Law of evidence assignment question

Q 1 discuss all admission are confession but all confession are not admission?

Q.2 Discuss in detail the concept of Dying declaration- meaning concept, evidentiary value alongwith case laws.

Q 3 short note-

May presume and Shall Presume

Q 1 discuss all admission are confession but all confession are not admission?

Admissions and Confessions under Indian Evidence

Act,1972
The Indian Evidence Act, 1872 Section 17-31 deal with the provisions related to
admission and confessions and their relevancy.
Section 17. Admission defined
An admission is a statement,8A [oral or documentary or contained in electronic
form], which suggests any inference as to any fact in issue or relevant fact, and
which is made by any of the persons, and under the circumstances, hereinafter
mentioned.

Section 18. Admission- by party to proceeding or his agent

Statements made by party to the proceeding, or by an agent to any such party,
whom the Court regards, under the circumstances of the case, as expressly or
impliedly authorized by him to make them, are admissions.

By suitor in representative character — Statements made by parties to suits,

suing or sued in a representative character, are not admissions, unless they are
made while the party making them held that character.
Statements made by—
(1) By party interested in subject-matter—persons who have any proprietary or
pecuniary interest in the subject-matter of the proceeding, and who make the
statement in their character of persons so interested, or

(2) By person from whom interest derived- Persons from whom the parties to the
suit have derived their interest in the subject-matter of the suit, are admissions, if
they are made during the continuance of the interest of the persons making the
statements.

Section 19. Admissions by persons whose position must be proved as

against party to suit
Statements made by persons whose position or liability it is necessary to prove
as against any party to the suit are admissions, if such statements would be
relevant as against such persons in relation to such position or liability in a suit
brought by or against them, and if they are made whilst the person making them
occupies such position or is subject to such liability.

Section 20. Admissions by persons expressly referred to by party to suit

Statements made by persons to whom party to the suit has expressly referred for
information in reference to a matter in dispute are admissions.
Thus, by taking the collecting conclusion from section 17 to 20 admission can be
define as a statement oral or documentary or in electronic form which suggest
any inference as to any fact in issue or relevant fact and made by
1. A party to proceeding,
2. An authorized agent to any party to proceeding,
3. Parties to representative suit holding capacity as representative while making
the statement,
4. Persons who have proprietary or peculiar interest in the subject matter of
proceeding,
5. Person from whom parties to the suit have derived their interest in the subject
matter of the suit.
6. Persons whose position and liability it is necessary to prove against any party
to the suit.
7. Persons to whom a party to the suit has expressly referred for information in
reference to matter in dispute.

Uses of Admission:-
Section 21. Proof of admissions against persons making them, and by or
on their behalf
Admissions are relevant and may be proved as against the person who makes
them, or his representative in interest; but they cannot be proved by or on behalf
of the person who makes them or by his representative in interest, except in the
following cases:-

(1) An admission may be proved by or on behalf of the person making it, when it
is of such a nature that, if the person making it were dead, it would be relevant
as between third persons under section 32.

(2) An admission may be proved by or on behalf of the person making it, when it
consists of a statement of the existence of any state of mind of body, relevant or
in issue, made at or about the time when such state of mind or body existed, and
is accompanied by conduct rendering its fa lsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is

relevant otherwise than as an admission.

Section 22. When oral admissions as to contents of documents are

relevant
Oral admissions as to the contents of a documents are not relevant, unless and
until the party proposing to prove them shows that he is entitled to give
secondary evidence of the contents of such document under the rules herein
after contained, or unless the geniuses of a document produced is in question.
Section 22A. When oral admission as to contents of electronic records are
relevant
Oral admissions as to the contents of electronic records are not relevant, unless
the genuineness of the electronic record produced is in question.]

Section 23. Admission in civil cases relevant

In civil cases no admission is relevant, if it is made either upon an express
condition that evidence of it is not to be given, or under circumstances from
which the Court can infer that the parties agreed together that evidence of it
should not be given.

Explanation – Nothing in this section shall be taken to exempt any barrister,

pleader attorney or vakil from giving evidence of any matter of which he may be
compelled to give evidence under section 126.

Some important points as to admission:-

1. Admission is a formal positive act of acknowledgment, It is a conscious and
deliberate act and not something which would be inferred.
2. In India admission of fact is proved against the party making the admission but
admission on a pure question of law is not binding on the maker. (Jagwant Singh
Vs. Sitam Singh ILR 21 ALL)
3. Admission by pleaders, Attorneys and counsels in civil cases if made with full
authority and knowledge without some serious mistake is conclusively binding
upon the client and cannot afterwards be withdrawn, but no admission by
counsel in criminal cases can relieve the prosecution of the duty to prove the
case.
4. Admission must be taken as a whole and cannot be split up and use part of if
against person making it.

Section 31. Admission not conclusive proof, but may estop

Admissions are not conclusive proof of the matters admitted but they may
operate as estoppels under the provisions hereinafter contained.
Admissions are broadly classified in two categories judicial admissions and extra
judicial admissions.

Admissions dealt with in the Indian Evidence Act (in Sections 17 to 23 and 31)
are different from the judicial admissions. Admissions in the Evidence Act is
nothing but a piece of evidence.
According to Section 31 admissions as dealt with in Sections 17 to 23 are only a
piece of evidence. They are not conclusive proof of the facts admitted like the
judicial admissions, but they may operate as estoppels under Sections 115 to
117 of the Act.
An admission is the best evidence that an opposite party can rely upon and
though not conclusive is the decisive of the matter unless successfully withdrawn
or proved erroneous.

The principle underlying the evidentiary value of an admission may be

summarized thus:
(1) An admission constitutes a substantive piece of evidence in the case and for
that reason can be relied upon for proving the truth of the facts incorporated
therein.
(2) An admission has the effect of shifting the onus of proving to the contrary on
the party against whom it is produced with the result that it casts an imperative
duty on such party to explain it. In the absence of satisfactory explanation it is
presumed to be true.
(3) An admission, in order to be competent and to have the value and effect
referred to above should be clear, certain and definite and not ambiguous, or
confused.

As per section 58 of India Evidence Act fact admittedly need not to be

proved:- No fact need be proved in any proceeding which parties their to or their
agents agree to admit at the hearing or before hearing, they agree to admit by
any writing under their hands or by any rule of pleading in force at the time they
are deemed to have admitted by their pleadings.
Provided that the court may in its discretion, require the facts admitted to be
proved otherwise by such admissions.
Section 17 to 31 deals with admission generally and include Section 24 to 30
which deal with confession hence confession is a species of admission.
Section 24. Confession caused by inducement, threat or promise when irrelevant
in criminal proceedings
A confession made by an accused person is irrelevant in a criminal proceeding, if
the making of the confession appears to the Court to have been caused by any
inducement, threat or promise, having reference to the charge against the
accused person, proceeding from a person in authority and sufficient, in the
opinion of the Court, to give the accused person grounds, which would appear to
him reasonable, for supposing that by making it he would gain any advantage or
avoid any evil of a temporal nature in reference to the proceedings against him.

The word “confession” appears for the first time in Section 24 of the Indian
Evidence Act. This section comes under the heading of Admission so it is clear
that the confessions are merely one species of admission. Confession is not
defined in the Act. Mr. Justice Stephenin his Digest of the law of Evidence
defines confession as “confession is an admission made at any time by a person
charged with a crime stating or suggesting the inference that he committed that
crime.”

Admission and confession-Difference

Confession Admission
1. Confession is a statement made 1. Admission usually relates to
by an accused person which is civil transaction and comprises all
sought to be proved against him in statements amounting to
criminal proceeding to establish admission defined under section
the commission of an offence by 17 and made by person mentioned
him. under section 18, 19 and 20.
2. Confession if deliberately and
2. Admissions are not conclusive
voluntarily made may be accepted
as to the matters admitted it may
as conclusive of the matters
operate as an estoppel.
confessed.
3. Admissions may be used on
3. Confessions always go against behalf of the person making it
the person making it under the exception of section 21
of evidence act.
4.Confessions made by one or two
or more accused jointly tried for 4. Admission by one of the several
the same offence can be taken into defendants in suit is no evidence
consideration against the co- against other defendants.
accused (section 30)
5. admission is statement oral or
5. confession is statement written
written which gives inference
or oral which is direct admission
about the liability of person
of fact.
making admission.
Difference between judicial and extra-judicial confession-
Judicial confession Extra-judicial confession
1. Judicial confessions are those 1. Extra-judicial confession are
which are made to a judicial those which are made to any
magistrate under section 164 of person other than those authorized
Cr.P.C. or before the court during by law to take confession. It may
committal proceeding or during be made to any person or to police
trial. during investigation of an offence.
2. To prove judicial confession the 2. Extra-judicial confession are
person to whom judicial proved by calling the person as
confession is made need not be witness before whom the extra-
called as witness. judicial confession is made.

