What is Dying Declaration?

Section 32 of the act deals with the cases in which statements of the relevant fact by person who is dead or cannot be found and etc., is relevant. The circumstances of case are relevant facts in the following cases,

  • When it relates to cause of death
  • Or is made in course of business
  • Or against interest of maker
  • Or gives opinion as to public right or custom or matters of general interest
  • Or relates to existence of relationship
  • Or is made in will or deed relating to family affairs
  • Or in document relating to transaction mentioned in section 13, clause (a)
  • Or is made by several persons and expresses feelings relevant to matter in question.

This section comes into play when the person whose statement is sought to be proved has died, or cannot be found, or has become incapable of giving evidence or whose attendance can be procured at an amount of delay or expense which under the circumstances of the case appears to the courts to be unreasonable. The proof of these facts will have to be offered in the first instance to make the evidence.

In the case of Gerald Thomas Cockman V. Olga Myrtle Cockman[1], it was said that whether the witness is too far away is a matter for discretion of the court, i.e., England has been held to be far away for this purpose.

In the case of Radhakrishna Vs. State of Karnataka[2] , the Supreme Court speak about the legal maxim nemo moriturus proesumitur mentiri, a man will not meet his maker with a lie in his month.

In the case of Kusa V. State of Orissa[3] the Supreme Court excluded the declaration on the ground of incompleteness. The statement was recorded by a doctor. It was clear in all respects. To wind up the statement the doctor asked the injured if he had anything else to say. He lapsed into unconsciousness without answering the question.

How dying declaration operate in different circumstances?

Contradiction in F.I.R and Dying Declaration

There were contradictions between the F.I.R and dying declaration. The circumstances leading to death were differently stated in the F.I.R., deposition of witness and the dying declaration. It was found that the informant had given exaggerated version in the F.I.R. The Court said that the dying declaration which was otherwise found to be reliable was not be rejected. There was no contradiction between the statements of the injured under section 161, Cr.P.C. and her dying declaration. It was said in the case of Sohan Lal V. State of Punjab[4]

Medical Report

In the case of Gulzari Lal V. State of Haryana[5]A valid dying declaration can be made without obtaining a certificate of fitness, of a medical officer. The declarant was found to be mentally fit for recording his statement by the head constable. No infirmity was found in the statement or its recording.

Honour Killing

There was honour killing of six persons. One of the injured persons, who also died, told his brother as to who were the assailants. The fact that this was not mentioned by him I the FIR or police statement was considered to be not of much significance. The court said that a person who had lost his kith and kin in a horrific incident could not be expected to speak of minute details. His evidence could not be disbelieved.

The failure to mention motive in the F.I.R. was also not regarded as anything as material. Corroboration of the statements of the child witness was also not necessary because his presence and statement were natural. He was cross-examined for days together. A little bit discrepancy did not go against the tenor of his advice. It was said in the case of State of U.P V. Krishna Master[6].

Dying woman, Person of unsound mind

Where, the married woman dying of burns was a person of unsound mind and the medical certificate vouchsafed her physical fitness for a statement and not the state of mind at the crucial moment, the court said that the statement could not be relied upon. It is said in the case of Uka Ram V. State of Rajasthan[7] .

Section 33 of the act deals with the relevancy of certain evidence for providing in the subsequent proceeding, the truth of facts therein stated.

Relevancy of evidence in the prior judicial proceedings

The person has the personal knowledge of the case and appears before a court and his testimony was recorded. But in case in the later stage if he isn’t avoided for subsequent procedure in that case the section 33 applies.

The relevancy conditions include:

It was said that in Printing Telegraph and construction Co. V. Drucker[8], it is necessary that the witness is no longer available. The witness is dead or no longer available.

In the case of Pritam Kaur V. Charan Singh[9] the subsequent procedure in which the evidence sought to be given must be between the same parties or their or their representatives in interest.

The adverse party had the right and opportunity to cross- examine the witness when he appeared in the first proceeding. The testimony given will not be admissible against the party in any subsequent proceedings. It was said in the case of V.M Mathew v. V.S. Sharma[10].

The questions in issue should be substantially the same in the first and second proceeding. This means that the proceeding in which the evidence is sought to be given should involve substantially the same question as said in the first proceedings in the recorded testimony. It was dealt in the case of Doncaster V. Day[11].

[1] A.I.R 1934 ALL 618

[2] A.I.R. 2003 S.C. 2859 at p. 2862.

[3] A.I.R. 1980 S.C. 559

[4] A.I.R 2003 S.C. 4466

[5] A.I.R 2016 S.C. 795

[6] A.I.R 2010 S.C. 3071

[7] A.I.R 2001, S.C 1814

[8] (1894) 2 Q.B 801 (C.A)

[9] A.I.R. 2003 P.& H. 368

[10] (1995) 6 S.C.C 122

[11] (1810,) 3 Taunt 262 : 103 E.R. 104.

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