CHANAKYA NATIONAL LAW

UNIVERSITY

FINAL DRAFT OF

LAW OF EVIDENCE

ON

AIR 1964 SC 900(U/S 32 IEA)

SUBMITTED TO: SUBMITTED BY:

Dr. Meeta Mohini Abhishek Kumar

(Faculty of Law of Evidence) Roll no - 1804

Semester – 4th

Session – 2017-2022
 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A., LL. B (Hons.) Project Report entitled

“AIR 1964 SC 900(U/S 32 IEA)” submitted at Chanakya National Law University is an

authentic record of my work carried out under the supervision of Dr. Meeta Mohini. I have

not submitted this work elsewhere for any other degree or diploma. I am fully responsible for

the contents of my Project Report.

SIGNATURE OF CANDIDATE
NAME OF CANDIDATE: ABHISHEK KUMAR
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA.
 ACKNOWLEDGEMENT

I would like to thank my faculty Dr. Meeta Mohini whose guidance helped me a lot with

structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely

with materials throughout the project and without whom I couldn’t have completed it in the

present way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped

me out at every stage of my project.

THANK YOU,
NAME: Abhishek Kumar
COURSE: B.B.A., LL.B. (Hons.)
ROLL NO: 1804
SEMESTER – 4th
INDEX

INTRODUCTION
 AIMS AND OBJECTIVES
 HYPOTHESIS
 RESEARCH METHODOLOGY
 SOURCES OF DATA

1. MOTI SINGH & ANR VS STATE OF UP

2. SECTION 32 OF IEA
3. DYING DECLARATION
4. EXCEPTION OF DYING DECLARATION
5. CONCLUSION

BIBLIOGRAPHY
 INTRODUCTION

Section 32 and the subsequent section 33 deal with the relevancy of statements made by
persons who cannot be called witnesses. Section 60 of the Evidence Act insists that oral
evidence must, in all cases, whatever, be direct. In other words, hearsay evidence is no
evidence. But under section 32 hearsay evidence is admissible so it is an exception to section
60.

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot
be found, or who has become incapable of giving evidence, or whose attendance cannot be
procured without an amount of delay or expense which, under the circumstances of the case,
appears to the court unreasonable are themselves relevant facts.

A statement by a person who is conscious and knows that death is imminent concerning what
he or she believes to be cause or circumstances of death that can be introduced into evidence
during a trial in certain cases.

A dying declaration is considered credible and trustworthy evidence based upon the general
belief that most people who know that they are about to die do not lie.

AIMS AND OBJECTIVES

The aim of the researcher is:

 To know about the case Moti Singh and another vs State of UP.
 To find out about dying declaration.

HYPOTHESIS:
The researcher believes that:

 Dying declaration is evidence.

 Oral dying declaration is also relevant
 RESEARCH METHODOLOGY

For this study, primary research method was utilised. Various articles, e-articles, reports and
books from library were used extensively in framing all the data in appropriate form,
essential for this study. The method used in writing this research is primarily analytical.

SOURCES OF DATA:
The researcher has relied on both primary and secondary sources to complete the project.
1. Primary Sources: Acts.
2. Secondary Sources: Books, newspapers and websites.
MOTI SINGH & ANR VS STATE OF UP
Seven persons including the appellants were convicted for murder. Relying upon the dying
declaration 'of one G, the High Court acquitted five of the accused but convicted the
appellants. G had been injured during the occurrence and had been taken to the hospital
where his dying declaration was recorded. He left the hospital and died 20 days later. Before
any post-mortem examination could be held, his body was cremated. The appellants
contended that the dying declaration was inadmissible and that they were entitled to an
acquittal.

Held, that the dying declaration was inadmissible in evidence. There was no evidence on
the record as to what caused the death of G. The mere fact that G had received two gunshot
injuries during the occurrence which in the opinion of the doctor were dangerous to life was
not sufficient for holding that G must have died on account of these injuries.

Under s. 32 (1) of the Evidence Act the Statement of a person who has died is relevant only
when it relates to the cause of his death or to any of the circumstances of them transaction
which resulted in his death. When it was not established that G had died as a result of the
injuries received at the incident, his statement did not relate to the cause of his death or to the
circumstances of the transaction which resulted in his death and did not fall within s. 32 (1).

