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UNIVERSITY INSTITUTE OF LEGAL STUDIES,

PANJAB UNIVERSITY.

TOPIC:- DEPARTMENTAL ENQUIRY STAGES


SUBJECT:- SERVICE LAW.
SUBMITTED TO- MS. SUDIPA SUBMITTED BY- CHARAN SALWAN
ROLL NO. 31/12
8TH SEMESTER
B.A. LL.B. (HONS.)
UILS
PANJAB UNIVERSITY
ACKNOWLEDGMENT

I would like to express my special thanks of gratitude to my teacher Ms. Sudipa who gave me
the golden opportunity to do this wonderful project on the topic Departmental Enquiry Stages,
which also helped me in doing a lot of Research and I came to know about so many new things. I
am really thankful to her. I would also like to thank my parents and friends who helped me a lot in
finishing this project within the limited time.
TABLE OF CONTENTS
1. LIST OF ABBREVIATIONS---------------------------------------------------------------- 4

2. TABLE OF CASES-------------------------------------------------------------------------- 5

3. INTRODUCTION---------------------------------------------------------------------------- 7

4. DEPARTMENTAL PROCEEDING---------------------------------------------------------- 8
I. LODGING OF COMPLAINT
II. PRELIMINARY ENQUIRY
III. REPORT OF THE PRELIMINARY ENQUIRY
IV. INITIATION OF REGULAR DEPARTMENTAL PROCEEDINGS- FRAMING OF CHARGE-
SHEET
V. REPLY OF THE DELINQUENT TO THE CHARGE-SHEET
VI. SCRUTINY OF THE REPLY OF THE DELINQUENT
VII. APPOINTMENT OF ENQUIRY OFFICER
VIII. NOMINATION OF THE PRESENTING OFFICER
IX. LEGAL ASSISTANCE FOR DEFENSE
X. ATTENDANCE AND EXAMINATION OF WITNESSES

6. CONCLUSION----------------------------------------------------------------------------- 17
LIST OF ABBREVIATIONS

FIR First Information Report


AIR All India Reporter
IT Information Technology
Cr.P.C. Code of Criminal Procedure
IPC Indian Penal Code
Honble Honorable
T.V. Television
etc et cetera
i.e. id est (that means)
r/w read with
S. Section
LJ Law Journal
Re. Reference
US United States
LIC Life Insurance Corporation
No. Number
Ors. Others
Cri. Criminal
p. Page
u/s under section
w.e.f with effect from
PC Privy Council
FC Federal Court
SC Supreme Court
SCC Supreme Court Cases
v. Versus
Vol. Volume
Pat. Patna
LL.B. Legum Baccalaureus

& and

TABLE OF CASES
1. Venkatramanan v. Union of India, AIR 1954, SC 375.
2. Union of India v. H.C. Goel, AIR 1964 SC 364.
3. Joga Rao v. State, AIR 1957 AP 197.
4. Union of India v. A. Nagamalleshwar Rao, AIR 1998 SC 111.
5. State of Orissa v. Murlidhar, AIR 1963 SC 404.
6. State of Uttar Pradesh v. Baburam, AIR 1961 SC 751.
7. State of U.P. v. Chandrapal Singh, AIR 2003 SC 4119.
8. C.M.D.U.C.O. v. P.C. Kakkar, AIR 2003 SC 1571.
9. U.P.S.S. Corporation Ltd. v. K.S. Tandon, AIR 2008 SC 1235.
10. Chanipaklal v. Union of India, AIR 1964 SC 1854.
11. ND. Ramteethakhar v. State of Maharashtra, 1996(3) SLR (SC) 778.
12. G.K. Sahoo v. Calcutta Port Trust, 1999(1) SLR (Cal.) 439.
13. Sundaram v. Tamil Nadu State Electricity Board, 1997(1) SLR (Mad.) 501.
14. R.S. Bardwan v. State Bank of Patiala, 1998(1) SLR (P. & H.) 179.
15. N.D. Ramteethakhar v. State of Maharashtra, 1996(3) SLR (SC) 778.
16. G.K. Sahoo v. Calcutta Port Trust, 1999 (1) SLR (Cal.) 439.
17. A.C. Benjamine v. Union of India, AIR 1966 SC.
18. Government of T.N. v. D.S. Rajadevan, AIR 1996 SC 2634.
19. State of U.P. v. G.S. Sharma, AIR 1968 SC 158.
20. Coal India Ltd. v. S.K. Mishra, AIR 2007 SC 1706.
21. UCO Bank v. R.L. Capoor, AIR 2007 SC 2129.
22. Union of India v. S.K Nayak, 2007 (6) SCALE 348.
23. Managing Committee, D.C. Arya School v. Delhi Administration, 1996 (8) SLR (Delhi)
574.
24. U.P. Warehousing Corporation v. Vijay Narayan, AIR 1980 SC 840.
25. R.S. Manyam v. Vice-Chairman, A.P.SRTC, 1999(1) SLR (A.P.) 280.
26. L. Chandraiah v. State of A.P., AIR 2003 SC 282.
27. State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744.
28. Soma Chakravarty v. State, AIR 2007 SC 2149
29. Vishwanath v. Abdul Wajid, AIR 1963 SC 67.
30. S. Parthasarthy v. State of A.P., AIR 1973 SC 2701.
31. Union Of India v. P.C. Biswas, 2008 (2) SLR 453 (Cal).
32. Ravi Malik v. National Film Development Corporation Ltd., 2004 (13) SCC 427.
33. Union of India v.Mohd. Ramzan Khan, AIR 1993 SC 471.
34. Sat Pal v. State of Haryana, 1998(4) SLR (P. & H.) 151.
35. Bharat Petroleum Corpn. Ltd. v. Maharashtra Genl. Kamgar Union, (1999) 1 SCC 626.
36. M/s. CIPLA Ltd. v. Repu Daman Bharot, AIR 1999 SC 1635.
37. Hav. Jagdish Chand v. Union of India, 1998(1) SLR (H.P.) 285.
38. F.C.I. v. Bant Singh, AIR 1997 SC 2982.
39. Vijay Thakur v. Videsh Sanchar Nigam Ltd., 2008 (1) SLR 805 (Delhi).
40. K.B. Rai v. State of Punjab, 1996(1) SLR (P. & H.) 353.
41. C.L. Subramanium v. Collector of Customs, AIR 1972 SC 2178.
42. Board of Trustees, Port of Bombay v. Dalip Kumar, AIR 1983 SC 109.
43. A.K. Roy v. Union of India, AIR 1972 SC 710.
44. Shiraz Golden Restaurant v. Commercial Shop and Fac. Est. Union, 2008 (1) SLR 776.
45. Calcutta Municipal Corporation v. S.N. Nath, 1998(2) SLR (Cal.) 756.
46. Hardwari Lal v. State of U.P. , AIR 2000 SC 277.
Dying Declaration as Oral Evidence

