case reveals that the declarant has reached this state while making a declaration then within the sphere of Indian Law, while

testing the credibility of such dying declaration, weightage can be given, of course, depending on the other relevant facts and circumstances of the case.

Infirmities

Where the testimony of the eye-witness is inconsistent with the medical evidence, it is unsafe to rely upon such dying declaration as when the dying declaration according to the prosecution has been made at two different places but from the doctor’s evidence it is found that it was improbable that the deceased would have been in a position to walk or to speak, the dying declaration be disregarded. Mere non-mention of the names of certain eye-witnesses in dying declaration will not diminish the value of their testimony. When there are serious discrepancies in the account given by the witnesses, it is unsafe to place reliance on the dying declaration. If the evidence of eye-witnesses was to be rejected on the ground that it was inconsistent with the dying declaration then it would, in the circumstances not necessarily follow that the dying declaration was also unreliable and unworthy of credence. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming safe basis of conviction.

Necessity

A dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. While it is in the nature of an exception to the general rule of forbidding hearsay evidence, it is admitted on the premises that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated.

Oath

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; a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice.

Oral Dying Declaration

It can be relied upon. When the doctor was available there was no justification for the Police officer to record the dying declaration.

Test of ReliabilityThough in law there is no bar in acting on a part of the dying declaration, it has to pass the test of reliability. Section 32(1) of the Indian Evidence Act 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. A dying declaration made by a person on the verge of his death has a special sanctity as that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding circumstances leading to his death. But at the same time the dying declaration like any other evidence has to be tested on the touchstone of credibility to be acceptable. It is more so, as the accused does not get an opportunity of questioning veracity of the statement by cross examination. The dying declaration if found reliable can form the basis of conviction.

Two Dying Declarations

When there are two dying declarations and there was inconsistency between them and there was no other evidence evidence to prove the prosecution case, it was not safe to act solely on the said declarations to convict the accused persons.

Conclusion

A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in case in which the cause of that person's death comes into question, becomes admissible under section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case.

"Nemo moriturus praesumitur mentire. No one at the point of death is presumed to lie." "A man will not meet his Maker with a lie in his mouth" -- is the philosophy in law underlying admittance in evidence of dying declaration. "A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of

the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost sucrose not status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration"--is the statement of law summed up by the Supreme Court in Kundula Bala Subrahmanyam v. State of A.P. , (1993) 2 SCC 684) and reiterated in Laxmi v. Omprakash (AIR 2001 SC 2383. ) The Supreme Court further added – ‘such a statement, called the dying declaration, is relevant and admissible in evidence 'provided it has been made by the deceased while in a fit mental condition'.

The above statement of law, by way of introduction to this chapter is the crux of the whole law of evidence regarding dying declaration. The law has become now well settled. Dying declaration is admissible in evidence. A dying declaration, if found reliable, can form the basis of conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence.

1.2 Meaning of Dying Declaration

In layman’s language, we can say that dying declaration is the statement made by a person who is dying. But in legal sense it has got a different meaning. It is not that all the statements made by a dying person can be termed as dying declarations. It is only that statement of the deceased, which he made before his death and which shows the cause of death or the circumstances leading to his death can be termed as dying declaration, provided the death of that person comes in question before a judicial authority.

1.3 Dictionary Meaning of Dying Declaration

None of the language dictionaries define the word ‘dying declaration’ jointly but the words dying and declaration has been shown separately the literal meaning of which a declaration or statement which is going to die. But if we go by these meanings the whole meaning of dying declaration will loose its significance. Therefore this meaning cannot be assigned to the term dying declaration.

1.3 Meaning given by Law Lexicons

Wharton’s Law Lexicon, quoting from R v. Perry (1909)2 K.B. 697 has stated about dying declaration as follows: -

‘Deathbed or dying declarations are constantly admitted in evidence. The principle of this exception to the general rule is founded partly on the lawful situation of the dying person, which is considered to be as powerful over his conscience as the obligation of an oath, and partly on a supposed absence of interest in a person on the verge of the next world, which dispenses with the necessity of cross-examination. But before such declaration can be admitted in evidence against a prisoner, it must be satisfactorily proved that the deceased, at the time of making them, was conscious of his danger and given up all hopes of recovery.'

Black’s Law Dictionary defines dying declaration as follows: -

Dying declaration means the statement made by a person who believes that he is about to die, in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death or in reference to the person who inflicted such injuries or of a person who is charged with or suspected of having committed them. Such statements are admissible in evidence as an exception to the hearsay rule in a trial for homicide and occasionally, at least in some jurisdiction in other cases where the killing of the declarant is the crime charged to the defendant.

The dying declaration is thus the statement by the person as to cause of his death or as to any of the circumstances relating to death. The words “dying declaration” mean a statement written or verbal of relevant facts made by the person who is dead. Statements made by a person who believes he or she is about to die, concerning the cause or circumstance surrounding his or her impending death.

