Statements by Persons who cannot be

Called as Witnesses
Principle.-As a general rule, Oral evidence must be direct, that is to say, a fact to
oral evidence must be stated before the Court by the person who has got
proved by oral
be present on the
first hand knowledge of the facts to be proved. Ais murdered by B, Cis
Scene of murder. Bis sent up to stand his trial in the Court of Sessions Judge. In this
case, Cmay appear as a witness and depose that he saw Bassaulting A with dangerous
One Dmay try to depose as "C told me that he saw Bassaulting A". Here the
weapon.
of CCis direct evidence as he himself saw the occurrence. The statement of D
is
statement

wocond handor derivative evidence. The second-hand evidence is loosely termed as "hearsay
evidence'.
about which he
When a witness appears before the Court to give evidence of a fact
party is given
as got first rate knowledge, he has to take oath and also the opposite must give his
opportunity to cross-examine him. At the same time, every witness
under Such circumstances as may expose him to all the penalties of falsehood.
testimony,
second-hand, that is hearsay evidence is oenerally excluded from evidence on the
A
party against whom the proof is
grounds: (1) that it is not stated on oath, (2) that the
cross-examining the original source whence it
is derived,
no opportunity of
offered, has
before the Court is immune from all sorts of
and (3) that the person putting the fact
penalties of falsehood.
above, if C appears before the Court, he will have to take
In the example given has deposed that he saw B assaultingBesides A, tne
oath that he will tell the truth. When he the truth.
him to show that he is not telling
counsel for B will cross-examine responsibility and if he deposes falsely he
under personal
this, the evidence of C is given these sanctions can be availed of against D when he
may be criminally liable. None of A", In this case. 'B attacked A' cannot
be stated
saw B attacking
says C told me that he that C told him like that. Again, he cannot be
state on oath
on oath by D. He can only On every question, he will plead ignorance
and say
cross-examined on the fact of assault.
And also there is no fear for him to be prosecuted for perjury.
that C knows it. considerations: (1) a
reason of the hearsay rule are based on two said
The purpose and
a circumstantial guarantee of trustworthiness. As
necessity for the evidence, and (2) considered not sufficiently trustworthy. It is
above, hearsay is excluded because it is
the tests applied to admissible evidence, namely
rejected because it lacks the sanction of give a
and cross-examination. But when there are special circumstances which a
the oath admitted even though it comes from
trustworthiness to the testimony, it is
guarantee of
260 THE BHARATIYA SAKSHYA
ADHINIYAM. 2023
second-hand source. The theory is that there are
nccessary exceptions, (1) necessity, (2) two principles as |S. 26
special circumstances the
more trustworthy than hearsay evidence in
unreasonable expense or delay to procure general. It may be
which render thebasis ofthe
before the the attendance, ofimpossible, a or it evidence
Court, could give
be that this witness has madedirect evidence on the matters in witness who, ifmay cause
matter under such circumstancesstatement either written or oral with and it maypresent
a question;
presumed. In such a case, the law, asthat the truth of this statement mayreference to such also
oral evidence of the enacted by Sections 26 and 27. reasonably
fact and with the safeguard dispenses with directbe
and the sanction of an oath, for
the probability of the truth provided by
other safeguards
Evidence Act which26,are BSA|
section mentioned statement
in the sections. All being true depending cross-examinations.
the ciauses of Section 2upon
are
such nature or were made under such based upon the principle that the
circumstances as to guarantee their statements are of
Exception to the general being true l
excluding hearsay evidence.
Sections
rule.There are several exceptions
BSA] are 32 and in the rule
26 and 27,exceptions to the 33 of Evidence Act
BSA]derivative,rule. Under (sections 26
i.e., hearsaySections 32 and 33 of the Evidence Act and 27
different instances where indirect evidence evidence is
is relevant.2 admissible. These two sections
(sections
ECTION 26. give
who is dead Cases in which statement of
written or verbal, or cannot be found, etc., relevant fact by person
cannot be found, orof relevant facts made by a is relevant.-Statements,
attendance cannot bewho has become incapable ofperson who is dead,
giving evidence, or or who
under the prOcured without an
themsel vescircumstances of the case
relevant facts appears
amount
to the
of delay or expense whose
which
in the Court
(a) when the
following cases, namely: -
unreasonable, are
or as to
statement is made by a
any of person as to
his death, in the circumstances of the the cause of his death,
into
cases in which the
cause
transaction which resulted
question. of that person's death comesin
made them wasSuch or
statements are relevant
expectation of death, was not, at the time whenwhether the person who
and they were
procecding in which the causewhatever may be the made, under
(b) of his nature
when the
ol business, statement was made by
death comes into question;of the
and such
memorandum in particular when itperson in theof ordinary course
business, made by him in books kept consists
or in in the any enry O
acknowledgement the
goods, securities written or
discharge of
professional duty; or of an
ordinary courSe Ol
Comnerce written or orproperty signed
other document
by him of
of any kind; or ofthea receipt of money,
signed by him: or of the date document used in
(C) when the usually dated, written of a letter or
or signed by him;
the personstatement is against
making it, or when,the pecuniarY or proprietary intere
Soney al v. if true, it would
2 Mst. Biro Daribdeo, AIR 193S expose
him or
v. Ama Ram, AIR 1937Pat 167.
PC 108.
 RELEVANCY OF EACTS 261
have expOsed him to a criminal prosecution or to a suit for
damages;
(d) when the statement gives the opinion of any such person. as to the
eistence 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
hefore any controversy as to such right, custom or matter had
arisen:
(e) 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;
relationship by
() when the statement relates to the existence of any
blood, marriage or adoption between persons deceased, and
is made
which any
in any will or deed relating to the affairs of the family to
such deceased person belonged, or in any family pedigree, or upon
thing on which such
any tombstone, family portrait or other statement was made
such
statements are usually made, and when
before the question in dispute was raised;
document
contained in any deed, will or other
(g) when the statement is (a) of
transaction as is specified in clause
which relates to any such
section 11:
made by a number of persons, and
(h) when the statement was to the matter
expressed feelings or impressions
on their part relevant
in question.
llustrations
injuries received in a
was murdered by B; or A dies of
(a) The question is, whether A was raped. The question whether she was raped
transaction in thecourse of
which she
such circumstances that a suit
whether A was killed by B under
by B; or the question is, widow. Statements made by A
as to the cause of his or her
would lie against B by A's actionable wrong under
the murder, the rape and the
death, referring respectively to
Consideration,are relevant facts.
diary of a deceased
date of A's birth. An entry in the
(b) The question is as to the given day he attended
surgeon regularly kept in the
course of business, stating that, on a
mother and delivered her of
a son, is a relevant fact.
A's
Nagpur on a given day. A statement in the
(c) The question is, whether A was in thecourse of business,that on a given day
diary of a deceased solicitor, regularly kept in in Nagpur, for the purpose of conferring
the solicitor atlended A at a place mentioned,
with him upon specified business, is
a relevant fact.
(d) The question is, whether a ship sailed from Mumbai harbour on a given day. A
letter written by adeceased member of a merchant's firm by which she was chartered to
 S. 26| RELEVANCY OF FACTS 263
SAKSHYA
ADHINIYAM,
2023 [S. 26
THE
BHARATIYA
making dying declaration." Adying declaration made by a person who is dead as to cause
262 cons1gned, stating that the shi af her death or as to any of the circumstances of the transaction which resulted in his
cargo was
Chennai, to whom the death. in case in which cause ol his death comes in question, is relevant under Section 26
their correspondents in Mumbai port, is a relevant fact.
sailed on a given day
from
certain land. Aletter from A's of the Bharatiya Sakshya Adhiniyam, 2023, and is also admissible in evidence. Though
is, whether rent
for
was paid to A
A's account and held it at
duing declaration is indirect evidence being a specie of hearsay evidence, yet it is an
(e) The question the rent on NCention to the rule against admissibility of hearsay evidence. Indeed, it is substantive
saying that he had received
deceased agent to A, avidence and like any other substantive evidence requires no corroboration for forming
fact.
orders is a relevant The statement ot osis of conviction of an accused. But then the question as to how much weight can be
whether A and Bwere legally married. celebratin troched to a dying declaration is a question of fact and has to be determined on the facts of
) The question is, circumstances thatthe
married them under such ob case.2 It must be borne in mind that in order to makea statement admissible under
deceased clergyman that he
would be a crime isrelevant.
Sertion26 of Bharatiya Sakshya Adhiniyam, one of the conditions mentioned in the
found, wrote aletter on uns (a) to (d) and one of the conditions mentioned under clauses (a) to (h) must be
A, a person who cannot be
(&) The question is, whether that day is relevant. nlfilled. Now, we shall deal with these headings separately.
letter written by him is dated on
certain day. The fact that a
ship. A protest made by the (a) Who is dead.-Before admitting evidence under Section 26, the death of the
the cause of the wreck of a
(h) The question is, what was procured, is a relevant fact. nerson whose statement 1S to be proved must strictly be proved. Death is universally
captain, whose attendance cannot
be
statement by A, a Ponsidered to be sufficient to satisfy the necessity of the principle. The statements of dead
()The question is, whether a given road is a public way. A fact. persons are admitted as relevant upon the principle that by the death of the person the
the village, that the road was public, is a relevant eter evidence cannot be laid. Where person making a dying declaration survives, his
deceased headman of
grain on a certain day in a particular ctatement will not be admissible under Section 32 of Evidence Act [section 26. BSAI. It
) The question is, what was the price of deceased business person in the ordinary may be admitted in any other section of the Act [now, Adhiniyam}.
market. A statement of the price, made by a
course of his business, is a relevant fact. (b) Who cannot be found.-If a person after making acertain statement disappears
the father of B. A statement by A and is unheard of, no perSon can compel his presence as a witness. If a party to a
(k) The question is, whether A, who is dead, was
that B was his son, is a relevant fact. proceeding is able to prove that some person has disappeared, his previous statement, if
the birth of A. A letter from A's deceased relevant, can be proved. The only objection to admitting of evidence on this ground is the
() The question is, what was the date of possibility of collusion between the party and the witness.
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 Before a statement can be admitted on this ground it must be proved that the person
memorandum book by C, the deceased father of B, of
his daughter's marriage with A on a seeking to adduce the previous statement of such person, has made an honest effort to
given date, is a relevant fact. examine that person.
caricature exposed in a shop window.
(n) A sues B for a libel expressed in a painted (c) Incapable to give evidence.Sometimes it so happens that a man after
the similarity of the caricature and its libellous character. The
The question is as to making certain statement becomes physically unfit to depose. In such a case, his previous
remarks of a crowd of spectators on these points may be proved.
statement, if it fulfils aiy of the conditions laid down in the clauses (a) to (h), may be
Corresponding Provision.-Section 32 of Indian Evidence Act, 1872. proved in a proceeding.
COMMENTS (d) Delay or expenses.-When the appearance of a witness cannot be procured
Principle.-Under Section 26, statements written or verbal, of relevant
facts when without unreasonable delay or expenses, his previous statement, if relevant, is admissible.
who is dead, or (b) who cannot be found, or (c) who has become Plaintiffs were the agents of the defendant for the sale of certain produce shipped to
a person (a)
made by
incapable of giving evidence, or (d) whose attendance cannot be procured
without an 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
amount of delay or expense which, under the circumstances of the case, appears to the 32 of
Court unreasonable themselves are relevant facts, (a) it relates to the cause of his death, or the produce. These accounts of sales were admitted in evidence under Section
Evidence Act [section 26, BSAL, without summoning the agents, because the persons
toany of the circumstances of the transaction which resulted in his death, or (b) it is made Court without
in course of business, or (c) it is made against the pecuniary or proprietary interest of the who had prepared the accounts could not be produced before the
unreasonable delay and expenses. But the mere fact that a person is living far away from
maker, or (d) it gives its opinion as to public right or custom or matters of general Section 26 of the
interest, or (e) it relates to existence of relationship, or (f) it is made in Will or ded the place of trial is not aground for admission in evidence under
doing so, it has to be
relating to family affairs, or (g) it is made in any document deed or Will relating to Sakshya Adhiniyam of a previous statement made by him. Beforedelay or expenses.
transaction specified in clause (a) of Section 11, or (h) it is made by several persons, and proved that the attendance cannot be procured without unreasonable
expressed feelings or impressions on their part relevant to the matter in question.
1 Najjam Faraghi v. State of W.B.. AIR 1998 SC 682.
But before statements can be admitted under this section, it must be proved that the 2 Ram Bihari Yaday . State of Bihar, AIR 1998 SC 1850.
makers of these statements are either dead or for any other reason are not available as 3 Chalianadan v. Rex. AIR 942 Mad. 450.
witness. Dying declaration would not lose its value on ground that deceased died long after
 ADHINIYAM, 2023 |S. 26
BHARATIYA
SAKSHYA
S. 26]
264 THE
had examined .s
RELEVANCY OF FACTS 265
the lady doctor who ..98 quoted by Justice Fazal Ali.
Chand v. State of H. P.,' learned Sessi
In the case of Prithi
was not available for
giving evidence. Thedelay. Therefo etatements and letters written by the He held that where the main evidence
deceased which are directly connected consists of
victim being on long leave would not be procured without
unreasonable
doctor who wo
to her death and which reveal a tell-tale with or related
Judge felt that her
presence
prosecution to prove
certificate through another the four corners of Section 32 of story, the said statements would clearly fall within
the Court permitted the
Evidence Act |section 26, BSAI and
her handwritingand signature. dmissible and distance of time alone in such cases would not make the therefore
conversant with irrelevant ! statements
Clause (a).-Dying declaration In Vijay Pal v. State (Government of NCT)
in Bharativa Delhi2 the deceased's daughter
Definition.-The term 'dying
declaration' has not been defined declaration" 10 vears came running tO her mother's paternal house situated at a
about
clause (a) of Section 26 and the
term "dying bilometre and told the P.W.8, the father of the deceased and P.W.1.distance of about half a
the deceased's brother.
Sakshya Adhiniyam but reading bot her father was threatening to burn her mother. P.W.l reached earlier than his father at
may be defined as follows: his -be house of his sister andfound the deceased burning, The deceased told
statement made by a person who is dead; as to cause of him that the
accused, her husband, had put her ablaze by pouring kerosene. The brother poured water
"A dying declaration is which resulted in his death. in
cases in
an the deceased to extinguish fire. The brother and father with two other persons took her
circumstances of transaction
death or as to any relevant under Section 32 of
question, such statements are to Deen Dayal Upadhyaya hospital but due to lack of facility they brought her to
which his death comes into whether the person who made there
was or was not, at
Evidence Act Isection 26, BSA]. Safdarjung hospital. Despite being admitted there and available treatment, she died, The
whatever may be the nature
under expectation of death and Trial Court convicted the accused for an offence under Section 302 of IPC section 1031).
the time when they were made,
of his death comes into question."2 BNSI and sentenced him to suffer rigorous life-imprisonment. It was one of the grounds
of proceeding in which the cause urged by the amicus curiae before the Supreme Court in appeal that the High Court had
assailants to
written.-When she gives names of
Dying declaration oral or People flawed by placing reliance on the oral dying declaration of the deceased to her brother
them it is relevant dying declaration. when she had suffered serious burn injuries and in such a situation, it could not have been
person present. If it is written by any of
possible on her part to tell any thing to her brother. The Supreme Court dismissed the
assailants,3
deceased has told the name of his
present may depose orally that the appeal and held
declaration is admissible in evidence as an
Oral dying declaration.-Oral dying
hearsay evidence is no evidence in eye of
law The law isquite clear that if the dying declaration is absolutely credible and nothing
exception to the general rule of evidence that have
because the evidence in allcases must be direct. is brought on record that the deceased was in such a condition, he or she could not P.W.I
and it should be discarded as general rule made a dying declaration to a witness there is no justification to discard the
same.
rule of hearsay evidence. had immediately rushed to the house of the deceased to whom she told that her
husband
Oral dying declaration is an exception to the father-in-law
the deceased before his wife, the had poured kerosene on her.3
The oral dying declaration made by performed post
conscious state. The doctor who of burning the deceased by the husband, the dying declaration about which.
and other relatives was made in the mental state of In acase
was not cross-examined regarding the the Court is satisfied to be fully true and there is no evidence
to the contrary that the
mortem examination of the deceased conviction
declaration was absolutely credible and make the false statement, the absence
the deceased. It was held that the dying effort was made by anyone to induce the deceased tochemical examination does not render
for
based on the same could not be faulted.> of kerosene oil in the hair of the deceased sent
the deceased woman's brother and
mother the dying declaration doubtful and unbelievable.4
In Amar Singh v. State of Rajasthan,the statement a month prior to the incident of reliance can be
made about the exact words of the deceased, no
gave the evidence that the deceased to taunt the deceased saying that she
Unless one is certain
Ordinarily an oral dying declaration is by itself
suicide by her that the appellant, her husband used demanded placd on verbal dying declaration.5
appellant himself visited their house and
had come from a hungry house and the declaration and the appellant was convicted under insufficient for sustaining conviction.0
Rs. 10,000/-. It was held to be a dying 85, BNS]. The argument that the declaration in evidence.
Sections 304B and 498-A of IPC [sections 80 and The reason for admitting dying
evidcnce of brother and mother were hearsay was held
to be misconceived. The Court admitted in evidence on the
principle 'nemo moriturus
which Lord Atkin held that A dying declaration is maker with a lie in his mouth).
referred to Pakala Narain Swamy v. Emperor,7 in declarant will be praesumitur mentire' (a man will not meet his
death of the
circumstances of the transaction which resulted in the
the actual occurrence.
admissibleif such circumstances have some proximate relation to Rajasthan, AIR 2010 SC 3391
at p. 3395.
down by Lord Atkin
InSharad Birdichand Sarda v. State of Maharashtra, 8 the test laid 2
Amar Singh v. State of
AIR 2015 SC 1495. 1495 at p. 1502:
Mafabhai Hajarbhai Roval
(Governent of NCT)
Delhi, AIR 2015 SC that a person suffering
99%
3. Vijuy Pal v. State when the Court had held
1992 SC 2186 referred to
V. State of Gujarat, AIRdeemed capable enough to make a dying
AIR 1989 SC 702. declaration.
Rajasthan v. Kishore, AIR
1996 SC 3035
Ram Bihari Yadav v. State of Bihar, AIR 1988 SC 1850. burn injuries could be SC 3769; State of
3 Nanhu Ram v. State of M.P., AIR 1988 SC 512. 4. Tanua Rabidas v. State
of ASsam, AIR 2014
4 Bable v. State of Chhattisgarh, AIR 2012 SC 2621. referred to.
AIR 1933 SC 42. 1972 AWR 521.
Prabin Ali v. State of Assam, AIR 2013 SC 542. Ramnathv. State of M.P., Pritam Singh v. State,
5 AIR 1957 SC 589;
AIR 2010 SC3391. 6. Bhagwan v. State of Rajasthan, AIR 2007 SC 2709 at p. 2711.
AIR 1939 PC 47. Shakuntala v. State of Haryana,
7.
8. AIR 1984 SC 1622.
 ADHINIYAM.
2023 |S. 26
SAKSHYA
S. 26] RELEVANCY OF FACTS
THE
BHARATIYA