CONTENTS

INTRODUCTION
....pg.2
HOW A DYING DECLARATION SHOULD
BE.......pg.3
WHO MAY RECORD A DYING
DECLARATION.......pg.4
IMPORTANT FACTS TO BE REMEMBERED BEFORE
RECORDING DYING DECLARATION
....pg.5
TABLE SHOWING THE CONDITIONS FOR ADMISSIBILITY
AND EVIDENTIARY VALUE OF A DYING
DECLARATIONpg.5
DYING DECLARATION: AN EXCEPTION TO THE RULE
AGAINST
HEARSAY
..pg.11

DISTINCTION BETWEEN INDIAN AND. ENGLISH LAW

a) Sense of Impending
Death...pg.12
b) Scope of
Application...pg
.13
c) Evidentiary
Valuepg.1
4
d) Competency Of The
Declarant.pg.14
RELEVANCE OF DYING DECLARATION

a) Basis of Dying Declaration : How Problematic?.............pg.16


b) Evidentiary Value to be Attached to A Dying Declaration.pg.18
c) Procedures and Precautions..pg.21
JUDICIAL GUIDELINES ON DYING
DECLARTIONpg.28

CONCLUSION
.pg.30

BIBLIOGRAPHY
.pg.31

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Dying Declaration as Oral Evidence

INTRODUCTION

Dying declaration is bases on the maxim Nemo moriturus praesumitur


mentire i.e. a man will not meet his maker with a lie in his mouth. The statements
made by a person as to the cause of his death or as to circumstances of the transaction
resulting in his death is called a dying declaration. Section 32(1) of the Indian
Evidence Act talks about dying declaration.1 A dying declaration is admis-sible in
evidence even though it has not been given on oath and the person making it cannot
be cross-examined. It is an exception to the rule against hearsay. This exception, as
such dates back as far as the first half of the 1700s, the period when the hearsay
rule was coming to be systematically and strictly enforced. 2 The custom of using
dying declaration probably comes down as a tradition long before the evidence
system arises in the 1500s.3 Admissibility of a dying declaration as a relevant piece
of evidence is guided by the principle of necessity and religious belief of the olden
days. The necessity being, that in cases, where victim is the only eye-witness to the
crime, the exclusion of his/her statement might defeat the ends of justice. The
religious sanction behind their admissibility comes from the belief in the fact, that a
sense of impending death produces in a man's mind the same feeling as that of a
conscientious and virtuous man under oath-nemo moriturus praesumuntur mentiri.4

S. 32(1) of the Indian Evidence Act provides that a statement by a person since
1 . deceased, as to the cause of
his death or any of the circumstances of the transaction that resulted into his death is
relevant, irrespective
of the proceedings in which the cause of his death comes into question.
AshutoshSalil, An Analysis of Indian and English Position of Dying
2. Declaration J 297,Cri.L.J.2005.
3. Id.
Sudipto Sarkar& V. R. Manohar, Sarkar on Evidence, 15th edn., vol. l.Wadhwa and
4 . Co., Nagpur, 1999, p. 633.
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Dying Declaration as Oral Evidence

HOW A DYING DECLARATION SHOULD BE?

There is no particular form of dying declaration. However, the best form


of dying declaration is in the form of questions and answers. However, whenever a
dying declaration is being recorded in the form of questions and answers precaution
should be taken that exactly what questions are asked and what answers are given
by the patient those should be written.

A dying declaration may be in the following forms:

1. Written form;

2. Verbal form;

3. Gestures and Signs form. In the case ''Queen vs Abdulla 5'', it was held that if
the injured person is unable to speak, he can make dying declaration by signs
and gestures in response to the question.

4. If a person is not capable of speaking or writing he can make a gesture in the


form of yes or no by nodding and even such type of dying declaration is valid.

5. It is preferred that it should be written in the vernacular which the patient


understands and speaks.

6. A dying declaration may be in the form of narrations. In case of a dying


declaration is recorded in the form of narrations, nothing is being prompted
and every thing is coming as such from the mind of the person making it.

5 ILR 7 385
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Dying Declaration as Oral Evidence

OBJECTS;

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

2. It is also said that '' Truth sits on the lips of a person who is about to die''.

3. The victim is exclusive eye witness and hence such evidence should not be
excluded.

WHO MAY RECORD A DYING DECLARATION ?