3. Judicial confession can be

3. Extra-judicial confession alone
relied as proof of guilt against the
cannot be relied it needs support
accused person if it appears to the
of other supporting evidence.
court to be voluntary and true.
4. A conviction may be based on 4. It is unsafe to base conviction
judicial confession. on extrajudicial confession.
Ingredients of Section 24
To attract the prohibition enacted in Section 24 the following facts must be
established:-
•That the statement in question is a confession,
•That such confession has been made by the accused,
•That it has been made to a person in authority, (Police, Magistrate, Patel,
Master of the accused, Zimidar of the accused, Mukhia of a village or a Ziledar
serving in a grate estate are the persons in authority within the meaning of
section 24)
•That the confession has been obtained by reason of any inducement, threat or
promise, proceeding from a person in authority,
•Such inducement, threat or promise must have reference to the charge against
the accused, and
•The inducement, threat or promise must in the opinion of the court be sufficient
to give the accused ground, which would appear to him reasonable, for
supporting that by making it he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him.

Extra-judicial Confession can be of three types:-

1.Confession made to a police officer – not admissible under Section 25.
2.Confession made in police custody – not admissible under Section 26.
3.Made to any third person neither to police officer, nor in custody and not to
magistrate. If such a confession is not hit by Section 24 it will be relevant and if
proved admissible. So it has evidentiary value depending upon the corroboration
of it. Per se an extra judicial confession cannot be a ground of conviction unless
it is corroborated by other circumstances.
In State of MP Vs. Paltan Mallah (2005 SC),it has been held that extra judicial
confession is a good piece of evidence but it has to be pass through a stringent
test of corroboration and proof. It cannot be sole basis of conviction. Extra-
judicial confession against a co-accused can be used under Section 30.

Regarding confession statement starting from Balmukund Case and passing

through Palwinder Kaur, Deoman Upadhyay, Agnoo Nagesia and uptil Nishikant
Jha, three basic issues have been raised:-
1.In a confessional FIR or generally in any other confessional statement,
normally there are two components –
(a) The sentences which amount to a direct confession of the guilt and
(2) Other sentences in the confession which are not a direct admission of the
guilt but which are admissions of surrounding incriminating circumstances if the
confession was made to a police officer then what is the effect of Section 25?
Will it hit the entire statement or will it hit only the purely confessional statements
and, therefore can the other incriminating statements of an admissional nature
be still used against the accused.

2.If in a confessional statement there is some exculpatory statement as well then

can it be separated and used in support of the accused by the defence.

3.If a statement is made by the accused in such a manner that actually it does
not amount to a confessional statement. However, there are some admissions of
incriminatory circumstances in that statement coupled with some exculpatory
circumstances. Then can be exculpatory part be removed and the inculpatory be
used as an admission.

In Agnoo Nagesia case it has been held that a confessional statement as to be

read in totality and whole FIR will be hit by Sections 25 and 26 unless some
portion of it is exculpatory (but Section 27 will apply and the discovery statement
will be admissible).

The question whether a confessional statement containing exculpatory and

inculpatory statements, will be exculded in totality or can be bifurcated was
raised inPakala Narayan Swami Case (1939 PC)and later on in the Allahabad
HC Case of Emperor Vs. Balmukund (1952 Allahabad) and subsequently
in Palwinder Kaur Vs. State of Punjab (1953 SC).Also in Agnoo Nagesia
Case and was finally settled in Nishikant Jha Vs.State of Bihar (1968 S.C) by a
five judges bench of SC headed by Mitter J. The final ruling can be summarized
as follows - “If the confessional part will be negated if the exculpatory part is
proved then the court has to examine whether the exculpatory part is proved or
not. If the exculpatory part is proved then the whole confessional statement
becomes inadmissible. However, if the court finds that the exculpatory part is
either disproved or is untrustworthy on the basis of the other proved evidences,
then the exculpatory part can be rejected and the incriminatory part will be
admitted”.

Evidentiary value of confession

A confessional statement made by the accused before a magistrate if it is made
voluntarily is a good evidence and accused can be convicted on the basis of it. It
is substantive piece of evidence and a conviction can be bases solely on such
confession provided it is voluntary and proved. Now the settled law is that a
conviction can be based on confession only if it is proved to be voluntary and
true. If corroboration is needed it is enough that the general trend of the
confession is substantiated by some evidence which would tally with the
contents of the confession. General corroboration is enough.

Value of extra-judicial confession- extra-judicial confessions are not usually

considered
with favour but that does not mean that such a confession coming from a person
who has no reason to state falsely and to whom it is made in the circumstances
which support his statement should not be believed. The evidence of extra-
judicial confession is a weak piece of evidence. The extra-judicial confession
must be received with great care and caution. It can be relied upon only when it
is clear, consistent and convincing.

Retracted confession meaning:-a retracted confession is a statement made by

an accused person before the trial begins before the magistrate by which he
admits to have committed the offence, but which he repudiate at the trial.

Value of retracted confession-In 1957 in Pyare Lal Vs. State of Assam it was
held that a retracted confession may still be used as a basis for conviction. Its
corroboration would be a matter of prudence and not of law. In Bharat Vs. State
of Uttar Pradesh (1974 SC)it was held that a confession is a substantive piece
of evidence provided that it was made voluntarily. However, when a confession
is retracted the Court has to act cautiously and require a greater corroboration of
the confession. In Parmanand Teghu Vs. State of Assam (2004 SC)the same
points were reiterated. In NCT of Delhi Vs. Navjot Sandhu Alias Afsal
Guruit was held that once the earlier confession has been proved to be
voluntary then retraction will not play any role as such however in theParliament
Attack Case, the confession of Afzal and Saukat, the two co-accused was given
up not because of retraction but because the earlier confession was improperly
recorded i.e. it was proved not to be made voluntarily.

Proof of judicial confession-Under section 80 of Evidence Act a confession

recorded by the magistrate according to law shall be presumed to be genuine. It
is enough if the recorded judicial confession is filed before the court. It is not
necessary to examine the magistrate who recorded it to prove the confession.
But the identity of the accused has to be proved.

Proof of extra-judicial confession-extra-judicial confession may be in writing or

oral. In the case of a written confession the writing itself will be the best evidence
but if it is not available or is lost the person before whom the confession was
made be produced to depose that the accused made the statement before him.
When the confession has not been recorded, person or persons before whom
the accused made the statement should be produced before the court and they
should prove the statement made by the accused.

Confession to police (at any time before or after the investigation begins)
Section 25 – confession to police officer not to be proved.
No confession made to a police officer shall be proved as against a person
accused of
any offence.

Reasons for exclusion of confession to police-another variety of confessions that

are under the evidence act regarded as involuntary are those made to a police
officer. Section 25 expressly declares that such confessions shall not be proved.
If confessions to police were allowed to be proved in evidence, the police would
torture the accused and thus force him to confess to a crime which he might not
have a committed. A confession so obtained would naturally be unreliable. It
would not be voluntary. Such a confession will be irrelevant whatever may be its
form, direct, express, implied or inferred from conduct. The reasons for which
this policy was adopted when the act was passed in 1872 are probably still valid.

In Dagdu v. State of Maharashtra, A.I.R. 1977 S.C. 1579, Supreme Court

noted: The archaic attempt to secure confessions by hook or by crook seems to
be the be-all and end-all of the police investigation.
Statement Not Amounting To Confession is not hit by Section 25.

Use of Confessional Statement By Accused

Though the statements to police made by the confessing accused cannot be
used in evidence against him, he can himself rely on those statements in his
defence. The statement of the accused in FIR that he killed his wife giving her a
fatal blow when some tangible proof of her indiscretion was available was not
usable against him to establish his guilt. But once his guilt was established
through other evidence, he was permitted to rely upon his statement so as to
show that he was acting under grave and sudden provocation. There is nothing
in Evidence Act which precludes an accused person from relying upon his own
confessional statements for his own purposes.

Special Legislation
A special legislation may change the system of excluding police confessions. For
example, under the Territorists and Disruptive Activities(prevention) Act, 1987,
(S15) confessional statements were not excluded from evidence on grounds that
the persons making them were in police custody. The court said in another case
that section 15 was an important departure from the ordinary law and must
receive that interpretation which would achieve the object of that provision was
that a confession recorded under S.15 of TADA was a substantive piece of
evidence and could be used against a co-accused also.

Section 26- Confession By Accused While In Custody Of Police Not To Be

Proved Against Him.
No confession made by any person whilst he is in the custody of a police officer,
unless it is made in the immediate presence of a Magistrate, shall be proved as
against such person.
Object-The object of section 26 of the Evidence Act is to prevent the abuse of
their powers by the police, and hence confessions made by accused persons
while in custody of police cannot be proved against them unless made in
presence of a magistrate. The custody of a police officer provides easy
opportunity of coercion for extorting confession obtained from accused persons
through any undue influence being received in evidence against him.

