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 1by blood, marriage or adoption between persons as to whose relationship 1by 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 1by 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 thei
r 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
It would be very unsafe and hazardous to sustain the co
nviction of the accused charged for offences under section 302 read with section 34 IPC on the basis of dying declaration recorded by special executive magistrate and police officer separately; Dada Machindra Chaudhary v. State of Maharashtra , 1999 Cr LJ 4009 (Bom).
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; Ram Sai v. State of Madhya Pradesh, 1994 Cr LJ 138 (SC).
Where father of deceased son lodged F.I.R. after admitting him in hospital and mentioned about oral dying declaration with necessary details, such dying declaration given to interested persons is reliable; Vishram v. State of Madhya Pradesh, AIR 1993 SC 258.
Where deceased victim knew assailants and gave their names to his family members at first opportunity, his dying declaration could be relied upon; Prakash v. State of Madhya Pradesh , AIR 1993 SC 65.
Admissions are not conclusive
There is no doubt that admissions are a 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; Jagdish Prasad v. Sarwan Kumar , AIR 2003 P&H 3.
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; Sukhar v. State of Uttar Pradesh , 2000 Cr LJ 29 (SC).
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; Suchand Pal v. Phani Pal, AIR 2004 SC 973.
If the court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration; Kusa v. State of Orissa, AIR 1980 SC 559.
When dying declaration doesnot require further corroboration
Once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration; Khushal Rao v. State of Bombay, AIR 1958 SC 22.
When more than one dying declarations
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; Harbans Lal v. State of Haryana, AIR 1993 SC 819.
Where there are more than one dying declarations and they are inconsistent there it 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; Kamla v. State of Punjab, AIR 1993 SC 374.
Among three dying declarations 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; Ganpat Mahadeo Mane v. State of Maharashtra, AIR 1992 SC 1180.
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1. Ins. by Act 18 of 1872, sec. 2.