1. It is best that it is recorded by the magistrate.
2. If there is no time to call the magistrate, keeping in view the deteriorating
condition of the declarant, it can be recorded by anybody e.g. public servant like
doctor or any other person.
3. It cannot be said that a dying declaration recorded by a police officer is always
invalid.
4. If any dying declaration is not recorded by the competent Magistrate, it is better
that signatures of the witnesses are taken who are present at the time of recording
it.

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Dying Declaration as Oral Evidence

IMPORTANT FACTS TO BE REMEMBERED BEFORE RECORDING


DYING DECLARATION:

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

NOW IT IS VERY ESSENTIAL TO KNOW THE CONDITIONS FOR


ADMISSIBILITY AND EVIDENTIARY VALUE OF A DYING
DECLARATION. THE TABLE GIVEN INFRA SUCCINCTLY EXPLAINS
THE SAME:

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CONDITIONS FOR EVIDENTIARY VALUE


ADMISSIBILITY

1. The declarant ,who gave 1. Evidentiary value of dying


dying declaration, should declaration will change from
have died. case to case according to fact
and circumstances of each
2. Admissibility of dying
case.
declaration is explained in
the section 32 (1) of Indian 2. A dying declaration must be
Evidence Act. recorded in exact words
spoken by the declarant.
3. When the statement is made
by a person as to the cause of 3. If a competent Magistrate
his death, or any of the records a dying declaration in
circumstances of the question and answer form ,
transaction which resulted in such dying declaration will
his death, in cases in which have much evidentiary value.
the cause of that persons
4. If a dying declaration is
death comes into question.
recorded No sooner does the
Such statements are relevant
information receive than the
whether the person who
dying declaration is recorded,
made this was expecting
tutoring by interested persons
death or not. (See section 32
can be avoided.
(1) of Indian Evidence Act).

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Dying Declaration as Oral Evidence

4. The dying declaration must 5. In case more than one dying


be complete 6. declarations,allsuch
declarations must be
5. The cause of death must be
identical.
explained by the declarant or
atleast the circumstances 6. In Jai Prakash vs State of
which resulted his/her death Haryana9, it was observed
must be explained. that '' a statement of victim
which was recorded by the
6. The declarant, who makes
police officer in hospital.
dying declaration, must be
Later, such statement was
conscious and coherent.
taken to be a dying
7. The declarant must be sound declaration.

state in mind.
7. In some cases, F.I.R was also

8. The cause of death of considered as a dying

declarant must be in question. declaration.

9. However, the declarant need 8. Inconsistent dying declaration

not be under expectation of is no evidentiary value. ( Smt

death unlike English Law. Kamla vs State of Punjab10)

10. The declarant need not be 9. The dying declaration

under shadow of death.7 recorded by the Clerk in the

6 Yet, it was held that ''Dying declaration incomplete as deceased not being able to answer
further, held could be relied upon. (AIR 1956 SC 168). ''
7 State of Haryana vs Manageram & others (AIR 2003 SC 558)
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Dying Declaration as Oral Evidence

11. The dying declaration may presence of Magistrate not


be in verbal form. inadmissible. Scribe need not
be produced to prove it11.
12. The whole dying declaration
must be taken into 10. Despite there is a dying
consideration by the Court declaration, Court seeks
but not some portion of it. further corroboration.
However, Conviction can be
13. The statement may be made
based on it without
before the cause of death has
corroboration if it is true and
arisen, or before the deceased
voluntary.
has any reason to anticipate
being killed8. 11. Replies by signs and gestures
constitute verbal statement
14. Corroboration to dying
resembling the case of a dumb
declaration not necessary.
person and is relevant and
(1990 Crl.L.J 1129)
admissible in evidence. (AIR

15. Exact words of deceased in 1949 Nag 405)

dying declaration need not be


12. Dying declaration is an
stated. (1990 Crl.L.J 2720)
exception to hearsay evidence
16. It is immaterial that the because if this evidence is not

person put a thumb considered very purpose of


the justice

9 (1998) 7 SCC 284


10 AIR 1993 SC 374.
8 Pakala Narayana Swami vs Emperor
11 (52 Cr.L.J 883)

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Dying Declaration as Oral Evidence

impression or signed a dyin will be forfeited in certain


declaration if the declaration situations when there may not
is duly witnessed. be any other witness to the
crime except the person who
17. If a declarant, who is laying
has since died.
in the bed, is unable to get up
to sign due his condition, or it 13.Dying declaration is valid
is convenient for him to put both in civil and criminal
thumb impression, he can put cases whenever the cause of
thumb impression. death comes into question.

18. There is usually no time limit 14.Dying declaration not attested


that dying declaration by wife or dactor present
becomes invalid. there. Smacks of concoction.
Inconsistency in oral and
medical evidence. Conviction
cannot be based on such
evidence12.

15.It is perfectly permissible to


reject a part of dying
declaration if it is found to be
untrue and if it can be
separated [ Nand Kumar v.
state of Maharastra13.].

