s.

32) OF THE RELEVANCY OF FACI'S 285

284 EVIDENCE ACT [S. 31
telling the truth. Besides this, the evidence of C is given under personal
Admission Estoppel responsibility and if he deposes falsely he may be criminally liable. None of
2. Admission is not conclusive 2. Estoppel is conclusive. these sanctions can be availed of against D when he says "C told me that he
evidence. It can be rubutted by saw B attacking A". ln this case 'B attacked A' cannot be stated on oath by D.
positive proof. He can only state on oath that C told him like that. Again he cannot be cross-
examined on the fact of assault. On every question he will plead ignorance and
3. In some circumstances, the 3. Estoppel operates only against say that C knows it. And also there is no fear for him to be prosecuted for
admission of third person binds person making representation and perjury.
the parties to the suit (Section 19 his legal re-presentative.
and Section 20 of Evidence Act). The purpose and reason of the hearsay rule are based on two
4. Admission is weakest kind of 4. Estoppel is regarded a decisive considerations : (1) a necessity for the evidence, and (2) a circumstantial
evidence. evidence of high quality. guarantee of trustworthiness. As said above, hearsay is excluded because it is
considered not sufficiently trustworthy. It is rejected because it lacks the
5. In case of admission, it is not 5. ln case of estoppel, the person to sanction of the tests applied to admissible evidence, namely the oath and cross-
necessary that a party has whom representation is made has examination. But when there are special circumstances which give a guarantee
changed his position on changed his position to his of trustworthiness to the testimony, it is admitted even though it comes from a
inducement of person making detriment. second-hand source. The theory is that there are two principles as the basis of
admission. the necessary exceptions, (1) necessity, (2) special circumstances which render
6. The rules regarding admissions 6. The rules regarding estoppel are the evidence more trustworthy than hearsay evidence in general. It may be
are laid down under Sections 17 to laid down under Sections 115 to impossible, or it may cause unreasonable expense or delay to procure the
23 and Section 31 of Evidence Act. 117 of Evidence Act. attendance, of a witness who, if present before the Court, could give direct
evidence on the matters in question ; and it may also be that this witness has
STATEMENTS BY PERSONS WHO CANNOT made a statement either written or oral with reference to such matter under
BE CALLED AS WITNESSES such circumstances that the truth of this statement may reasonably be
presumed. In such a case the law as enacted by Sections 32 and 33 dispenses with
Principle.-As a general rule, oral evidence must be direct, that is to say, direct oral evidence of the fact and with the safeguard for truth provided by
a fact to be proved by oral evidence must be stated before the court by the person cross-examinations, and the sanction of an oath, the probability of the
who has got first hand knowledge of the facts to be proved. A is murdered by B, statement beiiw true depending upon other safeguards which are mentioned in
C is present on the scene of murder. B is sent up to stand his trial in the Court of the sections. AV the clauses of Section 32 are based upon the principle that the
Sessions Judge. ln this case C may appear as a witness and depose that he saw B statements are· of. such nature or were made under such circumstances as to
assaulting A with dangerous weapon. One D may try to depose as "C told me guarantee their being true, I
that he saw B assaulting A". Here the statement of C ls direct evidence as he
himself saw the occurrence. The statement of D is second hand or derivative Exception to the general rule.-There are several exceptions in the
evidence. The second-hand evidence is loosely termed as 'hearsay evidence'. rule excluding hearsay evidence. Sections 32 and 33 of the Indian Evidence Act
When a witness appears before the court to give evidence of a fact about are exceptions to the rule. Under Sections 32 and 33 derivative, i.e., hearsay
which he has got first rate knowledge, he has to take oath and also the evidence is admissible. These two sections give different instances where
opposite party is given an opportunity to cross-examine him. At the same time, indirect evidence is relevant.2
every witness must give his testimony, under such circumstances as may expose SECTION 32.-Cases in which statement of relevant fact by person
him to all the penalties of falsehood. A second-hand, that is hearsay evidence who is dead or cannot be found, etc., is relevant-Statements,
is generally excluded from evidence on the grounds: (1) that it is not stated on written or verbal, of relevant facts made by a person who is dead, or
oath, (2) that the party against whom the proof is offered, has no opportunity who cannot be found, or who has become incapable of giving evidence, or
of cross-examining the original source whence it is derived, and (3) that the whose attendance cannot be procured without an amount of delay
person putting the fact before the court is immune from all sorts of penalties of r expense which, under the circumstances of the case, appears to the
falsehood.
court unreasonable, are themselves relevant facts in the following
In the example given above if C appears before the court, he will have to cases:-
take oath that he will tell the truth. When he has deposed that he saw B
assaulting A, the counsel for B will cross-examine him to show that he is not I. Soney Lal ti. Daribdeo, AIR 193.5 Pat 167.
2. Mst. Biro t1. Atma Ram, AIR 1937 PC 101.
286 EVIDENCE ACT [S. 32
(1) When it relates to cause of death.-When the statement is·
made by a person as to 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 dare of a letter or other
document usually dated, written or signed by him.
(3) Or against interest of maker.-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).
s. 32] OF THE RELEVANCY OF FACTS 287
(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.
Illustrations
(a) 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 she was ravished by B; or
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 the cause of his or her death, referring
respectively to the murder, the rape and the actionable wrong under
consideration, are relevant facts.
(b) The question is as to the date of A's birth,
An entry in the diary of a deceased surgeon, regularly kept 1,1 the course of
business, stating that, on a given day he attended A's mother and delivered her
of a son, is a relevant fact.
(c) The question is, whether A was in Calcutta on a given day.
A statement in the diary of a deceased solicitor, regularly kept in the
course of business, that on a given day the solicitor attended A at a place
mentioned, in Calcutta, for the purpose of conferring with him upon specified
business, is ·a relevant fact.
(d) The question is, whether a ship sailed from Bombay harbour on a
given day.
A letter written by a deceased member of a merchant's firm, by which she
was chartered, to their correspondents in London to whom the cargo was
consigned, stating that the ship sailed on a given day from Bombay harbour, is
a relevant fact.
(e) The question is, whether rent was paid to A for certain land.
A letter from A's deceased agent to A, saying that he had received the
rent on A's account and held it at A's orders is a relevant fact.
(j) The question is, whether A and B were legally married.
The statement of a deceased clergyman that he married them under such
circumstances that the celebration would be a crime, is relevant.
(g) The question is, whether A, a pen.;,n who cannot be found, wrote a
letter on a certain day. The fact that a letter written by him is dated on that
day is relevant.
(11) The question is, what was the cause of the wreck of a ship.
A protest made by the Captain, whose attendance cannot be procured, is a
relevant fact.
288 EVlDENCE ACT
(i) The question is, whether a given road is a public way.
A statement by A, a deceased headman of the village, that the road was
public, is a relevant fact.
(j) The question is, what was the price of grain on a certain day in a
particular market. A statement of the price, made by a deceased baniya in the
ordinary course of his business, is a relevant fact.
(k) The question is, whether A, who is dead, was the father of B.
A statement by A that B was his son, is a relevant fact.
[S. 32
s. 32] OF THE RELEVANCY OF FACTS 289
and like any other substantive evidence requires no corroboration for forming
basis of conviction of an accused. But then the question as to how much weight
can be attached to a dying declaration is a question of fact and has to be
determined on the facts of each case.1 It must be borne in mind that in order to
make a statement admissible under Section 32, Evidence Act, one of the
conditions mentioned in the groups (a) to (d) and one of the conditions mentioned
under the headings 1 to 8 must be fulfilled. Now we shall deal with these
headings separately.

(/) The question is, what was the date of the birth of A.
A letter from A's deceased father to a friend, announcing the birth of A on
a given day, is a relevant fact.
(m) The question is, whether, and when, A and B were married.
An entry in a memorandum-book by C, the deceased father of B, of his
daughter's marriage with A on a given date, is a relevant fact.
(n) A sues B for a libel expressed in a painted caricature exposed in a shop
window. The question is as to the similarity of the caricature and its libellous
character. The remarks of a crowd of spectators on these points may be proved.
COMMENTS
Principle.-Under Section 32, statements written or verbal, of relevant
facts when made by a person (a) who is dead, or (b) who cannot be found, or (c)
who has become incapable of giving evidence, or (d) whose attendance cannot be
procured without an amount of delay or expense which, under the circumstances
of the case, appears to the court unreasonable themselves are relevant facts, (1)
it relates to the cause of his death, or to any of the circumstances of the
transaction which resulted in his death, or (2) it is made in course of business, or
(3) it is made against the interest of the maker, or (4) it gives its opinion as to
public right or custom or matters of general interest, or (5) it relates to existence
of relationship, or (6) it is made in will or deed relating to family affairs, or (7)
it is made in document relating to transaction mentioned in Section 13, clauses
(a) or (b), or (8) it is made by several persons, and expressed feelings to the
matter in question.
But before statements can be admitted under this section, it must be proved
that the makers of these statements are either dead or for any other reason are
not available as witness. Dying declaration would not Jose its value on ground
that deceased died long after making dying declaration.l A dying declaration
made by a person who is dead as to cause of her death or as to any of the
circumstances of the transaction which resulted in his death, in case in which
cause of his death comes in question, is relevant under Section 32 of the Evidence
Act and is also admissible in evidence. Though dying declaration is indirect
evidence being a specie of hearsay evidence, yet it is an exception to the rule
against admissibility of hearsay evidence. Indeed, it is substantive evidence
1. Najjam Faraghl v. State of W.B., AfR 1998 SC 682.
(a) Who is dead.-Before admitting evidence under Section 32, the
death of the person whose statement is to be proved must strictly be proved.
Death is universally considered to be sufficient to satisfy the necessity of the
principle. The statements of dead persons are admitted as relevant upon the
principle that by the death of the person the better evidence cannot be laid.
Where person making a dying declaration survives, his statement will not be
admissible under Section 32. It may be admitted in any other section of the
Act.2
(b) Who cannot be found.-If a person after making a certain
statement disappears and is unheard of, no person can compel his presence as a
witness. If a party to a proceeding is able to prove that some person has
disappeared, his previous statement, if relevant, can be proved. The only
objection to admitting of evidence on this ground is the possibility of collusion
between the party and the witness.
Before a statement can be admitted on this ground it must be proved that
the person seeking to adduce the previous statement of such person, has made an
honest effort to examine that person.
(c) Incapable to give evidence.-Sometimes it so happens that a man
after making certain statement becomes physically unfit to depose. In such a
case his previous statement, if it fulfils any of the conditions laid down in the
clauses (1) to (8), may be proved in a proceeding.
(d) Delay or expenses.-When the appearance of a witness cannot be
procured without unreasonable delay or expenses, his previous statement if
relevant is admissible. Plaintiffs were the agents of the defendant for the sale
of certain produce shipped to Europe. Such produce was disposed of by the
plaintiff's sub-agents, at various markets abroad, who were submitting accounts
to the plaintiffs for the sums realized by the sale of the produce. These accounts
of sales were admitted in evidence under Section 32 of the Evidence Act without
summoning the agents, because the persons who had prepared the accounts could
not be produced before the court without unreasonable delay and expenses. But
the mere fact that a person is living far away from the place of trial is not a
ground for admission in evidence under Section 32 of the Evidence Act of a
previous statement ""'.lde by him. Before doing so, it has to be proved that the
attendance cannot be procured withou~ unreasonable delay or expenses.
l. Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850,
2. Chalianadan v. Rex, AIR 1942 Mad. 450.
 290 EVIDENCE ACT [S. 32
In the case of Prithi Chand v. State of H. P} the lady doctor who had
examined the victim being on long leave was not available for giving evidence:
The learned Session Judge felt that her presence would not be procured without
unreasonable delay. Therefore, the Court permitted the prosecution to prove
certificate through another doctor who was conversant with her handwriting
and signature.
Clause (1)-Dying declaration
Definition.-The term 'dying declaration' has not been defined in
Evidence Act but reading Section 32 and sub-section (1) of Section 32, the term
"dying declaration" may be defined as follows:
"A dying declaration is statement made by a person who is dead; as to
cause of his death or as to any circumstances of transaction which resulted in
his death, in cases in which his death comes into question, such statements are
relevant under Section 32 of Evidence Act, whether the person who made there
was or was not, at the time when they were made, under expectation of death
and whatever may be the nature of proceeding in which the cause of his death
comes into question."2
Dying declaration oral or written.-When she gives names of
assailants to person present. If it is written by any of them it is relevant dying
declaration. People present may depose orally that the deceased has told the
name of his assailants.3
Oral dying declaration.-Oral dying declaration is admissible in
evidence as an exception to the general rule of evidence that hearsay evidence
is no evidence in eye of law and it should be discarded as general rule because
the evidence in all cases must be direct.
Oral dying declaration is an exception to the rule of hearsay
evidence.4
The oral dying declaration made by the deceased before his wife, the
father-in-law and other relatives was made in the conscious state. The doctor
who performed post mortem examination of the deceased was not cross-
examined regarding the mental state of the deceased. It was held that the
dying declaration was absolutely credible and conviction based on the same
could not be faulted.5
In Amar Singh v. State of Rajasthan,6 the deceased woman's brother and
mother gave the evidence, that the deceased made the statement month prior
to the incident of suicide by her that the appellant, her husband used to taunt
the deceased saying that she had come from a hungry house and the appellant
himself visited their house and demanded Rs. 10,000/-. It was held to be a
1. AfR 1989 SC 702.
2. Ram Bihari Yadav v. State of Bihar, AJR 1988 SC 1850.
3. Nanhu Ram ;i. State of M.P., AlR 1988 SC 512.
4. Bable v. State of Chhattisgarh, AIR 2012 SC 2621.
5. Prabin Ah v. Slale of Assam, AJR 2013 SC 542.
6. AlR 2010 SC 3391.
s. 32) OF THE RELEVANCY OF FACI'S 291
dying declaration and the appellant was convicted under Sections 3048 and
498-A of IPC. The argument that the evidence of brother and-mother were
hearsay was held to be misconceived. The Court referred to Pakala Narain
Swamy v. Emperor,1 in which Lord Atkin held that circumstances of the
transaction which resulted in the death of the declarant will be admissible if
such circumstances have some proximate relation to the actual occurrence. In
Sharad Birdichand Sarda v. State of Maharashtra,2 the test laid down by
Lord Atkin was quoted by Justice Fazal Ali. He held that where the main
evidence consists of statements and letters written by the deceased which are
directly connected with or related to her death and which reveal a tell-tale
story, the said statements would clearly fall within the four comers of Section
32 and therefore admissible and distance of time alone in such cases would not
make the statements irrelevant.3
In Vijay Pal v. State (Government of NCT) Delhi,4 the deceased's
daughter about 10 years came running to her mother's paternal house situated
at a distance of about half a kilometre and told the P.W.-8, the father of the
deceased and P.W.-1, the deceased's brother, that her father was threatening
to bum her mother. P.W.-1 reached earlier than his father at the house of his
sister and found the deceased burning. The deceased told him that the accused,
her husband, had put her ablaze by pouring kerosene. The brother poured water
on the deceased to extinguish fire. The brother and father with two other
persons took her to Deen Dayal Upadhyay hospital but due to lack of facility
they brought her to Safdarjung hospital. Despite being admitted there and
available treatment, she died. The Trial Court convicted the accused for an
offence under Section 302 of I.P.C. and sentenced him to suffer rigorous life-
imprisonment. It was one of the grounds urged by the amicus curiae before the
Supreme Court in appeal that the High Court had flawed by placing reliance
on the oral dying declaration of the deceased to her brother when she had
suffered serious bum iniuries and in such a situation, it could not have been
possible on her part t; tell any thing to her brother. The Supreme Court
dismissed the appeal and held-
The law is quite clear that if the dying declaration is absolutely credible
and nothing is brought on record that the deceased was in such a condition, he or
she could not have made a dying declaration to a witness there is no
justification to discard the same. P.W.-1 had immediately rushed to the house
of the deceased to whom she told that her husband had poured kerosene on
her.5
In a case of bumning the deceased by the husband, the dying declan... tion
about which the Court is satisfied to be fully true and there is no evidence to
1. AJR 1939 PC 47.
2. AJR 1984 SC 1622.
3. Amar Singh v. State of Rajasthan, AIR 2010 SC 3391 at p. 3395.
4. AIR 2015 SC 1495.
S. Vijay Pal v. Stntt (Government of NCT) Delhi, AIR 2015 SC 1495 at p. 1502; Mafabha:! Hajarbhai
Roval v. Stale of Gujarat, AIR 1992 SC 2186 referred to when the Court had held that a person
suffering 99% bum injuries could be deemed capable enough to make a dying decl.uatiOJI-

292 EVIDENCE ACT [S. 32
the contrary that the effort was made by anyone to induce the deceased to make
the false statement, the absence of kerosene oil in the hair of the deceased sent
for chemical examination does not render the dying declaration doubtful and
unbelievable.1
Unless one is certain about the exact words of the deceased no reliance can
be placed on verbal dying declaration.2 Ordinarily an oral dying declaration is
by itself insufficient for sustaining conviction.3
The reason for admitting dying declaration in evidence
A dying declaration is admitted in evidence on the principle nemo
moriiurns proesumitur mentiri' (a man will not meet his maker with a lie in his
mouth).4
The philosophy of law, which signifies importance of dying declaration
is based on the maxim 'nemo moriiusus prasumltu« mennre' (no one at the time of
death is presumed to lie and he will not meet his maker with a lie in his
mouth). Dying declaration does not require any corroboration as long as it
inspires confidence in the mind of the Court" and it is free from any form of
tutoring. Dying declaration has to be judged 'in . the light of surrounding
circumstances.5
In Uka Ram v. State of Rajasthan,6 it was held by Supreme Court that
the admissibility of dying declaration rests upon principle that a sense of
impending death produces in man's mind the same feeling as that of
conscentious and virtuous man under oath. Dying declaration is admitted upon
consideration that the declaration is made in extremity; when the maker of
declaration is at the point of death and when every hope of this world is gone;
when every motive of falsehood is silenced and mind induced by the most
powerful consideration to speak the truth. The principle on which the dying
declaration is admitted is based upon the maxim Nemomoriiurus Praesumitur
Mentire which means 'the man will not meet his maker with a lie in his
mouth'. It has always to be kept in mind that though dying declaration is
entitled to a great weight yet it is worthwhile to note that as the maker of the
statement is not subject to cross-examination, it is essential for the Court to
insist that dying declaration should be of such nature as to inspire full
confidence of the Court in its correctness. The Court is obliged to rule out the
possibility of statement being either the result of tutoring, prompting, or
conducive, or product of imagination.
The famous legal maxim Nemo Moriturus Praesumitur Mentiri means a
man will not meat his maker with a lie in his month. Indian Law recognises
this fact that "a dying man seldom lies" or "truth sits upon the tips of a dying
1. Tanua Rabldas v. State of Assam, AIR 2014 SC 3769; State of Rajasthan v. Kishore, Aff, 1996 SC
3035 referred to.
2. Ramnath v. State ofM.P., AJR 1953 SC 42.
3. Bhagwan v. State of Rajasthan, AIR 1957 SC 589 ; Pritam Singh v. State, 1972 A WR 521.
4. Shakuntala v. State of Haryana, AJR 2007 SC 2709 at p. 2711.
5. Umakant v. State of Chhattisgarh, AJR 2014 SC 2943.
6. AIR 2001 SC 1814, Smt. L.axmi v. Om Prakash, AJR 2001 SC 2383.
s. 32] OF 11-1:E RELEVANCY OF FACTS 293
man". The rule is relevant although it is exception to the rule of hearsay
evidence.1
By Section 32(1) two categories of statements are made admissible in
evidence. They are (1) cause of death (2) statement as to any circumstances of
transaction which resulted in death.2
In Sharad Birdichand Sarda v. State of Maharashtra,3 the Supreme
Court through Justice Syed Murtaza Fazal Ali laid down following
propositions-
(1) Section 32 is an exception to the rule of hearsay and makes admissible
the statement of a person who dies, whether the death is a homicide or a
suicide, provided the statement relates to the cause of death, or exhibits
. circumstances leading to the death. In this respect, as indicated above, the
Indian Evidence Act, in view of the peculiar conditions of our society and the
diverse nature and character of our people, has thought it necessary to widen
the sphere of Section 32 to avoid injustice.
(2) The test of proximity cannot be too literally construed and practically
reduced to a cut-and-dried formula of universal application so as to be confined
to a straight-jacket. Distance of time would depend or vary with the
circumstances of each case. For instance, where death is a logical culmination of
a continuous drama long in process and is, as it were, a finale of the story, the
statement regarding each step directly connected with the end of the drama
would be admissible because the entire statement would have to be read as an
organic whole and not tom form the context. Sometimes, statements relevant to
or furnishing an immediate motive may also be admissible as being a part of
the transaction of death. It is manifest that all these statements come to light
only after the death of the deceased who speaks from death. For instance,
where death takes place within a very short time of the marriage or the
distance of time is not spread over more than 3- 4 months, the statement may be
admissible under Section 32.
(3) The second part of clause (1) of Section 32 is yet another exception to
the rule that in criminal law, the evidence of a person who was not being
subjected to or given an
opportunity of being cross-examined by the accused,
would be valueless because the place of cross-examination is taken by the
solemnity and sanctity of oath for the simple reason that a person on the verge
of death is not likely to make a false statement unless there is strong evidence
to show that the statement was secured either by prompting or tutoring.
(4) It may be important to note that Section 32 does not speak of homicide
alone but includes suicide also, hence all the circumstances which may be
relevant to prove a case of homicide would be equally relevant to prove a case
of suicide. ·
1. State of Maharashtra v. Nisar Ramzan Sayyed, AlR 2017 SC 2363; Uu R11.m v. State of
Rajasthan, AIR 2001 SC 1814; Babu Lal v. State of M.P., AIR 200& SC 846; Muthu Kutty v. Stale,
AIR 2005 SC 1473; Dharam Pal v. State of U.P., AIR 2008 SC 920; Lakhan v. State of M.P., 2010
AIR sew 5993.
2. Patel Hira Lal Joita Ram v. State of Gujarat, AIR 2000 SC 2944.
3. AIR 1984 SC 1622.
 294 EVlDENCE ACT [S. 32
(5) Where the main evidence consists of statements and letters written by
the deceased which are directly connected with or related to her death and
which reveal a tell-tale story, the said statement would clearly fall within
the four comers of Section 32 and, therefore admissible. The distance of time
alone in such cases would not make the statement irrelevant." 1
Cause of death.-This clause lays down that when the statement is
made by a person as to the cause of his death, or as to any of the circumstances
of transaction which resulted in his death, his statement would be relevant in a
case in which .the cause of his death is the point at issue. A is assaulted and
dies. Before his death he makes a statement that "B assaulted him with
spear." This statement of A is admissible as it relates to the cause of his death.
The fact that the deceased lingered for some days after receiving fatal injuries
does not deprive the statement of its character as a dying declaration
admissible under this section. The interval between the statement and the
death is immaterial. If the statement relates to the cause of deponent's death
it is admissible.2 But if there is nothing to show that the injuries to which the
statement of the deceased related were the cause of his death the statement is
not admissible as dying declaration. If the deceased stated that he was injured
by X but he did not die of the injuries rather he died of some illness such as
pneoumonia, his statement that X caused him injuries cannot be admitted under
this section.3 If a woman is raped and makes statement that X raped her and
three days after she commits suicide, the rape is not the cause of her death and
therefore her statement that X raped her is not admissible as dying
declaration.4 A girl was ravished. Soon after the occurrence she committed
suicide by setting fire to her body. Her statement about rape was held not
admissible as the rape on the girl could not be said to be cause of her death.5
Where the cause of death of the deceased is not in question, the
statements made by the deceased in her letter to the Police cannot be taken to be
proof of cruel acts committed by her husband, the appellant for the purpose of
holding him guilty under Section 498A.6
Dedarant died of injury to be proved.-Before the statement of a
person as to cause of his death may be used as dying declaration it must be
proved that his death was caused by the injury he received in the incident for
which accused is being prosecuted. Moti Singh was tried for the murder of
1. Hanumant 11. State of Madhya Pradesh, (1952) SCR 1091 ; Dhararnbir Singh v. State of Punjab,
AIR 1958 SC 152; Ratan Gond v. State of Bihar, (1959) SCR 1336; Pakala Narayana Swami v.
Emperor, AIR 1939 PC 47 ; Shiv Kumar and others v. State of Uttar Pradesh, Crl. Appeal No. 55
of 1966 decided on 29.7.66: ()966) Crl. Appeal SC 281; and Protima Dutta and another v. State,
41 CWN 713 referred to. Manohar Lal and others v. State of Punjab, (1981) Cr.LJ 1373; Onkar v.
State of Madhya Pradesh, (1974) Crl. LJ 1200; Allijan Munshi v. State, AIR 1960 Born. 290;
Chinnavalayan v. State of Madras, (1959) MLJ 246; Rajindera Kumar v. State, AIR 1960 Punj.
310; and State v. Kanchan Singh and another, AIR 1954 All. 153 approved. Gokul Chandra
Chatterjee v. State, AIR 1950 Cal. 306, overruled.
2. Abdul Gani v. Emperor, AIR 1943 Cal 465.
3. R. v. Rud re, ILR 29 Bom 45; Wali Mohammad v. Emperor, AIR 1930 Oudh 249.
4. Kapeviah v. Emperor, AIR 1931 Mad. 233.
5. Narain Singh v. State of Bihar, AIR 1961 SC 137. / 5.
6. Kantilal Martaji Pandor v. State of Gujarat, AIR 2013 SC ~055.
I \/
s. 32] OF THE RELEVANCY OF FACTS 295
Gayacharan, a statement of deceased Gyacharan to the effect that Moti and
cne man fired gun shots at him was used as dying declaration at the trial. The
incident took place on 4th February, 1960. Gayacharan's injuries were examined
by 'doctor, same day. He found two gun shot wounds dangerous to life.
Gyacharan left hospital either he was discharged on healing of the injury or
he left hospital before injuries were healed up. He died on 1st March 1960.
There was no evidence on the record as to what caused Gayacharan's death. It
was held that the statement of Gayacharan could not be used as dying
declaration.1 Chandra Bhan Singh was tried of the murder of Shaitan Singh.
The deceased Shaitan Singh himself lodged report in which he narrated the
story of incident. After the medical examination the deceased developed
tetanus and died of it, it was held that the statement of deceased could not be
used as dying declaration.2
Circumstances of the transaction which resulted in his death.-
The words "resulted in his death" do not mean 'caused his death.' The
expression "any of the circumstances of the transaction which resulted in his
death" are wider in scope than the expression "cause of death." A statement not
relating to the cause of death of its maker may be admissible if it relates to the
circumstances of the transaction which resulted in his death.3 In a case of
robbery a statement made by a person before her death regarding the
circumstances of the robbery is admi...sible. Although remotely, her death was
caused by wounds received at the robbery.4
In Patel Hiralal Joita Ram v. State of Gujarat,5 it was held by Supreme
Court that the words "Statement as to any circumstances" are by themselves
capable of expanding the width of scope of admissibility. When the word
'circumstances' is linked to transaction which resulted in his death, the sub-
section casts the net in very wide dimension. Any thing which has nexus with
his death proximate or remote, direct or indirect can also fall within the
purview of sub-section.
In Pakulanarain Swami v. Emperor,6 the deceased was a man of about 40.
He had been a peon in the service of the Dewan of Pithapur. Pakala Narain
Swami, the accused, was married to one of the daughters of the Dewan of
Pithapur. After marriage, the accused Narayan Swami and his wife went to
hve at Berhampur about 250 miles from Pithapur. In the year 1933, they came
back to Pithapur where they stayed with the Dewan. They seemed at that
time to have been in need of money, and during 1936 the wife of the accused
borrowed from the deceased at various times an amount of Rs. 3,000. On
Saturday 20th March, 1937, the deceased received a letter from the accused
inviting him to come that day or next day to Berhampur. The deceased left his
house on Sunday 21st March, in time to catch the train for Berhampur. He did
1. Moti Singh v. State of UP, AIR 19M SC 900.
2. Chandra Bhan Singh v. State, 1971 CrLJ 94.
3. Danu Singh v. Emperor, A[R 1925 All 227.
4. Nga Ba Mim v. Emperor, AIR 193.5 Rang. 418.
AlR 2001 SC 2944.
6. AlR 1939PC47.
 296 EVIDENCE ACT
not come back. On Tuesday 23rd March, 1937, at about noon, the body of the
deceased was found in a steel trunk in a third class compartment at Puri. The
body had been cut into seven portions. The body of the deceased was identified
by his widow. The accused was tried and convicted for murder and was
sentenced to death.
During the trial, the widow of the deceased stated before the Court that
on that day her husband showed her a letter and said that he was going to
Berhampur as the appellant's wife had written to him to come and receive
payment of his dues. The evidence was objected to.
Their Lordships of the Privy Council held that this statement related to
the circumstances of the transaction which resulted in his death and so it was
relevant. They also held that the statement made by the deceased that he was
proceeding to the spot where he was killed or as to his reason for proceeding or
that he was going to meet a particular person or that he had been invited by
such person to meet him would each of them be circumstances of the transaction
and wou]d be so whether the person was unknown or was not the person accused.
"Circumstances of the transaction" is a phrase no doubt that conveys some
limitations. It is not as broad as the analogous use in "circumstantial evidence"
which includes evidence of all relevant facts. It is on the other hand narrower
than "res gestae." Circumstances must hav ; some proximate relation to the
actual occurrence and must be of the transaction which resulted in death of the
declarant, though as for instance in case of prolonged poisoning they may be
related to dates at a considerable distance from the date of the actual fatal
date. It is not necessary that there should be a known transaction other than
that the death of the declarant has ultimately been caused, for the condition of
the admissibility of the evidence is that "the cause of (the declarant's) death
comes into question." In the present case the cause of the deceased's death comes
into question. The transaction is one in which the deceased was murdered on
21st March or 22nd March, and his body was found in a trunk proved to be
brought on behalf of the accused. The statement made by the deceased on 20th
or 21st March, that he was setting out the place where the accused lived and to
meet a person, the wife of the accused, who lived in the accused's house,
appears clearly to be statement as of some of the circumstances of the
transaction which resulted in his death.1
It is to be borne in mind that general expressions indicating fear or
suspicion whether of a particular individual or otherwise and not directly
related to the occasion of death will not be admissible and so will be
irrelevant.2 The deceased long before- the death made application to
authorities that she was threatened by her brother-in-law. This was held
relevant.3 In a case of dowry death the statement of the deceased to her
relation to the extent that she was harassed for dowry is relevant under Section
32(1) Evidence Act.
I. Ganga Smgh v. Emperor, AIR 1944 Lah 837; Kunwarpal Singh v. State, AIR 1957 All 387.
2. 0.B. Desh Mukh v. State, AIR 1970 Dom 438.
3. S.B.S. v. State of Maharashtra, 1984 Cr LJ 1738; P.B. v. Stale of AP., 1989 Cr LJ 1186.
[S. 32 s. 32] OF THE RELEVANCY OF FACTS 297
In Kans Raj v. State of Punjab,1 the Supreme Court made the following
observation :
The words "as to any circumstances of transaction which resulted into his
death." appearing in Section 32 makes it clear that the circumstance resulting
in death must have proximate relation to actual occurrence. In other words, the
statement of the deceased relating to cause of his death or circumstances ot
transaction Jed to his death must be sufficiently and clearly related with the
actual transaction.
Intention to use statement as dying declaration not necessary.-
The Supreme Court in Bhagirath v. State of Haryana,2 held that it was not
necessary that while recording statement of deceased there must have been
intention to use the statement as dying declaration. In this case, the deceased
sustained gun-shot. He was admitted in the hospital. Police constable took
statement from victim for purpose of registering the case. There was no intention
to use the statement as dying declaration. Then the constable called Magistrate
to record dying declaration. Before the Magistrate came, the victim died.
Held-The statement recorded by constable could be relied as dying
declaration.
When the person making statement not dead.-In a case of
suspected case of consumption of poison by the accused person, she was sent to
the hospital for treatment. The records of the hospital also showed the case of
suspected consumption of poison. She survived and there was no danger to her
life. It cannot be said that sending Judicial Magistrate for recording dying
declaration was not right. It would be relevant as a confessional statement if
recorded according to procedure prescribed in Cr. P. C.3
Statement about the death of another.-The dying declaration is
the statement 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. Statement of the
deceased as to the cause of the death of another person is not admissible under
Section 32. The statement of the deceased to the effect that another person who
had died was stabbed by the accused is inadmissible under Section 32. Where
there are cross cases for deaths of persons of two parties a dying declaration of a
member of one party could not be used as evidence in the case against the
member of his own party. The appellant was a resident of village Urte. One
Mst. Jatari who was a widow also lived in the same village. She had two
young daughters one named Baisakhi and the other named Aghni. the
appellant was charged with the murder of Baisakhi. On Tuesday 7th May,
1957 the two sisters Baisakhi and Aghni had gone out to pluck wild berries in a
hilly jungle. On the same day Mst. Jatari had herself gone to pluck berries at
place. When she left the house in the morning her two daughters were in the
house. Mst. Jatari came back about noon and found Aghni alone in the house.
She enquired from Aghni about the elder sister Baisakhi and Aghni made
certain statement to her mother as well as to other persons later that day and
I. AIR 2000 SC 2324.
2. AIR 1997 SC 234
3. Ram Singh v. Sonia, AIR 2007 SC 1218 at pp. 1225, 1226.
298 EVIDENCE ACT [S. 32
the next day, which related to the circumstances of the transaction which
resulted in death of Baisakhi. Aghni, however, died before her statement
could be recorded in any Judicial proceedings. The courts below and the High
Court relied upon the statements of Smt. Aghni referred to above. It was held
that as the statement made by Aghni did not relate to the cause of her death or
any of the circumstances relating to her death; on the contrary, the statements
related to the death of her sister. Therefore, they were not admissible under
Section 32 (1).1
Statements not connected with the cause of death.-The dying
declaration is the statement made by a person to the cause of his death or as to
any of the circumstances of the transaction which resulted ~his death and
such details which fall outside the ambit of this are not sffjf,'tly within the
permissible limits laid down by Section 32 (1) of the Evidence Act and unless
absolutely necessary to make a statement coherent or complete should not be
included in the statement. Where the dying declaration is a long document and
is a narrative of a large number of incidents which happened before the actual
resort, such long statement being more in the nature of first information reports
than recitals of the cause of death or circumstances resulting in it, are likely to
give impression of their being not genuine or not having been made unaided
without prompting.I
Where the statement made by the deceased was not in regard to cause of
his death or as to any of the circumstances of the transaction resulting in his
death and the statement related to the accused's involvement in the abduction
of a boy having no remote connection or reference to the death of the deceased,
it would not be admissible under Section 32 of the Evidence Act.3
In Bhairon Singh v. State of M.P.,4 the body of the deceased lady was
found in a well in a village. The cause of death was asphyxia due to drowning.
She was married to accused-appellant about 10 years before her death and
Gauna ceremony took place about three years' after marriage. The trial Court
held the death accidental. Since the marriage of the deceased had taken place
with the accused-appellant more than seven years before the date of her
death, the presumption under Sections 113-A and 113-B of the Indian Evidence
Act was not attracted and acquitted the accused of offence under Sections 304-B
and 306 of l.P.C. but the trial Court held the accused guilty under Section 498-A
of I.P.C. and Section 3 of Dowry Prohibition Act, 1961 and sentenced the accused
with rigorous imprisonment of three years along with a fine of Rs. 5,000/- for
the offence under Section 498-A of I.P.C. and rigorous imprisonment of five years
along with fine of Rs. 15,000/- for the offence under Section 3 of Dowry
Prohibition Act. The High Court set aside the conviction and sentence under
Section 3 of the Dowry Prohibition Act but maintained conviction under Section
498-A of l.P.C. The basis of conviction was the only evidence of P.W.-4 and
P.W.-5, the brothers of the deceased that their deceased sister told them that
1. Ratan Gond v. State of Blhar, AIR 1959 SC 18.
2. Bakshi Singh v. State of Punjab, AIR 1957 SC 904.
3. Vinay D. Nagar v. State of Rajasthan, AIR 2008 SC 1558 at p. 1564.
4. AIR 2009 SC 2603.
s. 32] OF THE RELEVANCY OF FACTS 299
the accused used to torture her as he wanted her brothers to arrange a job for
him or a house be given to him or a cash of Rs. 1 lakh be given to him to enable
him to do some business. On the deposition they stated that as and when their
sister came to their house, she would tell them that the accused used to insert
cloth in her mouth and give beatings for dowry.
The Supreme Court set aside the conviction of the accused appellant.
Justice R.M. Lodha observed:
"In our considered view, the evidence of P.W.-4 and P.W.-5 about what
the deceased Ranjana Rani alias Raj Kumari had told them against the
accused about torture and harassment is inadequate under Section 32 (1) of the
Evidence Act and such evidence cannot be looked into for any purpose. Except
Section 32 (1) of the Indian Evidence Act, there is no other provision under
which the statement of a dead person can be looked into in evidence. The
statement of a dead person is admissible in law if the statement is as to the
cause of death or as to any of the circumstance of the transactions which
resulted in her death, in a case in which cause of death comes into question.
What has been deposed by P.W.-4 and P.W.-5 has no connection with any
circumstance of transaction which resulted in her death. The death of Smt.
Ranjana Rani alias Raj Kumari was neither homicidal nor suicidal; it was
accidental. Since for an offence under Section 498-A simpliciter, the question of
death is not and cannot be an issue for consideration, we are afraid evidence of
P.W.-4 and P.W.-5 is hardly an evidence in law to establish such offence. In
that situation Section 32(1) of the Evidence Act does not get attracted."1
Circumstance not relating to the cause of death.-In Babubhai
Bhimabhai Bokhiria v. Stnte of Gujarat,2 the deceased was murdered. After
investigation of the case, the police submitted charge-sheet. The case was
committed for trial to the Court of Session. During such pendency of the case,
the wife of the deceased filed an application for further investigation of the
case under Section 178(3) of the Cr. P.C. alleging petitioner's complicity in the
crime alleging, inter alia, that the petitioner, a business rival of the deceased
conspired with the main accused, the business partner of the petitioner, to kill
the deceased. Since the petitioner was a Minister earlier in the State, he was
. let-off during investigation. It was pointed out that a letter written almost a
year ago by the deceased in his own hand writing was found in his purse which
stated that in the event of his death, the petitioner would be held liable as he
intended to kill him. The letter read as follows-
"Date : 18.11.2004
I, Mulubhai Modhvadiya write this note that the then Irrigation
Minister Babubhai Bokhiria alias Babulal want to kill me due to personal
differences with me: Therefore, I inform to the State and to the police by
this note that whenever I die, then I request to do thorough investigation
because phone calls are coming threatening to kill me. If I will make
1. Bhairon Singh v. State of M.P., AIR 2009 SC 2603 at p. 26f!l, lnde.r Pal v. State of M.P., (2001) 10
sec 736 referred to in support.
2. AIR 2014 SC 2228.
300 EVlDENCE ACT [S. 32
complaint today then he will by using his influence destroy the complaint,
therefore I am keeping this note in my purse and I am clearly stating that If
I will die due to murder then my murder will be done by Babu Bokhiria
only, if dumb Government listen to my note then take strict action against
Babu Bhokhiria and my soul will be pleased. I am also giving my finger
print on this letter and also signing under it. Therefore, you have no doubt
about it.
Yours sincerely
Sd/-
(Mulubhai Modhvadiya)"
On the direction of Sessions Judge, the case was reinvestigated. The Police
did not find complicity of the petitioner. On the basis of the letter written by
the deceased and confirmation of two witnesses that the letter was in the
handwriting of the deceased, the Sessions Judge taking the view of prima [acie
strong case against the accused summoned the petitioner. Against this. order,
the special criminal application filed in the High Court was dismissed. The
Supreme Court allowed the appeal and held-Under Section 319 of the Cr.
P.C., degree of satisfaction of the Trial Court for adding a person as an accused
who has been erroneously omitted or deliberately excluded by investigating
agency is much higher. In the present case, except the apprehension expressed
by the deceased, the statement made by him does not relate to the cause of his
death or to any circumstance of the transaction which resulted in his"death.
The note does not satisfy the requirement of Section 32. In our opinion, it is not
admissible in evidence and thus, cannot be considered as such to enable exercise
of power under Section 319 of the Code.1
Dying declaration being integral part of circumstances resulting
in death of another person.-ln Tejram Patil v. State of Maharashtra,2 the
deceased, Savita, was subjected to cruelty. The prosecution case was that on the
fateful day the appellant her husband returned home in a drunken state and
started to abuse her and her mother, Prabhabai, who had come on a visit to her
daughter's house and they picked up quarrel. The appellant poured kerosene on
his wife and set her on fire. Her mother and P.W.-1 tried to extinguish the fire
and they also sustained bum injuries. They were taken to the hospital. The
dying declarations of the deceased and her mother and the statement of P.W.-1
were recorded. The deceased died. Three days, thereafter her mother also
died. The accused's version that the cause of death was suicide was'found to be
false. The question involved was the admissibility of the statement of her
mother relating to cause of death of her daughter. The Court held-
Dying declaration is admissible not only in relation to the cause of death
of the person making the statement and as to the circumstances of the
1. Babubhai Bhimabhai Bokhiria v. State of Gujarat, AIR 2014 SC 2228 at pp. 2230, 2231, 2232;
Pakala Narain Swamy v. King Emperor, AIR 1939 PC 47; Shiv Kumar v. State of U.P., Cr. Ap.
No. 55 of 1966, decided on 29th July, 1966 (SC); Sharad Birdichand Sarda v. State of
Maharashtra, AIR 1984 SC 1622; Rattan Singh v. State of Himachal Pradesh, AIR 1997 SC 768,
referred lo.
