Indian Evidence Act- Dying Declaration (Section 32)

Dying Declaration

Introduction

 

Section 32 deals with dying declaration in Indian Evidence Act. However section is not exclusively deals with dying declaration as there are other cases involved. Heading of section 32 says “Cases in which statement of relevant fact by person who is dead or cannot be found etc, is relevant”.

Along with dying declaration, section 32 deals with statements by a person who cannot be found.

 

Section 32

 

It deals with two aspects. First, it enlist types of persons whose statements can be proved. Second, in which condition such statement can be relevant.

It provides that statement of certain class of person can become relevant. What are those classes ?

·        Persons who are dead

·        Persons who cannot be found

·        Persons who have become incapable of giving evidence

·        Persons whose attendance cannot be procure without an amount of delay or expenses

 

Conditions under which statements are relevant

 

When it relates to cause of death

 

Clause 1 deals with dying declaration and is most important part of this section. It states that when statement is related to cause of death, then such statement would be admissible.

Before such statements are admitted in evidence, it must be proved that who made the statement is dead and gone and therefore cannot appear before the Court unless this fact is proved.

Dying declaration in a way is exception to general rule. When we want to prove something, we have to call a witness. This is general rule. However, in case of dying declaration, some statements can be proved even without calling witness. In case of death it’s impossible to call dead man. Hence there is a provision to prove a statement of dead person.

Dying declaration is in fact is surviving declaration. Declaration dies and statement survives. It is declaration of dead person.

Now a question, if person is contemplating (feeling) death, gives some declaration or statement and later miraculously survives. Can a testimony of such person be proved as dying declaration?

MP High Court in Surjit Kaur V State held that it can be relevant, though if may affect the weight to the statement. In Sunil Kumar V State, Supreme Court held that when the person making dying declaration survives, his dying declaration can be treated as statement u/s 164 of CrPC and can be used either for corroboration or contradiction when he is examined as witness.

Why dying declaration is important?

First,  You won’t leave this world with a lie. Will you?  It is almost always true that statement you give on death bed or on the verge of dying are truth, and hence they are taken on it’s face value in court. There is value attached to such statements

Second, there is no reason that you would hide the name of real criminal.

Third, you will not want to implicate innocent person on the verge of dying. Or may be!

Are there any problems with dying declaration?

YES.

First, there is no oath administered like physical witness.

Second, there is not cross examination of witness as it is impossible.

Third, behaviour and manner of answering question before the court is a vital aspect in law because it gives opportunity to judge the character of witness to parties, judge etc. This is not the case in dying declaration and hence it is not accepted as rules

How then should dying declaration be valued?

Considering merits and demerits, there is no way to evaluate the truth of statements given by dead person. Hence dying declaration are considered as weak evidence. Such evidence are typically corroborated by other evidence.

The value of dying declaration is also depend upon state of mind  and state of body of a person who give  dying declaration. Other aspects involved to whom the statements were made, who recorded the statement and whether statement is recorded properly.

Some elements of dying declaration

First, statement given in dying declaration must be related to reason of death. This issue came before supreme court in case of Narayan Singh Vs State of Bihar.

Second, Statement must be made in a transaction which has resulted in a death, This was held in famous case of Pakhla Narayan Swamy Vs Emperor.

Third, declarant must be dead after making a statement.

When statements are made in the course of business

 

When statements are made in the normal course of business are also become relevant. For example as a routine, doctor does check-up of the patient and maintain the diary or register. These statements in register can be proved in court after death of doctor. For example, doctor note down date of birth of say ‘X’ in his register and there is dispute later about date of birth then doctors statement in register would be relevant.

When statements are made against interest

 

Clause 3 lays down that when statement against the interest of the maker are made, such statement would be relevant. Ordinarily one would not make a statement against himself or his interest. So when such statements are made these have substantial truth value. Therefore law allows them to be proved if person making such statement is among the category of 4 types of person which we have seen earlier.

These statements had to be against pecuniary interest, proprietary interest or interest in criminal prosecution or suit for damages.

When statements are related to existence of relationship

 

Do you watch Zee TV? In one of the serial, only husband(H)  and wife(W) know ‘X’ is their daughter. Nobody in entire world knows that X is daughter of H and W.

If in above case very close friend of W comes to know about this fact, and make a statement that X is daughter of H and w and later dies, such statement will be relevant.

When any person know about existence of any relationship by special means of knowledge and he makes a statement in that respect and later dies, such statement will be relevant under clause(5) of section 32.

Thing to note here is that such statement should be made before any dispute has arisen then only such statements would be valid.

 

When Statements are written about pedigree

 

This clause is similar to clause 5 but differs in certain respect. The statement will be relevant when

1)   It relates to existence of any relationship(By blood, marriage or adoption)

2)   Between deceased person

3)   And most importantly such statements must be recorded either in will or other deed relating to the affair s of the family or tombstone or family portrait.

Let’s understand some difference between clause 5 and clause 6. Under clause 5, special knowledge is required whereas under clause 6 no such knowledge is required. Under clause 5 there is not need of any written statement, but under clause 6 statement s must be recorded.

In both the clause 5 and 6 statement must and must be recorded before the dispute has arisen

 

Statements made in document relating to transaction

 

Clause 7 provides that any statement contained in any deed, will or other document which related to such transaction as mentioned in 13(a).

13(a) provides for transaction by which any right or custom was created, claimed, modified, recognised asserted or denied.

Any document containing the above transaction can be proved if maker is dead, cannot be found etc.

 

Statements made by several persons

 

Opinions relevant to matter in question are admissible when such persons  are dead or incapable of giving evidence and they may be proved by the testimony of other person.