1.5 CONTENT AND SCOPE:

Under common law, a statement made by a person on the point of death is admissible in evidence even if it is hearsay. That is, if X told Y that Z had stabbed him, then if Y told a court under oath what X had said, this may be admissible evidence against Z. The reason this is acceptable, while other forms of hearsay are not, is that it is assumed that a person who is dying, and knows this to be the case, is unlikely to lie. To be admissible, the declaration must be made by a person who has a genuine believe that death is imminent. The believe need not necessarily be reasonable, and he may subsequently recover. Of course, if he does then he would be expected to testify himself.

It becomes relevant under section 32 (1) of the Evidence Act. It is an exception to the rule of hearsay and makes admissible the statement of the deceased whether the death is homicidal or suicidal provided the statement relates to the cause of death or exhibits circumstance leading to his death. Greater solemnity and sanctity are attached to the words of a dying man because a person on the verge of his death is not likely to tell lies or to concoct a case as to implicate an innocent person but the court has to be on the guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The court shall also be satisfied that the deceased was in a fit state of mind to make the statement after he had a clear opportunity to observe and identify the assailants. Once the court is satisfied about its

authenticity and voluntariness, the court can found a conviction on the basis thereof in the absence of any corroboration.

If the statement has been made when the deceased was under the expectation of death, it becomes a dying declaration in evidence after her death. Nonetheless, even if she was no where near the expectation of death, still such statement would become admissible under section 32(1) of the Indian Evidence Act, 1872; though not as dying declaration as such, provided it satisfies one of the two conditions set forth in section 32(1) of the Act.

The phrase 'dying declaration' is not used in s 32 of the Indian Evidence Act. The head note of the relevant section reads as cases in which the Statement of Relevant Fact by Person is who is dead or cannot be found etc, is relevant. The section as a whole deals with the relevant facts originating from a person who is dead or who cannot be found or who has become incapable of giving of evidence or whose attendance cannot be procured without an amount of delay or expense, which, under the circumstances of the case, the court considers, unreasonable. But, while referring to s.32 (1) the phrase is normally used to explain the essence of the provision.

The phrase is quite popular because of judicial usage and endorsement in a number of cases, which continues even today. Seemingly, the attributed significance to the dying declaration as a piece of evidence is because of its hearsay character. Speaking on Indian context, due to unabated occurrence of heinous offences like dowry related deaths and homicides, the dying declaration as a very effective means of proving complex and hidden facts has acquired phenomenal importance.

Dying declaration considered as hearsay because the person who made such a statement is not available before the court to depose. In addition, the person who heard from such a dead person and who appears before the court to depose the facts in question is not in a position to vouchsafe whether those facts which he heard, from the dying person are true or not.

At the outset, it is necessary to note, that a dying declaration as envisaged by s.32(1) need not necessarily be from a person who is dying at the time of making the statement. In addition, at the time of making such declaration, it is not necessary that he or she should know that there is impending death. In other words, at the time of making such declaration, there is no legal mandate that such person must entertain expectation of death.Moreover, dying declaration can be considered as relevant evidence in both criminal and civil proceedings whenever the cause of his or her death comes into question. However, 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 and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered.This provision has been made by the legislature; advisedly; as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence which

has not been tested by cross-examination, is not admissible. The purpose of cross-examination is to test the veracity of the statements made by a witness. In the view of the legislature, that test is supplied by a solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life. At such serious and solemn moment, that person in not expected to tell lies and secondly; the test of cross-examination would not be available. Thus, a statement made by a dying person as to the cause of death, has been accorded by the legislature; a special sanctity which should, on first principles, be respected unless there are clear circumstances brought out in the evidence to show that the person making the statement was not in expectation of death, not that the circumstance would affect the admissibility of the statement; but only its weight. It may also be shown by evidence that a dying declaration is not reliable because it was not made at the earliest opportunity, and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood, was ebbing away; or because the statement has hot been properly recorded.

It is, as if the maker of the dying declaration was present in the court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities by such as render the dying declaration so infirm as to prick the conscience of the court, the same may be refused to be accepted as forming safe basis for conviction. In the case at hand, the dying declarations are five.

However, it is not the number of dying declarations, which will weight with the court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the court would not be persuaded to act thereon merely because the dying declarations are more than one and apparently consistent.

The admissibility is founded on principle of necessity.A dying-declaration not being a deposition in Court, neither made on oath nor in the presence of the accused nor therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinize all the relevant attendant circumstances. [See Tapinder Singh v. State of Punjab – 1971 (1) SCJ 871] One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has

relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborate evidence lending assurance to the contents of the declaration refuse to act on it.

