CHANAKYA NATIONAL LAW UNIVERSITY

LAW OF EVIDENCE
FINAL PROJECT
Research Topic : Moti Singh And Another vs State Of Uttar Pradesh

SUBMITTED TO - SUBMITTED BY -

Dr. P K V S Rama Rao Kumar Sambhav

Roll No. : 1536
( Faculty Of Evidence Law) Semester : 4th
Session : 2016-2021

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 DECLARATION

I hereby declare that project work reported in B.A. LLB entitled “Moti Singh V. State
Of Uttar Pradesh AIR 1964 SC 900” under Evidence Law submitted by me at
Chanakya National Law University in an authentic record of my own work, carried out
under the supervision of Dr. P K V S RAMA RAO for the partial fulfilment of the
course EVIDENCE LAW. This project work is not submitted elsewhere for any other
degree in any Institute or University. I am fully responsible for the contents of my project
report.

KUMAR SAMBHAV
B.A.LLB BATCH
ROLL NO. 1536
4th SEMESTER

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 ACKNOWLEDGEMENT

I owe the present accomplishment of my project to the faculty Dr. P K V S Rama Rao whose

guidance helped me immensely; and to the help extended by the library staff without which finding

books would have been difficult.

I would also like to thank our friends who helped us immensely with materials throughout the

project and without whom we would not have been able to complete it in the present way,and to

my seniors whose contribution in every little way has helped me in the completion of this project.

I would also like to extend my gratitude to all those unseen hands that helped me out at every stage

of this project.

KUMAR SAMBHAV

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 CONTENTS

CHAPTERS
1. Introduction
2. Case Of Moti Singh V. State Of Uttar Pradesh AIR 1964 SC 900
I) Facts
II) Crux of Judgement
3. What is dying declaration?
4. Legal Maxims related to dying declaration
5. Section – 32 of Evidence Act, 1872 Provisions
6. Conclusion & Suggestions

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 INTRODUCTION:
The Case Of Moti Singh V. State Of Uttar Pradesh gaves guidelines related to Dying
declaration.
Dying Declaration is of the utmost importance and the evidence as to it should be exact and full
as possible. The general rule is, hearsay evidence is no evidence and is not admissible in
evidence.' Section 32 and 33 of the Evidence Act are among the Exceptions, as such dying
Declaration is an exception to this general rule.
"A dying declaration is a declaration written or verbal 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"
Before such statements are admitted in evidence, it must be proved that who made the statement
is dead and gone and therefore cannot appear before the court unless this fact is proved, the
statement is not admissible. When the statement is admitted under any of the clause of this
section, it is substantive evidence and has to be considered along with other evidence. Dying
declaration is an exception to the general rules as to relevancy of fact. The relevancy of fact
provides that the statement made by witness in connection of fact or fact in issue are relevant but
under Section 32 a statement made under certain circumstances become relevant , even though
person is not called as a witness before the court. Dying declaration in fact is a surviving
declaration. Declarant died and statement survives. It is declaration of a dead person.
Seven persons including the appellants were convicted for murder. Relying upon the dying
declaration of one person (Say For Example – G), the High Court acquitted five of the accused
but convicted the appellants 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.
It was 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 gun shot
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 the 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).

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The maxim “Nemo moriturus praesumitur mentire” is basis for ''dying declaration'', which means
'' a man will not meet his maker with a lie in his mouth''. A dying declaration is called as ''
Leterm Mortem''. The word '' Leterm Mortem'' means '' Words said before death''. Recording of
dying declaration is very important task. Utmost care is to be taken while recording a dying
declaration. If a dying declaration is recorded carefully by the proper person, keeping in mind the
essential ingredients of the dying declaration, such declaration retains its full value.

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 question.

But here, we are studying about ‘dying declaration’ which deals with the cases relate to cause of
death. It is mentioned in sub-section (1) of section 32 of Indian Evidence act.

Section 32 (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
death, 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 exception of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.

Illustration
The question is, whether A was murdered by B; or

A dies of injuries received in a transaction in the course of which she was ravished. The question
is, whether A was killed by B under such circumstances that a suit would lie against B by A’s
widow.

Statements made by A as to cause of his or her death, referring respectively to the murder, the
rape and the actionable wrong under consideration wrong under consideration are relevant facts.

