THE LAW OF EVIDENCE

PART I RELEVANCY OF FACTS

CHAPTER II OF THE RELEVANCY OF FACTS

STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES

[s 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 [s 32.10] 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.

(2) or is made in course of business—

When the statement was made by such person in the ordinary course of
business, and in particular when it consists of any entry or memorandum made
by him in books kept in the ordinary course of business, or in the discharge of
professional duty; or of an acknowledgement written or signed by him of the
receipt of money, goods, securities or property of any kind; or of a document
used in commerce written or signed by him; or of the date of a letter or other
document usually dated, written or signed by him.

(3) or against interest of maker.—

When the statement is against the pecuniary or proprietary interest of the

person making it, or when, if true, it would expose him or would have exposed
him to a criminal prosecution or to a suit for damages.

(4) or gives opinion as to a public right or custom, or matters of general interest.—

When the statement gives the opinion of any such person, as to the existence
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 before any controversy as to such right,
custom or matter has arisen.
(5) or relates to existence of relationship.—

When the statement relates to the existence of any relationship by blood,

marriage or adoption between persons as to whose relationship 587[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.

(6) or is made in will or deed relating to family affairs.—

When the statement relates to the existence of any relationship 588[by blood,
marriage or adoption] between persons deceased, and is made in any will or
deed relating to the affairs of the family to which any such deceased person
belonged, or in any family pedigree, or upon any tombstone, family portrait or
other thing on which such statements are usually made, and when such
statement was made before the question in dispute was raised.

(7) or in document relating to transaction mentioned in section 13, clause (a).—

When the statement is contained in any deed, will or other document which
relates to any such transaction as is mentioned in section 13, clause (a).

(8) or is made by several persons and expresses feelings relevant to matter in

question.—

When the statement was made by a number of persons, and expressed

feelings or impressions on their part relevant to the matter in question.

ILLUSTRATIONS

(a) The question is, whether A was murdered by B; or

A dies of injuries received in a transaction in the course of which she was

ravished. The question, is whether she was ravished by B; or

The question is, whether A was killed by B under such circumstances that
a suit would lie against B by A's widow.

Statements made by A as to the cause of his or her death, referring

respectively to the murder, the rape and the actionable wrong under
consideration are relevant facts.

(b) The question is as to the date of A's birth.

An entry in the diary of a deceased surgeon regularly kept in the course

of business, stating that on a given day he attended A's mother and
delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Calcutta on a given day.

A statement in the diary of a deceased solicitor, regularly kept in the

course of business, that on a given day the solicitor attended A at a place
mentioned, in Calcutta, for the purpose of conferring with him upon
specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Bombay harbour on a given
day.
 A letter written by a deceased member of a merchant's firm, by which she
was chartered to their correspondents in London, to whom the cargo was
consigned, stating that the ship sailed on a given day from Bombay
harbour, is a relevant fact.

(e) The question is, whether rent was paid to A for certain land.

A letter from A's deceased agent to A saying that he had received the rent
on A's account and held it at A's orders, is a relevant fact.

(f) The question is, whether A and B were legally married.

The statement of a deceased clergyman that he married them under such

circumstances that the celebration would be a crime, is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter
on a certain day. The fact that a letter written by him is dated on that day
is relevant.

(h) The question is, what was the cause of the wreck of a ship.

A protest made by the captain, whose attendance cannot be procured, is

a relevant fact.

(i) The question is, whether a given road is a public way.

A statement by A, a deceased headman of the village, that the road was

public, is a relevant fact.

(j) The question is, what was the price of grain on a certain day in a
particular market.

A statement of the price, made by a deceased banya in the ordinary

course of his business, is a relevant fact.

(k) The question is, whether A, who is dead, was the father of B. A statement
by A that B was his son, is a relevant fact.

(l) The question is, what was the date of the birth of A.

A letter from A's deceased 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 memorandum book by C, the deceased father of B, of his

daughter's marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a shop

window. The question is as to the similarity of the caricature and its
libellous character. The remarks of a crowd of spectators on these points
may be proved.

COMMENT

This and the following section are exceptions to the general rule that hearsay evidence
is not admissible. Hearsay evidence is excluded on the ground that it is always
desirable in the interest of justice to get the person, whose statement is relied upon,
into court for his examination in the regular way in order that many possible sources of
inaccuracy and untrustworthiness can be best brought to light and exposed, if they
exist, by the test of cross-examination. Section 60 lays down that oral evidence must
be direct.

The exceptions to the hearsay evidence have been directed by necessity. This rule
excluding the hearsay evidence is relaxed so far as the statements contained in
sections 32 and 33 are concerned. The general ground of admissibility of the evidence
referred to in these sections is that no better evidence could be produced. The phrase
"hearsay evidence" is not used in the Act; because it is inaccurate and vague. Before
such evidence is let in, the court must arrive at a finding on evidence formally and
regularly taken and recorded that one or other of the grounds specified in the section
exists. The admission of such deposition in evidence without such finding is illegal.589

[s 32.1] Principle.—

Under this section written or verbal statements of relevant facts made by a person—

(a) who is dead;

(b) who cannot be found;

(c) who has become incapable of giving evidence; or

(d) whose attendance cannot be procured without unreasonable delay or expense;

are relevant under the following circumstances:—

(1) When it relates to the cause of his death.

(2) When it is made in the course of business, such as, entry in books, or
acknowledgment or the receipt of any property, or date of a document.

(3) When it is against the pecuniary or proprietary interest of the person making it or
when it would have exposed him to a criminal prosecution or to a suit for damages.

(4) When it gives opinion as to a public right or custom or matters of general interest
and it was made before any controversy as to such right or custom has arisen.

(5) When it relates to the existence of any relationship between persons as to whose
relationship the maker had special means of knowledge and was made before the
question in dispute arose.

(6) When it relates to the existence of any relationship between persons deceased and
is made in any will or deed or family pedigree, or upon any tomb-stone on family
portrait, and was made before the question in dispute arose.

(7) When it is contained in any deed, will, or other document.

(8) When it is made by a number of persons and expresses feelings relevant to the
matter in question.

Section 30 does not limit the operation of this section, but section 118 does.

