Law of Evidence

By Nizam Azeez Sait,

MODULE No. 12

STATEMENTS BY PERSONS WHO CANNOT BE CALLED AS WITNESSES INCLUDING DYING DECLARATION.

This is the 12th Module of the subject ‘Law of Evidence’, covering Sections 26 and 27 of the Bharatiya Sakshya Adhiniyam (Sections 32 and 33 of the Evidence Act), which are grouped together and titled as ‘Statements by Persons who cannot be called as witnesses’, including the provisions relating to ‘Dying Declaration’ in section 26(a) of Chapter II Part II of the Bharatiya Sakshya Adhiniyam (corresponding to 32(1) in Chapter II of the Evidence Act). These 2 sections ie Sections 26 and 27 provide for certain exceptions to the general rule against hearsay evidence based on the principle of necessity, practicality and circumstantial guarantee of their trustworthiness.

MODULE INDEX

  1. Statement of Relevant Fact By Peron Who is Dead or Cannot Be Found etc – Section 26 (Section 32 of the Evidence Act)
  1. Grounds for permitting statements under clauses (a) to (h)
  1. Dying Declaration – Section 32 Clause 1
  1. Exception to the Rule against hearsay Evidence
  1. Sanctity of Dying Declaration and the Reasons for its admissibility
  1. Statement must be as to the cause of death or as to any of the circumstances of the transaction which resulted in his death
  1. Statement is Relevant Only When Cause of Death is in Question
  1. The Evidentiary Value and the Reliability of Dying Declarations
  1. Multiple Dying Declarations – Material Contradictions and Inconsistencies in Multiple Dying Declarations Casts Doubts on the Credibility of the Declarations
  2. Signature/Thumb Impression on the Dying Declaration
  3. Dying Declaration can Form the Sole Basis of Conviction
  4. If the Maker of the Statement to the Magistrate Survives the Statement Could be Used under S.160 of the Bharatiya Sakshya Adhiniyam (Section 157 of the Evidence Act)
  1. Statements made in the course of business – S.26(b) of the Bharatiya Sakshya Adhiniyam (S 32(2) of the Evidence Act)
  1. Statement Against Pecuniary Interest of Maker Section 26(c)of the Bharatiya Sakshya Adhiniyam (Clause 32 (3) of the Evidence Act)
  1. Opinion as to Public Right or Custom, or Matters of General Interest Clause 26 (d)
  1. Statement Relates to Existence of Relationship Section 26 Clauses (e) and (f)
  1. Statement In Document Relating to Transaction Mentioned in Section 11 – Section 26 (g)
  2. Statement is Made by Several Persons Expressing Feelings – Section 26 Clause (h)
  3. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated – Section 27

1. Statement of Relevant Fact By Peron Who is Dead or Cannot Be Found etc – Section 26 (Section 32 of the Evidence Act)

Opening part of Section 26 of the Bharatiya Sakshya Adhiniyam reads as follows, followed by 8 clauses (a) to (h) and clauses (a) to (h), and 14 illustrations from (a) to (n):

Statements by persons who cannot be called as witnesses

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, namely: —

(a) 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;

(b) 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;

(c) 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 a criminal prosecution or to a suit for damages;

(d) 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;

(e) 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;

(f) 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;

(g) When the statement is contained in any deed, will or other document which relates to any such transaction as is specified in clause (a) of section 11;

(h) 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 raped. The question is whether she was raped 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 Nagpur 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 Nagpur, for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Mumbai 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 Chennai, to whom the cargo was consigned, stating that the ship sailed on a given day from Mumbai port, 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 business person 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.

Eight categories of relevant statements are mentioned in the Section as clauses (a) to (h), and 14 illustrations from (a) to (n), each of which we shall deal in detail later. First we will see the common grounds and reasons for making admissible such statements.

2. Grounds for permitting statements under clauses (a) to (h)

As seen from the opening portion of the section for the section to apply the previous relevant statement must be of such nature that falls within any of the clauses from (a) to (h) and should have been made by:

  1. A deceased person;
  2. A person who cannot be found;
  3. A person who has become incapable of giving evidence;
  4. A person whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable

Any one of the above circumstances has to be proved by relevant materials to the satisfaction of the Court before invoking the provisions in clauses (a) to (h).

In order to make the statements made by a person prior to his death, admissible under this section it is necessary that the fact of death of the person must be proved by direct evidence or by invoking the presumption under Section 111 of the Bharatiya Sakshya Adhiniyam (Section 108 of the Evidence Act).

According to Section 111 where a person is not heard of for a period of seven years by those who would naturally have heard of him had he been alive, the presumption is that he is dead.

Before accepting statement under any of the clauses in section 32 on the ground that such person could not be found it must be proved to the satisfaction of the Court that all efforts have been made to locate the person to make him a witness and the efforts failed.