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AIMS & OBJECTIVES
 To do an analytical study of The Case of Moti Singh.
 To study about Dying Declarations and related maxims.
 To do a study on Section – 32(1) of Indian Evidence Act, 1872 and related case
laws.

RESEARCH QUESTIONS
 What were the circumstances in the case of Moti Singh?
 What were the important points of the Judgement of said case?
 What are the characteristics of Dying Declarations?
 What are the provisions given in Section – 32 of IEA, 1872 ?
 What are the exceptions for this section?

HYPOTHESIS
This research paper is about the case of Moti Singh V. State of U.P. where the
provisions of dying declaration were given.
The Researcher intends to check the validity of Dying declarations.
LIMITATIONS
 The time period allotted for the study and research is approximately One
month.
 The resources are books, internet and field work.

METHODOLOGY

The researcher will be primarily relying on the “Doctrinal Methods”. It will be

based on textbooks, newspaper articles, Law Journals and online databases
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 Case Of Moti Singh V. State Of Uttar Pradesh
AIR 1964 SC 900
FACTS & CRUX OF JUDGEMENT BY SUPREME COURT

Raghubar Dayal, Justice Gave the Judgement.

1. Moti Singh and Jagdamba Prasad, appellants, together with five other persons, were convicted
by the Sessions Judge of Unnao of offences under sections 148, 302 read with 149 and 307
read with 149 ipc. Each of them was sentenced to life imprisonment under Section 302 read
with Section 149 IPC

2. On appeal, the High Court acquitted the other five persons of the various offences. The
conviction of the appellants under Section 148 IPC. was also set aside, but their conviction for
the offences under sections 302 and 307 read with section 149 were altered to conviction for
offences under sections 302 and 307 read with section 34 ipc. 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.

3. 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.

4. 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.

5. 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

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Session 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 statement, 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.

6. In considering the complicity of individual accused in the firing from the room and later from
the chabutra, the High Court said that Ra] Kumar, PW 11 and Chandra Kumar, PW 15, were
partisan witnesses whose evidence had to be examined with caution, that Shyam Lal, PW 12 and
Gopi Singh, PW 14, were not quite independent witnesses, and that there was nothing particular
against Lal Singh, PW 17, and Sardar (PW 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 Jagdamba among 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.”.

7. 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 Ex. Kha 8 and the
alleged dying declaration of Gaya Charan Ex. Kha 75. It also look into consideration the fact that
he remained absconding till his arrest on September 30, 1960, the incident having taken place on
February 9, 1960.

8. 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 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.”

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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 caste 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.

9. 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.

10. 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 148 was
therefore committed and Section 149 IPC is not applicable.”

11. 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 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.

12. 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 ¼" x ¼" 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 healing up or he left the
hospital before they healed up. There is nothing on the record to show in what circumstances he
left the hospital. He died on March 1, 1960.

13. Sub-Inspector Puttu Lal, PW 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 be a good finding. What he says in this connection is:

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“Gaya Charan had a gunshot wound of entry on the left hypochondriun 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.

14. 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 ¼" x ¼" up to the depth of his abdomen ½"
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 Gaya 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 the finding and hold that Gaya Charan is not proved to have
died due to the injuries received in the incident.

15. The effect of this finding is that the alleged dying declaration of Gaya Charan, Ex. Kha 75,
cannot be admissible in evidence. clause (1) of section 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.

16. The result then is that the statement of Gaya Charan Ex. Kha 75 is inadmissible in evidence.
It was the mainstay of the judgment 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.

17. We therefore hold that Moti Singh and Jagdamba Prasad have not been proved to have taken
part in that incident on February 9, 1960, which led to the deaths of Lallan and Matrumal and the
causing of hurt to several other persons. We accordingly allow the appeals, set aside the order of
the High Court and acquit Moti Singh and Jagdamba Prasad of the offences they were convicted

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of. We direct that they be released forthwith, if not required to be detained under any other
process of law.

What is dying declaration?

"A dying declaration is a declaration written or verbal 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"

Illustration

Sam has been attacked by Anna. If Sam, shortly before death makes a declaration holding
Anna, responsible for his injuries, it is called "Dying Declaration'.