The words "dying declaration" mean a statement written or verbal of relevant facts
made by a person who is dead.590 A dying declaration is not complete unless the full
names and addresses of the persons involved are given in it. Therefore, only because
the deceased in his dying declaration uttered first names similar to that of the accused,
it was not proper to accept the prosecution version based on such incomplete dying
declaration.591 Evidence of dying declaration is admissible not only against the person
actually causing death but also against other persons participating in causing
death.592

Dying declaration is an exception to the general rule against hearsay. The grounds of
admission are firstly, the victim is generally the only principal eye-witness to the crime;
secondly, sense of impending death creates a sanction which is equal to obligation of
an oath. A man would not like to meet his maker with a lie in his mouth. The
requirements of oath and cross-examination are dispensed with.593 Though a dying
declaration is not recorded in the court and nor is it put to strict proof of cross-
examination by the accused, still it is admissible in evidence against the general rule
that hearsay evidence is not admissible in evidence.594

[s 32.2] Relevancy of a dying declaration.—

A statement by a person made before his death to be relevant, the following ingredients
are to be satisfied:

(i) The statement is made by a person who is conscious and believes or

apprehends that death is imminent.

(ii) The statement must pertain to what the person believes to be the cause or
circumstances of his/her death.

(iii) What is recorded must be a statement made by the person concerned, since it
is an exception to the rule of hearsay evidence.

(iv) The statement must be confidence bearing, truthful and credible.595

In Mallella Shyamsunder v State of AP,596 the Supreme Court added two more
ingredients as under:

(v) the statement should not be one made on tutoring or prompting.

(vi) The court may also scan the statement to see whether the same is prompted by
any motive of vengeance.597

[s 32.3] Form or procedure for recording dying declaration.—

There is no particular form or procedure prescribed for recording a dying declaration

nor is it required to be recorded only by a Magistrate. As a general rule, it is advisable to
get the evidence of the declarant certified from a doctor. In appropriate cases, the
satisfaction of the person recording the statement regarding the state of mind of the
deceased would also be sufficient to hold that the deceased was in a position to make
a statement. It is settled law that if the prosecution solely depends on the dying
declaration, the normal rule is that the courts must exercise due care and caution to
ensure genuineness of the dying declaration, keeping in mind that the accused had no
opportunity to test the veracity of the statement of the deceased by cross-examination.
The law does not insist upon the corroboration of dying declaration before it can be
accepted. The insistence of corroboration to a dying declaration is only a rule of
prudence. When the court is satisfied that the dying declaration is voluntary, not tainted
by tutoring or animosity, and is not a product of the imagination of the declarant, in that
event, there is no impediment in convicting the accused on the basis of such dying
declaration.598
[s 32.4] Dying declaration recorded by Magistrate.—

The dying declaration was recorded by Special Executive Magistrate who deposed that
he had satisfied himself that the deceased was in a perfectly fit condition to make
statement which was supported by the Police Officer. The statement was not vitiated
by interpolations or apparent inconsistencies and was consistent with two earlier dying
declarations. It was held that the dying declaration could be relied on and accepted
even in absence of the certificate from the doctor that the deceased was in a fit
condition to make statements.599 Where the dying declaration was recorded by the
Special Magistrate who was not entrusted with the duty of recording it, it was held that
it could not be discarded as all precautions were taken before recording it and it
inspired confidence.600 Where the dying declaration was recorded by the Magistrate
which was neither signed by the deceased, nor contained date and time of its recording
and the prosecution failed to give any explanation that the deceased was not in a
position to sign it, it was held that such dying declaration which was impregnant with
so many suspicious circumstances which created doubt about its genuineness and it
was not safe to base conviction on it.601

There is no requirement of law that a dying declaration must necessarily be made to a

Magistrate.602 What evidentiary value or weight has to be attached to such statement,
must necessarily depend on the facts and circumstances of each particular case. In a
proper case, it may be permissible to convict a person only on the basis of a dying
declaration in the light of the facts and circumstances of the case.

In this case the dying declaration was properly proved; no question was put during
cross-examination regarding the condition of the victim at the relevant time; medical
evidence was not adverse and statement was corroborated. Hence conviction based
on such dying declaration could not be said to be improper.603

[s 32.5] Form of dying declaration.— Question-answer form.—

The mere fact that a dying declaration is not in a question-answer form does not
destroy its value.604 Merely because the dying declaration is not in a question-answer
form, the sanctity attached to it, as it comes from the mouth of a dying person, cannot
be brushed aside and its reliability cannot be doubted.605 A dying declaration cannot
be discarded only on the ground that it was not recorded in question-answer form. A
statement recorded in a narrative form may be more natural and may give a true
version of the incident as perceived by the injured person.606

A dying declaration was recorded by the magistrate in narrative form in his own
language and not in question-answer form. This was held to be not a ground for
discarding it. The maker of the statement was in fit condition. The magistrate had no
reason to record a false statement. Failure to mention time was not material. Presence
of relatives at the time of recording did not have the effect of tutoring. The deceased
also had no enmity with the accused so as falsely implicate him. The dying declaration
was accepted as good piece of evidence.607

The witness who recorded the dying declaration categorically stated that the deceased
gave replies to questions. But the declaration produced was not in question—answer
from. The court said that such fact was not material.608

A dying declaration should be short concise and to the point. It is not desirable to have
a dying declaration in a cyclostyled form.609
[s 32.6] Oral dying declaration.—

An oral dying declaration means a statement which was not recorded and is
reproduced by the witnesses out of memory. The Supreme Court has laid down that the
exact words of such statement must be reproduced. Any variance in statements of the
witnesses with regard to the exact words would materially affect the value of the oral
dying declaration. Even though an oral dying declaration can form basis of conviction in
a given case, but such a dying declaration has to be trustworthy and free from every
blemish and inspire confidence. The reproduction of the exact words of the oral
declaration in such cases is very important. The difference in the exact words of the
declaration in the present case detracted materially from the value of the oral dying
declaration.610

It is well settled that an oral dying declaration can form the basis of conviction, if the
deponent is in a fit condition to make the declaration and if it is found to be truthful.
The courts as a matter of prudence look for corroboration to an oral dying declaration.
In the instant case the dying declaration did not inspire the confidence of the court.611

[s 32.7] Fitness of declarant.—

The court should be satisfied that the deceased was in a fit state of mind and capable
of making a statement at the time when it was recorded.612 Where the parents of the
deceased woman stated that she was not mentally sound, it was held that this fact
should not have been ignored by the court.613

Certificate from the doctor and endorsement from him that the victim was not only
conscious but also in a fit condition to make statements is a must. In the absence of
such a certificate the declaration may be rendered heavily suspect.614 The Supreme
Court has also laid down that the absence of the medical certificate of fitness does not
render a dying declaration to be unacceptable. What is essentially required is that the
person who records it must be satisfied that the injured person was in a fit state of
mind. The medical certificate is a rule of caution. Truthful dying declaration can be
assured even otherwise.615

[s 32.7.1] Dying declaration and medical certificate of fitness.—

Overruling some earlier cases to the contrary effect a Constitution Bench of the
Supreme Court in Laxman v State of Maharashtra,616 speaking through PATTANAIK J
adopted the view that the absence of the certificate of the doctor as to fitness of mind
of the injured person would not render his dying declaration to be unacceptable. The
court said that what is essentially required is that the person who records the
statement must be satisfied that the injured person was in a fit state of mind.
Certification by the doctor is only a rule of caution. But voluntary and truthful nature of
the statement can be established otherwise.