2. 2015 Cri LJ 1829 (SC).
s. 32] OF l1iE RELEVANCY OF FACTS 301
transaction which resulted in his death, if the circumstances of the said
transaction relate to the death of another person, the statement cannot be held
to be inadmissible when circumstances of "his" death are integrally connected
to the circumstances of death of such person. The statement of pouring of
kerosene on Savita, intervention of Prabhabai in process and her receiving bum
injuries resulting in her death are integral part of the same transaction. Thus,
the statement which relates to circumstances of the transaction resulting in her
death being admissible, can be relied upon to show as to how the death of
Savita took place.!
Dying declaration not recorded directly from the actual words of
maker.-Where the dying declaration was recorded not directly from the
actual words of maker but as dictated by somebody else, this by itself created a
lot of suspicion about its credibility and the prosecution should have cleared
the same to the satisfaction of the Court. The Trial Court on overall
consideration of evidence of prosecution witnesses coupled with the fact that
there was overwriting about the time at which statement was recorded and
also insertion of two names as accused did not consider it safe to rely upon dying
declaration and in the absence of any other evidence acquitted the accused
giving him the benefit of doubt. Held-The view taken by the Trial Court as to
the credibility of dying declaration and evidence of other witnesses was a
possible one. The High Court in upsetting the judgment of Trial Court has not
kept in view the well established principles in hearing the appeal from the
judgment of acquittal.I
Death by injuries caused.-When the deceased is not proved to have
died as a result of injuries received by him in the incident where the deceased is
said to have been killed, his statement cannot be said to be a statement as to
the cause of his death and thus is not admissible. One Gaya Charan received
gunshot injuries. He was admitted into a hospital. His declaration was
recorded. He went out of the hospital and afterwards died. It was not proved
that he died of the injuries received at the incident. His evidence did not
amount to dying declaration and was excluded.I
ln Om Prakash v. State of Punjab,4 the death was caused by injury. Two
doctors had examined the deceased. She was found able to make dying
declaration. The deceased was alive for 12 days after the incidence. The
statement of deceased cannot be rejected only because she was burnt badly.
Statement before injury.-A statement falling under this sub-section
may be made before the cause of death has arisen or before the deceased had
any reason to anticipate being killed. The only condition is that the
1. Tejram Patil v. Slate of Maharashtra, 2015 Cri LJ 1829 at p. 1835; Sharad Birdichand Sarda v.
State of Maharashtra, AIR 1984 SC 1622; Rata.n Gound v. State of Bihar, AIR 1959 SC 18; Pakala
Narain Swamy v. Emperor, AIR 1939 PC 47; Shiv Kumar v. State o~ U.P., Cr App No. 55 of 1966
(SC) decided on 29.7.1966, referred to.
2. Muralidhar v. State of Karnataka, AIR 2014 SC 2200 at p. 2206, Sheo Swaroop v. K.E., AIR 1934
PC 227; Surajpal Singh v. State, A!R 1952 SC 52; Ghurey Lal v. Stale of U.P., AIR 2009 SC (Supp)
1318 etc. relief! on.
3. Moti Singh v. State oI U.P., AIR 1964 SC 900.
4. AIR 1993 SC 138.
3i)2 EVIDENCE ACT
circumstances must be the circumstances of the transaction which resulted in the
death of the declarant.1
Where the fact in issue was whether J had committed murder of K. A
statement of K before he was assaulted that J had taken cash and ornaments
from him and that he was going there to demand, is admissible as dying
declaration.2
Expectation of death.-The section declares that such statements are
relevant whether the person who made them was or was not at the time when
he made the statements under the expectation oj death.3
Though the expectation of the death does not affect the relevancy of
dying declaration but it will certainly affect the weight attached to the
declaration. If the person making the declaration is conscious that he is dying
soon the possibility to speak the truth is very great.4
In Najjam Faruqui alias Najjam Faruqui v. State of West Bengal,5 the
Supreme Court held that there was no merit in the contention that the
appellant (deceased) died long after making dying declaration and therefore
those statements had no value. The second para of Section 32 (1) reads as
follows:
"Such statements are relevant whether the person who made the
statement was or was not at the time, when the statement was made, under
expectation of death and whatever be the nature of proceeding in which the
cause of his death comes into question."
The Supreme Court further held-No doubt it has been pointed out that
when a person is expecting his death to take place shortly, he would not be
indulging in falsehood, but that does not mean that such statement would loose
its values if the person lives for longer time than expected. The question has to
be determined in each case on the facts of circumstance established therein. If
there is nothing on record to show that the statement could not have been true or
if the other evidence on record corroborates the contents of statement, the court
can certainly accept it.
It is not necessary that maker of the dying declaration should be under
shadow of death and should entertain the belief that his death was imminent.
There was no delay in recording dying declaration. Thus the question of
deliberation or false implication on account of previous enmity would not
arise.6
Section 32 does not require that the statement sought to be admitted in
evidence should have been made in immediate expectation of death?
1. Emperor v. Sheo Bhai, AIR 1976 Born 513.
2. [ainand v. Rex, AIR 1949 All 291.
3. Bharat v. State of Rajasthan, 1981 Cr LJ 1274.
4. State v. Kanchan, AIR 1954 All 153; Enayat Khan v. Emperor, AIR 1935 Lah. 94.
5. AIR 1998 SC 6112.
6. State of Haryana v. Mangeram, AIR 2000 SC 558
7. Kans Raj v. State of Punjab, AIR 2000 SC 2324
(S. 32 s. 32] OF lliE RELEVANCY OF FACI'S 303
In a trial for murder a written declaration of the deceased made under the
following circumstances, was tendered in evidence for the prosecution ; the
declaration was made on oath to a Magistrate's clerk about 1 hour before
death ; the clerk asked the deceased ·before he took down her statement
whether she felt she was likely to die; she said "I think so from shortness of
my breath"; her breath was then extremely short; the clerk said, "It is with
the fear of death before you that you make these statements? Have you any
present hope of your recovery?' She said "none". The clerk then wrote out her
statement and added to it the above conversation in the form of a statement by
the deceased, but he omitted the word "present" before "hope". He then read
over to the deceased what he had written, and she then added, the words "at
present" after "hope" and signed the declaration. It was held that the
statement was not admissible, as it did not appear to have been made under a
settled hopeless expectation of death, inasmuch as the deceased had exrressly
qualified the word "no hope" by inserting after them words "at present".
The nature of proceeding-Civil or Criminal.-It also does not limit
the application of this rule to any particular proceeding.2 The proceeding may
be Civil or Criminal. Wherever the cause of that person's death is a point at
issue, the statement will be admissible. As mentioned above, the statement as
to the cause of death or as to any circumstances of the transaction which
resulted in his death, is relevant. The nature of the proceeding in which the
cause of his death comes into question need not necessarily be a charge of murder
or homicide. It may be a charge of a different nature or it may be a civil action.
The only material point is that the cause of death (of the person whose
statement is sought to be proved) must come into question irrespective of the
nature of the proceeding in which it comes into question.3 The mere facts that
the charge of murder failed would not make the statement inadmissible.
Proximate and not remote cause.-As observed by the Privy Council
in Narain Swami v. Emperor,4 the circumstances must have some proximate
relation to the actual occurrence.
One Swamlata was maltreated by the members of her father-in-law and
other relations. She was driven from the house. She wrote many letters to her
father-in-law and mother-in-law. Being sick of their treatment she committed
suicide by being run down by a train. The father-in-law and others were tried
for abetting the commission of suicide. At the trial, letters written by the
deceased, were produced in evidence as dying declaration. The first of these
letters was written 8 months before the suicide and the last at about 5 months
before incident. They were held inadrn'ssible as they could not be said to be the
circumstance of the transaction which resulted in her death. In other words,
they were not sufficiently closely enough connected with the actual transaction.
But it should be remembered that.statements are not admissible to previous or
1. R. v. Jenkins, (1869) ILR CC. Q. 187.
2. Khushal Rao v. State of Bombay, AIR 1958 SC 22 ..
3. Parmanand v. Emperor, AIR 1940 Nag. 340
4. AIR 1939 PC 47.
304 EVIDENCE ACT
subsequent transactions. At the same time the statement of that person only is
admissible whose death is a subject of the inquiry at the trial.
The statement of the person other than one whose death is at inquiry is
not admissible. The statement as to the cause of the death or as to any of the
circumstances of the transaction resulting in deponent's death is called his
'dying declaration';'
Injuries in bed head ticket.- In the bed head ticket of hospital, it
was written on the representation of the deceased that her brother-in-law
caused blows on him. The statement was held to be dying declaration.2
Form of dying declaration.-There is no particular form to be employed
in making a dying declaration. It may be oral or in writing or may even be
partly oral and partly in writing. On the other hand, it may be neither oral nor
written, that is to say, it may consist of some signs or gestures made by the
deceased. There must, however be a distinct and definite assertion on the part
of the maker however it 1nay be affected. Possibly the declaration should be
written in the exact words of the person making it.3 But simply because the very
words of the injured are not written dying declaration cannot be rejected.4 When
a Magistrate writes a dying declaration, preferably it should be in question and
answer form.5 If there is nothing to doubt that the person recording the dying
declaration recorded exactly what was stated by the deceased it would not
make any difference merely because the same was not recorded in form of
question and answer. It is certainly better to record the dying declaration in the
language of the maker. But it would not affect the evidentiary value or the
dying declaration because it was recorded in another language if the person
recording it is well conversant into the languages.6
Simply because the dying declaration has not been recorded by a
Magistrate, it cannot be disbelieved?
ln Knjal Sen v. State of Assam,8 the question arose as to credibility of
dying declaration made in a language and translated in another language by
the person to whom the dying declaration was made. In this case the dying
declaration was translated into English by the person recording the dying
declaration though he admitted that he knew other language also. The person'
recording dying declaration admitted that deceased was surrounded by many
attendants who were talking with him. This fact that he .heard entire
statement of the deceased in other language and keeping it in memory wrote it
down in English was not mentioned in dying declaration. The fact that the
deceased had stated that his statement could be taken as dying declaration
1. Kunwarpal v. Emperor, 1947 AL) 627.
2. Ashok Kumar v. State of Rajasthan, AIR 1990 SC 2134.
3. Majan Miyan v. State, AIR 1970 Assam 121 ; Vinayak Dutt v. State, AilU970 Goa 96 ; Prilam
Singh v. State, 1972 AWR 521.
4. Bakshis Singh 11. State of Punjab, AIR 1957 SC 904.
5. Ravi Chandr a v. State of Orlssa, AIR 1980 SC 1738.
6, State of Maharashtra ti. Gopichand, 1985 Cr LJ 784.
7. &lblr Singh and another v. State of Punjab, AIR 2006 SC 3221.
8. AIR 2002 SC 617.
[S. 32 s. 32] OF THE RELEVANCY OF FACfS 305
could not be believed. It was held that entire story of recording dying
declaration was doubtful.
In Ram Bihari Yadav v. State of Bihar,1 the Supreme Court made
following observation with reference to form and acceptance of dying
declaration :
"Generally the dying declaration ought to be recorded in question and
answer but if dying declaration is not elaborate, it consists of only few sentences
and is in actual words of the maker. The mere fact that it is not in question
answer form cannot be ground against its acceptability or reliability. The
mental condition of the maker of dying declaration, altemess of mind, memory
and understanding of what he is saying are the matter which can be observed.
To lend assurance to those factors having regard to the importance of dying
declaration, the certificate of medically trained person is insisted upon. In
absence of availability of doctor to certify abovementioned factors, if there is
other evidence to show that recorder of statement has satisfied himself about
the requirement, before recording dying declaration, there Is no reason as to
why the dying declaration should not be accepted.
The dying declaration not recorded in question answer form cannot be
discarded on that ground alone. Statement recorded in narrative form is more
natural and gives version of incident as it has been perceived by the victim.2
Deceased while making statement speaking in Kannada and Urdu
languages. Statement cannot be discarded on ground that it was recorded only in
Kannada language.
Dying declaration in the form of questions and answers.-In the
dying declaration made by the deceased, in some of her statements, she did not
state the actual part played by the appellant. She merely answered the
questions put to her. Held-When questions are put differently, answers would
also appear to be different. At a first glance, the detailed description of the
offence may appear to be missing but the statement of the deceased must be
construed reasonable.I
Dying declaration made before Judicial Magistrate.-A dying
declaration made before a Judicial Magistrate has higher evidentiary value as
he is presumed to know how to record a dying declaration and he is a neutral
person.4
In a case under Sections 306 and 498-A of I.P.C., dying declaration was
recorded by a Magistrate without making efforts to find out whether the
Magistrate of the area where the hospital lay was available or not. After the
Magistrate recorded dying declaration, the doctor endorsed the fitness of the
mental state of the deceased.
The dying declaration was held to be suspicious.5
AIR I998SC 1850.
2. State of Karnataka v. Shariff, AIR 200J SC 1074.
3. Mambeu ti, State uf Guinrat, AIR 2007 SC 1932 alp. 1933.
4. Samadhan Dhudaka ti. Slate of Maharashtra, AIR 2009 SC 1059 at p. 1062.
5. Subhash ti. State of Haryana, AIR 2011 SC 349 at pp. 352-353.
306 EVIDENCE ACT [S. 32
Statement written by doctor.-A dying declaration written by doctor
is reliable. Where the dying declaration was recorded by the doctor in question
and answer form in the presence of other witnesses and it was corroborated with
the testimony of other eye witnesses, it was held that it was sufficient to
convict the accused.1
Videography of dying declaration.-Videography of dying
declaration is only a measure of caution and in case, it is not taken care of it
would not be fatal for the case and does not in any circumstance compel the
Court to completely discard that particular dying declaration.2
Dying declaration as basis of conviction.-lf dying declaration is
found to be true and voluntary, it can be made the basis of conviction without
any further corroboration.3
A conviction can be based on dying declaration found to be true and
voluntary without any corroboration. Corroboration is only a rule of prudence.4
In Shamohu v. State of M.P.,5 the appeJJant and his wife were tried for
the offence punishable under Section 302 read with Section 304 of I.P.C. and the
appellant was tried also under Section 376 of I.P.C. They were acquitted by the
Trial Court. On appeal, the High Court held the appellant guilty under
Section 302 I.P.C. for having caused the death of the deceased Sudarhu by
setting her on fire, who had gone to the appellant's house for demanding
Rs. 1000/- entrusted by her to the appellant. The dying declaration was
recorded in the hospital by the Executive Magistrate. He testified that the
doctor was present at the time of recording and certified her to be in a fit stare
of making the statement. The dying declaration was recorded in the question
answer form. No Police Officer or any other person was present at the time of
making of dying declaration. The Supreme Court upheld the High Court's view
that the Sessions Judge disbelieved dying declaration on flimsy grounds. It
held-If the dying declaration is truthful and reliable, conviction can be
placed solely thereupon. The P.W.-2 found the deceased near his house. From
that place. she was removed to the hospital. P.W.-1 the husband of the
deceased also deposed on hearing about the incident that on hearing the
incident he rushed at the place of occurrence and saw the deceased with bum
injuries. Thus, there was corroboration of dying declaration also. The reversal
of the judgment by the High Court was correct.6
Dying declaration recorded in two parts-Inconsistency.-In
Pradeep Kumar v. Stat.: of Haryam,,7 the deceased in her dying declaration
before the C.J.M. stated that she started preparing tea when her husband was
I. Malik R,1111 lihai v. Stale of Onssa, 1993 Cr LJ 984; Muuna Raja v. State of M.P., AIR 1976 SC
21W
2 Mukesh 11. State fur NCf of Defh], AIR 2017 SC 2161 p. 2225.
J. SJ'. Dcv11r,11i
I'. Slate of Kametaka, AIR 2009 SC 172, at p. 1728.
4. Vnrikuppal Sruuvas l'. State of /\.P., AIR 2009 SC 14!17 at p. 1488; Salish Ambanna Bansode v.
Stall' uf Mchamshtro, AJR 200-J SC 1626 alp. 1628.
i\ffi 2012 ~ 130')
b Sharnbhu 1•. State ot MI' .. AIR 2012 SC 1309; State of Assam v. Mafizuddin, (1983) 2 SCC 14;
L11l11blm Devchand Shah v. State uf Gu1arat, (1971) 3 SCC 787 referred to.
7 AIR 2014 SC 2o\lcl
s. 32) OF THE RELEVANCY OF FACTS 307
sleeping. The stove got burst on pumping the air in it and match stick litting on
it and the terucot suit worn by her caught fire. The statement was recorded. She
said, thereafter, that her truthful statement be recorded again because the
prior statement was tutored to her by her husband but he should not show the
statement to anybody. In the latter statement, she said that her husband used·
to remain in house because he was doing nothing. For the last 10/15 days, he
used to beat her. He demanded Rs. 1 lakh from her parents otherwise he would
hang her to death. One day, he tried to hang her. He tried to bum her in the
night before the incident in the morning. In the morning, at 5.30 a.m., when she
went to bathroom, he sprinkled the oil on her clothes from back side and lit on
the match stick and rushed towards inside. When she made noise, other persons
came there and saved her. Her husband came and tore her clothes. She was
brought to the hospital because she had been told that she would narrate all
the facts to the police. Her mother-in-law prepared meals herself for her
sister-in-law and did not provide meals to her. On being questioned, she said
that she earlier made wrong statement because she was made to understand to
make such statement. Held=-The second part of dying declaration inspired
confidence to be considered as dying declaration of the deceased. The first part
of dying declaration was tutored by her husband as was apparent from the said
part.1
Multiple dying declaration.-Where there are discrepancies and
· contradictions in multiple dying declaration, it cannot be relied upon in the
absence of other reliable evidence, as a basis to record conviction.2
In Harbansh Lal v. State of Haryana,3 two dying declarations were
presented. One dying declaration was recorded by the doctor to whom the
deceased was brought for treatment and other dying declaration was that upon
which there was thumb impression of deceased. This dying declaration was
written by a person and attested by Sarpanch. In the statement made to doctor
the deceased had given full description of accused and that was not with any
inherent fault. The statement was duly written (recorded) by the doctor and
attested by two other doctors who were looking after the deceased. It was
certified that the deceased was in fit state of mind while making dying
declaration and she remained in that state till the dying declaration was
recorded. As far as second dying declaration was concerned it was not mentioned
in F.I.R. and it was not exactly known when it came into existence. It was held
that in absence of any proof, the second dying declaration was not reliable. But
the dying declaration recorded by the doctor fulfils all the essential conditions
of dying declaration and it was more reliable.
In a case, defence case of suicide was held to be not acceptable on the face
of two dying declarations recorded by Magistrate and police constable and their
clear evidence, The contradiction in statement and a accident register was
explained by the doctor who based it L1pon information received. Hence it was
creditworthy.4
I. Pradeep Kumar v. Stale of Haryana, AIR 2014 SC 26~ at p. 26'¥7
2 State of Rajasthan v. Shravan Ram, A1R 2013 SC 1890.
3. AIR 1993SC819.
4. Ravi Kumar alias Kotti Raviv. State of Tamil Nadu, AIR 2006 SC 1448.

308 EVIDENCE ACT [S. 32
In Ganpat Mahadeo Mane v. State of Maharastra,1 there was one dying
declaration recorded by doctor, the other recorded by Police and the third
recorded by Magistrate; there was no inconsistency between these three dying
declarations. Conviction was made. It was meaningless that the third dying
declaration was not in question answer form. In this case husband was tried for
causing death of his wife and was convicted under Section 302 I.P.C. by trial
Court. It was held by the Supreme Court that we see no reason to interfere with
the decision of trial Court. Appeal was rejected.2 The case of Maniram v. State
of M.P., was bride burning case. Bride burning by pouring kerosene and setting
fire alleged. Prosecution case is resting entirely on two dying declarations. First
dying declaration recorded by Sub-Inspector being in the part of F.I.R. is not
inspiring confidence, second dying declaration neither attested by doctor nor
signature or thumb impression of the declarer taken. Dying declaration is
showing that it was recorded by Sub-Inspector and not Tehsildar. Tehsildar
only making endorsement. It was held that such dying declaration was not
reliable.
In Praiap Neni Ravi Kumar alias Ravi Kumar and others v. State of
Andhra Pradesh,3 the dying declaration was recorded by police immediately
after deceased gained consciousness after attack ; names of the accused not given
in said dying declaration. Second dying declaration recorded by Magistrate.
after half an hour. Names of all accused stated in secand dying declaration.
There was no evidence to show that in between the two dying declarations any ·
one was allowed to go near the deceased. Further details as given in second
dying declaration cannot be treated as improvement over the first one.
ln Harji Kaur v. State of Punjab,4 the circumstances clearly showed that
the deceased was not a free person at the time of making first dying
declaration. The reasons given, for not considering dying declaration as
voluntary and true were convincing. The second dying declaration cannot be
regarded as untrue merely because it is contradictory to her statement made
earlier.
In Kishan Lal v. State of Rajasthan,5 the oral dying declaration was
made her (deceased) to her father, uncle and grandfather. Names of the
accused mentioned therein. However she could not mention the name of accused
ih second dying declaration made before the Magistrate 5 days after on the
ground that she could not recognise any accused because of fire darkness coming
to her eyes. Second dying declaration not only giving to conflicting version but
there was interse discrepancy in deposition of witness given in support of dying
declaration ; it was held by Supreme Court that the conviction based on such
conflicting and discrepant dying declaration was liable to be set aside.
In Mehiboobsab Abbasabi Nadaf v. State of Karnatal:a,6 the deceased
made four dying declarations two before the Medical Officers, one before the
1. AIR 1993 SC 1180.
2. Maniram v. State of M.P., AIR 1994 SC 840.
3. AIR 1997 SC 2810.
4. AIR 1999 SC 2571.
5. AIR 1999SC3062.
6. AIR 2007 SC 2666.
s. 32] OF THE RELEVANCY OF FACI'S 309
Executive Magistrate and one before the Police Officer. In the dying
declarations before the Medical Officer, she told the cause of death as accident
due to bursting of stove while cooking. In the dying declaration recorded by ASI,
she told that she was being harassed by mother-in-law, father-in-law and
husband to bring golden chain. They used to torture her. On the day of incident,
the husband thrashed on back and as soon as she fell down, they (the husband,
father-in-law and mother-in-law) poured kerosene from the stove on the body
and lighted the match-box and, burnt her. Thereafter, she did not remember
what happened and found herself in the hospital availing medical treatment.
In the statement recorded by the Executive Magistrate, she narrated that her
husband asked her to put his shirt in Inayetha. Having not obliged him, he
started her to thrash from the handle of a broom stick and abusing her took to·
the stove, poured kerosene on her from it and put fire. When the body started to
burn high, her husband and her father-in-law poured water on her. Her
husband brought a vehicle and took her to the hospital for treatment. In the
first and second dying declaration, she did not accused her parents-in-law. In
the two dying declarations, she accused primarily her parents-in-law. The
parents-in-law had already been acquitted. The Supreme Court allowed the
appeal and held-
The conviction can be based on a dying declaration but it must be voluntary
and truthful. Consistency in the dving declaration is relevant factor for placing
full reliance thereupon.1
Where there are more than one dying declaration and the nature of
inconsistencies between them is such that they are certainly material, it is
unsafe to convict on the basis of dying declaration.2
The victim committed suicide. There were two dying declarations. In one
dying declaration she stated that the accused persons committed rape on her
twice. In another dying declaration, she stated that the accused persons
committed rape on her in a hotel and in the second incident, the accused had
only taken her to a garden. The dates of rape were also stated to be different in
two dying declarations. Due to these inconsistencies in dying declarations, the
acquittal of accused was justified.3
In Sudhakar v. State of M.P.,4 the Supreme Court held that in case of
multiple dying declarations made by the deceased when they are contradictory
or are at variance with each other to a large extent, the test of common
prudence would be to first examine which of the dying declarations is
corroborated by other prosecution evidence. Further, the attendant
circumstances, the condition of the deceased at the relevant time, the medical
evidence, the voluntariness and genuineness of ti,e statement made by the
1. Mehiboobsab Abbasabi Nadaf v. State of Karnataka, AIR 2007 SC 2666 at pp. 2668-2669, per S.
B. Sinha J.; Mohammad Arshad v. State of Maharashtra, 2006 (12) Scale 370, Balbir Singh tl.
State of Punjab, 2006 (9) Scale 537, State of Maharashtra v. Sanjay, (2004) 13 SCC 314; Muthu
Kutty v. State by Inspector of Police, T. N., (2005) 9 SCC 113 and Maniben v. State of Gujarat,
2007 (7) Scale 93 referred to.
2. Gopal v. State of M.P., AIR 2009 SC 2111 at p. 2112; Kundula Bala Subrahmanyam tl, Statie of
A.P., (1993) 2 sec 684.
3. State of Punjab 11. Cha tinder Pal Singh, AIR 2009 SC 974 at p. 976.
4. AlR 2012 SC 3265 at p. 3272 ; Laxman v. State of Maharashtra, AlR 2002 SC 2973.
 310 EVIDENCE ACT [S. 32
deceased, physical and mental fitness of the deceased being tutored are some of
the factors which would guide the exercise of judicial discretion by the Court in
such matters. In her first, the deceased in her dying declaration made before
the Naib-Tahsildar who came to hospital and recorded her dying declaration,
did not implicate her husband and stated that she received the burn injuries
from a stove while cooking food. In another, dying declaration made before
Tahsildar in the hospital, she stated that her husband had poured kerosene on
her and set her on fire. The doctor present there certified her fitness for making
the statement. In the third dying declaration recorded by the sub-Inspector of
Police in the presence of two independent witnesses she said that her husband
had poured kerosene on her and set her on fire. When the deceased was brought
to the hospital, she was accompanied by her husband and other relatives and
were present there when she made the first dying declaration before the Naib-
Tahsildar. Shortwhile after, she changed her statement when dying
declaration was recorded by Tehsildar and then by Sub-Inspector of Police. The
second and third dying declarations were in conformity with each other and
were supported by other evidence. At the time of making first dying
declarations, the relative of the deceased were present. She herself stated the
reason behind her falsely making first declaration as her husband was likely
to lose his job if she implicated him and the deceased had stated wrongly on
tutoring of her husband. Even prior to these dying declarations, the deceased
had made a dying declaration before P.W. 1, the land lady and P.W. 6. She
had categorically stated to these witnesses when death was staring her in her
eyes that she was burnt by her husband by pouring kerosene on her. Both these
witnesses successfully stood the subtle cross-examination conducted by the
counsel appearing for the accused. Therefore, the second and third dying
declarations were held to be authentic which could be safely made the basis for
conviction of the accused.
In Ashabai v. State of Maharashtra,1 there were four dying declarations
made by the deceased woman. In her first dying declaration, she stated before
the Police Inspector that her mother-in-law and sister-in-law always used to
abuse her that she was barren as she had not conceived even after three years
of her marriage and that she should not stay in the house and better she should
die. Her father-in-law, mother-in-law and sister-in-law used to assault her.
On the day of occurrence, she had returned from Mumbai along with her
husband, her mother-in-law and sisters-in-law shouted that the barren lady
had come and told her husband not to keep barren lady in their house. After
quarrelling with her mother-in-law, her husband went to his duty. In the
after-noon, her mother-in-law along with her two sisters-in-law entered the
room with a kerosene tin and poured on her from head to legs. On the direction
of her sisters-in-law to light the match stick, her mother-in-law lit the
match-stick. On seeing this her father-in-law and sisters-in-law poured the
water and extinguished the fire. The statement was duly certified by the doctor
present on duty and that she was conscious and able to give a statement. She did
not implicate her father-in-law and husband.
I. AIR 2013 SC 341.
s. 32J OF THE RELEVANCY OF FACTS 311
In the second dying declaration made before the Executive Magistrate
which was in the form of questions and answers, she told that her mother-in-
law "poured kerosene on me and burnt." When questioned as to the presence of
other members, she told that her sisters-in-law were present in the house and
they told to light the match-stick. She also told that at the relevant time her
father-in-law and husband were not in the house. The very same doctor who
had certified the first dying declaration certified that she was conscious to
make the statement. The next day her statement was again recorded by the
Executive Magistrate in the form of questions and answers. She said that her
father-in-law and mother-in-law used to quarrel with her and her husband
never used to say anything. She stated that her third sister-in-law and her
husband threatened her and then her mother-in-law poured kerosene on her
and sisters-in-law were standing by dosing the door. On the question whether
she had any suspicion on any body, she answered that she was tried to be burnt
by her mother-in-law, three sisters-in-law and husband of one of her sisters in-
law. The doctor on duty certified her fully conscious while making the
statement. Thus, in the third dying declaration, she implicated two persons
more. The Trial Court acquitted the third sister-in-law and her husband.
In the fourth dying declar.ation made before another Sub-Inspector of
Police, she in answer to a question specifically mentioned that her mother-in-
law and sisters-in-law poured Kerosene and burnt. The deceased's motl.er-in-
law and the two sisters-in-law were convicted under Section 498A read with
Section 34 and sentenced to RI for 1 year alongwith a fine of Rs. 1000/- each, in
default, to further RI for 3 months. They were also convicted under Section 302
read with Section 3.4 o{ IPC and sentenced to imprisonment for life alongwith a
fine of Rs. 2000/- each, in default to further undergo R. I. for six months and
acquitted the other accused persons. The High Court dismissed the appeal. The
Supreme Court also dismissed the appeal. During the course of appeal, her
mother -in-law had died but there could not he any leniency in favour of the
sisters-in-law.
The Supreme Court held-There is no reason to disbelieve or reject the
dying declaration made by the deceased when the Court is satisfied that the
dying declaration is voluntary, not tainted by tutoring or animosity, and is not a
product of the imagination of the declarant, in that event, there is no
impediment in convicting the accused on the basis of such dying declaration.
When there are multiple dying declarations, each dying declaration has to be
separately assessed and evaluated and assessed independently of its own merit
as to its evidentiary value and one cannot be rejected because of certain
variation in the other .1
Multiple dying declarations.-ln Mukesh v. State for NCT of De/lri,2
the prosecutrix (deceased) aged 23 was gang raped by six persons in a moving bus
on 16.11.2012 when she stepped inside a bus alongwith the informant, her
friend, a young boy to get down at some place. She was brutally assaulted and
raped one by one and also subjected to unnatural sex. Her private parts of her
1. Ashabai v. State of Maharashtra, AIR 2013 SC 341 at p. 345, Pt!r Justice P. Sathasivam,
2. AIR 2017 SC 2161.
,.
312 EVIDENCE ACT [S. 32
internal organs were seriously damaged by insertion of iron rod and hand in the
rectal and vaginal region. The boy was also severely assaulted. They were
robbed of their belongings, stripped and thrown off from the moving bus. Her
three statements were recorded. The first statement of incident was recorded
the same night by a lady doctor in Safdarjang Hospital, New Delhi. As per the
version narrated by the prosecutrix it was a case of gang rape in a moving bus by
4-5 persons when the prosecutrix was returning after watching a movie with the
informant. She was slapped on her face, kicked on her abdomen and bitten over
lips, cheek, breast and vulva! region. She remembered intercourse two times
and rectal penetration also. She was also forced to have unnatural sex but she
refused. All this continued for half an hour and then she was thrown off from
the moving bus alongwith her friend. On the same night, she went first surgery.
The second and third surgeries were performed on 19.12.2012 and 23.12.2012
respectively.
Since the condition of the prosecutrix did not improve much, the
prosecution thought it fit to record the statements of the prosecutrix which
were conferred the status of dying declaration. On 21.12.2012 on being declared
fit, the second dying declaration was recorded by the S.D.M. It was an
elaborate dying declaration. The prosecutrix described the incident is in detail
including insertion of rod in her private parts. She also stated that the accused
were addressing one another with names.
The third dying declarations was recorded by the Metropolitan
Magistrate on 25.12.2012. The attending doctors opined that she was not in a
position to speak due to being on ventilator, a life support system but she was
otherwise conscious and responded by way of gestures. The questions were put in
such a manner as to enable her to respond by way of gestures or writing. The
questions put to her were in the multiple choice form.; She gave her
statement/dying declaration through gestures and writings. She was taken to
Mt. Elizabeth Hospital Singapore for treatment where she died on 29.12.2012.
Regarding the contention that no dying declaration couid have been recorded on
21.12.2012 as the prosecutrix was administered morphine, the Court held the
contention not good as the morphine was injected on 20.12.2012 and its effect
according to deposition of the doctor would have lasted only 3-4 hours. The
contention that the dying declaration recorded by the Magistrate on 25.12.2012
could not be given any weight as ·she was not able to speak was not accepted.
The doctor in- charge of ICU in Safdarjung Hospital at the relevant time made
it clear that even though the proecutrix was not able to speak yet she was
conscious oriented and was in a position to make the statement by gestures.
Regarding the contention that the third dying declaration made through
gestures lacked credibility and that the same ought to have been
videographed, the Court held-It is totally sans substance. The dying
declaration recorded on the basis of nods and gestures is not only admissible but
possesses evidenliary value, the extent of which shall depend upon who
recorded the statement. In the instant case, dying declaration was recorded by
the Metropolitan Magistrate. A perusal of the questions and answers were
absolutely simple and effective and indispensable. The dying declaration
s. 32] OF THE RELEVANCY OP FACTS 313
though recorded by him though by nods and gestures and writings inspires
confidence and has been rightly relied upon by the Trial Court as well as the
High Court. Videography of the dying declarations is only a measure of caution
and in case it is not taken care of the effect of it would not be fatal for the case
and does not in any circumstances compel the Court to completely discard that
particular dying declaration. The dying declaration made through signs, nods
and gestures are admissible as evidence if proper care was taken at the time of
recording the statement. The only caution the Court ought to take is that the
person recording the dying declaration is able to notice correctly as to what the
declarant means by answering by gestures or nods. ln this case, this caution was
aptly taken as the person who recorded the prosecutrix dying declaration was
the Metropolitan Magistrate and was satisfied himself as regards the mental
alertness and fitness of the prosecutrix and recorded the dying declaration of
the prosecutrix by noticing her gestures and by her own writing. Considering the
facts and circumstances of this case and upon appreciation of evidence and
material on record, all the three dying declarations are consistent with each
other and well-corroborated with other evidence and the Trial Court as well as
the High Court has correctly placed reliance on the dying declaration of the
prosecutrix to record the conviction.1
There were two sets of dying declaration, one was the
statement/declaration made before the Police Officer and the Executive
Magistrate and the other was the evidence of the father of the deceased that
she made oral dying declaration. The dying declaration recorded before the
Magistrate as well as Police Officer was fully corroborated and there was no
inconsistency regarding non-involvement of the respondent in the commission of
offence. The evidence of the father of the deceased that the deceased informed
him that the respondent after giving her torture for the whole night took her to
the kitchen, poured kerosene on her and then lighted the match-stick to set her
on fire was held to be not reliable which could be the result of afterthought.2
The deceased due to multiple burn injuries was unable to see or speak and
the declaration recorded by the Police Officer immediately after incident was
not adduced in evidence and the Magistrate later recorded second declaration in
the presence of doctor which was a lengthy and detailed. The doctor present at
the time of incident was neither named nor examined. The eye-witnesses who
were close relations of the deceased being the son, daughter, wife and
daughter-in-law of the deceased did not see as to who sprinkled acid on the
deceased. The deceased was unable to speak and whatever was recorded was by
the gestures made by him. The witnesses told that deceased had been tutored
by his relatives and they did not see the accused persons committing the crime.
The son also told that he gave complaint to the police at the instance of his
relatives and his father had told him that the Naxalites had been
threatening him. Held-The dying declaration allegedly made by the
deceased is not free from doubt and embellishment. The suppression and
withholding of the first dying declaration by itself creates suspicion. It has to
I. Mukesh v. State for NCT of Delhi, AlR 2017 SC 2161; Meesala Ramakrisan 1.1. State of A.P., (1994)
4 SCC 182; B. Shashi Kala 1.1. State of A.P., AIR 2014 SC 1610 referred to.
2. State of Gujarat v. Jairaibhai Punjabhai Varu, AIR 2016 SC 3218 pp. 3223-3224.
 314 EVIDENCE ACT
be considered only as a piece of evidence of which no implicit reliance can be
placed and conviction cannot be rested solely on the basis of such dying
~. 1
declaration,
Dying declarations in different languages.-Where the two dying
declarations were recorded in different languages one in Marathi and another
in Hindi and the deceased was proficient in both languages, dying declarations
could be the basis of conviction.2
Statement by signs.-ln Queen-Empress v. Abdullah,3 the appellant
Abdullah was charged before the Court of Session with a murder of one Dulari,
a prostitute by cutting her throat with a razor. It appeared that on the morning
of 27th September, 1884, Dulari, with her throat cut, was taken to the police
station and from there to the dispensary. She lived till the morning of the
29th. The post-mortem examination showed that the wind pipe and the
anterior wall of the gullet had been cut through. The deceased had also a cut on
the left thumb. When she was taken to the police station, she was questioned
by her mother, in presence of tile sub-inspector. She was also at the same time
questioned by the sub-inspector of police and again subsequently, by Deputy
Magistrate and the Assistant Surgeon. She was unable to speak but was
conscious and able to make signs. The Magistrate asked Mst. Dulari as to who
had wounded hervShe closed her lips. Then the Magistrate mentioned several
names and asked regarding them one by one if they had wounded her. She
waved her hand backwards and forwards and thus making a negative sign.
Then she was questioned whether AbdulJah had wounded her. On this she
moved her hand up and down. This was understood to be a sign of affirmation by
the Magistrate recording the statement. Question was put to her if she been
wounded with sword or knife. She made a negative sign with her hand. The
question was put if she had been wounded with a razor. She in answer to this
made an affirmative sign with her hand. The question was, was she awake
when her throat was cut. She made a negative sign. On the question if she had
been asleep at that time she made an affirmative sign. On the 'question
whether she had been wounded in the night, she made a negative· sign. To
question whether she was wounded in the morning she made affirmative sign.
On the question whether she recognised Abdullah she made ,affirmative sign.
The evidence was offered by the prosecution to prove the above questions
put to Dulari and above mentioned signs in answers to them. Objection was
taken to the reception of their evidence on the ground that under Section 32 of
Evidence Act only written or verbal statements made by a deceased as to the
cause of his death were admissible, and that signs were not verbal or written
statement within that section. Overruling this objection it was held by the Full
Bench through Patheram C.J. that the questions and signs taken together might
perfectly be regarded as 'verbal statement' made by a person as to cause of the
death within the meaning of Section 32 of the Evidence Act, and therefore,
admissible in evidence as dying declaration. In another case, the victim whose
l. J. Ramulu v. State of A. P., AIR 2008 SC
1505 at pp. 1509-1510.
2. Amar Singh Mwmasingh Suryawanshl v. State of Maharashtra, AIR 2008 SC 479 at p. 484.
3. ILR 7 All 385.
[S. 32 s. 32) OF THE RELEVANCY OF FACTS 315
throat was cut by the accused was alive for some time and being questioned
regarding the accused she answered the questions by signs and nods not being
able Lo speak. She described the accused by signs and she was asked whether
that person was the accused, she showed assent by a nod. It was held that the
statement made by the deceased constituted a verbal statement resembling the
case of a dumb person and was relevant and admissible in evidence."
Thus it is clear that 'a dying declaration may be communicated by any
adequate method of communication whether by words or by signs or otherwise
provided the indication is positive and definite and seems to proceed from the
intelligence of its meaning'.2
Statement to police.-The statement of a deceased as to cause of his
death does amount to dying declaration. A clear and corroborated dying
declaration cannot be rejected just only because it was recorded by a police
officer.3
The statement recorded by police officer cannot be challenged on the
ground that it was recorded by investigating officer. The police officer did not
possess the capacity of investigating officer because investigation had not
commenced then.4
Where the evidence was that the deceased was not in a position to make
any statement and the alleged statement of the deceased was recorded by the
Investigation Officer, it was not a dying declaration. The conviction recorded
only on the basis of this statement was therefore not correct.5
Section applies to homicide and suicide both.-Section 32 is an
exception to the rule of hearsay and makes admissible a statement of a person
who dies, whether the death is a homicide or suicide provided the statement
relates to the cause of death or exhibits circumstances leading to the death of
the person making the statement.6
The declarant must be in a fit state of mind.-At the time of the
declaration the person making the statement must be in a fit state of mind,?
If the court has slightest doubt about the mental soundness of the author of
dying declaration, it is unsafe to base conviction on such statement.8
The dying declaration was recorded by Magistrate within few hours of
the victim stated was admitted to hospital. The Magistrate in his
examination stated that victim was conscious. Medical officer was present at
the time of recording dying declaration also made endorsement about
consciousness of victim. Mere non-examination of doctor in whose presence dying
declaration was recorded does not affect its evidentiary value.?
1. Alexender v. The King, AIR 1937 PC 24 ; Sundama v. King Emperor, AIR 1949 Nag 405.
2. Gokul Chandra v. State, AIR 1950 Cal 306.
3. Ram Singh v. State (Delhi Admn.) 1995 Cr L) 3838.
4. Culam Hushain v. State of Delhi, AIR 2000 SC 2480.
5. State of Rajasthan 11. Ashfaq Ahmad, AIR 2009 SC 2307 at p. 2308.
6. Sharad v. State of Maharashtra, AIR 1984 SC 1622.
7. Lalloo Bhai v. State of Gujarat, AIR 1972 SC 1776; State of Haryana v. Harpel, AIR 1978 SC 1530.
8. Dandu Laxmi Reddy v. State of Andhra Pradesh, AIR 1999 SC 3255.
9. Sanmugam alias Kulandai Vellu v. State of Tamil Nadu, AIR 2003 SC 209.
316 EVIDENCE ACT
Mere fact that victim in his dying declaration did not make any reference
to injuries received by accused is not a ground that merits the rejection of dying
declaration.
Where the dying declaration was recorded by doctor who himself
certified that patient was in fit condition for reading the statement, his non-
mentioning that the patient was in fit mental condition and throughout
remained conscious would be of no consequence.'
