FAREAST INTERNATIONAL UNIVERSITY

Assignment On:
Law of evidence

Course Title : law of evidence

Course code : Law-312
Submitted To :
Sheikh mosfeq kabir
Lecturer
Law & justice
Fareast International University
Submitted By :
Navid Hassan khan
Program: LL.B (Hon’s)
ID : 18208002
Semester: summer-20202
Date of Submission : 19.08.2020
Question 1:-
Define “dying declaration”? If a maker of such declaration survives, what is its evidentiary
value? Or when a dying declaration is found true and genuine, can it be made sole basis of
conviction? Briefly describe with example.

An announcement by a person who is cognizant and realizes that demise is inescapable

concerning what the person accepts to be the reason or conditions of death which will be
brought into proof during an endeavor in specific cases.
A perishing affirmation is considered dependable and reliable proof dependent on the general
conviction that the larger part individuals that realize that they're near kick the bucket don't lie.
Accordingly, it's a special case to the standard of proof, which denies the use of a public
statement made by somebody other than the one that rehashes it while affirming during an
endeavor, because of its innate dishonesty. On the off chance that the one that made the
withering announcement had the smallest any desire for recuperation, paying little mind to
how irrational, the announcement isn't allowable into proof. a person who makes a perishing
announcement must, be that as it may, be skillful at the time the individual in question makes
an official statement , something else, it's forbidden. A perishing statement is regularly
presented by the arraignment, yet is frequently utilized for the benefit of the denounced.
A Dying Declaration is a statement made by a declaring as to the cause of his death or who died
explaining the cause of his death. If the person making the dying statement is likely to live, his
statement is inadmissible as a dying statement, but if examined, it could be relied on
under Section 158 of the Indian Evidence Act, 1872 to corroborate his testimony. It is dealt
under Clause (1) of Section 32 of the Indian Evidence Act 1872.
***Where a witness who is alive is not produced, the previous statement by him in the
previous proceeding cannot be admissible in evidence as happened. A dying declaration is
admissible in evidence if the declaring dies. If the declaring survives it is not admissible in
evidence.
The inquiry emerges when the announcement of passing on is recorded and the declaring
doesn't bite the dust. The announcement is changed over into a perishing explanation just
when the person in question/declaring bites the dust. In the event that the declaring doesn't
kick the bucket, the declaring can be utilized against the blamed as an observer in court. It is
said that the withering proclamation is just recorded on the assumption that the declaring is
going to bite the dust. In any case, on the off chance that the declaring doesn't bite the dust, at
that point the announcement can't be allowable as a withering proclamation.

 The best form of declaration of dying would be the one recorded by the Magistrate.
  However, according to the Supreme Court’s guidelines, anyone can record the dying
statement.
 A dying statement can also be recorded by public servants, or by a doctor as well,
where the victim is hospitalized and is badly burned or injured and wants to make a
statement, the doctor can also record the same statement and take note of that
statement. A person with 100 per cent burns can make a statement, and a doctor’s
certificate is not a precedent for relying on a dying statement.
 It can also be made for a relative or family member and in the eyes of the law, the
same plays an admissible role.
 Courts discourage police officers from recording the dying statement, but if there is
no other person to record it, the courts also consider the dying statements written by
police officers.
 If the statements are not recorded by the magistrate then, in that case, to make
them admissible, it is better to take the signatures of the witnesses present at the
time of recording the dying statement. It is important that he must be in a sound
state of mind when the declarant gives the statement.

A presentation made by an individual who has passed on appropriate just to the announcement
concerning the reason for the demise of that individual or any exchange situation that
prompted the demise of that individual is addressed.
On the off chance that the expired isn't demonstrated to have kicked the bucket because of
wounds got by him in the mishap in which the perished is asserted to have been slaughtered,
his announcement identifying with that episode can't be supposed to be the announcement
concerning the reason for his passing or regarding any of the conditions of the exchange that
brought about his demise. For a situation where the reason for the passing of that individual is
raised doubt about, a withering explanation gets important.

The main reasons for admitting the dying statement are:

 The death of the declarant.

