SVKM’s NMIMS

School of Law, Mumbai.

A Project Submitted

On

DYING DECLARATION- AN ANALYSIS OF ITS PROVISIONS

In compliance with partial fulfillment of the marking scheme,

for Trimester VI of 2015-2016, in the subject of

Law of Evidence.
Submitted

To

Faculty: Prof. Khusnood Akhtar

Submitted by:

Mr. Parth Bhuta

Roll no. 65

Course: B.A.,L.L.B(Hons.)
th
On 30 April 2016, 11.30pm
 Table of Contents

Chapter No. Chapter name Page no.s

Abbreviations I

Cases referred ii

Statutes Referred V

Research Methodology vi

Chapter 1 Introduction 1-3

Chapter 2 Legal Analysis 4-9

Chapter 3 Role of Judiciary 10-13

Chapter 4 Comparative Study 14-18

Chapter 5 Conclusion 19

Chapter 6 Suggestions 20

Bibliography viii

Annexure ix
ABBREVIATIONS

1. i.e. – that is
2. CriLJ – Criminal Law Journal
3. AIR –All India Reporter
4. SC – Supreme Court
5. viz. – namely
6. vs. – versus
7. anr. – another
8. ors – Others
9. USA- United States of America
10. USC – United States Code
11. No. – number
12. SCR – Supreme Court Report
13. SCC – Supreme Court Cases
14. WS – Written Statement
15. CPC – Code of Civil Procedure
16. A.P. – Andhra Pradesh
17. Cal – Calcutta
18. Pat- Patna
19. Bom- Bombay
20. C.J. – Chief Justice
21. Guj – Gujarat
22. IEA- Indian Evidence Act

i
 CASES REFERRED

Serial number Case name and citation

1 Ulka Ram v. State of Rajasthan Appeal (crl.) 749 of 2000

2 P.V. Radhakrishna v. State of Karnataka Appeal (crl.) 1018

of 2002

3 Giles v. California 554 U.S. 353 (2008)

4 Crawford v. Washington 541 U.S. 36 (2004)

5 State of U.P. v. Madan Mohan AIR 1989 SC 1519

6 Ramilaben v. State of Gujarat AIR 2002 SC 2996

7 Khushal Rao v. State of Bombay 1958 AIR 22

8 K.R. Reddy v. Public Prosecutor 1976 AIR 1994

9 Barati v. State of U.P. 1974 AIR 839

10 Najjam Farooqui vs. State of West Bengal

11 Queen-Empress v. Abdullah (1885) ILR 7 All 385

ii
12 State v. Maregowda 2002 (1) RCR (Criminal) 376
(Karnataka) (DB)

13 State of Karnataka v. Shivalingappa 2001 (4) RCR(Criminal)

237 (Karnataka) (DB)

14 R v. Pike C & P.1829; 3: 598

15 The Queen vs. Ram Dutt Chowdhry) (1874) 23 WR (Cr) 35

16 Venkataramayya vs. Seshamma) 1937 Mad 1012

17 The Queen vs. Inhabitants of Belfordshire) (1885) 4 E&B 535

18 Soney Lal Jha vs. Darabdeo Narain Singh) (1935) 14 Pat 461
FB

19 Meesalla Ramakishan vs. State of AP (1994) 4 SCC 182

20 Mukesh Bhai Gopalbhai Barot vs. State of Gujarat AIR 2010

SC 3692

21 Pancham Yadawa vs. State of UP

22 Thakur Das vs. State of HP 1992 Cr LJ 2415 (HP)

23 Ramesh Kumar vs. State of Chattisgarh) 2001 Cr LJ 4724

(SC)

iii
24 Pearilal Rana vs. State of WB 1992 Cr LJ 2644(Cal)

25 N Ram v. State AIR 1988 SC 912: 1988 Cri LJ 1485

iv
 STATUTES REFERRED

Serial no. Name of the Statute

A. Indian Evidence Act, 1872

Criminal Justice Act, 2003

B.