J
In State of M.P. v. Dhirendra Kumar,2 the mother-in-law of the deceased
was in position to reach upstairs within 5 to 6 minutes after hearing the cry of
deceased. According to opinion of the autopsy surgeon, the deceased was able to
speak about 10 to 15 minutes. The Supreme Court did not agree with the view of
High Court that the deceased being not in position to talk could not have made
dying declaration. The Supreme Court held that it was dear from the autopsy
report and circumstances of case that deceased was in fit state to talk when her
mother-in-law reached at the spot where deceased was lying.
In State of Orissa v. Parasuram Naik,3 the accused, husband was alleged
to have poured petrol on the body of wife and lit fire. Whereof extensive bum
injury was sustained by the deceased wife. Held-Oral dying declaration to
her mother cannot be accepted because there was no certificate by medical
officer certifying that deceased was medically fit to make the statement.
It is improper to reject the dying declaration on the ground that the fitness
of the maker of it depended solely on the certificate of the doctor and the
Magistrate himself did not inquire independently as to whether the deceased
was in a fit state to make dying dedaration.4
In Aroind Kumar v. State of Rajasthan,5 in a case of accusation of the
offences under Sections 304-B and 498-A of I.P.C., the dying declaration was
recorded by Naib-Tahsildar but did not take any certificate from the doctor
regarding fit state of mind of the deceased nor there was any endorsement by
him on the statement regarding fit state of mind of the deceased. The doctor
testified that the dying declaration was recorded by the Reader of Naib-
Tahsildar and not by the Naib Tahsildar. No preliminary questions were
asked from the deceased before recording his dying declaration. The Naib-
Tahsildar also stated that he did not seal the recorded statement of the
deceased. During the cross-examination he did not produce the original copy of
'Tahreer', a request by the constable to record dying declaration but he produced
carbon copy of it. The mother of the deceased categorically refused putting her
signature or thumb-impression on the dying declaration which showed that the
dying declaration was not recorded in the hospital room where the deceased
was lying. There was no endorsement on it that it was read over and explained
1. Heeralal Yadav v. Stale of M.P. and others, AIR 2006 SC 2535; See also Ashok Laxman Gaikwad
v. Stilh! of Mah;ir;ishtra, AIR 2006 SC 1773.
2. AIR 1997 SC 318.
3. AIR 1997 SC 3569.
4. State of Tamil Nadu v. Karuppasamy, AIR 2009 SC 948 at p. 949.
5. AIR 2009 SC 2703.
[S. 32
s. 32) OF THE RELEVANCY OF FACTS 317
to the deceased. All these facts created doubt and truthfulness of dying
declaration. It was held that the alleged dying declaration could not be
admissible and reliable document because it suffered from a number of
infirmities although the accused were convicted on the basis of entire evidence.
Justice Lokeshwar Singh Panta observed :
"It is well settled that one of the important tests of the credibility of the
dying declaration is that the person, who recorded it must be satisfied that the
deceased was in a fit state of mind. For placing implicit reliance on dying
declaration, Court must be satisfied that the deceased was in a fit state of mind
to narrate the correct facts of occurrence. If the capacity of the maker of the
statement to narrate the facts is found to be impaired, such dying declaration
should be rejected as it is highly unsafe to place reliance on it. The dying
declaration should be voluntary and should not be prompted and physical as
well as mental fitness of the maker is to be proved by the prosecution."!
In Dhan Raj and others v. State of Maharashtra,2 the dying declaration
was challenged on the ground that no medical certificate was attached about
the condition of deceased. Deceased however went to hospital all alone by
changing different vehicles in the way. The statement of doctor and
Magistrate was on record to indicate that deceased was in a fit state of mind to
give statement. Such circumstances can be used as supporting evidence about
mental condition of deceased along with other evidence. Moreso, when case did
not solely rest upon dying declaration and eye-witness account was also
available.
Where the person making the dying declaration slipped into coma before
completing the statement, it would have serious effect on his capacity to make
such a statement. The certificate of fitness given by the Doctor with regard to
the condition ofthe deceased is definitely not the last word. Normally, such an
opinion should be accepted and acted upon by the Court. If the circumstances so
demand, such opinions must be carefully balanced with all other surrounding
facts and circumstances.3
The allegation was that the deceased was set at blaze. The deceased
remained in fit condition all through the recording of his statement. The 'fact
that he could not identify the person who tried to save him by pouring water
was held to be irrelevant because he could not have identified due to being in
flames. The dying declaration was found to be reliable, trustworthy and
consistent with circumstantial evidence on record and therefore, the conviction
was proper.4
Dying declaration during severe burn injuries.-Where victim
sustained brain injury and his brain function was impaired, dying declaration
made by him cannot be relied on.5
I. Ar\'111d Kumar t•. State of Raja~than, AIR 2009 SC 2703 at pp. 2708-2709.
2. AIR 2002 SC 3302
3. Murugesan v. State through Inspector of Police, AIR 2013 SC 274 at pp. 285, 286.
4. Mumtaz v. State of U.P., AIR 2016 SC 3151 p. 3155.
5. Slate of Rajasthan v. Teja Ram, AIR 1999 SC 1776.
318 EVID EN C E ACT [S. 32
Salim Guiab Pat/ran v. State of Ma/rarnshtrn,1 in this case, the argument
was raised that due to 90% bum injuries on the victim, dying declaration made
by her was not reliable since the doctor in whose presence the statement was
recorded certified that both at the commencement and conclusion of recording of
her statement, she was in a fit mental condition to make the statement. The
declaration that in the quarrel between the victim and her husband, the latter
poured kerosene on her and then set her on fire was corroborated by her father
and other witnesses that immediately after the incident, she came out of the
house in a burning state and her husband also followed her and then fled away.
On being asked, she told that her husband had set her on fire. The case history
of the deceased recorded at the time of her admission in the hospital also
supported her dying declaration. It was held that the conviction based on dying
declaration was proper.
No absolute rule that no dying declaration can be made with 80%
burn injuries.-In Pawan Kumar v. State of H.P.,2 the deceased, a young girl,
fell in love with the accused-appellant and eloped with him. He was booked
for offences under Sections 363, 366 and 376 of I.P.C. The accused was given
benefit of doubt and acquitted due to colossus support of the girl. The accused
felt that he had been prosecuted due to the prosecutrix and got obsessed with
idea of threatening the girl and that continued and eventually eve-teasing by
him became a matter of routine. According to the prosecution, the girl felt
unsecured and realised that she could no more live in peace. Thinking her life
not worth living, she poured kerosene on her body and put herself ablaze. She
was taken to a private hospital where she was of referred to Chandigarh for
medical treatment but due to paucity of funds she could not be taken there. In
the evening, Pradhan of the village visited the house of the informant, the
father of the deceased, and the deceased. She gave one written document to the
Pradhan stating that the accused-appellant was responsible for her condition.
When the information was given, the dying declaration of the girl was
recorded by the Head Constable in the presence of Medical Officer. She
succumbed to her injuries. Against the acquittal of the accused by the Trial
Court, the High Court convicted him under Section 306 of I.P.C. The appeal to
the Supreme Court failed. The hub of the matter was reliability of dying
declaration which was rejected by the trial Court as the deceased had
sustained 80% burn injuries but the approach of Trial Court was held to be
erroneous by the High Court. The Supreme Court held that there was no reason
to disregard her dying declaration. The Head Constable had recorded it in the
presence of a doctor, as narrated by the deceased and she had also written few
words about the accused. The doctor appended a signature to it. There cannot be
an absolute rule that a person who has suffered 80% burn injuries cannot give a
dying declaration. Her dying declaration had also received corroboration from
other witnesses. The Court besides other cases,3 referred to Vijny Pal v. State
AlR 2012 SC 2170 at pp. 2181, 2182.
2. AIR 2017 SC 2459.
3. Culzan Lal v. State of Haryana, AIR 2016 SC 795; Laxman v. State of Maharashtra, AIR 2002 SC
2973; Atbir v. Covernment of N.C.T. of Dellu, AIR 2010 SC J.177 Para 10; Mafnbhai Nagarbhar
Raval v. State of Curerat, AIR l!i'12 SC 21&,.
s. 32) OF Tl-IE RE LEV ANCY OF FACI'S 31,9
Government of N.C.T. of Delhi,1 in which the Court repelled the submission
with regard to dying declaration made by the deceased who had sustained
100% bum injuries but was in a fit mental state.
Proof of dying declaration.-When the dying declaration is verbal, it
can be proved by examining the person in whose presence the statement was
made. But where the dying declaration is recorded, the person recording the
statement is to be examined before the court and he will prove the writing
before the court. If it is in writing of scribe, he must be produced and if it is
verbal it should be proved by examining the person who have heard it.2
Police Officer preparing memo r-ot examined.-Where the dying
declaration was recorded by the Naib-Tehsildar after the victim had been
informed vide Memo by the Police but the Police Officer by whom the Memo
had been delivered was not examined and no explanation was given regarding
dying declaration reaching the Police Station late by one full day, the Court
held dying declaration not reliable.3
Evidentiary value of dying declaration-e-Conviction on
uncorroborated dying declaration.-In Khusal Rao v. State of Bombay,4
there were two rival factions in what has been called the Mill area in Nagpur.
The appellant Khusal Rao and co-accused Tuka Ram who had been acquitted
by the High Court were leaders of one faction and P.Ws. Ram Gopal,
Inayatullah and Tantu were said to be the leaders of the opposite faction.
Before the time and date of the occurrence, there had been a number of incidents
between the two rival factions in respect of some of which P.Ws. InayatuUah
and Tantu had been prosecuted. The appellant was on bad terms with Baboolal
(deceased } who was on very friendly terms with the leaders of the opposite
faction. Being infuriated by the conduct of Baboolal, in associating with the
enemies of the party of the accused, Sampat, Mahadeo, Khushal and Tuka
Ram suddenly attacked Baboolal with swords on different parts of his body.
The occurrence took place in a narrow lane of Nagpur at about 9 p.m. Baboolal
was taken by his father and other persons to the Mayo Hospital where he
reached at about 9.25 p.m. Dr. Kanikdale at once questioned him about the
incident and Baboolal is said to have made a statement to Doctor that he had
been assaulted by Khushal and Tuka Ram. After noting the statement, the
doctor telephoned to the Police Station where the information was noted at
9.45 p.m. On receiving the information, Sub-Inspector immediately went to the
Hospital where he found Baboolal in a serious condition and suspecting that he
might not survive and apprehending that it might take time for the Magistrate
to be informed and to be at the spot, Sub-Inspector decided that it would be more
advisable for him to record the dying declaration without any delay, He
recorded Baboolal's statement at 10.15 p.m. In the meantime, Mr. M.S. Khetkar
was called and he also recorded the dying declaration between 11.15 and 11.35
p.m. Besides these, three dying declarations were recorded in quick successions,
J. AIR 2015 SC 1492 paras 20and .:1.
2 Kans RaJ v. State of Punjab. Al"< 2000 SC 2J2<1.
3. State of Maharashtra v. Hemani Kawadu Churtwal, AIR 2016 SC 287 pp. 289.
4. AJR 195SSC22.
320 EVIDENCE ACT IS. 32
Baboolal is said to have made oral statements to a number of persons. All the
witnesses of facts were disbelieved by the High Court. It was argued by the
accused that conviction could not be based solely on dying declaration but that
was not accepted.
It was held-It cannot be laid down as an absolute rule of law that a dying
declaration cannot form the sole basis of conviction unless it is corroborated
each case must be determined on its own fact, keeping in view the circumstances
in which the dying declaration was made; it cannot be laid down as a general
proposition that a dying declaration stands on the same footing as another
piece of evidence and has to be judged in the light of surrounding circumstances
and with reference to the principles governing the weighing of evidence; a
dying declaration which has been recorded by a competent Magistrate in the
proper manner, that is to say, in the forms of question and answers, and 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 and human
character, and 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, whether the capacity of the 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 ; and that the statement had been made at
the earlier opportunity and was not the result of tutoring by interested parties.
The Trial Court sentenced Khushal Rao to death and Tukaram to life-
imprisonment High Court on the ground that the deceased had named Khushal
as Teli in his statements but thc person tried by the Court was Khushal Kohli.
Further, there were four persons living in the same locality by the name of
Khushal and some of them were Teli. The sentence of Tukaram was maintained.
Justice Sinha, (afterwards C.J.) of the Supreme Court upholding the judgment of
the High Court observed :
"The Legislature in its wisdom has enacted Section 32 (1) of the Evidence
Act. Thus the statement by a person who is dead is itself a relevant fact. The
provision has been made by the legislature, advised as a matter of sheer
necessity by way of an exception to the general rule that hearsay is no evidence
and that evidence which has not been tested by cross-examination is not
admissible. The purpose of cross-examination to the veracity of statements
made by a witness. In the view of the Legislature, that test is applied by
solemn occasion, when the statement was made when the person was in danger
of losing his life. At such a serious and solemn moment, that person is not
expected to tell lies."
In order to pass the test of reliability, a dying declaration has to be
subjected to a very close scrutiny, keeping in view the fact that the statement
has been made in the absence of the accused who had no opportunity of testing
the veracity of the statement by cross-examination. But once the court has come
to the conclusion that the dying declaration was the truthful version as to the
s. 32] OF THE RELEVANCY OF FACTS 321
circumstances of the death and the assailants of the victim, there is no question
of further corroboration and the dying declaration can form the basis of
conviction;1 if on the other hand, the court, after examining the dying
declaration in all its aspects and testing its veracity, has come to the conclusion
that it is not reliable by itself, and that it suffers· from an infirmity, then
without corroboration it cannot form the basis of a conviction. Thus, the
necessity for corroboration arises not from any inherent weakness of a dying
declaration as a piece of evidence but from the fact that the court, in a given
case, has come to the conclusion that the particular dying declaration was not
free from the infirmity.I ~
If the court finds that the declaration is not wholly reliable and a
material and integral portion of the deceased's version of the entire occurrence
is untrue, it was written in suspicious circumstances or that declarant's friends or
relations or accused's enemies had been with the declarant before his statement
was recorded.3 The court may, in all the circumstances of the case, consider it
unsafe to convict the accused on the basis of declaration alone.!
It cannot be laid down as an absolute rule of law that there can be no dying
declaration without corroboration. The rule requiring corroboration is merely a
rule of caurion.f
In the case of dying declaration, the rule requiring corroboration is merely
a.rule of caution. It can form the sole basis of conviction.6 .
It was held by Supreme Court that, the dying declaration must be certain
and from dying declaration the identification of the accused must be
ascertained. The declaration must ascertain the cause of death to base the
conviction.7
Sometimes attempts have been made to equate a dying declaration with
the evidence of an accomplice or the evidence furnished by a confession as
against the maker, if it is retracted and as against others, even though not
retracted. But it is not right in principle to do so though under Section 133 of the
Evidence Act, it is not illegal to convict a person on the uncorroborated
testimony of an accomplice. Illustration (b) to Section 114 of the Act lays down
as a rule of prudence based on experience, that an accomplice is unworthy of
credit unless his evidence is corroborated in material particulars and this has
now been accepted as a rule of law. The same cannot be said of a dying
declaration because a dying declaration may not unlike a confession, or the
testimony of an approver, come from a tainted source.
Generally speaking, the maker of a dying declaration cannot be varnished
with the same brush as the maker of a confession an approver.8
I. jaswant Singh 1•, Stall.', AIR 197\1 SC l\lO.
2. Khush,11 R,10 1•. 51..:~ of Bombay, Am 1\158 SC 22.
3. l.allu Uh,11 1•. St.,t.- ,,f G,11,1rat, AIR 1972 ~ tno.
~. Pompiah v. State 01 Mysore. AIR 1%5 SC 9J9; Rashid Bl'g r,, Stat,• of M.P .. AIR 1974 SC l3:!.
~ Shak1111l,'l,1 o. St,11., v• Haryana, AIR 2007 SC 27U'J .it p. :?711
ti. Dashrath alias Ch,rn1p.i !'. State of M. P., AIR 2008 SC 31v ,IL I' .ll9
7. Bhup.m r• Slati: ul Madhya Pradesh, AIR 2002 SC !>!O.
8. Khushal R,1<> v. State ot Bombay, AIR l'J.:>S SL' '22; Kun l'. St.it.-, .'\II{ 1%0 CJI ~-
 322 EVIDENCE ACT [S. 32
There may not be corroboration of the nature contemplated by Section 157
or matters provable under Section 158 and the only direct evidence may be a
, statement by the deceased made admissible under Section 32. It does not
however, necessarily follow that this evidence is insufficient to support a
conviction. In such a case the surrounding circumstances will have an important
bearing. Ir the evidence of an accomplice is tainted, the court may un-ier Section
114, presume that he is unworthy of credit unless corroborated, but a dying
declaration is on a much higher place and the Act places no restriction on its
acceptance.
It is not possible to lay down any hard and fast rule when a dying
declaration should be accepted, beyond saying that each case must be decided
in the light of the other facts and the surrounding circumstances, but if the court
after taking everything into consideration, is convinced that the statement is
true, it is its duty to, convict, notwithstanding that there is no corroboration in
the true sense. The court must of course be fully convinced of the truth of the
statement andnaturally, it cannot be fully convinced if there is anything in the
other evidence or in the surrounding circumstances to raise suspicion as to its
credibility .1
A dying declaration if true and voluntary can be the basis of conviction
without any further corroboration. The rule requiring corroboration is merely a
rule of prudence. If there is no ground of suspicion about its truthfulness, it can be
acted upon. It should not be the result of tutoring, prompting or imagination. In
Shaik Nagoor v. State of A. P.,2 the Supreme Court summarised the Jaw
relating to credibility 9£ dying declaration as follows :
"(i) There is neither rule of law nor of prudence that dying declaration
cannot be acted. upon without corroboration.3
(ii) If the Court is satisfied that the dying declaration is true and
voluntary, it can base conviction on it, without corroboration.4
(iii) The Court has lo scrutinize the dying declaration carefully and must
ensure that the declaration is not the result of tutoring, prompting or
imagination. The deceased had an opportunity to observe and identify
the assailants and was in a fit state to make declaration.5
(iv) Where dying declaration is suspicious, it should not be acted upon
without corroborative evidence.6
(v) Where the deceased was unconscious and could never make any dying
declaration, the evidence with regard to it is to be rejected.?
1. In re Guruswamy, AIR 1940 Mad 196 (FB); Asan Tharaytl v. State or Kcrala, 1981 Cr LJ l lb5;
Stale of Assam v. Mcrajuddin, AIR 1983 SC 274; Ram Bihari Yadav v. State of Bihar, AIR 1998 SC
1850.
2. AIR 2008 SC 1500.
3. Mannu R* v. State of M. P., (1976) 3 SCC 104.
4. Stall' ot U. P. v. Ram Saga.r Yadav, (1985) 1 SCC 552.
5. K. Rarnachandea Reddy v. Public Prosecutor, (1976) 3 sec 618.
6. Rasheed Beg v. State of M. P., (1974) 4 SCC 264.
7. Kake Singh v. State of M. P., 1981 Supp. SCC 25.
s. 32) OF THE RELEVANCY OF FACTS 323
(vi) A dying declaration which suffers from infirmity cannot form the basis
of conviction.1
(vii) Merely because a dying declaration does not contain details as to the
occurrence, it is not to be rejected.2
(viii) Equally, merely because it is a brief statement, it is not to be discarded.
,On the contrary, the shortness of the statement itself guarantees truth.3
(ix) Normally, the Courts in order to satisfy whether the deceased was in a
fit mental condition to make the dying declaration look up to the
medical opinion. But where the eye witness said that the deceased was
in a fit and conscious state to make the dying declaration, the medical
opinion cannot prevail."
(x) Where the prosecution version differs from the version as given in the
dying declaration, the said declaration cannot be acted upon.5
(xi) Where these are more than one statement in the nature of dying
declaration, one first in point of tie must be preferred. Of course, if the
pluarity of the dying declaration could be held to be trustworthy and
reliable, it has to be accepted."6
In a case of alleged dowry death leading to suicide, the dying declaration
should be wholly reliable for conviction and ii there is suspicion the Court
should go for corroboration?
Fitness of the deceased-Certificate of Doctor.-ln Sambhu B. v.
State of Madhya Pradesh,8 the dying declaration was recorded by the
Magistrate. Doctor had certified that the deceased was in fit state of mind to
make statement. The deceased had stated in the declaration that accused had
poured kerosene on her body and set on fire. Declaration was corroborated by
the fact that deceased was found with bum injuries near the house of accused.
The accused was held is liable to be convicted for offence of murder. The fact
whether Magistrate had gone to the hospital on scooter or any other vehicle or
whether he noticed percentage of bum injuries on the body of the deceased were
irrelevant matters and could not form basis for disbelieving dying declaration.
In Shanmugam alias Kulandai v cllu v. State of Tamil Nadu,9 the dying
declaration was recorded by the Magistrate within few hours of victim being
admitted to hospital. The Magistrate stated in his examination that at the
time of making dying declaration, the victim was conscious. Medical Officer
present at the time of recording dying declaration also made endorsement about
consciousness of the victim. Held-Mere non-examination of doctor in
I. Ram Monorath v. State of U. r .. (1981) 2 SCC 654.
2. St.1ti., of Maharashtra 11. Krishnamurthy Laxnupati Naidu, 1980 Supp. SCC ~55.
3. Surajdoo Ojha r•. State ot Bahar, 19!>0 Supp. SCC 7o9
4. Nanhau Ran, I'. St,,k of M. I'., 1988 Supp SCC 152.
5 State 01 U. P. r,. MaJ,rn Mohan, (1989) 3 sec 390.
6. Mohanlal Cangaram Gchani t•. State of Maharashtra, (1982) 1 SCC 700.
7. I' Mam 1•. Stall' ot Tamil Nadu, (200o) 3 sec 11>1
8 AIR 2002 SC 1307
9. AIR 200.1 SC 209.
324 EVIDENCE ACT
whose presence dying declaration was recorded does not affect its evidentiary
value.
In number of cases, the Supreme Court has held that if the statement of a
dying person passes the test of carefully applied by the court it becomes more.
reliable evidence and does not require corroboration. The two things which a
court must take care of for examining a dying declaration are that (1) it is not
the result of coaching, tutoring or prompting of some body, (2) and that deceased
was in a fit state of mind to make the statement and made the statement
without any enmity.I The dying declaration must inspire confidence hence from
• medical evidence it becomes doubtful that the declarant was conscious the
dying declaration cannot be relied upon.2 Where dying declaration. was
recorded by the doctor in the hospital, evidence of doctor cannot be discarded
merely because the deceased had suffered 100% bums and her general condition
was poor, when doctor stated that she was in a fit of state of mind and was able
~~b~d~gd~~~~ . .
At the time of recording of dying declaration by the SHO, it was not f~und
whether the deceased was in a fit state of mind and health to give dying
declaration. The doctor's statement was that he did not remember at what time
dy'ng declaration was ·recorded and he also did not know whether the deceased
WdS in a fit state of mind to make the statement and he also did not remember
the language in which the deceased answered questions put. to him. The dying
declaration was held to be unreliable.4 ·
Where the Magistrate testified that on the identification of deceased by
the doctor he had recorded dying declaration and the Assistant Sub-Inspector
of Police had approached him to record dying declaration, there was no doubt
regarding the identification of the deceased due to detailed statement of the
Magistrate.5 · dying declarations. Dying declarations were fully corroborated with the
Fitness of deceased making dying declaration.-According to a
medical opinion, .the deceased's larynx and tracheae were charred by heat. It
was clarified that when larynx and tracheae are charred, the person cannot
speak but when they are in the process of being charred, be can speak, The
second medical opinion was if the vocal cord of larynx is charred of a person, he
may be able to speak but not ·clearly and it will be difficult to understand. The
medical opinions of two experts was not in variance with the ocular evidence
that the deceased was in a position to speak when her dying declaration was
recorded. Such dying declaration can be relied on by the Court.6
Dying declaration after administration of pathedine.-The dying
declaration's credibility was objected on the ground that the deceased was
administered pathedine injection and could not give evidence coherently but
I. Kusa v. State of Orissa, AIR 1980 SC S~<J; Preetam Singh v. Stale oi U.P., 1985 Cr
Gangotri Singh v, State of U.P., AIR 1992 SC 948.
2. Darshan Singh v. Stall! of Punjab, 1\183 Cr LJ 985.
3. Smt. Chandrawau v. Stall', 1\196 Cr LJ 975 (Del).
-1. State ol R.ija,thJn v. Waktcng, AIR 2007 SC 2020 al p. 2022.
5. Narender Kumar v. Stall' of N.C.r. nf Delhi, AIR 2010 SC 150 p. 155.
b. R~,-'Cv Kumar v. State of Haryana, AIR 2014 SC 227 at p. 231.
. [S. 32.
s. 32] OF THE RELEVANCY OF FACTS 325
the doctor in his evidence stated that the patient was administered injection at
12.50 p.m. the effect of which could last for not more than two hours as the
patient with 80% burn injuries was in severe pain. The doctor examined him at
2.30 p.m. when he was in a fit condition to make the statement. Doctor's
evidence corroborated with the evidence of Magistrate who recorded dying
declaration. The doctor and the Magistrate both were official witnesses and
their evidence was held to be reliable.1
Non-examination of doctor who endorsed dying declaration.-ln
Amar Singh Yadav v. State of U.P.,2 the accused-appellant who was a police
constable, had illicit affairs with two women. Accused took his wife and four
children (three daughters and one son) in a Maruti Van on the- pretention of
purchasing marriage articles for her daughter whose marriage had been
settled. They stopped the vehicle in the way on the road and the accused and
the companion driver came out, locked the doors of the van, sprinkled petrol all
around the van and set it ablaze and tried to push the vehicle in a pit for
killing them. Some petrol had already been sprinkled inside the vehicle.
Luckily, a Police Inspector with his· companion constables arrived there and
without cacing of his life broke open the doors of the burning vehicle and took
out the wife of the appellant and four children. The appellant was held guilty
under Sections 302, 307 and 436 of I.P.C. The wife of the appellant and the two
daughters in their dying declaration narrated the whole story. On the
instruction of District Magistrate, Naib Tehsildar recorded dying-declaration.
The statements of two other children were also recorded but since they
survived, their statements were treated only exhibits. There were no
discrepancies in dying declaration. The dying declarations clearly implicated
the accused. There were no suspicious features which affected the credibility of
statements of injured witnesses, the children of the accused. However, ·the
doctor in whose presence dying declarations were recorded or who endorsed the
same was not examined: Held-
.. The mere fact that the doctor was not examined does not affect
evidentiary value of dying declaration when it is corroborated by the evidence
of injured witnesses and other .witnesses. The' appellant's conviction was
correct.I ·
Dying declaration without certificate of Doctor-Certificate of
doctor .as to fitness-Only a rule of caution.-Normally, the Court places
reliance on the medical evidence for reaching the conclusion whether the
person making a dying declaration was in a fit state of mind but where the
person recording the statement of the deceased states that the deceased was in
a fit and conscious state, the medical opinion will not prevail nor can it be said
1.J 10; that there being no certification of the doctor as to fitness of the mind of.,the .
declarant, -the dying declaration is not acceptable. A certificate of doctor is
essentially a rule of caution. \Vhere the testimony of the Magistrate is to the
I. Narender Kumar t>. State of N.C.T. of Delhi, AIR 2016 SC 150 p. 155.
2. AIR 20J.I SC 2-186.
3. Amar Singh Yadav v. State of U.P., AIR 2014 SC 2486 al pp. 2490, 2491.
 326 EVIDENCE ACT IS. 32
effect that the declarant was fit to make the statement, it can be acted upon
without there being certificate of doctor provided that the Court ultimately
held the same to be voluntary and truthfui.1
Where there was no certificate of doctor about fitness of the deceased
making dying declaration before the Investigating Officer but the doctor was
present at the time of making dying declaration and the dying declaration and
thumb-impression of the deceased was attested by him, the holding that there
could not have been any attestation of such document was technically held to be
toowrong.2
Where the eye-witnesses stated that the deceased was in a fit and
conscious state to make the declaration, the medical opinion will not prevail,
nor can it be said that since there is no certification of the doctor as to the mind
of the declarant, the dying declaration is not acceptable.3
A dying declaration may be reliable without obtaining a certificate of
fitness of the declarant by a Medical Officer.4
Doctor not present at the time of recording dying dedaration.-In
dying declaration the accused was aJJeged to have poured kerosene on the
deceased and set her on fire. The dying declaration was recorded by the
Executive Magistrate before the employees of the hospital. The doctor was not
present at the time of recording of the statement of the deceased. Mere absence
of certificate of doctor was held to be not relevant and the conviction of the
accused was proper.s
Contradictions in the statements of Dodor.-The dying declaration
was taken in the presence of Medical Officer whose endorsement was taken on
it. There were contradictions in his statement before the Court. In his first
statement, he said that the endorsement was made by him after, dying
declaration was recorded but in his second statement when he was recalled
stated that the endorsement was made by him on a blank paper and dying
declaration was recorded thereafter. Held-The contradiction was liable to be
ignored because the doctor was examined more than six months after date of
making endorsement.s · after being put on fire. The dying declaration was not signed by the doctor
Dying declaration incomplete.-A dying declaration is inadmissible
in evidence if it is incomplete. When the condition of the, deceased had become
grave and at his own request a statement made by him in the presence of the
doctor was taken by the police but it could not be completed as he fell into coma
from which he could not recover, it was held that dying declaration was
inadmissible because on its face it was incomplete and no one could tell what
the deceased was about to add.7 But if the statement, though incomplete in the
l. Sher Singh v. State of Punjab, AIR 2008 SC 1426 at pp. 1430-1431.
2. Slate of Rajasthan v. Parthu, AIR 2008 SC lU at p. 11.
3. Laxmanu Stale of Maharashtra, AIR 2002 SC 2973; Jose v. State of Kerala, AIR 2013 SC 2284 at
p.22116
t Gulzan Lal v. State of Haryana. A.IR 201!> SC 7'15 p. 7'19.
S. Ra111 Devande v. Stal~ ol Maharashtra, AIR 201!> SC 3202 p. 3217.
b. Arnarsmgh Munnasmgh Suryavansht v Slate of Maharashtra, AIR 2008 SC 479 al p. 482.
7. Cynl Waugh 11. Krng, 1950 AL/ 412 (PC)
s. 32] OF THE RELEVANCY OF FACTS 327
sense that the declarant could not state all what he wanted to state, yet
whatever, he stated is complete in respect of a certain fact the statement would
not be excluded on the ground of its being incomplete. The deceased stated, "I
was going home, when I came near the house of Abdul Majid, Sattar shot me
from the bush. He ran away. I saw." This was the dying declaration and dying
man was in no condition to answer further questions. It WJS held that "there
was no question of any incomplete statement so far as that aspect of the case
was concerned. The statement in regard to Sattar having shot the deceased was
complete in itself and it could not be said that any further question would have
elicited any information which would run counter to the same. Under the
circumstances the dying declaration, though incomplete, was complete in so far
as the accused Sattar having shot the deceased was concerned and could
certainly be relied upon by the prosecution.1
A dying declaration in a case was as follows :-
"Sir,
This day 24th January, 1960 in the noon at 12.30 Muniappan son of Kola
Goundan of. Kamnav-Kurechi stabbed me in my body with knife."
Soon after the deponent said these words his speech stopped and he died.
His thumb-impression was taken after he was dead. It was held that in this
dying declaration· the accusation against the appellant Muniappan was
complete and so it was admissible.2
Circumstances which belie the dying declaration.-ln Jagga Singh
v. State of Punjab,3 the deceased deposed in dying declaration that rape was
attempted on her and next day she was burnt by the accused. Further, she stated
in her statement that afterthe.deceased had been set on fire, which was in the
courtyard; she rushed to her room which was bolted from outside by the
accused. The brother of·deceased did not say anything about the attempted
rape so also the neighbour of the accused also did not say anything about the
same. The occurrence witness did not say that deceased ran inside the room
present at the time of recording of dying declaration. All these circumstances
were held to ~elie the dying declaration.
In Mehrban v. State of Mallarashtra,4 the injured died in the way while
being taken in bullock cart by prosecution witness. Dead body was then directly
taken to- police station. The injured while being taken in the cart allegedly
have disclosed the prosecution witness that he was assaulted by accused
persons. Evidence of the said witness coupled with medical evidence and other
surrounding circumstances, proved that dying declaration given by deceased
was true. The Supreme Court held that conviction of accused should not be
interfered with.
I. Abdul :-iattar v. State of Mysore, AIR 19Sb SC 168.
2. Muniappan v. Slate of Madras, AIR 1962 SC 1252.
3. AIR 1995 SC 135.
4. AIR 2002 SC 299.
 328 EVIDENCE ACT [S. 32
To be taken as a whole.-There is a controversy on this point. In some
cases it has been held that it must be taken as a whole while in other cases a
contrary view has been taken.
A dying declaration must be taken as a whole. If statement is admissible,
it must either go in a whole or not at all.1 Under Section 32, the whole of the
statement must be taken into consideration. Parts of the statements made here
and there cannot be divested from their context for the purpose 9f propping up
the prosecution case.2
Contrary to this it had been laid down if-a portion of dying declaration is
untrue the rest of it cannot be necessarily rejected. However if part of it is
shown to be false, the court may decline to believe the rest without
corroboration.3 The point cropped up before a Bench of Allahabad High Court.
In this case the dying declaration of the deceased mentioned A and 8 as his
assailants. But no sufficient description of A was given in it to connect it with
A. The description of B was enough to identity. Desai, J, (as he then was)
observed ; "without meaning to lay down that a dying declaration must be
accepted or rejected in toto I do not think that accepting it against one and not
against the other amounts to accepting it in part and rejecting it in part." With
this observation the dying declaration was accepted against 8 and rejected
against A. 4 In my opinion if a part of the dyrng declaration can be separated
without losing its sense it may be accepted or rejected ; but if the statement is so
worded that one part of it controls the other and if a part is separated it may
mean differently than what it meant as a part of the whole, the statement
must be taken as a whole.
The impeachment of dying declaration.-A dying declaration being
in effect a testimonial statement made out of court the maker is open to
impeachment in the same way as other witnesses so far as this process is
possible. Therefore, impeachment by bad testimonial character is permissible
or by conduct showing a revengeful or irrelevant state of mind· at the time of
commission of crime, or by subsequent or prior inconsistent statements.
In State of Rajasthan v. Teja Ram & others,5 it was held by Supreme Court
that one of the permitted modes of impeaching the credit of witness is proof of
former statement is inconsistent with any part of his testimony as indicated in
Section 155 (3) of Evidence Act.
Contradictions with other statements.-A dying declaration has to
be considered in circumstances and light of other evidencc.6 It has to be
consistent with other evidence on record if there is a clear discrepancy between
the facts mentioned in dying declaration and those in statements of witnesses it
would be unsafe to place complete trust on the dying declaration? In face of this
1. Tafiz Parmanik v. Emperor, AIR 193UCal 229.
2. In re Mil.ltl'l'm Edukondalu, AIR '1957 AP 729.
3. Lala Ram v. State, All{ 1953 MIJ 249 ; Provincial Government v. Iagan Bhat, AIR I \I-lo Nag 301.
4. State v. Kanchan Smgh, AIR 1954 All. 153.
5. AIR 19'JIJ SC 1776.
t,. In re Guru Sw,1111y, AJR 19-IU Mad. 196 (fB).
7. !:No Rao v. Stale of Maharashtra, 1'16Y /\LJ 381 (SC).
s. 32] OF THE RELEVANCY OF FACTS
case Jaw the decisions of Allahabad High Court,1 to the effect that a dying
declaration cannot be contradicted by reference of the witnesses is erroneous.
In State of U.P. v. Madan Mohan,2 Madan Mohanwas tried for the murder
of two persons. The trial Court convicted three respondents. The High Court
quashed the conviction. Hence, the appeal was filed to Supreme Court by
special· 1eave. ·
The High Court took the view that the incident occurred at 7.30 p.m.
while the deceased Satya Narain in his dying declaration gave the time of
incident at 6.00 p.m. The version regarding the statement of P.W. I and P.W. IJ
also materially differed from the version found in dying declaration. The name
disclosed by the deceased was also different: It was held by Supreme Court
that the High Court was right in coming to conclusion that the prosecution
version regarding the incident stated by P.W. I and P.W. II materially differed
from the version unfolded by dying deceased and therefore it was difficult to
say that High Court was not justifying in taking the view it took. Therefore,
the appeal was dismissed.
Identity of accused to be established by dying declaration.-
Before conviction can be based on· dying declaration, the identity of the accused
must be established by it. It should contain the· same parentage and address of
the accused.3 But if there is corroborative evidence to prove identity, the
conviction is possible.l
Dying declaration in. England and in lndia.-In England, the rules
relatingto dying declaration are different from those in India: (1) In England
dying declaration is riot admissible in 'civil cases but as said before in India it is
admissible in civil cases into question. As far its admissibility in criminal case,
(2) In England dying declaration is admissible only in the single instance of
homicide, that is, murder or manslaughter wherethe death of the deceased
(who had made ·the statement) is the subject of the charge and the
circumstances of the death are the subject of the dying declaration ;· whereas in
India whate,ver may be the nature of the proceeding if the cause of the death of
the deponent comes in question his dying declaration is relevant . It is
admissible 'even; if the trial is not for his death,5 (3) According to. English law
certain conditions are required to have existed at the time of declaration, viz
(a) it is necessary that the declarant should have bee~ ,in>actual danger of
death, that is to say, the statement· must be made after he r,Ceived the injuries,
(b) and he should have been aware of this danger and have abandoned all hope
of recovery, and (c) that death should have caused. In India the existence of
the last condition is certainly necessary. because under Section 32 the statement
is admissible only in cases where the deponent dies and the cause of his death
comes in question. But the existence of the conditions (a) and (b) are not
necessary in India. Under Section 32 the statement is relevant whether the
l. Muti 11. State, AIR 1968 All 83; Pritam Singh v. State, 1985 Cr LJ 10.
2. AIR l\189 SC 1519.
3. Khushal Rao v. State of Bombay, AlR 1953 SC 22; Copa! Smgh v. State of M.P., AlR 1972 SC 55.
-l. Pnlam Smgh 11. State of U.P., 1985 Cr LJ JO.
5. Parmanand v. Emperor, A1R 1940 Nag. 340.
 330 EVIDENCE ACT [S. 32
deponent was or was not in actual danger of life and whether he was or was not
at the time when the statement was made under expectation of death.
Therefore ,(in India), whether the declarant was or was not in actual danger of
death and knew or· did not himself to be in such danger, are considerations
which will no longer affect the admissibility of the evidence.1 But these
considerations are to be taken· into consideration in estimating the value of the
d eclara tion. 2
Under English Law the 'admissibility of dying declaration rests on the
principle that a sense of impending death produces in man's mind. Some feeling
as that of conscientious and virtuous man under oath. The general principle on
which this species of evidence is admitted is that they are declaration made in
extremity. When the party is at the point of death and when every hope of
world is gone when every motive of falsehood is silenced and the mind is
induced by the most powerful consideration to speak only truth. If the evidence
in the case reveals that declarant has reached this state while making dying
declaration then within the sphere of Indian Law, while testing the
credibility of such dying declaration weightage can be given of course
depending on other relevant facts and circwnstances o~ case.
F.I.R. as dying declaration.-A report made by the deceased relating
as to the cause of his death or as to any of circumstances of the transaction
which resulted in his death shall be relevant as dying declaration under
Section 32 (1).3
Where a. person ·injured in the incident dies after: lodging F.I.R., it is
relevant as a dying declaration+
Complaint as dying declaration.-Where. a -woman gave a statement
in the nature of a complaint to the police officer 'in the hospital after pouring on ·
kerosene by the accused persons and setting her ablaze and the Police Officer
recorded the same not in question answer form and also without obtaining the
mental fitness certificate, the Court held it to be a dying declaration and
upheld the conviction although a compromise, relating to a property dispute on
the previous day was the only direct evidence.5
Statement under Section 161, Cr.P.C.-Dying declaration.-
Section 162 which prohibits the use of statement recorded under Section 161
makes an exception in sub-section (2) which reads, "Nothing in this section
shall be deemed to apply to any statement falling within the purview of
Section 32 (1) of Indian Evidence Act 'Consequently Section 162 (2) in
expressed terms excludes from its purview statements falling within purview
of Section 32 (1) and a statement amounting to dying declaration recorded
1. State v. Kanchan, AIR 1954 All 155.
2. Khushal Rao v. State of Bombay, AIR 1958 SC 22; Kishan Lal v. State of Rajasthan, AIR 1999 SC
3062.
3. Mahmood llahi v. State of U.P., 1990 Cr LJ 885, Pancharn Yadav v. State of U.P., 1994 Cr LJ 848
(All).
-1. K. Ramchand Reddy v. Public Prosecutor, (1976) 3 sec 704.
5. Ja1 Prakash v. State of Haryana, 1999 Cr L/ 837 (SC).
s. 32) OF TiiE RELEVANCY OF FACTS 331
during investigation by investigation officer will be relevant under Section
32(1). I · '
Dying declaration recorded by police.-Although a dying
declaration recorded by police officer during the course of investigation is
admissible under Section 32 of the Evidence Ad, it is better to leave such dying
declaration out of consideration unless and untiI the prosecution satisfies the
court as to why it was not recorded by a Magistrate or a doctor.2
Where it shows that an attempt was made to procure the services of a
Magistrate for recording the dying declaration but since the Magistrate was not
available it was recorded by the Head Constable which fact finds support from
several witnesses including independent witnesses, it was held that there is no
hesitation in accepting the same-'
In Ram Bihari Ydlav v. State of Bihar,4 the Supreme Court held that
where the dying declaration was recorded by police officer and the original
thereof was not found on record and the official who recorded it was not
examined, the entries in case diary as to said original dying declaration could
not be taken as evidence.