12 AIR 1981 SC 1578.


13 Cri LJ 1988 1313
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16. Declarant suddenly dying


and his thumb impression
taken after his death held
dying declaration admissible
in evidence. (AIR 1962 SC
1252)

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Dying Declaration as Oral Evidence

DYING DECLARATION: AN EXCEPTION TO THE RULE AGAINST


HEARSAY

Black's Law Dictionary defines hearsay as "A statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. Hearsay evidence is testimony in Court of a statement
made out of the Court, the statement being offered as an assertion to show the truth
of matters asserted therein, and thus resting for its value upon the credibility of the
out of Court asserter."14
The hearsay rule generally disallows the use of out of Court statements as
evidence of the truth of the matters asserted in that statement. Because the
person who is giving this evidence is not telling his experience but that of
another person. Dying declaration is one of the exceptions to the rule against
hearsay. The main guiding reason for making dying declaration an exception
to the hearsay rule arises out of necessity. If this evidence not considered very
purpose of justice will be forfeited in certain situation when there may not be
any other witness to the crime except the person who has since died.15. Since,
there might arise situations where someone would have been shot at or
inflicted with fatal injuries while no one was around. In such situations to let
the accused go free just because there was no witness to the crime would result
into miscarriage of justice. Hence, to avoid situations like above dying
declaration has been made an exception to the rule against hearsay.

14
. Dying Declaration, at http:/www.lawyersclubindia.com/articles
15
Dr. R. K. Gorea, Critical Appraisal of Dying DeclarationJIAFM, 2004, 26(1).

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Dying Declaration as Oral Evidence

DISTINCTION BETWEEN INDIAN AND. ENGLISH LAW:

Sense of Impending Death


The law relating to dying declaration in India and England differs
significantly. In England a dying declaration should have been made under the sense
of impending death, i.e.; the person making it should have given up all hopes of
living (Settled hope less expectation of death).16 Whereas a dying ' declaration in
India is relevant whether the person who made it was or was not, at the time it was
made under the expectation of death. Thus, in India it is immaterial whether there
existed any expectation of death at the time of the declaration. In R v. Jenkins17 the
deceased made a statement implicating the accused. Her dying declaration included
the words that it was made 'with no hope of my recovery'. While it was being read
to her she sought to amend the same and asked to add 'present' before hope. Thus,
her dying declaration contained the words that it was made 'with no present hope of
my recovery'. The Court held, that the statement could not be received in evidence
since, at the time of making it the deceased I was not under settled hopeless
expectation of death and her dying declaration suggested that at the time of making
it she entertained a faint hope of recovery.
Had the same situation arisen in India, it would have been admitted in
evidence since in India any statement made by a person (since deceased) as to the
cause of death circumstances of the transaction resulting in death of that person is
admitted in evidence. Thus, her statement implicating the accused would have
sufficed to make it admissible under Section 32(1) of the Act. The problem with
English position is that of ascertaining the existence of knowledge of approaching
death. Since, this ascertainment is to be done by the Judges depending upon the

16
Avatar Singh Principles of the Law of Evidence,16th ed.2007,Central Law Publication.
17
.(1869) LR 1 CCR 187.
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Dying Declaration as Oral Evidence

circumstances of each case; it always leaves the possibility of subjectivity creeping


in.18

Scope of Application

In England the admissibility of a dying declaration is confined only to the


cases of homicide whereas in India a dying declaration will be admissible in any
case in which the cause of death of a person comes into question. In R v. Mead19 the
accused was charged with perjury. He obtained an order for a new trial and shot the
deceased before it took place. A dying declaration made by the deceased concerning
the transaction out of which the prosecution for perjury arose was rejected. The
Court held that the dying declarations are only admissible where the death of the
deceased is the subject of the charge, and the circumstances of the death are the
subject of the declaration. For ex ample, in India in a charge of rape, a woman's
dying declaration is admissible even if the death of the deceased is not the subject-
matter of the charge, provided that the question of her death comes in charge of rape.
But, in England such dying declaration is not admissible to prove rape. 20 Since, in
such cases, the death of the deceased is not the subject-matter of the charge.
In India a dying declaration is admissible even in civil suits also. Section 32(1)
of the Act clearly provides that such statements (i.e. statements as to cause of death
or as to any ............. his death) are relevant whatever may be the nature of
the proceedings in which the cause of his death comes into question. Thus, in India
admissibility of a dying declaration does not depend upon the nature of the

18
. Wigmore observes "in ascertaining generally the existence of a knowledge of' approaching
death, Courts are now and ':, then making rulings at which common sense revolts. Moved
either by declination to allow the slightest flexibility of rule in applying principles- to
circumstances or by a general repugnance to exceptions to the hearsay rule, they have
recorded decisions which can only be desired by-laymen and repudiated by the profession."
C.f; supra, note 2, p. 237.
19
. (1824) 2 B & C 605, c.f.; supra, note 8, p. 652.
20
. Supra, note 4, p. 634.
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Dying Declaration as Oral Evidence

proceedings. But in England a dying declaration is admitted in evidence only for the
criminal cases and that too it is restricted only to those cases where the death is the
subject-matter of the charge.21
Evidentiary Value

Another distinction between Indian and English law is with respect to


evidentiary value to be attached to a dying declaration. This difference was pointed
out in the case of Plus Jasunga S/oAkumu v. R.22 where the Court emphasized that
the weight to be attached to a dying declaration recorded under S. 32(1) of the Act
would be less than the weight to be attached to a dying declaration under common
law rules. The reasoning behind such observation was that the dying declaration
under S. 32(1) would lack that special quality that is thought to surround a
declaration made by a dying man who was conscious of his condition and who had
given up all hopes of survival.

