DYING DECLARATION

32.Cases in which statement of relevant fact by person who is dead or cannot be found,
etc, is relevant. —Statements, written or verbal, of relevant facts made by a person who is
dead, or who cannot be found, or who has become incapable of giving evidence, or whose
attendance cannot be procured without an amount of delay or expense which, under the
circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in
the following cases:—

1 When it relates to cause of death. —When the statement is made by a person as to the
cause of his death, or as to any of the circumstances of the transaction which resulted in his
death, in cases in which the cause of that person's death comes into question. Such statements
are relevant whether the person who made them was or was not, at the time when they were
made, under expectation of death, and whatever may be the nature of the proceeding in which
the cause of his death comes into question.

 An exception to the rule of hearsay.

 Reason for admissibility of such evidence-
i. It is the best evidence available, for the simple fact that the person who knows
about the incident is now dead.
ii. There is certain level of sanctity attached to the words spoken by a dying man. A
dying man is face to face with his maker without any motive for telling a lie.
1. R v. Jenkins [1869]
 Fanny Reeves, the victim, was rescued from the river in an exhausted condition.
Victim had gone on a walk with the accused in the evening of the same day when the
incident had occurred. She was pushed into the river by the accused.
 Examined by the judicial clerk. The magistrate asked her if she has any hope of
survival to which she responded that she doesn’t have “any hope of recovery at
present”. And when the clerk repeated the statement and asked her to correct any
mistake if present, he didn’t mention the words “at present” which she specifically
pointed out and asked to be added. The victim died soon after. Also there was no
other incriminating evidence present against the accused and the victim’s dying
declaration was the only evidence as to what had happened.
 Now the question that the court needed to answer was whether her statement to the
judicial clerk was admissible evidence as dying declaration.
 The court held that the evidence wasn’t admissible as dying declaration. The reason
given was that at the time of making the statement the victim hadn’t lost all hope and
was expecting recovery. This is indicated by the victim giving importance to the
words ‘present’ in her statement which she specifically pointed out when missed by
the clerk.
 The court mentions had the victim not added these words the decision would have
been quite simple. The fact that she asked those words to be inserted showed that they
held some substantial value to her and it indicates that she did not have an absolute
fear of death while making the statement.
 The court said that the case can be interpreted in either way, one in favour of the
accused and the other against him. The one against him is that the victim asked for
those words to be added because when the clerk questioned her he mentioned them
and she just pointed out a mistake. The other one being that she attached certain value
to them and that’s why she asked them to be added. The court said that in a chance
where either of them could be adopted the one in favour of the accused should be
adopted.
2. Queen Empress v. Abdullah [1885]
 Victim- Dulari; Accused- Abdullah
 The victim’s throat was cut by a razor and she was taken to the police station and then
to the dispensary in that condition. In the dispensary she was questioned by her
mother in presence of the kotwal, and again later by the deputy magistrate and the
surgeon.
 She was unable to speak because of the cut on her throat, but was able to respond to
the questions asked to her by way of nodding, but the magistrate asked her not to nod
and instead respond by waving her hand in a particular way to indicate either yes or
no to the questions put forward to her. She died the next morning.
 Therefore, the dying declaration of the deceased is not oral in form, but rather in form
of responses to the questions asked to her by way of gesticulations. The question,
hence, to be answered by the court was whether a statement which is not in oral form
will be a valid form of dying declaration under section 32(1).
 An interesting argument put forth by the prosecution counsel was that the statement
was a part of the ‘conduct’ of the victim subsequent to the incident and hence is valid
evidence under section 8 as well.
 The chief justice did not find the section 8 argument a valid one and hence did not
accept it. He rejected it on the basis that the questions that were put forth to the victim
created an intervention between the fact in issue and the subsequent conduct,
therefore the conduct was actually not in continuance to the incident that actually
occurred but to the questions asked.
 He further said that if the statement is to be admitted at all then it should be under
section 32 otherwise it shouldn’t be.