Federal Rules of Evidence

C.

v
RESEARCH METHODOLOGY

A. RELEVANCE OF THE STUDY:

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. As a result, it is an exception to the Hearsay evidence rule, which
prohibits the use of a statement made by someone other than the person who
repeats it while testifying during a trial, because of its inherent
untrustworthiness. If the person who made the dying declaration had the
slightest hope of recovery, no matter how unreasonable, the statement is not
admissible into evidence. A dying declaration is usually introduced by the
prosecution, but can be used on behalf of the accused.
Dying Declarations form a very important part of evidence. It is one piece of
evidence, which can be a direct reason for conviction of the accused in
criminal cases if the declaration is against him. In civil cases like will and
deed execution, dying declarations play an important role in avoiding disputes
between families as it is the final say of the person on his will. Hence from the
point of view of law, it is important to study dying declarations in the study of
Law of Evidence.

B. OBJECTIVE OF THE STUDY:

The following are the objectives of the study:

x To expand the knowledge of the Indian statutes.
x To understand procedural aspects of dying declaration.
x To know the equivalent procedure for dying declarations around
the world.

x To know their applicability and extent of their use in different

countries.
x To understand the role of judiciary and the landmark cases that
have become the law for dying declarations.

vi
C. RESEARCH QUESTIONS:

The following are the questions on which this research is based:

1. What are the provisions of the Statute?

2. What is the role of the judiciary?
3. What is the implementation of these provisions?
4. What are the provisions in other countries and how similar are they to
ours?

D. LIMITATION OF THE STUDY:

The following are the limitations to this research:

x The study is doctrinal and is based on secondary research.

x The research is limited to books and Internet.
x Primary research was not possible due to the time constraint to
gather the subject matter.

vii
INTRODUCTION

Evolution

The enactment and adoption of the Indian Evidence Act, 1872 (passed by the British)
was a path-breaking judicial measure introduced in British India, which changed the
entire system of concepts pertaining to admissibility of evidences in the courts of law.
Until then, the rules of evidence were based on the traditional legal systems of the
communities in India. The biggest drawback with this traditional system was that they
were different for persons belonging to different castes religious faith and social
position. There was no uniformity in the application of law. The Evidence Act
removed this anomaly and differentiation, and introduced a standard set of law
applicable to all citizens.

The Evidence Act of 1872 is mainly based upon the firm work by Sir James Fitzjames
Stephen, who could be called the founding father of this comprehensive piece of
legislation. The Evidence Act, identified as Act no. 1 of 1872, and called the
Evidence Act, 1872, has eleven chapters and 167 sections, and came into force on 1st
September 1872. Over a period of approximately 140 years since its enactment, the
Evidence Act has basically retained its original form except certain amendments from
1
time to time.

When Pakistan and India gained independence on 14th and 15th August 1947
respectively, the Act continued to be in force throughout the Republic of Pakistan and
India except the state of Jammu and Kashmir. After the Independence of Bangladesh
in 1971, the Act continues to be in force in Bangladesh, however it was repealed in
Pakistan in 1984 by the Evidence Order 1984 (also known as the "Qanun-e-
Shahadat"). It also applies to all judicial proceedings in the court , including the court
2
martial as well. However, it does not apply to affidavits and arbitration.

1
http://www.britannica.com/EBchecked/topic/285710/Indian-Evidence-Act
2
Ibid
1
Scope of the topic

Dying declaration or ‘leterm mortem’ is based on the maxim, ‘nemo mariturus

presumuntur mentri’ i.e. a man will not meet his maker with lie on his mouth. The
original understanding of a dying declaration is a person who is nearing his death and
describes the manner in which he sustained those injuries. However dying
declarations can have other subject matters as well.

According to Black’s Law Dictionary, ‘Dying Declaration’ is defined as, “statements

made by a person who is lying at the point of death, and is conscious of his
approaching dissolution, in reference to the manner in which he received the injuries
of which he is dying, or other immediate cause of his death, and in reference to the
person who inflicted such injuries or the connection with such injuries of a person
who is charged or suspected of having committed them; which statements are
admissible in evidence in a trial for homicide (and occasionally, at least in some
jurisdictions, in other cases) where the killing of the declarant is the crime charged to
3
the defendant.”

Under Section 32 of the Indian Evidence Act, 1872, (hereinafter referred to as IEA),
there are eight circumstances or cases enlisted where a dying declaration may be
admissible. They are as follows:

1. When it relates to cause of death.

2. Or is made in course of business.
3. Or against interest of maker.
4. Or gives opinion as to public right or custom or matters.
5. Or relates to existence of relationship.
6. Or is made in will or deed relating to family.
7. Or in document relating to transaction mentioned in section 13, clause (a).
8. Or is made by several persons and expresses feelings relevant to matter in
4
question.

