Section 32- Cases in which statements of relevant fact by person who is dead or cannot be found etc. is relevant– Statement written or verbal, or 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 circumstance of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:
- When it relates to cause of death. — When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
Illustration
(a) The question is whether A was murdered by B; orA dies of injuries received n a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit wold lie against B by A’s widow. Statements made by A as to cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration are relevant facts.
Dying Declaration is admissible in evidence being a hearsay evidence. This piece of hearsay evidence is admissible as an exception to the general rule of evidence that hearsay evidence is no evidence in eye of law and it should be discarded as general rule because the evidence in all cases must be direct.
Requirements of Section 32
The section is one of those3 provisions that provide exceptions to the principle of excluding hearsay evidence. The principle of the section is that a person who has the first-hand knowledge of the facts of a case, but who, for reasons stated in the section, such as death or disability, is not able to appear before the court, then his knowledge should be transmitted to the court through some other persons.
Dying Declaration or statements relating to cause of death
Such a statement can be proved when it 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. The statement will be relevant in every case or proceeding in which the cause of that person’s death comes into question. The clause further goes on to say that 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 death comes into question.
The clause incorporates the principle of English law relating to what are popularly known as dying declarations but marks a remarkable departure from them.
Dying declaration in English Law
A ‘dying declaration’ means the statement of a person who has died explaining the circumstances of his death. According to English law the statement is relevant only when the charge is that of murder of manslaughter.
The basis of the rule as to dying declaration was explained in the early case of R v. Woodcock : explained the general principle :
The general principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive of falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth.
While the principle stated in this case relating to the basis on which dying declarations are given credit has been approved, the subsequent cases quite clearly emphasise that declarations made without appreciation of impending death would not be admitted.
The Supreme Court in its decision in P. V. Radhakrishna v. State of Karnataka, noted this in the following words : The principle on which a dying declaration is admitted in evidence is indicated in Latin maxim, nemo moriturus proesumitur mentiri, a man will not meet his maker with a lie in his mouth. Explaining the word “immediate” which was inserted by his Lordship said : “Immediate death must be construed in the sense of death impending, not on that instant, but within a very, very short distance indeed. In other words, the test is whether all hope of life has been abandoned so that the person making the statement thinks that death must follow”. Applying this principle to the facts, his Lordship held that the words “I shall go” should not be taken alone ant the effect of the whole sentence was that she was under the hopeless expectation of death.
An attempt was made in Kusa v. State of Orissa, before the Supreme Court to exclude a declaration on the ground of incompleteness. The statement was recorded by a doctor. It was clear in all respects. To wind up the statement the doctor asked the injured if he had anything else to say. He lapsed into unconsciousness without answering this question. The court held that the statement was not incomplete. It was rightly admitted.
Dying declaration under clause (1) of s. 32
Anticipation of death not necessary
One of the most important departures from English law that the Evidence Act marks is that here it is not necessary that the declarant should be under any expectation of death. If the declarant has in fact died and the statement explains the circumstances surrounding his death, the statement will be relevant even if no cause of death had arisen at the time of the making of the statement.
The statutory authority is S.32(1) itself and the Judicial authority is the leading decision of the Privy Council in Pakala Narayan Swami v. Emperor. The accused was convicted of murder and sentenced to death. The evidence against him was, firstly,his indebtedness to the deceased, secondly, the statement of the deceased of his wife that he was going to the accused, thirdly, the steel trunk was purchased by a Dhobie (washerman) for and on behalf of the accused. Some other details about the arrival of the deceased at the accused’s house, discovery of blood-stained clothes and transportation of the trunk of the station were also proved. The accused appealed to the Privy Council on the grounds that the statement of the deceased to his wife that he was going to the accused was wrongly admitted under S.32(1).
The court said, A variety of questions has been mooted in the Indian Courts as to the effect of this section. It has been suggested that the statement making it must be at any rate near death, that the “circumstances”can only include acts done when and where the death was caused…. Statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person or that he had been invited by such person to meet him, would each to them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a Statement might indeed be exculpatory of the person accused.
The Supreme Court has emphasised the need for effort by courts, as far as possible, to include a statement within the scope of the S.32(1). Hence, statements as to any of the circumstances of the transaction which resulted in the death would be included.
Statement of accused under S.162 Cr.P.C
But the statement of the accused to the police that the deceased arrived at his place was held to be not relevant by virtue of Sec.162 of Cr.P.C. This section provides that a statement made by any person to a police officer in the course of an investigation cannot be used against him in any inquiry or trial.