deciaration is based
o 267
266 of dying
which signifies importance at the time of death i were, afinale of the story, the statement regarding
The philosophy of law, praesumitur mnenntire' (no one
mouth). d of the drama would be admissible because the each step directly connected with the
moriturus
his maker with
a lie in his Dying an organic whole and not torn form the context.
entire statement would have to be read
the maxim 'nemo he will not meet inspires contidence in the mind Sometimes, statements relevant to or
lie and it ishing an immediate motive may also be admissible
presumed to corroboration as long as judped
declaration has to be as being a
declaration does not
require any tutoring. Dying
form of f death. It is manitest that all these statements come to light only part of the transaction
of the Court and it is free from any deccascd who speks from dcath. For instance, where death takes place after the death of the
surrounding circumstances.
that the within a very short
in the light of
Rajasthan, it was held
by Supreme Court ne of the marriage or the distance of time is not spread over more than 3-4 months, the
State of impending death etotement may be admissible under Section 32 of Evidence Act Isection 26, BSA].
In Uka Ram v. principle that a sense of
declaration rests upon and virtuous man under
admissibility of dying that of conscentious
(3) The second part of clause (1) of Section 32 of Evidence Act Jclause (a) of section
produces in man's mind
the same feeling asconsideration that the declaration is
made in
declaration is admitted upon and when every hope of 6 BSA) is yet another exception lo the rule that in criminal law, the evidence of a
oath. Dying declaration is at the point of
death erson who was not being subjected to or given an opportunity of being cross-examined
when the maker of silenced and nind induced by the
motive of falsehood is
extremity;
this world is gone; when every principle on which the dving by the accuscd, would be valucless because the placeof cross-examination is taken by the
consideration to speak the truth. The solemnity and sanctity of oath for the simple reason that a person on the verge of death is
most powerful moriturus praesumitur mentire
upon the maxim nem0 not likcly to make a talse statement unless there is strong evidence to show that the
declar.tion is admitted is based with a lie in his mouth. It has always
to
meet his maker stalement was secured either by prompting or tutoring.
which means 'the man will not to agreat wcight yct it is
dying declaration is entitled
be kept in mind that though maker of the statement is not subject to cross-cxamination, (4) may be important to note that Section 32 of Evidence Act Isection 26, BSAI
worthwhile to note that as the such naturc as to
that dying declaration should be of does not spcak of homicide alone but includes suicide also, hence all the circumstances
it is essential for the Court to insist correctness. The Court is obliged to rulc out which maybe relevant to provea case of homicide would be equally relevant to prove a
inspire full confidence of the Court in its
result of tutoring. prompting, or conducive, case of suicide.
the possibility of statement being either the
or product of imagination.
(5) Where the main evidence consists of statements and letters written by the
Praesunitur Mentirenmcans a man will
The famous legal maxim NemoMoriturus deceascd which are directly connected with or related to her death and which reveal a tell
a lic in his month. Indian Law recognises this fact that "a dy ing tale story, the said stalement would clearly fall within the four corners of Section 32 of
not meat his maker with The rule is
rcles ant
man seldom lies" or "ruth sits upon the
bearsaN
tips of a
e i d n a n .
Evidence Act |section 26, BSA| and, therefore admissible. The distance of time alone in
although it is CACepion to the rule of such cases would not make the statement irelevant. !
(section 26(a), BSA). (nO categones of
By Scction 32(1) of Evidence Act Cause of death.-This clause lays down that when the statement is made by a
Theyare-() cause of death, (2) statement
slatements are made admissible in evidence. person as to the cause of hisdeath, or as to any of the circumstances of transaction which
of transaction which resulted in decath
as to any circumstances
resulted in his death, his statement would be relevant in a case inwhich the cause of his
Maharasitra, the Supreme Court through death is the point at issue. A is assaulted and dies. Before his death, he makes a statement
In Sharad Birdichand Sarda v. State of
Justice Syed Murtaza Fazal Ali laid down following propositions - that "B assaulted him with spear." This statement of Ais admissible as it relates to the
is an exception to the rule of cause of his death. The fact that the deceased lingered for some days after receiving fatal
() Section 32 of Evidence Act (section 26, BSA) dies, whether the death is a injuries does not deprive the statement of its character as a dying declaration admissible
makes admissible the statcment of a person who immaterial. If the
hearsay and
the cause of death, or exhibits under this section. The interval between the statement and the death is
homicide or a suicide, provided the statement relates to nothing
circumstances leading to the death. In this respect, as indicaled above, the Indian Evidence statement relates to the cause of deponent's death it is admissible. But if there is cause of
our society and the diverse nature and character to show that the injuries to which the statement of the deceased related were the
Act, in view of the peculiar conditions of that he
his death the statement is not admissible as dying declaration. If the deceased statedsuch
of our people, has thoughtit necessary to widen the sphere of Section 32 of Evidence Act did not die of the injuries rather he died of some illness as
was injured by X but he
(section 26, BSAJto avoid injustice. pneoumonia, his stalement that X caused him injuries cannot be admitted under this
raped her and three days after
(2) The testof proximity cannot be too literally construed and practically reduced to section. If a woman is rapcdand makes statement that X
a cut-and-dried formula of universal application so as to be confined to a straight-jacket. death and therefore her statement that
she commits suicide, the rape is not the cause of her
Distance of time would depend or vary with the circumstancesof each case. For instancc,
where death is a logical culmination of a continuous drama long in process and is, as it Hanumant . State of Madhya Pradesh, (1952) SCR
1091: Dharambir Singh v. State of Punjab, AIR 1958
AlR 1939
SCR 1336: Pakala Narayana Swami v. Emperor. 29.7.66:
SC 152: Ratan Gond v. State of Bihar, (1959) decided on
Uttar Pradesh, Crl. Appeal No. 55 of 1966
U'makant vr. State of Chhatisgarh, AIR 2014 SC 2943. PC 47; Shiv Kumar and others v. State of referred to. Manohar
and another v. State, 41 CWN 713
AIR 2001SC 1814, Smt. Laxmi v. Om Prakash. AIR 2001 SC R8I. (1966)Crd. Appeal SC 281: and Protima Dutta 1373; Onkar v. State of Madhya Pradesh, (1974) CrH. LJ
Punjab, (1981) Cr.LJ
Lal and others v. State of Madras, (1959) MLJ 246.
State of Maharashtra v. Nisar Ramzan Sayyed, AlR 2017 SC 2363: Uka Ram v. State of Rajasthan. AIR Bom. 290; Chinnavalayan v. State of
2001 SC I814; Babu lal v. State of M.P. AIR 2004 SC S46: Muthu Kutty y. Statc. AJR 2005 SC 1+3 1200;AIlijan Munshi v. State. AIR :960 310; and State v. Kanchan Singh and another, AIR 1954 AlI.
Rajindera Kumar v State, AIR 1960 Punj.
Dharann Pal :. State of U.P., AIR 2008 SC 920: Lakhan v. State of MP. 2010 AIR SCW 5993 overruled.
Chatterjee v. State, AIR 1950 Cal. 306,
Patei Hira Lal Joita Ram v. State of Gujaral, AIR 2000 SC 2944 I53 approved. Gokul Chandra 465.
2. Abdul Gani v. Emperor, AIR 1943 Cal
AIR 1984 SC 1622. 1930Oudh 249.
Wali Mohammad v. Emperor, AIR
3. R. v. Rudre. ILR 29 Bom 45,
 ADHINIYAM,. 2023
SAKSHYA IS. 26
THE BHARATIYA
S. 26] RELEVANCY OF FACTS
268 declaration, ! A girl wvas raped. Soon
as dying after the 269
notadmissible
her body. Her statement about rape In the year 1933, they came back to
Xraped her is committed suicide by setting fire tonot be: said to be Pithapur
eeemed at that time to have been in need where they stayed with the
occurrence, she
admissible as the
rape on the girl
could cause of her death.2
ccused borrowed from the deceased of money., and during 1936, theDewan. They
was held not at various wife of the
death of the deceased is not in question, the statements made by Cturdav 20th March, 1937,the deceased times an amount of Rs. 3,000. On
Where the cause of cannot be taken to be proof of cruel acts committed ome that day or next day to received a letter from the accused
in her letter to the Police
March. in time to catch the trainBerhampur. The deceased left his house oninviting him to
appellant for the purpose of holding him guilty under Section 498A
the deceased Sunday 21lst
for Berhampur. He did not come back.
by her husband, theBNS]. March. 1937, at about noon, the body of the deceased was On Tuesday 23rd
IPC³ (section 85, lacs compartment at Puri. The body had been cut found in a steel trunk in a third
Decarant died of injury to be proved.-Before the statement of a person as to into seven portions. The body of the
deceased was identified by his widow. The accused was tried and
that his death s
death may be used as dying declaration, itmust be proved convicted for murder and
causedofbyhisthe injury he received in the incident for which accused is being prosecuted.
cause was sentenced to death.
deceased Gava Cho During the trial, the widow of the deceased stated before the Court
MotiSingh was tried for the murder of Gaya Charan, a statement of ber husband showed her a letter and said that he was going to Berhampur that on that day
o the effect that Moti and one man fired gun shots at him was used as dying declaration as the appellant's
:fe had written to him to come and receive payment of his
at the trial. The incident took place on 4th February, 1960. Gaya Charan's iniuries were dues. The evidence was
examined by doctor, same day. He found two gun shot wounds dangerous to life Goo objected to.
Charan left hospitaleither he was discharged on healing of the injury or he left hospital Their Lordships of the Privy Council held that this statement related to the
before iniuries were healed up. He died on Ist March, 1960. There was no evidence on the circumstances of the transaction which resulted in his death and so it was relevant. Thex
recordas to what caused Gaya Charan's death. It was held that the statement of Gava also held that the statement made by the deceased that he was proceeding to the spot wvhere
Charan could not be used as dying declaration. Chandra Bhan Singh was tried of the he was killed or as to his reason for proceeding or that he was going to meet aparticular
murder of Shaitan Singh. The deceased Shaitan Singh himself lodged report in which he person or that he had been invited by such person to meet him would each of them be
narrated the story of incident. After the medical examination, the deceased developed circumstances of the transaction and would be so whether the person was unknown or was
tetanus and died of it, it was held that the statement of deceased could not be used as dvino not the person accused. "Circumstances of the transaction" is a phrase no doubt that
declaration.5 conyeys some limitations. It is not as broad as the analogous use in "circumstantial
Circumstances of the transaction which resulted in his death.-The words evidence" which includes evidence of all relevant facts. It is on the other hand narrower
"resulted in his death" do not mean 'caused his death. The expression "any of the than res gestae." Circumstances must have some proximate relation to the actual
circumstances of the transaction which resulted in his death" are wider in scope than the occurrence and must be of the transaction which resulted in death of the declarant, though
expression "cause of death." A statement not relating to the cause of death of its maker 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
may be admissible if it relates to the circumstances of the transaction which resulted in should be a known transaction other than that the death of the declarant has ultimately
his death. In acase of robbery, a statement made by a person before her death regarding been caused, for the condition of the admissibility of the evidence is that "the cause of
the circumstances of the robbery is admissible. Although remotely, her death was caused (the declarant's) death comes into question." In the present case, the cause of the deceased's
by wounds received at the robbery.7
death comes into question. The transaction is one in which the deceased was murdered on
In Patel Hiralal Joita Ram v. State of Gujarat,$ it was held by Supreme Court that 21st March or 22nd March, and his body was found in a trunk proved to be brought on
the words "Statement as toany circumstances" are by themselves capable of expanding behalf of the accused. The statement made by the deceasedon 20th or 21st March, that he
the width of scope of admissibility. When the word 'circumstances' is linked to was setting out the place where the accused lived and to meet a person, the wife of the
transaction which resulted in his death. the sub-section casts the net in very wide accused, who lived in the accused's house, appears clearly to be statement as of some of
dimension. Anything which has nexus with his death proximate or remote, direct or the circumstances of the transaction which resulted in his death.
indirectcan also fall within the purview of sub-section.
It is to be borne in mind that general expressions indicating fear or suspicion
In Pakalanarain Swami v. Emperor. the deceased was a man of about 40. He had whether of aparticular individual or otherwise and not directly related to the occasion of
been a peon in the service of the Dewan of Pithapur. Pakala Narain Swami, the accused, death will not be admissible and so will be irrelevant.2 The deceased long before the death
was married to one of the daughters of the Dewan of Pithapur. After marriage, the accused made application to authorities that she was threatened by her brother-in-law. This was
Narayan Swamiand his wife went to live at Berhampur about 250 miles from Pithapur. held relevant. In acase of dowrydeath 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
Kapeviah v. Emperor., AIR 1931 Mad. 233. [section 26(a), BSAJ.
2 Narain Singh v. State of Bihar, AIR 1961 SC 137.
3. Kantilal Martaji Pandor v. State of Gujarat, AIR 2013 SC
3055. In Kans Raj v. State of Punjab, the Supreme Court made the following
4 Moti Singh v. State of UP, AIR 1964 SC 900. observation:
Chandra Bhan Singh v. State, 1971 CrLJ 94.
6 Danu Singh v. Emperor, AIR 1925 All 227. 1957 All 387.
7 Nga Ba Mim v. Emperor, AIR 1935 Rang. 418. Ganga Singh v. Emperor, AIR 1944 Lah 837; Kunwarpal Singh v. State, AIR
AIR 2001 SC 2944. 2 D.B. Desh Mukh v. State, AIR 1970 Bom 438.
9 AIR 1939 PC 47. 3. S.B.S. v. State of Maharashtra, 1984 Cr LJ 1738: P.B. v. State of A.P.. I989 Cr LJ I86.
4. AIR 2000 SC 2324
 2023
SAKSHYA
ADHINIYAM.
(S. 26
THE BHARATIYA
270 transaction which resulted into his death,"
S. 26] RELEV ANCY OF FACTS
c i r c u m s t a n c e s of 271
The words "as
to any BSAI makes it clear that the circumstance resulting subjected to cruelty. The prosecution case was that
(section 26, words. the on the fateful day the
Section 32
appearing in proximate relation to
actual Occurrence. In other statement husband, returned home in a drunken state and appellant, her
have of transaction led to his started to abuse her and her mother
in death must relating to cause of his death or circumstances had come on a
visit to her
daughter's
house and they who
of the deceased related with the actual
transaction
poured kerosene on his wife and set her on
picked quarrel.
up The appellant
sufficiently and clearty fire. Her mother and P.W.l tried to extinguish
death must be Po and they also sustained burn injuries. They
as dying declaration not necessary.--The were taken to the hospital. The dying
Intention to use statement declarations of the deceased and her mother and the
Bhagirath v. State of Haryana, held that it was not necessary that statement of P.W.l were recorded. The
eensed died. Three days, thereafter, her mother also died. The accused's
Supreme Court in statem
of deceased there must have been intention to use the of death was sulCIde was found to be false. The version that the
while recording statement He was admitted in t question
dmissibility of the statement of her mother relating to cause of deathinvolved
the deceased sustained gun-shot. was the
as dving declaration. In this case, purpose of registering the case of her daughter.
hospital. Police constable took statement from victim fordeclaration. Then the constable
The Court held
There vas no intention to use the statement as dying
Magistrate to record dying declaration. Before the Magistrate came, the victim Dving declaration is admissible not only in relation to the cause of death of the
called the as dying declaration Reoon making thestatement and as to the circumstances of the transaction which resulted
died. Held-The statement recorded by constable could be relied
When the person making statement not dead.-In a case of suspected case of
in his death, if the cirCumstances of the said transaction relate to the death of another
nerson, the statement cannot be held to be inadmissible when circumstances of "his" death
consumption of poison by the accused person, she was sent to the hospital for treatment are integrally connected to the circumstances of death of such person. The statement of
The records of the hospital also showed the case of suspected consumption of poison. She pOuring of kerosene on the deceased, intervention of the mother in process and her
survived and there was no danger to her life. It cannot be said that sending Judicial Peceiving burn injuries resulting in her death are integral part of the same transaction.
Magistrate for recording dying declaration was not right. It would be relevant as a Thus, the statement which relates to circumstances of the transaction resulting in her
confessional statement if recorded according to procedure prescribed in CrPC² |now. death being admissible, can be relied upon to show as to how the death of the deceased
BNSS]. took place.
Statement about the death of another.-The dying declaration is the statement Statements not connected with the cause of death.-The dy ing declaration is
made by a person as to the cause of his death or as to any of the circumstances of the the statement made by a person to the cause of his death or as to any of the circumstances
transaction which resulted in his death. Statement of the deceased as to the cause of the of the transaction which resulted in his death and such details which fall outside the ambit
death of another person is not admissible under Section 26. The statement of the deceased
of this are not strictly within the permissible limits laid down by Section 32(1) of the
to the effect that another person who had died was stabbed by the accused is inadmissible Evidence Act |section 26(a), BSA]and unless absolutely necessary to make a statement
under Section 26. Where there are crOSS cases for deaths of persons of two parties a dying coherent or complete should not be included in the statement. Where the dying declaration
declaration of amember of one party could not be used as evidence in the case against the is a long document and is a narrative of a large number of incidents which happened
member of his own party. The appellant was a resident of village Urte. One Mst. Jatari before the actual resort, such long statement being more in the nature of first information
who was a widow also lived in the same village. She had two young daughters one named reports than recitals of the cause of death or circumstances resulting in it, are likely
to
Baisakhi and the other named Aghni. The appellant wvas charged with the murder of without
Baisakhi.On Tuesday 7th May, 1957 the two sisters Baisakhi and Aghni had gone out to give impression of their being not genuine or not having been made unaided
pluck wild berries in a hilly jungle. On the same day Mst. Jatari had herself gone to pluck prompting.
berries at place. When she left the house in the morning her two daughters were in the Where the statement made by the deceased was not in regard to cause of hisdeath or
the statement
house. Mst. Jatari came back about noon and found Aghni alone in the house. She as to any of the circumstances of the transaction resulting in his death and
enquired from Aghni about the elder sister Baisakhi and Aghni made certain statement to related to the accused's involvement in the abduction of a boy having no remote
her mother as well as to other persons later that day and the next day, which related to the connection or reference to the death of the deceased, it would not
be admissible under
circumslances of the transaction which resulted in death of Baisakhi. Aghni, however, died Section 32 of the Evidence Act (section 26, BSAJ.
before her statement could be recorded in any Judicial proceedings. The Courts below and lady was found ina
the High Court relied upon the statements of Smt. Aghni referred to above. It was held In Bhairon Singh v. State of M.P.4the body of the deceased was married to
that as the statement made by Aghnidid not relate the cause of her death or any of the well in a village. The cause of death was asphyxia due to drowning. Shetook place about
circumstances relating to her death; on the contrary, the statements related to the death of accused-appellant about 10 years before her death and Gauna ceremony
accidental. Since the marriage of
her sister. Therefore, they were not admissible under Section 32(1) of Evidence Ac three years after marriage. The trial Court held the death more than seven years before the
taken place with the accused-appellant
|section 26(a), BSAJ. the deceased had
113-A and |13-B of the Indian Evidence
Dying declaration being integral part of circumstances resulting in death date of her death, the presumption under Sections
of another person.-In Tejram Patil v. State of Maharashtra, the deceased was State of
LJ 1829 at p. 1835; Sharad Birdichand Sarda v. Narain
Tejram Patil v. State of Maharashtra. 2015 Cri v. State of Bihar, AIR 1959 SC 18; Pakala
Maharashtra, AIR 1984 SC 1622: Ratan Gound 1966 (SC) decided
Kumar v. State of U.P., Cr App No. 55 of
1 AIR 1997 SC 234 Swamy v, Emperor, AIR 1939 PC 47: Shiv
2 Ram Singh v. Sonia, AIR 2007 SC 1218 at pp. 1225, 1226. on 29.7.1966, referred to.
3 Ratan Gond v. State of Bihar, AlR 1959 SC 18; Also see Kanwar r, 1947 ALJ 627. 2. Bakshi Singh v. State of Punjab, AIR 1957 SC 904.
1564.
2015 Cri LLJ 1829 (SC). 3. Vinay D. Nagar v. State of Raiasthan, AIR 2008 SC 1558 at p.
4. AIR 2009 SC 2603.
 THEBHARATIYA SAKSHYAADHINIYAM, 2023 [S. 26 S. 26] RELEVANCY OF FACTS 273
272
Act [sections 117 and 118, BSA] was not attracted and acquitted the accused of offence According to the note, the then Irrigation Minister wanted to kil him due to
under Sections 304-B and 306 of IPC [sections 80 and 108, BNS] but the trial Court held personal differences with him. He was informing the State and the police by this note
the accused guilty under Section 498-A of IPC (section 85, BNS] and Section 3 of Dowry hat if he died, he requested a thorough investigation. If he makes a complaint today
Prohibition Act, 1961, and sentenced the accused with rigorous imprisonment of three hen the petitioner will, by using his influence, destroy the complaint, therefore
years alongwith afine of Rs. 5,000/-for the offence under Section 498-A of IPC (section he was keeping this note in his purse. He gave his fingerprint on the letter and also
85. BNSI andrigorous imprisonment of five years alongwith fine of Rs. 15.000/- fo e signed it.
offence under Section 3 of Dowry Prohibition Act. The High Court set-asida Onthe direction of Sessions Judge, the case was reinvestigated. The Police did not
conviction and sentence under Section 3of the Dowry Prohibition Act but mainto: Gindcomplicity of the petitioner. On the basis of the letter written by the deceased and
conviction under Section 498-A of IPC |section 85, BNS). The basis of conviction onfirmation of tWo Witnesses that the letter was in the handwriting of the deceased. the
the only evidence of P.W.4 and P.W.5, the brothersS of the deceased that their deceace Secsions Judge taking the view of prima facie strong case against the accused summoned
sister told them that the accused used to torture her as he wanted her brothers to arrange a High Court
iob for him or a house be given to him or a cash of Rs. 1lakh be given to him to enahl
the petitioner. Against this order, the special criminal application filed in the
ras dismissed. The Supreme Court allowed the appeal and held-Under Section 319 of
him to do some business. On the deposition they stated that as and when their sister e the CrPC |section 358, BNSSJ, degree of satisfaction of the Trial Court for
to their house, she would tell them that the accused used to insert cloth in her mouth adding a person as an accused who has been erroneously omitted or deliberately
excluded
give beatings for dowry. hy investigating agency is much higher. In the present case, except the apprehension
cause
exnressed by the deceased, the statement made by him does not relate to the death.
The Supreme Court set-aside the conviction of the accused appellant. Justice R.M. any circumstance of the transaction which resulted in his
of his death or to
Act |section
Lodha observed:
The note does not satisfy the requirement of Section 32 of Evidence
thus, cannot be
26. BSA]. In our opinion, it is not admissible in evidence and Codel [section
"In our considered view, the evidence of P.W.4 and P.W.5 about what the deceased considered as such to enable exercise of power under Section 319 of
the
Ranjana Rani alias Raj Kumari had told them against the accused about torture and 358, BNSS].
harassment is inadequate under Section 32(1)of the Evidence Act [section 26(a), BSAJ and
deceased's son had
such evidence cannot be looked into for any purpose. Except Section 32(1) of the Indian In Jayamma v. Stateof Karnataka,' the allegation was that the
Evidence Act [section 26(a), BSA], there is no other provision under which the statement assaulted the husbandof appellant -1 in a quarrel due to long standing animosity between
incident, the
of a dead person can be looked into in evidence. The statement of a dead person is the families of the deceased and the appellants. On the 1lth day of thethe assault and
admissible in law if the statement is as to the cause of death or as to any of the her about
appellants went to the house of the deceased and confronted
circumstance of the transactions which resulted in her death, in a case in which cause of cost incurred in the medical expenditure. After a heated exchange of words,
demanded the
death comes into question. What has been deposed by P.W.4 and P.W.5 has no deceased woman in kerosene and set her on fire and then fled
the appellants doused the
Connection with any circumstance of transaction which resulted in her death. The death of thereto. The Police
Smt. Ranjana Rani alias Raj Kumari was neither homicidal nor suicidal; it was away. The specific roles were attributed to all the appellants in respect hospital. On
SHO reached the hospital and recorded the statement of the deceased in the
accidental. Since for an offence under Section 498-A [section 85, BNS] simpliciter, the her statement, the case was registered under Sections 504,307, 1
14 read with Section 34
question of death is not and cannot be an issue for consideration, we are afraid evidence of of IPC [sections 352, 109, 54 read with Section 3(5), BNS]. Two days
later, she died in
P.W.4 and P.W.5 is hardly an evidence in law to establish such offence. In requisition to the Court requesting to alter the alteration of
that situation Section 32(1) of the Evidence Act [section 26(a), BSAJ does not get the hospital. The police sent a
Section 307 read with Section 34, IPC[section 109 read with Section 3(5),
attracted "l offence under
read with
BNS] to offence under Section 302 read with Section 34, IPC [section 103
section 3(5), BNS), The post-mortem report opined that deceased died
of shock due to
Circumstance not relating to the cause of death.-In Babubhai Bhimabhai 302, 114 read
Bokhiria v. State of Gujarat, the deceased was murdered. After investigation of the case, extensive burn injuries. The appellants were charged under Sections 504, The crucial
the police submitted charge-sheet. The case was committed for trial to the Court of with Section 34, IPC [sections 352, 103, 54 read with Section 3(5), BNSJ.
or homicidal. The sole
Session. During such pendency of the case, the wife of the deceased filed an application question before the Trial Court was whether the death was suicidal
material on record to connect the accused persons with the offence of murder was the
for further investigation of the case under Section 173(8) of the CrPC (section 193(9), the prosecution
BNSS] alleging petitioner's complicity in the crime alleging, inter alia, that the statement of the deceased being treated as dying declaration on which
petitioner, a business rival of the deceased conspired with the main heavily banked. The Trial Court held the appellants not guilty on the ground of evidence
partner of the petitioner, to kill the deceased. Since the petitioner wasaccused, the business
a Minister carlier in being vague and unsatisfactory but the High Court
reversed the finding and held, inter
was clinching and sufficient to bring
the State, he was let-off during investigation. It was pointed out that a letter written alia, that the evidence consisting of dying declaration
Section 302 read with Section 34, IPC
almost a year ago by the deceased in his own hand writing was the guilt home and convicted the appellants under
stated that in the event of his death, the petitioner would be heldfound in his purse which
kill him. The letter read as follows liable as he intended to
1 Babubhai Bhimabhai Bokhiria v. State of Gujarat. AIR 2014
SC 2228 at pp. 2230, 2231, 2232; Pakala
Kumar v. State of U.P., Cr. Ap. No. 55 of 1966,
Narain Swamy v. King Emperor, AIR 1939 PC 47; Shiv 1984 SC 1622:
1 Bhairon Singh v. State of M.P., AIR 2009 SC 2603 at p. 2607, decided on 29th July, 1966 (SC): Sharad Birdichand Sarda State of Maharashtra, AIR
Inder Pal v. State of M.P., (2001) 10 Sscc 768, referred to.
736 referred to in support. Rattan Singh v. State of Himachal Pradesh. AIR 1997 SC
2 AIR 2014 SC 2228. 2. AIR 2021 SC 2399.
 2023 RELEVANCY OF FACTS 275
SAKSHYA
ADHINIYAM,
|S. 26 S. 26]
THE BHARATIYA
274 to life anticipate being killed. The only condition is that the circumstances must be the
Section 3(5), BNS]
and sentenced them imprisonment. The
(section 103 read with endorsed the view ofthe Trial Court and set aside circumstances of the transaction which resulted in the death of the declarant !
the appeal and question of
Supreme Court allowed following reasons-The reliability of dying Where the fact in issue was whether J had committed murder of K. Astatement of
Court due to
the order of the High The narration of events
in the dying declaration was so accurate
hefore he was assaulted that J had taken cash and ornaments from him and that he was
V
declaration was involved. mind, could not be
expected to depose with such
state of going there
to demand, is admissible as dying declaration.?
that even a witness in
a-norma!
questioned the deceased but
the pur
was said to have
precision. The police officerquestions and answers format. Evnectation of death.The section declares that such statements are relevant
in
dying declaration wvas not whether the person who made them was or was not at the time
when he made the
hume
old person and it appears beyond under the expectation of death 3
The injured victim was an illiterate able to narrate the minutes of the incident .
statements
probabilities that she would have
been relevancy of dying
record that the wiot Though the expectation of the death does not affect the
There was sufficient evidence on sufferred 80% declaration. If the person
such a high degree of probability. sedative pain killers. The victim had declaration but it will certainly affect the weight attached to the
had been administered highly possibility to speak the
The legitimate inference of which
would he thot making the declaration is conscious that he is dying soon the
injuries on all vital parts of the body. possibility of her being in a state of truth is very
great.4
agony and the
was reeling in pain and was in great be completely ruled out. The doctor made th
delusion and hallucination could not West Bengal,5 the Supreme
InNajjam Faruqui alias Najjam Faruqui v. Statetheofappellant
statement after the statement wae (deceased) died long
endorsement of victim's fit state of mind to make the that
Court held that there was no merit in the contention statements had no value. The second
practice. The dying declaration wac
recorded and not before thereto being the normal after making dying declaration and therefore
those
therefore, held to be not reliable.! section 26(a), BSA] reads as follows:
para of Section 32() of Evidence Act
maker
Dying declaration not recorded directly from the actual words of maker hut made the statement was or
"Such statements are relevant whether the person who expectation of death and
the actual words of
Where the dying declaration was recorded not directly from was not at the time, when the statement was made, under
suspicion about its credibility
as dictated by somebody else, this by itself created a lot ofsatisfaction which the cause of his death comes into
of the Court. The whatever be the nature of proceeding in
and the prosecution should have cleared the same to the with the question,"
Trial Court on overall consideration of evidence of prosecution witnesses coupled
at which statement wvas recorded and also it has been pointed out that when
fact that there was overwriting about the time The Supreme Court further held.No doubt
insertion of two names as accused did not consider it safe to rely upon dying declaration place shortly, he would not be indulging in
benefit of a person is expecting his death to take statement would loOse its values if the person
and in the absence of any other evidence acquitted the accused giving him the falsehood, but that does not mean that such
doubt. Held-The view taken by the Trial Court as to the credibility of dying declaration has to be determined in each case on the
lives for longer time than expected. The question
and evidence of other witnesses was a possible one. The High Court in upsetting the facts of circumstance established therein. If there is nothing on record to show that the
judgment of Trial Court has not kept in view the well established principles in hearing other evidence on record corroborates the
statement could not have been true or if the
the appeal from the judgment of acquittal. contents of statement, the Court can certainly accept it.
Death by injuries caused.-When the deceased is not proved to have died as a declaration should be under shadow of
result of injuries received by him in the incident where the deceased is said to have been It is not necessary that maker of the dying
death was imminent. There was no delay in
death and should entertain the belief that his
killed, his statement cannot be said to be a statement as to the cause of his death and thus deliberation or false implication on
is not admissible. One Gaya Charan received gunshot injuries. He was admitted into a recording dying declaration. Thus, the question of
account of previous enmity would not arise.o
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 Section 32 of Evidence Act [section 26, BSA]
does not require that the statement
amount to dying declaration and was excluded.3 admitted in evidence should have been made in immediate expectation of
SOught to be
In Om Prakashv. State of Punjab,4 the death was caused by injury. Two doctors death.
had examined the deceased. She was found able to make dying declaration. The deceased the deceased made under the following
was alive for 12 days after the incidence. The statement of deceased cannot be rejected only In a trial for murder, a written declaration of
prosecution; the declaration was made on
because she was burnt badly. Circumstances, was tendered in evidence for the
before
before death: the clerk asked the deceased
Oath to a Magistrate's clerk about 1hour
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 1 Emperor v. Sheo Bhai, AIR 1976 Bom 513.
2 Jainand v. Rex, AIR 1949 AII 291.
1. Jayamma v. State of Karnataka, AIR 2021 SC 2399 pp. 2408 to 2411. 3 Bharat v. State of Rajasthan, 1981 Cr LJ 1274.
2 Muralidhar v. State of Karnataka, AIR 2014 SC 2200 at p. 2206, Sheo SwaroopV.v. K.E., AIR 1934 PC Enayat Khan v. Emperor, AIR 1935 Lah.
94.
227; Surajpal Singh v. State, AlR 1952 SC 52:Ghurey Lal v. State of U.P., AIR State v. Kanchan, AIR 1954 All 153;
SC (Supp) 1318 etc. AIR 1998 SC 682
reliedon.
Moti Singh v. State of U.P..,AIR 1964 SC 900.
6 State of Haryana v. Mangeram, AIR 2003 SC 558
Kans Rajr. State of Punjab, AIR 2000 SC 2324
3
7
4 AIR 1993 SC 138.
 2023
SAKSHYA ADHINIYAM.
THE BHARATIYA IS. 26
276
statement whether she
felt she was Iikely to die; she "Isaid S. 26] RELEVANCY OF FACTS 277
hetook down her then extremely short: the
breath was
clerlnk
from shortness of my breath"; herthat youmake these statements? Have yOu any
evidence is tothe cause of death of the deceased would necessarily depend on the facts and
of death before you
with of your recovery?" She said "none" The clerkthen wrote out her statement andpresent
hope the fear added circumstances of each case. No specific strait jacket formula
or role can given with
be
respect to this.
to it the above conversation in the form of a statement by the deceased, but he omitted the
then read over to the deceased what he had
"present" before "hope". He
after "hope" and signed the declaration. written,
The nature of proceeding-Civil or Criminal,-lt also does not limit the
It was and
word present"
she then added, the words "at of this rule to any particular proceeding. The proceeding may be Civil or
admissible, as it did not appear to have been made underhelda
application