Section 32(1) of The Indian Evidence Act defines, 'dying declaration' as " a statement
verbal or written made by a person who is dead or cannot be found, who has become
incapable of giving evidence or whose attendance cannot be procured without an amount of
delay or expense, which under the circumstance of the case, appears to the court
unreasonable, are themselves relevant facts in the following cases.

a) When it relates to cause of death

b) When it is made in course of business; or

c) Against the interest of maker; or

d) Gives opinion as to public right or custom or matters of general interest; or

e) Relates to existence of relationship; or

f) When it is made in will or deed relating to the family affairs; or

g) In document relating to transaction mentioned in section 13(a);

h) When it is made by several persons and expresses feeling relevant to matter in question

In short according to Section 32(1), “Dying declaration is a statement oral or

written made by a person who is dead or cannot be found or incapable of giving
evidence or whose attendance involves delay or expensive under the circumstances

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 stated above, which the court considers reasonable “.

Before such statements are admitted in evidence, it must be proved that who made
the statement is dead and gone and therefore cannot appear before the court unless this fact
is proved, the statement is not admissible. When the statement is admitted under any of the
clause of this section, it is substantive evidence and has to be considered along with other
evidence. Dying declaration is an exception to the general rules as to relevancy of fact. The
relevancy of fact provides that the statement made by witness in connection of fact or fact in
issue are relevant but under Section 32 a statement made under certain circumstances
become relevant , even though person is not called as a witness before the court. Dying
declaration in fact is a surviving declaration. Declarant died and statement survives. It is
declaration of a dead person.

The Conditions in this Section are:

1) It must be a statement, written or verbal

2) The person making statement must have died.

3) The statement relate to the cause of his death or the circumstances of the transaction
which related in his death and not the cause of the death of someone else.

4) The cause of the person's death must be in question.

5) The person making statement must be in a fit condition to make the statement.

6) The statement must be competent

7) Declaration must be competent

Reasons For admissibility of dying declaration:

Dying declaration is admissible for the following two reasons....

1) As the Victim is sole Eye Witness, Exclusion of his evidence defeats the ends of justice.

2) Declaration made by a person under exception of death is presumed to be true.

Merits of Dying Declaration:

1) There is heavy conscience -, therefore law presume that there is a possibility of true

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 statement as to the cause of his death. It has moral and religious aspect behind it because a
person who is on the bed of death, about to die generally speaks true, so as to attain spiritual
benefits in other world. This is relative element, which changes from person to person,
personality and mentality person making Dying Declaration. So a person who is about to
die, tells the truth and truth only is a half truth as in case of harden criminals. So it is the
personality, circumstances and the character of the person making Dying Declaration that
decides the relevancy of Dying Declaration.

2) There is no reason to implicate wrong person:

The person making Dying Declaration and mentioning in the name of the
person responsible who has caused injuries to him which are likely to result in his death,
generally will not implicate in a wrong person who is not at all responsible for such injuries.

3) There is no reason why he will avoid the name of the person who is responsible for his
death and his worst enemy in his life. It is more logical and realistic concept because person
who is on the bed of Death will not implicate the name of wrong person for the cause of his
death, but he will not allow his enemy to go unpunished who is responsible for his death.

Infirmities/ Defects of Dying Declaration:

1) There is no oath administered:

When a person is called as witness in the Court he has to make a statement on

oath. This is to have his inner conscience say truth and truth only. Law presume and expect
person to state the truth. This is the theoretical aspect as it may be correct theoretically but
not practically.

2) There is no cross-examination of such person making Dying Declaration:

The need of cross-examination is to judge the credibility of the witness. It is the

right of Defense Council. Questions are put to the witnesses to extract the truth in case of
Dying Declaration other party or defense council have no opportunity of cross-examination
of the witness who is dead.

3) Witness is not present before the Court:

Behavior, manner of answering the question of witness before the Court is a

vital aspect in law because it gives opportunity to the judges to judge the character,
personality of the witness this element is absent in dying declaration and hence it is not

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 accepted as a rule

Evidentiary Value of Dying Declaration:

The evidentiary value of dying declaration will vary according to the circumstances
of a particular case in which it is made
Dying Declaration is evidence but it is a weak piece of evidence. It is to be
corroborated by other evidence for example other facts and evidence supporting Dying
Declaration.
It gives guidance to the Court, the has to accept the Dying Declaration as a suspicious
statement, it is duty of the judge to consider the valuation of Dying Declaration. Such
valuation of Dying Declaration depends upon many things as under

1) State of mind of declarant.

2) State of the body of declarant.

3) To whom the Declaration/Statement is made.

4) Who recorded the statement?