In State of Karnaiaka v. Shariff,5 the Supreme Court held that dying
declaration recorded by police officer could not be discarded solely on that
ground. There is no requirement in law that dying declaration shall necessarily
be recorded by Magistrate. ·
The deceased was allegedto have been set on fire by the accused person
after pouring kerosene on him as he refused to keep his daughter-in-law with
him. The dying declaration was alleged to have been recorded by the ASI who
on receipt of intimation proceeded to the Bum Ward of the Hospital where he
found that the deceased had suffered burn injuries. He inquired from the
deceased 'who narrated the story. He obtained the signature of the deceased on
the dying declaration after reading over it to him. The ASI who had been
serving the department for the last thirty years was aware of the procedure of
recording dying declaration and he was also aware of the fact that the Special
Executive Magistrates were available for recording dying declaration but he
did not call any of them. He was accompanied to the Bum ward by the Medical
Officer to identify the deceased but he did not take certificate from the doctor
regarding the fitness of the deceased to give dying declaration. He also did not
record the time of recording of dying declaration. Held-The dying declaration
and the manner in which it was recorded cannot be relied upon.6
May be proved to be false by leading evidence.-Section 158 of the
Evidence Act lays down that whenever any statement relevant under Section 32
or 33 is proved, all matters may be proved, either in order to corroborate or
contradict it or in order to impeach or confirm the credit of the person by whom
1. Tapindra Singh v. State, AIR 1970 SC 1566; Moh v. State, AlR 1968 All. 83.
2. Dileep Smgh v. State of Punjab, 1979 Cr LJ 700; Mwmu Roja v. State of M.P., AIR 1976 SC 2199.
3. Chari Patti Shankararao v. Public Prosecutor A.P. High Court, AIR 1995 SC m.
4. AIR 1998 SC 1850.
5. AIR 2003 SC I074.
6. Shaikh Rafiq t•. State of Maharashtra. AIR 2008 SC 1362.
332 EVlDENCE ACT [S. 32
it was made, which might have been proved if that person might have been
called as witness and had denied upon cross-examination in the truth of the
matter suggested. Therefore, dying declaration may· be corroborated under
Section 157 of the Act and its credit may be impeached under Section 157 of the
Act, either (a) by the evidence of the persons who testifies that, they from the
knowledge of witnesses, believe him to be unworthy of credit or by proof of
former statement of the deceased inconsistent with any part of his evidence
which is liable to be contradicted. One S.B. Singh was tried for the murder of
Brinda. The dying declaration of Brinda was only evidence. The case of the
prosecution that murder was committed in railway compartment and there was
light therefore deceased could identify his assailants. The defence filed the
copy of the statement of deceased Brinda made about 7 years ·prior to the
murder. In this Brinda Ban had stated that his ey~ sight was p~or and his
vision was blurred. The statement was held relevant.1
Dying declaration tainted.-A dying declaration ~ould be tainted if
the circumstances show that there was discussion between the interested person
and deceased as to who could be assailants,2 if it is delayed,3 if it is proved
that accused had already been named and the fact is known to the declarant,4
when the identity of the person named by the deceased Is doubtful.5
In Cherlopalli Cheliminabi Saheb v. State. of Andhra Pradesh,6 the
dying declaration was recorded by police inspector in hospital. The doctor
stated that deceased at the time of recording of dying declaration was not in
serious condition. Magistrate residing near hospital was not called. Deceased
did not explain nature of attack on him in dying declaration. There is correction
iri the nature of weapons used. Thumb impression was taken by using grease of
motor cycle and not from inkpad taken on dying declaration. Dying declaration
was tainted. Held-Dying declaration cannot be relied on for basing conviction;
moreso, when all other witnesses turned 'hostile.
Use of s'.tatement when the Injured survives.e-Sometimes the. dying
declaration ofan injured personis recorded expecting that he shall succumb to
injuries but h~ survives. -ln such cases his statement · recorded as dying
.declaration cannot 'be used as a substantive piece of evidence as. the dying
declaration is used. The statements in such cases can be used for corroboration
under Section 157 of ·the Act or for contradiction under Section 145 of the
Evidence Ac~ in case_ the declarant appears as a witness." . . (v) Where the deceased was unconscious and could never make any
Ram Prasad v. S(ate of Maharashtra,8 is an important case on this point.
In this case Sµpreme Court made the following observation : · 1.
1. U.P. State v. S.S. Singh, 1964 ALJ 1134 at 1138 (SC); See also State of U.P. v. Madan Mohan, AIR
1989 SC 1519 .. ·
2. Khushal Rao v. State of Bombay, AIR 1958 SC 22 paras 11, 16.
3. In re Guruswruny, AIR 1940 Mad. 196; Khushal Rao v. State of Bombay, AIR 1958 SC 22.
4. Muzzafar v. Emperor, 99 IC 322. · State of Bihar, AIR 1983 SC 164.
5. Harbans Singh v. State of Punjab, AIR 1962 SC 439.
6. AIR2003SC1014.
7. MoqM>Odan v. State of UP, AfR 1983 SC 218.
8. AIR1999SC1969.
s. 32) OF THE RELEVANCY OF FACTS 333
"If a person making dying declaration survives his statement cannot be
used as dying declaration under Section 32. of Evidence Act, though it was
recorded as dying declaration, at the time when the person made statement, he
may be under expectation of death. But that isnot significant to wriggle it into
the cosset of Section 32. As long as the maker of the 'statement is alive it would
remain only in realm of a statement recorded during investigation."
Sharuiam Bhadaji Bhir~d .v. State' of Maharashtra,1 was the case of
unlawful assembly and murder. Accused were seven in numbers and armed with
swords. After forming unlawful assembly, 'they chased the victim and caused
multiple injuries on him which were found sufficient to cause the death of the
victim. The victim, however, they survived' because of efforts of team of
doctors. Statement of victim recorded in details of the incident itself g~ve
details of assault and disclosed names of the accused assailants. The statement
ofdying declaration need not stand strict scrutiny in facts _of the case and at the
best be deemed statement under Section 164, Cr.P.C. Statement was corroborated
. by evidence of eye-witness: Conviction of accused was held to be proper.
Should not be under compulsion.-Dying declaration due to.
compulsion or pressure not be relied upon whereas dying declaration free from
compulsion or pressure to be relied up. The deceased said that she was not burnt
by her husband in-laws. She was believed.2
Rule of Dying De.claration.-ln Kalawati v. State of Mahar~htra,3
Justice Dr. Arijit Pasayat referred to Paniben (Smt.) v. State of Madhya ·
· Pradesh,4 and summed up the rule o( dying declarationas follows- ·
. .
"(i) There is neither rule of law nor of prudence that dying·
declaration cannot be acted upori without coqoboration.5 ·
(ii) If the Court is satisfied that the dying .declaration is true and
voluntary it can base conviction on it, without corroboration+
(iii) The Court has to scrutinize the dying declaration carefully and
must ensure that the declaration is not the result of tutoring, prompting or
imagination. The deceased had an opportunity to observe and identify the
assailants and was in a fit state to make the declaration?
(iv) Where the dying declaration is suspicious, it should not be acted
upon wi_t~o~t corroborative evidence.8
dying declaration, the evidence with regard to it is to be rejected.9
AIR 2003 SC 199.
2. Kisha.n Lal v. Jagw1 Nath, AIR 1990 SC 1357.
3. AIR 2009 SC 1932.
<I. AIR 1992 SC 1817.
5. Mumm Raja and another v. State of Madhya Pradesh, AIR 1976 SC 2199.
6. State of Uttar Pradesh v. Ram Sagar Yadav and others, AIR 1985 SC 416 and Ramavati Devi v.
7. K. Ramachandra Reddy and another ll. The Public Prosecutor, AIR 1976 SC 1994.
8. Rasheed Beg v. Stale of Madhya Pradesh, 1974 (4) SCC 26'1.
9. Kaka Singh v. State of M.P., AIR 1982 SC 1021.
334 EVIDENCE ACT
(vi) A dying declaration which suffers from infirmity cannot form
the basis of conviction.1
(vii) Merely because a dying declaration does contain the details as
to the occurrence, it is not to be rejected.2
(viii) Equally, merely because it is a brief statement, it is not to be
discarded. On the contrary, the shortness of the statement itself
guarantees truth.3
(ix) Normally the Court in order to satisfy whether the deceased
was in a fit mental condition to make the dying dedaration looks up to the
medical opinion. But where the eye-witness said that the deceased was in
a fit and conscious state to make the dying declaration, the medical
opinion cannot prevail.4
(x) Where the prosecution version differs from the version as given in
the dying declaration, the said declaration cannot be acted upon.5
(xi).Where there is more than one statement in the nature of dying
declaration, one first in-point of time must be preferred. Of course, if the
plurality of dying declarations could be held to be trustworthy and
reliable, ·it has to be accepted.6
No requirement of oath and cross-examination.c-The requirement of
oath and cross-examination, in case, of dying declaration are dispensed with.
The situation in which a person is on death-bed 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. The exclusion of dying declaration may result
in miscarriage of justice where the victim is the only eye-witness in a serious
crime. The exclusion of the statement would leave the Court without a scrap of
evidence.7
No signature or thumb impression of declarant-Credibility.-
Where the recording of dying declaration did not contain signature or thumb
impression of the deceased which was alleged to be in violation of guidelines
issued by the Delhi High Court, defect in following guidelines was held to be of
trivial nature and the dying declaration proved by ample evidence could not be
rejected.8
Clause (2).-Statement made in the course of business.-Sub-
clause (2) deals with relevancy of statements made incourse of business by a
person who is dead or who cannot be found or has become incapable of giving
evidence or whose attendance cannot be procured without an amount of delay or
1. Ram Manorath and others 11. State-of U.P., AIR 1974 SC 332.
2. State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617.
3. Surajdeo Oza and others 11. State of Bihar, AIR 1979 SC 1505.
4. Nanahau Ram and another 11. State of Madhya Pradesh, AIR 1988 SC 912.
5. State of U.P.11. Madan Mohan and others, AIR 1989 SC 1519.
6 Mohanlal Gangaram Ceharu v. State of Maharashtra, AIR 1982 SC 839 and Mohan Lal and
others 11. State of Haryana, AIR 2007 SC (Supp) 1139.
7. Dashrath v. State of M. P., AIR 2008 SC 316 at p. 319.
8. Narender Kumar 11. State of NCT of Delhi, AIR 2016 SC 150 pp. 155, 156.
[S. 32 s. 32) OF THE RELEVANCY OF FACT'S 335
e~pense which is unreasonable. This clause lays d~wn that the statement made
by such person in ordinary course of business is admissible. This clause declares
that the statement made in the course pf business is ·a better piece of evidence
when it consists of an entry or memorandum made by such person in a book kept
in ordinary course of business or in discharge of professional duty or when it is
an acknowledgement written or signed by such person of the receipt of money
goods, securities or property of any kind .9r when this statement is made in a
document used in commerce written or signed by such person or when this
statement is about a· date of letter or otherdocument usually dated, written or
signed by him.
,•
In the course of business.-The e-pression "in the course of business"
means in the way that business (which may be of a purely private and even
trivial nature) is conducted. It has no connection with a course of business which
suggests a series of acts of business, the section would, therefore, apply to an act
or acts of simple or private nature.1 The' expression "statement made in the
ordinary course of business" means a statement made during the course not of any
particular transaction of exceptional kind but of business or professional
employment in which the deceased was ordinarily or politically engaged. The
phrase is apparently used to indicate the current routine of business which is
usually followed by the person whose statement is tried to be proved. So where
there is not only no evidence that there was any such current routine of business
but actually no evidence that the practice had ever been adopted on any other
occasion, the statement by a person since deceased that the defendants had
asked him to. lend them money and that he had lent them money is
inadmissible. The post-mortem report of a Civil Surgeon who unfortunately
died before his examination in the court, admissible under Section 32,"sub-clause
(2) as it is statement made by a dead person in the ordinary course of business
and in discharge of his professional duty.2 It is not necessary that the
occupation should be a mercantile nor that it should be a secular one. The
register of marriage kept by a priest is admissible.
Statement verbal or written.-The statement under sub-clause (2) may
be written or verbal. The effect of the statement as to weight may be very
different in two cases, but both are equally relevant. The words "and in
particular" in this sub-section point to the superior force of 'written' over
'verbal' statement. ·
Contemporaneous.-According to English Jaw the entry should have
been made at or near the time of transaction recorded. But the provisions of the
Indian Evidence Act contain no such restriction. According to this clause an entry
made even after the occurrence of the fact about which it relates is admissible
if it is made in course of business or in a book of account. But in determining the
weight to be attached to such entries in particular cases it will always be
important to consider how far the statement or entry was contemporaneous with
the fact it relates.
1. Rammurh v. Subbarao, AIR J9J7 Mad. 90.
2. Makkhan Smgh v. Emperor, AIR 1925 All. -IJO.
33b EVIDENCE ACT [S. 32
English Law.-According to English Law the subject-matter of the entry
must have been within the direct and personal knowledge of the person making
it. It must be an entry not of something that was said, not of something that was
learnt, not of something that was ascertaining by the person making the entry,
but an entry of a business transaction done by him to him of which he makes a
contemporaneous entry. But the Indian law simply requires that the entries in
account books should in order to be relevant be regularly kept in the course of a
business; a person making the entry may or may not have personal knowledge
about them, he might have learnt or ascertained it from somebody else. It is
important to note that the fact that the person making or dictating the entries
has or had no personal knowledge of the fact he states, or dictates will help in
believing or disbelieving the entries. It is proved that the entry was made on
the personal knowledge of the maker, then greater value will be attached to
his statement.
The statement must have been made in discharge of a duty to a third
person according to English Law ; the mere personal custom of involving
responsibility is not enough. Thus to prove the purchase of shares for a client an.
entry made by the deceased stock broker in his day book that he had bought
the shares for a client is inadmissible under English Law there being no duty to
make the entry. Again under the English Law the declarations are only
evidence of the precise facts that it was the· writer's duty to record and not of
the other matters which though contained in the same statement were merely
collateral thereto. But under the Indian Law under sub-section (2) of Section 32
the entry in order to be admissible must relate to relevant fact and it would
appear to make no difference so far as the question of admissibility is
concerned, whether the fact is connected with performance of a duty or is
merely an independent collateral matter. Whether this fact naturally finds a
place in the narrative, what is the nature of its connection with the fact, the
statement of. which was a. matter of duty ; and where this connection was such
as to raise a presumption of accuracy of information or observation, must,.
however, be question of importance in estimating the weight due to such
evidence when it relates to collateral matters merely. · · · declaration making the person liable for criminal prosecution or subjecting him
Value. of the entries.-Entries in books of account admissible under
Section 32, sub-clause (2) need no corroboration with reference. to Hie facts
mentioned therein. They are in law sufficient evidence in themselves.
Proof.-Extrinsic evidence must be given by the party tendering the
evidence to prove the declarant's death, etc., and where the statement is
written, the handwriting of the declarant and that it was made in the ordinary
course of business. If all these things are not proved, the entries by a person
dead or incapable of giving evidence, will not be admissible. This clause
relates only of the relevancy of evidence, not to the manner of proof.' Before
a relevant statement is admitted into evidence its authorship is to be
proved.2
I. Nai;a Rt!~a v. Koothuppan, AIR 1941 Mad. 602.
2 Pratap Singh 11• State, AIR 1955 (Sau) b8
s. 32} OF THE RELEVANCY OF FACTS 337
Clause (3)-Statement against the interest-Sub-clause (3) lays
down that when the statement of 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 undue amount of expense or delay which the Court consider
unreasonable or, is against the pecuniary and 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, it is admissible.
Principle.-Ordinarily a person is not expected to make a statement to
his detriment unless it is true. "The principle upon which hearsay evidence is
admitted under clause (3) is that a man is not likely to make a statement
against his own interest unless it is true."! It is on this principle that a
statement coming under sub-clause (3) is made admissible in evidence.2 This
section makes three sets of statements against interest relevant, namely, (1)
where the statement affects the declarant's pecuniary interest, (2) where it
affects his proprietary interest, and (3) where it affects his personal liberty or
property by tending or charging him with a crime or to subject him to payment
of damages. Under this clause it is the statement and not the document
containing the statement which must be against the proprietary interest of the
person making it.3 The tests of admissibility of statement against the interest
of the maker since dead under sub-clause (3) are (1) that the deceased must
have had personal knowledge of the facts he was stating, (2) the facts stated
should have been to the immediate prejudice of the deceased, (3) the statement
must have been to the knowledge of the deceased to be contrary to his interest,
and (4) the interest must be either pecuniary or proprietary.4 The question
whether the statement was made consciously 'with the knowledge that it was
against the interest of the person making it would depend in most cases on the
circumstances under which the statement was made.5
English Law.-According to English law declarations against interest or
statement made by the deceased affecting his pecuniary or proprietary interest
are admissible but declarations against the interest in other sense that is
to damages for civil suits are not admissible.
Statement against pecuniary interest.-e-A statement is against the
pecuniary interest of the maker when its tendency is to make away or lessen his
pecuniary interest. A statement is against pecuniary value of the property of
the person making the statement if it imposes upon him the pecuniary liability
of any kind. Similarly, a statement is against the pecuniary interest of the
maker if it has the effect of charging him with a pecuniary liability to another
or discharging some other person upon whom he would otherwise have a claim,
he may concede that he had received money or other things of value. The
declarant may assert that he has misappropriated a sum of money belonging to
another. He may adroit that he owes a certain sum of money to others. ln short,
I. Sabitri Deva t•. R.R. B1~1y Prasad Singh, AIR 1950 PC I.
2 Dal Bahadur v. B11,1i Bahadur, AIR 1930 PC 79
.3. Karupanna v. Rangaswarni, AlR 1928 Mad. 105.
4. Ramanathan 11. Karuguppa. 33 Indian CaM.'S %9 .
5. Kamla Kuar v. Dwarka l'ri11.1.l, AIR 19o7 SC 1134; R.C.B. lnstuuuou L'. Slah!, AIR 1'176 K.lnt. 75.
338 EVIDENCE ACT (S. 32
any statement to the effect that his financial position was so worse that it
would prima [acie appear to be had he not made the statement, will be
received as a declaration against his interest. Jn order to determine whether a
particular statement is against the pecuniary interest of the person making it,
the declaration itself and not the nature of the transaction in the course of
which the statement is made, is to be considered.1
Though the statement under this clause includes both verbal or written
tatement, it is more frequently exemplified in written statement and
especially in books of account.
Against proprietary interest.-By declaration against proprietary
interest is meant statement made by a person while in possession of an estate
asserting a more limited interest in the land or an inferior interest and denying
ome higher title which he would have been thought to possess had he not
made the statement. When a party in possession of a land admits that he is not.
that owner of the land but only he is a lessee of it or when he admits that he is
not a permanent tenant but a tenant fot a life or a tenant only for a few years or
tenant at will, he clearly cuts down his.own interest. in the land. He damages
his own title. And it is not natural that a person would do this if he actually
had a larger interest than he· claimed or stated. Any declaration by an occupier
tending to cut down, charge, or fetter his presumably absolute interest will be
admissible under this head. So, where a Hindu widow executed in favour of A
a deed of heirship, this deed was held admissible in a suit between A and a
mortgagee of a certain property covered by the deed as the deed was against
the interest of the widow.2 The statement of a particular person that he is
separated from a joint family, of which he was a coparcener and that he has no
further interest in his joint family property would be a statement against his
interest. In this case the assertion that there was separation not only in respect
of himself but between all coparceners would be admissible as connected matter
and an integral part of the same statement.3
It must be remembered that in order to take statement against proprietary
interest in land admissible after the death of the declarant it must be proved
that he was at the time of statement in actual possession of the property. A
declaration or written statement by a person since deceased when he occupied a
house to the effect that he was only a tenant at some rent, and that he has paid
it, is admissible, as a statement against pecuniary interest to prove the fact of
payment as well as the tenancy.
Criminal prosecution and suit for damages.-Under this clause the
third case in which declarations against interest are admissible, are such as to
subject the declarant to prosecution or civil action. If the entry of a deceased
person is such that he would have been criminally liable for that or he would
have been liable to pay damages in a civil suit the statement will be
admissible. But in order to make such statement admissible the fact stated must
l'xpose him to a criminal prosecution or to a suit for damages at the time il was
I. Markhu v. Sharai, ALR 19-10 Pat 16.
:?. Han II Mose, !LR I I llom 89.
3. Bhagwat: Prasad 11. Duban Rameshwari, AIR 1952 SC 72.
s. 32) OF THE RELEVANCY OF FACT: 339
made. It was hardly intended, that a statement made after the risk had passed
away, as for example after a suit for damages had become time barred or afte,
the expiry of time, if any, within which a prosecution for an offence must be
instituted would be admitted. The idea behind this principle is that when a
person makes statement rendering him liable to criminal prosecution, the
statement is likely to be true statement, but when before he made the statement
in question there was, already evidence against him which would lead to hi
prosecution and conviction, a statement made by him cannot be admitted in
evidence under Section 32 clause (3).1 This clause cannot be applied to a
statement made by a deceased person after proceedings have been instituted
against him. The moment a criminal proceeding has been started against the
person making the statement, the words of sub-clause (3) cease to apply.2
All facts contained in the statement admissible.-It must be
remembered that the statement may be accepted not merely as to the specific
part against the interest of the maker, but also as to every fact contained in the
same statement.
If the entry is admitted as being against the party making it, it carries
with it the whole statement.
It is admissible as evidence not merely of the precise fact which is against
interest but of all matters involving in or knit up with the statement.3
So the statements of tenants have been admitted to prove not merely the
fact that they were tenants but also both the amount and payment.4
Recital of boundaries in documents.-Recitals of boundaries in
documents not inter partes were admitted under this clause in several cases.5
The mortgage deeds and sale deeds having been held to be statement against
the pecuniary or proprietary interest of the executant of the deed the document
is made evidence not only of the precise fact against the interest but of all the
collateral facts mentioned therein and consequently of the possession or
ownership of persons who are mentioned in the deed possessing or owning the
land adjoining the property mortgaged or sold.6
Clause (4)-The statement about opinion as to public right or
custom.-Where a person was likely to be aware of the existence of any public
right or custom or matter to public or general interest, and being so aware makes
a statement giving his opinion about the existence of such public right, etc.,
before any controversy as to such right arose and dies after making such
statement or commit be found or who has become incapable of giving evidence or
whose attendance cannot be procured without undue amount or expense or delay
which the Court considers unreasonable, it shall be admissible under Section 32
I. Achter Lal v. Emperor, AIR 19-17 Pat. ',IQ,
2. Ianu Quadrr 11. Emperor, AIR 1947 Sind 122.
3. Bhagwali Prasad v. Rameshwan, AIR 1952 SC 72.
'I. Ambar Ah v. Lutfe Ali, fLR 45 Cal 159.
5. Thyarapan v. Narayan Thevan, AIR 1940 Mad 480; Tikaram v. Moll Lal, AIR 19'.}0 AU 299.
6. Riayaddr Shankar v. Ganga Charan, AIR 19l'J Cal 419, Ram Nadan v Tilak Ohan, AIR l9JJ Pllt.
b3b; Rangayyan v. Innasemuther, AlR 1'.155 Mad 226.

340 EVIDENCE ACT (S. 32
clause (4). In order to prove a public or general right or custom, or matter of
public or general interest, statements made by deceased person of competent
knowledge as to the existence of such right, etc., and to the general reputation
thereof in the neighbourhood (if made ante lliem mortem before the dispute
arose) are admissible. Such statements are known as a declaration as to public
and general right. Public rights are generally those common to all the members
of the State, e.g.,rights of highway and ferry or of fishery in tidal rivers.
General rights are those affecting any considerable section of the community,
e.g., questions as to boundaries of a parish or manor. This clause applies in case
of any public right or custom.l
Opinion.-"What is offered must be in effect a reputation not the mere
assertion of an individual. But the reputation includes and is often learnt
through the assertion of individual. It is therefore, constantly necessary to
distinguish between assertion involving some individual credit and assertion
involving a community reputation.
The common-form of question put to a reputation witness was 'what have
you heard from old man, now deceased, say as to the reputation on this subject.'
Thus though in form the information may be merely what deceased person
have been heard to say about a custom, yet in effect it comes or ought to come
from them as a statement of reputation."
"The Judges constantly speak of reputation from deceased person, but
reputation is no other than the hearsay of those who may be supposed to have
been acquainted with the fact handed down from one to another. So in such a
case it is usual to admit the evidence of the old persons, who are deceased, and
have been heard to say on those occasions. Opinion must be of competent
persons. The opinion to be admissible under this clause must have been formed
among a class of persons who were in a position to have a perfect sense of
information and to constitute intelligently to the formation of the reputation."
Declaration ante-litem mortem.-To make a statement relevant under
this clause it is not onlf necessary that the declarant was possessed of adequate
knowledge but also that the latter was not at the time of making his statement
under a controlling motive or mis-representation. The declarant must be
disinterested at the time when he made the statement. If it is proved that the
speaker had some interest to misrepresent, his declaration would be rejected. It
is, therefore, necessary to the admissiblity of declarations of this description
that they should be made before the dispute had arisen in regard to which
they are tendered in evidence. The reason why the statements of deceased
persons are admitted upon the public right made· ante-litem mortem (when
there was no existing dispute respecting them) is that these declarations are
considered as disinterested and dispassionate and made without any intention
to serve a particular cause or mislead the posterity.
Clause (5)-Statement as to existence of relationship.-Under this
clause, the statement of a dead person or one who cannot be found, or who has
1. Mah Lal 11. Baldeo Das, AIR 1952 V.P. 36.
s. 32) OF THE RELEVANCY OF FACTS 341
become incapable of giving evidence or whose attendance cannot be processed
without undue amount of expense or delay which the Court considers
unreasonable relating to the existence of relationship between persons, are
relevant if the person making the statement had special means of knowledge
about the relationship and the statement was made before the question in
dispute was raised. On 3rd of March, 1950 A purchases some property from 8.
On 10th of May, 1950 H files a suit for recovery of half of the property sold. He
sets up the following pedigree.
sI
D (Daughter.)
R (Son) P (Son)
I I
M (Daughter)
B (Son)
.,. I
· J:I (Son)
The allegations in the plaint are that the property' in dispute belonged to
S. He left only one issue D, a daughter. After S his property was inherited by
D. After the death of D the property in dispute came to Rand P, her sons each
getting one-half. After P's death his half share devolved on B. After R his
half share went to M, his daughter, and after her death it devolved upon H.
He alleged that B could sell only half of the property and so the sale in respect
of his share was null and void. A contests the suit on various grounds. One of the
grounds set up by A is that D had only one son P and that R was not a son of D
and so H has no interest in the property sold. Now one of the facts in issue at
the trial would be whether R was son of D ?°At the trial one K is produced by H
as a witness. He says, "R told him about 40 years ago that he and P were
brothers· and tha.t D was. their mother." Here the plaintiff wants to prove the
'statement of R to prove relationship between Rand P and that between him and
B. If R was son of D he must be supposed to have special means of knowledge
about the relationship. This statement was made long before the dispute arose.
Therefore the statement is relevant.
Clause (5) requires (1} that the statement sought to be tendered in
evidence must be made by a person having a special means of knowing the
relationship to which it relates, and (2) that it must have been made ante
litem mortem.
Special means of knowledge.-Before the statement of a deceased
person relating to relationship may be proved, it has to be established that the
person, whose, statement is to be proved, had special means of knowing the
:relationship. The burden of proof lies upon the party who offers such evidence.
; "Where, in order to prove a family pedigree the st~rnents of a deceased
· person are tendered, but there is nothing to show thatnc had any special means
of knowledge in the matter, the statements are not admissible."!
1. M.ita Baksh Singh 11. Ayodhya Baksh Singh, AIR 1942 Oudh 340.
 342 EVIDENCE ACT
In Ttuarku v. Surti,1 the entry in family register was maintained under
rules. The name of first wife therein was deleted on the basis of divorce deed
and name of the wife subsequently married was found mentioned.
Representation made by the husband and recorded as entry in register was very
much relevant under Section 32 (5) to prove that person mentioned in entry had
married the second wife.
It should be borne in mind that to have special means of knowledge the
declarant should be related to the family, by blood or marriage. In India for the
purposes of proving relationship, statements of deceased relatives, servants
and dependants of the family are admissible and in every instance it must be a
question of fact as to whether the person who made the statement had the
special means of knowledge.2
It should be remembered that in the case of statement, as to relationship
of certain persons of the family, by an old member of the family, it is not
necessary for him to depose to any particular source of knowledge. His special
knowledge may be presumed.3 Similarly, a person married in the family and a
family bard have been held to have special means of knowledge of the
relationship. 4
Ante Litem Mortem.-The statement must be made before the dispute
arose.5 Declarations made after the controversy has arisen are to be regarded as
lacking the guarantee of truthfulness. "The line of distinction is the origin of
controversy and not the commencement of the suit." A dies in 1915 A. D.
issueless. After his death B enters into possession of all his properties. One C
claims half of the property alleging that he and B are agnates of A of an equal
degree. He states a pedigree and tries to prove that his grandfather, B's
grandfather and grandfather of A were real brothers all being sons of X. He (C)
does not file any suit in his lifetime. After his death his son D files a suit
against B for partition and possession of half the property left by A. At the
trial D tries to improve .the statement of his father mentioned above. The
statement is inadmissible as it was made after the dispute arose.
It should be borne in mind that the only two conditions laid down by this
clause are that the statement should be made by a deceased person who had
special means of knowledge and that it was made ante litem mortem. No third
conditions can be laid down. It cannot be said that the statement should have
been relevant to the matter in issue in respect of which it was made. If the
statement fulfils the two above-mentioned requirements, it is immaterial as to
in what connection it was made. It might have been made in course of gossip
only still it is admissible. It is well settled that the declarations or statements
made post litem mortem would not be admissible because in cases made ante
liiem mortem, the element of bias and concoction is eliminated.
1. AIR 1997 HP 76.
2. S. Ram Krishna Pillai v. Tlrunarayan, AIR 1932 Mad 198.
J. Md. Asad Ali v. Sadiq Ali, AIR 1943 Oudh 91.
. 4. Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC 201; Anand! v. Nandi Lal, 22 ALJ 657.
5. AlR 1935 PC 199.
[S. 32
s. 32] OF THE RELEVANCY OF FACI'S 343
Before, however, the statements of nature being ante litem mortem they
must be not only before the actual existence of any controversy but they should
be made even before as the commencement of legal proceeding.!
Joint statement-Some persons making, dead.-If a statement is
made by many persons and some of them are dead while others are alive at the
time when the statement is sought to be proved it is admissible under this
clause if made ante /item mortem.2
Clause (6)-Pedigree Evidence.-Clause (6) is regarding the evidence
of pedigree under which a statement in a Will or deed relating to family
affairs is relevant.
This clause lays down that when the statement of a person who is dead or
who cannot be found, or who has become incapable of giving evidence or whose
attendance cannot be processed without undue amount of expense or delay which
the Court considers unreasonable (1) relates to the existence of any relationship
(by' blood, marriage or adoption), (2) between persons deceased, and (3) is made
in any will or other deed relating to the affairs of the family to which any of
such deceased person (about whose relationship it relates) belonged or when it
. is made in a family pedigree or upon any tomb stone, family portrait or in any
other thing on which such statements are generally made, and (4) when the
statement is made ante /item mortem, it is relevant.3
As seen above clauses (5) and (6) both deals with the statements of persons
relating to relationship-of persons. To avoid confusion it would be important to
note the difference between·the two clauses.
Difference between clauses (5) and (6).-Both of these clauses are
similar in so far as they relate to the admissibility of evidence relating to
relationship. But there are many diferences between the two.
(I) In clause (5) the evidence is the declaration of a person deceased or
otherwise unproducible, whereas in clause (6) the evidence is that of things
such as wills, family genealogical trees, tombstone, etc .. (II) Clause (5) refers to
relationship between any persons alive or dead whereas clause (6) to the
relationship between persons who are dead, A and B are both alive. The
question is whether A and 8 are related to each other as cousins. This can be
proved by. adducing evidence in conformity with clause (5). Again suppose A is
dead and 8 is alive, the question is whether A was grandfather of 8. In this
case also the evidence can be brought on record provided by clause (5). Again
suppose C and D are both dead, the question is whether they were cousins. In
this case both the clauses may be invoked. But in the cases where one of the
persons or both, about whose relationship the controversy arise, are alive,
clause (6) cannot be of any help. (III) Statement under clause (5) may be oral or
written, whereas under clause (6) can never be oral , it must be written, (IV)
1. State of Bihar v. Radha Krishna Singh, AlR 1983 SC 684.
2. Dalgovind v. Nimar Charan, AIR 1959 SC 915.
3. 'Banwari Lal v. Trllok Chand, AfR 1980 SC 419.
3.Jil EV1DENCE ACT
Under clause (5) the persons making the statement must have special means of
knowledge about the relationship. But under clause (6) it is not necessary that
the statements in wilJs, document, portrait, etc., should have been made by a
person having special means of knowledge about the relationship.
English Law.-According to English law declaration made by deceased
relatives are admissible if made ante litem mortem to prove matters of
pedigree only. They are relevant only in cases in which pedigree to which they
relate is in issue, but not to cases in which it is only relevant to the issue. Thus,
where the question was whether A sued for the price of horses and pleading
infancy, was on a given day an infant or not, the fact that his father stated in
an affidavit that A was minor on a certain date was held to be irrelevant. The
terms matters of pedigree under English Law appears to be confined to
primarily issues involving family succession, descent, relationship and
legitimacy.
Indian Law.-Minority, age and date of birth and legitimacy all can be
proved.!
Clause (7)-Statement made in a document relating to
transaction.-Under this clause statements of -elevant facts made by persons
who are dead or who cannot be found or who has become incapable of giving
evidence or whose attendance cannot be processed without undue amount of
expense or delay which the court considers unreasonable are relevant if they
(statements) are contained in any deed, will or other document which relates to
such transaction as is mentioned in Section 13, clause (a). Under clause (7) only
jhat statement is relevant which is contained in any deed or will or other
documents relating to any transaction by which any right or custom was
created, claimed, modified, recognised asserted or denied or which was
inconsistent with its existence. It must be borne in mind that the right created
by the transaction may or may not be relevant in the present controversy. Any
statement in the deed relating to the transaction, which is relevant in the
present controversy, may be proved.
A deed of mortgage containing an assertion of title as owner by the
mortgagor is relevant as evidence of title. A statement of boundaries in
document of title is legal evidence in suit between third parties if the persons
who made the statements are dead.
Example
A and B were two plots adjacent to each other ; B lay towards the north of
A, A belonged to Mohan and B belonged to Sohan. Mohan sold his plot A to one
Ram in 1865. In his sale-deed he gave the boundary of his field, while giving
the boundary Mohan stated in the deed that towards the north of his field was
situated the field of Sohan. Somewhere in 1950 dispute .arose between one
Shyam and Pyare the son of Sohan about the ownership of plot B, and a
litigation began. In the trial court Pyare tried to prove the sale-deed executed
1. Mukti Prasad v. Akkrna, AIR 1950 Cal 553 ; Kanahlya v. Mst. Ram Din Kuar, AIR 1944 Oudh
162.
[S. 32 s. 33] OF THE RELEVANCY OF FACTS 345
by Mohan that the plot belonged to him. It was held that the deed was
admissible under Section 32, clause (7).
Clause (8)-Statements by several persons expressing feeling
relevant to the matters in question.-This clause lays down that the
statement made by a number of persons, expressing feeling or impression, i.e.,
opinions relevant to the matter in question are relevant when such persons are
dead cannot be found or incapable of giving evidence, or whose attendance
cannot be processed without undue amount of expense or delay which the court
considers unreasonable and they may be proved by the testimony of other
persons.
S ECTION 33.-Relevancy of certain evidence for proving, in
subsequent proceeding, the truth of facts therein stated.-
Evidence given by a witness in a judicial proceeding, or before any person
authorized by law to take it, is relevant for the purpose of proving, in a
subsequent judicial proceeding, or in a later stage of the same judicial
proceeding, the truth of the facts which it states, when the witness is
dead or cannot be found, or is incapable of giving evidence, or is kept out
of the way by the adverse party, or if his presence cannot be obtained
without an amount of delay or expense which, under the circumstances of
the case, the Court considers unreasonable :
Provided-
that the proceeding was between the same parties or their
representatives in-interest;
that the adverse party in the first proceeding had the right and
opportunity to cross-examine;
that the questions in issue were substantially the same in the first as
in the second proceeding. .
Explanation.-A criminal trial or inquiry shall be deemed to be a
proceeding between the prosecutor and the accused within the meaning of
this section.
COMMENTS
Sections 32 and 33 are exceptions to the Hearsay rule.-As
discussed under Section 60 there are several exceptions to the rule of excluding
hearsay evidence. Sections 32 and 33 are also exceptions to that rule under these
sections derivative, i.e., hearsay evidence is relevant.1
Relevancy of certain evidence in subsequent stage of a
proceeding or in other proceedings.-If a person makes a statement in a
judicial proceeding or before any person authorised by law to take evidence and
afterwards he dies or cannot be found or becomes incapable of giving evidence or
is kept out of the way by the adverse party or if his presence cannot be obtained
without an unreasonable amount of delay or expense, and if the fact stated by
him becomes relevant at the later stage of the same proceeding or another
1. Ml Bino v. Abna Ram. AIR 1937 All 131.
 346 EVIDENCE ACT
subsequent judicial proceeding that previous statement can be proved without
calling that person as a witness. But it should be remembered that the previous
statement of such person can be admitted in evidence only, when-
(1) the first proceeding was between the same parties as in the subsequent
one, or their representatives-in-interest ;
(2) the adverse party in first proceeding had the right and opportunity to
cross-examine; and
(3) that the questions in issue were substantially the same in the first as in
the second proceeding.
A criminal trial or inquiry shall be deemed to a proceeding between the
prosecutor and accused within the meaning of this section.
Previous statement in the same proceeding.-Section 33 lays down
that the statements of persons (dead etc.) in an earlier stage of the same
proceeding is relevant at a later stage of the same proceeding. The statements
of witnesses at the stage of an inquiry under Order 22, Rule 5 C.P.C. are relevant
at the stage of the final hearing of the case.1 ..
The· statement recorded before the ex parte decree set aside.-
When an ex parte decree is set aside the evidence recorded becomes illegal.
Moreover the defendant had no opportunity to cross-examine the witnesses.
Therefore the evidence of plaintiff recorded prior to the setting aside of the
decree is not relevant under Section 33.2
Thus the previous deposition of a witness is admissible in -a subsequent
judicial proceeding in proof truth of the fact stated therein, where all the
following conditions are fulfilled :-
(1) that the evidence was given in a judicial proceeding or before any
person authorised by law to take it;
(2) that the proceeding was between the same parties or their
representative-in-interest ;
(3) that the parties against whom the deposition is tendered had right
and full opportunity of cross-examining the deponent, when the deposition was
taken in the previous proceeding;
(4) that the issues involved are the same or substantially the same in both
proceedings; · ·
(5) that the witness is dead or cannot be found or has become incapable of
giving evidence or is kept out of the way by the adverse party or his presence
cannot be obtained without an unreasonable amount of delay and expenses.
Difference between Sections 32 and 33.-Both the sections make
provisions for admission of previous statement of the persons who are dead, or
who cannot be found or who have become incapable of giving evidence or whose
presence cannot be obtained without unreasonable delay or expense. Besides
these similarities there are some differences : (i) unlike Section 32 under
1. Mohinder Kuar v. Piara Singh, AIR 1981 Punj. 130.
2. Aziz Ahmad v. 5.A. Patel, AIR 1974 AP l ; Mal khan Singh v. Raghubir Singh, AIR l 98l All 96.
[S. 33 s. 33] OF TI--IE RELEVANCY OF FACTS 347
Section 33 a previous statement of a witness can be used also when he is
prevented from appearing in court by the adverse party, (ii) Under Section 32
any statement covered by the sub-sections of this section are relevant whether
it is written or verbal, whether it is made in a judicial proceeding or not, but
under Section 33 only evidence of a witness in a judicial proceeding or before a
person authorised to take evidence is relevant.
Judicial proceedings.-Section (2), clause (i), Cr. P.C., 1973 defines
judicial proceeding as "judicial proceeding includes any proceeding in course of
which evidence is or may be legally taken on oath." This section does not give
an exhaustive definition but it only gives the test of judicial proceedings.
According to this section any proceeding in which oath is given to a witness. is a
judicial proceedings. No definition of the term, judicial proceeding, is given in
C.P.C. The meaning of the term will be clear by examples. Settlement
proceedings before Settlement Deputy Collector are not judicial proceedings
within the meaning of this section and as such the statements made before a
Settlement Deputy Collector are not admissible under Sections 83 in subsequent
judicial proceedings though all other conditions mentioned before are
fulfilled, 1 where certain proceedings were conducted before a Magistrate who
had no jurisdiction to conduct them, the evidence of witnesses examined in. such
proceeding cannot be proved on a retrial before a competent court.2
Section 299 of Cr. P.C. and Section 33 of Evidence Act.-ln
Nirmal Singh v. State of Haryann,3 the Supreme Court held that on mere
perusal of Section 299, Cr.P.C. which deals with record of evidence in absence of
accused and Section 33 of Evidence Act, it must be concluded that the
precondition in both the sections must be established by prosecution. It is only
the statement of witness recorded under Section 299 of Cr.RC. before arrest of
the accused can be utilized in evidence in trial after the arrest of such accused if
the person making the statement is dead or would not be available or.any other
condition enumerated in the second part of Section 299 (1), Cr.P.C. is
established.