Attendance of the person can be waived and his previous Statements of the nature referred under the clauses in Section 26 of the Bharatiya Sakshya Adhiniyam (section 32 of the Evidence Act) could be permitted to be proved on the ground that he has become incapable of giving evidence on account of serious mental illness or physical ailment. Illness must be of such nature disentitling him from being a witness.

Another instance is when attendance of witness cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable. For example, where a witness is in far-off countries and procuring his attendance impossible or involves considerable amount of delay and expense and such delay or expense according to the Court would be unreasonable.

The above exemption will be applicable only in the cases covered under clauses (a) to (h) in Section 26  (clauses (1) to (8) in Section 32 of the Evidence Act).

Now we will see each of the clauses (a) to (h) in Section 26 of the Bharatiya Sakshya Adhiniyam (Section 32 of the Evidence Act) one by one:

3. Dying Declaration – Section 32 Clause 1

Section 26 Clause (a) reads as:

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;

Illustration. (a) to section 26 relates to dying declaration and reads as follows:

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 raped. The question is whether she was raped 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.

The words “Dying Declaration” are not used in this provision but the statement referred in the section is generally known by the name “Dying Declaration”.

4. Exception to the Rule against hearsay Evidence

The statement has hearsay character and therefore is not tested by cross examination. It is an exception to the general bar of hearsay evidence enunciated in Section 55 of the Bharatiya Sakshya Adhiniyam (Section 60 of the Evidence Act) which mandates that oral evidence should be direct.

5. Sanctity of Dying Declaration and the Reasons for its admissibility

The reasons for the admissibility of Dying Declaration are:

  1.  Out of necessity; on many occasions the victim being the sole – eye witness of the crime done on him, his statement will be the best evidence to reach at the truth of the cause of his death, and exclusion of the statement might result in travesty of justice.
  2. The sanctity attached to dying declaration, which is generally based on the belief that a person will not lie about the cause of his impending death. Oft quoted maxim in this regard is ‘Nemo Moriturus Praesumntur Mentire’ which means, a person who is about to die would not lie”

In this regard, in Narain Singh v. State of Haryana reported in AIR 2004 SC 1616, the Supreme Court reiterated the above principle and observed:

“Section 32(1) of the Indian Evidence Act, 1872 (S .26 (a) of the Bharatiya Sakshya Adhiniyam) is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross examination it is not creditworthy. A dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding circumstances leading to his death. But at the same time the dying declaration like any other evidence has to be tested on the touchstone of credibility to be acceptable. It is more so, as the accused does not get an opportunity of questioning veracity of the statement by cross examination. The dying declaration if found reliable can form the base of conviction.”

In Laxman v. State of Maharashtra, reported in 2002 (6) SCC 710, the Supreme Court the Supreme Court explained the said aspect regarding the sanctity of dying declaration as under:

“The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross – examination are dispensed with.  Since the accused has no power of cross – examination, the Courts insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination”.

In Shakuntala v. State of Haryana, reported in (2007) 10 SCC 168, the Supreme Court observed:

The above provision ie, S. 32(1) (S .26 (a) of the Bharatiya Sakshya Adhiniyam) makes relevant the statement made by a person as to the cause of his death, or as to any circumstances of the transaction, which resulted in his death. The Evidence Act does not use the phrase ‘dying declaration’ but the ‘statement’ referred in the provision came to be known as ‘dying declaration’. “The sanctity is attached to a dying declaration because it comes from the mouth of a dying person. It is based on the maxim ‘Nemo Moriturus Praesumntur Mentire’ which means, a person who is about to die would not lie”.

It may be noted that in Indian law as per S .26 (a) of the Bharatiya Sakshya Adhiniyam (Section 32 (1) Evidence Act) for the statement to be relevant it is not necessary that the person who made the statement was under expectation of death.

In Sharad Biridhichand Sarada v. State of Maharashtra, reported in AIR 1984 SC 1622 the Supreme Court reiterated thus:

“The law in India does not make the admissibility of a dying declaration dependent upon the person’s having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under S.32, Evidence Act (S 26 (a) of the Bharatiya Sakshya Adhiniyam).”

6. Statement must be as to the cause of death or as to any of the circumstances of the transaction which resulted in his death

The section/provision covers not only the Statements as to the cause of his death but also statement as to any of the circumstances of the transaction which resulted in his death. The words “Statement as to any of the circumstances of the transaction which resulted in his death” is wider in scope than the expression “Statements as to the cause of his death”. Statement as to anything which has nexus with the death is relevant.

The Statement that the deceased was proceeding to the spot where he was later killed, or as to the reasons for so proceeding, or that he was going to meet a particular person, or that he had invited a particular person or was invited by a particular person, each of them, could be circumstances of the transaction which resulted in his death.

In the famous case Pakala Narayana Swamy v. King Emperor, reported in AIR 1939 PC 47, The Privy Council considered this aspect.

