BEFORE THE HON’BLE HIGH COURT OF ORISSA

SR. NO................./2020

IN THE MATTER OF:

RAJESH................................................................APPELLANT

-VERSUS-

STATE OF ORISSA.....................................RESPONDENT

UPON SUBMISSION TO THE HON’BLE HIGH COURT OF ORISSA

UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE

COUNSEL APPEARING ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

DESCRIPTION PAGE NO.

1. LIST OF ABBREVIATIONS 6

2. INDEX OF AUTHORITIES 7

3. STATEMENT OF JURISDICTION 8

4. STATEMENT OF FACTS 9

5. ISSUES INVOLVED 10

6. ARGUMENT ADVANCED 11

7. PRAYER 12

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 LIST OF ABREVIATION

AIR All India Reporter

Anr. Another
Cr, P.c. Code of Criminal Procedure
H.C High Court
IPC Indian Penal Code
Ors. Others
SC Supreme Court
Sec Section
V Versus
SCC Supreme Court Case
& And

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 INDEX OF AUTHORTIES

CASE REFERED:
1. Pakala Narayana Swain Vs. Emperor

2. SULTAN & ANR V STATE OF RAJASTAN,1978

3. A. P. vs. R. R. Punnaiah, (1976) 4 S. C. C. 382)

4. Triveniben v. State of Gujarat and Ors, 1989

5. Neeraj Grover murder case

6. Queen-Empress v. Abdullah]
7. Nirbhaya’s Rape Case
8. Amar Singh v. State Of Rajasthan.
9. Uka Ram v. State of Rajasthan
10. Lakhan v. State of M.P.
11. Khushal Rao v. State of Bombay

Books:

1. Indian Penal Code, 1860 by S.N. Mishra

2. Indian Penal Code, 1860 by K.D. Gaur
3. Indian Penal Code, 1860 by Ratanial & Dhirajlal
4. Indian Penal Code, Plilai
5. The Indian Evidence Act, Batuklal
6. Code of Criminal Procedure, 1973 by Dr. N.V. Paranjape
7. Criminal Procedure, (5th Ed.2011) by R.V. Kelkar
8. Criminal Procedure Code. S.N. Mishra
9. Criminal Major Acts by Justice Khastgir

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STATUTES:
1. The Code of Criminal Procedure, 1973 (Act No.2 of 1974)
2. The Indian Penal Code, 1860 (Act No. XLV of 1860)
3. The Indian Evidence Act, 1872 [Act No. 1 of 1872]

WEBSITES:

1. www.manupatra.com
2. www.indiankanoon.com
3. www.ssconline.com

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 STATEMENT OF JURISDICTION

The Appellant has approach this Hon’ble High Court of Orissa under section 374(2) r/w
sec. 386(b) (i) of the Code of Criminal Procedure, 1973 against the order of conviction
and sentence of rigorous imprisonment for 10 year of the learned Session Court under
section 302 of the Indian Penal Code, 1860. The Counsel for the Appellant humbly
submits this memorandum of appeal before this Hon’ble High Court of Orissa.

The Respondent STATE (Govt. Of Orissa) humbly submits to the jurisdiction of the
Hon’ble Court which has been invoked by the Appellant. However, the Respondent
reserves the right to challenge the same.

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 STATEMENT OF FACTS

1. Rajesh stands accused of murdering his business partner, Ajay, in a

heated argument over financial discrepancies in their joint venture.

2. Before succumbing to his injuries, Ajay managed to utter a few words

implicating Rajesh as his assailant. Ajay’s statement was recorded by
a magistrate at the hospital just hours before his demise.

3. Several witnesses present at the scene of the crime claim to have heard
Rajesh making incriminating statements immediately after the altercation

with Ajay. These witnesses assert that Rajesh confessed to the murder and

expressed no remorse. During police interrogation, Rajesh confessed to the

crime.

4. However, he later retracted his confession, alleging coercion by the

investigating officers.

5. Forensic experts analyzed the crime scene and concluded that the nature
of the injuries sustained by Ajay was consistent with the weapon recovered
from Rajesh’s possession. Additionally, the forensic report suggests that
Rajesh’s clothing bore traces of the victim’s blood.

6. The defense argues that Ajay’s statement should be deemed

inadmissible as a dying declaration due to inconsistencies and the
possibility of undue influence by external factors.