In Bhagwan Das v. State of Rajasthan - AIR 1957 SC 589] the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying-declaration by itself insufficient for sustaining a (SIC)con charge of murder. In Kako Singh @ Surendra Singh Vs State of M.P. -AIR 1982 SC 1021 the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made coherent statement. In Darshan Singh Vs. State of Punjab - AIR 1983 SC 554 this Court found that the deceased could not possibly have bene in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for nay purpose and had to be excluded from consideration. In Mohar Singh and Ors. etc. Vs. State of Punjab - AIR 1981 SC 1571 the dying declaration was recorded by the investigating officer. This Court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or any one else present.

30. A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by investigating officer has been discouraged and this Court has urged the investigating officers availing the services of Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was o other alternative left except the statement being recorded by the investigating officer or the police officer later on relied on as dying declaration. In mMunnu Raja and Anr. Vs. The State of Madhya Pradesh - AIR 1976 SC 2199, this Court observed - "investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of an investigation ought not to be encouraged". The dying declaration recorded by the investigating officer in the presence of the doctor and some of the friends and relations of the deceased was excluded from consideration as failure to requisition the services of a Magistrate for recording the dying declaration was not explained. In Dalip Singh Vs. State of Punjab AIR 1979 SC 1173 this Court has permitted dying declaration recorded by investigating officer being admitted in evidence and considered on proof 'that better and more reliable methods of recording dying declaration of injured person' were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a statement which was a bit doubtful.

CHAPTER –02

ENGLISH LAW AND DYING DECLARATION

A dying declaration under English Law 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 or manslaughter. In cases of homicide, statements made by a person, since deceased, are admissible to prove the cause and circumstances of the man's death. Such statements are called 'dying declarations'. But such state¬ments under the English law should be made when he was in "settled, hopeless expectation of imminent death". In Halsbury's Laws of England, the law as to dying declaration has been stated thus¬:

Upon the trial of an indictment for murder or manslaughter, and only in such cases a verbal or written statement made by the deceased person whose death is thus subject of the charge although that statement was not upon oath and was not made in the presence of the defendant, is admissible in evidence either against or for the defendant, provided that it was made at a time when all hope of living had left the mind of the declarant that is, the declarant must have entertained a settled hopeless expectation of death, death being imminent or impending, but he need not have been expecting immediate death. So Many cases have been decided which illustrate the application of this principle, and show in what circumstances dying declarations have been held to be admissible or inadmissible in evidence. Dying declaration is nothing but a statement, written or oral, made by a person who is dead. Such statement is relevant under section 32.

Their admissibility rests on the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath—Nemo moriturus praesumuntur mentiri. "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 induced by the most powerful considerations to speak the truth; a situation so solemn and so awful is considered by the law as creat¬ing an obligation equal to that which is imposed by a positive oath administered in a court of justice"

The fact that the deceased believed that his death was impending may be shown by statements made by him at the time, or by evidence that his physical condition or the nature of the wounds inflicted upon him was such that he must have so believed A dying declaration, which on the face of it is incomplete, is inadmissible. The question whether the deceased had such a belief in impending death as to make a declaration admissible as a dying declaration is for the judge and not for the jury. A statement made in the first instance under such circumstances as to render it inadmissible as a dying declaration may be admitted as evidence, if it is afterwards repeated by the deceased or by some other person at his request and assented to by him under circumstances which would have rendered it admissible, if it had been then made for the first time. It is not objection to the admissibility of a dying declaration that it was made in answer to leading questions, though that fact may affect its weight as evidence. The constant reiteration of the words "I am dying" by a woman who had taken poison was held to be insufficient "as the

expression of the real idea of impending death" [R v. Abbot, 67 JP 151] but "I am dying, look to my children", was held sufficient [R v. Goddard, 15 Cox 7],

The pales of a considerable interval between the making of the declaration and the death of the deceased does not render it inadmissible if at the time when it was made he had the apprehension that death was impending. A dying declaration by a person who is, by law, incompetent, as a witness is inadmissible. The Indian law on the subject differs materially from the English rule.

2.1 DISTINCTION BETWEEN ENGLISH AND THE LAW IN INDIA

The first clause 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, that is, murder or manslaughter, where the death of the deceased is the subject of the charge and the circumstances of the death are the subject of the dying declaration. Both in England and America, evidence of this description (dying declarations), is not admissible in any civil case and in criminal cases it is not admissible upon charges other than homicide; or as to homicides other than that of the declarant. On the other hand, under the Indian Evidence Act the statement is relevant whatever may be the nature of the proceeding, in which the cause of the death of the person who made the statement comes into question. 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 the should then have had a full apprehension of his danger and lastly, that death should have ensued. The existence of the latter condition is of course as necessary under that Act as under the English rule, inasmuch as the statement is admissible only in cases in which the cause of the death of the person who made it comes into question. But, under this Act, the statement is relevant whether the person who made it was or was not at the time when it was made, under expectation of death.