Brief facts of the case are as follows: The accused was married to one of the daughters of the Diwan of Pithapuram Estate, where the deceased by name Nukaraju was a peon. In 1936 the accused and his wife visited Pithapuram, during their stay they borrowed Rs. 3000/- from the deceased Nukharaju, Later the accused went back to his place, Berhampur. In the month of March 1937, the deceased Nookharaju received a letter from the accused’s wife asking him to come down to Berhampur for the purpose of collecting the money which was due to him. The deceased showed the letter to his wife and told her that he is proceeding to Berhampur to collect the money and took the train to Berhampur. Two days later his body cut into pieces was found in a trunk in a railway compartment at Puri Railway station. Later the accused was arrested and tried for murder.  At the trial, the statement of the deceased to his wife that he was proceeding to Berhampur as he was invited to collect the money was held to be admissible as dying declaration under section 32(1) of the Evidence Act (S .26 (a) of the Bharatiya Sakshya Adhiniyam).

The Privy Council opined that this statement related to the circumstances that he was proceeding to that spot where he was killed, that he was invited by a particular person and that he was going to meet a particular person and that all these constituted circumstances that brought about his death, therefore are admissible as dying declaration under section 32(1) of the Evidence Act (S .26 (a) of the Bharatiya Sakshya Adhiniyam).

The Privy Council also observed that the evidence of any such circumstances must be proximately related to the actual occurrence and not too remotely connected. The Privy Council stated thus:

“Circumstances of the transaction” is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in “circumstantial evidence” ….. Circumstances must have some proximate relation to the actual occurrence: though, as for instance in a case of prolonged poisoning, they may be related to dates at a considerable distance from the date of the actual fatal dose.”

In Sharad Biridhichand Sarada v. State of Maharashtra, reported in AIR 1984 SC 1622 a three Judges Bench comprising of Fazal Ali; Varadarajan; Sabyasachi Mukharji, JJ, of the Supreme Court while considering the admissibility of certain letters written by the deceased to her sister which indicated her strained relation with the accused husband, made an analysis of the provision and the precedents and laid down the law as follows:

(1) S.32 (S 26 of the Bharatiya Sakshya Adhiniyam) is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of S.32 (S. 26 of the Bharatiya Sakshya Adhiniyam) to avoid injustice.

(2) The test of proximity cannot be too literally construed and practically reduced to a cut and dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstance of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under S.32(S .26  of the Bharatiya Sakshya Adhiniyam).

(3) The second part of clause (1) of S.32 (S.26 of the Bharatiya Sakshya Adhiniyam)  is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross examined by the accused, would be valueless because the place of cross examination is taken by the solemnity and sanctity of oath for the simple reason that a persons on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

(4) It may be important to note that Section 32 (S. 26 of the Bharatiya Sakshya Adhiniyam) does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 (S.26 (a) of the Bharatiya Sakshya Adhiniyam) and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.

7. Statement is Relevant Only When Cause of Death is in Question

The provision will apply only in cases in which the cause of that person’s death comes into question. Mostly the provision applies in criminal cases of homicide and abetment of suicide, but it could apply in civil cases also where the person’s death is in question.

8. The Evidentiary Value and the Reliability of Dying Declarations

“Dying Declaration” is substantive evidence. Normally a Magistrate would be called for, by the police, for recording dying declaration if there is time and opportunity for the same. A doctor would also certify that the declarant is in a fit mental state to make the statement.

As far as possible the dying declaration would be recorded in the exact words in which it was spoken by the declarant. These would lend assurance and strength to the credibility of the dying declaration.

But the above are not invariable rules and each case has to be evaluated on its on facts and circumstances for assessing its credibility.

Dying declaration could be to a friend, a relative, a stranger chance witness or even to the police in the First Information statement (FIS) or to the police during the course of investigation or to a doctor or formally recorded by a Magistrate.

The credibility of the dying declaration depends on the facts and circumstances of each case.

Oral dying declaration made to a witness who deposes before the court could be believed if it inspires absolute confidence.

Statement recorded in an injury report by a doctor could be treated as Dying Declaration.

As we have noted whenever there is opportunity the Investigation Officer must ensure that the dying declaration is recorded by a Magistrate along with a doctor certifying the fitness of the declarant to make such a statement/declaration. Otherwise, it will cast doubt on the dying declaration recorded by the police or made to anyone else.

Dalip Singh and others v. State of Punjab, reported in AIR 1979 SC 1173, the Supreme Court, Speaking through Justices Fazal Ali and Untavalia, observed:

“Although a dying declaration recorded by a Police Officer during the course of the investigation is admissible under S.32 (S.26 of the Bharatiya Sakshya Adhiniyam)  of the Indian Evidence Act in view of the exception provided in sub-section (2) of S.162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declarations out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or by a Doctor. As observed by this Court in Munnu Raja v. State of Madhya Pradesh 1976 (2) SCR 764 : (AIR 1976 SC 2199) the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but, what we want to emphasize is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.”