Appeals by special leave from the judgment and order dated February 2, 1962, of the
Allahabad High Court in Criminal Appeals Nos. 157 and 158 of 1961 and Criminal Revision
No. 384 of 1961.
A. S. R. Chari, Ravinder Narain, J. B. Daduchanji and 0. C. Mathur, for the appellants.
G. C. Mathur and C. P. Lal, for the respondent. 1963. January 23. The judgment of the Court
was delivered by RAGHUBAR DAYAL, J.-Moti Singh and jagdamba Prasad, appellants,
together with five other persons, were convicted by the Sessions judge of Unnao of offences
under s. 148, 302 read with 149 and 307 read with 149 I. P. C. Each of them was sentenced to
life imprisonment under s. 302 read with s. 149 1. P. C.
On appeal, the High Court acquitted the other five persons of the various offences. The
conviction of the 'appellants under s. 148 1. P. C., was also set aside, but their conviction for
the offences under ss. 302 and 307 read with s. 149 were altered to conviction for offences
under ss. 302 and 307 read with s. 34 1. P. C. On the application of Krishna Kumar, brother
of one of the persons who had been murdered, the High Court enhanced the sentence of the
appellants for the offence of murder to death. Moti Singh and jagdamba Prasad have
preferred these appeals respectively, after obtaining special leave from this Court. It is not
necessary to detail the facts of the incident in which several persons lost their lives and for
participation in which incident the appellants were convicted, as we are of- opinion that the
conviction cannot be maintained on the basis of the evidence on record as appreciated by the
High Court.
All the eye witnesses of the incident deposed in practically identical terms about the progress
of the incident in which it was alleged that the members of the accused party fired with guns
and pistols both from inside and outside the room on one side of the passage and also from
the seori (cattle shed) on the other side of the passage when the victim party passed along the
passage. The High Court felt doubtful about the firing of the shots from the cattle shed, and
consequently acquitted Sheo Shankar, jagjiwan and Shankar Dayal who were said to be
mainly the persons who had fired from that place.
The High Court, however, believed the prosecution version of the firing from the room and
later from the' platform. It appears that the, High Court believed this version because the
prosecution witnesses stated so and because the statements exhibits Kha 5, Kha 8 and Kha 75
mentioned about the shots being fired from those places. Statement ex. Kha 75 does not say
so. It says that firing took place from the front and that these people fired shots with guns.
Statements- exs. Kha 5 and Kha 8 were made by Ram Shankar and jageshwar, who were
examined as Court-witnesses 1 and 2 respectively. Ram Shankar and jageshwar have been
disbelieved by the Sessions judge and it appears that the High Court did not take any more
favourable view of their deposition in Court. It however seems to have relied on their
statements exs. Kha 5 and Kha 8 respectively, recorded by a Magistrate at the hospital. In this
it was in error. Those statements could have been used only in either corroborating or
contradicting the statements of these Witnesses in Court. If those witnesses were not to be
believed, their previous statements could not be used as independent evidence in support of
the other prosecution evidence.
In considering the complicity of individual accused in the firing from the room and later from
the chabutra, the High Court said that Raj Kumar, P. W. 1 1 and Chandra Kumar, P. W. 15,
were partisan witnesses whose evidence had to be examined with caution, that Shyam Lal, P.
W. 12 and Gopi Singh, P. W. 14, were not quite independent witnesses, and that there was
nothing particular against Lal Singh, P. W. 17, and Sardar (P. W. 16) who had received gun
shot injuries. It further said :
 "While considering the evidence of the prosecution witnesses we have to bear in mind
the rule that the evidence has to be examined with caution".
It also considered it necessary to refer to the statements exs. Kha 5 and Kha 8 which, as
already stated, could not be used as substantive evidence, and the statement ex. Kha 75 of
Gaya Charan, deceased.
The High Court fully relied on the alleged dying declaration ex. Kha 75 of Gaya Charan and
considered it to be a complete account of the occurrence and the assailants as seen by him.