These circumstances will be dealt with in detail in the subsequent chapters.

3 th
Black’s Law Dictionary, 4 Edition, Page 496
4
http://www.legalservicesindia.com/article/article/dying-declaration-section-32(1)-of-indian-evidence-
act-1682-1.html
2
The most recent case of dying declaration that has been in the limelight can be sited
as the Nirbhaya case, wherein the victim gave a dying declaration about the
perpetrators of the crime through gestures and writing. It was admissible in the Court
when the trial for the case was conducted.

Dying declarations are an exception to the hearsay evidence non-admissibility rule set
out under section 63 of the IEA, which states that ‘oral evidence must be direct’. A

declaration made by a person who is dead at the time of the trial or the proceedings
comes under the definition of hearsay evidence. Yet it is admissible in the court of
law.

LORD LUSH, L.J., quoted that “A dying declaration is admitted in evidence because

it is presumed that no person who is immediately going into the presence of his
Maker, will do so with a lie on his lips. But the person making the declaration must
entertain settled hopeless expectation of immediate death. If he thinks he will die
5
tomorrow it will not do.”

LORD EYRE, C.B., also 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, & when every hope of this world is gone; when every motive of falsehood is
silenced, & the mind is induced by the most powerful consideration to speak the truth;
a situation so solemn & awful is considered by law as creating an obligation equal to
6
that which is imposed by a positive oath administered in the court of justice.”

In the subsequent chapters, the concept of dying declaration has been dealt with and
explained in detail.

5
Supra note 4
6
Ibid
3
LEGAL ANALYSIS

7
In Ulka Ram v. State of Rajasthan Apex Court held that, “when a statement is made
by a person as to cause of his death or as to any circumstances of transaction which
resulted into his death, in case in which cause of his death comes in question is
admissible in evidence, such statement in law are compendiously called dying
8
declaration.”

9
The Apex Court in its decision in P.V. Radhakrishna v. State of Karnataka held that
‘the principle on which a dying declaration is admitted in evidence is indicated in

latin maxim, nemo morturus procsumitur mentri, a man will not meet his maker with
a lie in his mouth. Information lodged by a person who died subsequently relating to
10
the cause of his death, is admissible in evidence under this clause.”

Section 32 of the IEA is to be read as:

Cases in which statements of relevant fact by person who is dead or cannot be found -
statement, written or verbal, or 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 expanse 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.

2. Or is made in course of business.
3. Or against interest of maker.
4. Or gives opinion as to public right or custom or matters.
5. Or relates to existence of relationship.
6. Or is made in will or deed relating to family.
7. Or in document relating to transaction mentioned in section 13, clause (a).
8. Or is made by several persons and expresses feelings relevant to matter in

7
Appeal (crl.) 749 of 2000
8
Supra note 4
9
Appeal (crl.) 1018 of 2002
10
Ibid
4
 11
question.

The enlisted circumstances are important as they are when the declaration is
admissible in evidence. Section 32 has scope for wide interpretations. With years
passing on, there have been many judgments to interpret the concepts in Section 32.
They are as follows:

12
In N Ram v. State , it was held that, most important point of consideration is that
victim was in a fit 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.

Second most important point to be considered is that it should not be under the
influence of any body or 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.

Dying declaration recorded by the police:

13
In Pearilal Rana vs. State of WB , it was held that ‘dying declaration recorded by the
police does not stand self-condemned but creates suspicion. In emergency, it can be
recorded without calling the magistrate or the doctor.’

11
Indian Evidence Act, 1872
12
AIR 1988 SC 912: 1988 Cri LJ 1485
13
1992 Cr LJ 2644(Cal)
5
Notings of the Diary of the deceased:

In the case of a suicide, by a married woman, it was held by the SC that noting made
by her diary about the cause of the death has evidentiary value in dying declaration.
14
(Ramesh Kumar vs. State of Chattisgarh)

Cause of Death (clause 1):

15
In Thakur Das vs. State of HP , it was held that, statement by a person as to the cause of
the death becomes relevant when the cause of his death comes into question even if the
person was not under the expectation of death at the time of making the statement.