Before any person authorised by law.-It is not necessary that the
evidence should have been given in a judicial proceeding. A deposition taken by
Magistrate in his magisterial capacity could be receivable if not excluded on
any of the grounds mentioned in this section. So a coroner, an arbitrator, a
Commissioner appointed under C.P.C. to take down evidence, or a revenue
officer in mutation proceedings are authorised to take evidence and depositions
before them are admissible in subsequent cases. The evidence of a witness
examined in an inquiry held by a sub-registrar under Section 41 (2) of the
Registration Act regarding the genuineness of a will is admissible in evidence in
subsequent suit between the same parties raising an issue to the genuineness of a
will, if it is proved that witnesses are dead at the time of suit, and the adverse
party of the inquiry before the sub-registrar had an opportunity to cross-
I. Shri Krishen Dutt Dubey v. Musrunmat Ahmadi Bibi and others, AlR 193.5 All 187.
2. Bula Singh v. Crown, AIR 1927 Lah 582.
3. AIR2000SC1416.
348 EVIDENCE ACT [S. 33
examine the witnesses.1 In general the principle is clearly accepted that the
testimony taken before a tribunal or officer not empowered to compel or not in
practice employing cross-examination as a part of its procedure is inadmissible
if in fact cross-examination was practised under its procedure.2
(2) Identity of parties.-The deposition of a witness who is dead or who
cannot be produced due to some other reasons, in a previous litigation are
admissible under Section 33, Evidence Act when the proceedings have been
between the same parties or their representatives-in- interest. So a deposition
cannot be given in evidence against any person who was not a party to the suit.3
In deciding the identity of parties it !Jl~ke.s no difference that the parties are
differently arrayed in the two proceedings, the plaintiff in the first proceeding
being defendant in the second or vice versa : nor if there have been plurality of
parties in one case and not in the other.
In V.M. Math(w v. V.S. Sharma & others,4 the Supreme Court held that
adverse party is the party against whom the witness is produced in first
proceeding. Party producing the witness and having advantage of examining
the witness is not suchadverse party as referred to in second proviso.
Representative-in-interest.e-The first proviso to Section 33 reads as
"That the proceeding was between the same parties or their representatives-
in-interest." There is no difficulty in the interpretation of the proviso when the
parties of both the proceedings are common. But where the parties are· not
identical, the question becomes a bit intricate. The proviso in this respect would
read as "that the proceeding was between their representatives-in-interest."
From the wo~ds of this proviso it is I'Ot clear whether the party to the first
proceeding must have been a representative-in-interest of the party to the
second proceeding (or the party to the second proceeding must be a
representative-in-interest of the party to the first proceeding). This is crucial
question, because if the latter view be the true one, it would seem that the
proviso could only be fulfilled where an interest vested in the party to the first
proceeding at the death thereof had become vested in the party to the second
proceeding, in other words where, according to the well-known terms of the
English Law, the party to the proceeding was privy in estate with the party to
the first proceeding and so claimed title through and under him. On the other
hand, if the former view prevails, the words representatives-in-interest may
cover a much wider field and include persons.who have no privily of estate
with and do not claim through or under the propositus. Their Lordships of the
Privy Council held that "The person who is called by proviso (1)
'representative-in--interest' of another is a person who was the party to the
first proceeding." The first proviso requires that the party to the first
proceeding should have represented in interest the party to the second
proceeding in relation to the question in issue in the first proceeding to which
"the facts which the evidence states" were relevant. It covers not only cases of
1. Lanka Lakshmanna ti. Lanka Va.rdhanamma, !LR 452 Mad 103.
2. K. Papparao ti. Satyanarayan, AIR 1980 AP 257.
3. Kripa Ram v. Ayodhya Prasad, AIR 1960 Punj. 261.
4. AIR 1996 SC 109.
s. 33) OF THE RELEVANCY OF FACT'S 349
privity in estate and succession of title but also cases where both the following
conditions exist, viz. (i) the interest of the relevant party to the second
proceeding in the subject-matter of the first proceeding is consistent with and
not antagonistic to the interest therein of the relevant party to the first
proceeding, and (ii) the interest of both in the answer to be given to the
particular question in issue in the first proceeding is identical.
There may be other cases covered by the first proviso ; but if both
the above conditions are. fulfilled, the relevant party to the first proceeding in
fact represents in the first proceeding the relevant party to the
second proceeding in regard to his interest in relation to the particular
question in the issue in the first proceeding, and may grammatically and
truthfully be described as representative-in-interest of the party to the second
proceeding.1
Illustration
(1) Raja of Pittapur adopted Ram Krishna in 1873. It is alleged that on
5th October, 1885, the late Raja's wife gave birth to a son P. The late Raja
executed a will in favour of P in which the described P as his auras putra
(natural born son) and died in 1890. In 1891 Ram Krishna, who was adopted by
Raja, brought a suit against the Court of Wards and P in which he prayed for
the relief that it may be declared that was not son of deceased Raja together
with many reliefs. In that case it was held by the High Court that P took under
the will as persona designate and that the question of his sonship did not
arise.
The late Raja had a brother Venkata Rao. He died in 1871 childless. In
1914 his widow adopted as son Krishna who was one of the sons of Ram
Krishna, the plaintiff of the previous suit. Thereupon P instituted a suit
against Krishna and widow of Venkata Rao claiming that he was the nearest
reversioner entitled to succeed to the properties of Venkata Rao after his
wife's death and praying for a decree declaring that adoption of Kishna was
invalid and not binding on him. By their written statements defendants denied
that he was the auras son of late Raja.
At the trial there was tendered on behalf of the defendants, the evidence
recorded in the suit of 1891 brought by Ram Krishna which was claimed to be
admissible under and by virtue of Section 33 of the Evidence Act. The evidence
was rejected by the Trial Court and the High Court but it was admitted by
Privy Council. 1t was observed : "the determining factor is to answer the
question whether the relevant party to the proceeding (Ram Krishna) was
representative-in-interest of relevant party to the second proceeding
(Krishna). In their Lordships' opinion he was. He claimed possession of
properties which in his hands would be joint family property and in which
(under Mitakshara law) all his after-born sons, upon birth, acquire an
immediate interest as co-partner. It is difficult to see how it could be said that
1. Krishnayya v. Venkata Kumar, AIR 1933 PC 202; Canpah Rao ti. Naga Rao, AIR 19441 Nag.
382; V. Narasayyanna v. Rattamma, AIR 1957 AP 378; Subrahrnanya v. Lakshmi N.:u~sunma.
AIR 1958 AP 22.
350 EVlDENCE ACT [S. 33
Ram Krishna in asserting his claim to that property upon that footing was not
the representative-in-interest of his sons born and to be born.1
What the first proviso aims at securing is that the evidence shall not be
admitted unless the person who tested of had the opportunity of testing the
evidence by cross-examination, either is himself or represented the interest of
the party to the latter proceeding against whom the evidence is tendered, i.e.,
he was (in the latter case) in effect fighting that person's battle as well as his
own.
When the party to the latter proceeding was not himself a party to the
first proceeding, admissibility of the evidence in favour of such a party must be
tested by its admissibility if tendered against him. If not admissible against
him it cannot be admissible in his favour.2
One T possesses. some property movable and immovable. After his death
one V filed a suit against one P a debtor of T. In this suit V claimed to be an
adopted son of T and so.entitled to realise the debt from P. The defendant P
contended that V was not adopted by T. In that case V examined six witnesses
on the point that it was adopted by T. Afterwards D a daughter of T filed a suit
for the declaration that V was not adopted by T. By the time the case came up
for hearing, five out of six witnesses examined by V had died. D the defendant
tried to prove the statement of the five witnesses examined by V. The evidence
was rejected. It was held that the tests of principle of the Supreme Court case
applied. P who was a debtor of T, fought the battle of the plaintiff in this suit
that V was not adopted son of T. He represented the interest of the party to the
second suit that is D. The interest of D herein in the subject matter of the first
proceeding (viz., the estate of T) is not antagonistic to but consistent with the
interest therein of P who fought the battle in the first proceeding on behalf of
the estate of T, uiz., that V not being the son of Twas not entitled to recover the
debt which belonged to T.3
(ii) A died leaving a widow M. One B claimed that he was adopted by A.
Another man C claimed that he and not B was adopted by A . C filed a case
against B for declaration that he and not B were adopted by A. In that case B
examined witnesses. Afterwards M filed a case against B alleging that B was
adopted by A. In that case B wanted to prove the statements of the witness
who had been examined by him in the previous suit and who had since died.
The evidence was rejected on the ground that the interest of the plaintiff in the
former suit was not consistent with the interest of the plaintiff of the second
suit rather it was antagonistic to it because if the plaintiff of that would have
won the case the plaintiff of the present case would have got nothing.t
(3) Parties in a criminal proceeding.-Theoretically all prosecutions
are conducted in the name and on behalf of the State, but in practice in every
criminal case there is a complainant who may be named as prosecutor. A is
1. Krish nayya v. Venkata Kumar, AlR 1933 PC 202.
2. .Krashna yya v. Venkata Kumar, AIR 1933 PC 202.
3. Narasoyyanna v. Rattamma, AIR 1957 AP 378.
4. Subrarnanya v. Lakshmi Narasamma, AIR 1958 AP 22.
s. 33] OF THE RELEVANCY OF FACTS 351
murdered. His brother D makes a report of the occurrence and looks after the
case. B is accused of the murder. Though the case will be titled as State v. B,
but D will be said to be prosecutor and for the purposes of Section 33 the parties
of the case would be O and B. Suppose in the criminal case B is acquitted and
afterwards -he files a suit for damages against D for malicious prosecution and
at the trial he wants to prove the statement of defence witness of the murder
case. If the witness is dead or cannot be produced the statement would be
admissible as the criminal and civil cases were between the same parties.
Cross-examination.- Under this section one of the conditions to be
satisfied is "that the adverse party in the first proceeding had the right and
opportunity to cross-examine." Two things, ,he right and opportunity must co-
exist, if the adverse party had a right but was not given an opportunity to cross-
examine or if he had no right to cross-examine but was given an opportunity to
cross-examine, the statement will not be allowed to be proved in subsequent
proceeding1 but it should be borne in mind that it is not necessary for the
admission of the evidence of a previous proceeding in a subsequent one that the
witness must have actualJy been cross-examined in the first proceeding, all
that is necessary is that the adverse party had a right to crosz-examine and he
was given an opportunity to do so. The true reading of Section 33 is that the
party had both the right and opportunity to cross-examine. Mere opportunity is
not enough. There must also be the right to do so.2 If the adverse party had a
right to cross-examine and he was allowed to cross-examine but he failed to do
so, the statement may be proved in the subsequent proceeding.3
In Dever Park Builders Pvt. Ltd. v. Smt. Madhuri fa/an and othas,4 the
question arose as to admissibility of evidence of a person with unfinished cross-
examination only partly heard as in the meantime the witness died. This
evidence could not be admissible. There is no provision under the law that if
evidence is not examined either in full or part, his evidence could be absolutely
rendered inadmissible. How much weight should be attached, should be
decided considering other facts and circumstances surrounding it. It was held by
Calcutta High Court that provisions of Section 33 of Evidence Act would not
apply in this case.
(4) Identity of issues.-(1) The deposition of a witness, in a prior
litigation is admissible under Section 33 only when the question in issue is
substantially the same in the two proceedings. The "question in issue" referred
to in Section 33 being required to be substantially the same depends on whether
the same evidence is to be adduced, although different consequences may follow
from the same act. C was assaulted by D with a spear. A case under Section 324,
IPC, was started against D. The case was being tried before a Magistrate, C
deposed before the court. After that he died. The charge was amended and D
was charged for murder. The case was committed to the Court of Session. In the
Court of Session the statement of C was admitted under Section 33 though the
I. Abdul Rahim v. Emperor, AIR 19-16 Lah. 275.
2. Dalbahadur Singh v. Bijai Bahac ur Singh, AIR 1930 PC 79; Brahmachari v. Anadh Sandhu, AIR
195-1 Cal. 395.
3. Jahanar Ali Khan v. Emperor, AIR 1946 Oudh 26.
4. AIR 2002 Cal. 281.
352 EVIDENCE ACT [S. 33
charges in both the courts were under different sections. In both of the courts one
question in issue was whether D assaulted C.1 The principle involved in
enquiring identity of the matter in issue is to secure that in the former
proceedings the parties were not without an opportunity of examining on the
very point on which their evidence is adduced in the subsequent proceeding.
Though separate proceedings may involve issues, of which some only are
common to both, the evidence on those common issues given in the former
proceedings may, on the conditions mentioned in Section 33 arising, be given in
the subsequent proceedings.2 It is not necessary that all the questions in issue in
the two proceedings should be substantially the same. If one of the issues in the
two proceedings is substantially the same the deposition in the prior suit on
that issue can be proved in the subsequent' proceeding. In a suit of 1891 there
were many issues. One of the issues was the question of the sonship of the
plaintiff and the very same question was in issue in the subsequent suit. The
deposition in prior suit was held admissible.3
It should be borne in mind that the subject-matter of suits need not be
identical, it is only the question in issue which is to be identical. If in a suit
representing lands, any fact comes directly in issue, testimony given to that fact
is admissible to prove the same point in another suit between the same parties
though the subsequent suit related to different lands.4
Deposition of a witness in a mutation proceeding was held to be
admissible in a subsequent suit between the same parties in which the same
question of jointness of the family came to be determined.5
(5) Inability of witness to appear before the court.-The statement
of a witness in a prior suit may be proved in subsequent suit or proceeding if the
witness is (1) dead, or (2) cannot be found, or (3) has become incapabie of giving
evidence, or (4) is kept out of tire way by the opposite party, or (5) his presence
cannot be obtained without an unreasonable amount of delay or expense.
Death.-Before the prior deposition can be proved, the fact of death
must be proved like any other fact ; mere report of assertion that the witness is
dead is not enough.
The deposition would not become admissible merely because of the death
of the witness at any stage of proceeding. If the party tendering the evidence
had made no attempt before the death occurred to examine the witness and if
before closing his case, he had not established any of the grounds other than
death mentioned in Section 33 which would make it receivable in evidence, the
deposition could not be taken into consideration because the witness died during
the trial of the suit.6
Cannot be found.-A person may be said to have been not found when it
is known who he was and if in spite of search he was not found. But he may
1. Empress v. Rachia Mahto, ILR 7 Cal. 42.
2. Ram Reddi v. Seshu Rcddl, ILR 3 Mad 48.
3. Knshnayya v. Vcnkata Kumar, AIR 1933 PC 202.
4. R. v. Rami, ILR 2 Mad 48.
S. Fakimath v. Krishna Chandra, AlR 1954 Ori. 418.
6. Subrahman yya v. Lakshmanarasamma, AIR 1958 AP 22.
s. 33] OF THE RE LEV ANCY OF FACI'S 353
equally be said not to have been foand if his identity cannot be traced or
found and who therefore on account of the absence of his identity cannot be
found.
The courts should be very cautious to admit prior deposition of a witness on
the ground that he cannot be found. There shall always be possibility of
collusion between the party (whose duty it is to produce) and the witness.
Before a previous statement of a witness can be admitted every attempt to
produce him before the court should be made. The court should be satisfied that
the witness cannot be found on any effort. Where the only evidence is that the
witness is a man of another district and cannot be found or that he could not be
found at the rrevious address, or that the witness has gone away and so could
not be found, the prior statement cannot be proved ..
Before admitting the prior statement of a witness; a sincere effort to
produce him is to be made and if in spite of that the witness cannot be found his
prior deposition may be proved. The use of Section 33 is improper where the
whereabouts of the witness is known, but his failure to appear is due to the
negligence of the prosecution.2
The statement of a doctor made before committing Magistrate was brought
on record before the Sessions Judge under Section 33. At the trial the 'prosecution
produced a head constable who deposed that he took the summons for thir
witness to the hospital where he was previously employed and the
Superintendent of the hospital made a report that he was no longer in service
and it was not known where he was. This witness aJso stated that "From the
inquiries made by me I learnt that his whereabouts are not known". In cross-
examination he again stated that he made enquiries but he could not dlscove'
the whereabouts of this witness. After this statement the Public Prosecutor
made a statement that .ihe doctor's whereabouts were not known and prayed
that his statement be transferred under Section 33 of the Evidence Act on the
ground that there was likelihood of the witness being available without
unreasonable delay and expenses and no objection was shown to have been taken
by the defence at that stage. Thereupon the trial judge ordered the statement to
be transferred under Section 33, Evidence Act. It was held that though the Judge
might have been well advised to give further reasons for making the order
transferring the statement it was clear that he transferred it on the ground of
unreasonable delay and expenses and that there was no infirmity in this order
of transfer.I
Incapable of giving evidence.-The words "incapable of giving
evidence" denote an incapacity of a permanent nature. Where a witness is
proved to be incapable of giving evidence his previous ieposition is to be
admitted. This incapacity may be due to insanity, blindness, dumbness,
paralysis, nervousness and so on.
If the illness is temporary, the court should consider whether ft is
unreasonable on a:~:;unt of delay or expense to postpone the trial for obtaining
1. Han Prasad v. State, AIR 1953 All 660.
2. Nasib Singh v. Emperor, AIR 1943 Lah. 89.
3. Bakhshish Singh v. Slate of Punjab, AIR 1957 SC 904.
354 EVIDENCE ACT
the presence of the witness.1
If short adjournment can procure the attendance of
the witness, previous deposition cannot be brought on record.2 When the
evidence given by a witness in a judicial proceeding is sought to be given in a
subsequent judicial proceeding, or in a later stage of the same judicial
proceeding on the ground that the witness is incapable.of giving evidence that
fact must be proved strictly.3 · benefit of the parties but if they do not avail of that protection, then in a civil
Incapacity may not be permanent. Incapacity however must be proved and
proved strictly. Where a person has become very old, and blind and cannot
move he must be held to be incapable.4
Is kept out of way.---"When a witness, who has made a statement in a
prior proceeding, is in collusion with a party and avoids appearance before a
court in a subsequent proceeding, his previous statement may be proved. The
proof, that the witness was kept out of the way, is essential for admission of
his or her previous statement.
Unreasonable amount of delay or expense.-If the presence of a
witness cannot be obtained without unreasonable expense or delay, his prior
statement may be proved in the subsequent proceeding. The provisions of
proving prior statement on this ground should be sparingly used. Therefore they
are not to be used in a case where the witness is alive and his evidence is
reasonably procurable.5
Whether the expenses are unreasonable or not depends on the importance
of, and vital nature of the deposition. If it is of a formal nature it would bP
unreasonable to incur much delay and expenses; but where it is vital to the
success of litigation, or prosecution, it would be reasonable to submit to much
expense and delay. It is only when all reasonable efforts to secure the
attendance of a witness have failed that it can be said that there would be
unreasonable delay.s
It is only in extreme cases or expenses or delay that the personal
attendance of a witness should be dispensed with." The provision of this section
should be sparingly applied. The expenses of Rs. 500 were not held to be
unreasonable.8 The witness was at a distance or had joined army were held not
to be a ground enough to admit previous deposition on the pretext of
unreasonable delay.?
Waiver in civil cases.-In d civil proceeding if the previous statement is
tried to be proved without proving the five conditions mentioned before and no
objection is made by the opposite party, the statement will be taken in
evidence. Also if the party to a proceeding agrees to the proof a statement in a
I. Emperor v. Cajendra Mohan, AIR 1943 Cal 222.
2. Hanprasad v. Stat", AJR 1953 All 660.
3. Chanchal Singh v. Emperor, AIR 19~6 PC I.
4. Manda! v. Mange Ram, AIR l'.161 Pat. 21.
5 Kala u. Emperor, AIR 19~4 Lah 206.
b. Murh Singh u. Rex, '1951 ALJ 67.
7 R:v. ~ulu, ILR 2 All. <>16.
15. R. u. Barke, 6 All. 224.
'J. In re Siluvai, AIR 1944 MaJ JIB; Kudappa Chetti v. Tirupathi, AIR 1925 Mad 444.
[S. 33
. 3-1] OF THE RELEVANCY OF fACTS 355
previous proceeding, the statement will be taken in evidence though the
witness is alive and no condition of Section 33 has been fulfilled.1
There is nothing in Evidence Act to show that in a civil case the parties
cannot waive the benefit conferred by Section 33. This section exists of the
matter they are certainly entitled to have the matter decided in the manner
they agree.2
In a criminal trial consent of the accused cannot entitle the prose.cution to
prove previous statement without complying with the five conditions. In a
criminal proceeding before admitting previous deposition under Section 33, the
requirements of Section 33 must be complied with and the consent of the accused
does not make any difference.3
Deposition in a criminal case used in a civil case and vice-versa.-
A deposition taken in criminal proceeding may be used in a civil suit and a
deposition taken in civil proceeding may be used in criminal proceeding
provided the conditions of the section are satisfied. A prosecution was
instituted by D against N at the instance and on behalf of F for criminal
trespass in respect of a certain house belonging to F. D gave evidence at the trial
for F. Afterwards F brought a civil suit against N for the possession of the
house. D died before the civil suit came for hearing. At the trial of civil suit
deposition of D in the criminal court was tendered by Fas evidence on the point
of possession. It was held that D being dead and proceeding being between the
same parties the issue being substantially the same, and D having been cross-
examined by N in the previous case, the deposition was admissible:'
STATEMENTS MADE UNDER SPECIAL
CIRCUMSTANCES
SECTION 34.-5[Entries in the books of account, including those
maintained in an electronic form] when relevant.e-vj Entries in
books of account, including those maintained. in an electronic form]
regular1y kept in the course of business, are relevant whenever they refer
to a matter into which the Court has to inquire but such statements shall
not alone be sufficient evidence to charge any person with liability.
Illustration
A sues B for Rs. 1,000, and shows entries in his account-books showing 8 to
be indebted to him to this amount. The entries arc relevant, but .ire not
sufficient, without other evidence, to prove the debt.
1. D.1lim Kumar 1•. Nand Ram, AIR l<J70 Cal 292.
2. Hhushau Chand!'. Hiranrnay, AIR l':157 Tnpura 17; K.l'.M. Bank IJ. Dulhan Bibi. AIR 1966 SC
1072.
3. Chanchal Singh 1•. Emperor, AIK 19-16 PC 18
-1. I'hoolkishon v. Nobin Chandra, !LR 23 Cal ~I.
5. Subs. b}' lnforrnauon Technology Act. 2000 (Act No. 21 of :!000), S. 92 anJ Sch. II
b. Subs. by lntcrrnatton Technology Act, 2000 (Act No. 21 of WUJ), S. \12 and Sch. II.

356 EVIDENCE ACT [S. 34
COMMENTS
Principle.-This section is based upon the principle that entries made
regularly in the course of business are sure to be accurate. In all such entries the
writer has full knowledge of no motive to falsehood and there is the strongest
improbability of untruth. According to Section 34 the entries in books of account
including those maintained in an electronic form regularly kept in the ordinary
course of business are admissible in evidence if they refer to a matter in dispute.
At the same time the section states that such entries alone shall not be
sufficient to charge a person with liability. Let us take an example. A is a
merchant of cloth. He maintains accounts of his shop in an account-book. On 5th
of May, 1950 he makes an entry in his account-book to the effect that B
purchased cloth worth Rs. 2,000 on credit. In 1953 A files a suit against B for
the recovery of Rs. 2,000 as the price of the cloth. B contends that he never
purchased any doth from A's shop and that nothing is due to A from him. A
produces the account-book and proves the entry mentioned above. The entry is
admissible.
As stated above, the section makes entry of an account-book relevant, but
as for its evidentiary value, it states that the entry alone is not sufficient to
charge anybody with liability. In order to charge anybody with liability some
independent evidence (evidence besides the account book) must be adduce 1.
Reverting to the· above example, by merely proving the entry of the account
book B will not be saddled with the liability. Suppose A examines one C and
he deposed that B purchased cloth worth Rs. 2,000 from A's shop on credit.
There being an independent evidence, B may be charged with the liability.
Thus it is clear that the entries of account-books are of little evidentiary
value unless corroborated by some independent evidence. But it should be
clearly borne in mind that the entries· in account-books regularly kept, are
relevant and admissible in evidence without corroboration. They will be
admitted in evidence, and if there is corroborative evidence their probative
value will be good and if there is no evidence in support, its evidentiary value
will be nil. Section 34 does not make books of account inadmissible unless
corroborated. In order to be admissible an entry should be (1) in a book of
account, (2) regularly kept, (3) in the course of business.!
Any book of account regularly kept and entries made therein in course of
business are relevant but are not sufficient by themselves to charge any person
· with liability where the books of account are maintained by the Managing
Partners regarding which other partners made objections regarding entries and
if found to vague and false, it is necessary for managing f'artner to adduce
evidence to substantiate entries and prove its genuineness.I
Books of account.-The term 'book' in Section 34 may properly be taken
to signify ordinarily, a collection of sheets of paper bound together with the
intention that such binding shall be permanent and the papers used collectively
in one volume. Unbound sheets of paper, in whatever quantity, though filled up
J. Ashudam Kumar v. Uruon of India, AIR 1969 Tn. 26.
~ Y. Venkanna Chowdry v. Lakshmtdevamma, AIR 1994 Mad. 140.
5. 34] OF THE RELEVANCY OF FACI'S 357
with one continuous account, are not a book of account within the purview of
Section 34.
In lstuar Das Jain (dead) (through legal representatives) v. Sohan Lal
(dead) (thro11gh legal ·representatives),1 it was held by Supreme Court that
extracts from account books which are not account books falling within Section
34 of the Evidence Act and are inadmissible. The sanctity is attached to the
books of account in law, if the books are indeed account books, i.e., in original if
they are on their face, that they are kept in regular course of business .. Such
sanctity cannot be attached to private extracts of alleged account books, where
the original account books are not filed into the courts ... if the account books
have not been produced, it is not possible to know whether entries relating to
payment of rents are entries made in regular course of business.
In Deuendra Kumar Sharma v. State of Rajasthan,2 the Supreme Court
held that the register kept at the counter of Hotel is not book of accounts unless
it is shown that such register also pertains to pecuniary transaction involving
customers of hotel, even otherwise entry therein cannot become sole premise to
charge a person with liability.
A collective unity of .sheets even at the time the entries came to be made is
implied in the. conception of a book. It connotes an intention that it should serve
as a permanent record.3 ln account-books regularly kept in due course of business,
usually the pages are inter-connected, and particularly in daily accounts the
balance of one day or one page is carried over to the other page or day .. So that
interpolation or replacement of a particular page becomes very difficult.
Where the account-book is not a bound book but stitched book and each customer
is allotted a particular page, the sheet and entries can be substituted or
interpolated and therefore it cannot be taken to be an account-book regularly
kept in the course of business to be relevant under Section 34.4
In Central Bureau of Investigation (CBI) v. Vidya Charan Shukla,
(Hawala Case),5 the Supreme Court held that the spiral pads and spiral note-
books are books within the meaning of Section 34 of Evidence Act but not loose
sheets of paper contained in files.
Spiral note book recording monetary transaction, entries of receipt of
money from certain person on left side of page and payment to certain person on
the right side of page, entries totalled and balanced and thus daily reckoned
note book is account book.
The entries in note-books and file containing loose sheets of papers not in
the form of "Books of Accounts" are irrelevant and·not admissible under Section
34 of the Evidence Act. The entries in the books of accounts regularly kept,
depending on the nahtrc of occupation are admissible. The statements in the
I. AIR 2000 SC 2126
2 AIR 2001 SC93
3. Awabalvana Pillai v. Gown Ammal, AIR 1936 Mad Sn.
4. Hrra Mchar v. Birbal Prasad, A[R 1958 Ori 4.
5. AIR 1998 SC 1406.
 358 EVl D EN C E A CT [S. 3,1
books of account are not alone sufficient evidence to charge any person with·
· liability. The independent evidence is necessary as to trustworthiness of those
entries to fasten the liability .1
Regularly kept.-The "books of account regularly kept in the course of
business" means the books entered from day to day or from hour to hour as the
transactions take place. The words 'regularly kept' are not synonymous with
correctly kept in accordance with certain fixed method or form referring to
system of book-keeping. Books are regularly kept, if they are maintained in
pursuance of some continuous and uniform practice in the current round of business
of the particular person they belong to.
Whether a book of account is regularly kept or not, is a question of fact and
it may be solved by reference to the entries in the books.2
Practice of noting transactions of either days at one time, though
defective, are regularly kept within the meaning of the section. The fact that
they were not filed before the Income Tax Officer, would not show that they
were not maintained in the regular course of business.3
Entries need not be made in account books at or about the time the related
transaction took place so as to enable book to pass test of regularly kept:4
In the course of business.-The entry must be made in a books of
account regularly kept. Stray entries not in course of business would not be
relevant. Note of transaction in a diary will not be admissible.
Proof of accounts.-Previously it was held that the clerk who had
kept those accounts or some body else competent to speak to the fact should be
called to prove that they were regularly kept.5 But an Allahabad Bench held
to the contrary.6 · discharge of his official duty, or by any other person in performance of a
Evidentiary value.-The books of account when not used' to charge any
body with liability (civil or criminal) may be used as independent evidence
requiring no corroboration, but when it is sought to be used to charge a person
with liability, they must be corroborated by some other substantive evidence
independent of entries.7 In such cases the value of the entries is only
corroborative and independent evidence is to be given to fix the liability. He
will have to show further by some independent evidence that the entries
represent real and honest transaction and the arrears were paid according to
those entries.8
1. CB.I. v. V.C Shukla, AIR l9Y8 SC 1406; Also Su Common Cause (A Registered Society) v. Union
of India, AIR 2017 SC 540 p. 5-lb.
2. Emperor v. Narabada Prasad, AJR l<JJO All 38.
3. Ram Lochan l'. Makha Sethani, AJR J'Jo(J Pat. 271.
4. CBI v. V.C. Shukla, AIR 1998 SC 1406.
5. Thakur GaJl'nJra Smgh 1'. Thakur Shanker Bux Singh, AIR 1935 Oudh 16.
6. Emperor v. Narbada Prasad, AIR 1930 All 38; Hangarni Lal v. Bhura Lal, AIR 1961 Raj 52; Jai
Narayan Das 1•. [ubeda Khatun, AIR 1972 All 494.
7. Dwarka Prasad 11. Sant, Its All '12; Emperor v. Narbada Prasad, AJR 1930 All 38; Hangami Lal v.
Bhura Lal. AIR 1961 RaJ 52.
8. TN. Stern ·v. Md. Husain, AIR 19.13 Mad 7Sb; Jai Narain Das v. [ubeda Khatoon, AIR 1972 All
494 ; Subh Karan 11. Durga Prasad, AIR 1'172 Cui. 2()/j,
s. 35] OF THE RE LEV ANCY OF FACI"S 359
The correct and authentic entries in the books of account cannot fix
liability of a person in absence of independent evidence of their
trustworthiness. l
Although a register kept on hotel counter cannot be treated as books of
account under Section 34 unless it contains pecuniary transaction. The Supreme
Court held that even if it contains pecuniary transaction it cannot form a sole
premises to charge a person with liability.2
Admissibility and probative value of document.-Admissibility of
a document is one thing and its probative value quite another. A document may
be admissible yet may not carry any conviction and weight or its probative
value may _be nil. Even if a document may be admissible or ancient one it cannot
carry the same weight or probative value as document which is prepared
either under any statute or ordinance or an Act which require certain conditions
to be fulfilled.3
In State of Rajasthan v. Sharad Shankar Alias Bhantu and Manish
· Dixi: v. State of Rajas than, Deuendra Kumar Sharma v. State of Rajasthan,4
it was held by the Supreme Court that books of account, or Hotel Register kept
on counter of Hotel cannot be treated as books of account unless it is shown that
register· also pertains to pecuniary transaction involving customer of hotel.
Even otherwise entry therein cannot become sole premises to charge a person
with I1ability. ·
S ECTION 35 . ...:..Relevancy of entry in public 5[record or an electronic
record] made in performance of duty.-An entry in any public or
other official book, register or 6[record or an electronic record] stating
a fact in issue or relevant fact, and made by a public servant in the
duty specially enjoined by the law of the country in which such book,
register, or 7[record or an electronic record] is kept, is itself a relevant
fact. ·
. COMMENTS
Scope.-Section 35 speaks of relevancy of entries in public or official
book made _by a public servant. An entry to be admissible under this section (1)
must be contained in any public or other official book, (2) must be made by a
public servant, (3). in the discharge of his official duty or by a person in
performance of duty specially enjoined by the law of the country, and (4) must
be stating relevant facts or fact in issue.8
Contained in a public or official book.-The section does not give any
definition of the term 'public or official book.' Section 74 a£
the Evidence Act
I. CBI v. V.C. Shukla, AIR 1998 SC 1406.
2. Devendra Kumar Sharma 11. Stale of Rajasthan, AIR 2001 SC 93.
3. State of Bihar 1,. Ractha Krishna, AIR I 983 SC 684.
4. AIR 200J SC 93.
5. Subs. by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II.
6. Subs. by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. a.
7. Subs. by lnfonnation Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. II
8. Devendra Kumar Sharma v. State of Rajasthan, AIR 2001 SC 93.
360 1:.VlDENCE ACT [S. 35
gives a list of public documents. Commonly speaking, a public document is that
document which is made for the purpose of the public uses ; the public may
make use of it and may refer to it on occasions. Death and birth registers kept in
police stations and municipal offices are public books. In a case of alleged
kidnapping, birth register extract from Municipality was held to be a valuable
piece of evidence as regards the age of the victim.1 An entry in a private book or
register is not admissible under this section.
Made by public servant.-The term 'public servant' has not been
defined in this Act. But for the purpose of interpretation, reference may be
made to Sections 74 and 78 of the Evidence Act and to Section 21 of the Indian
Penal Code, in which the term 'public servant' has been defined. Certain Acts
declare that the officers appointed under them are deemed to be public
servants.
An entry in a book or register by a person who is not public officer, being not
an entry as enjoined by the law, is not admissible. To be concise an entry by a
person in an individual capacity is not relevant.
Entries relevant under this section.-Entries in birth and death
register are relevant.I
Duty specially enjoined by la- .-Two classes of entries are
contemplated by this section-(a) by the public servants, (b) by persons other
than public servants. In the case of the latter, the duty to make the entry must
be specially enjoined by the law of the country. But the entry must have been
made by a person whose duty it was to make. It is not necessary that the duty
should be prescribed by any enactment. It is enough if it is prescribed by rules
under authority of an enactment.3 The registers of births and death kept under
police regulation or under the rules made under the Municipal Act have been
held admissible under this section.4 Under Section 35 of the Evidence Act, all
that is necessary is that the document should be maintained regularly by a
person whose duty it is to maintain the document and there is no legal
requirement that the document should be maintained by a public officer only.
Consequently, records maintained by a public school, according to Rules, should
be presumed to be correct under Section 35 of the Act.5
Contemporaneously.-It is not necessary that the entries should have
been made contemporaneously with the facts recorded.6
By whom to be made.-The entries must be made by, or under the
direction of the person whose duty it is to make them at the time. An entry in
the book of the choiokidar, not made by him is not admissible under Section
1. Goverdhan v. State of M.P., 1995 Cr LJ 632 (MP).
2. Harpal Singh v. Stale of M.P., AIR 1981 SC 361 ; Daleem Kumar v. Nand Rani, AIR 1970 Cal
292; Record of right; Noor Mohammad v. Kareem, AIR 1970 Manipur 7; Ram Prasad v. Magan
Singh, AIR 1981 All 52. . 7.
3. Bishnath Prasad v. Emperor, AJR 1948 Oudh 1; Shy am Pratap Singh v. Collector of Etawah, AIR
1946 PC 103.
4 Sheo Mishra v. Ram Prasad, AIR 1925 All 79 ;Ja1 Bhagwan v. Gullo, AIR 1934 Oudh 167.
5. Umesh Chandra v. Stale of Rajasthan, AJR 1982 SC 1057.
b. Bishnath Prasad v. Emperor, AIR 1948 Oudh l.
s. 35) OF THE RELEVANCY OF FACI'S 361
35.1 In a Patna case, a book kept by Chowkidar in a prescribed form was held to
be admissible.2
Proof of such entries.-If the entry states a relevant fact, the entry
itself becomes by force of the section, a relevant fact and it can be given in
evidence.3 The entry is evidence though the writer is not called.
Facts of which the entries are evidence.-This section does not make
the public book evidence to show that a particular entry has not been made in
jt,4
An entry is relevant of those matters which it is the duty of a particular
person to enter in a register. But the entries of the matters for which there is no
duty to record are not admissible. Statement about a person's family in a wajib-
ul-arz, and the statement that A is an adopted son in a record of right have
been held inadmissible.5
Personal knowledge not necessary.-An entry of a particular fact is
nonetheless evidence, though the person enjoined to make that entry has no
personal knowledge of the fact reported to him.6
Entry of date of birth in school register.-The entries in Government
school about age are relevant. It often happens that the persons give false age
of their children at the time of their admission. Consequently, its evidentiary
value is very little.7
In a writ petition by a Government servant for correction of date of birth at
the fag end of his service and when he is due for retirement from his service, it
was held that the High Court should not entertain such petition.8
In M,moranjan Das Gupta v. Suchitra Ganguli and others,9 a witness made
a statement about age after he had been administered oath. This was not only
the description made by a witness but it was a statement and that also after
taking oath. Held-It would be deemed to be proper evidence and it should not
be excluded.
But entries in school registers and transfer certificates of schools which is
not a Government school is not admissible. lO
In Tara Devi v. Sudesh Chaudhary,11 the Rajasthan High Court held
that entries of date of birth in school register was correct one particularly when
the claimant failed to prove that the entries of date of birth in horoscope was
correct one. The Court did not interfere with entries of date of birth in school
register in this case.
1. Sheobalak v. Gaya Prasad, 20 ALJ 601; Brij Mohan v. Priyabrat. AIR 1965SC 282.
2. Madho Saran v. Manna Lal. AIR 1933 Pat. 473.
3. Lekhra] 11• Malupal, 5 Cal 754 ; Parbati v. Pumo, 9 Cat 596.
4. Ali Nasir v. Manik., 25 Alld 90; K. Rama Rao, In re, AIR 1960A.P.441.
5. Sukhdeo Singh v. Mathura Singh, AIR 1933 Lah 412; Harihar Singh v. Dco Narain Singh. AIR
1954 Nag 319.
6. Khadcm v. Tejarunni sa, 10 Cal 607.
Brij Mohan 11. Prlyabrat, AIR 1965 SC 282.
8. Burn Standard Co. Ltd. v. Dina bandhu Majumdar, AIR 1995 SC 1499.
9. AIR 198? Cal. 14.
10. Anant Ram v. State of Punjab, AIR 1975 Punj 198.
11. AJR 199S Raj. 59.
362 EVIDENCE ACT rs. 3s
In Ram Deo Chauhan alias Raj Nath,1 the entry in school register
showing the accused to be juvenile was relevant. School register however was
not shown to be maintained by public servant (officer) in discharge of his
official duty or by any other competent authority. Held-Entry in school
register cannot be accepted as positive proof regarding date of birth of accused
person.
An entry in the school register showing date of birth is relevant and
admissible but not of much evidentiary value to prove the age. of the person in
the absence of the material on which the age was recorded.2
Birth date entry recorded in transfer certificate of school.e-The
entry in the school register/school leaving certificate requires to be proved in
accordance with law and the standard of proof required in such cases are the
same as in any 'other civil or criminal cases. To determine the age of a person
the best evidence is of his/her parents, if it is supported by unimpeachable
documents. If the date of birth depicted in the school register/ certificate stands
belied by the unimpeachable evidence of reliable persons and contemporaneous
documents like the date of birth register of the Municipal Corporation,
Government hospital/Nursing Home etc., the entry in the school register is to
. could be placed on revenue records.
be discarded.J
The age of prosecutrix as recorded in the Transfer Certificate issued by
the Government school is admissible in evidence but it is not of much
evidentiary value to prove the age of girl in the absence of materials on the
basis of which age was recorded. If the head master of the school who made
entry in the Transfer certificate regarding her age, is not examined, entry in
Transfer certificate cannot be relied upon to definitely fix age of girl.4
Entries in Birth Register.-The documents, namely, the application
made by the father, for admission in school aboul 40 years back, birth register
extracts, and Village Pariwar Register cannot be said to have no evidentiary
value to determine the caste of the candidate seeking election.5
. .
Entries in Death Register.-fn Chitru Devi v. Smt. Ram Davi/' The
question was about the admissibility of the entries made in birth and death
register. It was held by the Punjab and Haryana High Court that if the entires
were made at about the time of birth ,or death and the entry is incorporated in
register kept and maintained by competent authority under Birth and Death
Register Act, 1969, such entries about date of birth or death would be
admissible in evidence.
Entries in electoral roll.-The electoral roll is a public document and is
prepared by a public servant in discharge of his public duty and hence is
admissible in evidence under Section 35 and it is not necessary to prov.e source of
I. AIR 2001 SC 2231.
2. Biard Mal Singhvi v. Anand Purohit, AIR 1988 SC 1796.
3. Madan Mohan Singh v. Rajni Kant, AIR 2010 SC 2933 at p. 2938.
4. Sekar 11. State, All{ 2011 SC 715 pp 723-724.
5. [)(>sh Raj 11. Bodh R.!j, A IR 200l:! SC 632 at p. 639.
6. AIR 2002 P&H. 59.
s. 351 OF THE RELEVANCY OF FACTS 363
information on the basis whereof the facts stated in roll were recorded nor
persons prepared it to be summoned.1 Voters list prepared by competent
authority of election department in discharge of his official duty, not
challenged by the plaintiff voter list is admissible.2
In case of age of the delinquent being in question under Juvenile Justice
(Care & Protection of Children) Act, 2000, an entry in the voters list showing
the age is a public document in terms of Section 35 but it is not sufficient to prove
the age without summoning any member of the Board and recording his
statement thereon.I
Entries in Revenue Records.-In Ba/want Singh v. Dau/at Singh;' the
entries in revenue records do not convey or extinguish any title. In this case,
widow mutated land in favour of her adpoted son. Neither adopted son nor
widow would require title in the property nor widow's title in the property
would get extinguished, since no title as such was passed on under alleged
mutation.
In Damru Ram v. Madan/al and others,5 the question arose as to
presumption attached to the truth of revenue entries. It was held that reliance
Khasara entries do not convey title of the suit property as the same is
relevant only for purposes of paying land revenue and has nothing to do with
ownership.6 ·
Mere mutation of entries does not confer title and there can be no claim of
acquiring title over the suit property by pleading adverse possession only in the
absence of name of the appellants in the revenue records.7
Entries by pencil not verified by revenue officer.-In Sohan Singh
v. Guljari,8 it was held by Himachal Pradesh High Court that pencil entries
not verified or attested by revenue officer, could not be relied on.