Competency Of The Declarant


Under the English law, the declarant must have been competent as a witness;
thus imbecility or tender age will exclude the declaration. It is however doubtful
whether this rule is applicable in India, though there can be no doubt that declara-
tion of a person not competent to be a witness will carry little weight. 23 In India, a
child being a competent witness24, tender age cannot be a ground for the exclusion
of his/her declaration. Judicial pronouncements in this area, while recognizing

21. Supra, note 4, p. 634.


22. (1954) 21 EACA 331, c.f., Nambhard v.The Queen, (1982) 1 All ER 183 PC.
M. Monir, Law of Evidence 7th ed. Universal Law Publishing Co. Allahabad,
23. 2006, p.123.
S. 118 of the Indian Evidence Act reads that "All persons shall be competent to testify unless
24. the Court
considers that they are prevented from understanding the questions put to them, or from
giving rational
answers to those questions, by tender years, extreme old age, disease whether of body or
mind, or any other
cause of the same kind."
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Dying Declaration as Oral Evidence

competency of a child as a witness have stressed on the need to evaluate their


evidence more carefully and with greater circumspection.25

Thus, there are significant differences between Indian and English law in the
area of dying declaration. English law is not only rigid but also narrower in its scope.
The Law Commission Of England in its 245th report on "Evidence in Criminal
Proceedings : Hearsay and Related Topics" has aptly commented that,26

"Apart from the dubious psychological foundation for the exception, and the
difficulty of proving that the deceased had a settled hopeless expectation of death,
the principal illogicality of this exception is its restriction to murder and
manslaughter. It does not apply to rape or armed robbery, but there is no logical
justification for such a restriction. It is also out of step with the modern approach to
res gestae, in which the emphasis is rightly on probative value."

25
. Panchhi v. State of U.P., 1998 Cri LJ 4044 (SC)
26
. http ://www.lawcom.gov.uk/74.htm.
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RELEVANCE OF DYING DECLARATION :


Basis of Dying Declaration : How Problematic?
Dying declaration is an important piece of evidence and conviction can be
based solely on a dying declaration. Its admission in evidence is necessitated by the
fact that in many of the incidents of murder there is usually no eye-witness except
the injured victim. Hence, if his statement about the circumstances in which his death
occurred is not admitted in evidence during the criminal trial, then the only evidence
of crime would be lost resulting into miscarriage of justice. Another ground, on
which the admissibility of dying declaration rests, is the belief that "truth sits upon
the lips of dying men."27 But, by para 2 of Clause (1) of Section 32 of the Act, the
very foundation from which the sanctity of a dying declaration is born is pulled out
from its ethical and religious base and its consequent evidentiary value. 28 The
paragraph makes it very clear that the person making the declaration' should not
necessarily be under expectation of death. Discarding the English principle of
accepting a dying declaration only when it is made under the settled expectation of
death, this section takes away the sincerity of the statement that is desired.
The traditional argument that, the justification for admitting a dying
declaration derives from the proposition that no one would wish to meet his maker
with a lie oil' his lips is slightly problematic in today's context. It might continue to
be true of some God-fearing individuals, but in modern society it carries little or no
conviction where the majority of citizens are concerned.29 Redfield, C.J., in
Greenleaf, Evidence, write! that a dying declaration is not received upon any other
ground than that of necessity, Admission on the ground that the declarant was

27
. NehaVijayvarigya, "admissibility Of Dying Declaration :Whether Justified2006 (1) Cri.LJ,
p. 177..
28
. M.G. Amin, "Assumptions behind sanctity of dying declarations", (1995) 7 NLSJ, p. 88.
29
. R. v. Lawson (Raymond), (1998) CriJ L.R. 883 (CA (Crim Div)), c.f. www.westlawinternational.com
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under the most solemn sanction to speak the truth is far from presenting the true
ground of admission. The chief grounds of this exception in the law of evidence is
the presumption of there not being equally satisfactory proof of the same facts, and
the consequent probability of crime going unpunished.30

The main problem with dying declaration is not so much one of sincerity or
faulty memory, but one of perception. Motive of hatered and revenge may lead a
declarant to make false statements, even with the approach of death. The declarant
may exhibit strong feeling of hatred and revenge and if he is in such a frame of mind,
the supposed guarantee of trustworthiness fails, and the' declaration should not be
admitted.31

Dying declaration has been subject to judicial scrutiny on innumerable


occasions; the need of relying on a dying declaration has been questioned especially
in those cases where the killing was not secret and there were other adequate
testimony as to the circumstances of the death.

30
. Supra, note 2.
31
. Supra, note 2.

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Dying Declaration as Oral Evidence

Evidentiary Value to be Attached to A Dying Declaration

There doesn't seem to be much controversy as far as, the question of a dying
declaration being a significant piece of evidence is concerned. The divergent and
conflicting Judicial opinion has been with respect to value and importance to be
attached to dying declaration in basing the conviction of an accused: The Courts in
India have held time and again, that a dying declaration before it could be relied
upon must pass a test of reliability, as it is a statement made in the absence of the
accused and there is no cross-examination of the declarant to test its genuinety or
veracity. Thus, a dying declaration must be subject to close scrutiny.32A dying
declaration in India stands on a different footing than in England. Under the English
law, credence and the relevancy of a dying declaration is important only when person
making such statement is in hopeless condition and expecting an imminent death.33
In India, the weight to be attached to a dying declaration depends not upon the
expectation of death that is presumed to guarantee the truth of the statement, but
upon the circumstances and surrounding under which it was made, and very much
also upon the nature of record that has been made of it.34

It is almost a question of fact whether a dying declaration should be relied upon


or not. In one of its earliest judgments on dying declaration the Supreme Court had held
that, it was not safe to convict an accused on an uncorroborated dying
declaration.35Since then, the Supreme Court in a catena of cases has held that
conviction can be based on an uncorroborated dying declaration provided that the

