The history of Law of Evidence can be traced back to three different eras; the Ancient Hindu era, the Muslim era and finally the British era. The conception and codification of the Indian Evidence Act of 1872 was done during the British rule, wherein principles of English law of evidence were followed by the presidency courts by the virtue of the Royal Charter.[1] The Courts operated unchecked and remained largely ungoverned in the matter of admission of evidence. The mofussil Courts, due to the absence of rules governing evidence were reduced to chaos and resulted into failure of justice. It became imperative to codify the laws of evidence. The first attempt to codify was done in 1835. Subsequently eleven enactments were passed between 1835 and 1853. However they were broadly deemed inadequate, as it failed to seize the archaic practices of mofussil Courts. In 1868, Sir Henry Mayne prepared a draft bill but it was later abandoned as it was considered unsuitable for a country like India. Finally, Sir James Fitz James Stephen prepared a new draft which was passed as Act 1 of 1892. On 1st September, 1872,“The evidence Act” commenced.[2]
The object of the Evidence act was to establish uniformity of rules and prevent laxity in the admissibility of evidence. The main principles that resonate in the act are; evidence must relate to the relevant facts of the case, best evidence to be put forth and hearsay evidence not admissible. After the enactment of the statute, the principle of exclusion of evidence has to be applied strictly and cannot be relaxed at the discretion of the court.[3]
The entire corpus juris[4](body of laws) can be broadly divided into two categories: Substantive law and Procedural law. It is evident from the bare reading of the text and application of the same that the Law of Evidence would come under the purview of adjective law, with, retrospective effect. Law of evidence supplements substantive law, as it governs the pleadings and procedure. It further provides the procedure to bring forth the relevant facts before the court, evidence to support the facts, proceedings of the court and how to establish burden of proof. Thus, it can be concluded that law of evidence deals with the rights as well as procedure.
The laymen understanding of the term ‘evidence’ gives us the definition “the available body of facts or information indicating whether a belief or proposition is true or valid”. It is derived from the Latin word evidens or evidere, which means to “to show clearly”, to discover clearly”, “to make plainly certain”, “to ascertain”.[5] However, section 3 of the act provides us with the legal definition of the term evidence.[6]
- All statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;[7]
- All documents [including electronics record] produced for the inspection of the court; such documents are called documentary evidence.[8]
Kinds of evidence
Evidence can be divided into further sub categories. Evidence can be oral in nature or in form of documents. Oral evidence can be either direct or indirect (hearsay), however hearsay evidence is not admissible in the Court. The only exception to hearsay evidence is Section 32 & 33 of the Indian Evidence Act, 1872. Documentary evidence can be either in form of documents, electronic or weapon of offence. Primary oral evidence would entail evidence of what witness has heard, seen or experienced by his senses. Similarly, primary documentary evidence would entail original documents or weapon of offence. The much recognized and accepted rule of best evidence excludes any form of secondary evidence such as evidence of copies of documents or hearsay.[9]
Dying declaration
The term dying declaration is derived from ” Leterm Mortem”, which means “Words before death”. The basis “dying declaration” is derived from the Latin maxim “Nemo moriturus praesumitur mentire”, which implies” a man will not meet his maker with a lie in his mouth”.[10] In the case of Ulka Ram v. State of Rajasthan, it was held that, when a statement is made by a person pertaining to the cause of his death or circumstances leading to his death, such a statement is admissible in court and are compendiously called dying declaration.[11] As per Section 32 of the Indian Evidence, dying declaration is the exception to the general rule of hearsay which renders the evidence inadmissible in Court. 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. A victim is an exclusive eye witness, thus the evidence cannot be excluded.[12] There is no requirement as per Indian Law for the victim to be under expectation of imminent death. If the victim survives, the statement can be used to corroborate or contradict him in court; however survival diminishes the weight of the statement.[13]
What constitutes a dying declaration
As per Section 32, a statement can be written or verbal of the relevant facts made by a person[14]
(a)Who is dead?
(b)Who cannot be found,
(c)Who has become incapable of giving evidence,
(d)Whose attendance cannot be procured without an amount of delay or expanse,
When it relates to the cause of his death; When it is made in the course of the business; When it is against the pecuniary or propriety interest of the person making it; When it gives opinion as to public right or custom or matters; When it relates to the existence of any relationship; When it is contained in any deed, will, or other document; When it is made by several persons and expresses relevant feelings to matter in question.[15]
What is the format of a dying declaration
It can be in written or verbal or in form of gestures and signs. In the case of Queen v. Abdulla it was concluded that if an injured person is incapable of speaking, he may make his dying declaration in form of gestures and signs.[16] A dying declaration recorded in the language of the declarant, increases the value of the evidence[17] . Further, a dying declaration can be in form of question and answer or in the form of narration. A dying declaration is not complete if it does not reveal the relevant facts, names of the accused and circumstances leading to the death of the victim[18] Notes from the diary of the deceased can also be considered dying declaration if they refer to the transaction leading to her death or cause of her death, e.g. diary of a women who committed suicide due to cruelty. In Pakala Narayan Swami v Emperor,[19] it was concluded that the letters written by the deceased wife refer to the circumstances of transaction which lead to her death. Therefore, they had relevance and would be admissible under Section 32 of the Act. Minor discrepancies are often ignored by the Court on the account of the victim being gravely injured.
