📖 Book 24 - Chapter 357
“Law Master’s Publication”  
‘Dying Declaration’  
Prof. S. D. Bhosale  
58  
(..7..)  
DYING DECLARATION  
Statement by persons who cannot be called as witnesses (Ss.32 and 33)  
QUESTION BANK  
1.  
What is a dying declaration? Enumerate the grounds on which dying  
declarations are admitted in Evidence.  
2.  
3.  
What is a dying declaration? How it is recorded? What is its judicial value?  
What is a dying declaration? Evaluate evidentially the significance of the  
dying declaration.  
SYNOPSIS  
Introduction: -  
I.  
STATEMENTS BY PERSONS WHO CAN NOT BE CALLED AS  
WITNESSES (SS.32, 33, AND S.158): -  
DYING DECLARATION (S.32(1)): -  
1)  
A)  
Reasons for the admissibility of dying declaration: -  
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i)  
Necessity: -  
Presumption: -  
ii)  
B)  
Conditions of admissibility: -  
1. A person making a statement must have died: -  
2. Injuries must have caused the death: -  
3. As to the cause of his death or circumstances resulting in his death.  
4. Cause of death must be in question: -  
5. Declaring must be in a fit condition to make a statement: -  
6. The declaration must be complete: -  
The distinction between English and Indian Law: -  
1. Civil / Criminal: -  
C)  
D)  
2. The expectation of death: -  
3. Competency of Declarant: -  
Evidentiary value of dying declaration: -  
Dying declaration to be reliable following conditions are to be fulfilled –  
***  
2)  
3)  
4)  
5)  
STATEMENT MADE IN THE COURSE OF BUSINESS (S.32(2)): -  
***  
STATEMENTS AGAINST THE INTEREST (CL.3): -  
***  
OPINION AS TO PUBLIC RIGHT OR CUSTOM (CL.4): -  
***  
STATEMENT RELATING TO THE EXISTENCE OF A RELATIONSHIP  
(CL.5): -  
***  
6)  
7)  
8)  
STATEMENT IN WILL OR DEED RELATING TO FAMILY AFFAIRS  
(CL.6): -  
***  
DOCUMENT  
STATEMENT  
MADE  
IN  
A
RELATING  
TO  
TRANSACTIONS (CL.7): -  
***  
STATEMENTS BY SEVERAL PERSONS EXPRESSING FEELING  
RELEVANT TO THE MATTERS IN QUESTION (CL.8): -  
Introduction: -  
Ss. 32 and 33 deal with the relevancy of statements made by persons who  
cannot be called witnesses. S. 60 of the Evidence Act insists that oral evidence  
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must be direct in all cases. In other words, hearsay evidence is no evidence (Refer  
to a topic on direct and hearsay evidence). However, S. 32 is an exception to the  
above rule contained in S. 60.  
I.  
STATEMENTS BY PERSONS WHO CAN NOT BE CALLED AS  
WITNESSES (SS.32, 33 AND S.158): -  
Statements written or verbal of relevant facts made by a person who –  
a) is dead, or  
b) cannot be found, or  
c) has become incapable of giving evidence or  
d) cannot be produced without unreasonable delay or expenses  
-
are themselves relevant in the following cases –  
1)  
DYING DECLARATION (S.32 (1)): -  
a) When a statement is made by a person as to-  
(i)  
the cause of his death, or  
the circumstances of the transaction that resulted in his death.  
(ii)  
b) When the cause of his death is in question – such statements are relevant.  
c) Whether a person who made them was or was not, at the time when they were  
made under an exception of death, and  
d) Whatever may be the nature of the proceedings in which the cause of his death  
comes into question.  
Illustration: -  
1. The question is whether A was murdered by B or A died of injuries received in  
a transaction in the course of which she was ravished; the question is whether  
she was ravished by B; or  
2. The question is whether A was killed by B under such circumstances that a suit  
would lie against B by A’s widow.  
3. Statements made by A as to the cause of his or her death, referring respectively  
to the murder, the rape, and the actionable wrong under consideration, are  
relevant facts.  
A dying declaration is the statement of a person who has died explaining  
the circumstances of his death  
.