that the statement was not

settled hopeless expectation of death, inasmuch as the deceased had expressly qualified t Ciminal. Wherever the cause of that person's death is a point at issue, the statement will
e admissible. As mentioned above, the statement as to the cause of death or as to any
word "no hope" by inserting after them words "at present"! eumstances 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 bc a
Evidence of the deceased admissible under Section 26(a) to prove t.. harge of murder or homicide. It may be acharge of a different nature or it may be acivil
-barge under Section 85 of Bharatiya Nyaya Sanhita even if the accused antion, The only material point is that the cause of death (of the person whose statement
aguitted of charge relating to death of the deceased.--In Surendran v. State oE sought to be proved) must come into question irrespective of the nature of the
Kerala 2the deceased after her marriage with the appellant on 9.4.1995 was residing in her proceeding in which comes into question. The mere facts that the charge of murder
matrimonial home. It was alleged that the appellant and his family members started failed would not make the statement inadmissible.
harassing her soon after her marriage and were demanding additional dowry. Due to mental
harassment, she attempted suicide by consuming Benzyl Hexa Chloride powder but she Proximate and not remote cause.--As observed by the Privy Council in Narain
recovered after treatment in the hospital. After mediation and settlement Swami v. Emperor, the circumstances must have some proximate relation to the actual
parties, she continued to reside at the house of the accused. Due to between the OCcurTence.