5) Whether the statement is recorded in the same language and in a same word of the
declarant. Even though Dying Declaration is said to be of weak piece of evidence it is
relevant in the Indian Evidence Act, because it is the best available evidence as to the cause
of his death after his death.

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 Legal Maxims related to dying declaration

The dying declaration is called as “Leterm Mortem” which means “words said before death” and in a
legal term it is called ‘Dying Declaration’. Recording of dying declaration is very important task. Utmost
care is to be taken while recording a dying declaration. If a dying declaration is recorded carefully by the
competent person, keeping in mind the essentials ingredients of the dying declaration, such declaration
retains its full evidentiary value.

The maxim “Nemo moriturus praesumitur mentire” is basis for ”dying declaration”, which means ” a
man will not meet his maker with a lie in his mouth”. A dying declaration is called as ” Leterm Mortem”.
The word ‘‘ Leterm Mortem” means ‘‘ Words said before death’‘. Recording of dying declaration is very
important task. Utmost care is to be taken while recording a dying declaration. If a dying declaration is
recorded carefully by the proper person, keeping in mind the essential ingredients of the dying
declaration, such declaration retains its full value.

A dying declaration may be in the following forms:

1. Written form;
2. Verbal form;
3. Gestures and Signs form. In the case ”Queen vs Abdulla”, 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.
4. 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.
5. It is preferred that it should be written in the vernacular which the patient understands and
speaks.
6. 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.

OBJECTS;

1. The presumption is ” a person who is about to die would not lie”.

2. It is also said that ” Truth sits on the lips of a person who is about to die”.
3. The victim is exclusive eye witness and hence such evidence should not be excluded.

Who may record a dying declaration ?

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 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.

Important facts to be remembered before recording Dying Declaration:

1. The declarant was in a fit condition of mind to give the statement when recording was started
and remained in fit condition of mind until the recording of dying declaration is completed.
2. The fact of fit condition of mind of declarant can be best certified by the doctor .
3. Yet, in case of where it was not possible to take fitness from the doctor, dying declaration has
retained its full sanctity if there are other witnesses to testify that declarant was in fit condition
of the mind which did not prevent him from making dying declaration.
4. However, it should not be under the influence of any body or prepared by prompting, tutoring or
imagination. If any dying declaration becomes suspicious, it will need corroboration.
5. If a declarant made more than one dying declarations and if these are not at variance with each
other in essence they retain their full value. If these declarations are inconsistency or
contradictory, such dying declarations lose their value.

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 Section – 32 of Evidence Act, 1872 Provisions

A close scrutiny of section 32 (1) of Indian Evidence Act, it is vividly known when the statement is made
by a person with regard to the cause of his death, or 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. Such
statements are relevant irrespective of the person who made such declaration was expecting death or
not . Thus, it is apt to say that admissibility of Dying declaration is explained in the section 32 (1) of
Indian Evidence Act.

Section 32 stats that :

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 death, 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 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.

(3) Or against interest of maker:

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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.

(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.

(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.

(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.

(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).

(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.

OBJECT
Sections 32 and 33 of the Evidence Act are exceptions to the general rule that hearsay evidence
is not admissible. Hearsay evidence is not entertained by the courts on the ground that the
evidence given by a person who does not have firsthand knowledge about the facts of the case.
Because, according to Section 60 of this Act oral evidence must always be direct, that is, the
person who has got first-hand knowledge about the facts of the case being entitled only to prove
the facts.

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For ends of justice the law always demands best evidence to be produced before the court of
justice. The best evidence means evidence of the person who has made a statement or has written
a document by himself. This is a best evidence of the person who has got firsthand knowledge
about facts or original documents. When a witness appears before the court he is required to take
oath and is subjected to cross-examination by the opposite party.

A second hand or hearsay evidence means derivative evidence. Hearsay evidence, according to
Taylor, “all the evidence which does not derive its value solely from the credit given to the
witness himself, but which rests also in part on the varacity and competence to some other
person.” When the person or document (best evidence) cannot be available in the court, then the
“other person” may be allowed by the court, who is not required to take oath or is put to cross-
examination, to testify the contents of the documents prepared by the person who is not available
for reasoned mentioned in Section 32. Thus, the hearsay evidence, is relevant when: (i) there is
necessity and (ii) the special circumstances guaranteeing genuineness and trustworthiness.
Section 32 is an exception to the hearsay rule. Unlike English law the Indian law does not make
it wholly inadmissible.

