October 20, 2021

Dying Declaration and Section 32 Indian Evidence Act

Indian Evidence Act

Introduction

Statements, hearsay and allegations amounts to nothing in the court of law unless they are proven. Since law needs proofs, evidences suffice the need. The Indian Evidence act,1872 was introduced into the constitution for the purpose of enacting laws which related to evidences to help courts come to conclusions.

One such section, which is for talk is section-32 which deals with the statements of people which cannot be called or presented as witness, mentioned in Part-I Chapter-II of Indian Evidence Act.

As the section defines it deals with the statements or facts given by a dead person or a missing person which can be deemed as an evidence in court. It is important to regard these statements or facts as evidences as it leads to important conclusions in the case. The following cases determine the admissibility of these statements.

  1. When these statements are made referring to the cause of death of any circumstances transitioning into the death of the person making the statement. These statements are important as it leads to cause of death and are relevant whether the person is present at the time of these statements or not.
  2.  When a statement made by such person in an ordinary course of business consisting of any memorandum made by the person or any acknowledgement or any document written or signed by him is relevant in the course of the case.
  3. When a statement made can cause a criminal action on can expose him to a suit of damages made against the pecuniary interest of the person.
  4. When a statement is given as an opinion to public and if existed would have been likely to be aware of the same.
  5. When a statement is made which specifies the relation of the person making the statement to the person in question is also relevant.
  6. When a statement is made in a will or deed or in any family document which depicts the relation of the person with the person to which the document is made for.
  7. When a statement is contained in any will, deed or any such document which related to such any transition by which the right or custom in question was claimed, created or modified as said in section 13(1) of The Indian Evidence Act\.
  8. When a statement is made by number of people expressing their feeling to the part of the relevant matter in question.

These statements are generally referred as dying declaration which simply translates to an incremating statement or declaration given by a dead or a person missing in transition. The admissibility and extent of use of these statements and consideration of these declarations as evidences has always been in question. To prevent the same many case laws has been laid down discussing various questions raised in the court of law.

Admissibility of Dying Declaration

There is no question that a dying declaration can be the sole reason of a conviction of a person, but the same declaration has to be proven voluntarily and the person making the declaration should be in a clear state of mind when making the statement. The same was established in Waikhom Yaima Singh vs State of Manipur.[1]

The facts of the case include a dying declaration by the deceased before five people mentioning that the appellant has assaulted him between 10 pm to 3 am. The witness who informed the complainant of the same failed to report it in the FIR. The high court said aside the acquittal from the lower court relying on the dying declaration made to five people. The complainant pleaded the he looked for the deceased from 10 pm to 3 am in the hospital and never left the hospital and found him unconscious. This statement made a contradiction between the dying declaration and the presence of the complainant.

Thus, the high court set aside the dying declaration as it was not proven to be admissible in the court keeping in mind the adverse nature of the dying declaration. Hence the high court acquitted the complainant stating that the dying declaration needs to be set aside as it is stated at a time when the mental state of the deceased was incompetent.

Dying Declaration must lead to the cause of the death or circumstances that lead to it

The statement made as a dying declaration must relate to the cause of death or the circumstances the lead to the cause of death. The same is said in case Patel Hiralal vs State of Gujarat.[2] The facts of the case states that the deceased was set ablaze with an inflammable substance and was rushed to hospital where she succumbed to her injuries. The first instance of dying declaration was recorder when a group of sadhus helper her on the railway station to set off the ablaze fire on her. The pedestrian to whom the statement was made mentioned the name ‘Hiralal’.

The second statement was given to her husband in the hospital and she mentioned that she was set on fire by ‘Hiralal Patel’ and he was trying to defame him by stating that he had illicit relations with her sister. After the magistrate was acquainted with the state of her mind, he went to the hospital to have an official statement which was then a dying declaration after the death of the victim. She stated that she was burnt by Hiralal Patel who was the son in law of Nanavati and son of Lalachand.

But in another statement made to the magistrate she stated that Hiralal is the son of Jyotibhai and the son in law of Nanavati. The high court stated the lower court has grossly errored in neglecting the statement but In fact the dying declaration has set the relation of the assailant and thus leads to the circumstances casing her death as per her statement and resulted in the conviction of Hiralal.   

The supreme court stated the same saying that the dying declaeratio of the victim may relate to to death in an indirect manner thus it is no question that it is stated as admissible since it relates to the cause of the death be it directly or indirectly.