The view of the High Court about this statement of Gaya Charan may be quoted :
"The dying declaration Ex. Ka-75 (Kha 75) of Gaya Charan appears to be a complete
account of the occurrence and the assailants as seen by him, for he stated : 'Lallan,
Chandu, Raj Narain, Sardar, Sri Prakash were going to the bazar. Shots were fired from
front, jagdamba, Phunnar, Moti and one man whom I know by face fired gunshots on
us'. The statement does not show that Gaya Charan did not see all the assailants who
fired gunshots. It -is therefore not possible to hold that any accused not mentioned in
the dying declaration of Gaya Charan had also fired shots. At the same time we see no
reason to hold that the dying declaration of Gaya Charan is not true. jageshwar
identified the accused Jagdambaamong the assailants. The evidence of the eye-
witnesses has therefore to be judged in the light of the statements Exs. Kha 5 and Kha-8
of Ram Shankar and jageshwar and the dying declaration Ex. Kha 75 of Gaya Charan."
Now, the evidence relied on by the High Court for the conviction of Jagdamba Prasad
consists of the statements of the prosecution -witnesses, the statement of jageshwar I, K. Kha
8 and the alleged dying declaration of Gaya Charan Ex. Kha 75. It also took into
consideration the fact that he remained absconding till his arrest on September 30, 1960, the
incident having taken place on February 9, 1960. The evidence relied on for the conviction of
Moti Singh consists of the dying declaration Ex. Kha 75 of Gaya Charan and, presumably,
also of the statements of the I prosecution witnesses, as the High Court has not specifically
stated so. It has said "We have also no doubt about the participation of the accused Moti in
the firing of shots from the east of the galiara. He is named in the dying declaration Ex. Kha.
75, of Gaya Charan."
With regard to the criticism for the accused about the indefiniteness of the description of
Moti in the dying declaration of Gaya Charan when there were three persons by the name of
Moti in the village, the High Court said :
"We have no doubt that he is mentioned in the dying declaration."
How they arrived at that conclusion is not clear from the judgment. The three persons with
the name of Moti belonged to different castes. The case. of Moti is not mentioned in the
dying declaration of Gaya Charan. It is therefore not possible to state with any confidence
that Gaya Charan must have referred to Moti Singh, 'the appellant, by the name Moti. in
acquitting Sheo Darshan Singh, the High Court said that though there were strong
circumstances against him, he was not mentioned in the dying declaration of Gaya Charan
and that therefore his presence among the assailants became doubtful. In acquitting Avadh
Behari it again said that his name was not mentioned in the dying declaration of Gaya
Charan.
Again, in fixing the number of persons who had taken part in the firing from the room and the
platform, the High Court relied on Exhibit Kha 75, the alleged dying declaration of Gaya
Charan as the deciding factor. It said "The number of assailants mentioned in the dying
declaration Ex. Kha. 75 is only four., It is doubtful if the assailants were more than four in
number. No offence under section 148was therefore committed and section 149 I.P.C. is not
applicable."
It is clear from the above that the High Court mainly relied on the alleged dying declaration
of Gaya Charan for determining that Moti Singh and jagdamba Prasad, appellants, 'fired from
the room and the platform and that if their names had not been mentioned in this statement of
Gaya Charan, they too would have got the benefit of doubt just as Sheo Darshan Singh and
Avadh Behari have got. There is no other factor for making a distinction between the cases of
these two appellants and those two accused as all the prosecution witnesses had named all the
accused as assailants of the victim party. It follows that if this alleged dying declaration of
Gaya Charan be inadmissible in evidence as urged for. the appellants, the appeals have to be
allowed and the conviction of the appellants set aside. The incident took place on February 9,
1960. Gaya Charan's injuries were examined by Dr. Bhatnagar the same day. He found two
gun shot wounds of entry 1/4 x 1/4" up to the depth of abdomen and considered those injuries
to be caused by gun shot and to be dangerous to life. Gaya Charan left the hospital. He was