 The victim, who is the only eyewitness of the crime, would tend to defeat the
extremes of justice by excluding his statement, and
 An imminent sense of death, which creates a punishment equal to the obligation of
an oath.
The principle upon which death statements are accepted is that they are statements made
under extreme conditions.

In  the Supreme Court observed that the conviction of an accused is not safe without further
corroboration solely on the evidence provided in the dying statement, as such a statement is
not subjected to oath and cross-examination, and as the person making such a declaration may
be physically as well as mentally confused at that time and may draw upon his imagination
while making the statement.

1. A dying declaration can not constitute the sole basis for conviction as an absolute rule of law
unless this is confirmed.
2. It has to be established on its own facts, taking into consideration the circumstances of the
death declaration.
3. As a general proposition, it can not be stated that a dying statement is a weaker kind of
evidence than other evidence
4. The dying statement shall be based on the same basis as other evidence and shall be judged
on the basis of the circumstances surrounding it and the principles governing the assessment of
the evidence.
5. A dying statement written by a competent judge, that is in the proper manner, in the
questions and answers form, as far as possible, according to the declarant’s maker, is much
more relevant than the dying statement, which may be affected by all the infirmities of the
human memory and character, depending on oral witness
6. In order to test the reliability of a dying statement, the court must consider several
circumstances, such as the dying man’s opportunity for observation, etc. Therefore, in order to
pass the reliability test, a dying statement must be subjected to very close scrutiny, bearing in
mind that the statement was in the absence of the accused, who had no opportunity to test the
veracity of the statement by cross-examination. But once the court has concluded that the
dying statement was the truthful version of the victim’s death circumstances and assailants,
there is no further question of further corroboration. On the other hand, after examining the
death statement in all its aspects and testing its veracity, the Court has concluded itself that it is
not reliable by itself and that it suffers from infirmities, then it can not form the basis without
corroboration of a conviction. The need for corroboration is not the inherent weakness of a
death statement as evidence, but the fact that the court concluded, in a particular case, that a
dying statement was not free of the above-noted infirmities or other infirmities that could be
disclosed in evidence in this case.
Conclusion
After seeing the various opinions of the court, it is clear that certain guidelines must be
followed when recording the declaration of death. The court has the power to reject the dying
declaration on the grounds of the validity of the records by considering it as an unreliable
source of evidence. It is clear from the above-mentioned cases that the dying declaration may
be in form, but it must be carefully and duly proven that the courts make it admissible as the’
Dying Declaration.

Question 2:-
Explain and illustrate admission and confession? Can a confession, whether Judicial
Or extra judicial, whether retracted or not, form the sole basis of conviction of the
Confession accused? Distinguish between fact in issue and relevant fact.
   The expression 'Admission' means "Voluntarily acknowledgment of the existence or truth of a
particular fact". But In the Evidence Act, the term 'Admission' has not been used in this wider
sense.  It deals with admissions by statements only oral or written or contained in an electronic
form. Admission plays a very important role in judicial proceedings. If one party to the suit or
any other proceeding proves that the other party has admitted his case, the work of court
becomes easier. An Admission must be clear, precise and not vague or ambiguous. 
 

Illustrations

(a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it
is genuine, B that it is forged. ‘A’ may prove a statement by B that the deed is genuine, and B
may prove a statement by A that the deed is forged; but A cannot prove a statement by himself
that the deed is genuine nor con B Prove a statement by himself that the deed is Forged.
(b) 'A' the captain of a ship, is tried for casting her away. Evidence is given to show that the ship
was taken out of her proper course. A produces a book kept by him in the ordinary course of his
business showing observations alleged to have been taken by him from day to day, and
indicating that the ship was not taken out of her proper course. A may prove these statement,
because they would be admissible between third parties, if he were dead under Section 32,
Clause (2).

(C) A is accused of a crime committed by him at Calcutta. He produces a letter written by him
and dated at Lahore on that day, and bearing the Lahore post-mark of that day. The statement
in the date of the letter is admissible, because if A were dead it would be admissible under
Section 32, Clause (2).
(d) A is accused of receiving stolen goods knowing them to be stolen. He officers to prove that
he refused to sell them below their value. A may prove these statements though they are
admissions, because they are explanatory of conduct influenced by facts in issue.