Police Custody
The word custody is used here in wide sense. A policeman may lay his hand on
a person, hand-cuff him or tie his waist with a rope and may take him with him.
Again a police officer may not even touch a person but may keep such a control
over him that the person so controlled cannot go any way he likes. His
movement is in the control of the police officer. A police officer comes to A and
asks him to follow to the police station as he is wanted in connection with a
dacoity case. A follows him. He is in custody of the police officer.

Thus it is settled that “the custody of a police officer for the purpose of section
26, Evidence Act, is no mere physical custody.” A person may be in custody of a
police officer though the other may not be physically in possession of the person
of the accused making the confession. There must be two things in order to
constitute custody. Firstly, there must be some control imposed upon the
movement of the confessioner, he may not be at liberty to go any way he likes,
secondly, such control must be imposed by some police officer indirectly. The
crucial test is whether at the time when a person makes a confession he is a free
man or hid movements are controlled by the police by themselves or through
some other agency employed by them for the purpose of securing such
confession. The word ‘custody’ in this the following section does not mean formal
cutody but includes such state of affairs in which the accused can be said to
have come into the hands of a police officer, or can be said to have been some
sort of surveillance or restriction.

In R. v. Lester, the accused was being taken in a tonga by a police constable. In

the absence of constable, the accused confessed to the tanga-driver that he
committed the crime. The confession was held to be in police custody as the
accused was in the custody of constable and it made no difference of his
temporary absence. Where a woman, charged with the murder of her husband,
was taken into the custody of the police, a friend of the woman also
accompanied her. The policeman left the woman with her friend and went away
to procure a fresh horse. The woman confessed her guilt to her friend while the
policeman was away. The confession would not be admissible against the
accused as the prisoner should be regarded in custody of the police in spite of
the fact that he was absent for a short time. But where the accused is not
arrested nor is he under supervision and is merely invited to explain certain
circumstances, it would be going further that the section warrants to exclude the
statement that he makes on the grounds that he is deemed to be in police
custody.

Section 27- How Much Of Information Received From Accused May Be

Proved:
Provided that, when any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the custody of a
police officer, so much of such information, whether it amounts to a confession or
not, as relates distinctly to the fact thereby discovered, may be proved.

Principle-this section of the act is founded on the principle that if the confession
of the accused is supported by the discovery of a fact then it may be presumed
to be true and not to have been extracted. It comes into operation only-
•If and when certain facts are deposed to as discovered in consequence of
information received from an accused person in police custody, and
•If the information relates distinctly to the fact discovered.

This section is based on the view that if a fact is actually discovered in

consequence of information given, some guarantee is afforded thereby that the
information was true and accordingly can be safely allowed to be given in
evidence. But clearly the extent of the information admissible must depend on
the exact nature of the fact discovered to which such information is required to
relate.

In Pandu Rang Kallu Patil v. State of Maharashtra, it was held by Supreme

Court that section 27 of evidence act was enacted as proviso to Section 24 to 26.
The provisions of sections of Section 25 and 26, which imposed a complete ban
on admissibility of any confession made by accused either to police or to any one
while in police custody. Nonetheless the ban would be lifted if the statement is
distinctly related to discovery of facts. The object of making provision in section
27 was to permit a certain portion of statement made by an accused to Police
Officer admissible in evidence whether or not such statement is confessional or
non confessional.

Requirements Under The Section- the conditions necessary for the

application of Section 27 are:-
1. The fact must have been discovered in the consequence of the information
received from the accused.
2. The person giving the information must be accused of an offence.
3. He must be in custody of a police officer.
4. That portion only of the information which relates distinctly to the fact
discovered can be proved. The rest is inadmissible.
5. Before the statement is proved, somebody must depose that articles were
discovered in consequence of the information received from the accused. In the
example given above, before the statement of the accused could be proved,
somebody, such a sub-inspector, must depose that in consequence of the given
information given by the accused, some facts were discovered.
6. The fact discovered must be a relevant fact, that is, to say it must relate to the
commission of the crime in question.

Section 28provides that if there is inducement, threat or promise given to the

accused in order to obtain confession of guilt from him but the confession is
made after the impression caused by any such inducement, threat or promise
has, in the opinion of the court been fully removed, the confession will be
relevant becomes free and voluntary.

Impression produced by promise or threat may be removed

•By lapse of time, or
•By an intervening caution given by some person of superior authority to the
person holding out the inducement, where a prisoner confessed some months
after the promise and after the warning his confession was received.
Section 29-confession is otherwise relevant, it does not become irrelevant
merely because it was made under a promise of secrecy, or in consequence of
deception practiced on the accused person for the purpose of obtaining it, or
when he was drunk, or because it was made in answer to question which he
need not have answered, whatever may have been the form of those questions,
because he was not warned that he was not bound to make such confession,
and that evidence if it might be given against him.

Section 30- Consideration of Proved Confession Affecting Person Making It

And Others Jointly Under Trial For The Same Offence-
When more persons than one are being tried jointly for the same offence and a
confession made by one such persons affecting himself and some other such
persons is proved, the court may take into consideration such confession as
against such other person as well as against the person who makes such
confession. It appears to be very strange that the confession of one person is to
be taken into consideration against another. Where the confession of one
accused is proved at the trial, the other accused persons have no other
opportunity to cross examine him. It is opposed to the principle of jurisprudence
to use a statement against a person without giving him the opportunity to cross
examine the person making the statement. This section is an exception to the
rule that the confession of one person is entirely admissible against the other.

Hence before the confession of one accused may be taken into

consideration against others, it has to be shown that:
1) The person confessing and the others are being tried jointly.
2) They are being tried for the same offence.
3) The confession is affecting the confessioner and the others.

Evidentiary value of Confession in Section 30:-

The confession of a co-accused under Section 30 is admissible in evidence but
the evidentiary value is not as much as against the person making the
confession. It has only an indicative value. The PC in Bhaboni Sahu Vs. The
Kind has held the same. This was also reiterated by the SC inHarib Kurni Vs.
State of Bihar (1964 SC)and also in Kashmira Singh Vs. State of M.P. (1952
SC).
Q.2 Discuss in detail the concept of Dying declaration- meaning concept, evidentiary value alongwith case laws.

Dying Declaration

Introduction
Whenever any offence has been committed, there is always the two persons, who
voraciously knew what actually happened i.e. the Accused, who commit the offence
and the other one is Victim, with whom offence had been committed.

In order to prove their positions, and make one’s story to be true, they give
Statements to judge but their story one can not rely on the veracity of statements
which they made to support their stories, as it may be prejudiced or untrue so
generally, the role of Witness becomes crucial to determine the truth.

But there is a condition when the statement made by the person to be treated as true
evidence in spite of the fact that he made the statement in his own favour and hardly
any doubt behind the reason for that statement. That condition is Dying Declaration.

Dying Declaration is a statement made by the person while he was dying and states
the reason for his death. The statement given by the dying person can be
circumstantial or tells the cause for his death. Hence, the only statement given just
before the death of a person is called Dying Declaration. The person who is conscious
of Compos Mentis and knows that death is about to happen can make a declaration
and state the cause of his death and that statement will be Admissible and treated as
Evidence in the Court. Declaration made by the deceased person can be in oral,
written and by conduct. The word Dying Declaration explain the word itself.

Definition
In Section 32 (1) of Indian Evidence Act defines when the statement is made by the
person as the cause of his death, or as any of the circumstances of the transaction
which resulted in his loss of life, in cases in which the cause of that person’s death
comes into question. Such statements made by the person are relevant whether the
person who made them was alive or was not, at the time when they were made,
under the expectation of death, and whatever may be the nature of the proceeding in
which the cause of his death comes into question.

The statement made by the deceased person will be treated as Evidence and
Admissible in a Court of law. The reason behind this can be followed by Latin
maxim Nemo Mariturus Presumuntur Mentri which means that “Man Will Not Meet His
Maker With Lying On His Mouth. More precisely in our Indian law, it is the fact that
the dying man can never lie or Truth sits on the lips of dying man. Hence, the Dying
Declaration is Admissible and considered as Evidence in Court, and can be used as a
weapon to punish the culprit.

Types of Dying Declaration

There is no particular form to be employed in making the Dying Declaration. it can be
Oral, Written, Gestures & Signs, Thumb impression, Incomplete and can also be in
the form of Question Answer. However, there must be a distinct and definite assertion
on the part of the person who produces the statement. Possibly the declaration should
be in written form in the exact words stated by the person who made the statement.
When a magistrate records the dying declaration, then it should be in Question-
Answer form as the magistrate will opt the maximum information rightly, as in some
cases dying declaration becomes the sole way to help in the conviction of the
accused.

Let us discuss some of the types in the elaborative form:

Gesture and Signs

In the case of Queen-Empress v. Abdullah[1] the appellant was charged with the
offence of murder before the court of session. That he had murdered one DULARI, a
prostitute by cutting her throat through RAZOR. It seems that one-morning dulari
with her throat cut was taken to the police station and from there to the dispensary.
She was alive till the morning. The post-mortem report shows that the windpipe and
the anterior wall of the gullet had been cut through. When Dulari was taken to the
police station, she was questioned by her mother in the presence of a sub-inspector.
She was again questioned by the sub-inspector, deputy magistrate and subsequently
by the assistant surgeon.

