This article has been written by Pankhuri Anand, a student of Banasthali Vidyapith, Rajasthan. This article discusses the aspects of Indian Evidence Act regarding the statements by a person who cannot be called as a witness.

Introduction

As a general rule of law, oral evidence is required to be direct and the oral evidence is required to be stated before the court by the person who received the first-hand knowledge of the facts. When any witness appears before the court he needs to give his testimony on oath and there are also the provisions of examination-in-chief, cross-examination and re-examination. But there is a certain class of person whose statements are recorded who are not considered to be a witness. 

Hearsay rule

One of the exceptions to the general rule is hearsay evidence which is considered inadmissible as it is not stated on oath and there is no opportunity of cross-examining the original source by the party against whom the proof is given. Also, there can be chances of falsehood. 

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Illustration:

A stabbed B and C was present at the scene of a crime, so he is a first-hand witness. His testimony will be recorded on oath and he can be cross-examined. He can even be held liable if he gives any false statement or any misleading statement. But if there is D who gives a statement that C told D that A stabbed B, it will be a second-hand witness and the hearsay rule will be applicable.

The hearsay rule is mainly based on two major considerations:

1. The necessity of the evidence.
2. The circumstantial guarantees of trustworthiness.

The hearsay evidence is excluded because they are considered untrustworthy.

Persons who cannot be called as a witness

Section 32 of the Indian Evidence Act, 1872 is an exception to the general rule and under this section the hearsay evidence is admissible. Under this section, indirect evidence is relevant as held in the case of Mst. Biro v. Atma Ram. 

According to section 32, any written or verbal statement containing relevant facts which is made by a person who is either dead or cannot be found or has been given by a  person who has become incapable of giving evidence or the attendance of such person can require delay or expense which seems unreasonable to the court, are relevant in the following cases:

When the statement is related to causing of death

According to section 32(1), when the question comes to the death of a person and that person gives a statement regarding the cause of his death or about any of the circumstances which led to his death then it is considered to be relevant.

The statements made are considered relevant even if that person making a statement was there or not at the time when the statement was made during the expectation of death.

Illustration:

When the question arises that whether B murdered A or not.

A dead due to the injury caused by B and suit against B is carried on by legal heir of A.

The statement of A regarding his death referring to the murder and other actionable wrongs are relevant facts.

A statement made in the ordinary course of business

A statement which has been made by such person during the ordinary course of business and such statement consists of any statement or entry of memorandum or any book maintained by him in the ordinary course of business. It may be considered of any acknowledgement which has been written and signed for him of any document which is used for commerce which has been written and signed by him according to sub-clause (2) of section 32.

ILLUSTRATION:  When the question in dispute is regarding the question that whether the ship sailed from Kolkata harbour on a particular date then, a letter written by a member of merchant’s firm to the correspondent stating that the cargo has been shipped on the particular date is a relevant fact.

The statement made against the interest of the maker

When a statement made by a person is against his pecuniary or proprietary interest and it will expose him if it is true to criminal prosecution or to the suit of damages then it considered being relevant under section 32(3).

Illustration:

A has made any statement which is against his interest and such statement can expose him, then such statement is relevant.

The statement which gives an opinion as to public right or custom

When a statement is made which gives an opinion regarding the existence of any public rights, customs, or a matter related to the general public interest which it existed, he would have been aware of and when such statement has been made there was no controversy of such rights, customs or matter under section 32(4).

Illustration

If a question arises whether the road is a public way. The statement by X who is a deceased headman of that village is relevant.

The statement as to the existence of a relationship

Under section 32(5), when a statement is given which is related to the existence of a relationship by blood, marriage or adoption by the party making the statement has a special means of knowledge about the existence of such relationship about marriage, blood relation or adoption and such statement is required to be made before the dispute was raised.

Illustration:

If the question of the dispute arises that whether or not A and B are legally married, then the statement of a deceased clergyman that they were married by him under certain circumstances will be relevant.