[s 32.8] More than one dying declarations.—

When there are more than one dying declarations of the same person, they have to be
read as one and the same statement for proper appreciation of the value and, if they
differ from each other on material aspects. effort should be made to see if they could
be reconciled. If no assumption could explain the difference, the statements might
become unworthy of credit but if one is possible, the position may be different. If there
was a reasonable explanation for the difference, the statement may be taken at par
with an omission covered by explanation to section 161, CrPC and be considered as a
matter of fact in each case on its own strength.617 The Supreme Court has suggested
that the first statement in point of time made by the injured person must be preferred to
any of his subsequent statements.618 A mere omission on the part of the prosecutrix
to state the entire factual details of the incident in her very first statement does not
make her subsequent statements unworthy, especially when her statements are duly
corroborated by other prosecution witnesses including the medical evidence.619 The
Supreme Court has also observed that the fact there are more than one and apparently
consistent dying declarations is not in itself sufficient to persuade the court to act
thereon.620 Consistency is a very relevant factor. Where contradictory and inconsistent
stand is taken by the deceased, the Supreme Court said that corroboration from other
sources would become necessary. If it is then found to be true and voluntary,
conviction can be based on it.621

[s 32.9] Whether a conviction can be based on the sole basis of a dying

declaration.—

The law on the issue of dying declaration can be summarised to the effect that in case
the court comes to the conclusion that if the dying declaration is true and reliable, has
been recorded by a person at a time when the deceased was physically and mentally fit
to make the declaration and it has not been made under any
tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an
eventuality no corroboration is required. In case there are multiple dying declarations
and there are inconsistencies between them, generally, the dying declaration recorded
by the higher officer like a Magistrate can be relied upon, provided that there is no
circumstance giving rise to any suspicion about its truthfulness. In case there are
circumstances wherein the declaration had been made, not voluntarily and even
otherwise, it is not supported by the other evidence, the court has to scrutinise the
facts of an individual case very carefully and take a decision as to which of the
declarations is worth reliance.622 In the absence of any kind of infirmity or inherent
contradiction or inconsistency or any facet that would create a serious doubt on the
dying declaration, it cannot be discarded. Conviction indisputably can be based on
dying declaration, if it is found totally reliable.623

[s 32.9.1] Admissibility/relevancy of a dying declaration as to cause of death of

other person.—

The dying declaration is admissible about the cause of death or the circumstances of
the transaction which resulted in the death of the person making it. However, when two
deaths have taken place in the same transaction and circumstances of the transaction
resulting in one death are closely inter-connected with the other death, the situation is
different; such a statement may not by itself be admissible to determine the cause of
death of anyone other than the person making the statement. However, when the
circumstances of the transaction which resulted in the death of the person making the
statement as well as death of any other person are part of the same transaction, the
same will be relevant also about the cause of death of such other person. Thus, a dying
declaration relating to circumstances of the transaction which resulted in the death of
a person making the declaration are integral part of the circumstances resulting in
death of any other person, such a dying declaration has relevance for the death of such
other person also.624
[s 32.10] "Statements, written or verbal, of relevant facts".—

"Verbal" means by words. It is not necessary that the words should be spoken. The
words of another person may be adopted by a witness by a nod or shake of the
head.625 If the significance of the signs made by a deceased person in response to
questions put to her shortly before her death is established satisfactorily to the mind of
the court, then such questions, taken with her assent or dissent to them, clearly proved,
constitute a verbal statement as to the cause of her death.626 In a trial upon a charge
of murder, it appeared that the deceased shortly before her death was questioned by
various persons as to the circumstances in which the injuries had been inflicted on her;
that she was at that time unable to speak, but was conscious and able to make signs.
Evidence was offered by the prosecution, and admitted by the Sessions Judge, to prove
the questions put to the deceased, and the signs made by her in answer to such
questions. It was held that the questions and the signs taken together might properly
be regarded as "verbal statements" made by the person as to the cause of her death
within the meaning of this section, and were, therefore, admissible in evidence under
this section.627 Statement of the deceased to a police officer on the basis of which
investigation was commenced was described by the Supreme Court as capable of
serving as a dying declaration.628

The questions put to the injured person who is unable to speak and the signs made by
him in reply taken together amount to "verbal statements" within the meaning of this
section.629

Where the deceased stated in her dying declarations that the accused molested her
and she immolated herself after such incident, it was held that the dying declaration
was a relevant fact and was admissible in evidence and to hold it otherwise would be
negation of justice and clear misrepresentation of the provisions of section 32(1).630

[s 32.11] Cause of death [Clause 1].—

The word "death" appearing in section 32 is inclusive of suicidal or homicidal death.631

Statement by a person as to the cause of his death becomes relevant when the cause
of his death comes into question even if the person was not under expectation of death
at the time of making the statement.632 The statement must be as to the cause of the
declarant's death, or as to any of the circumstances of the transaction which resulted in
his death, that is the cause and circumstances of the death;633 but such details which
fall outside the ambit of this are not strictly within the permissible limits laid down by
this sub-section.634 The statement is admissible although it is made before the cause
of death has arisen, or before the deceased has any reason to anticipate being killed.
The circumstances must be circumstances of the transaction: general expressions
indicating fear or suspicion whether of a particular individual or otherwise and not
directly related to the occasion of the death are not admissible.635 An information
lodged by a person who died subsequently, relating to the cause of his death, is
admissible in evidence under this clause.636 It is not necessary that there should be a
direct nexus between the "Circumstances" and death. Where the victim uttered before
her death that the accused was standing before her with a gun, this was held to be a
part of the circumstances which resulted in her death and, therefore, admissible under
sub-section (1).637 The statement may be oral or written. It is relevant whatever may be
the nature of the proceeding in which the cause of the death of the person who made
the statement comes into question. A complaint in writing made by a person who dies
sometime thereafter, expressing apprehension of death at the hands of a person is
admissible in evidence under this clause, when the person whose conduct is the source
of the apprehension is charged with the offence of murder of the person making the
complaint. The deceased had submitted a written complaint against her husband, to
the Commissioner of Police, which stated that she was afraid she would be killed by
her husband. It was held that the statement showing apprehension of death on account
of the conduct of the husband was admissible under this clause.638 A woman was
injured by her husband. Her statements were recorded while she was in hospital. She
died two months after the incident and 21 days after her discharge from the hospital,
from what cause, not known. Her statements in the hospital were not admitted as
dying declaration.639