FIR as a dying declaration:

In Pancham Yadawa vs. State of UP, it was held that, ‘where the FIR clearly

implicating the accused and giving details of the incident, was lodged by the
deceased, the same could be used as dying declaration.

Statement u/s.16 of Cr.PC:

16
In Mukesh Bhai Gopalbhai Barot vs. State of Gujarat , it was held about the
statement recorded by u/s. 16 of CrPC that it would be treated as a dying declaration
when the injured declarant died.

Dying Declaration made by nods and gestures:

17
By the Meesalla Ramakishan vs. State of AP , a dying declaration made by nods and
gestres or by sign language has been held admissible.

Statements in course of business (Clause 2):

It contemplates a statement by a person whose duty it was to make such a statement

or whose business was such that statements of the kind were to be expected in the
18
ordinary course of the things. (Soney Lal Jha vs. Darabdeo Narain Singh)

14
2001 Cr LJ 4724 (SC)
15
1992 Cr LJ 2415 (HP)
16
AIR 2010 SC 3692
17
(1994) 4 SCC 182
6
Statement against interest of Maker (Clause 3):

A statement of deceased person in order to be admissible under this clause must be a

statement of relevant fact and must be against the proprietary or pecuniary interest of
19
the person making it.

Opinion… as to… public right or custom (Clause 4):

The admissibility of declarations of the deceased persons in cases of public right or

custom, or matters of public or general interest, is allowed, as these rights or customs
are generally of ancient and obscure origin, may be acted upon only at distant
intervals of time; direct proof of their existence is not therefore demanded. (The
20
Queen vs. Inhabitants of Belfordshire)

Statement as to existence of Relationship (Clause 5):

Statements relating to existence of any relationship between persons alive or dead as

to whose relationship the declarant has special means of knowledge are admissible if
21
they are made before the question in dispute was raised.

Statements as to Customs or Rights (Clause 7):

A statement in any relevant document, however recent and though not more than 30
years old is admissible. Statements of facts contained in a will of a deceased person
tending to show that the properties are his self-acquisitions are admissible
22
(Venkataramayya vs. Seshamma) .

General Remarks (Clause 8):

When a number of persons assemble together to give vent to one common statement,
which statement expresses the feelings or impressions made in their minds at the time

18
(1935) 14 Pat 461 FB
19 th
Ratanlal & Dhiraj Lal , The Law of Evidence, Lexis Nexis, 24 Edition
20
(1885) 4 E&B 535
21
Supra note 19
22
1937 Mad 1012
7
of making it, that statement may be repeated by the witnesses and is evidence. (The
23
Queen vs. Ram Dutt Chowdhry)

24
In R v. Pike , it was held that 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
valid.

25
In, State of Karnataka v. Shivalingappa, 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 file.

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 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 such and such manner which was
responsible for the death of the victim. 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.

23
(1874) 23 WR (Cr) 35
24
C & P.1829; 3: 598
25
2001 (4) RCR(Criminal) 237 (Karnataka) (DB)
8
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 recorded. But when patient remained admitted in hospital for sufficient
26
days i.e. for 8 days FIR cannot be treated as dying declaration.

27
State v. Maregowda

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 Act.

26
AIR 1976 2199 (SC) State of Punjab v. Kikar Singh, 2002 (30 RCR (Criminal) 568 (P & H) (DB)
27
2002 (1) RCR (Criminal) 376 (Karnataka) (DB)
9
ROLE OF JUDICIARY

The Judiciary plays an important role in the interpretation of the statutes as per the
facts and the circumstances of each case. The precedents set by the Judiciary’s
interpretation become an important source of law in case of vague statutory
provisions. The same holds true for Section 32(1) of the IEA. There have been many
judgments by the courts, which act as laws for the specific interpretation of the broad
provision. Some of them are as follows:

Gestures & signs form

28
In the case of Queen-Empress v. Abdullah , the accused had cut the throat of the deceased

girl & because of that, she was not able to speak so, she indicated the name of the accused by
the signs of her hand, it was held by the full bench of the Allahabad High Court “If the
injured person is unable to speak, he can make dying declaration by signs & gestures in
response to the question.” In another case The Apex Court observed that “the value of the
sign language would depend upon as to who recorded
the signs, what gestures & nods were made, what were the questions asked, whether
simple or complicated & how effective & understandable the nods & gestures were.”