Principle:

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.” In other words written or verbal statements of relevant facts made by a person:—

(i) Who is dead;

(ii) Who cannot be found;

(iii) Who has become impossible of giving evidence; or

(iv) Whose attendance cannot be procured without unreasonable delay or expense, are relevant
under the following circumstances of the case:

1. When it relates to the cause of his death, or

2. When it is made in course of business, or

3. When it is made against the pecuniary or proprietary interest of the maker, or

4. When it gives opinion as to right, custom or matters of general interest, or

5. When it relates to the existence of any relationships, or

6. When it is made in will or deed or other document to family affairs or

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7. When it is made in document relating to transaction mentioned in Section 13, Clause (1), or

8. When it is made by several persons, and expresses feelings to the matter in question.

Necessity of Section 32:

This section comes into operation when any statement of a person who is either dead or cannot
be found, or incapable to give evidence, or whose attendance is not possible without delay or
expenses. Before any previous statement of any one of such persons can be admitted under
section 32, at least one condition mentioned in clauses 1 to 8 must be fulfilled. In such
circumstances the court may admit the statement of other persons “who are in the court to testify
the previous statements of one of those above mentioned persons.

When a previous evidence given by a witness is intended to be proved, the facts must be proved
strictly. In civil case the party can waive the proof, but in criminal cases strict proof must be
given that the witness is incapable of giving evidence. In the present days the dying declaration
has assumed much importance. But, the question as to how much weight can be attached to a
dying declaration is a question of fact.

Before admitting evidence under section 32 the court must be satisfied the reasons mentioned in
clauses (i) to (iv). If the person is dead, then the death must be proved. If the person making a
statement survives, then the statement cannot be used as a dying declaration. If a person is not
found after making certain statement, the court must be satisfied that all efforts of searching were
made and exhausted. Similarly a witness after making statements became physically unfit and
totally invalid to depose before the court.

If that happens the court has to be satisfied by producing true evidence as to his permanent
incapacity. Sometimes it may happen that the witness is living in a foreign country and his
appearance before the court cannot be possible without unreasonable delay or expense. In this
circumstances relevant documents must be produced to satisfy the court that his abode in foreign
country is permanent. It may also happen that certain original document is in possession of a
person who is in abroad, the production of such document cannot be possible without delay or
expenses. In such situations Section 32 is also applicable.

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 CONCLUSION & SUGGESTIONS

Dying declaration is a legal concept refers to that statement which is made by a dying person,
explaining the circumstances of his death. Lord Lush, L.J., quoted that “A dying declaration is
admitted in evidence because it is presumed than no person who is immediately going into the
presence of his maker, will do 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 tomorrow it
will not do”.

The Supreme Court in Surinder Kumar Versus State of Haryana has discussed the law relating
to the evidentiary value of a dying declaration and whether such a piece of evidence can be the
sole factor for convicting an accused.

In Sham Shankar Kankaria vs. State of Maharashtra, (2006) 13 SCC 165, this Court held as
under: This is a case where the basis of conviction of the accused is the dying declaration. The
situation in which a person is on deathbed 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. Besides, should the
dying declaration be 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.

Term “Dying declaration” which means a statement is made by a person as to cause of his death,
or any of the circumstances of the transaction which resulted in his death and death of such person
comes into question in any suit or proceeding. Such statements are relevant irrespective of the
person who made them was or was not at the time when they were made under the expectation of
death. Thus, it is apt to say that admissibility of dying declaration is explained under section 32
(1) of the Indian Evidence Act, 1872. This is based on the maxim ‘Nemo mariturus
presumuntur mentri’ i.e. A person, who is about to die, would not lie. “Truth sits on the lips of
a person who is about to die.” Our Indian law recognizes this fact that “a dying man seldom
lies”. It is an exception to the general principle of excluding hearsay evidence rule. Here victim
is the only eyewitness to the crime and exclusion of his statement would tend to defeat the end of
justice.

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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 declaration.”

Hypothesis of researcher was found valid and there are no suggestions as such.

BIBLIOGRAPHY

 Indian Evidence Act, 1872

 http://www.legalservicesindia.com/article/1682/Dying-Declaration-Section-
32(1)-of-Indian-Evidence-Act.html
 https://indiankanoon.org/doc/1960263/
 http://www.ourlaw.in/2015/08/dying-declaration-meaning-form-.html

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