Proximity of time between statement and death
There has to be proximate relationship between the statement and the circumstances of death. In Rattan Singh v. H.P. the statement of a woman made before the occurrence in which she did that the accused was standing near her with a gun in his hand and this fact being one of the circumstances of the transaction was held to be admissible as a dying declaration being proximate in point of time and space to the happening. Acceptance of Pakala ruling by Supeme Court
The principles thus laid down relating to the relevancy of a dying declaration were accepted by the Supreme Court in Kaushal Rao v. State of Bombay. There were two rival factions of workers in a millarea in Nagpur. Rival factions even attacked each other with violence. In one such violent attack one Baboo Lal was attacked each other with violence. In one such violent attack one Baboo Lal was inflicted a number of wounds in a street at about 9 p.m. He was taken to a hospital by his father and others reaching there at 9.25. On the way he told the party that he was attacked by four persons with swords and spears two of whom he identified as Kaushal and Tukaram. The doctor in attendance immediately questioned him and recorded his statement in which he repeated the above two names. A sub-Inspector also questioned him and noted his statement to the same effect. By 11.35 p.m. A magistrate also appeared and after the doctor had certified that the injured was in a fit condition to make the statement, the magistrate recorded the statement which was again to the same effect. He died the next morning.
On the basis of these declarations recorded in quick succession by independent and responsible public servants and as corroborated by the fact that both the named persons were absconding before they were arrested, the trial judge sentenced Kaushal to death and Tukaram to life imprisonment. The High Court acquitted Tukaram altogether because of the confusion caused by the fact that in the dying declaration he was described as a teli, whereas Tukaram present before the court was a kohli and in the same locality there lived four persons bearing the same name some of whom were telis. But the conviction of Kaushal was maintained and on appeal, the Supreme Court also affirmed the conviction, did not consider it to be absolute rule of law that a dying declaration must be corroborated by other evidence before it can be acted upon. The learned judge had to face the following observation of the Supreme Court itself.
It is settled law that it is not safe to convict an accused person on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subjected to cross examination and because the maker of it might be mentally and physically in a sate of confusion.
Need for Corroboration
The learned judge referred to the circumstances which may detract from the value of a dying declaration, such as the fact that it was not made at the earliest opportunity, or that the statement was put into the mouth of the witness by interested parties or was the result of leading questions, and added that subject to these qualifications “there is no absolute rule of law, or even a rule of prudence, that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon and made the basis of a conviction.
In P.V. Radhakrishna v. State of Karnataka, emphasing this point further still the Supreme Court observed that a dying declaration can be used as a sole basis of conviction. A person on death bed is in a position so solemn and serene that it is equal to the obligation under oath. For this reason the requirement of oath and cross-examination are dispensed with. The victim(declarant)being the only eye-witness, the exclusion of his declaration may defeat the ends of justice. The court has to be on its guard and see for itself that the declaration is voluntary and seems to reflect the truth.
Where there are more than one dying declaration
In Kishan Lal v. State of Rajasthan the oral dying declaration was made her(deceased) to her father, uncle and grandfather. Names of the accused mentioned therein. However she could not mention the name of accused in second dying declaration made before magistrate 5 days after on the ground that she could not recognise any accused because of fire darkness coming to her eyes. Second dying declaration not only giving to conflicting version but there was interse discrepancy in deposition of witness given in support of dying declaration; it was held by Supreme Court that the conviction based on such conflicting and discrepant dying declaration was liable to be set aside.
Some General Propositions : Factors in reliability
The Court laid down the following general propositions :
- There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated.
- Each case must go by its own facts.
- A dying declaration is not a weaker kind of evidence than any other piece of evidence.
4. A dying declaration which has been properly recorded by a competent magistrate, that is to say, in for of questions and answers, and, as far as practicable in words of the maker of declaration of reliable. In State of Karnataka v. Shariff, where the dying declaration was not recorded in question-answer from, it was held that it could not be discarded for that reason alone. A statement recorded in he narrative may be more natural because it may give the version of the incident as perceived by the victim. - To test the reliability of a dying declaration, the court has to keep in view the circumstances like the opportunity of the dying man of observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the declarant was not impaired at the time of the statement, that the statement has been consistent throughout; that the statement has been made at the earliest opportunity and was not the result of tutoring by interested parties.
The statement of the deceased in this case satisfied all these conditions and therefore, the Supreme Court held that it was rightly acted upon by the High court in convicting the appellant.
Where for some unexplained reason the person who noted down (scribe) the statement was not produced, the declaration was not accepted as an evidence.
Statement made to or implicating relatives
The Supreme Court laid down in a case that a dying declaration made to the relatives of the deceased, when properly proved can also be trusted.
F.I.R. As dying declarations and statements recorded by police
Where an injured person lodged the F.I.R. And then died, it was held to be relevant as a dying declaration. A declaration noted down by an Assistant Sub-Inspector even before any F.I.R. Was lodged was held by the Supreme Court to be acceptable. In the circumstances of the case, the court was not able to find any fault in the A.S.I. In not getting the statement recorded by a magistrate. There was also no reason to doubt the correctness and authenticity of the dying declaration. There is a clear provision in S. 162(2) of the Cr.P.C. Saving the validity of such statements. Thus technically, a dying declaration recorded by police alone is relevant both under Sec. 32(1) and by virtue of the saving of such statement under Sec. 162(2) of the Cr.P.C. but even so the Supreme Court had laid down that it is better to leave such a statement out of consideration unless the prosecution satisfies the court as to why it was not recorded by a magistrate or a doctor.
In State of Karnataka v. Shariff, the Supreme Court observed that a dying declaration recorded by police cannot be discarded on the ground alone. There is no requirement of law that a dying declaration must necessarily made to a magistrate.