She was unable to speak but conscious and able to make gestures and signs.
Magistrate asked dulari, as who had wounded her, but due to the injured condition
dulari was unable to speak. After that, The magistrate mentioned several names one
by one and asked if they had wounded her. Dulari moves her hand forward and
backwards and made negative and affirmative signs. Subsequently, the magistrate
asked whether Abdullah had wounded her, for that dulari waved her hand made the
sign in the affirmative, the magistrate recorded the statement. After that question
was put to her that if she been wounded with a knife or sword. In this regard, dulari
makes a negative sign, again magistrate asked her if she had been wounded with the
RAZOR. She in answer to this made an affirmative sign.

In this way, the magistrate records the dying declaration of Dulari and the same was
accepted as evidence to prosecute Abdullah.
Similarly, in the recent “Nirbhaya’s Rape Case,” Dying Declaration was made by her in
the form of sign and gesture.

The dying declarations made by Nirbhaya were recorded.

The first declaration was recorded by the doctor when she was admitted in the
hospital on the night of December 16, 2012 and the second on December 21 by the
sub-divisional magistrate during which she gave exact details of the mishappening.

The third declaration was recorded by the metropolitan magistrate on December 25

and was mostly by gestures. The bench said that as far as the third dying
declaration is concerned, this court has already held that the dying declaration
made through signs, gestures or by nods are admissible as evidence.

Oral and written

When the person gives the name of the murderer to a person present and written by
any of them then it is a relevant dying declaration. However, people may dispose of
the name of the mugger orally.

An oral dying declaration is admissible in evidence as an exception to the general rule

of evidence that hereby evidence is no evidence in the eyes of law. The oral dying
declaration made before his wife, father-in-law and other near relatives were made in
the conscious state.

In the case of Amar Singh v. State Of Rajasthan[2]. The deceased’s mother and
brother gave the evidence, that the deceased made the statement month prior to the
incident of suicide by her that the appellant, her husband used to taunt the deceased
saying that she had come from a hunger house and the appellant himself go to the
house of deceased and asked for 10.000/-. It was held that the dying declaration and
appellant were convicted under section 304B and 498A of IPC. The Court referred
to Pakala Narain Swamy v. Emperor[3]. in which Lord Atkin: held that the
circumstances of the transaction which resulted in the death of the declarant
will be admissible if such transaction has some proximate effect.

Incomplete Dying Declaration

Dying declaration made by the person, which is found to be incomplete can not be
admissible as evidence. When the condition of the deceased is grave and at his own
request a statement made by him in the presence of the doctor was later taken by
the police but could not be completed as the deceased fell into a coma from which he
could not recover. It was held that the dying declaration was not admissible in court
as the declaration appears to be incomplete on the face of it. But the statement,
though it is incomplete in the sense but conveys the declarant all necessary
information or what he wanted to state, yet stated as complete in respect of certain
fact then the statement would not be excluded on the ground of its being incomplete.

The deceased stated, “I was going home when I came near the house of Abdul Majid,
Sohail shot me from the bush. He ran away. I saw.” this was the dying declaration
made by the deceased and further was unable to answer the questions. It was held
that there is no question of incompleteness so far as the context of the case is
concerned. In the case of Muniappan v. State of Madras[4]. The deceased made the
dying declaration as follows :

“Sir,

This day 24th January 1960 in the afternoon at 12:30 Muniappan son kola goundan of
kamnav-kurechi stabbed me in my body with a knife.”

Soon the deceased died after the statement. His thumb impression was taken after he
was dead. This declaration against Muniappan was complete and admissible.

Question- Answer form

Dying Declaration can be made in the form of Question-answer. the deceased, in
some of her statement, did not state the actual part played by the appellant. She
merely answered the questions put to her. The court held that when questions are put
differently then the answer will also appear to be different. At first glance, the
detailed description of the offence may appear to be missing but the statement of the
deceased construed reasonably. However, when the magistrate records the dying
declaration, it must be preferred to be recorded in the form of a question-answer
must be preferred. If there is nothing to doubt that the person who records the
statement made by the deceased exact word to word, would not make any difference
merely because the same was not recorded in the form of question and answer.

Reason for admitting dying declarations in evidence

A dying declaration is admitted in evidence that is truly based on the principle of
“Nemo moriturns proesumitur mentiri (man will not meet his maker with a lie in his
mouth). Dying declaration does not require any corroboration as long as it creates
confidence in the mind of the Court and free from any form of tutoring. In case Uka
Ram v. State of Rajasthan[5]. Court held that dying declaration is admitted upon
consideration is made in extremity; when the maker of the statement is at his bed
end, every hope of this world is gone; and every motive of falsehood is silenced and
mind induced to speak only truth. Indian law recognises this fact that “a dying man
seldom lies”.

Fitness of the declarant should be examined

At the time of giving a declaration, the person who’s making the statement must be in
a fit state of mind. If the court has the slightest doubt about the mental soundness of
the maker of dying declaration, it is unsafe and unfair for the base on such a
statement.

The mere fact that the victim in his dying declaration did not make any reference to
injuries received by the accused is not a genuine ground that decides the merit of
dying declaration. Where the dying declaration was recorded by the doctor who
himself certified that the patient was in a fit condition for giving the statement, his
non-mentioning that the patient was in a fit mental condition and throughout
remained conscious would be of no consequence. In case State of M.P. v. Dhirendra
kumar[6]. The mother-in-law of the deceased was in the position to reach the upstair
within 5 to 6 minutes after hearing the cry of the deceased. According to the opinion
of the autopsy surgeon, the deceased was able to speak about 10-15 minutes. The
Supreme Court did not agree with the view of the High Court that the deceased is not
in a position to make the dying declaration, as it was reaffirmed by the autopsy report
and circumstances of the case that the deceased was in a fit state of mind to talk
when her mother-in-law reached the place where the deceased was dying.

Whereas in the case State of Orissa v. Parasuram Naik[7]. The accused, the husband
was alleged that he poured petrol on the body of his wife and lit a fire. Whereof
extensive burn injuries were sustained by the deceased wife. It was held that the oral
dying declaration to her mother can not be accepted because there was no certificate
by medical officer certifying that the deceased was medically fit to make a statement.

It is improper to reject the dying declaration on the ground that the fitness of the
maker depends solely on the certificate of the doctor and the magistrate himself did
not require independently as to whether the deceased was in a fit state to make a
dying declaration.

As in the case of Arvind Kumar v. State of Rajasthan [8]. The accused is charged with
an offence under Sections 304B and 498A of IPC. The dying declaration was recorded
by Naib-Tahsildar but did not take any certificate from the doctor regarding the fit
state of mind of the deceased nor there was any endorsement by the doctor. The
doctor testified that the dying declaration was recorded by the reader of Naib-
Tahsildar. No preliminary questions were asked from the deceased before recording
his statement. The naib-Tahsildar also stated that he did not seal the recorded
statement of the deceased and carbon copies provide instead of the original copy of
dying declaration of the deceased during cross-examination. The mother of deceased
categorically refused to put a signature or thumb impression on dying declaration
which showed that the dying declaration made in the hospital room was a lie. All
these facts created doubt and truthfulness of dying declaration and held that the
alleged dying declaration could not be admissible and reliable document as it suffered
from a number of infirmities. However, the accused were convicted on the basis of
entire evidence.

In case Dhanraj and other v. State of Maharashtra [9]. The dying declaration was
challenged on the ground that no medical certificate was attached to the condition of
the deceased. However, the deceased went to the hospital all alone by changing
different vehicle in the way. The statement of doctor and magistrate was on record to
indicate that the deceased was in a fit state of mind to give a statement. Such
circumstances can be used as supporting evidence about the mental condition of the
deceased.

When the deceased made a dying declaration and while stating that fell into a coma
before completing the statement, it would have a serious effect on his capacity to
make such a statement. Certificate of fitness given by the doctor with regard to this
condition of the deceased. Such an opinion should be accepted by the court. If the
circumstances so demand, such opinion must be carefully balanced with all other
surrounding facts and circumstances.

In a case Rajeev Kumar v. State of Haryana [10] medical opinion shows that the
deceased larynx and trachea were charred by heat. It was clarified that when larynx
and trachea are charred, the person can not speak but when they are in the process
of being charred, he can speak. The second medical opinion was if the vocal cords or
larynx is charred of a person, he may be able to speak but not clearly and it will be
difficult to understand. The medical report of two is not in variance with the ocular
evidence that the deceased was in a position to speak when dying declaration was
recorded and the court can rely on such dying declaration.

Who should record the dying declaration?