A statement made by a person since deceased, as to the cause of the death of another,
is inadmissible in evidence. The statement of one dead person is not a relevant fact
with respect to the question about the death of another person.640

The section is not confined to any particular kind of death, e.g. homicide. It includes
suicidal death also. The circumstances which may be relevant to prove a case of
suicide would be equally relevant under the section.641

[s 32.12] "Circumstances of the transaction".—

This phrase conveys some limitations. It is not as broad as the analogous use in
"circumstantial evidence" which includes evidence of all relevant facts. It is narrower
than res gestae. Circumstances must have some proximate relation to the actual
occurrence and must be of the transaction which resulted in the death of the declarant.
The condition of the admissibility of the evidence is that the cause of the declarant's
death comes into question. It is not necessary that the statement must be made after
the transaction has taken place or that the person making it must be near death or that
the "circumstances" can only include the acts done when and where the death was
caused.642

The Supreme Court has emphasised the need for effort by courts, as far as possible, to
include a statement within the scope of the section 32(1). Hence, statements as to any
of the circumstances of the transaction which resulted in the death should be
included.643

The Supreme Court644 examined the scope of the words "statement as to any of the
circumstances of the transaction which resulted in his death" and said that these
words expand the scope of admissibility on the facts of the case.

In order to test the reliability of a dying declaration, the court has to keep in view, the
circumstances like the opportunity of the dying man for observation, (e.g.), whether
there was sufficient light if the crime was committed at night; whether the capacity of
the man to remember the facts stated had not been impaired at the time of making the
statement; that the statement has been consistent throughout if he had several
opportunities of making a dying declaration apart from the official record of it; and that
the statement had been made at the earliest opportunity and was not the result of
tutoring by interested parties.645

A brief statement ("save me, a person has stabbed me") made to relatives half an hour
before death was followed by a detailed version in the presence of the medical officer,
the Supreme Court attached value to the statement.646

This court, a decade later in Munnu Raja v State of Madhya Pradesh,647 stated the law
to the effect that though the dying declaration must be approached with caution for the
reason that the maker of the statement cannot be subjected to cross examination,
there is neither a rule of law nor a rule of prudence which has hardened into a rule of
law that a dying declaration cannot be acted upon unless it is corroborated. This court
went up to observe that the court must not look out for corroboration unless it comes
to the conclusion that a dying declaration suffered from any infirmity.

[s 32.13] Proximity between time of statement and that of Death.—

The problem of proximity was for the first time raised before the Supreme Court in
Sharad v State of Maharashtra.648 The court held that the statements were not so
remote in time as to lose their proximity with the cause of death. Fazal Ali J conducted
a vast survey of authorities and picked up the following propositions: 1. A declaration
will be relevant whether death is homicide or suicide, provided it relates to the cause of
death or exhibits circumstances leading to death. 2. The test of proximity cannot be
literally pursued and practically reduced to a cut and dried formula of universal
application. Distance of time would depend on or vary with the circumstances of each
case. For example, where death is a logical consequence of a continuous drama long in
process and in a way a finale to 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.
Where death takes place within short time of the marriage or the distance of time is not
spread over more than three to four months, the statement may be admissible under
section 32.649 Where the finding of the court was that dying declaration were
acceptable, it was held that the declarations would not lose their value on the ground
that the maker died long after making the statements. This question has to be
considered on the facts of each case.650

The Supreme Court stated in a case: "The prosecution had not examined the doctor
who made the endorsement on the dying declaration that "the patient was in a fit state
of mind to depose". No other witness was examined to prove the certificate of the
doctor either. The non-production of the doctor to prove his certificate and subject
himself to be cross-examined by the appellants, when considered in the light of the
testimony of the mother of the deceased, who specifically stated that the condition of
the patient was "not good and that she was not in a fit condition", created a doubt as to
whether the patient was actually in a proper mental condition to make a consciously
truthful statement. This infirmity rendered it unsafe to rely on the dying declaration."651

When a dying declaration is recorded voluntarily, pursuant to a fitness report of a

certified doctor, nothing much remains to be questioned unless, it is proved that the
dying declaration was tainted with animosity and a result of tutoring.652

The, Supreme Court653 summed up the legal principles governing a dying declaration
as follows:

(i) Dying declaration can be the sole basis of conviction if it inspires the full
confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the
time of making the statement and that it was not the result of tutoring,
prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can
base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration
 cannot form the sole basis of conviction unless it is corroborated. The rule
requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without
corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was
unconscious and could never make any statement cannot form the basis of
conviction.

(vii) Merely because a dying declaration does not contain all the details as to the
occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious
state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any
effort to induce the deceased to make a false statement and if it is coherent and
consistent, there shall be no legal impediment to make it the basis of conviction,
even if there is no corroboration.

[s 32.14] Where the declarant survives.—

The statement of a person as to the cause of his injuries becomes a dying declaration
relevant under section 32 if he subsequently dies. Should he survive his injuries, his
statement cannot be proved under section 32. It may become relevant under section
21(1) or under section 157.654 Such statement is not a declaration under section 32. It
becomes a statement under section 164, CrPC. It can be used under section 157 for
the purpose of corroboration and under section 155 for the purpose of
contradiction.655 Such statement has to be taken as of a superior quality and of a
higher value than that recorded under section 161, CrPC. It can also be used under
section 157 as the former statement of witnesses for corroboration purposes.656

[s 32.15] Statements in course of business [Clause 2].—

This clause contemplates a statement by a person whose duty it was to make such a
statement or whose business was such that statements of the kind were to be
expected in the ordinary course of things.657 "The considerations which have induced
the courts to recognize this exception appear to be principally that, in the absence of all
suspicion of sinister motives, a fair presumption arises that entries made in the
ordinary routine of business are correct, since the process of invention implying
trouble, it is easier to state what is true than what is false; that such entries usually
form a link in a chain of circumstances, which mutually corroborate each other: that
false entries would be likely to bring clerks into disgrace with their employers: that, as
most entries made in the course of business are subject to the inspection of several
persons, an error would be exposed to speedy discovery; and that, as the facts to which
they relate are generally known but to few persons, a relaxation of the strict rules of
evidence in favour of such entries may often prove convenient, if not necessary, for the
due investigation of truth".658

Clause (2) provides that a written statement of a relevant fact made by a person who is
dead is itself a relevant fact, when the statement was made by such person in "the
ordinary course of business". The expression "course of business" occurs in more than
one place in the Act. See sections 16, 34, 47, 114.

