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Dying Declaration is of the utmost importance and the evidence as to it should be exact and full
as possible. The general rule is, 'hearsay evidence is no evidence and is not admissible in
evidence.' Section 32 and 33 of the Evidence Act and Article 46 0f QSO are among the
Exceptions, as such dying Declaration is an exception to this general rule.
Statement made by a person who cannot be called as Witness:
Article 46 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 cannot be found, or who has become incapable of giving evidence, or whose attendance
cannot be produced 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.
Such statements are relevant whether the person who made them was or was not, at the
time when they made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question.
Following are the classes of person who cannot be called as witness under
section 32, Article 46 and their statements allowed to be proved in their
absence.
Illustration
Sam has been attacked by Anna. If Sam, shortly before death makes a declaration holding Anna,
responsible for his injuries, it is called "Dying Declaration'.
Section 32(1) of The Indian Evidence Act and Article 46 of QSO says
dying declaration' as " a statement verbal or written made by a person who is dead or cannot be
found, who has become incapable of giving evidence or whose attendance cannot be procured
without an amount of delay or expense, which under the circumstance of the case, appears to the
court unreasonable, are themselves relevant facts in the following cases.
3) The statement relate to the cause of his death or the circumstances of the transaction which
related in his death and not the cause of the death of someone else.
5) The person making statement must be in a fit condition to make the statement.
1) As the Victim is sole Eye Witness, Exclusion of his evidence defeats the ends of justice.
Merits of Dying Declaration:
When a person is called as witness in the Court he has to make a statement on oath.
This is to have his inner conscience say truth and truth only. Law presume and expect person to
state the truth. This is the theoretical aspect as it may be correct theoretically but not practically.
The need of cross-examination is to judge the credibility of the witness. It is the right of Defense
Council. Questions are put to the witnesses to extract the truth in case of Dying Declaration other
party or defense council have no opportunity of cross-examination of the witness who is dead.
3) Witness is not present before the Court:
Behavior, manner of answering the question of witness before the Court is a vital aspect in law
because it gives opportunity to the judges to judge the character, personality of the witness this
element is absent in dying declaration and hence it is not accepted as a rule
The evidentiary value of dying declaration will vary according to the circumstances of a
particular case in which it is made
Dying Declaration is evidence but it is a weak piece of evidence.
It is to be corroborated by other evidence for example other facts and evidence supporting Dying
Declaration.
It gives guidance to the Court, to accept the Dying Declaration as a suspicious statement, it is
duty of the judge to consider the valuation of Dying Declaration.
5) Whether the statement is recorded in the same language and in a same word of the declarant.
Even though Dying Declaration is said to be of weak piece of evidence it is relevant in the
Indian Evidence Act, because it is the best available evidence as to the cause of his death
after his death.