Any person can record the dying declaration made by the deceased, but the person
who is recording the dying declaration must have some nexus with the deceased
either circumstantially or by some fact. However, the doctor or police officer hold
more value as compared to the normal person. As far as the dying declaration is
concerned the magistrate entrusted to record the dying declaration, as the statement
recorded by him is considered more evidential rather than statement recorded by the
doctor, police officer and by the normal person.

The Supreme Court has found this to be true in law, at least in cases where the
person dies of burn injuries. Court hold the opinion that “The law on the issue can be
summarized to the effect that law does not give any direction that who can record a
dying declaration but just provided that magistrate is above all the person in subject
for recording the statement, nor is there any definite form, format or procedure for
the same,” said a bench of Justices B S Chauhan and Dipak Misra while quashing the
high court order in the case of dowry death acquittal case.

The person who records the dying declaration must be satisfied that the maker is in a
fit state of mind and conscious while making the statement.

Moreover, a dying declaration can be recorded by a person, or even by the police

officer, but if it is recorded by the judicial magistrate that it will have more credential
value and reliability.
Recorded by a normal person
A dying declaration can be recorded by a normal person. As in some circumstances
where the judicial magistrate, police officer and doctor is not available, the Court can
not reject the dying solely statement made before the normal person. But the person
who records the statement must show that the deceased was in a fit state of mind
and conscious while making the statement no matter if the statement is not recorded
by Judicial Magistrate, doctor and police officer. The statement is admissible in a court
of law.

Recorded by the doctor or a police officer

If there is no time to call the magistrate keeping in the mind the deteriorated
condition of the declarant, the statement can be recorded by the doctor or by a police
officer. But one condition must be coupled with it that while recording the statement
there shall one or two-person present there as a witness otherwise the Court may find
the statement to be suspicious. Moreover, the statement record by the doctor, later
endorses that the declarant was not in a stable condition and his statement would not
be considered as evidence, rectify by the witness that the deceased was in a fit state
of mind and conscious to make the declaration. It was held in the case of N. Ram v.
State[11] that the medical opinion can not wipe out the direct testimony of an eye
witness which states that the deceased was in a fit mental condition and able to make
a dying declaration.

Recorded by the magistrate

When the deceased statement recorded by the competent magistrate has deemed to
be considered as reliable and attracts the evidentiary value as he presumed to know
how the dying declaration should be recorded and he is a neutral person. Moreover,
the magistrate has empowered to record the dying declaration under 164 of Cr.P.C.

Section 164 Cr. P.C states that SubSection (1) gives power to the magistrate to
record the statement of the dying person, no matter whether he has jurisdiction over
that case or not, and in case where the statement recorded by the magistrate who
has no jurisdiction in that case subsection (6) will apply. Here the word “statement”
does not confine to only the statement by the deceased and witness but also include a
statement of the accused, in order to satisfy himself, but the accused statement will
not amount to a confession.

Subsection (1) states that: any judicial magistrate and metropolitan magistrate shall
have the power to record the dying statement made by the dying person, whether the
magistrate has jurisdiction in that particular case or not, he will be able to record the
state provided under this chapter or by any other law for the time being enforced, or
at the time before the commencement of trial and investigation.
Section 164 provides a warning. Under this provision the magistrate who record the
statement should tell the accused that he has to made only statement which shall not
be amount to confession, but if he did so, then the confession can be used against
him for the purpose of conviction. This is the sine qua non for recording confession.
The other important requirement is that the Magistrate must raised questions from
the wrongdoer to satisfy himself that the confession made by the accused was
voluntary so as to enable him to give the requisite certificate under subsection(4) of
this chapter. The judicial magistrate here tell the accused that he is not bound to
make a confession, but he did not ask the question from the accused in order to
satisfy in question, whether the statement made by the accused is voluntary or not.

In Mahabir Singh v. State of Haryana[12] the Court held that, Where the Magistrate
did not clear the rule that the statement made by the accused should not be amount
to confession, if he does so then it will be used as evidence against him, can not be
considered. The Magistrate must satisfy himself that the statement made by the
accused voluntary, no pressure or force was used on the accused while making the
confession. Any mark of the person of the accused to vitiate the voluntary character
of the confession. When was held not only inadmissible under the section but it could
not be used under the other provision of Indian Evidence Act such as sections 21 &
29.

Language of the statements

As far as the language of the statement is concerned, it should be recorded in the
language of the deceased in which he is fluent or may possible than in Court
language. The court cannot reject the dying statement on the basis of the language in
which it was made. It can be recorded in any language. Even if the dying declaration
is made by the deceased in Urdu, Hindi, Punjabi languages, it was considered that
statement could not be denied on the ground of language in which it was made solely
or on the ground that it was recorded in Urdu. When the statement was given by the
deceased in Urdu and the magistrate recorded it in English than in that case
precaution should be taken while in explaining every statement to the deceased by
another person, it was declared that the statement was the valid dying declaration.

Statements made in different languages

When two dying declaration was recorded in two different languages on is in Marathi
and the other is in Hindi and the deceased were proficient in both the language the
statement could be the basis of conviction as it was held in the case of Amar Singh
Munna Singh Suryavanshi v. State of Maharastra[13].

Points to remember
1. Dying declaration made by the deceased can be recorded in any language.
 2. If the statement was recorded in another language than the one which
magistrate recorded, then precautions should be taken to explain each and
every aspect and phrase.
3. The court cannot deny or discard the dying declaration only on the ground of
language.
In Biju Joseph v. State Of Kerala[14] it was observed by the court that only ground
that the statement of the deceased made was in her own language can not reduce it
value of the dying declaration. It was given by the High Court Of Kerala:

“Presumed that the statement made by the deceased when he was dying recorded in
his language in which he has command or fluent, does not vitiate it value and court
can not denied or rejected on that basis. Judicial magistrate entrusted with the duty
to convert the statement in court language. And such translation process would not
affect the credibility that dying declaration”.

Multiple dying declarations

Supreme Court Of India in concern to multiple dying declarations, it can be
considered upon without corroboration if there is no breakdown of fact in all the dying
declaration. If all the dying declarations are similar to each other and state correctly
the cause of death, and there is no contradiction between the statement it can be
admissible But if the dying declaration is different from each other and there is a
contradiction between them, then court will cross-examine the facts of the case or
can examine the statements of other witnesses to determine the truth and sanctity of
statement regarding the case.

The statement of the deceased should match the facts and circumstances of the case.
It is very important to understand the character of multiple dying declarations. Points
to be considered in multiple dying declarations:

1. There should be regularity in all the dying declaration.

2. If all the dying declaration does not match or say overlap, then the court will
examine the facts of the case with the dying declaration Or examine the
witnesses.
In Kushal Rao v state of Bombay[15] that case Court set the importance rules for
dying declaration and what is the right process or manner to record it. In this case, if
the dying statement made by the deceased. That it should be recorded in the form of
question answer form, shall be endorsed/supported by the doctor that the deceased
was in good mental state, can be recorded by the person who is legally entitled to
record, if there are multiple dying declarations than it should be consistent, so that
the court can rely on it.

The Supreme Court has held that multiple dying declarations can be reliable when it
made without corroboration if consistency is maintained throughout the statement.
Otherwise, the courts would have to cross-examine the statements of other witnesses
to determine the truth in a criminal trial.
Expectations of death is not necessary
Under English Law, the victim should not be under any expectation of death. Evidence
Act has taken this law from English law. If the statement has been made even when
no cause of death had arisen then also the statement will be relevant. It is not
important at all that the statement recorded should be just before the death of the
victim.

In Pakala Narayan Swami v Emperor[16], it was held that the letter given by the
deceased to his wife before going to the place where he was killed was relevant. The
court said that the statement made must be at any rate near death or the
circumstances of the transaction explaining his death is relevant under section 32 of
Evidence Act. In this case, the court stated that dying declaration can be any
statement that explains the cause of death or the circumstances of the transaction
explaining his death. Hence, statements as to any of the circumstances of the
transaction which resulted in the death would be included.

F.I.R as a dying declaration

In a situation where a person dies after, when a F.I.R was lodged and stating that his
life was in danger, it is relevant to be recorded as circumstantial dying declaration.

In the case of Munnu Raja and another v. State of M.P[16] the Supreme Court Of
India observed that statement made by injured person recorded as FIR can be
deemed as dying declaration and such declaration is admissible under Section 32 of
Indian Evidence Act. It was also observed by the court that dying declaration must
not shows the whole incident or narrate the case history. Corroboration is not
necessary in this situation, Dying declaration can be declared as the exclusive
evidence for the purpose of conviction.

If the declarant does not die

When the dying declaration given by the deceased is recorded. But the question
arises that after the dying declaration was recorded and the deceased is still alive,
was the statement holds the same effect. In that situation, the deceased now turned
to be a witness against the accused to narrate what the actual story was. As the
dying declaration itself mentioned the word dying, so it is necessary that there must
be an expectation of death on the part of the declarant.