The phrase "in the ordinary course of business" is apparently used to indicate the
current routine of business which was usually followed by the person whose
declaration it is sought to introduce. The rule laid down in this clause extends only to
statements made during the course, not of any particular transaction of an exceptional
kind such as the execution of a deed of mortgage, but of business or professional
employment in which the declarant was ordinarily or habitually engaged. The
particulars set out in this clause, though not exhaustive, may fairly be taken as
indicating the nature of the statements made in the course of business. The expression
"in the ordinary course of business" must mean in the ordinary course of a professional
avocation.659 The business referred to may be of a temporary character.660 See
Illustrations (b), (c), (d), and (g).

The entries should have been made by the deceased person himself. Entries made by
another person at his instance are not admissible under this section.661 Entries in
registers prepared by an Amin who is dead are admissible for proving the nature of the
tenancy.662

[s 32.15.1] Account books.—

Entries in account books should, in order to be relevant, be regularly kept in the course
of business.663 Where accounts are kept in loose sheets of paper they do not have the
probative force of a book of accounts regularly kept in the course of business.664

A book of accounts may be said to be regularly kept although the book is not entered
up from day to day or from hour to hour as the transactions take place.665

[s 32.15.2] Difference between section 32, clause (2), and section 34.—

The plaintiff relied on entries in the handwriting of her deceased husband kept in the
ordinary course of his business. It was held that entries in accounts relevant only under
section 34 are not alone sufficient to charge any person with liability, corroboration is
required. But where accounts are relevant also under this clause, they are in law
sufficient evidence in themselves, and the law does not, as in the case of accounts
admissible only under section 34, require corroboration. Entries in accounts may in the
same suit be relevant under both sections, and where this is so, the necessity of
corroboration prescribed by section 34 does not arise. Though accounts which are
relevant under this clause do not as a matter of law require corroboration, the Judge is
not bound to act on them without corroboration; that is a matter on which he must
exercise his own judicial discretion as a judge of fact.666 Clause (2) does not make the
account books conclusive proof of the facts stated therein. Under section 34, liability
cannot be fastened on any person merely because in the account books of the
opposite party, there are certain entries adverse to him. Taking section 32(2) and
section 34 together, it is clear that even if the account books may be treated as relevant
it is discretionary for the court to require additional proof of any particular entry.667 The
material difference as between an entry relevant under section 34 and one relevant
under section 32(2) is that in the former case the person who made the entry may be
available as a witness while in the latter case he is not.

[s 32.15.3] CASES
[s 32.15.3.1] Samadaskat book.—

Entries of payments made by a creditor in the ledger (samadaskat book) belonging to a

debtor fall within this clause, and although they are admissions in his own favour they
are not excluded by section 21.668

[s 32.15.4] Record of identification parade.—

Such record by a Magistrate cannot be regarded as a statement made by a Magistrate

in the ordinary course of business. It cannot be admitted under clause (2). Proceedings
of parades can only be proved by the oral deposition of the Magistrate who held them
and who could then be subjected to cross-examination.669

[s 32.15.5] Registered letter returned.—

An endorsement on the cover of a letter by a postal peon that the cover tendered to the
addressee on a certain date was refused, is at best a record of a statement by the peon
and must be proved by calling him as a witness.670

[s 32.15.6] Balance-sheet.—

Facts stated in the balance-sheet of a company have to be proved like any other
fact.671

[s 32.15.7] Bahi (logbook) of Panda of Temple.—

A panda of a temple was maintaining a bahi incorporating the list of persons who
visited the temple. This was held to be admissible in evidence. The page in question
was signed by the visitor and for that reason the court said that it was immaterial
whether the bahi was maintained in the course of business or whether the entries were
regularly made.672

[s 32.16] "Statement against interest of maker" [Clause 3].—

A statement of a deceased person in order to be admissible under this clause must be

a statement of a relevant fact and must be against the proprietary or pecuniary interest
of the person making it.673 This clause makes declarations against interest admissible
in evidence. The principle upon which such statements are regarded as admissible in
evidence is that in the ordinary course of affairs a person is not likely to make a
statement to his own detriment unless it is true.674 The clause is based upon
knowledge of human nature. Self-interest induces a man to be cautious in saying
anything against himself. When one makes a declaration in disparagement of one's
own rights or interests, it is generally true, and because it is so, the law has deemed it
safe to admit evidence of such a declaration. Illustrations (e) and (f) apply to this
clause.
Before a statement can be admissible under this clause it must be shown that the
person making it knew that it was against his pecuniary or proprietary interest. In most
cases such knowledge would have to be inferred from the surrounding
circumstances.675 A statement by a person having proprietary interest in the suit
property about benami holding which was against his own interest was held to be
provable.676

This clause comprises three classes of declarations against interest: where they affect
the declarant's (1) pecuniary interest; (2) proprietary interest; and (3) personal liberty or
property by tending to charge him with a crime or to subject him to payment of
damages. A statement made by a person, against whom there is, already, in existence
evidence which would lead to his prosecution and conviction, is inadmissible in
evidence under this clause.677

Under this clause, the previous statements of a dead witness (e.g., approver) in a
previous trial implicating not only himself but also an absconding accused, cannot be
admitted for convicting such absconding accused in a subsequent trial. A man cannot
by his statement expose himself to criminal proceedings when such criminal
proceedings have already started. As soon as criminal proceedings have started
against a person making a statement exposing himself to a criminal prosecution, the
words of this clause cease to have application or force as they cannot be stretched or
extended so as to cover statements made after proceedings have been instituted.678

The form of the declaration is immaterial; it may be verbal or written, in a deed or a will,
or any other document.

In Taylor v Witham,679 The question was whether a person (deceased) had lent money
to another. He maintained a book and there was an entry in it saying: "B (the borrower)
paid me three months' interest". A few other entries also referred to the same loan.
"The Court held that the entry was against the interest of the maker and, therefore, all
the entries became admissible although some of them were in his favour" Jeesel, MR
explained the reason in the following passage:

"It is, no doubt, an established rule in the courts of this country that an entry against the
interest of the man who made it is receivable in evidence after his death for all
purposes. Of course, if you can prove aliundi that the man had a particular reason for
making it, and that it was fit for this interest, you may destroy the value of the evidence
altogether, but the question of admissibility is not a question of value. The entry may be
utterly worthless when you get it, if you show any reason to believe that he had a
motive for making it, and that though apparently against his interest, yet really was for
it; but that is a matter for subsequent consideration when you estimate the value of the
testimony."