(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be
counterfeit. He offers to prove that he asked a skillful person to examine the coins as he
doubted whether it was counterfeit or not, and that person did examine it and told him it was
genuine. A may prove these facts for the reasons stated in the last proceeding illustration .

Confession
Though it an undiscovered fact that the term ‘confession’ is nowhere defined or expressed in
the Indian Evidence Act, but the inference explained under the definition of admission in
Section17  of evidence Act also applies to confession in the same manner. Section 17 expressly
provides that any statement whether oral or in the form documentary which put forward for
the consideration of any conclusion to the fact in issue or to the relevant facts.

Now after understanding the discovery of both the term it is very much clear that when is put
forward for the consideration of any inference to the fact in issue or to the relevant facts in the
civil proceeding then such consideration of statements is known as confession. Thus, the
confession is something which is made by the person who is charged with any criminal offences
and such statements conferred by him shall be suggesting a conclusion as to any fact in issue or
as to relevant facts. The statements may infer any reasoning for concluding or suggesting that
he is guilty of a crime. We may also define the confession in other words that the admission by
the accused in the criminal proceedings is a confession.

Illustration

If three persons Aman, Vinod and Vijay are charged jointly for the same offence and they are
prosecuted for the murder of Harsh. And during the judicial proceedings, Aman gives
confessions that he along with Vinod and Vijay killed Harsh and if the statements of the Aman
are recognized as true statements then the court may use the confession of Aman against all
the accused and can prove the guilt of Vinod and Vijay also. Evidentiary value of different types
of confessions.

Judicial confession
Section 80 of the Indian Evidence Act give the evidentiary value to the judicial confession and
expresses that a confession made in the presence of magistrate or in the court which is
recorded by the magistrate as prescribed by the law then such confession shall be presumed to
be true and genuine confession and the accused can be tried with the offence. Section 164 of
CrPC empowers magistrate to record confession so it is not necessary that which magistrate
recorded the confession unless he is restricted to record the confession. Hence, for raising the
presumption the identity of the accused must be clear and proved in the confession to
persecute him for the guilt of the offence he committed.

Extra-judicial confession

Though extra-judicial confession doesn’t have much evidentiary value as compared to judicial
confession but in the case of a written confession the writing of the accused itself is one of the
best evidence available to the court to charge the accused of the offence. And if the confession
is not available in the form of written statements then the court may test the oral confession of
the accused which was made to any other person. On the court’s discretion and satisfaction,
the statements of the accused to any other person may be admissible and thereafter the
accused may be prosecuted for the offence on which he is charged.

Retracted confession

Retracted confession has circumstantial evidentiary that the cognizance of any offence the
police investigate the case on the basis of their investigation they examine the witnesses, fact in
issues, accused and many more things. If in the opinion of investigation, police found that the
accused is guilty of a particular offence then they submit a report to the concerned magistrate
or the court. During the court proceeding, the magistrate has to take pieces of evidence and
examines the accused and if on the behalf of investigation report the courts find someone
guilty of any particular offence then the court shall direct the accused to confess the statements
again. When the trial begins the magistrate has to ask the accused that if he is guilty of an
offence or not and if the accused don’t plead guilty then he may retract all the confession made
to the police during the police investigation and must substantiate his retracted confession. So
the value of retracted evidence has circumstantial evidentiary value, therefore, the court has to
make any inference very cautiously.

Confession by accused

The Supreme Court in held that the confessions made by the accused do not have much
evidentiary value and they cannot be considered as a substantive piece of evidence. Therefore
the confession made by the co-accused can only be used to corroborate the conclusion drawn
out by other probative evidence.
Fact an issue
1.Necessary ingredients of a right or liability.

2.Factum probandum.

3.Matters which are in disputes.

Relevant fact
1.Probability of existence as non-existence of any such ingredients.

2.Factum probans.

3.Not in issue.