A statement made in a will or deed in family affairs

When the statement made is related to the existence of a relationship by blood, adoption or marriage between the deceased persons in any deed or will and such will or deed is related to the family affairs of such deceased person then it is considered to be relevant under section 32(6). Such a statement is required to be made before the question in dispute was raised.

ILLUSTRATION: If the question arises that A who is a deceased person, whether the father of B. The statement of A in his will considering B as his son is relevant.

Statement in a document relating to transaction creating a Right or custom

According to section 32(7), when a statement is stated in any will, deed or any other document which is related to the question of the existence of a right or custom under section 13(a) of the Evidence Act,1872. Such a statement should be regarding the existence of a certain right or custom by which such right or custom which is in question was created, coined, recognised or denied.

Illustration:

When an issue arises about a custom or right in a particular area, the statement of X who was present when such right or custom was created is relevant.

A statement made by several persons expressing feelings relevant to the matter in question

When the statement has been made by several numbers of persons who have expressed their feelings on their part, then such statement is relevant under section 32(8).

EXAMPLE: Public opinion about a matter in dispute.

Who can make the above statements?

The person who is dead

The statement made under section 32 must be made by a person who is dead before admitting the statement before this section. The statement of a dead person has been given importance under this section as there can be no better evidence can be laid than the statement made by the dying person himself about his death.

If the person who has made the dying declaration survives then such statement is not admitted under section 32 but under the provision of confession.

The person who cannot be found

When a person disappears and never heard of and his presence as a witness cannot be compelled and such a person makes a statement and the party to the proceeding is able to prove that such person has disappeared but his statement can be proved then such statement can be admitted.

Before such a statement is admitted it is required to be proved that the person who is seeking for admission of such a statement has made an examination of that person with an honest effort.

By the person who is incapable of giving evidence

When a person making a certain statement later become physically unfit and incapable to depose, in such a situation, if the statements made are related to the sub-clauses of section 32 of the Act, then it is admitted and may be proved during the proceedings. This section includes any person who becomes physically incapable of giving a statement on a later stage.

Unreasonable delay or expenses

When there can be unreasonable delay or expenses in the procedure of appearance of a witness, then if his previous statement is relevant, it is admissible.

But, the mere fact that a person is living far away from the place of trial, is not a valid ground of the admission of a statement under section 32. For the admission of a statement under section 32, it must be proved that in the attendance of the person, unreasonable delay and expense will take place.

Dying declaration

The term “dying declaration” is not defined under the Evidence Act but it can be interpreted according to sub-section (1) of section 32. 

As held in the case of Ram Bihari Yadav v. the State of Bihar, “A dying declaration can be defined as a statement made by a person who is dead regarding the reason for the cause of his death and regarding any transaction which resulted in his death. Also when the question of death comes into question then such statements are relevant under section 32 of the Indian Evidence Act. The person making such a statement was under the expectation of death or not at the time when such statement was made comes into question”.

Evidentiary Value of Dying Declaration 

When a dying declaration is made orally and the person gives the name of assailants and it is written by any of them, then it is a valid dying declaration. The people present can dispose of orally that the names of assailants were given by the deceased as held in the case of Nanhu Ram v. the State of M.P.

The oral dying declaration is considered admissible and they are an exception to the general rule of evidence that considers hearsay evidence as invalid evidence in the eyes of law.

In the case of Bable v. State of Chattisgarh, it was held that the oral dying declaration is an exception of the Hearsay evidence.

Even when a dying declaration has been made by the deceased before his wife, father-in-law or any relative in a conscious state and the doctor conducting his post mortem examination has not made a cross-examination about the mental state of the deceased, then also the dying declaration  considered absolutely valid and conviction can be made on the basis of such declaration as held in this case of Prabin Ali v. State of Assam.