[s 32.16.1] Declaration exposing the maker to criminal or civil liability.—

Declarations against interest should, to be admissible, have been against interest at the
time they were made, and it is no answer that they might possibly turn out to be so
subsequently.680 The confession of an accused person who is dead implicating
himself and an accomplice in a crime is admissible under this clause and is not
excluded by Illustration (b) to section 30.681 The question of admissibility is not a
question of value.

Clause (3) also declares relevant any statement which would have the effect of
exposing the declarant to a criminal prosecution or a suit for damages. Where a
woman died after telling her lover that she had witnessed a murder, the statement was
held to be relevant because if she were alive she could have been prosecuted for not
informing the police. It is the duty of every person witnessing a crime to inform the
authorities.682 Such a statement is probably not relevant under English Law. It is
observed in Cockel's Cases and Statutes on Evidence:683

"It should be observed that statements, in order to be admissible must be against

either pecuniary or proprietary interest. It is not sufficient for instance, that the
statement was made in circumstances which show that the person making it would be
liable to criminal prosecution. (Sussex Peerage case).684 Although that would seem to
be a case in which he would be liable to a pecuniary penalty, by way of fine, or to
something admittedly worse, i.e., imprisonment."

[s 32.16.2] Admissible against those who derive title from maker of statement.—

Such statements are admissible only against any person who has derived his title from
the maker of the statement.

The declaration of a deceased tenant of the farm to the effect that he was not entitled
to common pasture in respect of the farm, was held to be not admissible against the
landlord.685 Lord Campbell CJ remarked: "You cannot receive in evidence a declaration
of tenant which derogates from the title of the landlord. Such evidence, if receivable,
would be most mischievous, because a tenant might thus destroy a valuable easement
or be enabled to impose a servitude".

A letter from the co-respondent to the petitioner in a divorce suit admitting adultery
with the respondent was held to be admissible in evidence as it would expose the co-
respondent to a criminal prosecution.686

[s 32.16.3] Inadmissible statements.—

A statement made by a deceased person in his will that he had spent a certain amount
in effecting repairs to his house was held to be not admissible in evidence as it was not
a statement made against his pecuniary or proprietary interest.687

A Hindu widow purported to adopt her brother's grandson, fifty-four years after the
death of her husband, in pursuance of a power to adopt conferred on her by her
husband. The widow obtained mutation of the name of the adopted boy in place of her
own in revenue registers. In her evidence in the mutation proceedings she stated that
she had her husband's authority to adopt in a suit by the reversioners against the
adopted boy to recover the property it was held that the evidence of the widow in the
mutation proceedings was not admissible either under this clause or under section
33.688

[s 32.17] "Opinion … as to … public right or custom" [Clause 4].—

The admissibility of declarations of deceased persons in cases of public right or

custom, or matters of public or general interest, is allowed, as these rights or customs
are generally of ancient and obscure origin, and may be acted upon only at distant
intervals of time; direct proof of their existence is not, therefore, demanded.689

The principle on which the exception of reputation regarding public rights rests in this—
that the reputation can hardly exist without the concurrence of many parties interested
to investigate the subject, and such concurrence is presumptive evidence of the
existence of an ancient right, of which direct proof cannot be given in most cases.690

The admissibility of the declarations of deceased persons in such cases is sanctioned,

because in local matters, in which the community are interested, all persons living in
the neighbourhood are likely to be conversant; because, common rights and liabilities
being naturally talked of in public, what is dropped in conversation respecting them
may be presumed to be true; because conflicting interests would lead to contradiction
from others if the statements were false; and thus a trustworthy reputation may arise
from the concurrence of many parties unconnected with each other, who are all
interested in investigating the subjects.691

[s 32.17.1] Public and general rights.—

Public rights are those common to all members of the State, e.g., rights of highways or
of ferry or of fishery. General rights are those affecting any considerable section of the
community, e.g., disputes as to the boundaries of a village. The right must have been
one of whose existence the declarant should be aware. If the declaration is made
otherwise than upon the declarant's own knowledge it will be rejected.

This clause is inapplicable to a document purporting to deal with the rights of a private
individual as against the public, in which the interests of the individual form the subject
matter of the statement.692 A map prepared by a person, who is dead, in a previous
case not inter partes, showing the limits of a particular district, is not admissible as it is
not a matter of public right or public or general interest within the meaning of this
clause.693

Illustration (i) exemplifies this clause.

[s 32.17.2] Statement before any controversy had arisen.—

The declarations should have been made ante litam motam, i.e., before the beginning of
any controversy and not simply before the commencement of any suit involving the
same subject-matter. The operation of bias is thus excluded.694

To render a statement inadmissible as having been made post litam motam the same
thing must be in controversy both before and after it is made.695

The recitals in the document are admissible under this section. The history dealing with
the founding of a temple is a matter of general interest and when a statement about it
is made by a deceased person at a time when there was no controversy on this
question, that statement would clearly come within the scope of this clause.696

[s 32.18] Statement as to existence of relationship [Clause 5].—

Statements relating to the existence of any relationship between persons alive or dead
as to whose relationship the declarant has special means of knowledge are admissible
if they are made before the question in dispute was raised. Four conditions must be
fulfilled for the application of this clause: firstly, the statements, written or verbal, of
relevant facts must have been made by a person who is dead or cannot be found etc.,
as mentioned in the initial part of the section; secondly, the statements must relate to
the existence of any relationship by blood, marriage or adoption; thirdly, the person
making the statement must have special means of knowledge as to the relationship in
question; and lastly, the statements must have been made before the question in
dispute was raised.697 A special knowledge is to be presumed in the case of members
of the family.698 A Hindu Brahmin has a special means of knowledge of the names and
relationship of the members of his family including collaterals up to at least seventh
degree.699 Statements made by deceased members of a family are admissible in
evidence to prove pedigree if they are made before there was anything to throw doubt
upon them.700

In State of Bihar v Radha Krishna Singh,701 the Supreme Court explained the approach
to be adopted in evaluating evidence regarding genealogy or pedigree:

In considering the oral evidence regarding a pedigree, a purely mathematical approach

cannot be adopted because where a long line of descent has to be proved spreading
over a century, it is obvious that the witnesses who are examined to depose to the
genealogy would have to depend on their special means of knowledge which might
have come to them through their ancestors. But, at the same time, there is a great risk
and a serious danger involved in relying solely on the evidence of witnesses given from
pure memory because the witnesses who are interested normally have a tendency to
draw more from their imagination or turn and twist the facts which they may have
heard from their ancestors in order to help the parties for whom they are deposing. The
court therefore, must take this safeguard that the evidence of such evidence may not
be accepted as is based purely on imagination or an imaginary or illusory source of
information rather than special means of knowledge as required by law. Oral testimony
of the witnesses on this matter is bound to be hearsay and their evidence is admissible
as an exception to the general rule where hearsay evidence is not admissible. In order
to appreciate the evidence of such witnesses, the principles to be kept in mind are:

(1) The relationship or the connection which the witness bears to the persons
whose pedigree is sought to be deposed by him;

(2) the nature and character of the special means of knowledge through which the
witness has come to know about the pedigree;

(3) the state of interest of the witness concerned;

(4) the precaution which must be taken to rule out any false statement made by the
witness post litem motam or a statement which is derived not by means of any
special knowledge but purely from his imagination; and

(5) the evidence of the witness must be substantially corroborated as far as time
and memory are concerned.

The Act does not contain any express provision making evidence of general reputation
admissible as proof of relationship. It is necessary to put forward evidence of the kind
described in clauses (5), (6) and (7) and section 50 to prove the existence of
relationship between persons deceased whenever the question is in issue.702

A statement of one's age made by a deceased person having special means of

knowledge is admissible under this clause.703 It is not necessary that the statement
should have been made in a judicial proceeding.704 Entries made in books of priests
(pande's bahis) if made by persons who are dead or cannot be found are relevant only
under this clause and clause (6) read with section 90 and are admissible only if all the
requirements laid down therein are proved, and among other things, the identity of the
maker of those statements is established.705 As the question as to the existence of
any relationship also includes the question as to the commencement of that
relationship, declarations of deceased competent declarants are admissible to prove a
person's date of birth, and, consequently, his age, minority or majority or the order in
which the members of the family are born. Such declarations are also admissible to
prove parentage, names of relations or the date of death of a member of the family as
death implies termination of a relationship, just as birth implies its commencement.706
Where the executant of the deed is dead, a statement therein that the donee is his
legally married wife, is admissible under this section.707 Where the deed of adoption
contained the statement of the adoptive widow that she had taken a person in adoption
and the widow being dead could not be called as a witness, the statement as it related
to the relationship by adoption could be admitted under this clause.708

The statement, as to heirship in the family, of a person who had been the housekeeper
of the family for 24 years was rejected. Explaining the reason, BEST CJ said:709 "Facts
must be spoken of which took place many years before the trial, and of these,
traditional evidence is often the only evidence which can be obtained; but evidence of
that kind must be subject to limitation, otherwise it would be a course of great
uncertainty, and the limitation hitherto pursued, namely, the confining of such evidence
to the declarations of relations of the family, affords a rule at once certain and
intelligible. If the admissibility of such evidence were not so restrained, we should on
every occasion before the testimony could be admitted have to enter upon a long
inquiry as to the degree of intimacy or confidence that subsisted between the party and
the deceased declarant...If we look into the cases we shall find that the rule has always
been confined to the declaration of kindred."

Evidence of this kind is relevant only when the relationship is in question and not
merely the date of birth. Where a person refused to pay for the goods supplied to him
on the ground that he was minor, he offered evidence of his late father's declaration in
an affidavit in an earlier case as to the date of his birth, the evidence was rejected.710
BRETT MR said:

It is obvious that in this case the question of family is immaterial, that the question whose
son the defendant was, is immaterial, and so were all such questions as whether he was a
legitimate or a natural son, an elder or a younger son, or as to what relation he occupied
with regard to the rest of the family. There was, therefore, no question which could be called
a question of family the only question is, what was the date of birth…?

[s 32.18.1] "Before the question in dispute was raised".—

These words do not necessarily mean before the dispute was raised in the particular
litigation in which such a statement is sought to be adduced in evidence, that is the
declarations are required to have been made not merely before the commencement of
legal proceedings but before even the existence of any actual controversy concerning
the subject-matter of the declarations.711

Illustration (k) exemplifies this clause. See also, Illustration (l).

[s 32.18.2] Marriage.—

Strict proof of marriage is necessary in certain criminal offences, e.g., bigamy, adultery,
enticing away a married woman. This clause had no application in such cases.712
Otherwise general reputation of marriage is admissible. An admission by a plaintiff of
her marriage with a person made before there was any dispute about such marriage
may be proved by or on her behalf under section 21(1) read with this clause.713

Where an entry in a family register maintained in accordance with Rules showed that
the name of the first wife of the person in question was deleted on the basis of divorce
deed and the name of the second wife was entered, it was held that the entry in the
register made at the instance of the husband was very much relevant under section
32(5) to prove that the person mentioned in the entry had married the second time.714

Evidence of competent witnesses as to their having heard the names of the ancestors
recited by members of the plaintiff's family on ceremonial and other occasions was
held to be admissible evidence in support of the pedigree on which the plaintiff based
his claim. Such evidence is not open to criticism merely on the ground that the
witnesses are relatives.715

The oral evidence in a case consisted of statements made by the plaintiffs as to their
descent, the information as to which they had received from their ancestors. Objection
was taken that such of those statements as were made since 1847 were inadmissible
in evidence under clauses (5) and (6) as being post litam. The Privy Council held that
they were admissible, the heirship of the then claimants not being really in dispute at
that time.716

A statement as to the age of a member of a family made by a sister717 or a statement

as to his age made by a testator in his will718 was held admissible after her death.
Statements of the father (since deceased) in his written statement in a maintenance
case filed by the mother of the child, denying the paternity of the child, were not within
this clause or section 33 and were not admissible in evidence as against the child. The
judgment of the Magistrate in the same proceedings, holding that the child was not the
child of that father, was not binding upon the child and was inadmissible in evidence.
Statements by the mother that the child was begotten by a person other than her
husband were inadmissible against the child.719