 He further goes on to interpret the word ‘verbal’ mentioned in the section and says
that it is different from ‘oral’, had the requirement of the section was oral statement
then only words spoken would have been admissible. But the words verbal have a
much wider ambit and involve the signs that are made by a person.
 The intervention argument used against the conduct argument under section 8 could
also be employed here to say that the questions asked were leading in nature and the
victim never actually said anything but just responded to the questions put forward to
her in affirmative. But then again, the other possibility is that the victim actually
wanted to convey what the clerk asked her in form of a leading question. Therefore
the judge chooses to go by the latter option and considered the evidence to be
admissible as dying declaration.
 Opinion of Mahmood, J, dissenting opinion,(not relevant for examination purpose)
o He says that the statutes should be interpreted as they are understood in the most
popular and ordinary sense. Therefore he doesn’t accept the interpretation of ‘verbal’
to involve anything but words spoken.
o He accepts the statement to be admissible evidence but he gives a different reasoning.
He subscribed to the reasoning put forth by the prosecution on the basis of the actions
of the victim being the conduct subsequent to the incident as per section 8 of the
Indian Evidence Act.
3. Chandrasekhara alias Alisandri v. R
 Victim/Deceased- Salami Nadachi; Accused- Chandrasekhara alias Alisandri
 Facts- the victim was a widow and the accused used to work in the adjoining
bungalow but was recently employed elsewhere. On the day of the question he was
 seen cycling away from the locality in ‘excited and suspicious manner’. The victim
made it to the neighbouring bungalow in a wounded condition. Her statement was
recorded but it was not in form of words, rather it was in form of answers to questions
asked to her, the answers being by way of gestures.
 Court said that the gestures made by the victim were important but not their
interpretations by other witnesses. The court will itself interpret the gestures.
 Again the main question was the admissibility of such statement as dying declaration.
 The court applied the reasoning used in the case of Queen Empress v. Abdullah, i.e.
verbal has a wider connotation and involves gestures made by the victim.
 The court also drew an analogy with how a dumb person who is incapable of speaking
will give his statement. And just like his statement is admissible, the statement made
by the victim in this case is also admissible.
 The court also attached certain importance to the fact that even though the other
circumstantial evidence might not be enough to convict the accused, but the
consistency of all the evidence put together attaches more corroborative value to it.
4. Pakala Narayana Swami v. Emperor
 Body of the deceased found in a steel trunk in a train compartment. His body was cut
into 7 portions.
 Accused’s wife had borrowed some money from the deceased in the past and had
written a letter to the deceased asking him to collect the amount due to him. The
deceased informed his wife that he was leaving to collect the money from the house
of the accused.
 Other circumstantial evidence present as well. 2 other witnesses confirmed that a
trunk similar to the one in which the body of the deceased was found was ordered by
and delivered to the accused. Further a jetka driver also confirmed that he drove a
similar trunk to the station and unloaded it there.
 The question to be answered was whether the statement made by the deceased to his
wife before leaving his house that he was going to the house of the accused to collect
the money due to him be considered as a dying declaration.
 The court considered an argument against the statement being a dying declaration.
The argument was that such a statement should be made by a person who is near
death and the circumstances can only include the acts done when and where the death
was caused and only after the incident causing the death had taken place. The court
 does not agree with the argument and is of the opinion that the natural meaning of the
words of the section does not seem to apply any such limitation. The statement can be
made before the cause of death has arisen or before the victim has any anticipation of
being killed.
 The circumstances must be circumstances of the same transaction. Statements made
by the deceased as to where he was heading and for what reason become relevant if
the deceased was in fact was killed at the same spot.
 The court also differentiates between circumstance of the same transaction, res gestae
and circumstantial evidence, and says the circumstance of the same transaction is
broader than circumstantial evidence but narrower than res gestae, though no reason
has been given for such a distinction.
 Therefore the statement that the deceased was going to the house of the accused on
the day of the murder is a circumstance of the same transaction and is admissible as
dying declaration.