Language of statement

In Najjam Farooqui vs. State of West Bengal, it was held that, ‘Where the deceased
made the statement in Kannada & Urdu languages, it was held that the statement
could not be discarded on that ground alone, or on the ground that it was recorded
only in Kannada. Where the statement was in Telugu & the doctor recorded it in
English but the precaution of explaining the statement to the injured person by
29
another doctor was taken, the statement was held to be a valid dying declaration.’

Declaration made against relatives

30
The Apex court laid down in the subsequent case of Barati v. State of U.P. that a
dying declaration made to the relatives of the deceased, when properly proved can

28
(1885) ILR 7 All 385
29
Supra note 4
30
1974 AIR 839
10
also be trusted. In this case the deceased who was killed by sprinkling acid on him
first made the statement to his brother & son, repeated it at the police station & again
at the hospital charging the accused, the court held that the statement was worthy of
credit. Where the dying statement was recorded by the wife of the deceased, the
Supreme Court did not reject it only on that ground, though it added that such
evidence should be scrutinized with care.

Evidentiary Value of Dying Declaration

31
In K.R. Reddy v. Public Prosecutor , evidentiary value of dying declaration was
observed as under :-

“The dying declaration is undoubtly admissible under section 32 & not being

statement on oath so that its truth could be tested by cross-examination, the court has
to apply the scrutiny & the closest circumspection of the statement before acting upon
it. While great solemnity and sanctity is attached to the words of a dying man because
a person on the verge of death is not likely to tell lies or to connect a case as to
implicate an innocent person, yet the court has to be on guard against the statement of
the deceased being a result of either tutoring, prompting or a product of his
imagination. The court must be satisfied that the deceased was in a fit state of mind to
make the statement after the deceased had a clear opportunity to observe & identify
his assailants & that he was making the statement without any influence or rancor.
Once the court is satisfied that the dying declaration is true & voluntary, it can be
sufficient to found the conviction even without further corroboration.”

32
In Khushal Rao v. State of Bombay , Apex Court laid down the following principles
related to dying to dying declaration :

1. There is no absolute rule of law that a dying declaration cannot be the sole
basis of conviction unless corroborated. A true & voluntary declaration needs
no corroboration.
2. A dying declaration is not a weaker kind of evidence than any other piece of
evidence;

31
1976 AIR 1994
32
1958 AIR 22
11
 3. Each case must be determined on its own facts keeping in view the
circumstances in which the dying declaration was made.
4. A dying declaration stands on the same footing as other piece of evidence &
has to be judged in the light of surrounding circumstances & with reference to
the principle governing the weight of evidence.
5. A dying declaration which has been recorded by a competent Magistrate in the
proper manner, that is to say, in the form of questions and answers, &, as far
as practicable in the words of the maker of the declaration stands on a much
higher footing than a dying declaration which depends upon oral testimony
which may suffer from all the infirmities of human memory & human
character.

In order to test the reliability of a dying declaration the court has to keep in view the
circumstances like the opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was committed in the night; whether
the capacity of man to remember the facts stated had not been impaired at the time he
was making the statement by circumstances beyond his control; that the statement has
been consistent throughout if he had several opportunities of making a dying
declaration apart from the official record of it; & that the statement had been made at
the earliest opportunity & was not the result of tutoring by interested party.”

33
In Ramilaben v. State of Gujarat it was held by the court that second degree burn
injuries, the injured dying 7-8 hours after the incident, four dying declarations
recorded but none carried medical certificate. There were other doubtful features,
evidence not taken into account.

34
In the case of State of U.P. v. Madan Mohan the Apex Court held that:

1. 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.
2. Court should satisfy that there was no possibility of tutoring or prompting.

33
AIR 2002 SC 2996
34
AIR 1989 SC 1519
12
3. Certificate of 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.
4. Dying declaration should be recorded by the executive magistrate & police
officer to record the dying declaration only if condition of the deceased was so
precarious that no other alternative was left.
5. Dying declaration may be in the form of questions & answers & answers
being written in the words of the person making the dying declaration. But
court cannot be too technical.