either discharged on the injuries healding up or he left the hospital before they healed up.
There is nothing on record to show in what circumstances he left the hospital. He died on
March 1. 1960. Sub-Inspector Puttu Lal, P.W. 24, has deposed that it was known on March 1,
1960 that Gaya Charan had died in Kanpur and that when he reached the Bhairon Ghat he
learnt that the dead body of Gaya Charan had been burnt a couple of hours before. There is
no evidence on record as to what caused Gaya Charan's death. In this state of evidence the
finding of the Sessions judge that Gaya Charan must have died on account of the injuries
received in the incident cannot be held to be a good finding. What he says in this connection
is:
"Gaya Charan had a gunshot wound of entry on the left hypochondrium region and one
gunshot wound of entry on the right lumbar region. Both the injuries were dangerous to
life, according to the Doctor. Gaya Charan must have died of these injuries and the
mere fact, that no post mortem could be conducted on his dead body before his
cremation, does not show that we cannot rely on his dying declaration."
The mere fact that the two gun-shot injuries were dangerous to life is not sufficient for
holding that Gaya Charan's death which took place about three weeks after the incident must
have been on account of those injuries. In this connection our attention was drawn to the fact
that Ram Shankar who was also injured in that incident had received one gun shot wound -I'
x 1/4" up to the depth of his abdomen above the right end of upper border of Syihphysis
Pubes, and that injury was 'also considered by the Doctor to be dangerous to life, but
fortunately Ram Shankar did not succumb to the injury. The High Court did not refer to this
question as it appears the admissibility of the alleged dying declaration of Gaya Charan was
not raised before it. That however does not mean that ' we cannot look into the finding of fact
about Gava Charan having died on account of the injuries received in the incident. It is
necessary for proving the charge of murder of Gaya Charan that he had died on account of
the injuries received, and any finding to that effect, in the absence, of evidence can be looked
into by this Court even though the Courts below have confirmed that finding. We find that
there is no evidence to support that finding and hold that Gaya Charan is not proved to have
died due to the injuries received in the incident.
The effect of this finding is that the alleged dying declaration of Gaya Charan,, Ex. Kha 75,
cannot be admissible in evidence. Clause (d) of s. 32 of the evidence Act makes a statement
of a person who has died relevant only when that statement is made by a person as to the
cause of his death or as to any of the circumstances of the transaction which resulted in his
death, in cases in which the cause of that person's death comes into question. When Gaya
Charan is not proved to have died as a result of the injuries received in the incident, his
statement cannot be said to be the statement as to the cause of his death or as to any of the
circumstances of the transaction which resulted in his death. This is obvious and is not
disputed for the respondent State.
The result then is that the statement of Gaya Charan Ex. Kha 75 is inadmissible in evidence.
It was the mainstay of the judgement of the High Court upholding the finding of the
Sessions.judge that Moti Singh and jagdamba Prasad, appellants,were among the persons
who had fired from the room and the platform. When this evidence is to be ignored as
inadmissible, the remaining evidence on the record according to the view of the High Court,
was insufficient to establish beyond reasonable doubt that these two persons were among the
assailants. The appellants deserve the benefit of that doubt. They would have got it if the
High Court had not erroneously relied on the statement Ex. Kha 75.
We therefore hold that Moti Singh and jagdamba Prasad have not been proved to have taken
art in that incident on February 9, 1960, which part to the deaths of Lallan and Matrumal and
the causing of hurt to several other persons. We accordingly allow the appeals, set a de the
order of the High Court and acquit Moti Singh and jagdamba Prasad of the offences they
were convicted of. We direct that they be released forthwith, if not required to be detained
under any other process of law.
Appeal allowed.
SECTION 32 OF IEA