Criticism of dying declaration doctrine

Since the nineteenth century, critics have questioned the credibility of dying
declarations. In a state court case, the Wisconsin Supreme Court considered the issue
of a dying declaration. The defense pointed out that “this kind of evidence is not
regarded with favor.” The defense argued that several factors could undermine the
reliability of dying declarations.

Physical or mental weakness consequent upon the approach of death, a desire of self-
vindication, or a disposition to impute the responsibility for a wrong to another, as
well as the fact that the declarations are made in the absence of the accused, and
often in response to leading questions and direct suggestions, and with no
opportunity for cross-examination: all these considerations conspire to render such
declarations a dangerous kind of evidence.

Dying Declaration in India

Dying declarations are admissible as evidence in Indian courts if the dying person is
conscious of his or her danger, he or she has given up some hope of recovery, the
death of the dying person is the subject for the changing nature of the dying
declaration, and if the dying person was capable of to justify a sense of accountability
to his or her Maker.

Distinction between Indian and English law

The distinction between English law and Indian law on the subject of dying declaration
has been elaborately dealt in the case of Rajindra Kumara v. State[17] Under English
law, the essentials of a dying declaration are as follows:

1. The declarant should have been in actual danger of death at the time when
they were made the dying declaration.
2. He should have had a full apprehension of his death is near.
3. Death should have ensued.
These conditions must be proved for the satisfaction of the judge before considered it
as a dying declaration than it can be received. Both in England and America, dying
declaration is not admissible as evidence whether any civil cases or in criminal cases;
it is not admissible upon charges other than homicide, or as to homicides other than
that of the declarant.

However, these conditions are not provided in Section-32 Of the Indian Evidence Act.
It is not required for a declarant to be in expectation of actual death while making
such a declaration nor is it restricted in the cases of homicide. Because of this
structure, it becomes increasingly necessary to know that the dying person speaks
the truth because if he does not die than still declaration can be used as evidence
against the accused. Moreover, dying declaration can be considered as relevant
evidence in both criminal and civil proceedings, whenever the cause of his or her
death comes into question.
Requirements of dying declaration
According to section 32 clause (1) of Indian Evidence Act, the requirement of dying
declaration is as follows:

1. The statement made by the deceased may be oral or written. But in some
cases it can be made with sign and gesture depends on the condition of the
deceased
2. The statement must be as:

 Cause of death- when the statement is made by the person as to the cause
of his death or as to any of the circumstances of the transaction which was
the reason for his death not cover all the incident which are not relevant in
order to determine the cause
 Circumstances of the transaction- the statement made by the deceased is
only related to the circumstances of the transaction will result in the death of
the deceased, remoteness or having no nexus which can not be connected
with the transaction have no value.
 Resulted in the death- the deceased statement should have the cause and
circumstances that will clearly reason for his death or ultimately result in
his death.

Pakala Narain Swami v. Emperor Case

The deceased was a man of about 40. He had been a peon in the dewan of Pithapur.
Pakala Narain Swami, the accused, was married to one of the daughters of dewan of
pithapur. After marriage pakalana narain swami and his wife went to live at
Berhampur about 250miles away from pithapur. In the year of 1993, they came back
to pithapur and where they stayed with the dewan. They seemed at that time to have
been in need of money, and during 1936 the wife of the accused borrowed money
from the deceased at various times an amount of Rs. 3,000. On Saturday 18th March
1937, the deceased received a letter from the accused inviting him to come that day
or the next day to Berhampur. The deceased left his house in order to go there and
catch the train of Berhampur. He did not come back. On 23rd March 1937, the body
of the deceased was found in steel trunk in the third class compartment at puri. The
body has been cut into seven portions. The body of the deceased was identified by his
widow. The accused was tried and convicted for murder and was sentenced to death.

During the trial, the widow of the deceased stated before the court that on the day
her husband showed her a letter and said that he was going to Berhampur as the
appellant’s wife had written to him to come and receive payment of his dues.

The lordship of the privy council held that the statement related to the circumstances
of the transaction which resulted in the death of the deceased so it was relevant.
They also held that the statement made by the deceased that he was proceeding to
the spot where he was killed or as to his reason for proceeding or that he was going
to meet him would each of them be circumstances of the transaction. However,
circumstances must have some proximate relation to the actual cause and must be
related to the transaction which resulted in death. For instance, in case of prolonged
poisoning, they may be related to date at the considerable distance from the date of
the actual fatal date. It is not necessary that there should be a known transaction
other than the death of the declarant has ultimately been caused comes into
question. In the present case the cause of death comes into question, the transaction
is one in which the deceased was murdered on 21th march or22nd march, the
statement that he was setting out the place where the accused lived and to meet a
person, the wife of the accused, who lived together with the accused’s appears to be
clear statement as of some transaction which resulted in his death.

Note: This case is important to be discussed here, as earlier in the article it

was stated that the deceased can make a statement by sign and gesture or
there are some circumstances that reflect the cause of the death and
transaction of the situation collateral to it. In that case, the statement made
by the deceased hold strong basis for conviction.

Dying declaration Case laws and landmark Judgments

1. Lakhan v. State of M.P.[18] in this case supreme court provides that,
when the condition is satisfied that the dying declaration made by the
deceased is true and can be relied upon, as the declarant is found to be
conscious and mentally fit while making the statement, and the statement
made by him proven to be voluntarily and no compulsion was there while
making the statement and can be put for the sole basis of conviction. In that
situation there is no need for corroboration is necessary.
In case of multiple dying declarations consists which consist in the form of irregular
interval and contradict each other, dying declaration recorded by the person who is
entitled to record like magistrate then there is no doubt and can be found to be
reliable. But in circumstances where it was observed that the statement made by the
deceased is not voluntarily but due to some force or compulsion, then the court raised
suspicion on that dying declaration and Court should re-examine the statement of
witness and other facts in order to determine the truth.

2. In the case of State of Punjab v. Parveen Kumar[19], the Supreme Court

set forth some measure to test the veracity in the case when there is more
than one dying statement. The court provides that there must be a series of
examinations in order to determine the truth. If the statements provide
different versions and do not couple with given facts, then the court must opt
for other evidence in their record to clarify the things so that truth can be
inferred.
3. In the case of Sudhakar v. State of Madhya Pradesh[20], the Supreme
Court while deciding the issue of multiple dying declarations, which varying
from other statements and have no series related to each other, this will
raise a doubt in the eyes of court to whether the statement should be
believed or not, in order to clear the issue the Court has given some
 directions which help to guide while exercise the judgment by court in such
matters, examined.
The Court put forward the point that when multiple dying declarations made by the
declarant, if found either contradictory or are at variance and having no nexus to each
other to a large extent and narrate another version of the story, then the test of
common reasonableness would be applied while examining which dying declaration is
corroborated by circumstantial evidence. Further, when the dying declaration was
made the condition of the deceased at the time of making of each declaration
concerned, medical report of the deceased, truthfulness of statements made by
deceased, possibility of deceased being tutored, are some of the points which would
guide while exercise of judicial function by court in such matters.

The Supreme Court also observed that the dying declaration is the statement
made when a person is at there bed end, as the word dying declaration itself
signifies its meaning. A person having a serious apprehension of death and
there shall be no chances for his survival. At this point, the court assumed
that whatever the statement made by the declarant is purely true as the man
will never meet his maker with a lie on his lips and person will speak only
truth.

4. Natha Shankar Mahajan v. State of Maharashtra[21] in this case the

supreme court ruled that if there is a doubt about the statement made by
the deceased, in that case, the gain will transfer to the accused. As this is
the correct Law preposition. Moreover on the other was round if the
statement found to be true and reliable ten it can be used solely as the
purpose of the convection.
5. The Supreme Court in the case of Surajdeo Oza v. State of Bihar[22] does
not give an affirmative answer to the question and held that merely because
the dying declaration is a brief statement it is not to be discarded. On the
contrary, the length of the statement itself guarantees the truth.
The Court has to scrutinize the dying declaration carefully and examine each and
every sort of situation and must ensure that the declaration is not the result of
tottering prompting of imagination and the deceased had the opportunity to observe
and identify the accused and was in a fit state while making the dying declaration.

Dying deposition
Dying deposition is almost a dying declaration. The main difference between both is
that the dying deposition is always recorded in the presence of a magistrate. Whereas
dying declaration can be recorded even by a normal person, doctor and by a police
officer.