13
COMPARATIVE STUDY

USA

Under the Federal Rules of Evidence, Article VIII talks about Hearsay Evidence. Rule
804 talks about the circumstances in which the Declarant is unavailable. Rule 804 (a)
(4) states, ‘Declarant cannot be present or testify at the trial or hearing because of

death or a then-existing infirmity, physical illness, or mental illness would be

considered unavailable.’ Then the evidence given by him is admissible. It is an
35
exception to the hearsay rule.

Apart from this, the other principles on which dying declaration is admissible in
evidence are:
1. The declarant’s statement is being offered in a criminal prosecution for
homicide, or in a civil action;
2. The declarant’s statement was made while under the belief that his death was
imminent; and
3. The declarant’s statement must relate to the cause or circumstances of what he
believed to be his impending death.

Most states follow the Federal Rules of Evidence and admit dying declaration for
criminal homicide trials and civil proceedings. However there are certain states who
admit dying declarations for all the cases.

As per the law, the declarant need not die after the declaration is made. There has to
be a belief that the death is imminent and that the declarant cannot be available in the
court. However, if the stipulations or the conditions are not met with, then it would
constitute hearsay and would not be admissible.

Here are some recent cases, which brought changes to the principles of dying
declaration.

35
https://www.law.cornell.edu/rules/fre/rule_804
14
 36
Crawford v. Washington

It is a US Supreme Court decision that reformulated the standard for determining

when the admission of hearsay statements in criminal cases is permitted under the
Confrontation Clause of the Sixth Amendment. The Court held that cross-examination
is required to admit prior testimonial statements of witnesses who have since become
unavailable.

37
Giles v. California

The Court held in this case that testimonial statements could come under the forfeiture
exception of hearsay if the defendant ahs willed the unavailability of the witness for
the testimony.

The primary difference between the Indiana and the US law is that India is strictly
restricted to civil and criminal homicide cases. However in certain USA’s states,
dying declaration is admissible in all cases.

UK

Section 116 of Criminal Justice Act, 2003 talks about cases where the witness is
unavailable. It states:

Cases where a witness is unavailable

1. In criminal proceedings a statement not made in oral evidence in the

proceedings is admissible as evidence of any matter stated if—
a) oral evidence given in the proceedings by the person who made the
statement would be admissible as evidence of that matter,
b) the person who made the statement (the relevant person) is identified
to the court’s satisfaction, and
c) any of the five conditions mentioned in subsection (2) is satisfied.
2. The conditions are—
38
a) that the relevant person is dead;

36
541 U.S. 36 (2004)
37
554 U.S. 353 (2008)
15
 b) that the relevant person is unfit to be a witness because of his bodily or
mental condition;
c) that the relevant person is outside the United Kingdom and it is not
reasonably practicable to secure his attendance;
d) that the relevant person cannot be found although such steps as it is
reasonably practicable to take to find him have been taken;
e) that through fear the relevant person does not give (or does not
continue to give) oral evidence in the proceedings, either at all or in
connection with the subject matter of the statement, and the court gives
leave for the statement to be given in evidence.
3. For the purposes of subsection (2)(e) “fear” is to be widely construed and (for
example) includes fear of the death or injury of another person or of financial
loss.
4. Leave may be given under subsection (2)(e) only if the court considers that the
statement ought to be admitted in the interests of justice, having regard—
a) to the statement’s contents,

b) to any risk that its admission or exclusion will result in unfairness to

any party to the proceedings (and in particular to how difficult it will
be to challenge the statement if the relevant person does not give oral
evidence),
c) in appropriate cases, to the fact that a direction under section 19 of the
Youth Justice and Criminal Evidence Act 1999 (c. 23) (special
measures for the giving of evidence by fearful witnesses etc) could be
made in relation to the relevant person, and
d) to any other relevant circumstances.
5. A condition set out in any paragraph of subsection (2) which is in fact satisfied
is to be treated as not satisfied if it is shown that the circumstances described
in that paragraph are caused—
a) by the person in support of whose case it is sought to give the
statement in evidence, or
b) by a person acting on his behalf
c) in order to prevent the relevant person giving oral evidence in the

38
http://www.legislation.gov.uk/ukpga/2003/44/section/116
16
 proceedings (whether at all or in connection with the subject matter of
39
the statement).