Under section 32 evidence given by a person in a judicial proceeding or before a person

authorized by law to take evidence is relevant for the purpose of proving in a subsequent
judicial proceeding the truth of the facts stated therein. It imposes restrictions upon the
admissibility of statements made by persons who cannot be brought before the court to give
evidence. As there is no better evidence available the statements made under this section are
admitted as principle of necessity.”

Cases in which statement of relevant fact by person who is dead or cannot be found,
etc., is relevant:
 Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot
be found, or who has become incapable of giving evidence, or whose attendance cannot be
procured without an amount of delay or expense which, under the circumstances of the case,
appears to the Court unreasonable, are themselves relevant facts in the following cases:

(1) When it relates to cause of death:

 
When the statement is made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death1, in cases in which the cause of
that person’s death comes into question. Such statements are relevant whether the person who
made them was or was not, at the time when they were made, under expectation of death, and
whatever may be the nature of the proceeding in which the cause of his death comes into
question.

(2) Or is made in course of business:

 
When the statement was made by such person in the ordinary course of business, and in
particular when it consists of any entry or memorandum made by him in books kept in the
ordinary course of business, or in the discharge of professional duty; or of an
acknowledgment written or signed by him of the receipt of money, goods, securities or

1
http://www.legalservicesindia.com/article/1682/Dying-Declaration-Section-32(1)-of-Indian-Evidence-Act.html
property of any kind; or of a document used in commerce written or signed by him; or of the
date of a letter or other document usually dated, written or signed by him.
(b) The question is as to the date of A’s birth,
 An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating
that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.
 (c) The question is, whether A was in Calcutta on a given day.
 A statement in the diary of a deceased solicitor, regularly kept in the course of business, that,
on a given day, the solicitor attended A at a place mentioned, in Calcutta, for the purpose of
conferring with him upon specified business, is a relevant fact.
The expression “statement made in course of business” has got a significant meaning that it
“must be nearly contemporaneous with the performance of duty” the expression ‘course of
business’ is also to be found in Sections 16, 34 and 114. “The rule laid down extended only to
statements made during the course, not of any particular transaction of an exceptional kind,
such as the execution of a deed of mortgage, but of business of professional employment in
which the declarant was ordinarily or habitually engaged.” In a proceeding for fixation of fair
rent counterfoils made in ordinary course of business are admissible to prove the date of
construction of building. The statement of a person who is not available is a statement of that
person made in the ordinary course of business in discharging of his professional duty. The
business referred to may be of temporary character.

The phrase2 “is a apparently used to indicate the current routine of business which was
usually followed by the person whose declaration it is sought to be proved.” In order to admit
statement, the extrusive evidence must be given by the party and such evidence must also be
weight full to prove the statement made during course of business. Where the entries were
signed by the person concerned, they were held to be relevant; but where the statement was
written, the hand-writing of the declarant and that it was made in course of business, must be
proved.

The injury report and post-mortem report prepared by the doctor are relevant and can be used
as evidence against the accused after having been proved to be his handwriting. In Panjis or
pedigree tables maintained by Panjikars in discharge of profession duty fall under this clause.
A statement to which signatures are appended that a document is a copy of the original is

2
http://www.shareyouressays.com/knowledge/relevancy-of-facts-under-the-indian-evidence-act-1872/119217
admissible when made by the deceased person in a document relating to a relevant fact and
also as an admission.

Entry memorandum of account, books, registers etc. is also relevant. Where entries in
account book are relevant under section 32(2) and person producing has no personal
knowledge, the court may require corroboration. It was held that the books were maintained
properly and regularly and that there is reason to doubt their veracity.

(3) Or against interest of maker:

 When the statement is against the pecuniary or proprietary interest of the person making it,
or when, if true, it would expose him or would have exposed him to a criminal prosecution or
to a suit for damages.
(e) The question is, whether rent was paid to A for certain land.
 A letter from A’s deceased agent to A, saying that he had received the rent on A’s account
and held it at A’s orders, is a relevant fact.
 
 
(4) Or gives opinion as to public right or custom, or matters of general interest:
 When the statement gives the opinion of any such person, as to the existence of any public
right or custom or matter of public or general interest, of the existence of which, if it existed,
he would have been likely to be aware, and when such statement was made before any
controversy as to such right, custom or matter had arisen.
(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day.
The fact that a letter written by him is dated on that day, is relevant.
(i) The question is, whether a given road is a public way.
 A statement by A, a deceased headman of the village, that the road was public, is a relevant
fact.
 
(5) Or relates to existence of relationship:
 When the statement relates to the existence of any relationship [by blood, marriage or
adoption] between persons as to whose relationship [by blood, marriage or adoption] the
person making the statement had special means of knowledge, and when the statement was
made before the question in dispute was raised.
 (h) The question is, what was the cause of the wreck of a ship. 
A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.
(k) The question is, whether A, who is dead, was the father of S. A statement by A that В was
his son, is a relevant fact.
In Dalgobinda v Nimaicharan case. The question of inheritance was raised as to whether the
plaintiff and defendant were real bothers. Entries made by the Panda (priest) of a temple were
admitted that the parties to the suit were not brothers.