harassment, she committed suicide by hanging on 21.10.1996 at her own continuation of

home. The The deceased was maltreated by the members of her father-in-law and other relations.
Trial Court convicted the appellant, his two brothers and mother under Sections She was driven from the house. She wrote many letters to her father-in-law and mother
and 498-A of IPC [sections 80 and 85, BNS]. On appeal, the appellants brothers304-B in-law. Being sick of their treatment, she committed suicide by being run down by a
acquitted but the conviction of the appellant and his mother was were
confirmed. The High train. The father-in-law and others were tried for abetting the commission of suicide. At
Court partlyallowed the revision petition and acquitted the appellant and his mother under the trial, letters written by the deceased were produced in evidence as dying declaration.
Section 304-B, IPC Isection 80, BNS] but confirmed their conviction under Section 498 The first of these letters was written &months before the suicide and the last at about 5
A, IPC [section 85,BNS]. The accused-appellant filed the appeal to the Supreme Court. months before incident. They were held inadmissible they could not be said to be the
His mother did not appeal. The main thrust of the submissions made by the counsel for circumstance of the transaction which resulted in her death. In other words, they were not
the appellant were that the suicide note and other statements made by the deceased could sufficiently closely enough connected with the actual transaction. But it should be
not be relied upon by the Court for convicting him under Section 498-A, IPC [section remembered that statements are not admissible to previous or subsequent transactions. At
85, BNS] as they did not fall within the scope of Section 32(1) of the Evidence Act the same time the statement of that person only is admissible whose death is a subject of
[section 26(a), BSA]and second the evidence of P.W.3, the mother of the deceased, was the inquiry at the trial.
contradictory which could not be relied to convict the appellants. The Supreme Court
dismissed the appeal and held 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
In some circumstances, the evidence of a deceased wife with respect to cruelty could statemnt was held to be dying declaration.>
be admissible in a trial for charge under Section 498-A of the IPC [section 85, BNS] and
Section 32(1) of the Evidence Act [section 26(a), BSAJ. There are, however, certain Form of dying declaration.There is no particular form to be employed in
necessary preconditions that must be met before the evidence is admitted. The first making adying declaration. It may be oral or in writing or may even bethat
partlyis tooralsay,andit
condition is that her cause of death must come into question in the matter. This would partly in writing. On the other hand, it may be neither oral nor written,
include, for instance, matters where along with the charge under Section 498-A of the IPC may consist of some signs or gestures made by the deceased. There must, however be a
[section 85, BNS], the prosecution has also charged the accused under Sections 302,
306 distinct and definite assertion on the part of the maker however it may be affected.
or 304-B of the IPC (sections 103(1), 108 or 80, BNSJ. It
must
long as the cause of her death has come into gquestion, whether be noted, however that as
death is proved or not is immaterial with respect to admissibility.the charge relating to the
1 Surendran v. State of Kerala, AIR 2022 SC 2322 p. 2330: Gananath Patnaik v. State of Orissa, (2002) 2
The second condition is Cri LJ926 (SC);
SCC 619: AIR Online 2002 SC 93: Inderpal v. State of M.P., (2001) 10 SCC 736: 2002Martaji
that the prosecution will have to show that the evidence Bhairon Singh v. State of M.P.. (2009) 13 SCC 80: AIR 2009 SC 2603 and Kantilal Pandor v.
with respect to Section 498-A of the IPC [section that is sought to be admitted of the
State of Gujarat, (2013) 8 SCC 781: AIR 2013 SC 3055 overruled to the extent that the evidence
trarnsaction of the death. How far back the evidence85,canBNS] must also relate to the
be, and hoW connected the
deceased cannot be admitted under Section 32(1) of the Evidence Act [section 26(a), BSA] to prove the
accused stands acquitted
Charge under Section 498-A of the I.P.C. Isection 85, BNS] only because the
of the charge relating to the death of the deceased.
R. v. Jenkins, (1869) ILR CC. Q. 187. 2
Khushal Rao v. State of Bombay, AIR 1958 SC 22.
2 AIR 2022 SC2322. Parmanand v. Emperor, AIR 1940 Nag. 340.
4. AIR 1939 PC 47.
5
Ashnk Kumar v. State of Rajasthan, AIR 1990SC 2134.
 2023
BHARATIYA
SAKSHYA
ADHINIYAM,
[S. 26 S. 26] RELEVANCY OF FACTS 279
THE
of the
278

should be written
in the exact words
written dying
person making it,
declaration The guestiont was, was she awake when her throat was cut. She made a negative sign.On
Possibly, the declaration of the injured are not cannot the auestion if she had been asleep at that time, she made an affirmative sign. On the
because the very words declaration, preferably it should be auestion whether she had been wounded in the night, she made a negative sign. To
But simply Magistrate writes a
dying in
doubt that the
berejected. When aform. If there is nothing to the deceasedperson recording the question whether
she was wounded in the morning, she made affirmative sign. On the
question and answer was stated by
|it would not make question whether she recognised Abdullah, she made affirmative sign.
recorded exactly what recorded in form of
dying declaration because the same was not
the
question and The evidence was offered by the prosecution to prove the above questions put to the
dying declaration in language of the maker.
merely
any difference better to recordthe
answer. It is certainly or the dying declaration because it was onased and abovementioned signs in answers to them. Objection was taken to the
the evidentiary valuerecording it is well ConverSant reception of their evidence on the ground that under Section 32(1) of Evidence Act
But it would not affectlanguage if the person into the
recorded in another Tsection 26(a), BSAJonly written or verbal statements made by a deceased as to the cause
languages.* of bis death were admissible, and that signs were not verbal or written statement within
declaration has not been
recorded by a
Magistrate, it that section. Overruling thiS objection it was held by the Full Bench through Patheram
Simply because the dying CL that the questions and signs taken together might perfectly be regarded as 'verbal
cannot be disbelieved.5
ctatement' made by a person as to cause of the death within the meaning of Section 32(1)
question arose as to credibility of do: of the Evidence Act (section 26(a), BSA], and therefore, admissible in evidence as dying
In Kajal Sen v. State of Assam,° the another language by the person to wh declaration. In another case, the victim whose throat was cut by the accused was
alive for
declaration made in a language and translated in answered the questions by signs
the dying declaration was translated t some time and being questioned regarding the accused she
the dying declaration was made. In this case, declaration though he admitted that he k
was asked
and nods not being able to speak. She described the accused by signs and she that the
English by the person recording the dying declaration admitted that deceased whether that person was the accused, she showed assent by a nod. It was
held
dying
other language also. The person recordingtalking resembling the case of a
who were with him. This fact that he heard enti statement made by the deceased constituted a verbal statement
surrounded by many attendants
dumb person and was relevant and admissible
in evidence I
statement of the deceased in other language and keeping it in memory
wrote it down in
stated that
English was not mentioned in dying declaration. The fact that the deceasedIthad was held that Thus. it is clear that 'a dying declaration may be communicated by any adequate
believed.
his statement could be taken as dying declaration could not be method of communication whether by words or by signs or otherwise providedof its
the
doubtful.
entire story of recording dying declaration was indication is positive and definite and seems to proceed from the
intelligence
meaning.2
Statement by signs.-In Queen-Empress v. Abdullah,' the appellant was charged
before the Court of Session with a murder of the deceased, a prostitute by cutting her Role of Executive Magistrate doubtful-Reliability of dying declaration.
September, 1884, the of
throat with a razor. It appeared that on the morning of 27th
and from there to the In Poonam Bai v. State of Chhattisgarh, the prosecution failed to place original copyany
dying declaration on record and the photocopy of dying declaration signature of
deceased, with her throat cut, was taken to the police station
dispensary. She lived till the morning of the 29th. The post-mortem examination showed witness although Naib-Tehsildar-cum-Executive Magistrate specifically stated that he had
that the wind pipe and the anterior wall of the gullet had been cut through. The deceased taken signatures of three witnesses. He also did not satisfy himself about the fitness of
was
had also a cut on the left thumb. When she was taken to the police station, she the victim to make a statement. There was no verification or certification of the doctor
was also at the same time
questioned by her mother, in presence of the sub-inspector. She that the victim was fit to make statement. The Investigating Officer admitted that he went
questioned by the sub-inspector of police and again subsequently, by Deputy Magistrate to the spot of the offence at about 2.15 P.M. immediately after getting the news ofwas the
and the Assistant Surgeon. She was unable to speak but was conscious and able to make deceased having been set on fire by the accused. When he arrived, the victim
She closed her lips.
signs. The Magistrate asked the deceased as to who had wounded her. unconscious and her skin was pealing off. He shifted her to hospital in an
unconscious
Then the Magistrate mentioned several names and asked regarding them one by one if they state. The Investigating Officer did not say anything about the presence of Naib-Tehsildar.
had wounded her. She waved her hand backwards and forwards and thus making a negative He also spoken neither about the requisition sent by him nor about the dying
declaration.
sign. Then she was questioned whether the appellant had wounded her. On this, she police were already
The Naib-Tehsildar deposed that when he reached the hospital, the Evidence
moved her hand up and down, This was understood to be a sign of affirmation by the there. No record was produced about recording of dying declaration.
of relatives
Magistrate recording the statement. Question was put to her if she been wounded with relating to dying declaration proved to be highly suspicious. Held-lt is quite
SWord or knife. She made a negative sign with her hand. The question was put if she had lengthy statement between 12.15 to
unbelievable that the victim could have made such a
been wounded with a razor. She in answer to this made an affirmative sign with her hand. Naib-Tehsildar recorded dying
12.30 P.M. in an unconscious condition, Had the
declaration, the Investigating Officer would have deposed about the same. The role of
suspicious. Dying declaration and motive was not
1 Majan Miyan v. State, AIR 1970 Assam 121; Vinayak Dutt v. State, AIR 1970 Goa 96; Pritam Singh . Naib-Tehsildar appears to be highly
State, 1972 AWR 521. established.4
2 Bakshis Singh v. State of Punjab, AIR 1957 SC 904.
3. RaviChandra v. State of Orissa, AIR 1980 SC 1738.
1. Alexender v. The King, AIR 1937 PC 24; Sundama
v. King Emperor, AlIR 1949 Nag 405.
State of Maharashtra v. Gopichand, 1985 Cr LJ 784. 2 Gokul Chandra v. State, AIR 1950 Cal 306.
5 Balbir Singh and another v. State of Punjab, AIR 2006 SC 3221. 3 AIR 2019 SC 2130.
6 AIR 2002 SC 617. 2019 SC 2130 at pp. 2133, 2134, 2135.
Poonam Bai v. State of Chhattisgarh, AIR
7 ILR 7 AlI 385.
 ADHINIYAM, 2023
THE BHARATIYA
SAKSHYA
|S. 26
280 Ram Bihari Yaday y. State of Bihar he S. 26]
declaration.-In RELEVANCY OF FACTS 281
Court
Form dyingfollowing
of made observation with reference to form and acceptance of
from the language of the parties to the language of the Court.
Supreme does not affect either the admissibility of the statement or its Such translation procesS
dying declaration:
Ater reasons to doubt the truth of it. Nor declaration reliability unless there are
"Generally the dying declaration ought to be recorded in the form of questions- becomes bad because the Magistrate
answers but if adying declaration is not elaborate but consists of only few sentences and bos not recorded it in the form of questions and answers. It is
form. axiomatic that what matters
is the substance not the
of the maker the mere fact that it is not in questions-answers form
is in actual words condition o Videography of dying declaration.-Videography of dying
cannot be ground against its acceptability or reliability. The mental h a measure of caution and in case, it is not taken care of, it would not bedeclaration is only
maker of dying declaration, alterness of mind, memory and understanding of what fatal for the case
saying, are the matter which can be observed by any person. But to lend assurance to anddoes not in any circumstance compel the Court to completely discard that particular
those factors having regard to theimportance of the dying declaration, the certificate dying declaration.!
medically trained person is insisted upon. In the absence of availability of a doctor Where deceased not labouring under imminent death.Where the deceased
certify the abovementioned factors, if there is other evidence to show that the recorder not labouring under imminent death and not recounting circumstances of his
statement has satisfied himself about those requirement, before recording the dviw transaction relating to his death, his dying declaration cannot be directly acted upon
declaration, there is no reason as to why the dying declaration should not be accented withoutconcreate corroboration,2

The dying declaration not recorded in question answer form cannot be discarded on Dying declaration made before Judicial Magistrate.--A dying declaration
that ground alone. Statement recorded in narrative form is more natural and gives version made before a Judicial Magistrate has higher evidentiary value as he is presumed to know
of incident as it has been perceived by the victim. Deceased while making statement how to record a dying declaration and he is a neutral person.3
spoke in Kannada and Urdu languages but the statement was recorded only in Kannada, it In a case under Sections 306 and 498-A of IPC [sections 108 and 85, BNS], dying
was held that it could not be discarded on ground that it was recorded only in Kannada
language. 2 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
Dying declaration in the form of questions and answers,--In the dying recorded the dying declaration, the doctor endorsed the fitness of the mental state of the
declaration made by the deceased, in some of her statements, she did not state the actual deceased.
part played by the appellant. She merely answered the questions put to her. Held- When The dying declaration was held to be suspicious.4
questions are put differently, answers would also appear to be different. Ata first glance,
the detailed description of the offence may appear to be missing but the statement of the Statement written by doctor.-Adying declaration written by a doctor is
deceased must be construed reasonable. 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
Language and Form.-In State of Rajasthan v. Bhup Singh, the respondent other eye witnesses, it was held that it was sufficient to convict the accused.5
accused, was convicted for the offence of murder by the trial Court. The High Court of
Rajasthan acquitted him because the deceased in her dying declaration recorded by the Where the dying declaration was recorded by doctor who himself certified that.
Judicial Magistrate answered the questions put to her in Bagri language whereas patient wvas in fit condition for reading the statement, his non-mentioning that the patient
Magistrate recorded it in Hindi in a narrative form not in the question and answer form. was in fit mental condition and throughout remained conscious would be of no
The Magistrate had also not ascertained from the doctor whether the deceased was in a consequence.6
position to give a conscious dying declaration. The Supreme Court held-The doctor and It is improper to reject the dying declaration on the ground that the
fitness of the
Judicial Magistrate both said in one accord that the deceased was conscious at the time of maker of it depended solely on the certificate of the doctor and the Magistrate himself did
making the statement. If the dying declaration recorded by Judicial Magistrate is reliable, not inquire independently as to whether the deceased was in a fit state to
make dying
there is no legal hurdle in basing a conviction on it even without any supporting declaration7
material. The dying declaration was unmistakably clear that her husband had shot the Sambhu B. v. State of
deceased with a pistol. Similarly, it was a wrong assumptions that the deceased would not Fitness of the deceased-Certificate of Doctor.-In
Madhya Pradesh,8 the dying declaration was recorded by the Magistrate. Doctor had
have spoken Hindi because the Magistrate in his evidence positively stated that deceased make statement. The deceased had
gave her answers in Hindi. Even otherwise, it is too much to think that Judicial certified that the deceased was in fit state of mind to
Magistrate would have recorded differently from what the deceased had said to him.
Assuming that the deceased gave her statement in her own language, the dying declaration 1 Mukesh v. State for NCT of Delhi. AIR 2017 SC2161 p. 2225.
would not vitiate merely because it was recorded in a different language. It is not unusual 2 Gargi v. State of Haryana, AIR 2019 SC 4864.
AIR 2009 SC 1059 at p. 1062.
that the Courts record evidence in the language of the Court even when witnesses depose 3 Samadhan Dhudaka v. State of Maharashtra,
352-353.
in their own language. Judicial Officers are used to practice of translating the statements 4 Subhash v. State of Haryana. AIR 2011 SC349 at pp. of M.P., AIR 1976 SC 2199.
i993 Cr LJ 984: Munna Raja v. State
5. Malik Ram Bhai v. State of Orissa. SC 2535; See also Ashok Laxman
Gaikwad v.
ard others, AIR 2006
AIR 1998 SC 1850.
6. Heeralal Yadav . State of M.P.
State of Maharashtra, AIR 2006 SC 1773.
2 State of Karnataka v. Shariff, AIR 2003 SC 1074. AIR 2009 SC948 at p. 949.
3 Maniben v. State of Gujarat, AIR 2007 SC 1932 at p. 1933.
7. State of Tamil Nadu v. Karuppasamy,
8. AIR 2002 SC 1307.
4 (1997) 10 SCC 675.
 ADHINIYAM.