Who can record a dying declaration
Ideally, a dying declaration is to be recorded by Special Executive Magistrate, who is also required to ascertain whether the victim is in a condition to record his/her statement. A doctor is required to provide a fitness certificate to support the findings. However even with the absence of the fitness certificate, the declaration can still be considered reliable and truth worthy, given the victim was in a fit condition to make the statement[20]. If the statement made by the victim lack the signature of the deceased and no explanation is given for the same, conviction cannot be based on it.[21]
Dying declaration recorded by a doctor or a police officer
Wherein a dying declaration was recorded by a doctor in the form of question and answers in the presence of another witness, it was held that it was sufficient to convict the accused.[22]There is no particular law that necessitates that a declaration can only be recorded by a magistrate.[23] The evidentiary value attached to such statements; depend on the facts and circumstances of each case. A dying declaration recorded by a police officer attracts suspicion but it is not a ground for inadmissibility. However, during emergencies it can be recorded without calling a doctor or magistrate.[24] A clear and corroborated declaration cannot be rejected on the grounds that were recorded by a police officer.[25] The Court is more cautious when they review dying declaration recorded by police officers.
Dying declaration made to a relative
In a matter of dowry death, it was held that dying declaration cannot be rejected simply on the grounds that it was made to a relative. The Court is more cautious when they review such declaration.[26]
Delay in the recording of dying declaration
Where there was a delay in recording of the dying declaration, as the victim was not in fit condition to give a statement. The declaration was considered reliable.[27]
FIR as a dying declaration
In the case of K. Ramachand Reddy v. Public Prosecutor, when an injured person filed an FIR and subsequently died. The FIR was considered to the dying declaration.[28]
Factors that lead to rejection/unreliability or inadmissibility of dying declaration:
If it is evident from the facts and circumstances of the case, that the victim was tutored by his friends and family, the declaration can be rejected. However, presence of friends and family of the deceased before the statement is recorded does not automatically render it inadmissible.[29] If there are multiple dying declarations with inconsistencies pertaining to relevant facts of the case, cause of death, factor leading to the death of the accused or name and identities of the accused would lead to rejection of the declaration. If it is not signed by the victim, there were no witnesses present and no probable reason for the same was given, it would be considered an incomplete dying declaration and would not be reliable. When the doctor’s report concludes that the victim was unfit and incapable of giving a reliable statement. If a part of a declaration is considered untrue, if it can be separated, the remaining would be admissible, however if the untrue part cannot be separated, the declaration would be considered unreliable. There are certain conditions for dying declaration to be considered eligible. The Court has to be convinced that the person whose statement was recorded is dead[30] or cannot be found or has been incapable or giving evidence or unreasonable delay or expense is involved in producing him. Statements made by an unsound person, contradictory statement and incomplete statement makes dying declaration unreliable, thus conviction cannot be based on it.
Evidentiary value of a dying declaration
In the case of Kusa v. State of Orissa,[31] the Supreme Court stated that a dying declaration is judged on its own platform and conviction can be based solely on it. However, it is imperative for the Court to scrutinize the statement and look at mitigating facts and circumstances before basing the conviction on dying. In the case of K.R. Reddy v. Public Prosecutor, the Court stated that since a dying declaration is admissible as per Section 32 of the Act, it is not done under oath nor can it be cross examined. Therefore, it is upon the court to carefully scrutinize the declaration. The Court is required to be satisfied, that there was no element of tutoring, the deceased was in fit state of mind and the statement was not a product of his imagination. The Court, while doing is required to acknowledge the solemnity and sanctity of the words of a dying man. If and when the Court finds the declaration reliable, conviction can be based without further corroboration.[32]
In Khushal Rao v. State of Bombay,[33] the Court laid down the following principles pertaining to dying to dying declaration :
(i) Conviction can be based on dying declaration, after it passes the scrutiny of the Court.
(ii) A dying declaration is judged on its own platform as evidence and it is not a weaker kind of evidence.
(iii) It is imperative to look at the facts and circumstance in which the dying declaration was made.
(iv) A dying declaration is most reliable when recorded by competent Magistrate in the form of questions and answers with the signature of the victim.
(v)The Court is required to look into the circumstances when the declaration was recorded. Whether there was sufficient light in the room, whether there was opportunity to tutor the victim, whether the victim was in right state of mind, whether the statements were made without delay, whether the statements are consistent with the facts of the case .