7. The defense also challenges the reliability of the res gestae statements,
claiming that they are hearsay and lack corroboration. They even assert
that his confession was extracted under duress and is therefore
unreliable.

8. They move to have it declared inadmissible. The validity of the forensic

evidence is also questioned, suggesting that it was mishandled and may
not conclusively link Rajesh to the crime.

9. Rajesh is, nevertheless, convicted by the Trial court and given a sentence
for life.

10. Rajesh has now filed an appeal.

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 ISSUES INVOLVED

ISSUE I

WHETHER THE APPELLANT CAN BE PROSECUTED UNDER SECTION

302 OF I.PC,1860?

ISSUE II

WHETHER THE STATEMENT BE CONSIDERED AS A DYING

DECLARATION?

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 SUMMARY OF ARGUMENTS

ISSUE I;WHETHER THE APPELLANT CAN BE PROSECUTED UNDER

SECTION 302 OF I.PC,1860?

Yes, the appellant can be prosecuted under section 302 of IPC,1860.Section 302 of the Indian
Penal Code talks about the punishment of the offender who is guilty of committing murder.
The accused will be tried under this section. At the final stage of the proceeding, if the accused
is proven guilty of the crime, he is given punishment as prescribed in Section 302. This Section
states that whoever has committed murder shall be punished with either imprisonment for life
or the death penalty along with a fine, depending upon the seriousness of the crime. The
intention and motive of the accused are important factors in murder cases.

ISSUE II;WHETHER THE STATEMENT BE CONSIDERED AS A DYING

DECLARATION?
Yes, the statement of Rameswar to his wife Lucy id admissible as a dying declaration under the
law. Section-32(1) of Indian Evidence Act, 1872, defines dying declaration as a statement
written or verbal of relevant facts made by a person, who is dead. It is the statement of a
person who had died explaining the circumstances of his death.The general rule under Section
60 of the Act is that all oral evidence must be direct - he heard it, saw it or perceived it

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e
 ARGUMENTS ADVANCED

1. WHETHER THE APPELLANT CAN BE PROSECUTED UNDER

SECTION 302 OF I.PC,1860.

It is humbly contended that the Hon’ble Session Court correctly held the Appellant as guilty
of murder of Rameswar under section 302 of IPC. Section 300, IPC gives the definition of
Murder and enumerates the ingredients of the offences.

Section 299 and Section 300 of Indian Penal Code deal with murder. All murders are culpable
homicides but all culpable homicides are not murders. Culpable Homicide is genus and murder
is its species, thus, murder is a culpable homicide but all culpable homicide are not murder.

The word homicide is derived from Latin where homo means man while the meaning of cide is
I cut. Thus, the killing of a man by a man is the meaning of homicide. Culpable homicide is
punishable by law. Homicide can be lawful or unlawful. Culpable homicide is further divided
into two categories:

 Culpable homicide amounting to murder.

 Culpable homicide not amounting to murder.

Murder (Section 300)

Murder is defined under Section 300 of the Indian Penal Code. According to this Act, culpable
homicide is considered as murder if:

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  The act is committed with an intention to cause death.
 The act is done with the intention of causing such bodily injury which the offender
has knowledge that it would result in death.
 The person has the knowledge that his act is dangerous and would cause death or
bodily injury but still commits the act, this would amount to murder.

Elements of Murder
For the courts to find someone guilty of murder, five elements must be present. These elements
are mens rea, actus reus, concurrence, causation, and harm. Just like ingredients in a recipe,
all of these elements must be present, or the act of killing cannot be classified as murder. Leave
one element out of the equation, and it may still be a homicide, but it cannot be tried in a
United States court as murder. Without proof of mens rea, actus reus, concurrence, causation,
and harm, a homicide cannot be considered a murder. The following list explores these
elements:

 Mens rea, or criminal intent, must be present. For a homicide to be murder, there must
be the intent to kill. If there is no intent to cause harm to the other party, the act cannot
be classified as murder.

In this case there was an intention of causing death of Rameswar ,so Badal bought the iron
box, beforehand.

 Actus reus is another element and means that the act was purposeful. The person
committing the murder did so on purpose and made the conscious decision to act in
such a manner. Actus reus can be the act of killing itself or a purposeful failure to act
that results in the killing. Whether or not the failure to act directly caused the death, it
did not happen by accident.