THE BHARATIYA
SAKSHYA
[S. 26
poured kerosene on her body and S. 26]
282
had set RELEV ANCY OF FACTS
Declaration was corroborated
declaration
accused on
that by thefact that deceased was found with burn injuries fire. near 283
stated in the .ben her dying declaration was recorded. Such
was heldis liable to be convicted for offence of dying declaration can be relied on by the
the house of
accused. The
accused
to the hospital on scooter or any other
murde. Court.!
The fact whether
Magistrate had gone
the body of the deceased vehicle or Dying declaration after
Jalaration's credibility was objected administration
injuries on were of pathedine.-The dying
whether he noticed
percentage ofburn
basis for disbelieving dying
declaration irrelevant on the ground that the deceased was
matters and could not form thedine injection and could not give evidence administered
In Shanmugam alias Kulandai Vellu v. State of Tamil Nadu, 1the dying declaration tated that the patient was administered injectioncoherently
at 12.50
but the doctor in his evidence
P.M. the
was recorded by the Magistrate within few hours of victim being admitted to hospital. t for notmore than tvo hours as the patient with 80% bçrn effect of which could
TasThe doctor examined him at 2.30 P.M. injuries was in severe
Magistrate stated in his examination that at the time of making dying declarati when he was in a condition to make the
The
victim was conscious. Medical Officer present at the time of recording dying declaration tatement. Doctor's evidence corroborated with the evidence of fitMagistrate who recorded
also made endorsement about consciousness of the victim. Held-Mere non-examination dving declaration. The doctor and the Magistrate both were official witnesses and their
held to be reliable 2
of doctor in whose presence dying declaration was recorded does not affect its evide: evidence was
value. Non-examination of doctor who endorsed dying declaration-In Amar
Cinoh Yadav v. State of U.P., the accused-appellant who was a police constable, had
In number of cases, the Supreme Court has held that if the statement of a 1lioit affairs with two women. Accused took his wife and four children (three daughters
dying
person passes the test of carefully applicd by the Court it becomes more reliable evideno
and does not require corroboration. The two things which a Court must take care of tor and one son) in a Maruti Van on the pretention of purchasing marriage articles for her
examining adying declaration arc that:-()it is not the result of coaching, tutoring or 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
prompting of somebody, (2) and that deceased was in a fit state of mind to make the petrol all around the van and set it ablaze and tried to push the vehicle in apit for kiling
statement and made the statement without any enmity. The dying declaration must them. Some petrol had already been sprinkled inside the vehicle. Luckily, aPolice
inspire confidence, hence, from medical evidence it becomes doubtful that the declarant Inspector with his companion constables arrived there and without caring of his life broke
was conscious the dying declaration cannot be relied upon. Where dying declaration was onen the doors of the burning vehicle and took out the wife of the appellant and four
recorded by the doctor in the hospital, evidence of doctor cannot be discarded merely children. The appellant was held guilty under Sections 302, 307 and 436 of IPC (sections
because the deceased had suffered 100% burns and her general condition was poor, when 103(1), 109 and 326(g), BNS]. The wife of the appellant and the two daughters in their
doctor stated that she was in a fit of state of mind and was able to make the dying dying declaration narrated the whole story. On the instruction of District Magistrate, Naib
declaration,4 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
At the time of recording of dying declaration by the SHO, it was not found whether
the deceased was in a fit state of mind and health to give dying declaration. The doctor's no discrepancies in dying declaration. The dying declarations clearly implicated the
statement was that he did not remember at what time dying declaration was recorded and accused. There were no suspicious features which affected the credibility of dying
he also did not know whether the deceased was iin a fit state of mind to make the
declarations. Dying declarations were fully corroborated with the statements of injured
witnesses, the children of the accused. However, the doctor in whose presence dying
statement and he also did not remember the language in which the deceased answered declarations were recorded or who endorsed the same was not examined. Held
questions put to him. The dying declaration was held to be unreliable.5
The mere fact that the doctor was not examined does not affect evidentiary value of
Where the Magistrate testified that on the identification of deceased by the doctor he dying declaration when it is corroborated by the evidence of injured witneses and other
had recorded dying declaration and the Assistant Sub-Inspector of Police had approached witnesses. The appellant's conviction was correct.4
him to record dying declaration, there was no doubi regarding the identification of the Certificate of doctor as to fitness--Only a rule of caution.-Normally, the
deceased due to detailed statement of the Magistrate.
Court places reliance on the medical evidence for reaching the conclusion whether the
According to a medical opinion, the deceased's larynx and tracheae were charred by person making a dying declaration was in a fit state of mind but where the person
heat. It was clarified that when larynx and tracheae are charred, the person cannot speak recording the statement of the deceased states that the deceased was in a fit and conscious
no
but when they are in the process of being charred, be can speak. The second medical State, the medical opinion will not prevail nor can it be said that there being
opinion was if the vocal cord of larynx is charred of a person, he may be able to speak
but certification of the doctor as to fitness of the mind of the declarant, the dying declaration
caution. Where the
not clearly and it vill be difficult to understand. The medicalopinions of IS not acceptable. A certificate of doctor is essentially a rule ofwas fit to make the
not in variance with the ocular evidence that the deceased was in a two experts wvas testimony of the Magistrate is to the effect that the declarant
position to speak doctor provided that the
Statement, it can be acted upon without there being certificate of
AIR 2003 SC 209.
Court ultimately held the same to be voluntary and truthful.>
2. Kusa v. State of Orissa, AIR 1980 SC 559: Preetam Singh v.
Singh v State of U.P., AIR 1992 SC 948. State of U.P.. 1985 Cr LJ 10; Gangotri
3 1. Rajeev Kumar v. State of Haryana, AIR 2014 SC 227 at
p. 23 1.
Darshan Singh v. State of Punjab, 1983 Cr LJ 985. 150 p. 155.
4. Smt. Chandrawati v. State, 1996 Cr LJ 975 (Del). 2 Narender Kumar y. State of N.CT. of Delhi, AIR 2016 SC
State of Rajasthan v. Wakteng, AlR 2007 SC 2020 at p. 3 AIR 2014 SC 2486.
2486 at pp. 2490, 2491.
6 Narender Kumar v. State of N.CT. of Delhi, AIR 2016 SC2022. 4 Amar Singh Yaday v. State of U.P. AIR 2014 SC
150p. 155. 1426 at pp. 1430-143 1.
5 Sher Singh v. State of Punjab, AIR 2008 SC
 SAKSHYA
ADHINIYAM, 2023 (S. 26 S. 26] RELEVANCY OF FACTS
THE BHARATIYA 285
284
on her clothes from back Side and lit
Where there was no certificate
of doctor about fitness of the deceased making dying on the match stick and rushed
che made noise, other persons came there towards inside.
Investigating Officer but the doctor was
present the time of and saved her. Her husband came and When
declaration before the
declaration and thumb-impression of the dece clothes. She was brought to the hospital because she had tore her
dying been told that she would narrate
making dying declaration and the that there could not have been any attestation of u all the facts to the police. Her mother-in-law
prepared meals herself for her sister-in-law
was attested by him, the holding and did not provide meals to her. On
document was technically held to be too
wrong. eong statement because she was made being questioned, she said that she earlier made
to understand to make such statement.
stata s Held-The
stated that the deceased was in a fit and conscious ocond part of dying declaration inspired confidence to
af the deceased. The first part of dying declaration be considered as dying declaration
Where the eye-witnesses
opinion will not prevail, nor can it be said that sines
make the declaration, the medical dying declaration was tutored by her husband as was
there is no certification of the doctor as to the mind of the declarant, the apparent from the said part,
is not acceptable. Multiple dying declaration.Where there are discrepancies and
contradictions
dying declaration may be reliable without obtaining a certificate of fitness of the
A in multiple dying declarat1on, it cannot be relied upon in the absence of other reliable
declarant by a Medical Officer.3 evidence, as a basis to record conviction.2

Doctor not present at the time of recording dying declaration.--In dying In Harbansh Lal v. State of Haryana, twodying declarations were presented. One
declaration, the accused was alleged to have poured kerosene on the deceased and set her on dying declaration was recorded by the doctor to whom the deceased was brought for
tment and
fire. The dying declaration was recorded by the Executive Magistrate before the employees other dying declaration was that upon which there was thumb impression
of the hospital. The doctor was not present at the time of recording of the statement of the of deceased. This dying declaration was written by a person and attested by Sarpanch. In
deceased, Mere absence of certificate of doctor was held to be not relevant and the the statement made to doctor, the deceased had given full description of accused and that
conviction of the accused was proper. 4 was not with any inherent fault. The statement was duly written (recorded) bythe doctor
and attested by two other doctors who were looking after the deceased. It was certified that
Contradictions in the statements of Doctor.The dying declaration was taken the deceased was in fit state of mind while making dying declaration and she remained in
in the presence of Medical Officer whose endorsement was taken on it. There were that state till the dying declaration was recorded. As far as second dying declaration was
contradictions in his statement before the Court. In his first statement, he said that the concerned it was not mentioned in FIR and itwas not exactly known when it came into
endorsement was made by him after, dying declaration was recorded but in his second existence. It was held that in absence of any proof, the second dying declaration was not
e statement when he was recalled stated that the endorsement was made by him on a blank reliable. But the dying declaration recorded by the doctor fulfils all the essential conditions
paper and dying declaration was recorded thereafter. Held-The contradiction was liable to of dying declaration and it was more reliable.
be ignored because the doctor was examined more than six months after date of making
endorsement.5 In the instant case, defence of suicide was held to be not acceptable on the face of
Where Medical Officer certified consciousness of the deceased woman while recording 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
her dying declaration and stated her to be fit but did not mention in certificate about her
doctor who based it upon information received. Hence, it was creditworthy.
mental and physical fitness, it would not militate against the validity of statement of the
Medical Officer merely because he was unablete. remember pulse rate of the deceased.o In Ganpat Mahadeo Mane v. State of Maharastra, there was one dying
Dying declaration recorded in two parts-Inconsistency.-In Pradeep Kumar declaration recorded by doctor, the other recorded by Police and the third recorded by
v. State of Haryana,' the deceased in her dying declaration before the C.J.M. stated that Magistrate; there was no inconsistency between these three dying declarations.
she started preparing tea when her husband was sleeping. The stove got burst on Conviction was made. It was meaningless that the third dying declaration was not in
the air in itand match stick lighting on it and the terycot suit worn by pumping question answer form. In this case husband was tried for causing death of his wife and was
her caught
The statement was recorded. She said, thereafter, that her truthful statement be fire. convicted under Section 302 IPC (section 103(1), BNS]by trial Court. It was held by the
recorded
again because the prior statement was tutored to her by her husband but he should not Supreme Court that we see no reason to interfere with the decision of trial Court. Appeal
show the statement to anybody. In the latter statement, she said that her was rejected.
remain in house because he was doing nothing. For the last 10/15 days, husband used to
he used to beat In Pratap Neni Ravi Kumar alias Ravi Kumar and others v. State of Andhra
her. He demanded Rs. 1lakh from her parents otherwise he would Pradesh,° the dying declaration was recorded by police immediately after deceased gained
day, he tried to hang her. He tried to burn her in the hang her to death. One
Consciousness after attack, but names of the accused were not given in dying declaration.
morning. In the morning, at 5.30 A.M., when she went tonight before the incident in the
bathroom, he sprinkled the oil Second dying declaration was recorded by the Magistrate after half an hour. Names of all
show that in
accused were stated in second dving declaration. There was no evidence
1 State of Rajasthan v. Parthu, AIR 2008 SC
10 at p.
2 Laxman v. State of Maharashtra, AIR 2002 SC 11.
2286. 2973: Jose v. State of Kerala, AIR 2013 SC Pradeep Kumar v. State of Haryana, AIR 2014 SC 2694 at p. 2697.
2284 at p.
3 Gulzari Lal v. State of Haryana, AIR 2016 SC 2, State of Rajasthan v. Shravan Ram, AIR 2013 SC 1890.
4 Raju Devande v. State of Maharashtra, 795 p. 799. 3 AIR 1993 SC 819.
AlR
Amarsingh Munnasingh Suryavanshi v. State2016 SC 3202 p. 3217.
of Maharashtra, AIR 2008 SC479 at p.
4 Kavi Kumar alias Kotti Ravi v. State of Tamil Nadu, AIR 2006 SC
1448.
6 Bhagwan v. State of Maharashtra, AIR 2019 SC 4170p. 482. AIR 1993 SC 1180.
7. AIR 2014 SC 2694. 4176. 6 AIR 1997 SC 2810.
 ADHINIYAM, 2023
THE BHARATIYA SAKSHYA IS. 26 S. 261 RELEVANCY OF FACTS 287
286
dying declarations any one was allowed to go
near the deceased. Held
between thetwo
declaration could not be treated as improvement The victim committed suicide. There were two dying declarations. In one dying
details as given in
Further
second dying darlaration, she stated that the accused persons committed rape on her twice. In another
over the first one. declaration, she stated that the accused persons committed rape on her in ahotel and
dying
second incident, the accused had only taken her to a garden. The dates of rape were
In HariiKaur v. State of Punjab,' where the circumstances clearly showed that th
deceased was not a free persOn at the time of making first dying declaration, the secnn
stated to be different in two dying declarations. Due to these inconsistencies in dying
dying declaration could not be regarded as untrue merely because it was contradictory to declarations, the acquittal of accused was justified !
her statement made earlier. In Sudhakar v. State of M.P., the Supreme Court held that in case of multiple
with
dvingdeclarations made by the deceased when they are contradictory or are at variance
InKishan Lal v. State of Rajasthan, the oral dying declaration was made by her Pach other to a large extent, the test of common prudence would be
to first examine
(deceased) to her father, uncle and grandfather. Names of the accused mentioned therein. hich of the dying declarations is corroborated by other prosecution evidence. Further, the
However, she could not mention the name of accused in second dying declaration made medical
relevant time, the
aftendant circumstances, the condition of the deceased at the
before the Magistrate 5 days after on the ground that she could not recognise any accused evidence, the voluntariness and genuineness of the statement made by the deceased,
because of fire darkness coming to her eyes. Second dying declaration not only gave physical and mental fitness of the deceased being tortured are
some of the factors which
matters. In her first,
conflicting version but there was inter se discrepancy in deposition of witness given in wOuld guide the exercise of judicial discretion by the Court in such
support of dying declaration. Held-The conviction based on such conflicting and in her dying declaration made before the Naib-Tahsildar who came to hospital
the deceased
discrepant dying declaration was liable to be set aside. her husband and stated that she
and recorded her dying declaration, did not implicate declaration
received the burn injuries from a stove while cooking food.
In another, dying
In Mehiboobsab Abbasabi Nadaf v. State of Karnataka,' the deceased made four husband had poured kerosene on
dying declarations, two before the Medical Officers, one before the Executive Magistrate made before Tahsildar in the hospital, she stated that her
her fitness for making the
and one before the Police Officer. In the dying declarations before the Medical Officer, she ber and set her on fire. The doctor present there certified sub-Inspector of Police in the
statement. In the third dying declaration recorded by the
told the cause of death as accident due to bursting of stove while cooking. In the dying her husband had poured kerosene on
declaration recorded by ASI, she told that she was being harassed by her mother-in-law, presence of two independent witnesses she said that
deceased was brought to the hospital, she was
father-in-law and husband to bring golden chain. They used to torture her. On the day of her and set her on fire. When the present there when she made the
were
accompanied by her husband and other relatives and
incident, the husband thrashed on back and as soon as she fell down, they (the husband, declaration before the Naib-Tahsildar. Shortwhile after, she changed her
father-in-law and mother-in-law) poured kerosene from the stove on the body and lighted first dying Tehsildar and then bySub-Inspector of
the match-box and, burnt her. Thereafter, she did not remember what happened and found statement when dying declaration was recorded by
Police.The second and third dying declarations were in conformity with each other and
herself the hospital availing medical treatment. In the statement recorded by the
supported by other evidence. At the time of making first dying declarations, the
Executive Magistrate, she narrated that her husband asked her to put a shirt on their son. were stated the reason behind her falsely
Having not obliged him, he started her to thrash from the handle of a broom stick and relative of the deceased were present. She herself
making first declaration as her husband was likely to lose his job if she implicated hum
abusing her took to the stove, poured kerosene on her from it and put fire. When the body on tutoring of her husband. Even prior to these dying
started to burn high, her husband and her father-in-law poured water on her. Her husband and the deceased had stated wrongly
declarations, the deceased had made a dying declaration
before P.W. 1, the land lady and
brought a vehicle and took her to the hospital for treatment. In the first and second dying when death was staring her in her
declaration, she did not accused her parents-in-law. In the two dying declarations, she P.W.6. She had categorically stated to these witnesses
her husband by pouring kerosene on her. Both these witnesses
accused primarily her parents-in-law. The parents-in-law had already been acquitted. The eyes that she was burnt by the counsel appearing for
Supreme Court allowed the appeal and held successfullystood the subtle cross-examination conducted by
declarations were held to be authentic
The conviction can be based on a dying declaration but it must be voluntary and the accused. Therefore, the second and third dying
truthful. Consistency in the dying declaration is relevant factor for placing full reliance which could be safely made the basis for conviction of the accused.
dying declarations made by the
thereupon.4 In Ashabai v.State of Maharashtra, there were four
deceased woman. In her first dying declaration, she stated before the Police Inspector that
Where there are more than one dying declaration and the nature of inconsistencies abuse her that she was barren as she
her mother-in-law and sister-in-law always used to
between them is such that they are certainly material, it is unsafe to convict on the basis
conceived even after three years of her marriage and that she should not stay in the
of dying declaration.3 had not mother-in-law and sister-in-law used to
house and better she should die. Her father-in-law, from Mumbai alongwith her
occurrence, she had returned
AIR 1999 SC 2571. assault her. On the day of shouted that the barren lady had come and
husband, her mother-in-law and sisters-in-law
AIR 1999 SC 3062; Also see Maniram v. State of M.P.. AIR 1994 SC 840.
told her husband not to keep barren lady in their house. After quarrelling with her mother
3. AIR 2007 SC 2666.
in-law,her husband went to his duty. In the afternoon, her mother-in-law alongwith her
4. Mehiboobsab Abbasabi Nadaf v. State of Karnataka, AIR 2007 SC 2666 at pp. kerosene tin and poured on her from head to
Sinha J.; Mohammad Arshad v. State of Maharashtra, 2006 (12) 2668-2669, per S. B. two sisters-in-law entered the room with a
Punjab, 2006 (9) Scale 537, State of Maharashtra v. Sanjay, (2004) 13Scale 370, Balbir Singh v. State of sisters-in-law to light the match stick, her mother-in-law Iit
SCC legs. On the direction of her
Inspector of Police, T.N., (2005) 9 SCC 113 and Maniben v. State of314; Muthu Kutty v. State by
referred to. Gujarat, 2007 (7) Scale 93
Gopal v. State of M.P., AIR 2009 SC 211| at p. 2112: Kundula 1 State of Punjab v. Chatinder Pal Singh, AIR 2009 SC974 at p. 976. 2002 SC 2973.
Bala Subra Maharashtra, AIR
(1993) 2SCC 684. State of A.P., AIR 2012SC 3265 at p. 3272: Laxman v. State of
3. AIR 2013 SC 341.
 RELEVANCY OF FACTS
289
2023
SAKSHYA ADHINIYAM, (S. 26 S. 26]
THE BHARATIYA
They
288
sisters-in-law poured the rapedand
also subjected to unnatural sex. The boy was also severely assaulted.
father-in-law and
On seeing this, her water and and
of their belongings, stripped and thrown off from the moving bus. Her three
the match-stick.
statement was duly certified
by the doctor present on duty and re robbed
recorded. The first statement of incident was recorded the same
night by a
extinguished the fire. The She did not implicate her statements were

that she was conscious and able to give a statement.

father-in- doctor in Safdarjung Hospital, New Delhi. On the same night, she went through the
law and husband.
surgery. The
second and third surgeries were performed on 19.12.2012 and
first
23.12.2012 respectively.
made before the Executive Magistrate which was in
In the second dying declaration mother-in-law "poured kerosene
answers, she told that her improve much, the prosecution
the form of questions and
of other members, she told that
On
Since the condition of the prosecutrix did not
and burnt." When questioned as to the presence the prosecutrix which were conferred the status of
me
to light the match-stick She hought it fit to record the statements of dying declaration was
sisters-in-law were present in the house and they told ingdeclaration. On 21.12.2012 on being declared fit, the second
husband were not in the ho declaration. The prosecutrix described the
told that at the relevant time her father-in-law and SDM. It was an elaborate dying
declaration certified that she recorded by the were addressing one another with
The very same doctor who had certified the first dying again recordea tdent in detail. She alsO stated that the accused
conscious to make the statement. The next day her statement was
by the Executive Magistrate in the form of questions and answers. She said thos names.