The test for a Dying Declaration to be acceptable before the court, and to be acted upon is:

  1. Should inspire confidence as to its credibility
  2. Should not appear to be the result of tutoring, prompting or imagination or to be manufactured or fabricated.

In Khushal Rao v. State of Bombay, reported in AIR 1958 SC 22, a 3 judge’s bench of the Supreme Court laid down the following guidelines regarding the evidentiary value and the reliability of dying declarations:

(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

(2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;

(3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;

(4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;

(5) that 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, and, 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 and human character, and

(6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

In, Laxman v. State of Maharashtra [ 2002 (6) SCC 710: AIR 2002 SC 2973], a 5 judges bench of the Supreme Court while addressing the argument that the dying declaration must be recorded by a Magistrate and the certificate of fitness was an essential feature, made the following observations:

“In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.’ (See also Rajaram v State of Madhya Pradesh, 2022 SCC OnLine SC 1733 : AIROnLine 2022 SC 1146)

9. Multiple Dying Declarations – Material Contradictions and Inconsistencies in Multiple Dying Declarations Casts Doubts on the Credibility of the Declarations

When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated independently on its own merit as to its evidentiary value and one cannot be rejected because of minor insignificant variation in the other but if the variations are irreconcilable and significant that would cast doubts on their credibility.

The Supreme Court in Mohan Lal v. State of Maharashtra, AIR 1982 SC 839 held:

“Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred.”

“Of course, if the plurality of dying declarations could be held to be trust worthy and reliable, they have to be accepted.”

In Mehiboobsab Abbasabi Nadaf vs. State of Karnataka, reported in (2007) 13 SCC 112, having noticed inconsistent multiple dying declarations the Supreme Court rejected the dying declarations and held:

“Conviction can indisputably be based on a dying declaration. But before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, therefore, should not be accepted on their face value. Caution, in this behalf, is required to be applied.”

 In Jagbir Singh v State of NCT Delhi (2019 (8) SCC 779), the Supreme court reviewed several previous decisions involving multiple dying declarations and re – stated the law in these terms:

“30. A survey of the decisions would show that the principles can be culled out as follows:

  1. Conviction of a person can be made solely on the basis of a dying declaration which inspires confidence of the court;
  2. If there is nothing suspicious about the declaration, no corroboration may be necessary;
  3. No doubt, the court must be satisfied that there is no tutoring or prompting;
  4. The court must also analyse and come to the conclusion that imagination of the deceased was not at play in making the declaration. In this regard, the court must look to the entirety of the language of the dying declaration;
  5. Considering material before it, both in the form of oral and documentary evidence, the court must be satisfied that the version is compatible with the reality and the truth as can be gleaned from the facts established;
  6. However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconciliable.
  7. In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the Accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;
  8. The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the Accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two.”
  9. In the third scenario, what is the duty of the court? Should the court, without looking into anything else, conclude that in view of complete inconsistency, the second or the third dying declaration which is relied on by the prosecution is demolished by the earlier dying declaration or dying declarations or is it the duty of the court to carefully attend to not only the dying declarations but examine the rest of the materials in the form of evidence placed before the court and still conclude that the incriminatory dying declaration is capable of being relied upon? ”

10. Signature/Thumb Impression on the Dying Declaration

If feasible signature or thumb impression of the declarant is taken on the dying declaration. In most cases the declarant won’t be in a position to put his signature.

In State of Madhya Pradesh v. Dal Singh & Ors. Reported in AIR 2013 SC 2059, the Supreme Court reversed the decision of the High Court and accepted the dying declaration recorded by the Executive Magistrate against the husband and in laws by a 100% burnt lady and Court held:-

“The law on the issue can be summarised to the effect that law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a doctor in respect of such state of the deceased, is not essential in every case.

Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross – examination. However, the court may not look for corroboration of a dying declaration, unless the declaration suffers from any infirmity.”

“So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body, i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remained intact.”

But in State of Punjab v. Gian Kaur and Another, AIR 1998 SC 2809, when an issue arose regarding the acceptability in evidence, of the thumb impression of Rita, the deceased, that appeared on the dying declaration, as the trial court had found that there were clear ridges and curves, and the doctor was unable to explain how such ridges and curves could in fact be present, when the skin of the thumb had been completely burnt. In the facts and circumstances of the case the Supreme Court doubted the dying Declaration and along with other reasons gave the benefit of doubt in favour of the accused.

11. Dying Declaration can Form the Sole Basis of Conviction

In, Ramilaben Hasmukhbhai Khristi v. State of Gujarat, 2002 (7) SCC 56, the Supreme Court held as under:

“Under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers being written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration.”

In Ashabai and another v. state of Maharashtra AIR 2013 SC 341, Supreme Court, observed:

“The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration.”