The primary distinctions between the Indian law and English Law in terms of dying
declaration are as follows:
1. The Indian law on the question of the nature and the scope of dying
declaration has made a distinct departure from the English law where only the
statements, which directly relate to the cause of the death are admissible. It is
well settled by now that there is difference between the English rule and the
Indian rule with regard to the necessity of the declaration having been made
under the expectation of death.
2. Clause (1) of the Section 32 of the Indian Evidence Act provides that
statements, written or verbal of relevant facts made by a person as to the cause
of his death or as to why of the circumstances of the transaction which
resulted in his death. While in the English law the declaration should have
been made under the sense of impending death whereas under the Indian law,
it is not necessary for the admissibility of a dying declaration that the deceased
at the time of making it should have been under the expectation of death.
3. The Second part of Clause (1) of section 32 of IEA, namely “the circumstances of
the transaction which resulted in his death, in cases in which the cause of that
person’s death comes into question” is not found to be in the
English law. As distinguished from the English law, Section 32 does not
require that such a statement should have been made in expectation of death.
Statement of the victim who is dead is admissible in so far as it refers to cause
of his death or as to any circumstance s of the transaction which resulted in his
death. In other words, the statement of the deceased relating to the cause of
death or the circumstances of the transaction which resulted in his death must
be sufficiently or closely connected with the actual transaction.
4. Due weight is required to be given to a dying declaration keeping in view the
legal maxim ‘Nemo moriturus praesumitur mentire’. To make such a
statement substantive evidence, the person or the agency relying upon it is
under a legal obligation to prove the making of a statement as a fact. In cases
where the original recorded dying declaration is proved to have been lost and

39
Supra note 38
17
not available, the prosecution is entitled to give secondary evidence thereof.

18
CONCLUSION

Dying Declarations have been fairly crystal clear in the law. Apart from that the
judiciary has also played an important role in the interpretation of the law and
expanding the scope of the statute.

Dying declaration is a very important piece of evidence. It is the most convincing and
direct evidence for the prosecution to prove its case against the accused. Apart from
the ocular evidence and other direct evidence, dying declaration is self-speaking
evidence and can prove much more that the eyewitness can depose. Based on the
maxim ‘nemo mariturus presumuntur mentri’, men may lie at any circumstance but

not when they near their death. It is sacrosanct.

A dying declaration has a very spiritual side to it. A man who is going to meet his
maker will not die with a lie on his lips. He is very unlikely to make a false statement.
It is against his moral principles as lying constitutes a sin. The sanctity attached to
dying declaration is that a person on the verge of death would not commit sin in
implementing somebody falsely.

A dying declaration has its own drawbacks. For example the accused does not get to
examine the declarant. It violates his rights. The uncrossed version of the declarant is
thrust upon the accused and could be held guilty of the crime alleged in the
declaration. Hence the courts have to be very cautious and circumspect the
declaration.

Section 32 of the IEA describes about dying declaration. It states eight circumstances
where dying declaration may be admissible. In India, dying declaration is not only in
admissible in homicide cases but also in civil cases. However since the provisions
have been broad, Courts have stepped in to interpret the law depending on the facts
and circumstances of each case.

th
The 69 Law Commission report reviewed the IEA and has suggested many
amendments to the IEA.

There can be amendments in the law for dying declarations. The proposed
amendments have been enlisted in the suggestions.
19
SUGGESTIONS

The following are the suggestions for amending the law relating to dying declarations:

1. Noticing lacunae in the process of recording dying declarations of victims of

burns and allied cases under the Evidences Act, there should be an amendment
in the law for recording the declaration in presence of a judicial officer. There
have been many cases where dying declarations were recorded in the presence
of culprits, namely husband and in-laws of the victim, and also false
implication of husband and his family members based on dying declaration
given at the instance of close relatives of the victim.
2. The principle that the person nearing his death will not lie can be disputed. It
is an opinion that dying declaration cannot be the sole basis for the decision of
the case. Especially in cases where the declarations keep changing, the
reliability on the declaration would be reduced and hence it would raise a
question on the motive of the declarant.

20
BIBLIOGRAPHY

Books referred:

x Ratanlal & Dhiraj Lal , The Law of Evidence, Lexis Nexis, 24 th Edition
x Indian Evidence Act, 1872 (Bare Act)
x Black’s Law Dictionary, 4 th Edition

Websites Referred:

x www.britannica.com
x www.legalservicesindia.com
x www.law.cornell.edu
x www.legislation.gov.uk
x www.jstor.com
x www.indiankanoon.org
x www.manupatra.com
x www.hindustantimes.com
x www.timesofindia.indiatimes.com

vii
ANNEXURE
Facts: -

A gets shot while he was walking on the road. After the shot ‘A’ was taken to
‘Kokilaben Dhirubhai Ambani Hospital’. There after a surgery was performed
and the bullet was taken out of the lower abdomen of the victim.