32. Supra note 17, p. 125.


I 25.Kishan Lai v. State of Rajasthan, 1999 CriLJ4070 (SC). 26. Supra, note
33. 18, p. 413.
34. Supra note 22
Ram NathMadho Prasad v. State of M.P., AIR 1953 SC 420. (Even in this case the above
35. observation of the
Court came in light of the fact that the deceased was shot at during a cloudy, dark night
thereby making it
highly impossible for him to recognize the person. Since, there was a possibility of the dying
declaration not
containing the truthful account of what happened, the Court insisted on the corroboration of
the dying
declaration.)
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Dying Declaration as Oral Evidence

Court has come to the conclusion that it is true and voluntary. The most significant
being the case of Khushal Rao v. State of Bombay36 where, the Supreme Court laid
down several propositions with respect to dying declarations and these propositions
till date continue to govern the law relating to dying declarations. The Court held,
that there is no absolute rule of law that a dying declaration cannot form the sole
basis of conviction unless it is corroborated, nor can it be said that a dying
declaration is a weak piece of evidence. The Court further held that a dying
declaration stands on the same footing as another piece of evidence and has to be
judged in the light of surrounding circumstances and with reference to the principle
governing the weighing of evidence. Speaking on the same line the Supreme Court
held in the case of Padmaben Shamalbhai Patel v. State of Gujarat37 that, "a dying
declaration is an independent piece of evidence-neither extra strong nor weak and
can be acted upon without corroboration if it is found to be otherwise true and
reliable."

The position with respect to corroboration of a dying declaration in India is


similar to that in England. The position being, that there is no absolute rule of law that
prevents an uncorroborated dying declaration from being admitted in evidence. Courts
while admitting dying declarations need to do a great balancing act between the rights
of the accused and ensuring delivery of justice. Since, the accused cannot cross-examine
declarant as to the truth of his/her declaration; there arises need for a dying declaration

that will inspire full confidence of the Court in its correctness.38

36. AIR 1958 SC 22 : 1958 Crj LJ 106.


37
1991 SCC (1) 744
38.
The Supreme Court in Paniben v. State of Gujarat, has summed up the principles goverining dying
declarations. Some of the important principles are as follow.
(1) It is neither a rule of law nor prudence that a dying declaration cannot be acted upon without
corroboration. If the Court is satisfied that the dying declaration is true and voluntary it can base a
conviction on it, without corroboration.

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Dying Declaration as Oral Evidence

Section 32(1) of the Act makes it clear that the declaration can be admitted
only when the death of the declarant comes into question. Such a construction poses
problems in many situations. For e. g. B and his wife were shot at. Both of them
died. Mrs. B. when dying described the assailant. Her declaration was excluded,
because it was not her death but the death of her husband that was the subject matter
of the charge. Wigmore calls this exclusion the senseless rule of exclusion. 39 In
situation such as above the declaration with respect to other person's death also need
to be admitted in order to prevent the miscarriage of justice. The law commission of
India, in its sixty-ninth report on the Indian Evidence Act, 1872 observed that the
language of the Section is even now capable 1 a wider construction". Accordingly it
recommended that, an explanation II might be added to Sec. 32 (1) on the following
lines;
"The circumstances of the transaction which resulted in the death may include
facts relating to the death of another pel son."40

(2) The Court has to scrutinize the dying declaration carefully and ensure that the declaration is not
the result of tutoring, prompting or imagination and the deceased had opportunity to observe and
identify the assailants and was in a fit state to make the declaration.
(3) Where a dying declaration is suspicious it should not be acted upon with out corroborative
evidence.
|4) Normally the Court in order to satisfy whether the deceased was in a fit state of mind while
making dying declaration look up to the medical opinion. But, where the eyewitness has said that
the deceased was in a fit and conscious state to make the dying declaration, the medical opinion
cannot prevail.
39
Supra, note 2.
40
. Supra, note 28, p. 375.

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Dying Declaration as Oral Evidence

Procedures and Precautions:


Section 32(1) of the Act is silent about the person to whom a dying declaration
can be made and the mode of making such a dying declaration. The same has rightly
not been provided since, for someone who is breathing his last, it would be ridiculous
to make him/her undergo several procedures before he/she could get his/her dying
declaration recorded. But, the absence of sued provisions gives rise to several
questions, For example, can a dying declaration made to the only family member
present at the time of killing be believed? Can an investi-gation officer record a
dying declaration? Will the statement made to a magistrate under Section 164 of the
Code of Criminal Procedure cover a dying declaration as well? What happens in
cases where there is no certification by the doctor to the effect that the declarant was
in a fit state of mind while making the declaration? There cannot be straight answers
to such questions since, the admissibility of a dying declaration is very fact specific
and to a great extent is determined by the circumstances under which it was made.41
Section l62 (l) of the Code of Criminal Procedure provides that any statement
made to a police officer during the course of investigation is inadmissible. But
Clause of the same section makes an exception in favour of dying declaration by
providing that, the provisions of this section shall not apply to statement falling
within the provisions of S. 32(1) of the Act. The Courts have been hesitant to admit
dying declarations made to an investigation officer, for the obvious reason that
investigating officers being interested in the success of investigation might tamper
with the dying declaration to tilt the balance in their favour. The Supreme Court in
the case of Dalip Singh v. State of Punjab42has held that it is better to leave dying
declarations made to police officers- during in-

41
Supra note 10.
42
. AIR 1979 SC 1173 : 1979 Cri LJ 700

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Dying Declaration as Oral Evidence

stigation out of consideration until and unless prosecution satisfies the Court as to why
it was not recorded by a magistrate or doctor. It further held that such declara-tions
might be relied upon if there was no time or facility for adopting the better method.
Several High Courts have also held that it is not prudent to base conviction on a dying
declaration made to an investigating officer and the practice of the investigating officer
recording dying declaration should not be encouraged.43
It all depends on the facts and circumstances of the case. Thus, where the
dying declaration recorded by the police officer was natural, coherent, truthful,
narrating incident without embellishment and explicitly identifying accused, such
dying declaration was held to be valid.44 But, where the investigating officer had
recorded the dying declaration even before the victim was certified by the doctor to
be fit for making a statement and though the victim survived for two weeks
thereafter, the investigating officer made no efforts to get this statements recorded
by a magistrate, it was held, that no reliance could be placed on such dying
declaration.45

In Rambai v. State of Chhattisgarh,46It was held that if the person recording the
dying declaration is satisfied that the declarant is in a fit medical condition to make
a dying declaration then such dying declaration will not be invalid solely on the
ground that the doctor has not certified as to the condition of the declarant to make
the dying declaration.