A) Reasons for the admissibility of dying declaration: -  
There are two reasons for which the dying declaration is admissible. In fact,  
dying declarations are not statements made on oath, and no cross-examination is  
possible because the deponent is already dead. Yet, it is admissible in evidence due  
to the following two reasons, viz.  
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i) Necessity: -  
The person injured is dead and is naturally and necessarily the main witness in the  
case. Therefore, he is likely to know more about the circumstances of his death  
than anybody else.  
ii) Presumption: -  
The main principle on which dying declaration is admitted is expressed in  
the maxim 'mariturus prossumitur nensiri', which means a man will not meet  
his maker (God) with a lie in his mouth. The question asked is, why should  
he deceive the world by telling a lie when he cannot get the benefit of his  
lies?  
B)  
Conditions of admissibility: -  
For the admissibility of the dying declaration, the following conditions are  
to be satisfied –  
(1) The person making the statement must have died: -  
The person who made the statement must have died. As the name suggests, a  
dying declaration is a statement made by a person as to the case of his death or any  
of the circumstances of the transaction that resulted in his death.  
So, the first condition is that unless the declarant is dead, the declaration cannot  
be made admissible as a dying declaration. But if after making a statement as to  
injuries on his body, he did not die, then the statement would not be called a dying  
declaration under S.32(1). Still, it may be admissible Under section 157 of the  
Evidence Act as corroborative evidence.  
(2) Injuries must have caused the death: -  
The injuries must have caused the death. If a person dies not because of injuries  
inflicted on him but due to other reasons or ailments, the dying declaration would  
not be admissible.  
(3) As to the cause of his death or the circumstances resulting in his death.  
The statements relate to the cause of his death or the circumstances of the case  
resulting in his death.  
In Moti Singh Vs. State of Uttar Pradesh1.  
Facts: - The accused, Moti Singh, and seven other persons were tried for the  
murder of one Gangacharan. The Court convicted Moti Singh and Jagdamba  
Prasad, and others were acquitted. The deceased Gangacharan, who had been  
attacked and admitted to the hospital, made a dying declaration. He died 20 days  
after his discharge from the hospital, and before the post-mortem was conducted,  
1 [AIR 1964 SC 900]  
 
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the dead body was cremated.  
Issue:- Whether the dying declaration was admissible.  
Held: - That the dying declaration was inadmissible because there was no evidence  
as to what caused the death of Gangacharan. The court further observed that when  
it was not established that Gangacharan had died as a result of injurious received  
in the incident, his statement relating to the incident could not be said to be relating  
to the cause of his death. The appellants were, therefore, acquitted.  
In Pakala Narayan Swamy Vs. Emperor2.  
Facts: - On March 20th, K told his wife that he was going to Berhampore, as P’s  
wife had written and asked him to come and receive payments due to him. On  
March 21st, K left his house in time to catch the train to Berhampore, where P lived  
with his wife. On March 23, K’s body, cut into pieces, was found in a trunk, which  
was purchased for P. P was tried for the murder of K.  
Privy Council held: - That the statement made by K (deceased) to his wife was  
admissible under S.32 (1) as a 'circumstance of the transaction' that resulted in K's  
death.  
Sometimes, a letter written by the deceased 5 years before his death was  
admitted as a dying declaration under S.32(1).  
4.  
Cause of death must be in question: -  
A dying declaration is relevant only if the cause of his death is in question.  
However, if the cause of the death of any other person is in issue, the dying  
declaration is not admissible..  
5.  
Declarant must be in a fit condition to make a statement: -  
The person expecting death due to injuries must be in a fit condition to make  
a statement.  
In a statement of Haryana Vs. Harpal Singh3.  
Facts: - The defence contended that the declarant was not in a fit state of mind to  
make a dying declaration because his pulse was not palpable, blood pressure was  
not recordable, and the patient was in a gasping condition.  
Court Observed: - Normally, whenever a Magistrate is required to record a dying  
declaration, he poses preliminary questions to the person to ensure that the person  
is conscious of the surroundings and is in a fit state of mind to make a dying  
declaration. Also, where a doctor certified that the deceased was at the time of  
making the declaration conscious and was in a fit state of mind is sufficient and  
2 [AIR 1939 P.C. 47]  
3 [AIR 1978 SC 1430]  
   
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can be proved even though the pulse was not palpable, blood pressure was not  
recordable. The patient was in a gasping condition.  