Facts and Statement in old Gazette.-ln the case of Bhola Shankar
Maha Shankar Bhattjee v. Charity Commissioner, Gujarat,9 a question arose as
to whether Kalika Mataji temple on Payagadh Hill near Champaner town,
Gujarat whose origin was Jost in antiquity is a public or private trust. The
Supreme Court observed that the Gazette of the Bombay Presidency Vc,I. III
published in 1879 is admissible under Section 35 read with Section 81 of
Evidence Act. The Gazette is admissible being official record evidencing public
affairs and the Court may presume their contents as genuine. The statement
contained therein can be taken into account to discover the historical material
I. Unga v. Ayodhya, AIR 1974 Ori. 107.
2. All{ 2002 SC 59.
3. Babloo Pasi 11. State of Jharkhand, AJR 2009 SC 314 at p. 319.
4. AIR JW7SC2719.
5. AIR 2002 l IP 5\1.
o. Mu111c1p.1I Corporation Gwalior v. Puran Singh, AIR 2014 SC 2669.
7. Prem Nath Khanna v. Nannder Nath Kapoor, AIR 2010 SC 14l3 p. 1437.
8. AIR 1997 HP 12.
9. AIR 19\15 SC 167.
364 EVlDENCE ACT
contained therein and the facts stated therein is evidence under Section 35 and
the Court may in conjunction with other evidence and circumstances take into
consideration in adjudging the dispute in question, though may not be treated as
conclusive evidence.
Reports of election meetings.-When the C.I.D. Officers made reports
of election meetings held by candidates, they were in discharge of their
official duty and chart furnished by Inspector-General of Police giving details
as to the dates and places of the public meetings held in connection of election
meeting of the opposite candidate and name of speaker are relevant under
Section 35.1
Evidentiary value.-An entry in the register of death is evidence of the
fact of death. Other particulars, such as, the cause of death, the age of the
deceased cannot be treated as evidence.2 A birth certificate does not prove itself
and is no proof of age of any particular person unless the person making the
entry of the person on whose information the entry is made comes forward and
speaks to the entry and connects the entry with the individual concerned.3
Entries of school register for age have very little value.4 If the entries are
suspicious no value is to be attached.5
S ECTION 36.-Relevancy of statements in maps, charts and
plans.-Statements of facts in issue or relevant facts made in
published maps or charts generally offered for public sale, or in maps or
plans made under the authority of the Central Government or any State
Government, as to matters usually represented or stated in such
maps, charts or plans, are themselves relevant facts.
CCMME NTS
Sccpe.e--Secnon 35 is the general section dealing with public records,
while Section 36 deals with particular classes of public documents, namely,
maps, charts or plans.
Published maps generally offered for sale in the nature of public
documents and are admissible to show the relative positions of towns, countries,
and other geographical matters.
They may be one which are prepared for public purpose and not for
private purpose. Maps prepared by private persons and not under the authority
of Government are irrelevant unless proof of fact that they were generally
offered for public sale is given. There shall be no presumption for accuracy about
them.6
S ECTION 37.-Relevancy of statement as to fact of public nature
contained in certain Acts or notifications.-When the Court has to
I. Kunwar Lal v. Amar Nath, AJR 1975 SC 308 .
2. Manik Lal v. Hira Lal, AJR 1950 Cal 377; Guruswami v. fnulappa, AlR 1934 Mad 630.
3. Bisessar Mishra v. King, AJR 19490ri 22; Hemant Kumarv. Alauzund, AIR 1938 Col 120.
.J. Brij Mohan r,. Priyabrat, AIR 1965 SC 282.
5. Venkata v. Thanchand, AIR 196-1 SC 818.
6. R.lm Kishoe v. Union of India, AIR 1965 SC 645.
[S. 3o
s. 39] OF THE RELEVANCY OF FACTS 365
form an opinion as to the existence of any fact of a public nature, any
statement of it, made in a recital contained in any Act of Parliament of
the United Kingdom or in any Central Act, Provincial Act, or a State Act,
or in a Government notification or notification by the Crown
Representative appearing in the Official Gazette or in any printed paper
purporting to be the London Gazette or the Government Gazette of any
Dominion, colony or possession of His Majesty is a relevant fact.
COMMENTS
Scope.-This section makes the Government Act and Notifications
admissible in evidence.
ECTION 38.-Relevancy of statements as to any law contained in
S ;aw books.-When the court has to form an opinion as to a law of
any country, any statement of such law contained in a book
purporting to be printed. or published under the authority of the
Government of such country and to contain any such law, and any report
of a ruling of the courts of such country contained in a book purporting to
be a report of such rulings, is relevant.
HOW MUCH OF A STATEMENT IS TO BE PROVED
SECTION 39.-1[What evidence to be given when statement forms
part of a conversation, document, electronic record, book or series
of letters or papers.-When any statement of which evidence is given
forms part of a longer statement, or of a conversation or part of an
isolated document, or is contained in a document which forms part of a
book, or is contained in part of electronic record or of a connected series
of letters or papers, evidence shall be given of so much and no more of the
statement, conversation, document, electronic record, book or series of
letters or papers as the Court considers necessary in that particular case
to the full understanding of the nature and effect of the statement, and of
the circumstances under which it was made.]
COMMENTS
Principle.-The real meaning of a sentence or a passage can be understood
by reading the whole of the Iiterature of which the sentence or the passage
forms a part. We must read the whole, not because we desire the remainder for
its own sake, but because without that we cannot be sure that we have the true
sense and effect of the first part, "It is at all times a dangerous thing to admit a
portion only of a conversation in evidence because one part taken by itself may
bear a very different construction and have , very different tendency to what
would be produced if the whole were proved : for one part of conversation will
frequently serve to qualify and to explain the other."
For this reason Section 39 lays down that when a statement, to be proved,
is part of a longer statement, or conversation, or is contained in a book, or is part
of a series of letters, the evidenceshall be given of so much of the statement,
conversation, document, book or is contained in form of an electronic record or
1. Subs. by the Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. n.
 366 EVIDENCE ACT
series of letters, or papers as the court considers in that particular case,
necessary of a connected to the full understanding of the nature and effect of
that statement and of the circumstances in which it .was made. But that part
which is not helpful in understanding the meaning of the relevant statement
shall not be proved.
What is rendered admissible under this section is that which the court
. finds necessary in order that the statement may be intelligible.' But it cannot be
said that because a document is admissible for a certain purpose all recitals,
statements and references therein can be used as proof of the facts to which
thr y relate.2 But it must be remembered that an evidence which has been
debarred by some Section of Evidence Act cannot be brought on record under
Section 39.3
RELEVANCY OF JUDGMENT OF COURTS
ECTION 40.-Previous judgments relevant to bar a second suit or
S trial.-The existence of any judgment, order or decree which by law
prevents any courts from taking cognizance of a suit or holding a trial
is a relevant fact when the question is whether such court ought to take
cognizance of such suit or to hold such trial.
COMMENTS
Principle.-When any judgment, order or decree, by law, prevents any
court from taking cognizance of a suit or holding a trial and when the question
arises whether such court ought to take cognizance of such suit to hold such
trial, the existence of previous judgment or order is relevant fact. Section 40 lays
down that when once there has been a judgment about a fact and the law
provides that when there has been such a judgment, no subsequent proceeding
would be stated, the previous judgment relevant and can be proved.
Section 11, C.P.C., lays down that no court shall try any suit or issue in
which the matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties or between the
parties under whom they or any of them claim litigating under the same title in
a court competent to try such subsequent suit. Thus this section bars a second suit
between the same parties for the same subject-matter. A sues B for the
possession of a house. Both of the parties claim to be the separate owner of the
house. The suit is decided in favour of B who is held to be the owner of it. Five
years after A again files suit against B alleging to be the owner of the house. B
contends again lo be the owner of it. B also contends that due to the provisions
of Section 11, C.P.C. the court cannot take cognizance of the case. The judgment
of the previous case is admissible. Section 300 of Cr. P.C. bars a subsequent trial
of a man and it Jays down that a person who has once been tried by a competent
jurisdiction for an offence and convicted or acquitted of such offence shall, while
such conviction or acquittal remains in force, not be liable to trial again for the
same offence. Suppose a case is started against A to the effect that he entered
1. !Gran Din 11. Emperor, AIR 1929 Lah 338.
2. Tikaram fl, Motil.al, AIR 1930 All 299.
3. Sulhan 11. Emperor, AIR 1929 Lah 344; Mistri Fazal Din fl. Mian Karim Hussen, AIR 1936 Lah Bl.
[S. 40 s. 40) OF THE RELEVANCY OF FACI'S 367
the house of B in the dead of night and committed theft. A is tried by a
competent court and is acquitted. After a few months a case is again started on
the same facts. Here A can prove the judgment of the previous case to show
that the court was not competent to proceed with the case. Thus it is clear that
a judgment which bars a subsequent proceeding is relevant.
Section 40 applies to a case in which the court has jurisdiction to decide a
matter and one party says it would not do so because the matter has been
decided before.
It must be remembered that for a previous judgment being admissibie under
Section 40 the parties must be the same or their representatives-in-interest.
Ordinarily, the judgment in previous case will not be admissible in
subsequent cases because the Court has to form its own opinion depending upon
the fact and circumstances of the case. This rule is true both for criminal and
civil cases. But in K.G. Prem Shankar v. Inspector of Police and others,1 it was
held by Supreme Court that previous judgment which was final could be relied
upon as provided under Sections 40 to 43 of Evidence Act. In civii cases between
the same parties, principles of res [udicata may apply. In criminal case, Section
300 Cr.P.C. makes the provision that once a person is convicted or acquitted, he
may not be tried again for the same offence if the condition mentioned therein
are satisfied.
Kinds of judgment.-Judgments are of two kinds-(1) Judgment in rem ;
and (2) Judgment in personam. ·
Judgment in rem.-Judgments affecting the legal status of some subject-
matter, person or thing are called judgment in rem e.g., divorce court judgment,
grant or probate or administration. Such judgments are conclusive evidence
against all the persons whether parties to it or not.
Judgment in personam.-Judgments in personam are all the ordinary
judgments not.affecting the status of any subject-matter, any person or any thing.
In such judgments, the rights of the parties to the suit or proceeding are
determined. The judgment is binding only on the parties to the suit or the
proceeding and their privies. Privies may be divided into three classes : (1)
privies in interest (or estate) as donor, donee, lessor, lessee, mortgagor,
mortgagee or vendor, vendee, (2) privies in blood as ancestor, heir or coparcener,
(3) privies in law (or representation) as a testator or executor. The same rule
applies to these privies as to original parties, i.e., a person claiming through
another is bound by the judgment in the same manner as the original party.
Distinction between judgment in rem and judgment in
personam.-A judgment i11 rem decides a legal character of a person. It
declares that the person has a legal character or that a person has ceased to
have a legal character. Judgment in personam decides the rights and liabilities
of the parties to the proceeding as contested therein, the judgment in rem is
binding against the world and on the parties to the case. But judgment in
personam binds only the parties to them if it operates as res [udicata. A
l. AIR 2002 SC 3372.
368 EVIDENCE ACT [S. 40
judgment in rem e. g., judgments or orders passed in admiralty, probate
proceedings etc., would always be admissible irrespective of whether they are
inter partes or not. A judgment not inter partes is inadmissible in evidence
except for the limited purpose of proving as to who the parties were and what
was the decree passed and the properties which were the subject-matter of the
suit. The recital in judgments like finding given in appreciation of evidence
made or arguments or genealogies referred to in the judgment would be wholly
inadmissible in a case where neither the plaintiff nor defendant were parties.l
Where a tribunal has to determine between two parties and between them
only, the decision of that tribunal, though in general binding between the
parties and privies, does not affect the rights of third parties ; and if in
execution of the judgment of such a tribunal, process is issued against the
property, of one of the litigants and some particular thing is sold as being his
property, there is nothing to prevent any third person s=tting up his claim to
that thing, for the tribunal neither had jurisdiction to determine nor did
determine anything more than that the litigant's property should be sold and
did not do more than to sell the litigant's interest, if any, in the thing. All
proceedings of the court of common law are of this nature, and it is everyday's
experience that where the Sheriff under a· jery Jacias against A has sold a
particular chattel, B may set up his claim to that chattel either against the
Sheriff or the purchaser from the Sheriff. But when the tribunal has
jurisdiction to determine not merely on the rights of the parties, but also on the
disposition of the thing, and does in the exercise of that jurisdiction direct that
the thing, not merely the interest of any particular party in it, be sold or
transferred, the case is very different. Whatever it settles as to the right or
title, or whatever disposition it makes of the property (by sale, transfer or
other act), will be held valid i~ every other country as against all the persons
where the question comes directly or indirectly in judgment before a tribunal.
A judgment in rem has been described as "an adjudication upon the status
of some particular matter by tribunal having competent authority for that
purpose." A judgment.in rem is a conclusive proof against all the world of the
existence of that state of thing which that judgment had determined. The
difference between judgment in rem and judgment in personam will be cleared
by examples.
Examples-A is indebted to more than hundred persons to the extent of a
Jakh of rupees. He makes an application in an insolvency court for being
declared an insolvent. As he is required to show that he is not able to pay his
debt and that his debt amounts to more than, Rs. 500, he mentions the debt of
only five of his creditors amounting to Rs. 25,000 and makes them parties to the
petition. The court adjudicates him an insolvent and discharges him. Now in
this decision the court will not adjudicate A an insolvent as against the persons
who were parties to the petition but it will declare that A is insolvent. Here
the decision does not affect the interest of A in some property; but affects his
status. His status changes from that of a solvent to that of an insolvent and this
decision shall be binding upon all the persons of the world whether they were
1. State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684.
s. 40) OF TI-IE RELEVANCY OF FACTS 369
party to the insolvency proceeding or not. Suppose, in the above example after
A was adjudicated insolvent and discharged, one B who was not made a party
in the insolvency proceeding tries to execute his decree by sending A to civil
prison. A files the judgment of the insolvency proceeding. The execution
application of B will be dismissed. He cannot be allowed to say that he was not
party to the insolvency proceeding and so he is not bound by the decision
therein. Suppose A dies and after his death B applies to a competent court for
the probate of a will in his favour. B alleges that A had executed a will by
which he had made B his successor. The proceedings are started, C, D, and E
are made parties and they make objections but it is declared by the court that A
has executed a will in favour of B. B is declared the owner of the estate of A
through the will and a probate is granted to him. Afterwards one X takes
possession of some of the properties. B files a suit alleging that he was the
owner of it through the will. X contends that A executed a will in his favour
and that it was his last will and so he is the owner of the property not 8. B
files the probate granted to him. Now this probate will be binding on X and he
cannot be heard to say that A executed a will in his favour. This is so because in
a probate proceeding the court does not decide the dispute between the parties
in respect of something or some properties rather it declares that the will
executed in favour of a person was the last will and that the property has
vested in him and so it is a judgment in rem and is binding upon all the persons.
Suppose A sues B in the court of a Munsif alleging that he is the owner of the
house situated in George Town, Allahabad, B contends that he is the owner of
the house and is in possession. The suit is fought to the end and decided that A
is the owner of the house. When the court Amin goes to the spot to deliver the
possession of the house to A , it is found that one C is in occupation of the
house. C is not a privy to B that is to say C is not an heir of B nor a transferee
from him. He occupies the house in his own right. Now he cannot be ejected from
the house. Another litigation begins between A and C. In this case A files the
judgment of the previous case Av. B and by that tries to show that he is the
owner of the house. Now this judgment will not be binding upon C and by
proving that judgment A will not get the house. He will have to prove his case
against C by independent evidence. And in spite of the fact that once the court
has decided that A was the owner of the house, if in the present suit, A fails to
prove his title against C or if C proves a superior title in the house, the court
will dismiss the suit of A, will declare C to be the owner of it and previous
decision that A was the owner of it will not be a bar. This is so because the
decision in this case only decided the interest of A in a particular thing and so
it could be binding only upon the party or his privy. In the above mentioned
example if, after the first judgment between A and B was delivered, any
dispute arose between the son of A and son of B for the same very house the
judgment will be binding. ·
Admissibility of Judgment inter partes.-In Rnmn11 Pillai v. Krishn«
Pillai, 1 it was ht~.:! by Kerala High Court that recital made in judgment
between predecessors of the plaintiff and predecessors of defendent regarding
I. AIR 2002 Ker. 132.
370 EVIDENCE ACT
right in suit property are admissible for deciding title to the property between
plaintiff and defendant.
Judgment of civil court if admissible in criminal courts and vice
versa.-A finding on certain facts by a civil court in an action in personam is
not relevant before a criminal court when it is called upon to give finding on the
same facts. Similarly, a finding on certain facts by the criminal court is not
relevant before the civil court when it is called upon to give finding on the same
facts.1 R was charged with the offence of defamation and convicted. The
complainant, then sued R in damages for defamation but the suit was
dismissed. Against the judgment in criminal case R went in revision to the High
Court. The High Court has set aside the conviction and ordered retrial. Again
the trial court convicted R. He preferred an appeal to the court of the Sessions
Judge. R filed the judgment of the civil court in the appeal. The Sessions Judge
held the judgment of the civil court to be conclusive proof of his innocence and
acquitted, R . The complainant went in revision. The High Court held that the
judgment was not relevant.2
The Bombay High Court has held that where an accused is charged with
crimi: 11 breach of trust with reference to certain items and the question of civil
liability with respect to those items had been decided by a competent civil
court, the judgment of civil court is admissible.
With due respect it may be said that the view taken by the Bombay High
Court is not sound. Section 40 allows the proof of only those judgments which bar
the courts from taking cognizance of the present case. There is no provision
which forbids a criminal court from deciding a point in a criminal proceeding
upon which a civil court has given its finding, consequently the judgment cannot
be admitted in evidence under Section 40.
In a civil proceeding the decision of a criminal court is not res jlldicnta,3
judgment of criminal courts is relevant only about conviction and acquittal."
A judgment of a criminal Court is not admissible in a civil suit but an
admission of guilt made by a party in a criminal proceeding is admissible in
subsequent civil proceeding.5
If the criminal case and civil proceedings are for the same cause, the
judgment of the civil Court would be relevant if conditions of any of Sections 40
to 43 are satisfied but the same would not be conclusive except as provided in
Section 41. Section 41 provides which judgment would be conclusive proof of
what is stated therein. Moreover, the judgment, order or decree passed in
previous civil proceedings, if relevant, as provided in Sections 40 and 42 or
other provisions of the Evidence Act then in each case the Court has to decide
to what extent it is binding or conclusive with regard to the matters described
therein. In each and every case, the first question which would require
1. Kashyap v. Emperor. AIR 1945 Lah 23 (FB).
2. Ramanamma 11. Golusu, ACR 1932 Mad 254.
3. Ade Feroz Shah t•. H.M. Secrbae, AIR 1971 SC 20.
4. Radhl! Mohan ti. Bare Lal, 1972 ALJ 15; Pira Mall 11. Dev Rajan, AIR 1974 Mad 14.
5. Seth Rarndayal [at 11. Laxmi Prasad, AIR 2009 SC 2463 at p. 2-168.
{S. 40
s. ,11) OF Tl-IE RELEVANCY OF FACTS 371
consideration is, whether judgment, order or decree is relevant; if relevant its
effect. This would depend upon the facts of each case.!
A settlement between the debtor and creditor in a civil proceeding
regarding the recovery of loan is not of much relevance in a criminal proceeding.
Civil proceeding and criminal proceeding can proceed simultaneously.2
When the previous acquittal did not operate as bar to the second trial of
the accused and where both trials were separate and two incidents were viewed
as distinct transactions and the offences were different and required different
charges neither reasons for acquittal in eariler case nor evidence on record are
relevant in the second case. The earlier could be admissible only if it fulfils the
conditions laid down under Sections 40 and 41 of the Act. The earlier judgment is
admissible to show the parties and decision.3
S ECTION 41.-Relevancy of certain judgments in probate, etc.
jurisdiction.- A final judgment, order or decree of a competent court
in the exercise of probate, matrimonial, admiralty or insolvency
jurisdiction, which confers upon or takes away from any person any legal
· character, or which declares any person to be entitled to any such
character, or to be entitled to any specific thing, not as against any
specified person but absolutely, is relevant when the existence of any
such legal character, or the title of any such person to any such thing, is
relevant.
Such judgment, order or decree is conclusive proof-
that any legal character which it confers accrued at the time when
such judgment, order or decree came into operation;
. that any legal character, to which it declares any such person to be
entitled, accrued, to that person at the time when such judgment, order or
decree declares it to have accrued to that person ;
that any legal character which it takes away from any such person
ceased at the time from which such judgment, order or decree declared
that it had ceased or should cease;
and that anything to which it declares any person to be so entitled
was the property of that person at the time from which such judgment,
order or decree declares that it had been or should be his property.
COMMENTS
Relevancy of judgment in probate, etc.-A final judgment, order or
decree of competent court in the exercise of probate, matrimonial, (admiralty or
insolvency) jurisdiction which (order, decree or judgment) confers upon or takes
away from any person any legal character or which (judgment. order or decree)
1. K.G. Prem Snanker 11. Inspector of Police, AIR 2002 SC 3372 (a three Judge Bench decision);
Guru Cranth Saheb Sthan M,'<.'rghat Varanasi"· Ved Prakasb, AIR 2013 SC 2024.
2. Rumi Dhar t•. State of West Bengal, AIR 2009 SC 2195 at pp. 2197-2198.
3. Kharkan 11. State of U.P., AIR 1955 SC 83; Ali Hassan 11. State, 1%5 Cr LJ 345.
372 EVIDENCE ACT
declares any person to be entitled to any such character or to be entitled to any
specific thing not as against any specified person but absolutely, is relevant
when the existence of any such legal character or the title of any such person to
any such thing is relevant. The condition necessary, for making a judgment in rem
relevant may be considered under two heads : (1) those having reference of the
contents of the judgment, (2) and those to the nature of proceeding in which the
judgment is sought to be relied upon afterwards. A judgment to be relevant under
Section 41 must be : (1) of a competent court in the exercise of probate,
matrimonial, admiralty or insolvency jurisdiction ; (2) it must confer upon or
take away from any person any legal character or declare any person to be
entitled to any such character or to be entitled to any specific thing, not as
against any specified person but absolutely.
With regard to the proceeding in which the said judgment is sought to be
relied upon as a piece of evidence, the existence of any such legal character or
the title of such person to any such thing must be relevant.
The judgment of a probate court granting probate of a will in favour of the
petitioner must be presumed to have been obtained in accordance with the
procedure prescribed by law and it is a judgment in rem.1
The judgment in rem is conclusive proof only for showing (A) that the
judgment has conferred a legal character, or (B) that it has declared that the
person has such a legal character, or (C) that it has declared that the legal
character of a person which subsisted had ceased to exist. So a decree of
divorce, though conclusive upon all persons that the parties have been divorced
and that the parties are no longer husband and wife is not relevant to prove the
cause for which the decree was pronounced.
Judgment-Pendency of.-For attracting, Section 41 of the Evidence
Act, a Judgment has to be pronounced. Mere pendency of two proceedings,
whether civil or criminal by itself would not attract the provisions of Section
41,2
ECTION 42.-Relevancy and effect of judgments, orders or
S decrees, other than those mentioned in Section 41.-Judgments,
orders or decrees other than those mentioned in Section 41, are
relevant if they relate to matters of a public nature relevant to the enquiry;
but such judgments, orders or decrees are not conclusive proof of that
which they state.
Illustrations
A sues B for trespass on his land. B alleges the existence of a public right
of way over the land, which A denies.
The existence of a decree in favour of the defendant, in a suit by A against
C for a trespass on the same land, in which C alleged the existence of the same
right of way, is relevant, but it is not conclusive proof that the right of way
exists.
I. Surendra Kumar v. Gyanchand, AIR 1975 SC 875.
2 Syed Askari Hadi Ali Angustine Imam v. State (Delhi Admn.), AIR 2009 SC 3232 at p. 3239.
[S. 42 s. 43) OF THE RCLEV ANCY OF FACTS 373
COMMENTS
Scope.-Judgments, orders or decrees other than those mentioned in
Section 41 are relevant if they relate to the matters of public nature, but such
judgments, orders or decrees are not conclusive proof of that which they state.
Under Section 42 judgments are admissible not as res judicata but as evidence
although they may not be between the same parties provided they relate to
matters of public nature relevant to the enquiries.
Judgments inier-partes are relevant under Section 40, they are conclusive
and bar subsequent proceedings. Judgment, in rem though not inter-partes are
admissible under Section 41 and are conclusive for any legal character.
Judgments neither inter-panes nor in rem are relevant under Section 42 if they
relate to matters of public nature and if that matter of public nature is relevant
to the enquiries. But it should be remembered that judgments relating to matters
of public nature relevant under Section 42 neither work as res judicntn nor they
are conclusive as judgments in rem. They can be used as any other evidence in the
proceeding.
Section 42 is intended for judgments, orders or decrees which relate to
matters of public nature. Under this section the judgments are admitted as a
piece of evidence. Under Sections 40 and 41 judgments are admitted as a
conclusive proof about the matters they relate to. But under this section
judgment is admitted as a piece of evidence. On a question of custom, a decision
in a case as regards the existence or non-existence of the custom is good evidence
in other cases.!
S ECTION 43.-Judgments, etc. other than those mentioned in
Sections 40, 41 and 42 when relevant.-Judgments, orders or
decrees, other than those mentioned in Sections 40, 41 and 42, are
irrelevant unless the existence of such judgment, order or decree is a fact
in issue, or is relevant under some other provisions of this Act.
Illustrations
(n) A and B separately sue C for a libel which reflects upon each of them.
C In each case says, that the matter alleged to be libellous is true, and the
circumstances are such that it is probably true in each case, or in neither.
A obtains a decree against C for damages on the ground that C failed to
make out his justification. The fact is irrelevant as between B and C.
(b) A prosecutes B for adultery with C, A's wife.
B denies that C is A ·s wife, but the court convicts B of adultery.
Afterwards, Cis prosecuted for bigamy in marrying Bduring
A's lifetime. C says that she never was A's wife.
The judgment against B is irrelevant as against C.
(c) A prosecutes B for stealing a cow from him, B is convicted.
A afterwards sues C for the cow, which B had sold to him before his
conviction. As between A and C. the judgment against B is irrelevant.
1. R,1m Kishore v. Kabindra, AIR 1955 All 59 (FB).
374 EVIDENCE ACT [S. 43
(d) A has obtained a decree for the possession of land against B, C, B's son
murders A in consequence.
The existence of the judgment is relevant, as showing motive for a crime.
(e) A is charged with theft and with having been previously convicted of
theft. The previous conviction is relevant as a fact in issue.
(J) A is tried for the murder of B. The fact that B prosecuted A for libel
and that A was convicted and sentenced is relevant under Section 8 as showing
the motive for the fact in issue.
COMMENTS
Scope.-Section 40 deals with judgments which render the matter
conclusive between the parties; Section 41 deals with judgment in rem, which
are conclusive against all the world ; Section 42 deals with judgments which as
relating to matters of a public nature, are relevant though not conclusive,
between strangers to the suit. Section 43 lays down a general rule that all
judgments, decrees and orders not mentioned under Sections 40 to 42, are
irrelevant. To this general rule of exclusion the section provides two exceptions.
The judgments, decrees or orders not relevant under the three preceding sections,
are relevant (1) when the existence of such judgment, order or decree is a fact in
issue ; (2) when the judgment, decree or order is relevant under some other
provisions of the Act.
A was the managing director of a Co-operative Bank, which went into
liquidation. As a result of certain proceeding taken against A by the liquidator
of the bank, a payment order was made by the Deputy Registrar of Co-
operative societies. In the finding given by Deputy Registrar in his payment
order, the liability of A was, inter a/in, based on breach of trust. In pursuance
of this order a bungalow belonging to A was attached and sold. In a suit brought
by a son of A for partition of a joint-family property and possession of this
separate share it was contended that the debt incurred by A was avyavharik.
In support of his contention, the son attempted to prove that the debt fell
within this term avyavaharik by relying upon the payment order and the
findings given by the Deputy Registrar in the payment order. Jt was held that
any opinion given in the order of the Deputy Registrar as the nature of the
liability of A could not be used as evidence in the present case to determine
whether the debt was avyavaharik or otherwise. The order was not
admissible to prove the truth of the fact therein stated and except that it may
be relevant to prove the existence of judgment itself, it would not be admissible
in evidence.1
(1) Judgment a fact in issue.-If the object of producing the judgment be
merely to prove the existence of the judgment, its date or its legal consequences,
the proof of a certified copy is conclusive evidence of those facts.
A was prosecuted by B for cheating. He is acquitted. Afterwards A filed
a suit for malicious prosecution against B. Now in the suit for malicious
prosecution A has to prove :-
I. S.M Jakati 11. S.M. Borkar, AIR 1959 SC 282.
s. 43] OF THE RELEVANCY OF FACTS 375
(1) that A was prosecuted by B;
(2) that he was prosecuted without any reasonable and probable cause;
(3) that he was acquitted. In this case the judgment of the criminal case is
relevant to show that A was prosecuted by B.1
In Tirupati Tirumala Deoasthanam v. K.M. Krishnaiah,2 the Supreme
Court said that the judgment produced as evidence to prove the title in regard
to the suit property is admissible in evidence even though plaintiff was not
party to that suit if it is fact in issue.
(2) Relevant under some other provision of the Act.-The existence
of a judgment will sometimes be a relevant fact under some of the other
provisions of the Act as to relevancy. For example, the fact that A has
obtained a decree of ejecbnent against B may be a motive for B's murdering A.
Therefore the decree of ejectment will be admissible to prove the motive of
murder at the trial of B for the murder of A. Motive is relevant under Section 8
of the Act and therefore a decree showing motive is admissible under Section
43. Where in a proceeding for revocation of the grant of probate under Section
263, Succession Act, the question is whether the son of the testator murdered
him, cannot be assumed on the basis of a previous judgment of a criminal co·1rt
convicting the son of the murder of his father and sentencing him to
transportation for life, that the son was murderer of the testator. The judgment
of the criminal court is relevant only to show that there was such a trial
resulting in the conviction and the sentence of the son to transportation for life.
It is not evidence of the fact that the son was the murderer of the testator. That
question has to be decided on evidence.3
In a suit between A and B, the question was, whether C or D was heir of
H. If C was heir of H, then A was entitled to succeed, otherwise not. The same
question in a former suit brought by T against A and decided against A ; and
this former judgment was admitted in evidence in this suit between A and B,
and dealt with by the· courts below as conclusive evidence against A upon the
point so decided. It was held that a former judgment which is not a judgment in
rem, nor one relating to matters of a public nature, is not admissible in evidence
in a subsequent suit, either as a res judicata or as proof of the particular point
which it decides, unless between the same parties or those claiming under
them.4
Relevancy of judgment in election petition.-In Satrucharla Vijaiya
Rama Raju v. Nimanaka Jaya Raju arid others,5 where the election petitioner
failed to establish his claim, it could not be said that it amounted to a
declaration of the status of the respondents in that election petition or the
successful candidate and that such a finding on status would operate as a
judgment in rem so as to bind the whole world. Thus it is not a judgment
I. Jogendra v. Lingaraj, A[R 1970 Ori. 91.
2. AIR 1998 SC 1132.
3. Anil Behari v. Latika Bala Dasi, AIR 1955 SC 566.
4. Gujju Lal v. Fateh Lal, !LR 6 Cal 172.
5. (2006l 1 sec 212.
 376 EVIDENCE ACT
recognised under Section 41 of the Act. Even if the earlier judgment is
admissible in evidence, no objection was raised during trial. So neither it could
be brought under Section 42 of the Act on the basis that it relate to a matter of
public nature nor under Section 43 of the Act.
S ECTION 44.-Fraud or collusion in obtaining judgment, or
incompetency of court, may be proved.-Any party to a suit or
other proceeding may show that any judgment, order or decree which is
relevant under Sections 40, 41 or 42 and which has been proved by the
adverse party, was delivered by a court not competent to deliver it, or
was obtained by fraud or collusion.
COMMENTS
Judgment without jurisdiction or obtained by fraud is void.-
Under Sections 40, 41 and 42 previous judgments are made relevant and the
production of such judgments operates as res judicata. But the judgment to
operate as res judicata has to be of a competent court and not obtained by fraud
or collusion. If a judgment is not by a competent court or if it is obtained by
colJusion or fraud, it cannot operate as res [udicaia even if it is judgment in rem.1
It is not necessary for the party against whom such judgment, order or decree is
sought to be used to bring a separate suit to· .avl:! it set aside, but it is open to
such party in the same suit in which such judgment order or decree is sought to
be used against him, to show that the judgment, order or decree relied upon by
the other side was delivered by a court not competent to deliver it, or was
obtained by fraud or collusion.
A litigant who approaches the court, is bound to produce all the
documents executed by him which are relevant to the litigation. If he
withholds a vital document in order to gain advantage on the other side then
he would be guilty of playing fraud on the court as well as on the opposite
party. Where a litigant obtaining preliminary decree for partition of property
but did not mention at trial as to his having executed before filing of suit a
release deed in respect of the property ; the court held the decree as vitiated by
fraud.2
No separate suit to set aside such judgment.-When an order or
decree of a previous suit which is relevant under Section 40 or 41 is set up by one
party to a suit as a bar to the claim of the other party in a subsequent suit or
proceeding it is not necessary for the other party to bring a separate suit to have
the judgment set aside. But it is open to him in the same suit or proceeding to
show that the judgment was delivered by a court not competent to deliver it or
was obtained by fraud or collusion.3
In cases where an inference of fraud or collusion can be drawn from the
negligence or gross negligence of the next friend, it would be permissible for a
minor to avoid the judgment or decree passed in the earlier proceedings by
I. Satya v. Teja Singh, AIR 1975 SC 105.
2. S.P. Chcngalvaraya Naidu v. [agcnnath, AIR 1994 SC 853.
3. Vishunath Tewari v. Mst. Mirchi, AIR 1955 Pat 66; Triveni Mishra v, Rampoojan, AIR 1970
Patna 13.
[S. 44
s. 44) OF THE RELEVANCY OF FACTS 377
invoking Section 44 of the Evidence Act without taking resort to and separate
suit for setting aside the decree or judgment.1
Relevancy of a previous judgment on an issue (issue estoppel).-
The question is whether, where an issue of fact has been tried by a competent
court on a former occasion and a finding has been reached in favour of an
accused, such finding would constitute an estoppel or res [udicata against
prosecution as precluding the reception of evidence to disturb that finding of
fact when accused is tried subsequently even for different offence. The answer to
the question is in the affirmative. There is nothing wrong in the view that
there is an issue estoppel, if it appears by record of itself or as explained by
proper evidence that the same point was determined in favour of a prisoner in
previous criminal trial which is brought in issue on the second criminal trial of
the same prisoner. When the same issue of fact and law have been determined
in the previous situation this finding cannot be disturbed. The accused was tried
under Section 7 /16 of the Prevention of Food Adulteration Act for selling
adulterated milk. He was acquitted as being held that sale was not proved. He
was again put to trial for the same transaction for selling milk without licence.
It was held that the rule of issue of estoppel did arise and no evidence to the
effect that he was selling milk on that date could be given.2 The judgment of
the previous trial would be admissible to show what was the issue in question
in the former case and decision thereon.3
OPINIONS OF THIRD PERSONS, WHEN RELEVANT
What a person thinks in respect to the existence or non-existence on a fact
is opinion; and whatever is presented to the senses of a witness and of which he
receives direct knowledge without any process of thinking and reasoning is not
opinion. A claims to have a right to take water from a particular well. B sees
A taking water every day from the well. His seeing A taking water is not
opinion. If B says that he has been seeing A taking water from the well; he
does not give his opinion rather he states a fact of which he received direct
knowledge through his eyes. But if he says that in his opinion A has right to
take water from the well he gives an inference at which he had arrived by
thinking and reasoning. That a man has acquired a certain right cannot be
perceived by any of the senses. It can be only the subject of thinking and
reasoning. The question is as to whether particular letter was written by 8. One
A says that B wrote the letter in his presence. Here A sees the letter being
written by B and he receives direct knowledge about the identity of the writer.
But suppose C says, "I did not see B writing the letter but in my opinion the
letter was written by B ". Here C did not receive direct knowledge about the
identity of the writer but he thinks that it was written by him. Before giving
the above statement C compares the writing of the letter with that of B in his
mind and finds them similar and then expresses it in form of opinion. Let us take
another example. The question is whether a certain injury was caused by a
spear, A states that he saw the accused causing the injury by a spear. This is
I. Asharfi Lal 11. Koili, AIR 1995 SC 1440.
2. Banslu v. State, 1969 AWR 31.
3. llrij Basi Lal t•. State of M.P., AIR 1979 SC 1080.
378 EVlDENCE ACT [S.
not A's opinion. But if ii doctor, who did not see the injury being caused, says
that he thinks that the injury was caused by a spear, it is his opinion. What
one sees, hears, feels by touch, and knows is not opinion and on the contrary
what is the conclusion of an individual is his opinion.
Relevancy of opinion.-As a general rule the opinion is not admissible.
The reason for this is not far to seek. The witnesses are to place before the court
the facts observed by them and it is for the court to form its opinion. A and B
quarrel and cause injuries to each other. Both start criminal cases. A says that
B was plucking mangoes from his (A's ) tree. He (A) went and forbade. B began
to assault him with spear and so he (A) assaulted him in self-defence. B on the
contrary alleges that A was plucking his (B's) mangoes, he went and tried to
stop him. A began to assault him with spear and so he also assaulted him (A)
in self-defence. In this case the man who is aggressor will be convicted and he
who exercised the right of private defence shall be acquitted. Now what will
be the state of affairs if opinions of persons are taken into evidence. Suppose A
produces witnesses who depose that in their opinion B was aggressor and A
assaulted in exercise of right of private defence, and B produces witnesses who
state that in their opinion A was aggressor and B assaulted in self-defence. If
such evidence is allowed the court has to decide a case on the opinion of third
persons.
The witnesses are generally interested in the parties to the litigation and
if their opinion is admissible, grave injustice would by caused. The witnesses
are to bring to the court the raw material of fact and then on them the mind of
the court is to work.
In the example referred to above the witnesses of A should place before
the court the bare fact they saw. They may state that the tree, in dispute
belonged to and was in possession of A ; B came, all of a sudden and began to
pluck mangoes from it; A tried to stop upon which B began to assault him (A)
and then A also caused injuries to B in self-defence. Similarly, witnesses for B
will support the story set up by him. On these raw facts, untainted by any sort
of conclusion, the court will give its own finding as to who is guilty. For this
reason and many others the laws lays down that opinions of third persons are
not to be allowed in evidence.
The opinion or belief of third person is as a general rule irrelevant and
therefore inadmissible. The witnesses are allowed to state facts and facts
alone, i:e. what they themselves saw or heard. It is the duty of the judge to
form his own conclusion or opinion on the facts stated. Therefore, the opinion of
a witness that it appeared to him from the conduct of a mob that they had
collected there for an unlawful purpose is not admissible to prove the object of
the assembly. There are, however, cases in which the court is not in a position
to form a correct opinion, e.g., when the question involved is beyond the range
of common experience or common knowledge, or when special study of a subject or
special experience therein is necessary. The question is whether A died of
poisoning. Generally a judge or a magistrate by examining a dead body of A
cannot form any correct opinion a::: to the cause of death. Again, this is question
whether certain impression is of A. Generally a court will not be able to form a
<t
S. -lSJ OF THE RELEVANCY OF FACTS 379
corrl'ct opinion about the matter in issue. In such cases help of an expert is
required, because to form an opinion in such matters special study or training or
experience is necessary.
In these cases, the rule is relaxed and expert evidence is admitted to
enable a court to come to a proper decision. ln the first example mentioned
above. a doctor will be required to give his opinion as to the cause of his death
and in the second example a document expert will be consulted. Science, art,
trade, handwriting, finger impressions and foreign law, are the examples of
matters for understanding of which special study, or special experience is
necessary.
SECTION 45.-0pinions of experts.-When the court has to form an
opinion upon a point of foreign law or of science or art, or as to
identity of handwriting or finger impressions, the opinions upon that
point of persons specially skilled in such foreign law, science or art, or in
questions as to identity of handwriting or finger impressions are relevant
facts.
Such persons are called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by
which A is supposed to have died are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by
reason of unsoundness of mind, incapable of knowing the nature of the act, or
that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms
exhibited by A commonly show unsoundness of mind, and whether such
unsoundness of mind usually renders persons incapable of knowing the nature of
the acts which they do, or of knowing that what they do is either wrong or
contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another
document is produced which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were
written by the same person or by different persons are relevant.
COMMENTS
Scope.-Sl•ction 45 makes the opinion of persons specially skilled in some
science, art, foreign law, identity of handwriting and finger-impressions is
relevant.
An expert witness.-The section also gives a definition of an expert
witness. An expert is one who has acquired special knowledge, skill or
experience in any science, art, trade or profession : such knowledge, may have
been acquired by practice, observation or careful studies.! In Bal Krishna D11s
I. Collector of labalpur v. A.It [ahangrr. AIR 1'171 MP 32; K. Knshna Chettiar 11. Ambal &: Co, AIR
1970 SC 146; Mahmood v. State of U.P.. AIR 1976SC 69.
380 EVIDENCE ACT [S. 45
Agrawal v. Radha Devi and others,1 an expert was defined as a person who by
his training and experience has acquired the ability to express an opinion but an
ordinary witness does not possess this quality. The evidence of an expert is such
evidence which is based on expertise and experience. In view of the language of
Section 45 of Evidence Act it is necessary that before a person can be
characterised as an expert there must be some material on record to show that
he is one who is skilled on that particular science and is possessed of particular
knowledge concerning the same. He must have special study of the subject or
acquired special experience therein. Thus before a testimony of witness became
admissible his competency as an expert must be shown, may be by showing that
he was possessed of necessary qualification or that he has acquired special
skill therein by experience.