In the case of Vijay Pal v. State (Government of NCT) Delhi, it was held by the court that it is clear by the law that when a dying declaration is credible and there is nothing in the record that the condition of deceased was not so that he could have made the statement to a witness. Like in this case when the witness rushed to the house of the deceased, she told him that her husband has poured kerosene on her.

In the case where the death of the deceased by burning by the husband, in such cases, the dying declaration made by the deceased is considered to be totally true and no evidence is present that can prove the contrary. Even the absence of kerosene oil in the deceased hairs cannot render the dying declaration as doubtful as held in the case of Tanua Rabidas v. State of Assam. 

The dying declaration cannot be used for conviction of accused if it is the sole evidence. The conviction cannot be made solely on the basis of dying declaration unless it is corroborated and each case is decided on an individual basis of the case. The circumstances of the case affect the value of the dying declaration. sole evidence

Reason for admissibility of dying declaration in evidence

A dying declaration is admissible in the evidence based on the principle of:

‘Nemo moriturns proesumitur mentiri’ 

This principle means that a man does not lie at the time of his death and he will not meet God with a lie in his mouth”. A dying declaration is considered to be correct as long as confidence is inspired by it in the mind of the Court. A dying declaration is required to be judged according to its circumstances as held in the case of Umakant v. State of Chattisgarh.

As held by the Supreme Court in the case of Uka Ram v. State of Rajasthan, the sense of death leads to the same feeling which a virtuous man get under oath and the principle of admissibility of dying declaration is based upon this principle. The admission of dying declaration is made on the consideration that the declaration has been made by the deceased under extremity. When a person is near death and his hope is gone for this world then it is powerful consideration that he will be speaking the truth.

Indian law is based on the principle that “a dying man seldom lies.

There are two types of statements which are made admissible by section 32(1):

1. A statement stating the cause of death
2. Statement related to any circumstances which resulted in death.

Conditions for dying declaration

The statement is considered as a dying declaration when the statement is made under the following circumstances and conditions:

Cause of death

When a person makes a statement regarding his cause of death or about any circumstances or transaction that resulted in his death then such statement will be considered as a dying declaration and it is considered relevant.

Illustration:

A dies due to assault. Before his death, A makes a statement than B stabbed him with a knife. Such a statement is admissible before the court as a dying declaration and the fact the deceased survived for few days even after a fatal injury does not deprive such statement of being of a character of dying declaration.

The statement related to the cause of death of the deponent is admissible and the time gap between the statement of deceased and the death is considered immaterial.

The statement of the deceased made but the cause of death is something else or some disease, then such statement is not considered as a dying declaration.

When declarant dies of injury that is yet to be proved

For the statement to be considered as a dying declaration it is required to be proved that the cause of his death is due to the injury he received in the incident for which the accused is to be prosecuted. As in the case of Chandra Bhan Singh v. State where the deceased narrated the incident of murder before the police about the attack on him for murder but later it was found that the death of deceased was because he developed cancer. So, the statement of the deceased could not be considered as a dying declaration.

Circumstances which resulted in his death

The expression “any circumstances of transaction that resulted in death” has a wider scope than the expression cause of death. Even if a statement is not considered as a cause of death but it might be admissible under the circumstances which resulted in death.

In the case of Patel Hiralal Joita Ram v. the State of Gujrat, it was held by the court that statement of circumstances that resulted in death is itself enough to expand the scope of admissibility of the declaration. Any statement related to death directly or indirectly, proximately or remotely are considered under this and it expands the ambit of dying declaration.

Intention to use such a statement as dying declaration is not compulsory

In the case Bhagirath v. the State of  Haryana it was held by the Supreme Court that it is not compulsory that while recording the dying declaration that statement is to be used at dying declaration. The intention to use the statement at a dying declaration is not mandatory.

In this case, also the deceased who has suffered the gunshot made his statement but later he died. The statement recorded was considered as the dying declaration.