A deposition is recorded when the lawyer of the accused is present and magistrate
record the dying declaration. But dying declaration has no such conditions, but the
evidentiary value will be more if the statement is recorded by the magistrate.
However, it can be recorded by the doctor or police officer also.
Illustrations
1. A case where the deceased was given the statement to his father that I
inhale the poison because of my heartbreak and the same was conveyed to
the police and father of the deceased also said that the deceased was
conscious and in a fit state of mind and the same was endorsed by the
autopsy report. After that when the police investigate the matter it was
found to be true that the cause of his suicide is the girl who used to aid and
abet him to commit the suicide. Hence the statement recorded by the normal
person(father) has admissible in a court of law. This is the example of dying
declaration.
2. In a case where a woman is burnt by his father-in-law. And the woman was
admitted to the hospital by the neighbour and when the police were informed
about the matter they came to rely on the statement of the deceased but the
doctor tells them that the deceased is not in a position to answer the
question. After 2nd and 3rd day when the woman is in better condition and
subsequently magistrate was available to record the dying statement and the
accused lawyer was also there. The statement is recorded and this is
called dying deposition.
Comparison Between Dyeing & deposition declaration
Basis Dying declaration Dying deposition

Here, the oath is not While here, administering

Oath
administered. oath is important.

But here, the witness can be

Cross- Here, cross-examination is not
cross-examined by the
examination allowed.
lawyer.

The dying declaration can be Whereas, it can be recorded

Recorded by recorded by a normal person, by the magistrate in the
whom doctor, police officer and by presence of accused or by
the magistrate. his lawyer.

There is no such provision of

Applicability It is applicable in India.
dying deposition.

It superior and has more

Value It has less value. value than the dying
declaration.

Identification through dying declaration

The conviction can be based on the statement made by the deceased, and the identity
of the accused must be established by it. It should contain the same parentage and
address of the accused. But if there is no corroborative evidence to prove identity, the
conviction is possible and this was established by the Court in the case of Pritam
Singh v. State of U.P[23]. However, there is no particular form which is dying
declaration identified and admissible as evidence in a court of law in a case the
Supreme Court held that only the Crux is important or relevant to determine what
actually happened. For instance, if someone stabbed a deceased then the crux of this
is, who stabbed him and why, and the rest are the complementary things.

Absence of medical statement of fitness

It is only a rule of caution. Normally, the Court places reliance on the medical
evidence for reaching the conclusion whether the person making the dying declaration
was in a fit state of mind but where the person recording the statement of the
deceased stated that the deceased was in a fit state of mind and conscious, the
medical opinion will not prevail nor can it be said that there being no certificate of the
doctor as to the fitness of the mind of the declarant, the dying declaration is
not acceptable. A certificate from the doctor is essentially the rule of caution. Where
the testimony of the magistrate is to the effect that the declarant was fit to make the
statement, it can be acted upon without there being a certificate of the doctor
provided that the court ultimately held the same to be voluntary and truthful.

When there was no certificate of doctor about the fitness of the deceased making
dying declaration before the investigating officer but the doctor was present at the
time of making dying declaration and thumb-impression of the deceased was attested
by him, holding that there could not have been any attestation of such document was
technically held to be too wrong.

Where the eye-witnesses stated that the deceased was in a fit and conscious state to
make the declaration, the medical opinion will not prevail, nor can it be said that since
there is no certification of the doctor as to the mind of the declarant, the dying
declaration is not acceptable. A dying declaration may be reliable without
obtaining a certificate of endorsement by the doctor.

Statement is not relevant to the cause of the

death
The dying declaration is a statement made by a person to the cause of his death or as
to any of the circumstances of the transaction which resulted in his death and such
details which fall outside the ambit of this are not strictly within the permissible limits
laid down by section 32(1) of the evidence act and unless absolutely necessary to
make the statement coherent or complete should not be included in the statement.
Where the dying declaration is set to be a long written document and tell about the
number of incidents in a narrative form and talk about what happened before the
actual resort, such long statement being more in the nature of first information
reports than recitals of the cause of death or circumstances resulting in it, are likely
to give the impression of their being not genuine or not having made unaided without
prompting.

When the dying declaration made by the deceased is not coupled with the transaction
of consequences which results in the death of the deceased or the statement made
regarding the fact which has no nexus or connection with it or in other words having
no remote reference to the death of the deceased, it would not be admissible under
Indian evidence act.

In the case of Bhairon Singh v. State of M.P.[24] the body of the deceased lady was
found in a well of the village. The cause of the death asphyxia due to drowning. She
was married to accused about 10 years before the death of the incident take place.
The trial court held that the incident took place accidentally. And the presumption of
her dying declaration does not attract section 113-A and 113-B of Indian evidence act
and the accused set free under section 304-B and 306 of the IPC.

But later on, the trial court held the accused guilty under section 498-A of IPC and
section 3 of the dowry prohibition act,1961 and gives the punishment to accused of
rigorous imprisonment for three years along with the fine of Rs. 15000.

Again high court made changes in the judgment and accused convicted under section
498-A of IPC, the changes were the cause of the statement given by her brother that
his sister(deceased) told him that the accused used him to force her as he wanted
that her brother arranged a job for him and also demanded for dowry for her of Rs
1lakh. On the deposition brother of the deceased stated that the accused by putting a
cloth in her mouth(deceased) beating him for dowry.

Medical report
Medical reports are those reports which are provided by the doctor usually in criminal
cases, they are admitted as evidence in a court of law when a doctor provides oral
evidence while taking the oath. The report includes the mental condition, fitness of
the disease whether he is able to give the statement or not. And sometimes forensic
and autopsy reports also clarify that the deceased was saying right in his dying
declaration. For example, there was a case in which the mother of the deceased,
when hearing the cry of her son immediately reached to their room, where the
deceased made the dying declaration in front of his mother that he was in love with
some girl and she left her and due to this he commits the suicide. The time to reach
in his room was estimated by the police in their investigation was about 2 minutes.

Here the question comes that if the mother was really saying the truth about the
declaration as there was no one when the deceased was making the statement, the
absence of medical fitness will remain in the dark. But the autopsy report conferred
that decrease is the condition to survive for 6-8 minutes. So that the mother
statement can be admissible in a court of law. In that perspective the role of medical
report become crucial and if sometimes, if there is a plotting in dying declaration
(which rarely happens as the law presumed that no one meet his maker with a lie on
his lips) the report may contract the statement which creates the sense of suspicion
and the statement made by the deceased can not be regarded as the sole base for
the conviction. But the medical report did not discard the statement on the basis of
the report in which it was stated that the nature of injuries sustained by the
deceased. Moreover, if the medical report states the fitness of the deceased while
taking the statement of the deceased by magistrate then there is no need for a
separate test of fitness by the magistrate.

Doctor statement
It is necessary that the dying declaration recorded by a magistrate should be
endorsed by the doctor, as it gains more evidentiary value. But there are many
situations when the statement is recorded by the doctor as due to circumstantial
reasons and unavailability of magistrate. So the statement of doctor is regarded to be
true and being a doctor, he understands about the condition of the deceased whether
the deceased is able to make dying declaration or not. In the case where a burnt wife
had been admitted in the hospital and the doctor who operates her, disclose the fact
that the husband of her pour kerosene oil and set ablaze to her. At this point, the
doctor records the statement point by point. Later on, it was found that records are
also in favour and did not contradict the statement made by the deceased. The court
held that the doctor has no other motive to make a false statement and the value of
statement recorded by the doctor is admissible. But the statement made by the
doctor is proven more relevant when there is an eye witness in order to endorse that
particular dying declaration.

Dowry death, wife burning

When there is a situation after the three or four months of the marriage, where the
wife is burnt by her husband or husband relatives for dowry purposes or for monetary
gain. And in relation to this, she expressing the danger and threat to her life is
somehow the expression which depicts the circumstance which leads to the death of
the deceased. But when there is a contradiction found in the statement by the
deceased, it would raise the presumption of suspicion and decrease its value as
evidence. In case where wife by way of plotting set ablaze to her and when she was
admitted to hospital, where she made the statement that her husband set on fire to
her after some point of time it was discovered in the police investigation that the
children of the deceased state that their father will never do this kind of act,
moreover they also said that the deceased was tried for committing suicide earlier.
And police also found that the relation between the husband and wife is not good. And
deceased also think that her husband had some extramarital affair. All the facts show
that there was a motive to lie. So the court held the dying declaration to be falsehood
and set aside the conviction. And the court has reason to believe, as the person who
took the deceased to the hospital was none other than her husband.

Evidentiary value of dying declaration

In the case of K.R Reddy v. Public Prosecutor[25], it was observed by the court that
the evidentiary value of dying declaration made by the deceased:

There is no doubt that the dying declaration is admissible in court under section 32(1)
of the Indian Evidence Act. and there is no compulsion while making of dying
declaration to take an oath, but the truth of the statement can be determined by the
cross-examination. The court has to ascertain necessary measures to check the
sanctity of the statement made by the deceased. As in India law, it was presumed
that the man who is going to die, not meet his maker with a lie on his lips this is
because, when the person is at his bed end all the desire and greed of person come to
an end so probably there is no motive to lie. After that, the court must be satisfied
with the condition that the deceased must be in a fit state of mind while making the
statement. After all the measures assured by the court and satisfied that the
statement is made voluntarily and true then it will be sufficient to accept the
statement to finding conviction even without the corroboration.