Under the Indian Law for a 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. [Poolakkal Klinchli v State 1986(2) Crimes 225 (Ker) (DB)] Therefore, whether the declarant was or was not in actual danger of death, and knew or did not know himself to be in such danger, are considerations, which will not affect the admissibility of this kind of evidence in India. But these considerations ought not to be laid aside in estimating the weight to be allowed to the evidence in particular cases. Under the Law which was in force prior to this Act (s 371, Act 25 of 1861) s 29, Act 2 of 1865, and which with one modification relating to the entertainment by the deceased of hopes of recovery was similar in this respect to the English law, it was held that before a dying declaration could be received in evidence, it must be distinctly found that the declarant knew or believed at the time he made the declaration, that he was dying or likely to die. Of course, 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, [Mati Singh v State AIR 1964 SC 900] though it may

be relied on under s. 157 to corroborate the testimony of the complainant when examined in the case. The statutory provision in s. 164 Criminal Procedure Code should be followed if the statement in inculpatory and in the nature of a confession.

Hence, under the English Law, it is essential to the admissibility of dying declaration that the declarant must have entertained a settled hopeless expectation of death. But he need not have been expecting immediate death. Indian law does not put any such restrictions. It is not required under Indian law that the maker should be under the expectation of imminent death, nor is it restricted to the case of homicide only. Before a dying declaration may be admitted, it must be proved that the maker is dead. If the maker survives, it may be used to corroborate or contradict his statement.

2.2 SUMMARY: (1) Under the Indian Law of Evidence ,a dying declaration is relevant whether the person who made it was or was not,at the time when it was made under expectation of death that is, it is immaterial whether there existed any expectation of death at the time of the declaration. In a Calcutta case it has been observed that the necessity of recording a dying declaration arises only when the hopes of life are given up [Tehal v. S, AIR 1979 SC1347]. . It is common sense that there is no need to record dying declaration until that stage is reached or it is apprehended that a person will not survive.1. However, in English law the position is different, it is held that before a dying declaration was admitted it should be proved that the person making it knew that he was dying or believed himself to be in danger of approaching death? 2. The admissibility of dying declaration is not confined to the case of homicideonly, but it would be admissible, whatever the charge may be, provided the cause ofdeath comes under enquiry: In India in a charge of rape, a woman's

dying declaration is admissible as to the circumstances of the transaction resulting inher death. In England a dying declaration is not admissible to prove rape [R v. New¬ton, 1 F & F 641], or robbery [R v. Lloyd, 4 C & P 233]. The evidence of this description (dying declarations), in English law is not admissible upon charges other than homicide; or as to homicides other than that of the declarant.3. A dying declaration is admissible in this country in civil suits, under the terms,"whatever may be the nature of the proceeding in which the cause of death comes intoquestion." Thus in a suit for damages for death caused by a railway accident due tothe negligence of the company, the declaration of the passenger killed, as to the cause of his death is admissible. Under English law dying declaration is not admissible in any civil case and in criminal cases it is not admissible upon charges other than homicide;

These are the principal points of distinction between English and Indian laws. Therefore, English authorities should be very cautiously referred to in deciding cases. A dying declaration under the Act assumes a character very widely different from what it is under the English law, as it is relevant under it whether the person who made it was or was not when it was made under expectation of death, the rule of English law restricting the admissibility of dying declarations to

cases of homicide had no application in India. The nature of proceeding in which the cause of death comes into question need not necessarily be a charge of murder or homicide. It may be a charge of a different nature or it may be a civil action

It is submitted that although the Act has made a great departure from the English law in regard to the conditions of admissibility of dying declarations, the greatest cau¬tion must be exercised in considering the weight to be given to this species of evi¬dence on account of the existence of many circumstances which may affect their truth and the principles of English law should be adhered to as far as possible. Nothing short of a settled, hopeless expectation of imminent death in the mind of the declar¬ant, would induce an English judge to admit such evidence. Even a sense of impend¬ing death does not always rouse the same feelings in every one and there may be per¬sons who cannot get rid of the passions of anger or revenge even in the moment of death.

It should be borne in mind that such a statement is not an oath; neither can there be any cross-examination. Moreover the statement is generally made at the time when exhaustion and strong physical pain deaden all feelings and confuse the declarant’s intellect. Hence when dying declarations are received, their weight must depend greatly on the circumstances under which they are made. Their creditability and value will also vary with the circumstances of each particular case and the nature of the recording

Estoppel' in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative officers, or by his own deed, acts, or representations, either express or implied."[1]

This term appears to come from the Old French estoupail (or a variation), which meant "stopper plug", referring to placing a halt on the imbalance of the situation. The term is related to the verb "estop" which comes from the Old French term estopper, meaning "stop up, impede."