Yes, the act of the appellant ,ie, Badal Mehta has directly caused the death of Rameswar,since
butched him into 7 pieces.

 Concurrence means that the actual act of killing and the intent to kill must take place
simultaneously; this must also be present. If one party intends to kill another and then
changes one's mind, concurrence is not present if the other party ends up being killed.
The intent and the act must occur at the same time.

This element of muder is also being satisfied in the light of this case.

 Causation is another element for a homicide to be considered murder. The actual

actions of the person committing harm must result in or directly contribute to the death
in question.

Since, Badal Mehta has cut Rameswar into 7 pieces, this is directly caused his death.

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  Harm is the final element. The intent to kill and the actual act of killing must result in
the harm committed. If there is no harm, there is no murder. Person A may wish to kill
or even plan to kill Person B, but without actually killing or acting on those plans, there
is no harm.There is harm present in this case.

Ingredients of Murder

 Causing death: There should be an intention of causing death,

 Doing an act: There should be an intention to cause such bodily injury that is likely
to cause death, or
 The act must be done: with the knowledge that the act is likely to cause the death
of another.

Illustrations

 A shoots W with an intention of killing him. As a result, W dies in that consequence,

murder is committed by A.
 D intentionally gives a sword-cut to R that was sufficient to cause the death of
anyone in the ordinary course of nature. As a consequence, R dies. Here, D is guilty
of murder though he didn’t intend to cause R’s death.

Culpable homicide (Section 299)

Culpable homicide is covered under Section 299 of the Indian Penal Code. Culpable homicide
means the act done by a person which causes the death of another with an intention of causing
death or causing such bodily injury that is likely to cause death, or he has knowledge that the
act committed by him is likely to cause death, is said to commit the offence of Culpable
homicide.

Illustration

 X induces Y to put the fire at the place having the knowledge that Z was sitting
behind a covered area. Here, X is liable for the offence of culpable homicide, as he
had prior knowledge that Z was present in that area and his actions will lead to Z’s
death. Here, intention makes X liable to culpable homicide.
 Y is diagnosed with a terminal illness and to live from day to day he needs certain
drugs. Z confines Y in a room and prevents him from taking his medication. Here, Z
is guilty of culpable homicide.

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The difference between murder and culpable homicide is intention. If the intention is present
the crime is said to be committed under Section 300 of IPC. If the intention is absent, then the
crime is dealt under section 300 of IPC.

Exceptions to Section 300 of IPC where culpable homicide is not considered as murder

Sudden and grave provocation

If the offender is deprived of the power of self-control due to sudden and grave provocation,
and his act causes the death of the person who provoked or death of any other person by
accident or mistake.

This exception is subject to a certain proviso, that is:

 That the provocation is not sought or is voluntarily provoked by the offender to be

used as an excuse for killing or causing any harm to the person.
 That the provocation is not given by anything that is done in obedience to the law, or
by a public servant while exercising the powers lawfully of a public servant.
 That the provocation is not done while doing any lawful exercise of the right of
private defence.

Illustration

A is given grave and sudden provocation by C. A fires at C as a result of this provocation. A

didn’t intend or have knowledge that his act is likely to kill C, who was out of A’s sight. A kills
C. A is not liable to murder but is liable to culpable homicide.

SULTAN & ANR V STATE OF RAJASTAN,1978

The court held, in this case, that the infidelity of a wife cannot cause sudden provocation

the reason being the seed of doubts must have been planted since a long time.

But, in this case there has not been any grave & sudden provocation. Badal Mehta , the accused
made a preplan to kill Rameswar because of his affair with the wife of the accused.

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When the person exceeds his right to private defence

Where the act is committed to defend them from further harm. If the accused intentionally
exceeds his right to private defence, then he is liable to murder. If it is unintentional, then the
accused will be liable to culpable homicide not amounting to murder.

Illustration

 X attempts to flog Y, not in a manner to cause grievous hurt to Y. A pistol is drawn

out by Y, X persists the assault. Y believes that he had no way to prevent himself
from being flogged by X, Y fires at X. X is liable to culpable homicide not
amounting to murder.

There is no question of private defence, because , the intention of the accused was to soley kill
Rameswar.