In, Chirra Shivraj v. State of Andhra Pradesh [2010 (14) SCC 444 : AIR 2011 SC 604 : 2011 CriLJ 971], the Court added a caution that a mechanical approach in relying upon the dying declaration just because it is there, is extremely dangerous. The Court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by other persons and where these ingredients are satisfied, the Court expressed the view that it cannot be said that on the sole basis of a dying declaration, the order of conviction could not be passed.”

In Mafabhai Nagarbhai Raval v. State of Gujarat, AIR 1992 SC 2186, the Supreme Court dealt with a case wherein a question arose with respect to whether a person suffering from 99 per cent burn injuries could be deemed capable enough for the purpose of making a dying declaration. The trial Judge thought that the same was not at all possible, as the victim had gone into shock after receiving such high degree burns. The trial Judge had consequently opined, that the moment the deceased had seen the flame; she was likely to have sustained mental shock. Development of such shock from the very beginning, was the ground on which the Trial Court had disbelieved the medical evidence available. But the Supreme Court then held, that the doctor who had conducted her post – mortem was a competent person, and had deposed in this respect. Therefore, unless there existed some inherent and apparent defect, the court could not have substitute its opinion for that of the doctor’s. Hence, in light of the facts of the case, the dying declarations made, were found by the Supreme Court to be worthy of reliance, as the same had been made truthfully and voluntarily. There was no evidence on record to suggest that the victim had provided a tutored version, and the argument of the defence stating that the condition of the deceased was so serious that she could not have made such a statement was not accepted, and the dying declarations were relied upon.

A similar view has been re – iterated by the Supreme Court in Rambai v. State of Chhatisgarh, reported in 2002 (8) SCC 83.

In Laxman v. State of Maharashtra, AIR 2002 SC 2973, Supreme Court held, that a dying declaration can either be oral or in writing, and that any adequate method of communication, whether the use of words, signs or otherwise will suffice, provided that the indication is positive and definite. There is no requirement of law stating that a dying declaration must necessarily be made before a Magistrate, and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. Consequently, the evidentiary value or weight that has to be attached to such a statement, necessarily depends on the facts and circumstances of each individual case. What is essentially required, is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind, and where the same is proved by the testimony of the Magistrate, to the extent that the declarant was in fact fit to make the statements, then even without examination by the doctor, the said declaration can be relied and acted upon, provided that the court ultimately holds the same to be voluntary and definite. Certification by a doctor is essentially a rule of caution, and therefore, the voluntary and truthful nature of the declaration can also be established otherwise.

In Koli Chunilal Savji v. State of Gujarat, AIR 1999 SC 3695, Supreme Court held, that the ultimate test is whether a dying declaration can be held to be truthfully and voluntarily given, and if before recording such dying declaration, the officer concerned has ensured that the declarant was in fact, in a fit condition to make the statement in question, then if both these aforementioned conditions are satisfactorily met, the declaration should be relied upon.

In Laxmi v. Om Prakash and Others, AIR 2001 SC 2383, the Supreme court held, that if the court finds that the capacity of the maker of the statement to narrate the facts was impaired, or if the court entertains grave doubts regarding whether the deceased was in a fit physical and mental state to make such a statement, then the court may, in the absence of corroborating evidence lending assurance to the contents of the declaration, refuse to act upon it.

In Govindappa and Others v. State of Karnataka, 2010 (6) SCC 533, it was argued that the Executive Magistrate, while recording the dying declaration did not get any certificate from the medical officer regarding the condition of the deceased. The Supreme Court then held, that such a circumstance itself is not sufficient to discard the dying declaration. Certification by a doctor regarding the fit state of mind of the deceased, for the purpose of giving a dying declaration, is essentially a rule of caution and therefore, the voluntary and truthful nature of such a declaration, may also be established otherwise. Such a dying declaration must be recorded on the basis that normally, a person on the verge of death would not implicate somebody falsely. Thus, a dying declaration must be given due weight in evidence.

Hence, with respect to judicial appreciation of a Dying Declaration, it can be summed up that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross – examination. But 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, the court need not look for further corroboration and the conviction can be based on such dying declaration.

12. If the Maker of the Statement to the Magistrate Survives the Statement Could be Used under S.160 of the Bharatiya Sakshya Adhiniyam (Section 157 of the Evidence Act)

In this regard the Supreme Court in Gentela Vijayavardhan Rao v. State of A.P, reported in AIR 1996 SC 2791, observed:

“Though the statement given to a magistrate by someone under expectation of death ceases to have evidentiary value under S.32 of the Evidence Act (S.26 of the Bharatiya Sakshya Adhiniyam) if the maker thereof did not die, such a statement has, nevertheless, some utility in trials. It can be used to corroborate this testimony in Court under S.157 of the Evidence Act (S.160 of the Bharatiya Sakshya Adhiniyam) which permits such use being a statement made by the witness “before any authority legally competent to investigate”. The word “investigate” has been used in the section in a broader sense. Similarly the words “legally competent” denote a person vested with the authority by law to collect facts. A magistrate is legally competent to record dying declaration “in the course of an investigation” as provided in Chapter XII of the Code of Criminal Procedure, 1973. The contours provided in S.164 (1) (S. 183 of the Bharatiya Nagarik Suraksha Sanhita)would cover such a statement also. However, such a statement, so long as its maker remains alive, cannot be used as substantive evidence. Its user is limited to corroboration or contradiction of the testimony of its maker.”

