STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES – EVIDENCE ACT

32. Case in which statement of relevant fact by person who is dead or cannot be found, etc is relevant.

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases-

(1) When it relates to cause of death – When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

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

(3) Or against interest of maker – When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true it would expose him or would have exposed him to criminal prosecution or to a suit for damages.

(4) Or gives opinion as to public right or custom, or matters of general interest – When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest of the existence of which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

(5) Or relates to existence of relationship – When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

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

(7) Or in document relating to transaction mentioned in section 13, Clause (a). – When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a).

(8) Or is made by several persons and express feelings relevant to matter in question – When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Illustrations–
(a) The question is, whether A was murdered by B ;
or
A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B;
or
The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.
Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.

(b) The question is as to the date of A’s birth.
An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Calcutta on a given day.
A statement in the diary of a deceased solicitor, regularly kept in the course of business, that, on a given day, the solicitor attended A at a place mentioned, in Calcutta , for the purpose of conferring with him upon specified business, is a relevant fact.

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

(e) The question is, whether rent was paid to A for certain land.
A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact.

(f) The question is, whether A and B were legally married.
The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.

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

(h) The question is, what was the cause of the wreck of a ship.
A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is, whether a given road is a public way.
A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(j) The question is, what was the price of grain on a certain day in a particular market.
A statement of the price, made by a deceased banya in the ordinary course of his business is a relevant fact.

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

(l) The question is, what was the date of the birth of A.
A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is, whether, and when, A and B were married.
An entry in a memorandum-book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.

Comments:

Admissibility of dying declaration-

i) There can be no dispute that dying declaration can be the sole basis for conviction however such a dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker must be in fit medical conditions to make it.
Related case- Waikhom Yaima Singh v. State of Manipur, 2011

ii) Dying declaration should be such which should immensely strike to be genuine and stating true story of its maker. It should be free from all doubts and on going through it, an impression has to be registered immediately in mind that it is genuine, true and not tainted with doubts. Further it should not be the result of torturing.
Related case- Nanhar v. State of Haryana, 2010

iii) It would be very unsafe and hazardous to sustain the conviction of the accused charged for offences under section 302 read with section 34 of IPC on the basis of dying declaration recorded by special executive magistrate and police officer separately.
Related case- Dada Machindra Chaudhary v. State of Maharashtra, 1999

iv) Where there were infirmities in declaration regarding state of deceased to make oral dying declaration and unnatural conduct of witness to whom dying declaration was allegedly given by the deceased which was disclosed to the police after two days of death of deceased, accused was entitled to the benefit of doubt.
Related case- Ram Sai v. State of Madhya Pradesh, 1994

v) Where deceased victim knew assailants and gave their names to his family members at first opportunity his dying declaration could be relied upon.
Related case- Prakash v. State of Madhya Pradesh, 1993

Admissions are not conclusive-

There is no doubt that admissions are good piece of evidence and they can be used against its maker. Admissions are however not conclusive and unless they constitute estoppel, the maker is at liberty to prove that they are mistaken or are untrue.
Related case- Jagdish Prasad v. Sarwan Kumar, 2003

Dying declaration-

That the FIR as well as the statement given by the injured to the investigating officer is not admissible as dying declaration under section 32.
Related case- Sukhar v. State of Uttar Pradesh, 2000

Dying declaration must be made by deceased only-

The declaration made by the deceased cannot be called dying declaration because it was not voluntary and answers were not given by her, it was her husband who was answering.
Related case- Suchand Pal v. Phani Pal, 2004

Reliability of dying declaration-

Is the dying declaration has been recorded in accordance with law, is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the court and could form the sole piece of evidence resulting in the conviction of the accused.
Related case- Bhajju v. State of Madhya Pradesh, 2012

Survival of victim-

When a victim making a dying declaration survives the said dying declaration does not remain substantive evidence.
Related case- Sunder Singh v. State of Uttaranchal, 2010

When dying declaration does not require further corroboration-

Once the court has come to the conclusion that the dying declaration was the truthfull version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.
Related case- Khushal Rao v. State of Bombay, 1958

When more than one dying declaration-

i) In case of two conflicting dying declarations one recorded by doctor in the presence of two more doctors and second by a person attested by Sarpanch, in second one being not proved by competent witness cannot be relied upon.
Related case- Harbansh Lal v. State of Haryana, 1993

ii) Where there are more than one dying declarations and they are inconsistent; there is not possible to pick out one such declaration wherein accused is implicated and base the conviction on the sole basis of that dying declaration.
Related Case- Kamla v. State of Punjab, 1993

Among three dying declaration recorded by doctor, police and magistrate with no infirmity in any, the fact that third declaration was not in question and answer form is not material.
Related case- Ganpat Mahadeo Mane v. State of Maharashtra, 1992

33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.

Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a letter stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept our of the way by the adverse party or if his presence cannot be obtained without, an amount of delay of expense which, under the circumstances of the case, the Court considers unreasonable;
Provided–
That the proceeding was between the same parties or their representatives in interest;

That the adverse party in the first proceeding had the right and opportunity to cross examine;

That the questions in issue were substantially the same in the first as in the second proceeding.

Explanation-
A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

Next,
Section 34 to Section 38 – STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES→

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