The person making a statement when not dead

When the person who has made the statement as dying declaration survives and does not die, then such statement is not considered as a dying declaration. It will be considered as confession statement but not as a dying declaration.

Expectation of death

A statement recorded as dying declaration is considered relevant when the person making the statement was or was not having an expectation of death.

The expectation of death does not affect the validity of dying declaration but it affects the weight attached to it. When a person who is making the statement has knowledge that he is going to die and he does not have any hope of recovery left, then the chances of statements to be true increases as held in the case State v. Kanchan [AIR 1954 All 153].

The Supreme Court is also of the view that there is no doubt that when a person is expecting death soon then the chances of falsehood decreases but the value of the statement is not lost if the person is alive for a longer time than expected.

Proximate cause

The statement made as dying declaration must have a proximate relationship with the actual occurrence and not remote as observed by the privy council in the case of Narain Swami v. Emperor. The statement of a person should be regarding the cause of death or circumstances leading to the death of the person and it should be made by the deceased person.

Difference between Indian Law and English Law regarding the dying declaration

The rules regarding the dying declaration are different under English law than the Indian Law as follows:

1. The dying declaration is not admissible in the civil cases under the English Law but under Indian law, the dying declaration can be admissible even in civil cases into question.
2. In the criminal cases under the English Law, the dying declaration is considered only in single instances of homicide such as murder or manslaughter where the circumstances of the death are subject to dying declaration while under the Indian Legal System, the statement made as dying declaration act as evidence whatever the nature of charges may be.
3. As per the English law, for dying declaration certain conditions are required to exist during the time of declaration such as:

• It is important that the declarant should be in actual danger of death and the statement should be made receiving the injury.
• The declarant should be aware of his danger and he should have left every hope of recovery.
• The death should be caused.

Under the Indian Legal system, the third condition of death is necessary as the dying declaration is considered admissible only when the declarant dies but the first two conditions are not mandatory under Indian Law for a declaration to be admissible as dying declaration.

Under section 32 of the Evidence Act, the statement of the deponent is considered as a dying declaration even when he was not in actual danger or he has no actual knowledge of the danger

Under English law, admissibility of the dying declaration depends on the principle that sense of death is produced in a man’s mind some feeling of that is same as a virtuous person giving a statement under oath. When a person is at the verge of death and he has no hope left for life, then the feelings of falsehood disappears and a person’s mind only speaks the truth. Under Indian Law, for consideration of statements as dying declaration and testing its credibility, a weight is given to the facts and circumstances of the case.

Dying declaration recorded by the police

A dying declaration recorded by a police during his course of investigation is considered admissible under section 32 of the Indian Evidence Act but it is better to leave such declaration out of consideration unless the prosecution is able to satisfy the court that why it was not declaration recorded by a magistrate or a doctor as held by the Supreme Court in the case Dileep Singh v. the State of Punjab [1979  CrLJ 700].

Conclusion

There are certain classes of people who cannot be called as a witness but their statement when recorded under certain circumstances, it is considered as relevant. Such as when the statement is made by a person who is dead or a person who cannot be found or the attendance of whom requires unreasonable delay or expenses then the statement made by them regarding his death, or ordinary course of business and certain other conditions as mentioned under section 32 are considered relevant.

One the major statement is the dying declaration. The dying declaration is considered admissible under the Indian Legal system and holds important evidentiary value under law. The dying declaration solely does not lead conviction but under few circumstances of the case, even the sole dying declaration can lead to the conviction of accused.

The consideration of the dying declaration also depends upon the facts and circumstances of the case. There is a major difference between the concept of dying declaration between the English Law and under the Indian Legal System.

The dying declaration and the weight attached to also depends upon the knowledge of the deceased about the expectation of death as there is the concept in the legal system that when a person knows he is going to die, then the statement given by him are not false and it also improves the credibility of dying declaration. 

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References

1. Lal Batuk, The Law of Evidence, 22nd Edition (2018), Central Law Agency;
2. The Evidence Act, 1872