13. Statements made in the course of business – S.26(b) of the Bharatiya Sakshya Adhiniyam (S 32(2) of the Evidence Act)

Now we will move on to Clause (b) of the Section which reads as:

(b) 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;

Illustrations (b), (c), (d), (g), (h) and (j) deals with Clause (a) and read as:

(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 Nagpur 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 Nagpur, for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Mumbai 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 Chennai, to whom the cargo was consigned, stating that the ship sailed on a given day from Mumbai port, is a relevant fact.

(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.

(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 business person in the ordinary course of his business, is a relevant fact.

This provision refers to certain peculiar statements made by a person referred in the main provision, namely:

  1. A deceased person;
  2. A person who cannot be found;
  3. A person who has become incapable of giving evidence;
  4. A person whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable

The reason for this rule is the difficulty in providing alternate proof in such situations and reasonable circumstantial guarantee of the evidence covered in the provision. Though such facts covered in the provision is made relevant and provable, the weight to be attached depends on facts and circumstances of each case.

“Ordinary Course of Business” means not only business that is conducted by a person of business or commercial activity, but means, in the way public or private activity is conducted. The business need not be a mercantile or an industrial one or even a secular one.

In Sitaji v. Bijendra Narain Choudhary , reported in AIR 1954 SC 601, the Supreme Court accepted as relevant under section 32(2),  of the Evidence Act (S.26(b)of the Bharatiya Sakshya Adhiniyam) manuscripts of genealogy systematically maintained by professional genealogists.

“Professional Duty”

Nature and terms of the engagement decides if it’s a professional duty. Injury reports, autopsy reports, medical certificates etc prepared by a doctor, Court Commissioner’s report, Register of Marriages, Insurance Policy Diaries etc held to be made in discharge of professional duty.

In Preti Chand v. State of Himachal Pradesh, reported in AIR 1989 SC 702, the Supreme Court accepted Medical Report/Certificate, without examining the doctor under this provision, the Court held:

“Section 32 (2) of the, Evidence Act (S.26(b)of the Bharatiya Sakshya Adhiniyam) Provides that when a statement, written or verbal, is made by a person in the discharge, of professional duty whose attendance cannot be, procured without an amount of delay the, same is relevant and admissible in evidence. ….. Therefore, the medical certificate Ex. PE was clearly, admissible in evidence.”

14. Statement Against Pecuniary Interest of Maker Section 26(c)of the Bharatiya Sakshya Adhiniyam (Clause 32 (3) of the Evidence Act

Now we will move on to Clause 26 (c) of the Bharatiya Sakshya Adhiniyam (Clause 32(3) of the Evidence Act), the Provision reads as:

(c) 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 a criminal prosecution or to a suit for damages;

This clause deals with statement made by a person described in the main part of the section, when the statement is against the pecuniary or proprietary interest of the person making it or when, if true, it would expose him to or would have exposed him to a criminal prosecution or a suit for damages.

Illustrations (e) and (f) of the provision relates to this clause ie clause 26(c) and read as:

(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.

Knowledge or consciousness as to adversity of the statement must be there at the time of making the statement.

In Bhim Singh v Kan Singh reported in AIR 1980 SC 727, the Supreme Court permitted to prove and admitted the statement of the deceased few months before his death to the effect that the subject property was not held benami but was the absolute property of the Plaintiff. The statement was held admissible under Section 32(3) of the Evidence Act (Clause 26 (c) of the Bharatiya Sakshya Adhiniyam) as it was against the interest of the maker.

In a suit for title a statement by the deceased predecessor in interest that he is only tenant of the property will be admissible against his successor in interest.

15. Opinion as to Public Right or Custom, or Matters of General Interest Clause 26 (d)

Now we will move on to Clause 26 (d) of the Bharatiya Sakshya Adhiniyam (Clause 32(4) of the Evidence Act), the Provision reads as:

(d)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.

The following conditions have to be satisfied for the purpose of admissibility of the statement under Section 26 (d).

  1. Statement must have been made by a person referred in the main provision, namely:
  2. deceased person;
  3. person who cannot be found;
  4. person who has become incapable of giving evidence;
  5. person whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable
  1. The statement must give an opinion as to the existence of any public right, or custom, as to the matters of public or general interest.
  2. The person giving the opinion must be a person who is likely to be aware of the existence of such right, custom or matter, if it existed.
  3. The statement giving the opinion must have been made ante litem motam ie before the controversy had arisen.