AtulGandhia v. State of Assam, 1990 Cri. L. J. 1049 (Gau), Babura v. State of Rajasthan,
43. 1993 Cr. L. J. 2696 (Raj)
I. L, R. (1979) 1 Del. 752, c.f; Deepak Arora, R. S. Dogra&Jaswant Singh, Law of
44. Evidence, vol. 1 Madras Law
journal, Madras, 1998, p. 516.
45. Gulab Singh v. State, 1995 Cr. L. J. 3180 (Del)
46
(2002) 8 SCC 33

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Dying Declaration as Oral Evidence

Similarly, there is no hard and fast rule that a doctor's certificate as to the mental
fitness of the deceased is prerequisite for the admissibility of a dying declaration in
evidence. A constitutional bench of the Supreme Court in the case of Laxman v.
State of Maharashtra47 while rejecting the contention of the appellant, that since
the certification of the doctor was not to the effect that the patient was in a fit state
of mind to make the statement, the dying declaration could not form the sole basis
of conviction, held, that it cannot be said that since there is no certification as to
fitness of mind of the declarant, the dying declaration is not acceptable. The Court
held that what is essentially required is that the person who records a dying
declaration must be satisfied that the deceased was in a fit state of mind. The Court
further held that a certificate by doctor is essentially a rule of caution and therefore,
the voluntary and truthful nature of the declaration can be established otherwise.
There might arise situations where it would not have been possible to get a doctor,
thus a dying declaration recorded in such situations cannot be rejected merely
because there was no one to certify the fact that the deceased was in a fit state of
mind while making the statement. In such situations the Courts need not reject the
dying declaration but should subject it to strict scrutiny to verify the truth and
genuineness of its contents. Once the Court is satisfied that the dying declaration
was recorded without deceased,being tutored, the same should be accepted and
relied upon.48Thus, a dying declaration should not be rejected merely on the ground
that certain formalities were not complied with. As long as it is truthful and
voluntarily made it should be relied upon.

47. 2002 Cri LJ 4095


48. Surjeet Kaur v. State of M.P. 1994 Cri LJ 1886.
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Dying Declaration as Oral Evidence

In Smt. Paniben v. State of Gujarat,49the Supreme Court has laid down in several
principles governing dying declaration, which could be summed up as under:

(i) There is neither rule of law nor of prudence that dying declaration cannot be
acted upon without corroboration.

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can
base conviction on it, without corroboration.

(iii) The Court has to scrutinize the dying declaration carefully and must ensure that
the declaration is not the result of tutoring, prompting or imagination. The deceased
had an opportunity to observe and identify the assailants and was in a fit state to
make the declaration.

(iv)Where dying declaration is suspicious, it should not be acted upon without


corroborative evidence

(v) Where the deceased was unconscious and could never make any

dying declaration the evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of
conviction.

(vii) Merely because a dying declaration does contain the details as to

the occurrence, it is not to be rejected.

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On


the contrary, the shortness of the statement itself guarantees truth.

49
AIR 1992 SC 1817.
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Dying Declaration as Oral Evidence

(ix) Normally the Court in order to satisfy whether deceased was in a fit mental
condition to make the dying declaration look up to the medical opinion. But where
the eye-witness said that the deceased was in a fit and conscious state to make the
dying declaration, the medical opinion cannot prevail.

(x) Where the prosecution version differs from the version as given in the dying
declaration, the said declaration cannot be acted upon.

(xi) Where there are more than one statement in the nature of dying declaration, one
first in point of time must be preferred. Of course, if the plurality of dying declaration
could be held to be trustworthy and reliable, it has to be accepted.

In case of State of UP v Madan Mohan50 court admitted that Conviction can be


based on it without corroboration if it is true and voluntary. Dying declaration
becomes unreliable if it is not as per prosecution version. This has been summed up
the Supreme Court:

1. It is for the court to see that dying declaration inspires full confidence as the
maker of the dying declaration is not available for cross examination

2. Court should satisfy that there was no possibility of tutoring or prompting.

3. Certificate of the doctor should mention that victim was in a fit state of mind.
Magistrate recording his own satisfaction about the fit mental condition of the
declarant was not acceptable especially if the doctor was available.

4. Dying declaration should be recorded by the executive magistrate and police


officer to record the dying declaration only if condition of the deceased was so
precarious that no other alternative was left.

50
AIR 1989 SC 1519.
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Dying Declaration as Oral Evidence

5. Dying declaration may be in the form of questions and answers and answers being
written in the words of the person making the declaration. But court cannot be too
technical.