In Baldeo Raj v. Urmila Kumari,2 the appellant Baldeo filed a petition
under Section 12 of Hindu Marriage Act for annulment of his marriage with
respondent Urmila on the ground that on the date of marriage (8th October,
1962) the respondent was already pregnant by some another man of which he
was ignorant then. The suit was decreed by the trial court. On appeal the High
Court reversed the judgment and dismissed the suit. The respondent Urmila
Kumari contended that she became pregnant by the appellant. During the trial
Dr. Daljeet Dhillon, woman assistant surgeon was examined as plaintiff
witness. According to her on 30th October, 1962 Smt. Urmila Kumari had
pregnancy of 2 1/2 months and in the certificate Ext 1 that uterus was two finger
above the sumphysis pubis per abdomen. According to her evidence the
pregnancy in the case has started between 11th and 16th August, 1962. Dr.
Daljeet Dhillon had admitted in her evidence that she was not specialised in
the branch of medical treatment of women diseases. The High Court held that
as she has not a special study on the subject she was not expert and her evidence
was not admissible. The Supreme Court reversed the finding and held that the
witness may not have specialised in the branch of medical treatment of
women's disease but her knowledge of midwifery as an obstetricin was proved
to be of the high order in the case itself for her cross-examination done on 4th
April, 1963, she clearly stated that Urmila Kurnari's delivery might take
place in 1963 which ultimately turned out to be true for the respondent did
delivery on 20th May, 1963. From this decision of Supreme Court, it is clear
that an expert in order to be competent as a witness need not have specialized in
certain branch of science or art. It is sufficient, so far as admissibility of
evidence goes if he or she has acquired a special experience therein.
In Durand Didier v. Chief Secretary, Union Territorij, Goa,3 an expert was
criticised on the ground that she did not know the difference between Narcotic
drug and Psycotropic drug. This was admitted by her. But the Supreme Court
held that these arguments have got no significance because the medical officer
is not expected to know the difference in legal parlance. And this ground in our
view is no ground for ruling out the evidence of P.W. 6. The medical expert is not
expected to know the difference in legal parlance.
I. AlR 1989 All. 133.
2. AIR 1979 SC 879.
3. AIR 1989 SC 1%6.
s. 45] OF THE RELEVANCY OF FACTS 381
The opinion of an expert must be given orally and a mere report or
certificate by him is not evidence! Senior Scientist (Chemistry), Central
Forensic Science Laboratory was held to be an expert in science, though not
falling in the category of officers mentioned in Sec. 293 Cr.P.C. His opinion
would be a relevant piece of evidence in view of Section 45.2
Prerequisites of expert evidence.-Before expert testimony can be
admitted two things must be proved, namely, (1) the subject is such that expert
testimony is necessary ; and (2) that the witness in question is really an expert,3
and that he is a truthful witness.4
1. Where expert (Testimony) Opinion necessary.-Where the court
was able to form its own opinion from facts and circumstances of the case it can
be said that expert opinion was not necessary. But wherein some technical
question is involved which can be answered by a person specially skilled it can
be said that expert opinion is necessary.
Where death is due to injuries or wounds caused by a lethal weapon, it is
always the duty of the prosecution to prove by expert evidence that it was
likely or at least possible for the injuries to have been caused with the weapon
with which and in the manner in which they are alleged to have been caused.5
In LC. Goyal v. Mrs. Suresn Joshi,6 it was held by Supreme Court that
when the circumstantial evidence was so potent that it led to only one
conclusion that the signature on cheque was not forged, there was no need for an
opinion of handwriting expert.
2. The witness in question is really an expert.-In order to bring the
evidence of a witness as that of an expert it has to be shown that he made a
special study of the subject or acquired a special experience therein or in other
words that he is skilled and has adequate knowledge of the subject. An expert
is not witness of fact, his evidence is only of advisory character. The duty of an
expert witness is to furnish the judge with necessary scientific criteria for
testing the accuracy of circumstances so as to enable the Judge to form his
independent judgment by the application to that creteria to the facts proved by
evidence of the case. The scientific opinion evidence if intelligible, convincing
and tested becomes a factor and often an important factor for consideration
along with the other evidence of the case. The creditibility of such witness
depends on reasons stated in support of his conclusions and the data and
material furnished which form this basis of his conclusion?
Foreign law.-When the court has to fonn an opinion as regards the law
of foreign cmmtry ; an expert in that law may be called upon to state to the court
1. Ahmedabad Municipality !I. Shantilal, AIR 1961 Guj. 196.
2. Amariect Singh v. State (Delhi Admn.), 1995 Cr LJ 1623 (Del).
3. Parat !I. B,s.....~r. 3\1 Cal 2-1-5.
4. Kanchan Singh v. State of Gujarat, AIR 1979 SC 1011 ; Contra! Excise DepArtuwnt 11.
Sornasundaram, 1\180 Cr LJ 5.33.
5 P.ink.11 u. State of Rajasthan, AIR 2016 SC 4150 p. 4155.
6 AIR 199\1 SC 2222.
7. State of Himachal Pradesh v. Jai Lal and others, AIR 19'J9 SC 3318.
382 EVIDENCE ACT [S. 45
what the law of a foreign country on that particular point is. The foreign law
must be proved like a fact.1
In India such law may be proved under Section 38 by the production of book
printed under authority of the foreign Government. An expert may be calJed to
state what the law of a foreign country on a subject is but where it is laid down
in a Code of that country it is a duty of a court in this country to interpret as best
as it can. The judgment of the highest tribunal of that country is the best
rvidence.2
The function of nautical (naval) assessors is to advise the court upon
1 autical manner and their advice is expert evidence admissible in admiralty
court, on all issues of fact about the seamanship. The decision of the case
however, rests entirely with the court and even in solely nautical matters the
court is not bound to follow the advice of assessors but on question of nautical
science and skill great attention must obviously be paid to the opinion of the
assessors since they are the only source of information on these points and some ·
reason should be given for disregarding them.3
Science or art.-When the court has to form an opinion t~n a point of
science or art, the opinion upon that point of persons specially skilled in such
science or art is admissible.
It would be physically impossible to deal with every branch of science or
art in which expert evidence may be given. We propose. to take examples.
Medical evidence-Meaning.-The expression "medical evidence"
compendiously refers to the facts stated by the doctor either in the injury report
or in the post mortem report or during his oral testimony plus the opinion
expressed by the doctor on the basis of the facts stated.4
No conviction on expert evidence.-lt would be highly unsafe to
convict a person on the sole testimony of an expert.5
Opinion of doctor as to age.-The opinion of a doctor is an important
piece of evidence.6 The effect of the medical testimony is to render the other
evidence adduced in the case as to the age of a person probable.7 When the
opinion is based only on the physical features, it is worthlessf
Where the age of the prosecutrix driven to the flesh trade was given in
FIR as well as in her supplementary affidavit as 18 years but in medical
examination her age was determined to be between 14 to 16 years and the birth
certificate also revealed her age below 16 years, her age was held to be below
16 years as the prosecutrix at the time of her arrest might be trying to shield
her prosecution.9
1. Khode Gangasar v. Swamin anda Madali, AIR 1926 Mad 218.
2. Suganchand Bhikham Chand v. Margo Bai, AIR 1942 Dom. 145.
3. Asianc Steam Navigation Co. 11. Sub-Lieutenant, AJR 1955 SC 597.
4. Bastiram v. State of Rajasthan, 2014 Cri LJ 1761 p. 1766.
5. Mahmood 11. State of U.P., AIR 1976 SC 69.
b. Sunil Chandra 11. State, AIR 1954 Cal 304.
7. Banwari Lal 11. Mahcsh, 41 All 63.
8. Mohd. ~al v. Yuhode, AIR 1916 PC 242.
9. Slate of Maharashtra v. Md. Sajid Husain, AIR 2008 SC 155 at p. 159.
s. 45) OF THE RELEVANCY OF FACfS 383
In Ammini and Others v. State of Kerala,1 the Supreme Court held the
rejection of certificate on the ground that the certificate was on piece of plain
paper and not printed form, was not proper when it is shown that printed forms
were in short supply in Government Hosiptal of particular district.
D.N.A. Report.-ln Pantangi Balarama Yenkata Ganesh v. State of
A.P.,2 which was a case of murder, the expert in D.N.A. report suggested that
the blood group of the appeJJant and the one found on the pink shirt worn by
him was similar. The expert did not use the term identical. It was held to be of
not much consequence in this case when the Court had not taken into
consideration the evidence of D.N.A. experts alone for recording the conviction.
D.N.A. report was considered with other evidence.
Medical evidence as to loss of earning capacity.-The evidence of a
medical man as to loss of earning capacity in a claim under the Workman's
Compensation Act is relevant under Sections 4 and 4 (l) (c) along with
Explanation II of the Workmen's Compensation Act.3
Wherein a brutal gang rape case and physical assault bf insertion of iron
rod in the private parts of the prosecutrix and the assault on the informant who
was her companion boy, the samples for the purpose of DNA profiling, lifted
from the person of the prosecutrix, the informant, the accused, their
clothes/articles, the dumping spot of the victims, the iron rods, the ashes of
partly burnt clothes, as well as from the offending bus were found to be
authentic and capable of establishing the identity of the persons concerned
beyond reasonable doubt and the analysis of biological material found thereon
on being matched with the DNA profiles of the prosecutrix, the informant and
the accused, generated earlier from the known sources cogently linked each of
the accused with the victims as also with the crime scene, the Court held-
There is no reason to declare the DNA report as inaccurate, especially when it
clearly linked the accused persons with the incident. The D.N.A. report
deserves to be accepted unless it is absolutely dented and for non-acceptance of
the same, it is to be established that there had been no quality control or
quality assurance. If there is no tampering of samples, the D.N.A. Test report is
to be accepted.4
1. AIR 1998 SC 260.
2. AIR 2009 SC 3129 at p. 3136.
3. See The Branch Manager, New India Assurance Co. Ltd. v. K. Thongam, C.M.A. No. 672 of
2008 Mad. H.C. (Madurai Branch), Also see Purshottam Das v. New India Assurance Co. Ltd.,
F.A.0. 280, decided on 8th April, 2011.
4. Mukesh v. N.C.T. of Delhi, AIR 2017 SC 2161 pp. :.. ..138, 2239; Regina v. Alan James Doheny &
Gray Adams, (1997) 1 Cr. App. R. 369; Frye v. U.S., 54 App. D.C. 46 (1923); Daubert v. Merrell
Dow Pharmaceuticals, Inc., 113 S.C.T. 2786 (1993); District Attorney's Office for the Third
Judicial District et al. 11. William G. Osborne, 129 SCR 2308; Kamti Devi (Smt.) v. Poshi Ram, AIR
2001 SC 2226; Pantangi Balarama Venkata Ganesh v. State of A.P., AIR 2009 SC 3129; Santosh
Kumar Singh v. State Through C.B.I., 201 I AIR SCW 36-l7; Inspector of Police, Tamil Nadu t•.
John David, AIR 2011 SC (Cri) 1135; Krishna Kuma r Malik v. Stale of Haryana. AIR 2011 SC
2877; Surendra Koli v. State of U.P., AlR 2011 SC 970; Md. Ajmal Md. Amir Kasab alias Abu
Mujahid v. State of Maharash-ra, AIR 2012 SC 3565; Sandeep v. State of U.P., (2012) 6 SCC 107;
Rajkumar 11. State of M.P., AIR 2014 SC (Supp) 1109 and Nandlal Wasudeo Badwaik v. LAta
Nandlal Badwaik, AIR 2014 SC 932 referred to.
384 EVIDENCE ACT [S. 45
Expert's opinion on documents.-The linguistic experts testify before
the court regarding the meaning of documents. The linguistic issues may arise in
Trade Mark cases in disputes over phonological questions1 regarding likelihood
of confusion or the often use of a word so as to make it descriptive or generic}
Regarding the interpretation of any documents, the courts resort to serious
comprehensive studies by the linguists for interpreting instructions of Jury and
other legal documents.3 ln Doston v. Duffel' the welfare recipients of Illinois
were permitted to give the testimony of a linguist regarding the
incomprehensibility of notice sent to them concerning the right to receive future
benefits. The Courts are not averse to accept linguist experts as witnesses but
they admit when it is scientific and relevant. Generally, the Courts are not
inclined.
Gun-shot-Exact time of death cannot be established.-In case of
death by gun-shot injury, the exact time of death cannot be established
scientifically and precisely because of presence of rigor mortis or in the absence
of it.5
Ballistic Expert.-Where the offence is alleged to have been committed
by the use of fire-arm, it cannot be laid down as a general proposition that the
prosecution must lead the evidence of a Ballistic Expert. If direct evidence is of
an unimpeachable character and the nature of injuries, disclosed by post-
mortem notes is consistent with the direct evidence, the examination of
Ballistic Expert may not be regarded as evidence.6
Ocular testimony vis-a-vis ballistic report.-Where the ocular
testimony that the accused shot and killed the deceased was found reliable,
the ballistic report that empty cartridges found at the spot were not fired from
the gun recovered from the accused was held to have no effect to discredit
ocular testimony when lead buiiets recovered were found belonging to commonly
used 7.6 mm. caliber ie., 32 bore weapons.7
Medical expert not a ballistic expert.-The medical expert being not a
ballistic expert is not expected to answer as to whether the injury would have
been caused by bullet alone.8
Architect.-An architect acquainted with the locality is an expert
regarding depreciation of value of property due to nuisance.?
Handwriting
When there is a question before the court as to whether a document is in
the handwriting of a person, the court may either take the opinion of a
handwriting expert or of another person acquainted with the handwriting of
1. Infinity Broad Corp. v. Greater Boston Radio n, 1993 WL 740930 (D. Mass Sept. 16, 1994).
2. Conagra Inc. v. Geo A. Hormel and Co., 784 F. Supp. 700 (D. Neb. 1992).
3. Free v. Peters, 12 P. 3d 700 (7th Cir. 1993).
4. 732 F. Supp. 587 (N.D. 1111988).
5. Baso Prasad v. State of Bihar, AIR 2<XYl SC 1019 at p. 1023.
6. Vineet Kumar Chauhan v. State of U. P., AIR 2008 SC 780 at p. 782.
7. Himanshu Mohan Rai v. State of U.P., AIR 2017 SC 1425 p. 1429; Also see Anvaruddln v.
Shakoor, AIR 1990 SC 1242; Brijpal Singh v. State of M.P., AIR 2003 SC 2460.
8. Mahmood v. Stale ofU. P., AlR 2008 SC 515 at p. 520.
9. Gauntlet v. Whitworth, 2 C. & K. 720.
s. 45] OF THE RELEVANCY OF FACTS 385
the person in question or it may itself compare the disputed handwriting with
admitted hand writing.1
On the dispute regarding the execution of promissory note by the denial of
the defendant and his signature thereon, it is essential that such document
should be sent to expert for comparison of signatures.2
In case of positive denial by the person said to have affixed his thumb
impression on the disputed document and the impression on the document being
vague and smudgy or not clear, the Court should hesitate to venture a decision
based on its own comparison of the disputed and admitted finger impression.
The recording of finding about its authenticity, without benefit of any expert
opinion, merely based on a mere casual or routine glance, or perusal should be
avoided.3
In case of a disputed thumb impression which is smudgy, vague or very
light, the Court should not hazard a guess by a casual perusal. When there is a
positive denial by the person alleged to have affixed his finger impression, the
Court should hesitate to venture a decision based on its own comparison of
disputed and admitted finger-impression. Even in cases where the Court is
constrained to take up such comparison, it should make a thorough study, if
necessary with the assistance of counsel, to ascertain characteristics,
similarities and dissimilarities. If the Court chooses to record a finding
thereon, the judgment should contain the reasons for any conclusion based on
comparison of thumb-impression.4
When the court has to form an opinion as to writing, the opinion of a
writing expert is admissible. It should be borne in mind that the opinion of an
expert in writing is the weakest and the least reliable evidence. So it has been
held that it is not safe to base conviction upon the opinion of writing expert
alone.5
Apart from question that report of handwriting expert may be read as an
evidence what is necessary is that the expert should be subject to cross-
examination because an expert like other witnesses is fallible.6
In Venkata Laxamma v. Venkatappn,7 the person making attestation has
denied to sign on Vakalatnama and plaint so there was application for
handwriting expert. Application accepted. The hand-writing expert is not
necessary to prove or disprove the handwriting because the court is competent to
compare the disputed handwriting with handwriting taken in the Court. But
this does not mean that the court will not permit to prove the disputed
handwriting by handwriting in any case. It may happen that the court may
compare disputed handwriting with the admitted handwriting and arrive at
decision. But when the defendant had preferred to take the benefit of hand-
writing expert then he should not be deprived of this benefit unless the
1. Fakhruddin 11. St;;lc o: M.P., AIR 1967 SC 1326.
2. Velaga Siraramma Krishna v. Velaga Veerbhadra Rao, AIR 2009 AP 47,
3. Thiruvengada Pi!lai v Navaneethammal, AIR 2008 SC 1541 at p. 1-545.
4. Thrruvengada Pillai u. Navaneethammal, AIR 2008 SC 1541 at p. 1547.
5. Codavarthy, In re, AJR l 9b0 AP 164 ; Kanchan Singh v. State of Cujaret, AIR 1979 SC 101.
6. Balkrishna Das u. Radha Devi, AIR 1989 All. 133.
7, AtR 1991 Mad. 399.
386 EVIDENCE ACT [S. 45
application for it has been made after undue delay or for doing this there was
some malice or some special motive specially where the person has said that
the signature on plaint and Vakalatnama is not his signature. / direct evidence or by circumstantial evidence. l
In Keshau Lal v. State of Madhya Pradesh+ examination of fingf'r print
was made by expert in order to connect accused with weapon of offence. Accused
was alleged to have stabbed his mistress. Weapon of offence was handled by
many persons before its seizure. Held-non-examination of finger print expert
would be of no consequence.
In M.K. Usman Koya v. Santha and others,2 the Kerala High Court
held-The comparison of handwriting is imperfect science and expert would not
be able to state with 100% certainty that particular signature is that of the
person who purportedly signed. He can only state that there is high
probability.
In LC. Goyal v. Smt. Suresh Joshi,3 the Supreme Court held that when it
was established by circumstantial evidence that it led to only one conclusion
that the signature on the cheque was not forged there was no need for an opinion
of an handwriting expert.
Difference in opinion of handwriting experts.-In Ba/winder Kumar
v. Bawasingh and others,4 contradicting opinion was given by two experts.
Cogent reason for opinion that the document is forged was given by one expert
who was qualified and had vast experience in the field. Reason given by
another expert was not cogent. The court was entitled to rely upon opinion of
expert giving cogent reason.
In Suresh Kumar alias Suresn Chandra and others v. Metoa Ram,5 there
was a difference of opinion amongst two handwriting experts. In such case, the
court itself can compare the disputed handwriting with the admitted
handwriting.
When the request for handwriting expert can be made.-Where
the request for handwriting experts was made at appellate stage and that too
after a period of 10 years after filing an appeal and the delay was not
explained, the rejection of request was held to be proper.6
Sole evidence of hand-writing expert.-The sole evidence of hand-
writing expert is not normally sufficient for recording a definite finding about
the writing being of a certain person or not. It may not be safe for a Court to
record a finding about a person's writing in a certain document merely on the
basis of expert comparison as it is not conclusive. The Court can itself compare
the writings in order to appreciate properly the other evidence produced before
it. The Courts should be wary to give too much weight to the evidence of hand-
writing expert. It can rarely if ever, take the place of substanti.ve evidence.
1. J\IR 2002 SC 1221.
2. J\IR 2003 Ker 1\11.
3. AIR 1999 SC 2222 .
.&. AIR 2002 P&H 371S.
"· J\IR1\191 Pun]. 254.
b. Gin ', Vmayak Rao Naik v. S. Sagramappe Khadla AJR 2001 Kant. 210.
s. 45] OF THE RE LEV ANCY OF FACTS 387
Before acting on such evidence, it is usual to see if it is corroborated by clear,
Typewriting.-Sometimes the question arises that whether the evidence
of typewriting expert is admissible as expert opinion under Section 45. In State
through CBI New Delhi v. S.J. Cha11dl1ary,2 the Supreme Court said that the
word 'science· occurring independently and in addition to word 'handwriting' in
Section 45 is sufficient to include that the opinion of a person specially skilled
in the use of typewriter and having scientific, knowledge of typewriter would be
an expert in this science and his opinion about the identity of typewriting for
the purpose of identifying particular typewriter on which the writing is typed
is relevant under Section 45 of the Act. Further, the type-writing is to be read
within the meaning of handwriting in the Act. Since type has become more
common than handwriting on account of availability of typewriters.
Foot prints.-ln Brij Mohan v. State of Rnjasthan,3 where there was non-
production of moulds of foot prints and cartridges on the spot, it was held by the
Supreme Court that even excluding circumstances prosecution has proved its
case beyond reasonable doubt.
Court's have refused to act upon it unless corroborated. The opinion of an
expert is seldom conclusive.4
Finger impressions.-The identification of finger prints has become
most important branch of criminal investigation. In civil law also to prove the
identity of a person the finger-impression plays an important role.
In some cases the opinion of a fingerprint expert has been considered to be
superior to handwriting expert opinion.f ~-
Fire-arms expert.-The accused was tried for the murder of deceased by
shooting him with a country-made pistol. A cartridge was found near the cot of
deceased. The accused was arrested fourteen miles away from his village
which was the place of occurrence. He produced a pistol from his house in
circumstances which clearly showed that he only could have known of its
existence there.
In [urnail Singh v. State of Punjab,6 it was held by Supreme Court that
expert evidence was not necessary in case of double barrel gun which could be
fired by first filling it with glll1 powder.
The evidence of fire-arms expert showed that he had fired four test
cartridges from the pistol produced by the accused. He found the usual
charecteristlcs of the chamber to have been impressed upon the test cartridges
and that exactly identical marks were present on the paper tube of the evidence
cartridge. He made micro-photographs of some of the evidence marks on the
test cartridge and the evidence cartridge, and gave his opinion that cartridge
I. S.P.S. Rathore v. C.13.1., AIK 2017 SC 4406 pp. 4500, 4501.
2. AIK 1996 SC 1491.
AIR 1994 SC 739.
•I. Banerjee Store v, Pr ... ~i,lcnl of India, AIR 1953 All 318; R.3m Narnln v. Slate of U.P., AlR l'i73 SC
2200.
5. Golam Rahman t•. Kmg, AIR 1950 Cal 66.
6. ALR 1999 SC J2l.
388 EVIDENCE ACT
found near the cot of the deceased was fired from the pistol produced by the
accused. The evidence was held to be admissible under Section 45, Evidence
Act.1
In a case under Section 300 IPC the doctor who conducted the post-mortem,
has stated that the injuries found on the deceased must have been caused by
firearms. As a matter of fact some pellets also were removed from the body.
Therefore there cannot be any doubt that the firearms were used. He was cross-
examined but he asserted that the distance from where the pellets were
recovered from the entrance wound on the head may be more than 6" and that
some of the injuries were caused from a very close range. It was held that in
view of aforesaid positive testimony deposition of ballastic expert that certain
recovered weapons could not have been used, by itself would not be serious
infirmity.2
In the case of Sukhpal v. State of Haryana,3 the accused was found in
possession of rifles and cartridges for which he had no licence, it was observed
that making of test of firing by the expert for purpose of ascertaining whether
or not rifle was capable of firing is not at all necessary.
High Courts on Narco-analysis and brain-finger mapping Test-
Validity.-The Bombay,4 Madras,5 Kerala,6 Gujarat,7 Andhra Pradesh,8 and
Allahabad? High Courts held the Narco-analysis and use of P300 or brain-
finger printing, lie-detector tests and use of mouth serum to be valid under
Article 20 (3) of the Constitution. The Kamataka High Courtl" held it to be
unconstitutional.
In State of A.P. v. lnapuri Padma,11 the Andhra Pradesh High Court
held-Where. the petitioners are- not the accused arrested by the Court, there is
no need to obtain any permission from the Court to undergo Narco-analysis if
they exwess no objection to undergo the same. Where the witnesses are not
willing to undergo the test, the police is required to seek permission from the
Court undertaking a test against such person. The police has to convince the
Court as to what are the circumstances that made the police to gain the
impression that there is likelihood that the persons proposed to be put to test
knows something about the commission o_f the offence.
In Santokhben Sharmanbhai Ladeja v. State of Gujarat,12 the Gujarat
High Court held-
"The Narco-analysis test is conducted under supervision of doctors
and proper care is taken and there is constant surveillance of the state of
the accused, and, as such, the element of risk is minimal. Risk is in fact
1. Kallu v. Stall.' of ur, AIR 1958 SC 180. \ examination cannot be said to be a legal evidence which could be used
2. Lakhbir Singh v. State of Punjab, AlR 1994 SC 1029.
3. AIR 1995 SC 578.
4. Ram Chandra Reddy v. State of Maharashtra, 2004 All MR (Cr) 1704.
5. Dinesh Dalmia v. State, 2006 Cr LJ 2401 Mad.
6. R.:ijo C,'Or)\I.' v. Dy. Supdt. of Police, 2006 (2) KLT 197.
7. Santokhbcn Sharmnbhai Ladeja v. State of Gujarat, 2007 Cr LJ 4566.
8. Stall.' of A.I'. v. Inapuri Padma, 2008 Cr LJ 3992 (AP).
9. Abhay Singh 11. State of U.P, 2(.1()') Cr LJ 2189 (All) (Lko Bench).
IU. Sclv1 u. State. 200-1 (7) Kar LJ 501.
l l. · 2\JOll Cr LI 3W2 (AP).
12. 2007 Cr LT 456o. • r
(S. 45 s. 45] OF THE RELEVANCY OF FACI'S 389
part of life and pervades in most of human activities and on this ground
alone, therefore, the impugned test cannot be condemned."
In Abhay Singh v. State of U.P.,1 Justice Barkat Ali Zaidi held-
"It is now well settled that hairs and nails of the accused can be
taken for utilization during investigation even if the accused does not
agree for the same. If that invasion of the accused is permissible, the
principle should be applicable to Narco-Analysis and Brain Mapping Test
also." The discovery of truth is the desideratum of investigation, and, all
efforts have to be made to find out the real culprit, because, one guilty
person, who escapes, is the hope of one million. Courts have, therefore, to
adopt a helpful attitude in all efforts, made by the prosecution for
discovery of the truth. If the Narco-anaiysis and Brain Mapping Test can
be helpful in finding on the facts relating to the offence, it should be used
and utilized and the Courts should not obstruct the conduct of the
exercise. "2
In Meera Walia v. State of Himachal Pradesh,3 the petitioner was a
Principal in the Government College and her husband was an lAS officer. An
FIR was registered under Sections 13 (1) (c) and 13 (2) of the Prevention of
Corruption Act against the petitioner and her husband for possessing
disproportionate assets to the known sources of their income, Her bail was
objected by the prosecution, inter alia, on the ground of her requirement for
Narco-test. The Narco Test of the petitioner was said to be required for
extracting self-incriminating evidence as to what had been kept in lockers and
how the amount of Rs. ten lacs was deposited by the vendor in her account next
day after she purchased the landed property in a benami transaction. The
petitioner and her husband were extensively interrogated and her husband
remained 8 days in police custody.
The bail was directed to be given in case of her arrest as the grounds for
denial of bail were held to be not sufficient. The Narco-analysis Test was held
to be totally irrelevant for the said purpose. Holding the test to be
unconstitutional the H.P. High Court through Justice Surender Singh held-
This type of test for inculpatory statement under the spell of mental
deprecants or drugs which affects the mental faculty is inadmissible in
Jaw and in the given circumstances would be against the spirit of Article
20 (3) of the Constitution of India. Section 53 of the Code talks about legal
evidence, so any incriminating statement made by the accused during such
against him. The field of criminology has expanded rapidly in recent
years and demand for supplemental methods of detecting decepting and
improving the efficiency of interrogation have increased concomitantly.
The investigating agency has a statutory right to interrogate the crime
and to find out the truth. It is a valuable technique in blind murder cases,
I. 20ll'I Cr LJ 218'J (All) (Lko Bench).
2. Abhay Singh !I, State of U.P., 2009 Cr LJ 2189 at p. 21\IO.
3. 2Utl'il Cr LJ 152-1 (HP).
3?0 EVIDENCE ACT
terrorists activities like bomb blast to reach the actual accused where he
is not known. Where the accused is known and the prosecution has
collected the evidence against him and statutory onus lies upon him to
explain the known sources of income, in that case, he cannot be compelled
by making him dormant by drugs to state against him as it would be
against the spirit of the Constitution as aforesaid.'
Narco analysis of the persons not accused of crime.-In State of A.
P. v. lnapuri Padma <Smt.J.2 the persons whose narco-analysis test was sought,
were not accused persons arrested by the police. It was held that there was no
need to obtain any permission from the Court to undertake a narco-analysis test.
In case the witnesses are not willing to undergo such test, the police is required
to make an application to the Court seeking permission for undertaking a test
against such person. The police are required to convince the Court as to what are
the circumstances that made the police to gain an impression that likelihood of
knowing something about the commission of the offence by the persons proposed
to be put to such test.
Since in this case, the persons proposed to be put to such test were not
accused or suspects, the question of putting the test of testimonial compulsion
did not arise.3
Supreme Court on Narco Test.-In Se/vi v. State of Karnataka,4 the
Supreme Court in a batch of criminal appeals relating to the involuntary narco-
analysis, polygraph examination and the Brain Electrical Activation Profile
(BEAP) tests for the purpose of improving investigation in criminal cases
summing up the legal position and held-
"Forcing an individual to undergo any of the standard of 'substantive due
process' which is required for restraining personal liberty. Such a violation
will occur irrespective of whether these techniques are forcibly administered
during the course of an investigation or for any other purpose since the test
results could also expose a person to adverse consequences of a non-penal nature.
The impugned techniques cannot be read into the statutory provisions which
enable medical examination during investigation in criminal cases, i.e. the
explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973.
Such an expansive interpretation is not feasible in light of the rule of 'ejusdem
generis' and the considerations which govern the interpretation of statutes in
relation to scientific advancements. Compulsory administration of any of these
techniques is an unjustified intrusion into the mental privacy of an individual.
It would also amount to 'cruel, inhuman or degrading treatment' with regard to
the language of evolving international human rights norms. Furthermore,
placing reliance on the results gathered from these techniques comes into
conflict with the 'right to fair trial'. Invocations of a compelling public interest
cannot justify the dilution of constitutional rights such as the 'right against
sell-incrimination'.
I. Meera Waha v. State of I !im,tchal Pradesh, 2l)(l'.I Cr LJ 1524 at p. 1527 (HP).
2. 2008 Cr LJ 3992 (At').
3. State ot A. P. v Inapun Padrna (Smt.), 2008 Cr LJ 39'.12 at p. 39'.17.
4. AIR 2010SC l<J74, PN K. G. Balknstman C. /. I., R.V. Ravecndran and J.M. Panchal JJ.
[S. 45
s. 45) OF THE RELEVANCY OF FACIS 391
No individual should be forcibly subjected to any of the techniques in
question, whether in the context of investigation in criminal cases or otherwise.
Doing so would amount to an unwarranted intrusion into personal liberty.
However, voluntary administration of the impugned techniques provided that
certain safeguards are in place. Even when the subject has given consent to
undergo any of these tests, the test results by themselves cannot be admitted as
evidence because the subject does not exercise conscious control over the
responses during the administration of the test. However, any information or
material that is subsequently discovered with the help of voluntary
administered test results can be admitted, in accordance with Section 27 of the
Evidence Act, 1872. The Supreme Court referred to the guidelines published by
The National Human Rights Commission for the Administration of Polygraph
Test (Lie detector Test) on an Accused' in 2000 which should be strictly adhered
to and similar safeguards should be adopted for conducting the "Narco analysis
technique" and the 'Brain Electrical Activation Profile' test. These guidelines
are as follows :-
( i) No Lie-Detector Tests should be administered except on the basis of
consent of the accused. An option should be given to the accused
whether he wishes to avail such test.
(ii) If the accused volunteers for a Lie-Detector Test, he should be given
access to a lawyer and the physical, emotional and legal implication of
such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have
agreed should be duly represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear terms
that the statement that is made shall not be a 'confessional' statement
to the Magistrate but will have the status of a statement made to the
police.
(vi) The Magistrate shall consider all factors relating to the detention
including the length of detention and the nature of the interrogation.
(vii) The actual recording of the Lie-Detector Test shall be done by an
independent agency (such as a hospital) and conducted in the presence
of a lawyer.
(viii) A ful) medical and factual narration of the manner of the information
received must be taken on record.
Track evidence.-The science of identification of footprints is no doubt a
rudimentary science and much reliance cannot be placed on the result of such
identification. The track evidence, however, can be relied upon as circumstances
which along with other circumstances would point to the identity of the
culprit, though by itself it would not be enough to carry conviction in the mind
of the court.1
I. Pntam Singh v. Stale of Punjab, AIR 1956 SC 415.
 392 EVIDENCE ACT
In Mohammad Aman v. Stat~ of Rajasthan,1 it was held by Supreme
Court that, it was unsafe to accept foot prints evidence when the sample foot
prints were not taken before Magistrate. This part of science of identification of
foot prints is not fully developed science and therefore in given case evidence
relating to the same is found satisfactory it may be used only to reinforce the
conclusion as to identify culprits already arrived at on basis of other evidence.
Conviction on basis of foot print is not proper.
Non-compliance of the direction of Court by the accused.-Non-
compliance of direction of the Court to the accused to give his foot prints, may
lead to adverse inference but it cannot be the sole basis of conviction.2
Value of expert evidence.-The real value of his (experts) evidence
consists in rightful inferences what he draws from what he himself observed
and not from what he merely surmises. Expert evidence is only piece of evidence
and weight to be given to it has to be judged along with other evidences of this
nature is ordinarily not conclusive. Such evidence therefore cannot be taken as
substantial piece of evidence unless corroborated by other evidence. The
testimony of expert is usually considered to be of slight value since they are
proverbially biased in favour of the side which calls them. So evidence of
expert should be approached with considerable caution specially where much
depends upon this evidence. The opinions of .xperts are not binding upon the
judge. The weights due to their testimony in a matter to be determined by the
judge, and it will be proportionate to the soundness of the reasons. A tribunal
should not accept the mere untested opinions of experts in preference to direct
and positive testimony as to fact.
Non-examination of expert in the court.-The opinion of an expert
will not be read into evidence unless he is examined before the court and is
subjected to cross-examination. An expert is not witness of fact. His evidence is
only of advisory character.
In State of Maharashtra v, Damu Gopinath Shinde,3 the Supreme Court
ruled that without examining the expert as witness in the court, no reliance can
be placed on expert evidence.
Non-examination of photographer.-ln a bank robbery, the lapse of
non-examination of photographer and non-production of negatives of
photographs of chance finger prints raised from entrance glass doors cannot
result in the acquittal of the accused. The criminal trials should not be made
calamity for such lapses in the investigation of prosecution.4
Opinion of medical experts.-For an expert opinion, the opinion must
be based on a person having special skill or knowledge in medical science which
could be admitted or denied. To admit it or to give how much weight to it is
within the domain of the Court. The evidence of expert should be interpreted
like any other evidence.5
1. AIR 1997 SC 2960.
2. State of U.P. !>. Sunil, AIR 2017 SC 2150 page 2154.
3. AlR 2000 SC 1691.
4. Ajay Kumar Singh v. Flag Officer, Commanding-In-Chief AIR 2017 SC 3528 p. 3534.
5. Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 1162 at p. 1178.
[S. 45
s. 45] OF THE REL[;V ANCY OF FACTS 393
Certificate of a doctor on a plain paper.-Certificate by doctor
regarding injuries caused to accused persons was rejected on the ground that they
were on plain piece of paper and not on printed form. It was held not proper
when it was shown that printed forms were in short supply in Government
Hospitals in the particular district.1
Medical evidence.-The opinion of a physician or a surgeon may be
admitted to show the physical condition of a man, the nature of a disease, the
nature of injuries and the weapons with which they were caused.
In Ram Sioaroop and others v. State of U.P.,2 it was held by Supreme
Court that doctor's evidence can never be absolutely certain on point of time so
far as duration of injuries are concerned.
The evidence of the doctor who has conducted post-mortem examination is
of sufficient weight but it does not mean that each and every statement made by
him should be accepted on its face value as compared to the statements found in
the text-books where the statements made by him are self-contradictory.3
Expert evidence and direct or ocular evidence
Medical evidence and ocular evidence-Appreciation of
evidence.-Where there is a conflict between the medical evidence and oral
testimony of witnesses, the evidence can be assessed only in two ways. A court
can either believe prosecution witness unreservedly and explain away the
conflict by holding that the witnesses have merely exaggerated incidence or
rely upon the medical evidence and approach the oral testimony with caution
testing it in the light of medical evidence. The first method can be applied only
in those cases where the oral evidence is above reproach and creates confidence
and there is no appreciable reason for the false implication of any accused.
Where the evidence is not of that character and the medical evidence is not
open to any doubt or suspicion, the only safe and judicial method of assessing
evidence is the second method.4 The medical evidence should be consistent with
oral evidence. If oral evidence is totally inconsistent with medical evidence,
the medical evidence is to be discarded.P
In Darshan Singh v. State of Haryana,6 the Supreme Court held that
whore there is inconsistency between eye witness on the point as to how the
injury was caused, the evidence of doctor cannot override unimpeachable
testimony of eye witness.
In S. Copula Reddy v. State of Andhra Pradesh/ the Supreme Court held
that an expert evidence is weak type of evidence. Courts do not consider it as
conclusive and therefore it is not safe to rely upon it without seeking
independent and reliable corroboration.
I. Am mini and others v. State of Kera la, AIR 1998 SC 260.
2. AIR 2000 SC 7a5.
3. Vi Jay Pal v. State (GNCT) of Delhi, AIR 2015 SC 1495 at p. 1500.
4. Thakur and others v. State, AIR 1955 All 189.
5. Wilayat Khan 1•. U.P. State, AIR 1953 SC 122; Lakshmi Singh ~- State of Bihar, 197!> ACC 372.
b. AIR 1997 SC 364.
7. AIR 1996 SC 218-1.
 394 EV ID EN C E A CT [S. 45
The Courts, normally, look expert evidence with a greater sense of
acceptability but the Courts are not absolutely guided by the report of the
experts, especially if such reports are perfunctory, unsustainable and are the
result of deliberate attempt to misdirect the prosecution. If the eye-witness
account is found credible and trustworthy, medical opinion pointing to
alternative possibilities is not correct. An expert report, if duly proved, has
evidentiary value but such appreciation has to be within the limitations
prescribed and with careful examination by the Court, A complete contradiction
or inconsistency between the medical evidence and the ocular evidence on the
one hand and the statement of prosecution witnesses between themselves on the
other, may result in seriously denting the case of the prosecution in its entirety
but not otherwise. So, when there were deliberate lapses in the report of the
investigating officer as well as in the post-mortem report prepared by the
Doctor, the consistent statement of the eye-witnesses which were fully
supported and corroborated by other witnesses, and investigation of the crime,
inquest report, recovery of the pagri of one of the accused from the place of
occurrence, immediate lodging of FIR and the deceased succumbing to his injuries
within a very short time, the Court justifiably relied on the eye-witnesses
evidence which was credible to do justice and to ensure that the accused did not
go scot-free.1
In case the eye-witness account is found tu credible and trustworthy, the
medical opinion suggesting an alternate possibility is not conclusive.2
In case of conflict between ocular evidence and the medical evidence,
ocular evidence shall be preferred to the medical evidence in case _ocular
evidence is acceptable, trustworthy and reliable then medical evidence shall
be preferred.3
In case of variance between medical evidence and ocular evidence, ocular'
evidence gets primacy but when there is total inconsistency, the evidence is
appreciated in different perspective by the Court and medical evidence
assumes importance while appreciating the evidence.4
In Shiuappa v. State of Karnataka,5 the doctor's opinion was that the
death occurred within 24 hours of the time of the post-mortem. The autopsy
took place between 12.30 p.m. and 2.30 p.m. whereas the incident of murder was
alleged to have taken place at about 8.30 p.m. on the previous day of autopsy.
The eye-witness stated that the incident had taken place at the time the food
had been prepared and the deceased had taken food at about 10 A.M. The
medical opinion was that semi-digested food was found in the stomach showing
that the deceased might have taken food four to five hours prior to his death.
The Supreme Court quoted Modi's Medical Jurisprudence, P. 185, that the food
contents remain for long hours in the stomach and duration thereof depends upon
various factors and held-
1. Dayal Smgh v. State of Uttaranchal, AIR 2012 SC 3046.
2. Ramkant Ra, v. Madan Rai, 2003 AIR SCW 5633 ; Sumi Dattatraya Vaskar v. State of
Maharashtra, AIR 2()()(J SC 210 at p. 214.
3. Malappa Siddappa Alakamur v. State of K...rnataka, AIR 2009 SC 2959 at p. 2963.
4. Kapildeo Mandal 11. State of Bihar, AIR 2008 SC 533 at pp. 537,538.
5. AIR zoos SC 1860 at p. 1863.
s. 45) OF THE RELEVANCY OF FACI'S 395
Medical opm10n is admissible in evidence like all other types cf
Pvidences. There is no hard and fast rule with regard •'l appreciation of
medical evidence. It is not to be treated as sacrosanct. The variation between
the medical evidence and the testimony of the eye witnesses is not such which
would lead to a conclusion that the prosecution case was not correct.
As observed by Dr. Arijit Pasayat, J.,
"A doctor is usually confronted with such questions regarding different
possibilities or probabilities of causing injuries or post-mortem features which
he noticed in the medical report may express his views one way or the other
depending upon the manner the question was asked. But the answers given by
witnesses to such questions need not become the last word on such possibilities.
After all, he gives only his opinion regarding such questions. But to discard the
testimony of an eye-witness simply on the strength of such opinion expressed by
the medical witness is not conducive to the administration of criminal justice."!