Illustration (i) to section 26  relates to clause (d) and reads as:

(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.

16. Statement Relates to Existence of Relationship Section 26 Clauses (e) and (f)

Now we will move on to Section 26 (e) and (f) of the Bharatiya Sakshya Adhiniyam (Corresponding to Clauses (5) and (6) of Section 32 of the Evidence Act), which read as:

(e) 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;

(f) 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;

(5)  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.

Statement as to the existence of relation

Section 26 (e) of the Bharatiya Sakshya Adhiniyam (Section 32 (5) of the Evidence Act), makes admissible the evidence of statement of the deceased person or a person who has become incapable or a person whose presence cannot be procured as 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.

Illustrations (k) and (l) relate to this provision (Clause e), which read as:

(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.

Statement as to relationship in a plaint in a prior suit by the deceased will be relevant under this clause. Statement regarding age will be relevant. Statement in a will regarding adoption will be relevant.

In Dolgobinda Paricha v. Nimai Charan Misra reported in AIR 1959 SC 914, the Supreme Court admitted under section 32 (5) of the Evidence Act (Section 26 (e) of the Bharatiya Sakshya Adhiniyam), statement relating to the pedigree of the plaintiffs in the subject title suit made by the deceased and others contained in a petition filed in a previous suit. It was also shown that the deceased had special means of knowledge of the said relationships.

The Court observed:

Four conditions must be fulfilled for the application of sub-s. (5) of S.32 (Section 26 (e) of the Bharatiya Sakshya Adhiniyam):

firstly, the statements, written or verbal, of relevant facts must have been made by a person who is dead or cannot be found etc., as mentioned in the initial part of the section;

secondly, the statements must relate to the existence of any relationship by blood, marriage or adoption;

thirdly, the person making the statement must have special means of knowledge as to the relationship in question; and

lastly, the statements must have been made before the question in dispute was raised.

In some title suits issues relating to the relationship of the parties with the deceased property owner may arise and in such cases questions as to the admissibility of old genealogies may come in. In this regard      a three judges bench of the Supreme Court, in State of Bihar v. Radha Krishna Singh, reported in AIR 1983 SC p.684, opined:

“The courts in relying on the genealogy put forward must guard themselves against falling into the trap laid by a series of documents or a labyrinth of seemingly old genealogies to support their rival claims.

 The principles governing such cases may be summarised thus:

(1) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved but there are several considerations which must be kept in mind by the courts before accepting or relying on the genealogies.

(a) Source of the genealogy and its dependability.

(b) Admissibility of the genealogy under the Evidence Act (the Bharatiya Sakshya Adhiniyam).

(c) A proper use of the said genealogies in decisions or judgments on which reliance is placed.

(d) Age of genealogies.

(e) Litigations where such genealogies have been accepted or rejected.

(2) On the question of admissibility, the following tests must be adopted:

(a) the genealogies of the families concerned must fall within the four corners of S.32(5) or S.13 of the Evidence Act (Section 26 (e) or Section 11 of the Bharatiya Sakshya Adhiniyam).

(b) They must not be hit by the doctrine of post litem motam.

(c) The genealogies or the claims cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible.

(d) where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved.

In State of Punjab v. Mohinder Singh, AIR 2005 SC 1868, the Supreme Court emphasised that School records have more probative value than horoscope. The Court observed:

“Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of S.32, Clause (5) (Section 26 clause (e) of the Bharatiya Sakshya Adhiniyam) must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time etc. mentioned therein. In that context horoscopes have been held to be inadmissible in proof of age. (See Mst. Biro v. Atma Ram (AIR 1937 PC 101),

On the contrary, the statement contained in the admission register of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative is more authentic evidence under S.32, Clause (5) ( Section 26 (e) of the Bharatiya Sakshya Adhiniyam) unless it is established by unimpeachable contrary material to show that it is inherently improbable. The time of one’s birth relates to the commencement of one’s relationship by blood and a statement therefore of one’s age made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in S.32 Clause (5 (Section 26 (e) of the Bharatiya Sakshya Adhiniyam).”

Section 26 (f) of the Bharatiya Sakshya Adhiniyam (Clause (6) of S 32 the Evidence Act) makes relevant statements relating 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.

Clause (e) is wider than Clause (f). Under Clause (f) relationship must be between deceased persons and the statement must have been made in the documents referred in the provision ie 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 etc.