her father-in-law and mother-in-law used to quarrel with her and her husband never used the Metropolitan Magistrate on
tosay anything. She stated that her third sister-in-law and her husband threatened her and The third dying declaration was recorded by was not in a position to speak due to
doctors opined that she
then her mother-in-law poured kerosene on her and sisters-in-law were standing 25 12.2012.The aiending was otherwise conscious and responded
but she
by closing the door. On the question whether she had any suspicion on any body, being on ventilator, a life support system manner as to enable her to respond
were put in such a
she answered that she was tried to be burnt by her mother-in-law, three sisters-in-law by way of gestures. The questions choice form.
gestures or writing. The questions put to her were in the multiple
and husband of one of her sisters in-law. The doctor on duty certified her fully byway of through gestures and writings. She was taken to
statement/dying declaration
conscious while making the statement. Thus, in the third dying declaration, she She gave her where she died on 29.12.2012. Regarding
implicated two persons more. The Trial Court acquitted the third sister-in-law and her Mt. Elizabeth Hospital Singapore for treatment
could have been recorded on 21.12.2012 as the
declaration
husband. the contention that no dying Court held the contention not good as the
prosecutrix was administered morphine, the
effect according to deposition of the doctor
In the fourtlh dying declaration made before another Sub-Inspector of Police, she, in morphine was injected on 20.12.2012 and its the dying declaration recorded by
lasted only 3-4 hours. The contention that
answer to a question, specifically mentioned that her mother-in-law and sisters-in-law would have
weight as she was not able to speak
poured kerosene and burnt. The deceased's mother-in-law and the two sisters-in-law were the Magistrate on 25.12.2012 could not be given anySafdarjung Hospital at the relevant time
was not accepted. The doctor in- charge of ICU in
convicted under Section 498-A read with Section 34 of IPC [section 85 read with Section was not able to speak yet she was conscious
3(5), BNS] and sentenced to RI for Iyear alongwith afine of Rs. 1000/- each, in default. made it clear that even though the proecutrix
gestures. Regarding the
to further RI for 3 months. They were also convicted under section 302 read with oriented and was in a position to make the statement by lacked credibility and
Section 34 of IPC (section 103(1) read with section 3(5), BNS] and sentenced to contention that the third dying declaration made through gestures
to have been videographed, the Court held-It is totally sans
imprisonment for life alongwith a fine of Rs. 2000/- each, in default to further undergo that the same ought
gestures is not only
R. I. for six months and acquitted the other accused persons. The High Court dismissed substance. The dying declaration recorded on the basis of nods and
the appeal. The Supreme Court also dismissed the appeal. During the course of admissible but possesses evidentiary value, the extent of which shall depend uponby who
her mother-in-lawhad died but there could not be any leniency in favour of the appeal, recorded the statement. In the instant case, dying declaration was recorded the
sisters-in
law.
Metropolitan Magistrate. A perusal of the questions and answers were absolutely simple
and effective and indispensable. The dying declaration though recorded by him though by
The Supreme Court held-There is no reason to disbelieve or
reject the dying nods and gestures and writings inspires confidence and has been rightly relied upon by the
declaration made by the deceased when the Court is satisfied that the dying declaration is Trial Court as well as the High Court, Videography of the dying declarations is only a
voluntary, not tainted by tutoring or animosity, and is not a product of the imagination measure of caution and in case it is not taken care of the effect of it would not be fatal for
the declarant, in that event, there is no
of such dying declaration. When there impediment in convicting the accused on the basisof the case and does not in any circumstances compel the Court to completely discard that
declaration has to be separately assessed andare multiple dying declarations, each dying particular dying declaration. The dying declaration made through signs, nods and gestures
Own merit as to its evidentiary value and evaluated and assessed independently of its are admissible as evidence if proper care was taken at the time of recording the statement.
variation in the other. one cannot be rejected because of
certain 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
In Mukesh v. State of NCT of Delhi2
the prosecutrix (deceased), aged 23, gestures or nods. In this case,this caution was aptly taken as the person who recorded the
raped in a moving bus on 16.11.2012 was gang prosecutrix dying declaration was the Metropolitan Magistrate and was satisfied himself as
informant, her friend, a young boy to getwhen she stepped inside the bus alongwith
down at some place. She was brutally the regards the mental alertness and fitness of the prosecutrix and recorded the dying
assaul ted declaration of the prosecutrix by noticing her gestures and by her own writing.
Ashabai v. State of Maharashtra, AIR Considering the facts and circumstances of this case and upon appreciation of evidence and
2 2013 SC 341 at p. 345. Per Justice P. material on record, all the three dying declarations are consistent with each other and well
AIR 2017 SC 2161. Sathasivam.
corroborated with other evidence and the Trial Court as wvell as the High Court has
 290 THE BHARATIYA SAKSHYA ADHINIYAM,
2023
correctly placed reliance on the dying declaration of [S. 26
conviction. 1 the prosecutrix to reco S. 26] RELEVANCY OF FACTS
There were two sets of dying declaration, .bere was also pOSsibility oï Second 291
hefore the Police Officer and the one was the statement/declaration dying declaration being given after tutoring
the father of the deceased that Executive Magistrate and the other was the evide latives, the accused was entitled to benefit of doubt 1 by the
she
recorded before the Magistrate as made oral dying declaration. The dying declarat Dving declarations in different
was no inconsistency regarding well as Police Officer was fully corroborated and ssere recorded in different languages languages.Where the two
one in Marathi and another dying declarations
non-involvement of the respondent in the commission neased was proficient in both languages, in
offence. The evidence of the father of the dying declarations could beHindi and the
respondent after giving her torture for thedeceased that the deceased informed him that
whole night took her to the kitchen.
conviction,2 the basis of
kerosene on her and then lighted the pou Statement to police.-The statement of a deceased
reliable which could be the result of match-stick to set her on fire was held to be nt amunt to dying declaration. A clear and as to cause of his death does
afterthought.2 corroborated
just only because it was recorded by a police officer3 dying declaration cannot be rejected
The deceased due to
multiple burn injuries was unable to
declaration recorded by the Police The statement recorded by police officer
Officer see or speak and the cannot be challenged on the ground that it
evidence and the Magistrate later recordedimmediately after incident
second declaration in the was not adduced in wAs recorded by investigating officer. The police officer did not possess the capacity
which was a lengthy and detailed. presence of doctor investigating officer because investigation had of
named nor examined. The The doctor present at the time
of
not commenced then.4
incident was
the son, daughter, wife and eye-witnesses who were close relations of the deceasedneither Where the evidence was that the deceased was not
in a position make any
acid on the deceased. The daughter-in-law of the deceased did not see as to who beino statement and the alleged statement of the deceased was recorded
the gestures made by him.deceased was unable to speak and sprinkled Officer, it was not adying declaration. The conviction recorded onlybyonthe Investigation
whatever was recorded was by the basis of this
relatives and they did not The witnesses told that
see the accused persons deceased had been tutored by his
statement was therefore not correct.
also told that he gave committing the crime. The son Section applies to homicide and suicide
father had told him complaint to the police at
that the Naxalites had the instance of his relatives and his (section 26(a), BSA] is an exception to the ruleboth.-Section
of
32(1) of Evidence Act
dying declaration allegedly made been threatening him.
Held-The statement of a person who dies, whether the death is ahearsay
homicide
and makes admissible a
or suicide provided the
embellishment. The suppression and withholding by the deceased is not statement relates to the cause of death or exhibits circumstances
free from doubt and leading to the death of the
creates suspicion. It has to be considered only as a of the first dying declaration by itself person making the statement.ó
reliance can be placed and conviction piece of evidence of which no
cannot be rested solely on the basis implicit The declarant must be in a fit state of
declaration3 of such dying mind.-At the time of the declaration,
the person making the statement must be in a fit state of mind.7
Incase of more than one
roped in but in the later dying declaration, when the If the Court has slightest doubt about
case must be decided on dying declaration, a summersault is accused is not sought to be declaration, it is unsafe to base conviction onthe mental soundness of the author of dying
such statement.
the facts of each case. The made by the deceased, the
carefully examine the entirety of Court is not relieved of its duty The dying declaration was recorded by
making of the different declaration.4 materials as also the circumstances
surrounding
to stated was admitted to hospital. The MagistrateMagistrate
in his
within few hours of the victim
Where two dying declarations
the conscious. Medical officer was present at the time ofexamination stated that victim was
recording dying declaration also
were consistent with each made by the made endorsement about consciousness of victim.
dying declaration due to injuries other, but the thumbaccused before the Executive Magistrate Mere non-examination of doctor in
whose presence dying declaration was recorded does not affect its
impression was evidentiary value.
declaration, there was no reason to both hands and ocular evidenceabsent
on in the second
corroborated dying Mere fact that victim in his dying declaration did not make any
recorded it could not affix signature reject dying declaration only received by accused is not a ground that merits the rejection reference to injuries
be true voluntary and or thumb impression because the person who of dying declaration.
correct.5 which was otherwise found to In State of M.P. v. Dhirendra Kumar, 10 the mother-in-law of
Where the first dying
mistake was more reliable anddeclaration stated that the victim took wrong position to reach upstairs within 5 to 6 minutes after hearing thethecry
deceased was in
not endorsed by the doctor trustworthy than the medicine by According to opinion of the autopsy surgeon, the deceased was able to speakofabout
deceased.
10 to
regarding fitness of mind second dying
of the victim todeclaration which was 13 minutes. The Supreme Court did not agree with the
view of High Court that the
make statement and
Mukesh v. State for NCT of
Delhi.
SCC 182; B. Shashi Kala v. State AIR 2017 SC2161; Meesala
1. Makhan Singh v. State of Haryana, AIR 2022 SC
3793 pp. 3797, 3798.
State of Gujarat v. Jairaibhai
of A.P., AIR Ramakrisan v. State of
2014 SC 1610 referred to. A.P.. (1994) 4 2. Amar Singh Munnasingh Suryawanshi v. State of Maharashtra, AIR
2008 SC 479 at p. 484.
3 Ram Singh v.
3 J. Ramuluv. State of A. P. Punjabhai Varu, AIR 2016 SC 3218 pp. 3223-3224. State (Delhi Admn.) 1995 Cr LJ 3838.
4. Gulam Hushain v.
4 AIR 2008 SC 1.505 at pp. State of Delhi, AIR 2000 SC 2480.
Jagbir Singh v. State 1509-1510. 5. State of Rajasthan v. Ashfag Ahmad, AIR 2009 SC 2307 at p.
Dayaram v. State (N.C.T. of Delhi), AIR 2019 SC 4321 p. 4335. 6. Sharad v. State of Maharashtra, AIR 2308.
163 relied on. ofM.P.. AIR 2019 SC 5739 p. 5774; Sukanti Mohrana 1984 SC 1622.
7. Lalloo Bhai v. State of Gujarat. AIR 1972 SC 1776: State of Haryana
v. State of Orissa, v. Harpal, AIR 1978 SC 1530.
(2009) 9 scc 8. Dandu Laxmi Reddy v. State of Andhra Pradesh. AIR
1999 SC3255.
9. Sanmugam alias Kulandai Vellu v. State of Tamil Nadu, AIR
10. AIR 1997 SC318. 2003 SC 209.
 ADHINIYAM, 2023 [S. 26 RELEVANCY OF FACTS
BHARATIYA
SAKSHYA S. 26] 293
THE
292
not have made
dying declaration.
The Where the person making the dying
position to talk could and circumstances of case the statement, it would have serious effectdeclaration slippedtointo
on his capacity coma
make suchbefore completing
a statement. The
deceased being not in from the autopsy report
that it was clear reached at the spot where certificate of fitness given by the Doctor with regard to the condition of the deceased is
Supreme Court held when her
mother-in-law
fit state to talk definitely not
the last word. Normally, such an opinion should be accepted and acted upon
that deceased was in bythe Court. If the circumstances so demand, such opinions must be carefully balanced
deceased vwas lying. husband|
was alleged to have
accused surrounding facts and circumstances.
Parasuram Naik, ! the with all other
In State of Orissa v. Whereof extensive burn injury was
of wife and lit fire. declaration to her mother canpoS The allegation was that the deceased was set ablaze. The deceased remained
poured petrol on the body in fit
wife. Held-Oral dying that deceased condition all throughthe recording of his statement. The fact that he could not identify
sustained by the deceased medical officer certifying
accepted because there was no certificate by person
who tried to save him by pouring water was
held to be irrelevant because he
the
could not have identified due to being in flames. The dying declaration was found to be
medically fit to make the statement.
Rajasthan, in a case of accusation
of the offeneas reliable, trustworthy andI consistent with circumstantial evidence on record and therefore,
In Arvind Kumar v. State of BNS), the dying declarati proper.2
under Sections 304-B and 498-A of
IPC |sections 80 and 85, the conviction was
from the doctor regardi
but did not take any certificate Dying declaration during severe burn injuries.--Where victim sustained brain
was recorded by Naib-Tahsildar there was any endorsement by him on the stateme
fit state of mind of the deceased nor testified that the dying declaratie iniury and his brain function was impaired, dying declaration made by him cannot he
deceased. The doctor
regarding fit state of mind of the Naib-Tahsildar and not by the Naib Tahsildar. No relied on.3
was recorded by the Reader of
preliminary questions were asked from the
deceased before recording his dying declaration However dying declarations were held to be reliable if the deceased was in fit state of
the recorded statement of the deceased mind at the time of giving the statement although the burn injuries were to the extent of
The Naib-Tahsildar also stated that he did not seal original copy of "Tahreer, a request
During the cross-examination, he did not produce the 80%, 90% or even 100%.
produced carbon copy of it. The mother
by the constable to record dying declaration but he No absolute rule that no dying declaration can be made with 80% burn
of the deceased categorically refused putting her signature or thumb-impression on the
showed that the dying declaration was not recorded in
the hospital iniuries.In Pawan Kumar v. State of H.P." the deceased, ayoung girl, fell in love
dying declaration which ith the accused-appellant and eloped with him. He was booked for offences under
no endorsement on it that it was read over
room where the deceased was lying. There was dying Sections 363, 366 and 376 of IPC [sections 137(2), 87 and 64, BNS]. The accused was
doubt and truthfulness of
and explained to the deceased. All these facts created not be admissible and oiven benefit of doubt and acquitted due to colossus support of the girl. The accused felt
declaration. It was held that the alleged dying declaration could
reliable document because it suffered from a number of infirmities
although the accused that he had been prosecuted due to the prosecutrix and got obsessed with the idea of
on the basis of entire evidence. Justice Lokeshwar Singh Panta observed: threatening the girl and that continued and eventually eve-teasing by him became a mater
were convicted of routine. According to the prosecution, the girl felt unsecured and realised that she could
credibility of the
"It is well settled that one of the important tests of the no more live in peace. Thinking her life not worth living, she poured kerosene on her
declaration is that the person, who recorded it must be satisfied that the deceased body and put herself ablaze.
dying declaration, Court
was in a fit state of mind. For placing implicit reliance on dying facts of Proof of dying declaration.-When the dying declaration is verbal, it can be
must be satisfied that the deceased was in a fit state of mind to narrate the correct
Occurrence. If the capacity of the maker of the statement to narrate the
facts is found proved by examining the person in whose presence the statement was made. But where
to be impaired, such dying declaration should be rejected as itand is highly unsafe the dying declaration is recorded, the person recording the statement is tobe examined
to place reliance on it. The dying declaration should be voluntary
should not be before the Court and he will prove the writing before the Court. If it is in writing of
prompted and physical as well as mental fitness of the maker is to be proved
by the scribe, he must be produced and if it is verbal it should be proved by examining the
prosecution. "3 person who have heard it 8

