According to Section 60 of this Act oral evidence must always be direct. For ends of justice the law always demands best evidence to be produced before the court of justice. The best evidence means evidence of the person who has made a statement or has written a document by himself. This is a best evidence of the person who has got firsthand knowledge about facts or original documents. It means the person who has got first-hand knowledge about the facts of the case being entitled only to prove the facts. When a witness appears before the court he is required to take oath and is subjected to cross-examination by the opposite party.
Hearsay evidence, according to Taylor, “all the evidence which does not derive its value solely from the credit given to the witness himself, but which rests also in part on the veracity and competence to some other person.”
Hearsay evidence is not entertained by the courts on the ground that the evidence given by a person who does not have first hand has no direct knowledge. The general rule is that hearsay evidence is not admissible. Sections 32 and 33 of the Evidence Act are exceptions. Such evidence is relevant:
Section 32 provides cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. It provides the following principles:
1. Statements, written or verbal, of relevant facts made by a person are themselves relevant facts in the eight types of cases.
2. The maker of the statement must be
(a) who is dead, or
(b) who cannot be found, or
(c) who has become incapable of giving evidence, or
(d) whose attendance cannot be procured without an amount of delay under the circumstances of the case and appears to the Court unreasonable, or
(e) whose attendance cannot be procured without an amount of expense under the circumstances of the case and appears to the Court unreasonable.
3. The eight circumstances in which in which statement of relevant fact are:
Clause (1): When it relates to cause of death — In this circumstance the maker of the statement must have died.
(i) the statement is made by a person who is dead.
(ii) The statement is as to
(iii) It is relevant only in cases in which the cause of that person's death comes into question.
(iv) 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
(v) It is relevant whatever may be the nature of the proceeding in which the cause of his death comes into question.
Clause (2): Made in course of business. —
(i) The statement was made by such person in the ordinary course of business and
(ii) In particular it consists of any entry or memorandum made by him in
Clause (3): Against interest of maker. —
Clause (4) : gives opinion as to public right or custom, or matters of general interest. —
Clause (5): or relates to existence of relationship. —
Clause (6): or is made in will or deed relating to family affairs. —
Clause (7): or in document relating to transaction mentioned in section 13, clause (a). — When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).
Clause (8): or is made by several persons, and expresses feelings relevant to matter in question. — When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.
Section 32 imposes restrictions upon the admissibility of statements made by persons who cannot be brought before the court to give evidence. As there is no better evidence available the statements made under this section are admitted as principle of necessity. In other words written or verbal statements of relevant facts made by a person:—
Those are relevant under the following circumstances of the case:
This section comes into operation when any statement of a person who is either dead or cannot be found, or incapable to give evidence, or whose attendance is not possible without delay or expenses. Before any previous statement of any one of such persons can be admitted under section 32, at least one condition mentioned in clauses 1 to 8 must be fulfilled. If the person is dead, then the death must be proved. If the person making a statement survives, then the statement cannot be used as a dying declaration. If a person is not found after making certain statement, the court must be satisfied that all efforts of searching were made and exhausted. Similarly a witness after making statements became physically unfit and totally invalid to depose before the court. If that happens the court has to be satisfied by producing true evidence as to his permanent incapacity. Sometimes it may happen that the witness is living in a foreign country and his appearance before the court cannot be possible without unreasonable delay or expense. In this circumstances relevant documents must be produced to satisfy the court that his abode in foreign country is permanent. It may also happen that certain original document is in possession of a person who is in abroad, the production of such document cannot be possible without delay or expenses.
Section 32 (1)—Dying declaration–1. Statement of a dying person (Clause 1)–In the present days the dying declaration has assumed much importance. The question as to how much weight can be attached to a dying declaration is a question of fact. The Supreme Court while admitting the maxim, nemo moriturus proesumitur mentisi (a man will not meet his maker with a lie in his mouth) as the basis of dying declaration, held:
“The general principle on which the 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 to falsehood is silenced and mind induced by most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.”