In Khushal Rao v. State of Bombay[26] Apex Court laid down the following principles
related to dying declaration :

(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated. A true & voluntary declaration needs no
corroboration.

(ii) A dying declaration is not a weaker kind of evidence than any other piece of
evidence;

(iii) Each case must be determined on its own facts keeping in view the circumstances
in which the dying declaration was made.

(iv) A dying declaration stands on the same footing as other pieces of evidence & has
to be judged in the light of surrounding circumstances & with reference to the
principle governing the weight of evidence.

(v) A dying declaration which has been recorded by a competent Magistrate in the
proper manner, that is to say, in the form of questions and answers, &, as far as
practicable in the words of the maker of the declaration stands on a much higher
footing than a dying declaration which depends upon oral testimony which may suffer
from all the infirmities of human memory & human character.

Exception of dying declaration

There are many circumstances in which the statement made by the dying person is
not admissible in a court of law. These conditions are as follows:

1. If there is no question for consideration about the cause of death of the

deceased. For example, if a person in his declaration state anything which is
not remote or having a connection with the cause of death than the
statement is not relevant and hence not be admissible.
2. The declarant must be competent to give a dying declaration, if the
declaration is made by the child then the statement will not be admissible in
court as it was observed in case of Amar Singh v. State of M.P[27] that
without the proof of mental fitness and physical fitness the statement would
not be considered reliable.
3. The statement which is inconsistent has no value and can not be considered
as evidentiary in nature.
 4. The statement made by the deceased should be free from any influential
pressure and should be made spontaneous.
5. It is perfectly allowed to the court if they reject any untrue statement which
contradicting in nature.
6. If the statement is incomplete in the sense which means it can not answer
the relevant questions which are necessary to found guilty, and on the
counterpart, statement deliver nothing so it will not be deemed to consider.
7. Doctor’s opinion and the medical certificate should with the statement and
support that the deceased is capable of understanding what statement he
makes.
8. If the statement is not according to the prosecution. In this regard, the
following points should be taken into consideration by the apex court.

 While making the statement deceased must be in fit mind of the state.
 Should be recorded by the magistrate or by a police officer and person in a
case when deceased was so precarious
 A dying declaration should be recorded in question-answer form and written
in words of the persons exactly who gives the statement.

Dying Declaration should be free and spontaneous

Dying declaration due to compulsion or pressure not be relied upon whereas dying
declaration free from any biased relied upon. As it was held in the case of Krishna
Lal v. Jagun Nath that the wife was burnt by the husbands-in-law and in her dying
declaration she held that she was not burnt by her husbands-in-law and she was
believed.

Conclusion
The dying declaration is not specifically mentioned in our penal law under Section
32(1) of IPC. it is the statement made by the person who is going to die, and that
statement will be considered as evidence in court, how his death caused and who is
the mugger. There are many conditions that relied upon the dying declaration that it
should be in an adequate manner as dying declaration is the weapon who convicted
the accused and stood as strong evidence. The admissibility of dying declaration
accepted in our Indian court because the law presumes that in Leterm Mortem i.e in
his last parting words the man will never lie as anyone will meet his maker with a lie
on his lips. This is because a man who is going to die, end with all his needs and
wants and his interest is no more passionate for self deeds so he seldom lies.

However, the dying declaration is found to be maliciously made then the court has the
right to reject the statement. Or there are other situations and circumstances which
coupled with dying declaration for its admissibility which discussed above.
Q 3 short note-

May presume and Shall Presume

Introduction
Presumption generally means a process of ascertaining few facts on the basis of
possibility or it is the consequence of some acts in general which strengthen the
possibility and when such possibility has great substantiate value then generally facts
can be ascertained. A presumption in law means inferences which are concluded by
the court with respect to the existence of certain facts. The inferences can either be
affirmative or negative drawn from circumstance by using a process of best probable
reasoning of such circumstances. The basic rule of presumption is when one fact of
the case or circumstances are considered as primary facts and if they are proving the
other facts related to it, then the facts can be presumed as if they are proved until
disproved. Section 114 of Indian Evidence Act specifically deals with the concept that
‘the court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of (a) natural events, (b) human
conduct, and (c) public and private business, in their relation to the facts of the
particular case’.

India Code:

Section Details. "May presume". -- Whenever it is provided by this Act that the Court
may presume a fact, it may either regard such fact as proved, unless and until it is
disproved, or may call for proof of it. "Shall presume".

Difference between May Presume Shall Presume and Conclusive

proof
May presume is a condition when the court enjoys its discretion power to presume
any/ certain/ few facts and recognize it either proved or may ask for corroborative
evidence to confirm or reconfirm the presumption set by the court in its discretion.
Section 4 of the Indian Evidence Act provides that a fact or a group of facts may be
regarded as proved, until and unless they are disapproved. The concept is defined
under Section 4 of this act that ‘May Presume’ deals with rebuttable presumption and
is not a branch of jurisprudence.

Whereas, shall presume denotes a strong assertion or intention to determine any

fact.Section 4 of Indian evidence Act explains the principle of ‘Shall Presume’ that the
court does not have any discretionary power in the course of presumption of ‘Shall
Presume’, rather the court has presumed facts or groups of facts and regard them as
if they are proved until they are disproved by the other party. Section 4 of the Indian
Evidence Act explains that the concept of ‘Shall Presume’ may also be
called ‘Presumption of Law’ or ‘Artificial Presumption’ or ‘Obligatory Presumption’ or
‘Rebuttable Presumption of Law’ and tells that it is a branch of jurisprudence.

While, Conclusive Presumptions/ Proofs, this can be considered as one of the

strongest presumptions a court may assume but at the same time the presumptions
are not completely based on logic rather court believes that such presumptions are
for the welfare or upbringing of the society. With regards to Conclusive proofs, the
law has absolute power and shall not allow any proofs contrary to the presumption
which means if the facts presumed under conclusive proofs cannot be challenged
even if the presumption is challenged on the basis of probative evidence. This is the
strongest kind of all the existing presumptions whereas Section 41, 112 and 113 of
the Evidence Act and S. 82 of the Indian Penal Code are one of the most important
provisions related to the irrebuttable form of presumptions or Conclusive
Presumption.

The general definition of Conclusive Proof is a condition when one fact is established,
then the other facts or conditions become conclusive proof of another as declared by
this Act. The Court in its consideration shall regard all other facts to be proved, only if
one fact of the case is proven without any reasonable doubt. And if the other facts are
proved on the basis of proving of one fact that the court shall not allow any evidence
contrary to other facts which are presumed as conclusive proofs.

Illustration- A and B married on June 1 and the husband left home to his work for 6
months later he discovered that her wife is pregnant he divorced the wife and
challenges that he is not liable for paying damages either to his wife or to his
illegitimate son. And also explains that he never consumed his marriage as just after
one day of marriage he left his home for his work. But in this case, the court will
conclusively presumed that the son born out of his wife is legitimate because he was
with his wife for at least 1 day and shall not allow any proof contrary to the conclusive
proof even if he provides probative evidence.

General Classification of Presumption

The traditional approach of common law system has classified presumption only under
two categories that are a presumption of law and presumption of facts but to avoid
any ambiguity in deciding any case the Indian legal system has adopted the third
classification that is mixed presumptions which includes both the aspects of facts as
well as law. Hence the existing legal system has three types of presumptions which
are as follows:

1) Presumption of Facts- Presumptions of facts are those inferences that are

naturally and reasonably concluded on the basis of observations and circumstances in
the course of basic human conduct. These are also known as material or natural
presumptions. Natural Presumptions are basically instances of circumstantial evidence
as it is believed that it is very good to act in the course of reasoning where much
inferences can be easily concluded from other evidence otherwise it will keep much
ambiguity on the legal system because it will be much more difficult because of the
legal system to prove every fact to capture the offenders or law conflicted member of
the society. Natural Presumptions are generally rebuttable in nature.

There are few provisions that are directly expressing about Natural Presumptions such
as Section 86- 88, Section 90, Section 113A, Section 113 B of Indian Evidence Act.
Where Section 113A & 113 B are one of the most important provisions of
presumptions under this Act, whereas Section 86 talk about certified copies of foreign
judicial records, Section 87 expresses presumption of Books, Maps and Charts,
Section 88 deals with presumption related to Telegraphic Messages, Section 90 deals
with documents aged thirty years old, whereas Section 113 A deals with hardcore
crime that is Presumption as to abatement of suicide by a married women and
Section 113 B deals with the presumption as to dowry death. Under the Presumptions
of Facts, the concept of ‘shall presume’ is utilized. And by the concept, the court will
presume that a fact ascertained before them are proven facts until and unless they
are proven disproved by the accused. The concept of ‘shall presume’ expresses that
the courts are bound to maintain and recognise some facts as proven by making a
mandatory presumption and the court has to consider them as completely proven
until such presumption are challenged and disapproved. When these presumptions
are disproved by the challenging party then the court has no discretion on
maintaining such presumptions.