17. Statement In Document Relating to Transaction Mentioned in Section 11 Section 26 (g)

Now we will move on to Section 26 (g) of the Bharatiya Sakshya Adhiniyam (Section 32 (7) of the Evidence Act)

Clause (g) of section 26 reads as:

(g) When the statement is contained in any deed, will or other document which relates to any such transaction as is specified in clause (a) of section 11;

Section 11 (a) (Section 13(a) of the Evidence Act) reads as:

Where the question is as to the existence of any right or custom, the following facts are relevant:–

(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence:

Section 26 (g) of the Bharatiya Sakshya Adhiniyam (Section 32 Clause (7) of the Evidence Act), permits the evidence of a statement of a person who is dead, cannot be found etc, if the statement is contained in any deed, will or other document, which relates to any such transaction as is mentioned in Section 11(a) of the Bharatiya Sakshya Adhiniyam (section 13(a) of the Evidence Act.

Under section 11(a) whenever the proof of a custom or right is in question evidence can be given, of any transaction by which the custom or right in question was created, claimed, modified, recognised, asserted or denied or which was inconsistent with its existence.

The opposite party in the proceeding /suit need not be a party to the transaction.

While Clause (d) deals with verbal and written statement relating to public or general rights and customs in general, clause (g) does not take in oral statements.

In Dwaraka Nath v. Lalchand and Others AIR 1965 SC 1549, the Supreme Court observed:

“Clause (7) (Section 26 (g) of the Bharatiya Sakshya Adhiniyam) makes relevant statements made in deeds, wills and such other documents which relate to transactions by which a right or custom in question “was created, claimed, modified, recognised, asserted or denied” [to add the words of cl. (a) of S.13](11(a) of the Bharatiya Sakshya Adhiniyam). The clause does not allow introduction of parole evidence, see Field on the Law of Evidence 8th Edn. P. 202. Such parole evidence may be relevant under cl. (5) of S.32 ….. cl. (5) (Section 26 clause (e) of the Bharatiya Sakshya Adhiniyam requires that such a statement should have been made before the question in dispute was raised

The statement must have been made in relation to the transaction contained in any deed, will or other document, where it was necessary to make that statement. A mere gratuitous statement is not covered by clause (g) Section 26 of the Bharatiya Sakshya Adhiniyam.

18. Statement is Made by Several Persons Expressing Feelings – Section 26 Clause (h)

Now we will move on to Section 26 Clause (h) (Section 32 (8) of the Evidence Act) which reads as:

When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question. 

Illustration (n) relates to this clause and reads as:

(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.

To prove such remarks it is not necessary to summon and examine as witness the people comprising the crowd, and it could be proved otherwise.

In the English case, Dubost v. Berestford (1810) 2 Camp .512, the plaintiff got a portrait of a husband and wife painted and exhibited the same. In the portrait the wife was painted as extremely beautiful and the husband as the most ugly person. Further a title was also given under the portrait as “beauty and beast”. The defendant seeing the portrait got enraged and tore the portrait into pieces. The defendant contended that the portrait painted was that of his brother and sister – in – law, Mr and Mrs Hope and the portrait was calculated to bring them into public ridicule and therefore he was justified in destroying the portrait. Evidence was adduced of the remarks and exclamations made by the spectators when they identified the portrait as that of Mr. & Mrs. Hope on seeing the portrait. The Evidence of these remarks and exclamations of several persons were held to be relevant. (See Dr V Krishnamachari – Law of Evidence)

19. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated – Section 27

Now we will proceed to Section 27 of the Bharatiya Sakshya Adhiniyam.  (section 33 of the Evidence Act) which reads as follows:

Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, 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 out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or 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 and 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

Under the old Criminal Procedure Code 1898, the witnesses were examined before the magistrate court in the committal proceedings, in some cases later at the trial the witness wouldn’t be available and the prosecution would apply to invoke Section 27 of the Bharatiya Sakshya Adhiniyam (S.33 of the Evidence Act) to use the deposition at the committal stage in the trial. In the Criminal Procedure Code 1976 or in the Bharatiya Nagarik Suraksha Sanhita, there is no such provision for examination of the witness at the committal stage, hence Section 27 does not have application now in such context.

In Chainchal Singh v. Emperor (72 I.A. 270, AIR 1946 PC 1) Lord Goddard observed:

Where it is desired to have recourse to this Section on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person or a litigant in a civil suit that a witness, who is to testify against him should give his evidence before the Court trying the case which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witness to be before the court, and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved. In a civil case a party can if he chooses waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence.

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence.

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Name – Nizam. A, SB A/c No 30083188312, IFS Code SBIN0003054,

ADB Alleppey Branch, State Bank of India.

Payment is optional and not mandatory

Exercise Questions

  1. What is meant by ‘Dying Declaration’? State the provision in the the Bharatiya Sakshya Adhiniyam under which such statements become relevant.
  1. Discuss important legal propositions emerging from relevant case laws relating to the admissibility and credibility of Dying Declarations.
  1. Whether Dying Declaration Can Form the Sole Basis of Conviction?
  2. Discuss the Relevancy of “Statements made in the course of business” in the Bharatiya Sakshya Adhiniyam
  3. Discuss relevancy of genealogies to prove relationships.