A statement of a dying person is generally called dying declaration. A dying declaration is a statement made by a person who is at the point of death. Every hope of his life in the world is gone. At that time the declarant is under the expectation of death and there should be no chance of operation of worldly motives. For example, A was assaulted and immediately afterwards died. Before his death A made a statement that “B had assaulted him.” The statement of A is admissible as to the cause of his death. The death, whether it is the result of homicide or suicide is of no matter. The dying declaration may be written or oral or may be partly written and partly oral. In some cases it may be neither written nor oral, but may be consist of some signs or gesture made by the deceased. A dying declaration is, therefore, the last statement of the declarant who as under “settled and hopeless expectation of death.” It is admitted in evidence because it is presumed that no person who is immediately going into the presence of his maker, will do so with a lie on his lip.
Thus the following conditions must be fulfilled before accepting a declaration as dying declaration or not:
Although the dying declaration under Indian law is founded on English law there are differences between the two legal systems:
Section 32(1) of the Evidence Act provides that the statement of the deceased may amount to a dying declaration provided the statement either relates to cause of death or exhibits the circumstances of transaction which resulted in his death. The statement of the declarant as to the cause of death or circumstances leading to death would be relevant in a case in which the cause of his death is the point of issue. If the statement is a reliable piece of evidence it can form the basis of a conviction. The varacity, reliability and truthfulness of the dying declaration would be tested only after the evidence was recorded in court and if on proper evaluation of such evidence, the court came to conclusion that the dying declaration was truthful version then there is no question of any further corroboration as the conviction could be based on such dying declaration only. The deceased stated that the accused poured kerosene on her and set her on fire. Statement were recorded by the magistrate after the doctor found her to be in position to give statement. Doctor endorsed the declaration. The conviction of the accused was proper.
“The circumstances of the transaction which resulted in death” are wider in scope in application than the expression “cause of death.” The proximity of the statement with the actual occurrence has been found in the leading decision of the Privy Council in Pakala Narayana Swami v. Emperor. Their Lordships held:
“The statement related to the circumstances of transaction which resulted in his death and so it was relevant. They also held that, the statement made by the deceased that he proceeding to the spot where he was killed or as to his reason for the 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 of them be circumstances of the transaction and would be so whether the person unknown or was not the person accused. ‘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’ which includes evidence of all relevant facts. It is on the other hand narrower than ‘res gestae.’ Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in death of the declarant, though as for instance in case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual total date. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that the cause of (the declarant) death comes into question.”
The Privy Council expressed the opinion that the statement of the accused was partly confession and partly an explanation for his innocence. By giving him benefit the Privy Council set aside the conviction of the accused. But the statement made by the victim that “he was proceeding to the spot where he was killed or as to his reason for so proceeding or that he was going to meet a particular person or that he had been invited by such particular person to meet him would each of them be circumstances of transaction.” The words statement as ‘to any of the circumstances’ are by themselves capable of expanding the contours of the scope of admissibility. When the word ‘circumstances’ is linked to ‘transactions’ which resulted in his death the sub-section casts the net in a very wide dimension”. The principles laid down by the Privy Council on dying declaration were accepted by the Supreme Court in Khushal Rao v State of Bombay case.
The Supreme Court once held that a dying declaration, as a piece of evidence, stands as the same footing as any other piece of evidence. It has to be judged and appreciated in the light of surrounding circumstances. Its weight is to be determined by reference to the principles governing the weighing of evidence. The dying declaration must be inspiring confidence when it forms basis of conviction. Once the Court is satisfied that the dying declaration is true and voluntary it is sufficient for conviction.
The proximity rule laid down by the Privy Council means the circumstances must have some proximity relating to actual occurrence. But the text of proximity cannot be too literally construed and practically reduced to a cut and dried formula of universal application so as to confine in a strait- jacket. “They were not too remote in time from the point of death” but “being proximate in point of time and space to the happening the entire statement would have to be read as an organic whole and not torn from the context.” The statement of the deceased is admissible only to the extent of briefing the cause of circumstances of the transaction which resulted in death of the deceased. The statement has closed nexus with the actual transaction.
“There is no absolute rule of law, or even a rule of prudence, that a dying declaration unless corroborated by other evidence, is not fit to be acted upon and made the basis of a conviction.” The true and voluntary dying declaration needs no corroboration. It is not essential that the dying declaration should always be corroborated. However, care and caution must be exercised in accepting it as trustworthy evidence. If no infirmity is found the dying declaration can be the sole basis for conviction without any corroboration. There is neither rule of law nor prudence that dying declaration cannot be acted upon without corroboration. The rule requiring corroboration is merely a rule of prudence.
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