In Ganesh K. Gulve v. Stall! of Malzarashtra,2 there was no mention of
certain injuries in postmortem report that the dead body was dragged by
accused person. Postmortem report did not speak of injuries on back of deceased.
Injuries on back of deceased were however mentioned in inquest Panchnama. It
was held by the Supreme Court that theory of dragging of the bodies could not
be discarded only on account of non-mention of injuries on back of bodies in the
post mortem report.
ln the circumstances of the case the court can refuse to place any reliance on
the opinion of an expert which is not supported by any reason.'
It may be that normally it is not safe to treat expert evidence as to
handwriting as sufficient basis for conviction. It may be, however, relied upon
along with other various items of external and internal evidence relating to the
document in question.4
Where ocular evidence is found to be trustworthy, medical evidence
pointing to the alternative possibility is not accepted as conclusive. It is
erroneous to accord undue privacy to the hypothetical answers of medical
witnesses to exclude the eye witnesses' account which has to be tested
independently and not treated as "variable" keeping the medical evidence as
the constant.f
Where the eye-witness stated that the accused had fired only once from
his double barrel gun but the medical evidence showed that the deceased had
suffered multiple gun shot injuries, there was no inconsistency as multiple
injuries could be caused by double barreled-gun."
l. R.1m Swaroop 11. State of Rajasthan, AIR 20011 SC 1747 at p. 1749; Mange 11. State of Haryana,
1979 (4) SCC 349; State uf U.P. 11. Krishna Gopal, AIR 1988 SC 2154; Ram Dev v. State of U.P.,
1995 Supp (1) SCC 547; State of U.P. v. Harbans Sahai, 1991! (6) SCC 50 and Ramanand Yadav
v. Prabhu Nath Iha, 2003 (12) SCC 606 referred to.
2. AIR 2002 SC 3068.
3. Ha11 Old Eovamulha v. State ot W.B., AIR 1959 SC 488.
4. Ram Chandra P. State ot U.P., AIR 1957 SC 4111
5. Chhotanney v. State oi LJ.P., AIR 2009 SC 2013 at 2014
b. Om Pal Singh v. State uf U.P., AIR 2011 SC 1562 at pp. 1566, 1567.
396 EV1 DENCE ACT [S. 45
Unless the oral evidence totally irreconcilable with medical evidences
the oral evidence would have primacy. In the event of contradiction between
ocular evidence and medical evidence, the ocular evidence will have greater
evidentiary value vis-a-vis medical evidence and when medical evidence
makes the oral evidence improbable, the same becomes a relevant factor in the
process of evaluation of such evidence. When the medical evidence completely
rules out all possibilities of the ocular evidence being true at all, that the
ocular evidence is liable to be disbelieved.'
In Karia v. State of Rajasthan,2 the question involved was of a clear
conflict between the medical and the ocular evidence in relation to the manner
in which the injuries were inflicted and consequences thereof. According to
medical report out of 15 injuries on the deceased all were simple except two
which were caused by blunt object. The doctor who conducted autopsy testified
that the cause of death was as a result of injuries to both the lungs and the
pleural cavity being full of blood which caused pressure on the neck causing the
deceased to suffocate. It was contended that according to P.W. 3 and P.W. 15 axe
and kosh were used for inflicting injuries upon the deceased, while according to
the post mortem report, all the injuries were caused with blunt weapons and
there was no bleeding injury. Further more, the question of collecting blood from
the dahli of the accused did not arise as per the version given by the eye
witness and therefore there were serious holes in the case of the prosecution.
Fifteen persons had attacked the deceased. The Court held that when large
number of persons attack one person, the witnesses cannot be expected to explain
the role in the inflicting of injuries by each one of them individually and the
weapon used. Such conduct would be opposed to the normal conduct of human
being. The fear for his own life and the anxiety to save the victim would be so
high and bothersome to the witness that it will not only be unfair but also
unfortunate to expect such a witness to speak with precision with regard to
injuries inflicted on the body of the deceased and the role attributable to each
of the accused individually. From the post-mortem report, the result of the
blunt injuries was evidence. The ribs of the deceased were broken and they had
punctured the lungs. The pleural cavities were hill of blood and the body of the
deceased was dragged causing injuries on his back. In these circumstances some
blood would naturally ooze out of the body of the deceased and his clothes
would be blood stained. The post mortem report, the inquest report, the
statements of witnesses are in line with each other and there is no noticeable
conflict between them. The injuries on the body of the deceased were so severe
that they alone could be the cause of death and the statement of P.W. 6 in
relation to cause of death is definite and certain.3
Re~arding the credibility of eye-witness, the Court, referred to Krishnan
v. State, in which it held- "It is trite that where the eye-witnesses account is
found credible and trustworthy, medical opinion pointing to alternative
possibilities is not accepted as conclusive. Witnesses, as Bentham said, are eyes
I. Darbara Singh 11• State of Punjab, AIR 2013 SC 840 at p. 843.
2. AIR 2013 SC 1085
3. K,,ri.i u. State ol Ra1asthan, AIR 2013 SC 1085 at p. 1093.
4 AU<. 200) SC' 2'J78. . 5
s. 45) OF IBE RELEVANCY OF FACTS 397
and ears of justice. Eye-witnesses account would require a careful independent
assessment and evaluation for its credibility which should not be adversely
prejudged making any other evidence, including medical evidence, as the sole
touchstone for the test of such credibility".
The ocular evidence should be accepted unless it is completely negated by
the medical evidence. So where the ocular evidence undoubtedly showed that
the deceased was fired at by the appellant but in view of unchallenged
testimony of the doctor, it was quite clear that the gun-shot did not hit the
deceased and the cause of death was cumulative injuries caused to the deceased
by the accused persons.1
Where the eye-witness is found to be credible and trustworthy, the
medical opinion pointing to alternative possibilities will not prevail.2
Unless the medical evidence in its tum goes so far that it completely rules
out possibility whatsoever of injuries taking place in the manner alleged by
eye-witnesses, the testimony of eye-witnesses cannot be thrown out on the
ground of alleged inconsistency between it and medical evidence. It is erroneous
to give undue primacy to the hypothetical answers of medical witnesses to
exclude the eye-witnesses account which are to be tested independently and not
treated as variable keeping the medical evidence as the constant. If the eye-
witnesses' account is credible and trustworthy, medical otnion pointing to the
alternative possibilities cannot be accepted as conclusive.
In State of Punjab v. Bittu,4 the allegation was that the accused persons
threw deceased on the floor and placed a big stone on his chest, removed his
clothes and stuffed his mouth with soil but the evidence of the doctor who did
medical examination of the deceased did not establish the injuries caused to
the deceased by a heavy stone kept on the chest. If the incident had occurred in
the manner as stated aforesaid in the F.l.R., sufficient quantity of soil should
have been found in the mouth of the deceased but the doctor testified that no
soil was found in the mouth of the deceased. The medical evidence did not
support the prosecution case. The testimony of eye-witnesses were highly
doubtful and did not inspire confidence. The conviction of the accused was held
not proper.
In Dharam Pal v. State of Haryana,5 the eye-witness P.W.-6, a pillion
rider on the scooter of the deceased, stated that the accused persons A-1 and A-
2, the two constables and A-3, a Sarpanch coming from the opposite side of the
road on a motor bike, with the intention to commit robbery, signalled the
I. Basti Ram v. State uf Rajasthan, 201-l Cri LJ 1761 (SC) ; Also see Cangabhawan] 1•. R.1japati
Venkat Reddy, AIR 2013 SC 3681 ; Abul Sayeed v. State of M.P., (2010) 10 SCC 259; State of
Haryana t•. Bhagtrath, AIR 1m SC 2005; Solanki Chimanbhai Ukabhai o. State of Gujarat, AJR
I 983 SC -18-l.
2. G.1ngabhavani v. Rajapati Vcnkat Reddy. AIR 2013 SC 3681 at pp. 3686 , 3687.
3. V11ay P.-il 1•. Stille (CNCT) of Delhi, AIR 2015 SC 1495 at pp. 1500, 1501; Solanki Chirnanbhai
Ukabhai 11 State of Cujarat, AIR 1983 SC 48-1; State of Haryana u. Ram Singh, AIR 2002 SC o20;
Mohd, Zalud t'. State of Tamil Nadu, AIR 1979 SC 2-llo and Abul Sayeed v. State of M.P., AlR
2lll I SC (Cri) 9/w reterre...1 to
4. All{ 2010 SC I-lb p. 15U.
AIK 2017 SC 3720 p. 3725.
398 EVIDENCE ACT [S. 45 s. 461 Of THE RELEVANCY OF FACT'S 399

deceased to stop who was on a scooter but he did not stop. The accused turned though available. The Calcutta High Court held that discarding the evidence
the motor-bike and as soon as they came paralled to the scooter of deceased, of defendant regarding attestation and execution of document in question was not
A-2 gave a blow on the head of the deceased with a butt of his rifle. The proper. The Calcutta High Court propounded the rule that evidence of expert
deceased fell down from the scooter and became unconscious. A-1 to A-3 got down cannot outweigh direct evidence.
from the motor bike and finding the deceased unconscious dragged him to nearby
bushes. His scooter was dumped at a distance on the side of the road. Distinction between Expert witness and Ocular witness
Thereafter, he was unaware about the events that took place. P.W. 6 was
Expert witness Ocular witness
spared on pleading mercy and on the condition that he would not reveal the
incident to anyone but he was taken to the Police Station and detained for five 1. Expert witness gives evidence of 1. Ocular witness, is witness of fact
his opinion. and gives evidence of those facts
days.. According to medical opinion, the death was due to asphyxia which
which are under enquiry.
might have been caused by obstruction of air into the mouth and nose due to a
cloth/pillow being put on the nostrils or mouth. The Court held that there was 2. The expert supports his evidence 2. Ocular witness is witness of fact
no violation between the oral and medical evidence. by the experiments which has and is available to opposite
been performed by him in absence party for testing veracity.
The post-mortem report stated that the injuries found on the deceased of opposite party.
were all cut injuries and could have been caused by cutting weapons like an
aruval and not by knives. P.W.-1 stated that she saw the accused persons 3. The expert gives the rules and 3. Ocular witness gives evidence of
attacking the deceased with knife like weapons. The question was regarding reasons which supports his what he has perceived by his
opinion. He may site text book of senses.
the weapon of murder stated by the witness not conforming to the post-mortem
accredited authority in support of
report. A knife is essentially used for stabbing but it can also be used for slicing
his opinion and may refresh his
and cutting depending upon the manner and angle at which it is used. Since the memory by reference to them.
post-mortem report stated that most of the wounds were deep wounds, the Court
held that the same could be caused by a knife and to this extent the statement 4. Expert opinion is to assist the 4. Ocular evidence is a witness of
of P.W. 1 was corroborated by the medical testimony.1 Court and is merely of advisory fact and prevails upon expert
character. opinion.1
In the instant case of murder, the doctor stated that at the time the
deceased sustained bullet injury, he might have been in a standing position and SECTION 2[45A.-Opinion of Examiner of Electronic Evidence.-
the bullet would have entered from the left side and exited from the right side When in a proceeding, the Court has to form an opinion on any matter
of the body but the evidence of eye-witness was contradictory as to the distance relating to any information transmitted or stored in any computer
and height of the assaulter and whether the deceased was standing on the resource or any other electronic or digital form, the opinion of the
platform (Chabutara) or came down from it while receiving bullet injury. The Examiner of Electronic Evidence referred to in Section 79A of the
contradictions made prosecution story unreliable. Regarding the contradictions Information Technology Act, 2000 is a relevant fact.
between medical evidence and the ocular testimony, the Court held-the ocular Explnnntion.-For the purposes of this section, an Examiner of
testimony of a witness has greater evidentiary value vis-a-vis medical Electronic Evidence shall be an expert].
evidence but when medical evidence makes the ocular testimony improbable
that becomes a relevant factor in the process of evaluation of evidence. SECTION 46.-Facts bearing upon opinions of experts.-Facts, not
However, where the medical evidence goes far that it completely rules out all otherwise relevant, are relevant if they support or arc inconsistent
possibility of the ocular evidence being true, the ocular evidence may be with the opinion of experts, when such opinions are relevant.
disbelieved.I Illustrations
Evidence of handwriting expert and direct evidence.-ln Dula/ (a) 11,e question is, whether A was poisoned by certain poison.
Chandra Adak and others v. Gunadhar Patra & others,3 relief claimed was for
The fact that other persons, who wer · poisoned by that poison, exhibited
declaration that gift deed in question was forged and fabricated document. The
certain symptoms which experts affirm or deny to be the symptoms of that
lower court declared the document as forged one relying the finger print expert.
poison, is relevant,
The court did not take into account the other evidence and direct oral evidence
-- ------- -------
Vi,hnu 1, State of Maharashtra, (2006) I SCC 283. The uprruon of M ..>J,cal Offi~r as to ag.o
1. Sheikh Sintha Madhar ahas )affar ahas Sintha v. State By Inspector of Police, AIR 2016 SC 1844
though suppcrted t>y scientific 1,,,1, cannot override the fact about .igt! given by fatl111r .inJ
p. 1848. tltulht.!r
2. Mahavir Singh v. State of M.P., AIR 2017 SC 5231 pp. 5237, 5238. Also see Abdul Sayeed v. State
~ction -ISA inserted by th" Intonuatron Iechnology (Amendment) Act, 2008 (Act No. Ill at
of M.P., (2010} 10 SCC 259.
2UU9J, Section 52 \l>l (w.e.t, 27.J(l.200:/).
3. A1R 1998 Cal 150.
.ioo EVIDENCE ACT [S. 47
(b) The question is, whether an obstruction to a harbour is caused by a
certain sea-wall.
The fact that other harbours similarly situated in other respects, but
where there were no such sea-walls began to be obstructed at about the same
time, is relevant.
COMMENTS
Sufficient weightage should be given to the doctor who had conducted the
post-mortem as compared to the statement found in text book. But giving
weightage does not ipso facto mean that each and every statement made by
medical witness should be excepted on its face value where it is self
contradictory .1
The credibilty of expert witness depends upon reasons stated in support of
his conclusions but the data and materials furnished which form the basis of
his condusion.-2
In Mohd. Jahid v. State of Tamil Nadu,3 is an important case on this
point. In this case the credibility of doctors' opinion conducting post mortem vis-
a-vis statement found in text book was compared. The prosecution made
suggestion to the doctor on basis of statement found in authoritative text book.
The doctor disagreed with the statement of authoritative text book without
giving any reasons. No other authority was produced in support of opinion. The
Evidence of doctor was self contradictory regarding her opinion about cause of
death of victim, cannot be relied.
S ECTION 47.-0pinion as to handwriting, when relevant.-When
the court has to form an opinion as to the person by whom any
document was written or signed the opinion of any person acquainted
with the handwriting of the person by whom it is supposed to be written
or signed, that it was or was not written or signed by that person, is a
relevant fact.
Explanntion.-A person is said to be acquainted with the
handwriting of another person when he has seen that person write, or
when he has received documents purporting to be written by that person
in answer to documents written by himself or under his authority and
addressed to that person, or when, in the ordinary course of business,
documents purporting to be written by that person have been habitually
submitted to him.
Illustration
The question is, whether a given letter is in the handwriting of A, a
merchant in London.
8 is a merchant in Calcutta, who has written letters addressed to A and
received letters purporting to be written by him. C is B's clerk, whose duty it
was to examine and file B's correspondence. D is B's broker, to whom B
I. Mohd. jahid v. State of Tamil Nadu, AIR 19'J9 SC 2416.
2. AIR 1999 SC 3318.
J. AIR 1999 SC 2416.
s. 47] OF THE RELEVANCY OF FACTS 401
habitually submitted the letters purporting to be written by A for the purpose
of advising with him thereon.
The opinions of 8, C, and D on the question whether the letter is in the
handwriting of A are relevant, though neither H, C nor D ever saw A write.
Proof of handwriting
Proof of handwriting by a person acquainted with the writing of
the writer.-Under Section 47 the authorship of a writing may be proved by
the opinion of a witness who is familiar with writing of a person who is said to
have written a particular docurnent.! But before such evidence is admitted the
witness must prove that he is acquainted with the writing of the person
concerned. TI,e opinion evidence is hearsay and the evidence under Section 47
becomes relevant only when the witness has spoken to his familiarity with the
handwriting of the person concemed.2
The main part of Section 47 is intended to apply to those cases where the
disputed signatures or writings are not written in the presence of the persons
appearing to prove them, who although have not seen the person writing the
disputed signature, are competent to recognise writing on account of their
familiarity and acquaintance with the character of the writing of the person
concemed.3
In Bal Krishna Das Agrawal v. Radha Devi and others,4 it was held that
report of hand-writing expert would not be admissible in evidence in absence of
formal proof and examining the expert.
In Allauddin v. Shishir Kumar Dntta,5 it was held that in order to prove
the hand-writing the opinion of a hand-writing expert and opinion of a person
who has become acquainted with hand-writing in question is received under
Sections 45 and 47 respectively. Both under ~ctions 45 and 47 the opinion is
only a piece of evidence and opinion about hand-writing is not conclusive but it
should not be avoided presuming it to be useless. There is no rule which denies
the right of judge to make comparison of the hand-writing in question with
admitted hand-writing. The opinion of court is also not conclusive. There is a
chance of mistake also. So the court should neither be hasty to base the decision
on his opinion nor the court hesitate to arrive at decision and the court can use
its own opinion to arrive at decision if its opinion is corroborative with decision
of other hand-writing expert.
The proof of the genuineness of a document is proof of the authorship of
the document and is a proof of fact like that of any other fact. The evidence
relating thereto may be direct or circumstantial. It may consist of direct
evidence of a person who saw the document being written or the signature being
affixed. It may be proof of the handwriting of the contents or of the signature,
by one of the muuts provided in Sections 45 or 47 of the Act. It may also be
1. Fakiruddm v. State of M.P., AIR 1967 SC JJ2t\.
2. Mubark Ali Ahmau v. Stc1te of Bombay, AIR 1957 SC 857.
3. GU]a Prasad v. Sardar Labh Singh, AIR 1977 Patna 241.
4. AIR 1989 Alt. 133.
5. AIR 1989 Gau. 42.
402 EVIDENCE ACT
proved by actual evidence afforded by the contents of the document. This last
mode o( proof by the contents may be of considerable value where the disputed
document purports to be a link in a chain of correspondence, some links of which
are proved to the satisfaction of the court. ln such a situation the person who is
a recipient of the document, be it either a letter or a telegram, would be in
reasonably good position both with reference to his prior knowledge of the
writing or signature of the alleged sender limited though it may be, as also his
knowledge of the subject-matter of the chain of correspondence to speak to his
authorship.1
Evidentiary value of.- Sections 45 and 47 of Evidence Act prescribe the
method in which signatures can be proved. Under Section 45 the opinion of the
handwriting experts is relevant while under Section 47 opinion of any person
acquainted with the handwriting of the person who is alleged tc have signed
the document is admissible. This is, therefore, the manner in which the alleged
signature of a person can be proved but even assuming that the signature of the
person could be legally held to be proved on circumstantial evidence, the
principle which governs the appreciation of such circumstantial evidence, in
case of this kind cannot be ignored. It is only if the court is satisfied that the
evidence irresistibly leads to the inference that the person must have
signed the document in question that the court can legitimately reach a
conclusion.2
Statement of person in whose presence document written.-
Section 47 does not cover the statement of a person who deposes that writing or
signature in dispute was written in his presence. But such statements are
relevant to prove a writing. The plaintiff stated that the defendant signed the
credit memos in his presence. The statement was held to be relevant.3
ECTION 47-A.-4[0pinion as to electronic signature when
S relevant.-When the court has to .form an opinion as to the
5[electronic signature] of any person, the opinion of the Certifying
Authority which has issued the 6[Electronic Signature Certificate] is a
relevant fact.J
S ECTION 48.-0pinion as to existence of right or custom, when
relevant.-When the court has to form an opinion as to the existence
of any general custom or right, the opinions, as to the existence of such
custom or right, of persons who would be likely to know of its existence if
it existed, are relevant.
Explnnatio11.-The expression 'general custom or right' includes
customs or rights common to any considerable class of persons.
I. Rahim Khan 11• Khursheed Ahmed, AIR 1975 SC 290.
2. Babu Ram 1•. Shrimali Parsanni, AJR 1959 SC 93.
3. Girj,1 l'rnsad v. Sardar Labh Singh, AIR 19n Pat 241.
-I. lus. by Information Technology Act, 2000 (Act No. 21 of 2000), S. 92 and Sch. 11.
5. Subs. for "digital signature" by Information Technology (Amendment) Act, 2008 (Act No. 10 of
2lJl)'J), Sec. 5:?(c) (I) (w.e.I. 27.10.2009).
t,. S· '1s. for "Digit.11 Signature Certificate" i,y 1b1d., Sec. 52 (c) (ii) (w.e.f. 27.10.2009).
[S. 47-A
~- 50) OF THE RELEVANCY OF FACI"S 403
Illustrations
The right of the villagers of a particular village to use the water or a
particular well is a general right within the meaning of this section.
COMMENTS
Scope.-Section 13 applies to all rights and customs, public, general and
private and refers to specific facts which may be given in evidence. Section 32
clause (4) refers to the reception of second-hand opinion evidence in case in
which the declarant cannot be brought before the court, whether in consequence
of death or due to some other cause, upon the question of the existence of any
public right or custom or matter of public or general interest made ante litam
mortam; and the seventh clause of Section 32 refers to statement contained in
certain documents. The present section also deals with opinion evidence, but it
refers to the evidence of living person examined before the court.
It is clear that only the persons who are likely to know about the custom in
question are competent to give opinion evidence contemplated by this section. It
is absolutely necessary for the person that he should have personal knowledge
about the facts to be proved. But it must prove that his opinion is based on some
information.1
SECTION 49.-0pinions as to usages, tenets, etc., when relevant.-
When the court has to form an opinion as to.-
the usages and tenets of any body of men or family,
the constitution and government of any religious or charitable
foundation, or
the meaning of words or terms used in particular district or by
particular classes of people,
the opinions of persons having special means of knowledge thereon,
are relevant facts.
COMMENT
Scope.-When the court has to form an opinion about the matters,
referred to in the section ; the opinion of persons having special means of
knowledge thereon is relevant. These matters can only be proved by persons
having special means of knowledge.
SECTION 50.-0pinion on relationship, when relevant.-When the
Court has to form an opinion as to the relationship of one person to
another, the opinion, expressed by conduct, as to the existence of such
relationship, of any person who, as a member of the family or otherwise,
has special means of knowledge on the subject, is a relevant fact :
Provided that such opinion shall not be sufficient to prove a
marriage in proceedings under the Indian Divorce Act (IV of 1869), or in
pn,secutions under Sections 494, 495, 497 or 498 of the Indian Penal
Code (XL V of 1860).
l. Bnjlal v V.M. Chandra Prabha, AlR 1971 Guj 188.

404 EVIDENCE ACT [S. SO
Illustrations
(a) The question is, whether A and 8, were married.
The fact that they were usually received and treated by their friends as
husband and wife, is relevant. · such relationship of any person who has special means of knowledge on the
(b) The question is, whether A was the legitimate son of B. The fact that
A was always treated as such by members of the family, is relevant.
COMMENTS
Scope.-Section 32, Clause (5) and Clause (6) make provision for proving
relationship. Under that section the statements of dead persons having special
means of relationship are admissible. Under Section 50 the opinion of a person
alive is relevant regarding the relationship of one person to another. The
person having special means of knowledge may be testify before the court and
State. Under Section 50 such opinion may also be expressed by conduct. Let us
take an example. The question is whether Bis son of A. One P appears before
the court and states that B is the son of A. This statement is not admissible
under Section 32 as under that section statements of dead persons are relevant. It
is not admissible under Section 50 because Section 50 needs opinion expressed by
conduct of a person having special means of knowledge. Now suppose P states
that A is his uncle; both of them live in one and the same house; B has been
living with A since his birth ; B has been brought up by A as son. B addresses 4
as father. In this statement P has special means of knowledge and has also
given the conduct and so it is admissible under Section 50.
It is very important to note that Evidence Act does not contain any express
provision making evidence of general reputation admissible as proof of
relationship. A was the father of C and V is the father of R as stated by
witnesses was held not admission under Section 50.1
In order to make an evidence admissible under this section : (1) the
witness must show that he had special means of knowledge to the relationship;
(2) and he must place before the court the conduct of those persons, about whose
relationship he deposes.
In ihe above example if the witness says, A 1·•. 1s his friend, they lived in
the neighbourhood for long, A treated C as his son, C addressed A as father, his
evidence becomes admissible.
Under Section 50 the person whose opinion is sought to be given in evidence
must be proved to have special means of knowledge on the subject; (2) the
opinion conduct alone can be given in evidence; (3) from the conduct, the court is
to judge about the relationship.2
In order to admit the evidence under Section 50 three conditions must be
fulfilled: (1) the personmust be proved to have special means of knowledge;
(a) the opinion alone is evidence, (b) the opinion as expressed by conduct only is
evidence ; or in other words, conduct only can be given in evidence, from the
I. Rokham Lakshmi u. Rokharn Venkata, AJR 1937 PC 201.
2. Chandu Lill v. Khalemonncsia, AIR 1948 Cal 76.
5. 51) OF THE RELEVANCY OF FACI'S 405
conduct given in evidence the court is to see whether it is a result of an opinion
held by the person ; (2) the opinion which is relevant must be one as to the
existence of the relationship.
Under Section 50 when the court has to form an opinion as to relationship
of one person to another, the opinion expressed by conduct as to the existence of
subject of that relationship if any is ·a relevant fact. The conduct must be proved
in the manner laid down in Section 60, if the conduct relates to something which
can be seen, it must be proved by a person who saw it if it is something which
can be heard, then it must be proved by the p~rson who heard it and so on.1
The opinion must be of a member of the family or an outsider. It is enough
if he has special means of knowledge.2 A person who, although not a member of
the family, has special means of knowledge about the relationship of the
parties, can speak in the witness-box of what he has been told and what he has
learnt about relationship of the parties provided what he ~ays is an expression
of his own independent opinion.3
A man and a woman were living together for long time and they were not
only known as husband and wife by the neighbours but also by their relations. In
addition to this there was sufficient evidence that the man and woman had got
married according to social customs. In these circumstances, there must be
presumption that they were husband and wife and the opinions of neighbour
would be relevant under Section 50 of Evidence Act and the presumption would
be under Section 114 of Evidence Act.4 Where there was no docum entary
evidence to show that the women whose legal representatives were claiming
shares in the land, were the daughters of the land owner, oral evidence of an
old co-villager was not. sufficient to _infer their relationship particularily
because he had no relationship with the family of the owner of the Iand.5
Burden of proof.-In case of proof of marriage, the burden is on the
person who denies it.6
Proviso.-The section provides an exception to the admissibility of
evidence by conduct. It lays down that in the cases under Sections 494, 495, 497
and 498 of IPC and a proceeding under Divorce Act, the evidence of marriage
cannot be given by opinion of an expert. In these cases strict proof of marriage is
necessary. In such case witnesses in whose presence the marriage was celebrated
must be produced.
S ECTION 51.-Grounds of opinion, when relevant.-Whether the
opinion of any living person is relevant the grounds on which such
opinion is based are also relevant.
1. Dalgovind v. Nimai Charan, AIR 1959SC 914.
2. Ram Adhar v. [anki, AIR 1956 Pat 49.
3. Sita Ji v. Bijendra Narayan, AIR 1954 SC 601 ; Dalgovind u. Nimai Charan, AIR 1959 SC 91,l; Bal
Kam v. Iayakrishna, AIR 1972 Ori. 141.
4. Khagcshwar Naik u. Damuni Bewa, AIR 1989 Ori. 10.
5. Sankhali Dhal v. N1lmam De1, AIR 1994 Ori. 298.
b. Dhannulal v. Ganeshrarn, AIR 2015 SC 23112 p. 2385.
 400 EVIDENCE ACT
Illustration
An expert may give an account of experiments performed by him for the
purpose of forming his opinion.
COMMENT
Scope.-The opinion of an expert by itself may be relevant, but would
carry little weight with a court unless it is supported by a clear statement of
what he noticed and upon what he based his opinion.
CHARACTER WHEN RELEVANT
S
ECTION 52.-ln civil cases character to prove conduct imputed,
irrelevant-In civil cases, the fact that the character of any person
concerned is such as to render probable or improbable any conduct
imputed to him, is irrelevant, except in so far as such character appears
from facts otherwise relevant.
COMMENTS
Character-Meaning of.-"Character is a combination of quality
distinguishing a person, the individuality of which is the product of nature,
habits and environment". "Is a man honest, is he good-natured, is he of a
violent temper, is he modest and retiring or imprudent and forward. These all
constitute traits of character". Although strictly speaking character is to be
distinguished from reputation, yet reputation is more commonly considered as
having reference to the dispositions or character of a person. Thus it is said of a
person that he bears a good reputation meaning that the person in question has
reputation for being a person of good character. The explanation to Section 55
defines character as including reputation and general disposition both. · · In· civil cases the evidence of character is generally inadmissible unless
Relevancy of character in civil cases.-It may be laid down as a
general rule that in civil action evidence of character of any person concerned (a
party to a suit) is not admissible for the purpose of raising an inference as to his
conduct. In other words, that a party did or did not act may not be established
in civil actions, by showing that his character is such as to pre-dispose him to
one course or to the other. So the exclusion of evidence of character of a party as
a basis of inference as to his conduct is practically absolute in civil cases. If a
man is sued for breaking his promise or for wrongful detaining of another's goods
or selling an article inferior to the sample, evidence cannot be given that it was
likely for him to do from his disposition and reputation. A files a suit against B
for possession of a house alleging that he (B) has taken forcible possession of it.
In this A cannot lead evidence about B's character to show that it was likely
for him to trespass.
Whe··e the contention that certain pronotes had been obtained from the
insolvent while he was under the influence of drink has been found to be
baseless, rr ere general bad character of the insolvent would be quite irrelevant
in a civil ca se to prove want of consideration.!
l. Abdul Shakur 11. Kotwaleshwar, AIR 1958 All. 54.
[S. 52
s. 53) OF 11fE RELEVANCY OF FACTS 407
Character admissible in civil cases.-There are certainly cases in
which character is a fact in issue or a relevant fact, e.g., in a suit for libel, if
the libel consisted in attributing bad qualities, to the plaintiff and the
defendant justifies the existence of these qualities, this would be a fact in issue
and evidence of character may be led. The character of a female chastity has
been received in evidence in action for breach of promise for marriage.
Person concerned.-The term 'person concerned' in this section refers to
the character of the parties to the suit and not to character of witnesses.
Except in so far as character appears from facts otherwise
relevant.-Though no evidence can be given as to character of a party to a suit,
the Court may form its own conclusion as to the character of a party to a suit as
exhibited from by the relevant facts proved in the case, and the Court is
competent to draw, from the opinion it has so formed about the character of a
party,.an.inference that he might probably have been guilty of the conduct
imputed to him or that he might not be worthy of credit. A files a suit against B
alleging that he (A) and not B is the elected president of a college and praying
that B should be stopped from managing the affairs 9f the college and he (B)
should be ordered to hand over the papers relating to the college to him (A). B
contends that he is the elected president. At trial the proceeding book, register
of members and many other papen: are proved as relevant documents. These
papers were produced from the custody of A. In these papers, it is found
that there are a number of over-writings, interpolations and forgeries
appearing to be made by A. The Court can form an opinion from this evidence
about the character of A and from that it may conclude that A is unworthy of
credit.·
the character is of the substance in issue.1
SECTION 53.-ln criminal cases previous good character relevant.-
In criminal proceedings, the fact that the person accused is of a good
character, is relevant.
COMMENTS
Principle.-The principle upon which good character may be proved is
that it affords a presumption against the commission of crime. This
presumption arises from the improbability that a. man who has uniformly
pursued an honest and upright course of conduct will depart from it and do an ad
so inconsistent with it. In criminal inquiries the case is different (from civil
cases). There is a broad line between crime and innocence, and when the question
is whether a man has committed an ofence, or not, his character becomes a
material consideration, sometimes it becomes conclusive. Suppose for instance
that a murder is committed under such circumstances that one of two persons
must be the murderer: one of them is a habitual robber, notorious, of civil life,
of ferocious disposition, of lawless habits : the other is a person of refinement,
delicacy and saintliness. Who can doubt that in such a case the character of the
1. L. Jagannath v. Ram Chandra, A1R 1252 All. 408.
408 EVIDENCE ACT [S. 53-A
person concerned is a main element in consideration of the element of innocence
or guilt. Evidence of good character is accordingly always admissible.
In criminal proceedings a man's character is often a matter of. importance
in explaining his conduct and in judging his innocence or criminality.1
The allegation against the accused was that he was acting in pursuance of
the policy of the ittehn d-ul-Muslameen, that his state of mind was to
exterminate the Hindus. It was held that the accused was entitled to lead
evidence to show that he did not possess that state of mind.
When the accused in a bribery ·case pleads and produces evidence of good
character, which the court regards as satisfactory, it must be taken in
consideration to decide whether the guilt is proved beyond reasonable doubt.2
But in any case the character evidence is a very weak evidence ; it cannot
outweigh the positive evidence in regard' to the guilt of a person. It may be
useful in doubtful cases to tilt the balance in favour ot the accused.3
SECTION 53-A.-Evidence of character or
experience not relevant in certain cases.- [In a prosecution for an
4
offence under Section 354, Section 354-A, Section 354-B, Section 354-C,
previous sexual
Section 354-D, Section 376, 5[Section 376-A~ Section 376-AB, Section
376-B, Section 376-C, Section 376-D, Sec!"i~:· 376-DA, Section 376-DB]
or Section 376-E of the Indian Penal Code (45 of 1860) or for attempt to
commit any such offence, where the question of consent is in issue,
evidence of the character of the victim or of such person's previous sexual
experience with any person shall not be relevant on the issue of such
consent or the quality of consent.]
SECTION
reply.-In
54.-Previous bad character not relevant, except in
is
criminal proceedings the fact that the accused person has a
bad character irrelevant, unless evidence has been given that he has a
good character, in which case it becomes relevant.
Explanation 1.-This section does not apply to cases in which the
bad character of any person is itself a fact in issue.
Explanation 2.-A previous conviction is relevant as evidence of bad
character.
COMMENTS
Previous bad character.-lt has been seen in the preceding lines that
the general evidence of good character of the accused is always relevant. This
is not so with regard to general evidence of bad character. In criminal
proceeding the fact that the accused person has a bad character is irrelevant
and cannot be proved.
When the previous bad character is relevant.-The previous bad
character of the accused in criminal cases is relevant in the following
circumstances :
1. I lubib Muhammad v. State of Hyderabad, AIR 1954 SC 59.
2. Emperor 11. Khurshid Hussain, AIR 1947 LAh 410.
3. Bhngwan Swarup v. Stile of Maharashtra, AIR 1965 SC 682.
4. Ins. by the Criminal Law (Amendment) Act, 2013, Section 25 (w.e.f. 3.2.2013).
5. Subs. by the Criminal Law (Amendment) Act, 2018 (22 of 2018) S. 8, for the words, figures and
letters "Section 376A, Section 376-B, Section 376-C, Section 376-D" (w.e.f. 21-04-2018).
s. 55] OF THE RELEVANCY OF FACTS 409
(1) When the .accused has adduced evidence that he has been of good
character, the prosecution can lead evidence to the effect that he has been a
bad character.
(2) Where the bad character of the accused itself is a fact in issue the
evidence of bad character of the accused may be given. Under Section 110,
Cr. P.C. a person is to be bound down if he is by habit a robber, a house-breaker
or is so desperate and dangerous as to render his being at large hazardous. In an
enquiry under Section 110, Cr.P.C., the very character of the accused is in
question and so the evidence to_ that effect is admissible.
The evidence that the accused had committed similar criminal acts
previously is admissible upon the issue to decide whether the act was
intentional or accidental.! · .
If the evidence of bad character is introduced in order to establish a
relevant fact which cannot be proved separately the evidence of bad character
is admissible.I
(3) Where the previous conviction is relevant as evidence of bad
character, evidence of bad character is relevant. Under Section 71, I.P.C. if it is
proved that a person is a previous convict he shall be sentenced to much longer
term of imprisonment than would ordinarily have been awarded to him. Under
such circumstances the previous conviction of the accused will be proved.
On the trial of a prisoner for wounding a constable who had arrested him
on suspicion of felony, the counsel for the prosecution asked the constable "what
do you know has been the prisoner's previous character". It was held that the
answer of the constable was not admissible in evidence.
A person is prosecuted for theft, evidence is sought to be produced to prove
that the accused is a bad character and has been suspected of theft and other
similar offences on several occasions in the past. It was held that this evidence
was not admissible.
The evidence which disclosed certain unpleasant things about the accused
in the past was examined by the Court in order to ascertain the motive for the
murder and not for the purpose of determining as to whether the accused were
persons of bad character likely to commit murder. It was held that the evidence
was admissible.I
SECTION 55.-Character as affecting damages.-In civil cases, the
fact that the character of any person is such as to affect the amount of
damages which he ought to receive, is relevant.
Explanation.-In Sections 52, 53, 54 and 55, the word "character"
includes both reputation and disposition, but except as provided in
Section 54, evidence may be given only of general reputation and general
disposition, and not of particular acts by which reputation or disposition
were shown.
I. Ram Sumiran Pandey v. Emperor, AlR 1942 Patna 291.
2. Noor Mohamed v. The King, AIR 1949 PC 161.
3. Mangat Singh v. State of M.B., AIR 1957 SC 199.
 410 EVIDENCE ACT [S. 55
COMMENTS
Character defined.-According to this section 'character' as used in
Sections 52, 53, 54 and 55 includes reputation and disposition.
Reputation.-Reputation means what is thought of a person by others
and is constituted by public opinion ; it is the general credit which a man has
obtained in that opinion. When a man says that another man has a good
character, in this sense he means that he has heard many people speak well of
him. The distinction between admissible evidence of reputation and
inadmissible hearsay evidence can be stated thus : If the evidence is of those
persons who are living in the locality where the reputation is prevailing and
where people take of their beliefs about him who themselves believe it, it is
'admissible'. But if the evidence is of a man who does not know about the
reputation himself but has heard it from others it will be hearsay. In other
words, the evidence of those, who know the man and his reputation is
admissible. Evidence of those, who do not know the man but have heard of the
reputation is not admissible.1
Disposition.-When a man says that another has a good character in
this sense he gives the result of his own personal experience and observation or
his own individual opinion of the prisoner's character, as is done by ·a master
who is asked by another for the character of his servant. There are two forms in
which a question as to character of a man may be put to a witness. If an accused
be charged with theft, a witness to character might be asked either (1) what
was the general reputation of the accused for honesty, or (2) was the accused
generally of an honest disposition? The witness would answer the firstquestion
from what was generally known about the accused in the vicinity where he
lived, But he wouid answer the second question from his own personal
knowledge of the accused.
Evidence may be given of general reputation.-As for evidence of
character, evidence may be given only of general reputation .. Evidence of
particular acts, as of honesty or benevolence or the like are not receivable, "for
it is not probable that a man who has uniformly sustained a character for
honesty or humanity will forfeit that character by the commission of dishonest
or cruel acts. But the mere proof of isolated facts can afford no such presumption.
None are all evil and the most consummate villain may be able to prove that on
some occasion he has acted with humanity, fairness or honour".
As seen before, Section 52 of the Act Iays down that in civil cases
character of a party is not relevant. Section 55 provides an exception to that
general rule. According to this section character is relevant in civil cases, when
it affects the amount of damages to be recovered, as in an action for libel,
seduction or in a proceeding in a divorce court. In enquiries of such nature the
compensation to be given must depend to a large extent, on the character of the
concerned, and the court must, accordingly, take notice of this in assessing the
damages to which such person is entitled.
It should be clearely borne in mind that evidence of character is not
relevant in every suit for damages. In a suit in which the character is to affect
l. 8aS() Rao v. Emperor, AIR 1948 Pat. 84.
s. 55] OF THE RELEVANCY OF FACI'S 411
the amount of damages, the evidence of character is relevant. In suits of
d"mages where the character of the plaintiff has no bearing -n the amount of
damages, it is not relevant. A while driving his car on· the road, runs over B
and breaks his knee. B files a suit against A for damages. In this suit character
of B cannot be taken into consideration in assessing the amount of the damages
and so his character is not relevant.
The Explanation of the section defines character. It states that the word
'character' used in Sections 52, 53, 54 and 55 includes both reputation and
disposition. The Explanation also lays down that evidence may be given only of
general character and not of particular acts by which the character is shown.
Relevance of Character (Sections 52 to 55).-The general rule about
the admissibility of character is that from a party's character his liability
cannot be presumed. In civil cases a party's character as an evidentiary fact is
totally excluded (Section 52). Evidence of character can be given in civil action
only when the suit ·is for damages and not in all the damages suits but only in
those cases in which the amount of damages depends on the character of the
party (Section 55).
Good character of an accused person as an evidence is admissible as from
this his innocence or guilt may be inferred (Section 53). Bad character of an
accused is not admissible generally. But :
(1) When evidence of good character has been adduced by the accused, the
evi~ence of bad character can be given by the prosecution.
(2) Evidence of bad character of a party may be in issue in a criminal case
as in a proceeding under Section 110, Cr. P.C. ; the character in such cases is also
relevant.
(3) When previous conviction is relevant at the trial bad character is
admissible (Section 54). The word 'character' in Sections 52, 53, 54 and 55
includes both reputation and disposition. It is also to be noted that while
proving character, evidence may be given of general repute and general
disposition and not of particular acts by which the reputation is to be shown.
Distinction Between Character and Reputation
Character includes both reputation Reputation does not include character
and disposition. (Explanation of as a man with good reputation may be
Section 55). Reputation resides in the of bad character and vice versa.
mind of others. Disposition resides in
the man himself.
000