In Dhan Raj and others v. State of Maharashtra,4 the dying declaration was Police Officer preparing memo not examined.-Where the dying declaration
challenged on the ground that no medical certificate was attached about the condition of was recorded by the Naib-Tehsildar after the victim had been informed vide Memo by the
deceased. Deceased however went to hospilal all alone by changing different vehicles in Police but the Police Officer by whom the Memo had been delivered was not examined
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 1 Murugesan v. State through Inspector of Police, AIR 2013 SC 274 at pp. 285, 286.
supporting evidence about mental condition of deceased alongwith other evidence. 2 Mumtaz v. State ofU.P., AIR 2016 SC 3151p. 3155.
Moreso, when case did not solely rest upon dying declaration and eye-witness account was 3. State of Rajasthan v. Teja Ram, AIR 1999 SC 1776.
also available. 4 Pawan Kumar v. State of H.P.. AIR 2017 SC 2459.
5 Salim Galib v. State of Maharashtra. AIR 2012 SC 2176 at pp. 2181, 2182.
Gulzari Lal v.
6
Vijay Pal v. State Government of NCT Delhi. AIR 2015 SC 1492 Paras 20, 21; Also see, 2973; Atbir v.
Maharashtra, AlR 2002 SC
State of Haryana, AIR 2016 SC 795: Laxman v. State of Nagarbhai Raval v. State of
AIR 1997 SC 3569. Government of N.C.T. of Delhi. AIR 2010 SC 3477 para 10; Mafabhai
2 AIR 2009 SC 2703. Gujarat, AIR 1992 SC 2186.
3 Arvind Kumar v. State of Rajasthan, AIR 2009 SC 2703 at pp. 7 AIR 2017 SC 2459.
4. AIR 2002 SC 3302.
2708-2709. 8 Kans Raj v. State of Punjab, AlR 2000 SC 2324.
 2023
SAKSHYA
ADHINIYAM,
(S. 26
THE
BHARATIYA
S. 261 RELEVANCY OF FACTS 295
Police
294 declaration reaching the Station
late remember the facts stated, had not been impaired at the time he was making the
dying
was given regarding reliable.
and no explanation Court held dying declaration not statement,
by circumstances beyond his control; that the statement has
been consistent
the
by one full day,
uncorroborated dying
declaration.-If dying
declaration
is throughout if
he had several opportunities of making a dying
declaration, apart from the
Conviction on made the basis of conviction without any further official record of it; and that the statement had been made at
the earlier opportunity and
can be
found to be true
and voluntary, it was not
the result of tutoring by interested parties.
corroboration.2
factions in what has PhaTrial Court sentenced Khushal Rao to death and Tukaramto life-imprisonment
there were twOrival been
State of Bonbay and cO-accused, Tuka
In Khusal Rao v. Khusal Rao, Ram, High Court on the ground that the deceased had named Khushal as Teli in his
called the Mill area in
Nagpur. The appellant,
Jeaders of one faction and P.Ws. Ram by the
statements but the person tried by the Court was Khushal Kohli. Further, there were four
who had been acquittedTantuby the High Court were the leaders of the opposite faction. Before persons living in the same locality by the name of Khushal and some of them were Teli.
were said to be
incidents between
Gopal, Inayatullah and had been a number of the twa The sentence of Tukaram was maintained. Justice Sinha, (afterwards C.J.) of the Supreme
the occurrence, there Inayatullah and Tantu had
the time and date of some of which P.Ws. Court upholding the judgment of the High Court observed:
rival factions in respect of (deceased) who was on
prosecuted. The appellant was on
bad terms with Baboolal very wThe Ieislature in its wisdom has enacted Section 32(1) of the Evidence Act"
opposite faction. Being infuriated by the conduct
friendly terms with the leaders of the Mahaden loction 26a), BSAJ. "The provision has been made by the legislature, advised as amatter
of the party of the accused, Sampat,
Baboolal in associating with the enemies Baboolal with swords on different parts of A
attacked
aheer necessity by way of an exception to the general rule that hearsay is no evidence
Khushal and Tuka Ram suddenly dthat evidence which has not been tested by cross-examination is not admissible. The
lane of Nagpur at about 9 P.M. Bab0ola!
body. The occurrence took place in a narrow Mayo Hospital where he reached at about purpose of cross-examination is to rest the veracity of statements made by a witness. In
was taken by his father and other persons to the
about the incident and Baboolal is saidl he view of the Legislature, that test is applied by solemn occasion, when was made
9.25 P.M. Dr. Kanikdale at once questioned him assaulted by Khushal and Tuka Ram when namely, at the time when the person making the statement was in danger of
made a statement to Doctor that he had been
to have losing his life. At such a serious and solemn moment, that person is not expected to tell
the Police Station where the
After noting the statement, the doctor telephoned to information, Sub-Inspector
information was noted at 9.45 P.M. On receiving the lies.
serious condition and
immediately went to the Hospital where he found Baboolal in a In order to pass the test of reliability, a dying declaration has to be subjected to a
might take time for the
suspecting that he might not survive and apprehending that it very close scrutiny, keeping in view the fact that the statement has been made in the
Magistrate to be informed and to be at the spot, Sub-Inspector decided that it
would be
without any delay. He recorded absence of the accused who had no opportunity of testing the veracity of the statement by
more advisable for him to record the dying declaration
cross-examination. But once the Court has come to the conclusion that the dying
Baboolal's statement at 10.15 P.M. In the meantime, Mr. M.S. Khetkar was called and he declaration was the truthful version as to the circumstances of the death and the assailants
three
also recorded the dying declaration between 11.15 and 11.35 P.M. Besides these, of the victim, there is no question of further corroboration and the dying declaration can
dying declarations were recorded in quick successions, Baboolal is said to have made oral form the basis of conviction; if on the other hand, the Court, after examining the dying
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 declaration in all its aspects and testing its veracity, has come tothe conclusion that it is
dying declaration but that was not accepted. 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
It was held-It cannot be laid down as an absolute rule of law that a dying from any, inherent weakness of a dying declaration as a piece of evidence but from the fact
declaration cannot form the sole basis of conviction unless it is corroborated each case that the Court, in a given case, has come to the conclusion that the particular dying
must be determined on its own fact, keeping in view the circumstances in which the declaration was not free from the infirmity.?
dying declaration was made; it cannot te 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 Court finds that the declaration is not wholly reliable and a material and
the light of surrounding circumstances and with reference to the principles governing the integral portion of the deceased's version of the entire occurrence is untrue, it was written
weighing of evidence; a dying declaration which has been recorded by a competent In suspicious circumstances or that declarant's friends or relations or accused's enemies had
Magistrate in the proper manner, that is to say, in the forms of question and answers, and been with the declarant before his statement was recorded.3 The Court may, in all the
as practicable in the words of the maker of the declaration, stands on a much higher Circumstances of the case, consider it unsafe to convict the accused on the basis of
footing than a dying declaration which depends upon oral testimony declaration alone.4
from all the infirmities of human memory and human character, and inwhich may suffer
order to test the
reliability of a dying declaration, the Court has to keep in view the circumstances like the It cannot be laid down as an absolute rule of law that there çan be no dying
opportunity of the dying man for observation, whether the capacity of the man declaration without corroboration, The rule requiring corroboration is merely a rule of
to caution.5
State of Maharashtra v. Hemant Kawadu
2 Churiwal, AIR 2016 SC 287 pp. 289.
S.P. Devaraji v. State of Karnataka, AIR 2009 1
SC 1725 at p. 1728: Also see Varikuppal Jaswant Singh v. State,AIR 1979 SC 190.
of A.P., AIR 2009 SC 1487 at p. 1488; Satish
1626 at p. 1628; Shambhu v. State of Ambanna Bansode v. State of Maharashtra,Srinivas v. Stale
AlR 2009 S
2
3
Khushal Rao v. State of Bombay, AIR 1958 SC 22.
3. AIR 1958 SC 22. M.P., AIR 2012 SC 1309. LalluBhai v. State of Gujarat, AIR 1972 SC 1776.
5
Pompiah v. State of Mysore, AIR 1965 SC 939; Rashid Beg v. State of M.P., AIR 1974 SC 332.
Shakuntala v. State of Haryana, AIR 2007 SC 2709 at p. 2711.
 2023
SAKSHYA
A D H I N I Y A M ,

(S. 26 S. 26] RELEVANCY OF FACTS 297

is merely arule There is neither rule of law nor of prudence that dying
BHARATIYA

THE corroboration

296 requiring of "Ó) declaration cannot be acted

declaration, the rule upon without corroboration. I
dying
Inthe case of
conviction.!