But after the operation the condition of the victim became critical and at that
time the victim started narrating the scene and at that time the doctor took all
the note of the things said by the victim. And the police was on the way to the
hospital the doctor had to take all the statement. When he was giving the
statement he also stated that ‘C’ has his killed him because of some personal
enmity and grudges.

Examination in Chief of the Medical Examiner

In form of affidavit
I, Dr. Bharti Roy, age 53 years, occupation – Chief Medical Examniner,
Medical Examiner of the deceased in the above mentioned matter do hereby
state on the solemn affirmation as under: -

1. I say that I am the Chief Medical Examiner in the Kokilaben Dhirubhai

Ambani hospital, situated at, Rao Saheb Achutrao, Patwardhan Marg,
Four Bunglows, Mumbai, Maharashtra 400053, for the past 10 years
now. I conduct autopsys in order to determine what exactly was the
cause of death and then I record my findings in the report which I then
submit to the relevant authorities.

2. I say that, on 12th March 2016, around 10pm I got a call asking me to
report back to the hospital in order to conduct the Surgery of Mrs. ‘A’. I
reached the hospital and after having completed the formalities, I
contacted the nearest police authorities and started performing the
surgery of the victim before as it is the necessary protocol to call the
police in case of autopsies.

3. I further say that when I arrived to conduct the autopsy, the first thing I
noticed was the heavy discoloration of the body which first made me
suspicious as to the nature of her death. I suspected that her death may
be unnatural and it may have been caused by the wound caused by the
gunshot in the lower abdomen. I plucked out two three bullets of the
bullet and sent them to the lab for examination while I continued
further with the autopsy.

4. I further say that as the condition of the victim’s condition was

worsening at that time he stated that ‘C’ has killed him because of some
personal enmity and grudges on him, and I duly noted it and when the
police came to take the statement he has already died and gave the
 statement which I have recorded/noted which was stated to me when
the victim stated it in Hindi.

5. I further say that once I opened her up, I realized that almost all of her
organs were severely damaged. This confirmed my suspicion that her
death was because of the wound of the bullet which hit the llower
abdomen of the victim. A copy of the lap report kindly be exhibited and
read as evidence.

6. I further say that, the autopsy further revealed that she did not have
injury marks on her body, neither did she have any defensive wounds of
any kind. She had not been sexually assaulted and she was not pregnant
at the time of her death.

Whatever is stated here in the above paragraphs is true and correct, in

witness whereof

I have affirmed this affidavit on 3rd April 2016

Mumbai,

Dated 3/04/2016

Doctor Bharti Roy

(Chief Medical Examiner)

Advocate Mahesh Gupta

(Public Prosecutor)
 Cross- Examination of the Medical Examiner
In form of Question – Answer Format

Q 1.) Where did you graduate from and which year?

Ans. I graduated from K.E.M College and passed in the year 1995.

Q2.) How long you have been practicing?

Ans. I have been practising from more than 15 years.

Q3.) Highlights your achievement in your field?

Ans. Specialist in the surgery and as a medical examiner.

Q4.) Tell us how long have you been practising in this hospital and
what have you specialised in?

Ans. I have been practising in this hospital for more than 10 years and I
have a specialisation in Surgery and autopsy.

Q5.) How the patient was found when the victim was brought in to the
hospital?

Ans. His condition was critical.

Q6.) How the surgery was performed and Explain the procedure.

Ans. The head surgeon of the hospital had performed the surgery.

Q7. ) How long did it you take to perform the surgery?

Ans. It took about two to three hours.

Q8.) What was the condition of the patient after the surgery?

Ans. It showed that he was doing fine and general anaesthesia was
used to perform the surgery

Q9.) Did you note all the things which were stated to you by the
victim and in which language did he state them?

Ans. I might have missed out some things which he stated because of
some reasons and the language in which he stated was Hindi.
Judgment:-
The dying declaration which was given to the doctor by
the victim is not true.