6.  
The declaration must be complete: -  
To be admissible in evidence, a dying declaration must be completed. An  
incomplete dying declaration is not admissible. Where the declarant dies before  
completing the declaration, such an incomplete declaration cannot be accepted in  
evidence.  
In Abdul Sattar Vs. The State of Mysore4.  
Facts: The deceased stated, “I was going home when I came near the house of  
Abdul Majid Sattar, and he shot me from the bush. He ran away, I saw”. After that,  
he was unable to answer any further questions.  
Held: - The statement was held to be admissible because it was complete regarding  
the accused having shot dead the deceased.  
C) The distinction between English and Indian Law: -  
1.  
Civil / Criminal: -  
Under the Indian Evidence Act, 'dying declaration’ is admissible in civil and  
criminal cases in which the declarant's death is questioned. But under English Law,  
it is admissible only in cases of homicide wherein the death of the deceased is in  
question.  
2.  
Expectation of death: -  
Under English Law, a 'dying declaration’ must be made under the  
expectation of death, i.e., a person making the declaration must be sure and  
confident (at the time of making the declaration) of his death.  
In R.V.Jenkins5  
Facts: - The deceased, who was shot at by the accused, made a dying declaration  
to a clerk of the Magistrate who was deputed to record the dying declaration. In  
the statement, she said, “I am making this declaration without hope of recovery”,  
and the clerk of the Magistrate who recorded the statement read over the statement;  
when it was read over, she asked the clerk to write the words “At Present” at the  
end of the present statement.  
Held: - Since she suggested adding the words "At present", she had some ray of  
hope for survival. Therefore, the statement is inadmissible in evidence.  
However, under Indian Law, whether the declaration is made with the  
expectation of death is immaterial.  
4 [AIR 1956 SC 168)  
5 [1869]  
   
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3.  
Competency of Declarant: -  
Under Evidence Law, a person making a declaration must be competent. It  
means that the dying declaration made by an infant is not admissible.  
However, the Indian Evidence Act does not provide such a bar. The dying  
declaration of a major or minor is admissible in Indian Law.  
D)  
Evidentiary value of dying declaration: -  
The evidentiary value of the dying declaration may vary according to the  
circumstances of a particular case in which it is made. If the Court is convinced  
that it is true, it can bear conviction. No strict rule of Law requires that the dying  
declaration should not be acted upon unless corroborated. However, generally, it  
is not considered safe to convict an accused only on the basis of a dying declaration  
without further corroboration.  
A dying declaration, to be reliable, must fulfil the following conditions  
–
1. The dying declaration should have been recorded by the competent person  
.
2. The dying declaration should have been recorded in the exact words in which  
it was stated.  
3. The dying declaration should have been recorded soon after the incident so  
that impressions of tutoring by a third person do not come.  
4. The incident must have occurred in a lighted place  
.
5. The dying declaration should inspire confidence to make it safe to act upon it.  
***  
2)  
STATEMENT MADE IN THE COURSE OF BUSINESS (S.32 (2)): -  
This clause makes the statement relevant, which is written or verbal of  
relevant facts, made in the ordinary course of business by a person who is dead,  
cannot be found, has become incapable of giving evidence, or whose appearance  
cannot be procured without unreasonable delay or expression.  
Illustrations: -  
(a) The question is as to the date of A's birth.  
An entry in the diary of a deceased surgeon, regularly kept in the course of  
business, stating that on a given day, he attended to A's mother and delivered  
her of a son, is a relevant fact.  
(b) The question is whether A was in Calcutta on a given day.  
A statement in the diary of a deceased solicitor regularly kept in the course of  
business that on a given day, the solicitor attended A at a place mentioned in  
Calcutta for the purpose of conferring with him upon specified business is a  
relevant fact.  
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(c) The question is whether a ship sailed from Bombay harbour on a given day.  
A letter written by a deceased member of a merchant's firm, by which she was  
chartered, to their correspondents in London to whom the cargo was consigned,  
stating that the ship sailed on a given day from Bombay harbour, is a relevant  
fact.  
(d) The question is whether A, a person who cannot be found, wrote a letter on a  
certain day. The fact that a letter written by him is dated on that day is relevant.  
(e) The question is, what was the cause of the wreck of a ship?  