Culpable homicide in case of Public Servant

The act is done by a public servant who is acting to promote public justice. If the public servant
commits an act which is necessary to discharge his duty as is done in good faith and he
believes it to be lawful.

Illustration

 If the police officer goes to arrest a person, the person tries to run away and during
that incident, if the police officer shoots the person, the police officer will not be
guilty of murder.

Sudden Fight

The sudden fight is when the fight is unexpected or premeditated. Both the parties don’t have
any intention to kill or cause the death of another. The fact that which party had assaulted or
offered a provocation first is not important.

Consent

If the act is committed with the consent of the victim. The consent should be unconditional,
unequivocal and without any sort of reservation.

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Illustration

 A instigated F who was under 18 years of age, to commit suicide. F was incapable
of giving consent to his own death. Therefore, A is guilty of murder.
 X killed his stepfather Y, who was old and infirm. X killed Y with his consent. This
was punishable under Section 304.
Section 302 of the Indian Penal Code provides for the punishment of murder. According to this
section, whoever commits murder is punished with the following punishments:

 Death;
 Life imprisonment;
 The guilty will also have to pay a fine.

The punishment under section 302 of the IPC is given below for your type:
Death Penalty
Death penalty is a legal process whereby a person is sentenced to death by the state as a
punishment for a heinous crime. In India, the death penalty is given for rare cases. The criteria
for a crime to be a rarest case has not been defined. According to data from Amnesty
International, at least 100 people were executed (but not executed) in 2007, 40 in 2006, 77 in
2005, 23 in 2002 and 33 in 2001.

In December 2007, India voted against a United Nations General Assembly resolution to ban
the death penalty. In November 2012, India again upheld its stance on capital punishment by
voting against a draft resolution of the United Nations General Assembly and called for an end
to the institution of capital punishment globally.

In the light of the above discussion, it is necessary to elaborate on the following two
points:
Meaning of the expression beyond reasonable doubt
It must be a genuine suspicion and a reasonable suspicion to stand in the manner of a crime
of suspicion. If the data leaves the mind of the trial judge in doubt, the decision must be
agreed to by the party. If the mind of the Prosecution Tribunal is equally balanced as to
whether the accused is guilty or not, it is its duty to acquit the accused.
The phrase rare of the rarest is yet to be defined, while the concern for human life, the
norms of a civilized society, and the need to reform the offender have attracted the attention
of courts. The death penalty is based on the action of the offender rather than the crime. The
principle of proportionality of punishment to crime, victim, and offender is the foremost
concern of the courts.

Life imprisonment
There are three types of imprisonment, solitary, rigorous and simple imprisonment. Life
imprisonment means that the person is imprisoned for his life. Section 53 of the Indian

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Penal Code provides that there may be certain types of punishment where imprisonment for
life is also an accepted form of punishment. In 1955, the sentence of life imprisonment was
replaced with life imprisonment. According to section 302, life imprisonment is also
punishable with murder. Life imprisonment is not a violent punishment like the death
penalty, but it still affects the accused and the society.

Fine
A person charged with murder may also be liable to pay fine along with punishment as
directed by the court. The quantum of fine to be paid by the convict will depend on the
discretion of the court. The court may consider the manner in which the murder was
committed and after due diligence shall pay the exact amount of fine to be paid by the
accused.

What is the difference between murder and homicide?

The intention behind this act is seen thin line. All murders are guilty houses but the opposite
is not true. Ever since the Indian Penal Code was enacted, the distinction as to which case
would fall under which category is a perennial question with which courts are often faced.
On a plain reading of the relevant provisions of the Code, it appears that the given cases can
easily be classified into two categories, but when it comes to the actual application, courts
often face this dilemma.

This confusion often comes to the fore when it is difficult to discern from the evidence
whether the intention was merely to cause bodily injury which would not constitute an
offense of murder or whether there was a clear intention to murder the victim to make a
clear case of the offence. The killing. The most confusing aspect is 'intent' as in both the
provisions intention is the cause of death.

Therefore, you have to consider the degree of intent of the perpetrators. If the person is
killed in cold-blooded or with a plan it is murder because the intention to kill is in a high
degree and not out of sudden anger or provocation. On the other hand, if the victim is killed
without prior planning, in a sudden fight, or in a sudden rage due to one's provocation or
instability, then such death is called culpable homicide. Therefore, whether the act was
committed, is he guilty of murder or murder is a question of fact.