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Dying Declaration as Oral Evidence

JUDICIAL GUIDELINES ON DYING DECLARTION

Sudhakar v . State of Maharashtra , AIR 2000 SC 2602: (2000) 6 SCC 671

In this case honble supreme court has laid down following guidelines:-

1. Section 32 is an exception of the rule of hearsay and makes admissible the


statement of a person who dies, whether the death is a homicide or a suicide,
provided the statement relates to the cause of death, or exhibits circumstances
leading to the death. In this respect, as indicated above, the Indian Evidence Act, in
view of the peculiar conditions of our society and the diverse nature and character
of our people, has thought it necessary to widen the sphere of section 32 to avoid
injustice.

2. The test of proximity cannot be too literally construed and practically reduced to
a cut-and-dried formula of universal application so as to be confined in a strait-
jacket. Distance of time would depend or vary with the circumstances of each case.
For instance, where death is a logical culmination of a continuous drama long in
process and is, as it were a finale of the story, the statement regarding each step
directly connected with the end of the drama would be admissible because the entire
statement would have to be read as an organic whole and not torn from the context.
Sometimes statements relevant to or furnishing an immediate motive may also be
admissible as being a part of the transaction of death. It is manifest that all these
statements come to light only after the death of the deceased who speaks from death.
For instance, where the death takes place within a very short time of the marriage or
the distance of time is not spread over more than 3-4 months the statement may be
admissible under section 32.

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Dying Declaration as Oral Evidence

3. The second part of clause (1) of section 32 is yet another exception to the rule that
in criminal law the evidence of a person who was not being subjected to or given an
opportunity of being cross-examined by the accused, would be valueless because the
place of cross-examination is taken by the solemnity and sanctity of oath for the
simple reason that a person on the verge of death is not likely to make a false
statement unless there is strong evidence to show that the statement was secured
either by prompting or tutoring.

4. It may be important to note that section 32 does not speak of homicide alone but
includes suicide also, hence all the circumstances which may be relevant to prove a
case of homicide would be equally relevant to prove a case of suicide.

5. Where the main evidence consists of statements and letters written by the
deceased which are directly connected with or related to her death and which reveal
a tell-tale story, the said statement would clearly fall within the four corners

of section 32 and, therefore, admissible. The distance of time alone in such cases
would not make the statement irrelevant.

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Dying Declaration as Oral Evidence

CONCLUSION :-

A dying declaration is indeed an important piece of evidence. So much so that con-


viction can be based solely on the basis of a dying declaration. An analysis of both
English and Indian position makes it very clear that dying declarations continue to
enjoy sacrosanct status in evidence. The question that needs to be answered is: how
relevant dying declarations are in today's context and how much reliance can be
placed on it? The basis for the sacrosanct status of dying declarations continues to
be the good old belief 1 that a man will not meet his maker with a lie on his lips.
This belief presupposes that people are religious and they will not lie on their
deathbed. But, this does not seem to; happen in real life where feelings of hatred,
revenge and many times love take precedence over the urge to speak the truth. This
ironically belies the very principle underlying the admittance of dying declarations,
i.e. a man will not meet his maker with a lie on his lips. The general principle on
which this species evidence is admitted is that they are declarations made in
extremity, when the person is at point of death and when every hope of this world is
gone. At that point of time every motive to falsehood is silenced and the mind is
induced by the most powerful consideration to speak the truth. Such a Solemn
situation is considered by the law as creating an obligation equal to which is imposed
by a positive oath administered in a court of justice. The dying declarations are weak
kind of evidence even though they are based on the principle that a person would not
die with a lie in his mouth.The law related to dying declaration need certain changes
to be incorporated into it, so as to make it more relevant in todays context.

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Dying Declaration as Oral Evidence

BIBLIOGRAPHY

Salil, An Analysis of Indian and English Position of
Ashutosh
Dying
Declaration J 297,Cri.L.J.2005

Sudipto Sarkar & V. R. Manohar, Sarkar on Evidence, 15th edn

Dying Declaration, at http:/www.lawyersclubindia.com/articles

Avatar Singh Principles of the Law of Evidence,16th ed.2007,



M. Monir, Law of Evidence 7th ed

Neha Vijayvarigya, "Admissibility Of Dying Declaration :Whether

Justified2006 (1) Cri.LJ



"Assumptions behind sanctity of dying declarations", (1995)
M.G. Amin,
7 NLSJ,

Deepak Arora, R. S. Dogra&JaswantSingh, Law of Evidence, vol. 1
Madras Law journal, Madras, 1998

Ed, Bryan A. Garner, 7th edn, West Group, St.
Black's Law Dictionary,
Paul, Minn, 1999
-UNIVERSITY INSTITUTE OF LEGAL STUDIES-

PROJECT REPORT OF FORENSIC SCIENCE


Pag
e 30

-THE DEPARTMENTAL PROCEEDINGS- Page 39


-UNIVERSITY INSTITUTE OF LEGAL STUDIES-

BIBLIOGRAPHY
STATUTORY COMPILATIONS

1. THE CONSTITUTION OF INDIA, 1950.

2. C.C.S. (C.C.A.) RULES, 1965.

DICTIONARIES

1. BRYAN A. GARNER, BLACKS LAW DICTIONARY (8th ed. 2001).

2. OXFORD ENGLISH DICTIONARY, (2nd ed. 2009).

3. WEBSTERS NEW INTERNATIONAL DICTIONARY (1926).

WEBSITES

1. www.manupatra.com.

2. www.judis.nic.in.

3. www.SupremeCourtcaselaw.com.

BOOKS

1. Kumar, Narender, Law Relating to Government Servants & Management of Disciplinary


Proceedings, 3rd ed. New Delhi: Allahabad Law Agency (2012).

2. Majumdar, P.K., Service Laws, 3rd ed. New Delhi: Orient Publishing Co. (2007).

-THE DEPARTMENTAL PROCEEDINGS- Page 40