The principle remains that even though there is no possibility of oath, a dying man’s word are to be trusted, as he has no motive to lie and only the truth will come out. Thus, dying declaration is an evolving concept and the scope of dying declaration has increased due to various landmark judgments. It is a critical piece of evidence with is judged on its own footing and conviction can be based on it with corroboration. However, following the principle of putting forth the best possible, a dying declaration should be recorded with caution, following the condition set forth by various judgments. It is on the court discretion to check if the dying declaration is recorded carefully or not.
Frequently Asked Questions
1. Can changes or corrections in dying declaration make it inadmissible?
When dying declaration inspires confidences elements such as overwriting or slight inaccuracy in the events does not render it inadmissible. The error should be of such a nature that the rest of the declaration is rendered unreliable.
2. What is the evidentiary standing of dying declaration in comparison to other evidence?
Dying declaration stands on its own footing, therefore it cannot be contradicted by reference to extraneous evidence of the witness. It either stands by itself or not at all.
3. What if there are more than one dying declaration?
In a scenario, there is more than one dying declaration they are to be read as one and if there are material differences amongst all the declaration, they will all stand to be rejected and deemed unreliable.
Edited by Shuvneek Hayer
Approved & Published – Sakshi Raje
Reference
[1] Ratanlal & Dhirajlal, The Law of Evidence, 1-2, (21st Edition,2009), Lexis Nexis Butterworth Wadhas, Nagpur.
[2] Ibid.
[3] Sris Chandra Nandy v Rakhalanda (1940) 43 BOM LR 794
[4] The Free Dictionary By Farlex, Thefreedictionary.com, https://legal-dictionary.thefreedictionary.com/Corpus+Juris (last visited January 22, 2019)
[5] The Free Dictionary By Farlex, Thefreedictionary.com, https://legal-dictionary.thefreedictionary.com/Corpus+Juris (last visited January 22, 2019)
[6] The Law of Evidence, (Act 1 of 1872), § 3(1),(2) (India).
[7] The Law of Evidence, (Act 1 of 1872), § 3(1),(2) (India).
[8] Ibid.
[9] Arunima Jha, Dying Declaration, THE LAWYERS CLUB, (January 21, 2019, 11:00pm) http://www.lawyersclubindia.com/articles/DYING-DECLARATION-2639.asp
[10] The Free Dictionary By Farlex, Thefreedictionary.com, https://legal-dictionary.thefreedictionary.com/Corpus+Juris (last visited January 22, 2019).
[11] Uka Ram v. State of Rajasthan, A.I.R. 2001 S.C. 1814.
[12] P.V. Radhakrishna v. State of Karnataka, Criminal Appeal No. 1018 of 2002
Decided On, 25 July 2003
[13] Sant Gopal v. State of Uttar Pradesh, 1995 Cr LJ 312 (All)
[14] The Law of Evidence, (Act 1 of 1872), § 32 (India).
[15] Ibid.
[16] Queen-Empress v. Abdullah,1885 ILR 7 ALL 385
[17] Najjam Faroqui v. State of West Bengal, 1992 CR LJ 2574 (Cal)
[18] Sant Gopal v. State of Uttar Pradesh, 1995 Cr LJ 312 (All)
[19] Pakala Narayana Swami vs Emperor ((1939) 41 BOMLR 428
[20] Pandian K. Nadar v. State of Maharastra, 1993 Cr LJ 388 (Bom)
[21] State of UP v. Shishupal Singh, AIR 1994 SC 129
[22] Malik Ram Bhoi v. State of Orissa, 1993 Cr LJ 984
[23] Amir Jamal Khan v. State of Maharastra, 1995 Cr LJ 1956 (Bom)
[24] Pearilal Rana v. State of West Bengal, 1992 Cr LJ 2644 (cal)
[25] Ram Singh v State of Delhi, 1995 Cr LJ 3838 Delhi
[26] Bhoora Singh v. State of UP, 1992 Cr LJ 2294 (All)
[27] Walia GS v. State of Punjab, 1998 Cr LJ 2594: AIR 1998 SC 2857
[28] K. Ramachandra Reddy v. Public Prosecutor,
1976 AIR 1994 1976 SCR 542 1976 SCC (3) 618
[29] Sant Gopal v. State of Uttar Pradesh, 1995 Cr LJ 312 (All)
[30] Appa Bhai v. State of Gujarat AIR 1964 SC 900
[31] Kuka v. State of Orissa,1980 2 S.C.C. 207
[32] K. Ramachandra Reddy v. Public Prosecutor,
1976 AIR 1994 1976 SCR 542 1976 SCC (3) 618
[33] Khusal Rao v. State of Bombay1958 AIR 22 1958 SCR 552