A. P. vs. R. R. Punnaiah, (1976) 4 S. C. C. 382), the distinction between the two was
clearly laid out by Sarkaria:
In the scheme of the penal code, 'homogeneous murder' is more. Murder is 'its specialty'.
All 'murder' is 'guilty murder', but not vice versa. Generally speaking the 'special features
of manslaughter' of 'guilty of murder' guilty of murder does not amount to murder. For the
purpose of fixing the sentence, proportionately. The gravity of this common offence, the
IPC recognizes practically three degrees of guilty homeopathy.

The first is what may be called culpable homicide of the first degree, this being the most
serious form of culpable homicide which is defined in section 300 as 'murder'. The other

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 may be called a 'person guilty of second degree'. It is punishable under the first part of
section 304. Then, there is the 'criminal house of the third degree'. This is the minimum
homicide type of suicide and the punishment provided. For this is also the lowest
punishment provided for all the three grades, punishable under Part II of Section 304.

Triveniben v. State of Gujarat and Ors, 1989

In this case, the appellant was given a death sentence. He was the main accused for conspiring
and by impersonating a customs officer had murdered several persons, by abducting under the
guise of interrogating officer in order to rob and then murder them. For eight years the accused
was kept in solitary confinement. The appeal was that Article 21 was violated as there was a
delay in execution.

It was held that the sentence imposed should be carried out under procedure established by law.
If there is a prolonged delay irrespective of the cause in carrying out the execution, it has a
dehumanizing effect, which violates Article 21 by unjustly depriving a person of his life and
liberty.

Neeraj Grover murder case

This case received a lot of attention due to how fatal it was. His body was firstly chopped into
pieces and then later stuffed in three garbage bags and put on fire in the forest.Neeraj’s friend
Maria Susairaj had filed a missing complaint in the police station. She was later found to be
involved in the killing. It was discovered that Maria’s boyfriend in a fit of rage had killed
Neeraj suspecting that Maria was having an affair with Neeraj.

Pakala Narain Swamy v. Emperor[3].

It was 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.

Circumstantial Evidence
It is a well settled principle that where the case is mainly based circumstantial evidence, the
court must satisfy itself that various circumstances in the chain of evidence should be
established clearly and that the completed chain must be such as to rule out a reasonable
likelihood of the innocence of the accused.

It is the humble contention of the Respondent that the physical act of murdering Rameswar
by giving blows to him and cut into seven pieces.

It is humbly contended by the Respondent that the intention of the accuse of murdering The
Deceased had been established by establishing a chain of circumstantial evidence.

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ISSUE II;WHETHER THE STATEMENT BE CONSIDERED AS A DYING
DECLARATION?

Yes, the statement of Rameswar to his wife Lucy id admissible as a dying declaration under the
law. Section-32(1) of Indian Evidence Act, 1872, defines dying declaration as a statement
written or verbal of relevant facts made by a person, who is dead. It is the statement of a
person who had died explaining the circumstances of his death.The general rule under Section
60 of the Act is that all oral evidence must be direct - he heard it, saw it or perceived it

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.

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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

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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 . 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

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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.

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. 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.

Here, in this case, the declarant Rameswar was totally fine while declaring his wife Lucy that he is
going to meet Badal to recollect his debt, because if he were mentally unfit then he would definitely
have lost his government job of Asst. Station Master in the Railway Department of 'NELORE
RAILWAY STATION'.

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

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recorded by him is considered more evidential rather than statement recorded by the doctor, police
officer and by the normal person.

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.

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

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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.

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

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.

Lakhan v. State of M.P.

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.

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IKhushal Rao v. State of Bombay

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.

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 PRAYER

Whether, in light of the issues raised, argument advanced and

authorities cited, may this Hon’ble Court be pleased to:

1. Declare and adjudge that the Appellant guilty of murdering Rameswar.

2. Uphold the conviction of the Hon’ble Session Court.

AND/OR
Pass any other order, as it deems fit, in light of justice, equity and
good conscience.
All of which is most humbly and respectfully submitted.

Place: S/d:.......................
Date:

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PUBLIC PROSECUTOR

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