sole basis of be certain (ii) If the Court is satisfied that the dying declaration is true and voluntary, it can
caution. Itcan form
the
dying
declaration must and from hase conviction on it, without corroboration2
Court that, the The
It was held
by Supreme
identification of
the accused
must be
ascertained
declaration (iii) The Court has to scrutinize the dying declaration carefully and must ensure that
the the
conviction.
dying declaration to base the declaration is not the result of tutoring, prompting or imagination. The
cause of death declaration with
must ascertain the
equate a dying
the evidence
have been madeto against the maker, ifit is
deceased had an opportunity to observe and identify the assailants and was in afit
Sometimes attempts by a confession as state to make declaration.3
or the evidence furnished But it is nottright t in
retracted. to principle
of an accompliceagainst others, even though not Act (section 138, BSA], it is not Where dyingevidence4
declaration is suspicious, it should not be acted upon without
and as the Evidence Illustro: (iv) corroborative
retracted 133 of accomplice.
under Section uncorroborated testimony
of an
do so though person on the section 119, BSAL
illegal to convict a [Illustration (b) to ka Where the deceased was unconscious and could never make any dying declaration,
the Evidence Act unworthy of credt
(b) to Section 114 of that an accomplicehasis now been accen the evidence with regard to it is to be rejected.5
rule of prudence based on experience, particulars and this
down as corroborated in material
unless his evidence is dying declaration
because a
dying ii A dying declaration which suffers from infirmity cannot form the basis of
law. The same cannot be said of a approver, Come from conviction.
as a rule of confession, or the testimony
of an
declaration may not unlike a
(vii) Merely because a dying declaration does not contain details as to the occurrence,
tainted source.
be varnished with th it is not to be rejected.
Generally speaking, the maker
of a dying declaration cannot On the
confession an approver. (viii) Equally, merely because it is a brief statement, it is not to be discarded.
same brush as the maker of a contrary, the shortness of the statement itself guarantees truth
8
contemplated by Section 157 or
of the nature
There may not be corroboration BSA] and the only (ix) Normally, the Courts in order to satisfy whether the deceased was in a fit mental
under Section 158 of Evidence Act [section 161,
matters provable
the deceased made admissible under Section 32 of condition to make the dying declaration look up to the medical opinion. But
direct evidence may be a statement by necessarily follow that this where the eye witness said that the deceased was in a fit and conscious state to
Evidence Act [section 26, BSAJ. It
does not however,
evidence is insufficient to support a conviction. In such a case the surrounding make the dying declaration, the medical opinion cannot prevail.9
If the evidence of an accomplice is tainted,
circumstances willhave an important bearing.
[section 119, BSAJ, presume that he is (x) Where the prosecution version differs from the version as given in the dying
the Court may under Section 114 of Evidence Act declaration is on a much higher place declaration, the said declaration cannot be acted upon.!0
unworthy of credit unless corroborated, but adying
declaration, one
and the Act [now, BSA] places no restriction on its
acceptance. (xi) Where these are more than one statement in the nature of dying
rule when a dying declaration should
first in point of tie must be preferred. Of course, if the pluarity of the dying
It is not possible to lay down any hard and fast be decided in the light of the other facts
declaration could be held to be trustworthy and reliable, it has to be accepted."
each case must
be accepted, beyond saying that declaration should be
and the surrounding circumstances, but if the Court after taking everything into In a case of alleged dowry death leading to suicide,the dying Court should go for
consideration, is convinced that the statement is true,
it is its duty to convict, wholly reliable for conviction and if there is suspicion, the
notwithstanding that there is no corroboration in the true sense.
The Court must of course corroboration, 12
of the statement and naturally, it cannot be fully convinced evidence
be fully convinced of the truth in
if there is anything in the other evidence or in the surrounding circumstances to raise Dying declaration incomplete.-Adying declaration is inadmissible
is incomplete. When the condition of the deceased had become grave and at his own
suspicion as to its credibility.4 if it
doctor was taken by the police but
request a statement made by him in the presence of the
Adying 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 1 Mannu Raja v. State of M. P. (1976) 3 SCC 104.
there is no ground of suspicion about its truthfulness, it can be acted upon. It should not
2. State of U. P. v. Ram Sagar Yadav,(1985) 1SCC 552.
be the result of tutoring, prompting or imagination. In Shaik Nagoor v. State of A.P., 3 K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC
618.
the Supreme Court summarised the law relating to credibility of dying declaration as 4 Rasheed Beg v. State of M. P., (1974) 4 SCC 264.
follows: 5. Kake Singh v. State of M. P., 1981 Supp. SCC 25.
6. Ram Monorathv. State of U. P.. (1981) 2 SCC 654.
Laxmipati Naidu, 1980 Supp. SCC 455.
1. Dashrath alias Champa v. State of M. P., AIR 2008 SC 316 at p. 319. 7. State of Maharashtra v. Krishnamurthy
2 Bhupan v. State of Madhya Pradesh, AIR 2002 SC 820. 8. Surajdeo Ojha v. State of Bihar, 1980 Supp. SCC 769.
Khushal Rao v. State of Bombay, AIR 1958 SC 22: Kori v. State, AIR 1960 Cal 509. 9. Nanhau Ram v. State of M. P. 1988 Supp SCC152.
4 10 State of U.P. v. Madan Mohan, (1989)3SCC 390.
InAssam
re Guruswamy, AlR 1940 Mad 196 (FB). Asan Tharayil v. State of Kerala, 1981 Cr LJ 165; State of State of Maharashtra, (1982) 1 SCC 700.
v. Merajuddin, AIR 1983 SC 274; Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850. Il. Mohanlal Gangaram Gehaniv. 3 SCC 161.
5 AIR 2008 SC 1500. 12. P. Mani v. State of Tamil Nadu. (2006)
 2023 [S. 26 S. 26] RELEVANCY OF FACTS
ADHINIYAM, 299
BHARATIYA
SAKSHYA
A dving declaration must be taken as a whole. If statement is
THE not recOver. it was
298
coma from
which he could
incomplete and no either go in
a whole or not at all. Under Section 32 of Evidence Actadmissible, it must
completed as he fell
into face it was of the statement must be taken into [section 26, BSAJ,
on its
it could not be declaration was inadmissible because if the statement, though the whole consideration. Parts of the
held that dying about to add. But
he wanted to state, yet here and there
cannot be divested from
their context for the purpose of statements made
the deceased was all what prosecution case,2 propping up the
one could tell what the declarant could not
state
statement would not
that the
incomplete in the sense of a certain fact home ontrary to this, it had been laid down that if a portion of
complete in respect stated, "I was going dying declaration is
whatever, he stated is incomplete. The deceasedfrom the bush. He ran rest of it cannot be necessarily, rejected.
excluded on the ground
of its being
Sattar shot me
away. untrue, the However, if part it is shown to be
false, the Court may decline to believe the rest without corroboration.$ofThe point cropped
house of Abdul Majid, in no condition to answe.
when I came near the man was
dying declaration and
dying
incomplete statement so
Bench of the Allahabad High Court. In this case the
up bebefore a dying declaration of the
Isaw." This was the held that "there was no question of any to Sattar having shot
deceased mentioned A and B as his assailants. But no sufficient description of A was
questions. It was in regard
further
case was concerned. The statement further question would given in it to connect it with A. The description of B was enough to identity. Desai, J,
of the
far as that aspect complete in itself and it could not be said that any (asi he then was) observed: "vithout meaning to lay down that a dying declaration must be
the same. Under the
the deceased was information which would run counter to so far as the accepted or rejected in toto I do not think that accepting it against one and not against the
have elicited any incomplete, was complete in accepting it in part and rejecting it in part." With this
declaration, though certainly be relied upon other amounts to observation, the
circumstances, the dying concerned and could dying declaration was accepted against B and rejected against A. In my opinion,if a part
accused Sattar having shot
the deceased was
declaration can be separated without
by the prosecution. of the dying the statement is so worded that onelosing its sense it may be accepted or
part of it controls the other and if a
case was as follows: - rejected; but if
A dying declaration in a is separated it may mean
differently than what it meant as a part of the whole, the
part
statement must be taken as a whole.
"Sir,
of Kola Goundan
the noon at 12.30 Muniappan son Theimpeachment of dying declaration.-A dying declaration being in effect a
This day 24th January, 1960 in knife."
body with notimonial statement made out of Court, the maker is open to impeachment in the same
of Kamnav-Kurechi stabbed me in my
words his speech stopped and he died.
His thumb way as other witnesses so far as this process is possible. Therefore, impeachment by bad
Soon after the deponent said these was held that in this dying declaration the testimonial character is permissible or by conduct showing a revengeful or irrelevant state
impression was taken after he was dead. It of mind at the time of commission of crime, or by subsequent or prior inconsistent
complete and so it was admissible.
accusation against the appellant Muniappan was
declaration.-In Jagga Singh v. State
statements.
Circumstances which belie the dying
dying declaration that rape was attempted on her and In State of Rajasthan v. Teja Ram & others, it was held by the Supreme Court
of Punjab,+the deceased deposed in Further, she stated in her statement that after the of former
witness is proof
next day she was burnt by the accused. that one of the permitted modes of impeaching the credit of
Courtyard, she rushed to her room which statement is inconsistent with any part of his testimony as indicated
in Section 155(3) of
deceased had been set on fire, which was in the
bolted from outside by the accused. The brother of deceased did not say anything Evidence Act [section 158(c), BSAJ.
was
about the attempted rape so also the neighbour of that the accused also did not say anything
occurrence witness did not say deceased ran inside the room after Contradictions with other statements.-A dying declaration has to be
about the same.The cónsistent with other
being put on fire. The dying declaration was not signed by the doctor present at the time considered in circumstances and light of other evidence. It has to be
mentioned in dying
circumstances were held to belie the dying evidence on record if there is a clear discrepancy between the facts
of recording of dying deciaration. All these in statements of witnesses it would be unsafe to place complete trust
declaration. declaration and those
on the dying declaration. In face of this, case law the decisions of the Allahabad High
the way while being
In Mehrban v. State of Maharashtra, the injured died indirectly taken to police Court, to the effect that a dying declaration cannot be contradicted by
reference of the
taken in bullock cart by prosecution witness. Dead body was then
prosecution witnesses is erroneous.
station. The injured while being taken in the cart allegedly have disclosed the was tried for the murder of two
witness that he was assaulted by accused persons. Evidence of the said witness coupled InState of U.P. v. Madan Mohan, Madan Mohan
with medical evidence and other surrounding circumstances, proved that dying declaration The trial Court convicted three respondents. The High Court quashed the
persons.
given by deceased was true. The Supreme Court held that convictionof accused should conviction. Hence, the appeal was filed to Supreme Court by special leave.
not be interfered with.
To be taken as a whole.There isa controversy on this point. In some cases, it 1 Tafiz Parmanik v. Emperor, AIR 1930 Cal 229.
has been held that it must be taken as a whole while in other cases a contrary view has 2 In re Maneem Edukondalu, AIR 1957 AP 729. Government v. Jagan Bhat, AIR 1946 Nag 301.
Provincial
been taken.
3 Lala Ram v. State, AIR 1953 MB 249:
4 State v. Kanchan Singh, AIR 1954 AIl. 153.
5. AIR 1999 SC 1776.
(FB).
1. Cyril Waugh v. King, 1950 ALJ 412 (PC). 6 In re Guru Swamy, AIR 1940 Mad. 196
381 (SC).
2 Abdul Sattar v. State of Mysore, AIR 1956 SC 168. 7. Deo Rao v. State of Maharashtra, 1969 ALJ
Singh v. State, 1985 Cr LJ 10.
3 Muniappan v. State of Madras, AIR 1962 SC 1252. 8. Moti v. State, AIR 1968 All 83: Pritam
4 AIR 1995 SC 135. 9. AIR 1989 SC 1519.
5 AIR2002 SC 299.
 2023 [S. 26 S. 26] RELEVANCY OF FACTS
ADHINIYAM,
SAKSHYA 301
BHARATIYA
THE wvhile th within the sphere of Indian Law,
declaration then
300 incident occurred
at 7.30P.M. while testing the credibility of such
yiew that the P.M. The versin dying weightage can be given of course depending
declaration
took the incident at 6.00 circumstances of case. on other relevant facts and
The High Court declaration gave the time of from the versie
dying materially differed
deceased, in his P.W. IIalso different. It wo EIR as dying declaration,-Areport made by the
P.W. Iand deceased was also
regarding the statement of disclosed by the conclusion that the
deceased
eof his death or as t0 any of circumstances of the transaction relating as to the
declaration.The name right in coming to materially differed which resulted in his
found in dying the High Court was h shall be relevant as dying declaration under Section 32(1)of Evidence
Court that andP.W.Il Act!
held by Supreme regarding the incident stated by P.W.I was difficult to say that Hioh 26(a), BSA].
|section
prosecution version and therefore it was
unfolded by dying
deceased Therefore, the appeal Where a person injured in the incident dies after lodging FIR, it is relevant as a
from the version justifying in taking the view it took.
Court was not dying declaration,2
dismissed. declaration.--Before
Complaint as dying declaration.Where a woman gave a statement in the
dying
Identity of accused to
be established byidentity of the accused must be tsee ofa complaint to the police officer in the hospital after pouring on kerosene by the
declaration, the
can be based on
dying accused. But if accusedpersons and setting her ablaze and the Police Officer recorded the same not in
conviction and address of the
the same parentage a n answer form and also without obtaining the mental fitness certificate, the Court
established by it. It should contain the conviction is possible.2
evidence to prove identity, held it to be a dying declaration and upheld the conviction although a compromise,
there is corroborative England, the rules relating to
England and in India.-In relating to a property dispute on the previous day was the only direct evidence3
Dying declaration in England, dying declaration is not
from those in India: (1) In into Statement under Section 180 of Bharatiya Nagarik Suraksha Sanhita-
dying declaration are different said before in India is admissible in civil cases
admissible in civil cases but
as
England, dying declaration is Dying declaration.-Section 181 of BNSS, which prohibits the use of statement
question. As far its admissibility
in criminal case. (2) In or manslaughter where recorded under section 180, BNSS, makes an exception in Sub-section (2) which reads,
of homicide, that is, murder
admissible only in the single instance of the charge and the Nothing in this section shall be deemed to apply to any statement falling within the
made the statement) is the subject
the death of the deceased (who had subject of the dying declaration; whereas in India provisions of clause (1) of section 26 of the Bharatiya Sakshya Adhiniyam, 2023...
circumstances of the death are the of the deponent Consequently, Section 162(2) of CrPC [section 181(2), BNSS], in express terms,
proceeding if the cause of the death
whatever may be the nature of the relevant. It is admissible even, if the trial is excludes from its purview statements falling within purview of Section 32(1) of Evidence
declaration is
comes in question his dying required to have
English law, certain conditions are Act |section 26(a), BSAJ.
not for his death, (3) According to that the declarant should have
existed at the time of declaration, viz
(a) it is necessary Dying declaration recorded by police,--Although a dying declaration recorded
that is to say, the statement must be made after he received
been in actual danger of death, aware of this danger and have abandoned
all hope by police officer during the course of investigation is admissible under Section 32 of the
the injuries, (b) and he should have been caused. In India, the existence of the last' Evidence Act [section 26, BSA], it is better to leave such dying declaration out of
have
of recovery, and (c) that death should Section 32 of Evidence Act (section 26, consideration unless and until the prosecution satisfies the Court as to why it was not
condition is certainly necessary because under where the deponent dies and the cause of recorded by a Magistrate or a doctor:
statement is admissible only in cases
BSA] the are not
existence of the conditions (a) and (b) Where it shows that an attempt was made to procure the services of a Magistrate for
his death comes in question. But the [section 26, BSA] the statement is
32 of Evidence Act recording the dying declaration but since the Magistrate was not available it was recorded
necessary in India. Under Section he was
not in actual danger of life and whether by the Head Constable which fact finds support from several witnesses including
relevant whether the deponent was or was death.
statement was made under expectation of independent witnesses, it was held that there is no hesitation in accepting the same.o
or was not at the time when the
Therefore, (in India), whether the declarant was or was not in actual danger of death and
be in such danger, are considerations which will no longer InRam Bihari Yadav v. State of Bihar,"the Supreme Court held that where the
knew or did not himself to considerations are to be taken into dying declaration was recorded by police officer and the original thereof was not found on
affect the admissibility of the evidence.4 But these
record and the official who recorded it was not examined, the entries in case diary as to
consideration in estimating the value of the declaration.
said original dying declaration could not be taken as evidence.
principle that
Under English Law, the admissibility of dying declaration rests on the conscientious In State of Karnataka v. Shariff& the Supreme Court held that dying declaration
a sense of impending death produces in man's mind. Some feeling as that of recorded by police officer could not be discarded solely on that ground. There is no
and virtuous man under oath. The general principle on which this species of evidence is requirement in law that dying declaration shallnecessarily be recorded by Magistrate.
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 State of U.P., 1994 Cr LLJ 848 (A).
and the mind is induced by the most powerful consideration to speak only truth. If the 1 Mahmood Ilahi v. State of U.P. 1990 Cr LJ 885, Pancham Yadav v.
evidence the case reveals that declarant has reached this state while making dying 2 K. Ramchand Reddy v. Public Prosecutor, (1976) 3 SCC704.
3 Jai Prakash v. State of Haryana, 1999 Cr LJ 837 (SC).
4 Tapindra Singh v. State, AIR 1970SC 1566: Moti v. State, AIR 1968
AlI. 83.
1 Khushal Rao v. State of Bombay, AIR 1953 SC 22: Gopal Singh v. State of M.P., AIR 1972 SC 55. v. State of M.P., AIR 1976 SC2199.
5 Dleep Singh v. State of Punjab, 1979 Cr LJ 700; Munnu Roja
2 Pritam Singh v. State of U.P., 198S Cr LJ 10. Court, AIR 1995 SC 777.
3. Parmanand v. Emperor, AIR 1940 Nag. 340. Chari Patti Shankararao v. Public Prosecutor A.P. High
7 AIR 1998 SC 1850).
4 State v. Kanchan, AIR 1954 All 155. 8 AIR 2003 SC 1074.
Khushal Raov. State of Bombay, AlR 1958 SC 22; Kishan Lal v. State of Rajasthan, AIR 1999 SC 3062.
 2023
BHARATIYA
SAKSHYA
ADHINIYAM,
(S. 26 S. 26)
THE RELEVANCY OF FACTS 303
302 the accused person
been set on fire by after Use of statement when the
alleged to have
The deceased was
him as he refused to keep his daughter-in-law with him.
receipt of
The dying declaration of an injured person is recordedinjured survives,--Sometimes, the dying
pouring kerosene on the ASI who, on
have been recorded by found, that the deceased intimation, he survives. In such cases, his statement expecting that he shall succumb to injuries but
declaration was alleged to had recorded as dying declaration cannot be used as a
proceeded to the Burn
Ward of the Hospital
where he
story. He obtained the
suffered eubstantive piece of evidence as the dying
Rses can be used for corroboration under declaration is used. The statements in such
the deceased who narrated the
burn injuries. He inguired from dying declaration after reading over it to him. Section
Thae
on the RSAlor for contradiction under Section 145 of the157 of the Evidence Act [section 160,
signature of the deceased years was aware of the procedure case the declarant appears as a witness.!
Evidence Act Isection 148, BSA] in
department for the last thirty
who had been servingthe was also aware of the fact that
the Special Executive
declaration and he
he did not call any of them. Ram Prasad v. State of Maharashtra,' is an
of recording dying recording dying declaration but important case on this point. In this
Magistrates were available for Medical Officer to identify the deceased case, the Supreme Court made the following observation:
Ward by the
He was accompanied to the Burn regarding the fitness of the deceased to oiw 1f a person making dying declaration survives his
he did not take certificate from the doctor statement cannot be used as
dying declaration. He also did not record the time of recording of dying declaration, Hel dving declaration under Section 32 of Evidence Act [section 26, BSAI, though it was
manner in which it was recorded cannot be relied upon ! recorded as dying declaration, at the time when the person made
The dying declaration and the
under expectation of death. But that iS not significant to wriggle statement, he may be
161 of the Sakshva
May be proved to be false by leading evidence.-SectionSection Oaotion 32(1) of Evidence Act (section 26(a), BSA]. As it into the cassette of
long as
Adhiniyam lays down that whenever any statement relevant under
26 or 27 is statement is alive it would remain only in realm of a statementthe maker of the
or in order recorded during
proved, allmatters may be proved, either in order to corroborate or contradict it investigation."
to impeach or confirm the credit of the person by whom it was made, which might have
been proved if that person might have been called as witness and had denied upon cross Sharwam Bhadaji Bhirad v. State of Maharashtra, was the case of unlawful
examination in the truth of the matter suggested. Therefore, dying declaration may be assembly and murder. Accused were seven in numbers and armed with swords. After
corroborated under Section 160 and its credit may be impeached under section 160 of forming unlawful assembly, they chased the victim and caused multiple injuries on him
Bharatiya Sakshya Adhiniyam, either (a) by the evidence of the persons who testifies that, which were found sufficient to cause the death of the victim. The victim. however.
they from the knowledge of witnesses, believe him to be unworthy of credit or by proof survived because of efforts of team of doctors. Statement of victim recorded in details of
of former statement of the deceased inconsistent with any part of his evidence which is the incident itself gave deiails of assault and disclosed names of the accused assailants.
liable to be contradicted. One S.B. Singh was tried for the murder of the deceased. The The statement of dying declaration need not stand strict scrutiny in facts of the case and at
dying declaration of the deceased was the only evidence. The case of the prosecution that the best be deemed statement under Section 164, CrPC [section 183, BNSS]
was corroborated by evidence of eye-witness. Conviction of accused was held to be statement
murder was committed in railway compartment and there was light therefore deceased proper.
could identify his assailants. The defence filed the copy of the statement of the deceased Should not be under compulsion.-Dying declaration due to compulsion or
made about 7 years prior to the murder. In this, the deceased had stated that his eye sight pressure not be relied upon whereas dying declaration free from compulsion or pressure tw
was poor and his vision was blurred. The statement was held relevant.2 be relied up. The deceased said that she was not burnt by her husband in-laws. She was
Dying declaration tainted.-A dying declaration would be tainted if the believed.4
circumstances show that there was discussion between the interested person and deceased Rule of Dying Declaration.In Kalawati v. State of Maharashtra, Justice Dr.
as to who could be assailants, if it is delayed,4 if it is proved that accused had already Arijit Pasayat referred to Paniben (Smt.) v. State of Madhya Pradesh, and summed up the
been named and the fact is known to the declarant, when the idenity of the person named rule of dying declaration as follows
by the deceased is doubtful.6
In Cherlopalli Cheliminabi Saheb v. State of Andhra Pradesh, the dying "(i)There is neither rule of law nor of prudence that dying declaration cannot
declaration was recorded by police inspector in hospital. The doctor stated that deceased at be acted upon without corroboration.
the time of recording of dying declaration was not in a serious condition. Magistrate (ii) If the Court is satisfied that the dying declaration is true and voluntary it
residing near hospital was not called. Deceased did not explain nature of attack on him in can base conviction on it, without corroboration.
dying declaration. There is correction in the nature of weapons used. Thumb impression
was taken by using grease of motor cycle and not from inkpad taken on dying (iii) The Court has to scrutinise the dying declaration carefully and must
Dying declaration was tainted. Held-Dying declaration cannot be relied ondeclaration.
for basing
ensure that the declaration is not the result of tutoring, prompting or imagination.
conviction, moreso, when all other witnesses turned hostile.
1 Moqsoodan v. State of UP, AIR 1983 SC 218.
2 AIR 1999 SC 1969.
1. Shaikh Rafig v. State of Maharashtra, AIR 2008 SC
2 1362. 3 AIR 2003 SC 199.
U.P. State v. S.B. Singh, 1964 ALJ 1134 at 1138 (SC):
SC I519. See also State of U.P. v. Madan Mohan, AIR 1989 4 Kishan Lal v. Jagun Nath. AIR 1990 SC 1357.
3. Khushal Rao v. State of Bombay, AIR 1958 AIR 2009 SC 1932.
4 SC 22 paras 11, 16, 6
In re Guruswamy, AIR 1940 Mad. 196; AIR 1992 SC 1817.
5. Muzzafarv. Emperor, 99 1C 322. Khushal Rao v. State of Bombay, ATR 1958 SC 22.
MunnuRaja and another v. State of Madhya Pradesh, AIR 1976 SC2199.
6 Harbans Singh v. State of Punjab, AIR 1962 SC
439. State of Uttar Pradesh v. Ram Sagar Yadav and others, AIR I985 SC 416 and Ramavati Devi v. State of
AIR 2003 SC 1014. Bihar, AIR 1983 SC 164.
 ADHINIYAM, 2023
BHARATIYA
SAKSHYA (S. 26
304
THE S. 26| RELEVANCY OF FACTS 305
to observe andidentify the assailants and was in a
The deceased had an opportunity Clause (b) of Section 26 of the Sakshya
fit state to make the
declaration.! la course of business.Clause (b) of Section Adhiniyam. Statement made in
26 of BSA deals with relevancy of
declaration is suspicious, it should not be acted upon otatements made in Course of business by a person who is dead or who cannot be found or
(iv) Where the dying bas become incapable of giVing evidence or whose attendance cannot be
withoutcomoborative evidence.*
an amount of delay or expense which is unrcasonabie. This clause lays procured without
never make any dying down that the
was unconscious and could etatement made by such pecrson in ordinary cOurse of business is admissible. This clause
(v) Where the deceased is to be rejected.
declaration, the evidence with regard to it declares that the statement made in the course of business is a better piece of evidence
suffers from infirmity cannot form the basis .hen it consists of an entry or memorandum made by such person in a book kept in
(1) Adying declaration which ordinary course of business or in discharge of professiona! duty or when it is an
conviction.4
acknowledgement written or signed by such person of the receipt of money goods,
contain the details as to
(vii) Merely because a dying declaration does securities or property of any kind or when this statement is made in a document used in
Occumence, it is not to be rejected. commerce written or signed by such person or when this statement is about a date of
letter or other document usually dated, written or signed by him
discarded
(vii)Equally. mercly because it is a brief statement, it is not to be
On the contrary, the shortness of the statement itself guarantees truth.ó In the course of business,-The expression "in the course of business" means in
the way that business (which may be of a purely private and even trivial nature) is
(ix) Nomally, the Court, in order to satisfy whether the deceased was in afe conducted. It has no cornection with a course of business which suggests a series of acts
mental condition to make the dying declaration, looks up to the medical opinion of business, the section would, therefore, apply to an act or acts of simple or private
But where the eve-witness said that the deceased was in a fit and conscious state to nature.! The expression "statement made in the ordinary course of business means a
make the dying declaration, the medical opinion cannot prevail. 7 statement made during the course not of any particular transaction of exceptional kind but
(x) Where the prosecution version differs fromn the version as given in the of business or professional employment in which the deceased was ordinarily or
y ing declaration,the said deciaration cannot be acted upon. 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.
(xi) Where there is more than one statement in the nature of dying declaration, So where there is not only no evidence that there was any such current routine of business
one first in point of time must be preferred. Of course, if the plurality of but actually no evidence that the practice had ever been adopted on any other occasion, the
dying declarations could be held to be trustworthy and reliable, it has to be statement by aperson since deceased that the defendants had asked him to lend them
accepted9 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
Norequirement of oath and cross-examination.-The requirement of oath and under Section 32, sub-clause (2) of Evidence Act (section 26(b), BSA] as it is stalement
cross-examination, in case of dying declaration are dispensed with. The situaion in which made by a dead person in the ordinary course of business and in discharge of his
a person ison death-bed is so solemn and serene when he is dying that the grave position professional duty. It is not necessary that the occupation should be a mercantile nor that
in which he is placed, is the reason in law to accept veracity of his statement. The it should be a secular one. The register of marriage kept by a priest is admissible.
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 Statement verbal or written.--The statement under clause (b) may be written or
Court without a scrap of evidence.l0 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 clause point to the superior
Nosignature or thumb impression of declarant--Credibility.--Where the force of 'written' over 'verbal' statement.
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 Contemporaneous.-According to English law, the entry should have been made
Court, defect in following guidelines was held to be of trivial nature and the dying at or near the time of transaction recorded. But the provisions of the Bharatiya Sakshya
declaration proved by ample evidence could not be rejected. Adhiniyam contain no such restriction. According to this ciause,an entry made even after
the occurrence of the fact about which it relates is admissibie if it is made in course of
I. K. Ramachandra Reddy and another v. The Public Prosecutor, AIR 1976 SC 1994.
business or in a book of account. But in determining the weight to be attached to such
2. Rasheed Beg v. State of Madhya Pradesh, 1974 (4) SCC 264. entries in particular cases it willalways be important to consider how far the statement or
3. Kaka Singh v. State of MP.. AIR 1982 SC 1021. entry was contemporaneous with the fact it relates.
4. Ram Manorath and others v. State of U.P.. AIR 1974 SC 332.
5. State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC617. English Law.--According to English Law, the subject-matter of the entry must
6. Surajdeo Oza and others v. State of Bihar, AIR 1979 SC 1505. have beern within the direct and personal knowledge ot the person making it. It must be an
Nanahau Ram and another v. State of Madhya Pradesh, AIR 1988 SC912. entry not of something that was said, not of something that was learnt, not of something
8. State of U.P. v. Madan Mohan and others, AIR J989
SC 1519. that was ascertaining by the person making the entry, but an entry of a business
9. Mohanlal Gangaram Gehani v. State of Maharashtra, AIR 1982 sC 839 and Mohan Lal
State of Hary ana, AIR 2007 SC (Supp) 1139. and others .
Rammurti v. Subbarao, AIR I937 Mad. 90
10. Dashrath v. State of M. P., AIR 2008 SC 316 at p. 2
319. Makkhan Singh v. Emperor, AlR 1925 Al. 430.
1, Narender Kumar v. State of NCT of Delhi, AIR 2016 SC
150 pp. 155, 156.