 Admissibility of the dying Declaration when given to a police official

In the case Sudhakar vs State of Maharashtra[3], a 20-year-old teacher was allegedly gang raped by two of the accused the headmaster and a co teacher. The same was told to her mother brother and uncle when she went home. She narrated the same to her father after a few days and after 11 days reported the incident to the police.

The Asi recorded the statement of the prosecutrix where she named the accused and informed the reason of her delay in the reporting of her statement. The medical examination conducted on the 20-year-old stated recent intercourse and a chare sheet was filed against the accused under section 376, of Indian Penal Code for rape. After 4 months of the statement, she could not face the humiliation of the incident and committed suicide at her sister’s house by taking poison. The accused was ­­­­­­­­­­­­­also charged under section 306, of Indian Penal code for abatement to suicide.

The question arose was, can the statement used made to a police official before the death can be used a dying declaration as what is the admissibly of such stamina. The supreme court on such a question stated that the statement made to during the reporting of the incident it is of utmost important to consider it as a dying declaration as it reports to the circumstance of death of a person and thus id admissible in the court of law.

But the same needs to be proven beyond any doubt which the prosecution has failed to do so. If the dying declaration is removed altogether from the case there is not enough proof that can state that the intercourse was forceful. Also, the circumstance which point towards that death is also not mentioned in any stamen hence it is difficult to conjecture that a person can commit suicide from an incident which happened a few months ago which also is not proven by the prosecution beyond a reasonable doubt in the court.

Form of Dying declaration (ORAL OR WRITTEN)

The dying declaration can be obtained in any form may be written or oral. Subsequently it can either be partially written and partially oral or none. It can also consist of gestures and signs. Pointing towards the accused on a direct question can also amount to a dying declaration when done in complete sound mind.

The same was expressed in Queen Empress vs Abdullah where the through of a girl was cut and she was unable to speak. She indicated the accused as the reason of her death by pointing to him amounting as hand gesture. The question which arose in the court was whether the gestures and pointing of finger towards the accused by the victim can be accounted as a dying declaration and what is the admissibility of such a statement or action in court.

The court stated that the statement made by the victim is considered as a dying declaration subject to the state of the mind of the victim. They also observed that the dying declaration provided has to be corroborated and to be proven beyond any reasonable doubt a thus has to relate to other evidences and facts as well. If other evidence points to the death and the circumstances of the death same as the dying declaration then the conviction is inevitable.

Dying declaration or medical report or certificate of fitness

It is of a paramount importance that the state of the deceased is in a state of fitness be it physical or mental in the case when a dying declaration is obtained. Soundness of mind and physical ability to make statements should be addressed when collecting a dying declaration. It has been observed in many cases in the court of law that a dying declaration is not amounted to be admissible when a person made such a statement right before going into a coma.

Also, a dying declaration is not addressed as a suitable evidence when person sustains any head injury or any other Physical injury which will lead to conjecture of statements when made at a time of the obtain of the dying declaration. Thus, it can be seen that the state and soundness of mind and physical ability to make statement can be a reason for the disregarding of the dying declaration by the court. To understand better cases a referred which illustrate the importance of the soundness of mind and the medical certification of  fitness to make a dying declaration.

In the case Paparambaka vs State of Andra Pradesh. The certificate obtained from the doctor at the time the dying declaration weas recorded by the magistrate did not comply with the minimum requirements to declare the fitness of the person. It did not state any feature or important disclosure to the health of the person but only stated that the person was conscious. The prosecution questioned the same and thus asked the court to disregard the dying declaration made by the deceased on the basis of the lack of important knowledge on the certificate thus not amounting to the perfection fitness condition of the deceased at the time of dying declaration.

The court stated that it is very dangerous and risky to regard such statements as a dying declaration on the grounds of the lacking evidences to the fitness of the person on the fitness certificate and thus cannot be regarded as a dying declaration as to prevent any or no doubt in the conviction of the person based on the testimony or declaration of an unfit person. Thus, the state of fitness of mind and the physical nature of the person from whom the dying declaration is made is of utmost importance.         

Conclusion

It can be seen that the above-mentioned cases depict the importance of section-32 in the Indian evidence act. Dying declaration is important because an evidence can be a reason to overturn a case and to make all wrongs as right. Thus, the incorporation of such declarations in the court of law is indeed generous. The several factors which determine the admissibility and the acceptance of the dying declaration be it the case of fitness of health of a person, oral stamens, written documents, wills and many more display the unbiased nature of the law.


[1] SC 355 (2011) 4 SCALE 718:2011

[2] SCC 22 (2002)

[3] SCC 671 (2000)


Author Details: Harsimran Singh (Vivekananda Institute Of Professional Studies)

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