A protest made by the Captain whose attendance cannot be procured is a  
relevant fact.  
(f) The question is, what was the price of grain on a certain day in a particular  
market? A statement of the price, made by a deceased Baniya in the ordinary  
course of his business, is a relevant fact.  
The illustrations (b) and (c) of S.21 are also instances of statements in the  
course of business. The reason for admitting such statements is that the statements  
having been made in the usual course of a business without any ulterior motive  
ensures some truth in them.  
***  
3)  
STATEMENTS AGAINST THE INTEREST (CL.3): -  
Clause 3 declares that a statement of the person who is dead, etc., is  
admissible when it is against the pecuniary and proprietary interest of the person  
making it or when, if true, it would expose him or would have exposed him to  
criminal prosecution or to a suit for damages.  
Illustration: -  
(g) The question is whether rent was paid to A for certain land.  
A letter from A's deceased agent to A, saying that he had received the rent  
on A's account and held it at A's orders, is a relevant fact.  
(h) The question is whether A and B were legally married.  
The statement of a deceased clergyman that he married them under such  
circumstances that the celebration would be a crime is relevant.  
***  
4)  
OPINION AS TO PUBLIC RIGHTS OR CUSTOM (CL.4): -  
This clause makes the relevant opinion of a dead person, etc., regarding the  
public right or custom or any matter of public or general interest.  
Illustration: -  
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(i)  
The question is whether a given road is a public way.  
A statement by A, a deceased village headman, that the road was public is a  
relevant fact.  
***  
STATEMENT RELATING TO THE EXISTENCE OF A  
5)  
RELATIONSHIP  
(CL.5): -  
The statement of a dead or who cannot be found etc., relates to the existence  
of any relationship (by blood, marriage, or adoption) between persons as to whose  
relationship (by blood, marriage, or adoption) the person making the statement has  
special means of knowledge, and when the statement was made before the question  
in dispute was raised, is relevant.  
In S.Ramkrishna Pillai V. Tirunarayana.  
Held: - It should be borne in mind that to have special means of knowledge, the  
declarant should be related to the family (by blood or marriage). In India,  
statements from the deceased, servants, and dependents are admissible to prove a  
relationship.  
The statement must be made before the dispute arises. Declaration after  
controversy is to be regarded as lacking the guarantee of truthfulness.  
***  
6) STATEMENT IN WILL OR DEED RELATING TO FAMILY AFFAIRS  
(CL.6): -  
When the statement of a person who is dead or who cannot be found, etc.,  
relates to the existence of any relationship (by blood, marriage, or adoption)  
between persons deceased and is made in any will or other deed relates to the  
affairs of the family to which any of such deceased person (about whose  
relationship it relates) belonged, or in any family pedigree, or upon any tombstone,  
family portrait or other things on which such statements are usually made, and  
when such statement was made before the question in dispute was raised, is  
admissible.  
The difference between Cl.5 and Cl.6 is that Cl.5 admits evidence of written  
or oral statements as to the relationship between persons living and between  
persons living and dead. In contrast, Cl. 6 admits evidence of only recorded  
statements about the deceased person's relationship. In both cases, the statement  
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should have been made before the question in dispute as to such a relationship had  
arisen.  
***  
7) STATEMENT MADE IN A DOCUMENT RELATING TO  
TRANSACTIONS (CL.7): -  
This clause applies to statements of the deceased, etc., if the statement is  
contained in any deed, will, or other document relating to the transaction  
mentioned in S.13(a), i.e., the transaction by which the right or custom in question  
was created, claimed, modified, recognized, asserted, or denied or which was  
inconsistent with its existence.  
***  
8) STATEMENTS BY SEVERAL PERSONS EXPRESSING FEELINGS  
RELEVANT TO THE MATTERS IN QUESTION (CL.8): -  
The statements made by a number of persons expressing feelings or  
impressions, i.e. opinions relevant to the matter in question, are admissible when  
those persons are dead or incapable of giving evidence, and the testimony of other  
persons may prove such statements.  
Illustrations: -  
A sues B for libel expressed in a painted caricature exposed in a shop window.  
The question is as to the similarity of the caricature and its libellous  
character. The remarks of a crowd of spectators on these points may be proved.  
*****  
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