For the purpose of the decision of a question of limitation, it was necessary to prove
the date of the plaintiff's birth. The plaintiff and one of his witnesses each spoke to
statements made to them by relatives of the plaintiff, who were since deceased,
relating to the date of the plaintiff's birth. It was held that such statements were
admissible in evidence.720 A plaint in a former suit verified by a deceased member of
the family, and as such having special means of knowledge, was held admissible under
this clause to prove the order in which certain persons were born and their ages.721 In
an action to recover the amount due upon certain mortgages, the defendant pleaded
that he was an infant when he executed them. As evidence in support of this plea there
was tendered at the trial an entry, recording the date of the defendant's birth made by
the defendant's deceased father in a book in which he made similar entries with regard
to his family. It was held under an Ordinance exactly similar to the Evidence Act that
having regard to Illustration (l) to this section the entry was admissible in evidence.722

[s 32.19] Difference between clauses (5) and (6) [Clause 6].—

Clause (5) refers to statements relating to the existence of any relationship between
persons alive or dead, and the statement is to be made by a person who had special
means of knowledge, that is, it imposes the restrictions that the person making the
statement should have special means of knowledge. See Illustration (k). Clause (6)
refers to the existence of relationship between deceased persons only; and it imposes
no such restriction as under clause (5). It is enough if the statement is made in a will or
deed relating to the affairs of the family or in any family pedigree, etc., no matter by
whom it was made.

Clause (6) also refers to pedigree, but differs from clause (5) in this—that in clause (5)
the evidence is the declaration of the person deceased or otherwise unproduceable, in
clause (6) the evidence is that of things, such as genealogical trees, tomb-stones, etc.
The statements in clause (5) may be either written or verbal; the statement in clause
(6) must always be written as the evidence therein is that of things.

In order to be admissible the statement relied on must be made ante litem motam by
persons who are dead i.e. before the commencement of any controversy actual or legal
upon the same point.723

[s 32.19.1] Statement as to relationship in will or deed.—

Under this clause statements relating to the existence of relationship between

deceased persons made before the question in dispute was raised are admissible
when they are contained in a will or a deed or in a family pedigree,724 or upon a tomb-
stone. It is not necessary as in clause (5) that the statements should have been made
by a person who had special means of knowledge, simply because it is not probable
that a person would insert in a will or a solemn deed any matter the truth of which he
did not know. The statement should not have been made in the testator's own interest
or in view of contemplated litigation.725 The statement of testator in his will that the
defendant No. 1 was his adopted son was held to be relevant to show the fact but not
conclusive of it.726

The word "verbal" used in the beginning of this section has no application to this
clause.

Illustrations (l) and (m) exemplify this clause.

[s 32.19.2] CASES.—Horoscope.—

In a suit to recover possession of immoveable property, the plaintiff tendered in

evidence a horoscope which, he said, had been given to him by his mother and had
been seen by members of his family and used on the occasion of his marriage. He was
unable to say by whom the horoscope, or an endorsement on it, which purported to
state what his name was, had been written. It was held that the horoscope was not
admissible.727 This case has been distinguished in a Madras case where the
defendants relied on a horoscope produced by the plaintiff's mother and which had
been a public record from a period ante litam motam and was put in as an admission
under sections 17 and 18.728

[s 32.19.2.1] Pedigree table.—

In a suit for inheritance claimed by the plaintiffs, alleging themselves to be collateral

relations and heirs of the last male owner, through an ancestor common to him and to
them, a pedigree table was put in evidence. The persons from whose statements at no
distant date the pedigree had been drawn up were absent, and it had not been shown
that this had been for any one or other of the reasons contained in this section. It was
held that the pedigree table was inadmissible.729 A family pedigree was sought to be
proved by the books kept by the family chronicler prepared by the chroniclers from time
to time from the information supplied by members of the family. It was held that the
pedigree would be admissible under this clause and also under clause 2.730

[s 32.20] Statements as to Customs or Rights [Clause 7].—

A statement contained in any deed, will, or other document which relates to a
transaction by which a right or custom in question was created, modified, recognized,
asserted, or denied, is admissible under this clause. A statement in any relevant
document, however recent, and though not more than thirty years old, is admissible.
Statements of facts contained in a will of a deceased person tending to show that the
properties are his self-acquisitions are admissible.731

The word "verbal" used in the beginning of this section naturally does not apply to this
clause as well. This clause does not allow introduction of parole evidence.732

Under this clause the word "right" will include both public and private rights.

[s 32.21] General Remarks [Clause 8].—

When a number of persons assemble together to give vent to one common statement,
which statement expresses the feelings or impressions made in their minds at the time
of making it, that statement may be repeated by the witnesses, and is evidence.733
Thus, where a person was charged with raising a seditious mob, expressions of alarm
by persons in the neighbourhood were admitted in evidence to show the feelings
produced by the gathering;734 evidence that a plaintiff was publicly laughed at in
consequence of a libel was admitted to prove that the libel referred to the plaintiff.735
Illustration (n) is intended to exemplify this clause.

587 Ins. by Act 18 of 1872, section 2.

588 Ins. by Act 18 of 1872, section 2.
589 Satish Chandra Seal v Emperor, (1944) 2 Cal 76 ; P Bikshapathi v State of AP, 1989 Cr LJ
1186 AP, dowry death, the court explaining the rationale of these exceptions.
590 Sant Gopal v State of UP, 1995 Cr LJ 312 (All).
591 Kajal Sarkar v State of Assam, 1993 Cr LJ 3869 (Gau).
592 Sant Gopal v State of UP, 1995 Cr LJ 312 (All); Arjun Kushwah v State of MP, 1999 Cr LJ 2538
(MP), the maxim of law is that a man will not like to meet his maker with a lie in his mouth. A
dying declaration made by the victim in a fit mental state but on the verge of death has a special
sanctity of the solemn moment.
593 Dashrath v State of MP, AIR 2008 SC 316 : (2007) 12 SCC 487 , can be the sole basis of
conviction, requiring corroboration is merely a rule of prudence.
594 Umakant v State of Chhattisgarh, AIR 2014 SC 2943 (para 18).
595 Laxman v State of Maharashtra, (2002) 6 SCC 710 .
596 Mallella Shyamsunder v State of Andhra Pradesh, (2015) 2 SCC 486 .
597 Mallella Shyamsunder v State of AP, (2015) 2 SCC 486 .
598 Ashabai v State of Maharashtra, (2013) 2 SCC 224 .
599 Pandian K Nadar v State of Maharashtra, 1993 Cr LJ 3883 (Bom); Prem Chand v State of UP,
1993 Supp. 4 SCC 214 : 1994 SCC (Cri) 11 , dying declaration recorded by magistrate, no
discrepancies, consistent with statement of eye-witnesses, reliable. Bolem Bhaskara Rao v State
of AP, 1995 Supp 4 SCC 211 : 1996 SCC (Cri) 49 , magistrate recording the statement verified