(6) Or is made in will or deed relating to family affairs:

 When the statement relates to the existence of any relationship [by blood, marriage or
adoption] between persons deceased, and is made in any will or deed relating to the affairs of
the family to which any such deceased person belonged, or in any family pedigree, or upon
any tombstone, family portrait, or other thing on which such statements are usually made, and
when such statement was made before the question in dispute was raised.
(k) The question is, whether A, who is dead, was the father of S. A statement by A that В was
his son, is a relevant fact.
 (7) Or in document relating to transaction mentioned in section 13, clause (a):
 When the statement is contained in any deed, will or other document which relates to any
such transaction as is mentioned in section 13, clause (a).
Under this clause a statement contained in any deed, will or other documents which relate to
any transaction mentioned under section 13(a) of the Act, is relevant. This clause does not
allow introduction of parole evidence. Under this clause only that statement which is
contained in any dead or will or in other document relating to any transaction by which a
right or custom in question was created, claimed, modified, recognized, asserted or denied, is
admissible. The statement must be covered under section 13(a) of the Act and the document
must have been related to transaction. A family custom may be proved by recitals contained
in family document executed before controversy.

(8) Or is made by several persons, and expresses feelings relevant to matter in question:
 When the statement was made by a number of persons, and expressed feelings or
impressions on their part relevant to the matter in question.
 
DYING DECLARATION

Dying 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.The statements made by a person as to the
cause of his death or as to circumstances of the transaction resulting in his death is called a
dying declaration. Section 32(1) of the Indian Evidence Act talks about dying declaration.
A dying declaration is admis-sible in evidence even though it has not been given on oath and
the person making it cannot be cross-examined. It is an exception to the rule against hearsay.
This exception, as such dates back as far as the first half of the 1700s, the period when the
hearsay rule was coming to be systematically and strictly enforced.3
The custom of using dying declaration probably comes down as a tradition long before the
evidence system arises in the 1500s.4
Admissibility of a dying declaration as a relevant piece of evidence is guided by the principle
of necessity and religious belief of the olden days. The necessity being, that in cases, where
victim is the only eye-witness to the crime, the exclusion of his/her statement might defeat
the ends of justice. The religious sanction behind their admissibility comes from the belief in
the fact, 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.5

HOW A DYING DECLARATION SHOULD BE?

There is no particular form of dying declaration. However, the best form of dying declaration
is in the form of questions and answers. However, whenever a dying declaration is being
recorded in the form of questions and answers precaution should be taken that exactly what
questions are asked and what answers are given by the patient those should be written. A
dying declaration may be in the following forms:

3
AshutoshSalil, “An Analysis of Indian and English Position of Dying Declaration’ J 297,Cri.L.J.2005.

4
AshutoshSalil, “An Analysis of Indian and English Position of Dying Declaration’ J 297,Cri.L.J.2005.

5
Sudipto Sarkar& V. R. Manohar, Sarkar on Evidence, 15th edn., vol. l.Wadhwa and Co., Nagpur, 1999, p. 633.
 1.Written form;
2.Verbal form;
3.Gestures and Signs form. In the case ''Queen vs Abdulla''6, it was held that if the injured
person is unable to speak, he can make dying declaration by signs and gestures in response to
the question.
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 dying declaration is valid.
It is preferred that it should be written in the vernacular which the patient understands and
speaks.
A dying declaration may be in the form of narrations. In case of a dying declaration is
recorded in the form of narrations, nothing is being prompted and every thing is coming as
such from the mind of the person making it.

WHO MAY RECORD A DYING DECLARATION 7?

1.It is best that it is recorded by the magistrate.

2.If there is no time to call the magistrate, keeping in view the deteriorating condition of the
declarant, it can be recorded by anybody e.g. public servant like doctor or any other person.
3.It cannot be said that a dying declaration recorded by a police officer is always invalid.
4.If any dying declaration is not recorded by the competent Magistrate, it is better that
signatures of the witnesses are taken who are present at the time of recording it.

6
ILR 7 385
7
http://www.legalservicesindia.com/article/1682/Dying-Declaration-Section-32(1)-of-Indian-Evidence-Act.html
EXCEPTIONS TO DYING DECLARATION

The exceptions of ‘Dying declaration’ stipulate, where the statements made by dying persons
are not admissible8:
• If the cause of death of the deceased is not in question: If the deceased made statement
before his death anything except the cause of his death, that declaration is not admissible in
evidence.
• If the declarer is not a competent witness: Declarer must be competent witness. A dying
declaration of a child is inadmissible. In Amar singh v. State of Madhya Pradesh,1996 Cr LJ
(MP) 1582, it is held that without proof of mental or physical fitness, the dying declaration is
not reliable.

• Inconsistent declaration: Inconsistent dying declaration has no evidential value.

• Doubtful features: In Ramilaben v. State of Gujarat (AIR 2002 SC 2996): Injured died 7-8
hours after incident, four dying declarations recorded but none carried medical
There were other doubtful features too, so it is not acted upon.

• Influenced declaration: It must be noted that dying declaration should not be under
influence of anyone.

• Untrue declaration: It is perfectly permissible to reject a part of dying declaration if it is

found to be untrue and if it can be separated.

• Incomplete declaration: Incomplete declarations are not admissible.

• If statement relates to death of another person: If statement made by deceased does not
relate to his death, but to the death of another person, it is not relevant.

• Contradictory statements: If a declarant made more than one dying declarations and all are
contradictory, then those all declarations lose their value.

8
https://lawschoolnotes.wordpress.com/2016/07/04/dying-declaration-evidentiary-value/
• Unsound person: The statement of unsound mind can not be relied upon.
• If dying declaration is not according to prosecution: If dying declaration is inconsistent with
the case of prosecution it is not admissible
CASE LAWS

In State of UP v. Madan Mohan 9

Hon'ble Apex Court Held that:

➢ It is for the court to see that dying declaration inspires full confidence as the maker of the
dying declaration is not available for cross-examination

➢ Court should satisfy that there was no possibility of tutoring or prompting.

➢ Certificate of the doctor should mention that victim was in a fit state of mind. Magistrate
recording his own satisfaction about the fit mental condition of the declarant was not
acceptable especially if the doctor was available.

➢ Dying declaration should be recorded by the executive magistrate and police officer to
record the dying declaration only if condition of the deceased was so precarious that no other
alternative was left.

➢ Dying declaration may be in the form of questions and answers and answers being written
in the words of the person making the dying declaration. But court cannot be too technical.

In Sham Shankar Kankaria v. State of Maharashtra - (2006)10

Hon'ble Apex Court held that, The situation in which a person is on death bed is so solemn
and serene when he is dying that the grave position in which he is placed, is the reason in law
to accept veracity of his statement. It is for this reason the requirements of oath and cross-
examination are dispensed with. If dying declaration is excluded it will result in miscarriage
of justice because the victim being generally the only eyewitness in a serious crime, the
exclusion of the statement would leave the court without a scrap of evidence.

9
AIR 1989 SC 1519,
10
13 SCC 165
CONCLUSION

A dying declaration is indeed an important piece of evidence. So much so that con-viction

can be based solely on the basis of a dying declaration. An analysis of both English and
Indian position makes it very clear that dying declarations continue to enjoy sacrosanct status
in evidence. The question that needs to be answered is: how relevant dying declarations are in
today's context and how much reliance can be placed on it? The basis for the sacrosanct status
of dying declarations continues to be the good old belief 1 that a man will not meet his maker
with a lie on his lips. This belief presupposes that people are religious and they will not lie on
their deathbed. But this does not seem to; happen in real life where feelings of hatred,
revenge and many times love take precedence over the urge to speak the truth. This ironically
belies the very principle underlying the admittance of dying declarations, i.e. a man will not
meet his maker with a lie on his lips. The general principle on which this species evidence is
admitted is that they are declarations made in extremity, when the person is at point of death
and when every hope of this world is gone. At that point of time every motive to falsehood is
silenced and the mind is induced by the most powerful consideration to speak the truth. Such
a Solemn situation is considered by the law as creating an obligation equal to which is
imposed by a positive oath administered in a court of justice. The dying declarations are weak
kind of evidence even though they are based on the principle that a person would not die with
a lie in his mouth. The law related to dying declaration need certain changes to be
incorporated into it, so as to make it more relevant in today’s context.
 BIBLIOGRAPHY

BOOKS

 Law of Evidence by Ratanlal Dheerajlal

WEBSITES

 www.lawyersclubindia.com
 www.indiankanoon.com
 http://www.indianlawcases.com/
 http://articles.timesofindia.indiatimes.com
 http://mja.gov.in/Site/Upload/GR/Summary%20paper
%20Criminal.pdf
 https://www.scribd.com/document/330380840/Dying-Declaration
 https://lawschoolnotes.wordpress.com/2016/07/04/dying-declaration-
evidentiary-value/