Dying Declaration.docx No.docx

DYING DECLARATION (Tentative title) ABSTRACT: Dying declaration is very important documentary evidence. It is hearsay evidence but even then it is given a importance in the court proceedings as it is an exception to hearsay evidence. Recording of dying declaration is very important. If it is recorded properly by keeping in mind the essential ingredients of the dying declaration it retains its full value. Missing any single ingredients of dying declaration makes it suspicious and offenders are likely to get the benefits due to this. KEYWORDS: Dying Declaration, Ipsissima Verba, Evidentiary value, Admissibility CHAPTER I. INTRODUCTION: Dying declaration got its root from the maxim “Nemo moriturus praesumitur mentire” i.e. a man will not meet his maker with a lie in his mouth. A statement made by a person for the cause of his death or the circumstances of the transaction resulting in his death is called a dying declaration. In the Indian context section 32(1) of the Indian evidence act talks about dying declaration .[1] it is admissible in evidence even though it has not been given on oath and the person giving an dying declaration cannot be cross-examined. This is said to be an exception to the rule against hearsay. Admissibility of a dying declaration as a piece of evidence is being carried by the principle of necessity and religious belief of the olden days. The necessity being, that in cases, where victim is the only eye-witness to the crime, the exclusion of his/her statement might defeat the ends of justice[2]. HOW A DYING DECLARATION SHOULD BE? There isn’t any particular form of dying declaration. Still the best form of dying declaration is in the form of questions and answers. However, whenever a dying declaration is being recorded in the form of questions and answers precaution should be taken that exactly what questions are asked and what answers are given by the patient those should be written. A dying declaration can be in the following forms: 1. verbal form; 2. written form; and Gestures and Signs form, if the victim is not in the condition to speak, he can make a dying declaration through signs and gestures in response to the question this was said in the ''Queen vs Abdulla'' case 3. If the victim is not able to speak as well as write, then he can make a gesture in the form of yes or no. this type of dying declaration is also valid.

These procedures will be taken since it is the only form of evidence of a case It is also said that '' Truth sits on the lips of a person who is about to die’ ‘The victim is the sole eye witness and hence such evidence should not be and won’t be excluded. WHO MAY RECORD A DYING DECLARATION? 1.

It is safe when it is recorded by the magistrate.

2.

If there is no sufficient time to call the magistrate, it can be recorded by anybody

3.

If any dying declaration is not recorded by the competent Magistrate, then it is better if the signatures of the witnesses are taken who are present at the time of recording it.

4.

If a declarant made more than one dying declarations and if there are no variance, then it retains its full value but If these declarations are inconsistency or contradictory it won’t be taken. The declarant must be in a fit condition of mind to give the statement when recording starts and till the end.it must be certified by a doctor. in case of where it was not possible to take fitness from the doctor, if there are other witnesses to testify that declarant was in fit condition of the mind then dying declaration can be retained

DYING DECLARATION: AN EXCEPTION TO THE RULE AGAINST HEARSAY Black's Law Dictionary defines hearsay as "A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay evidence is testimony in Court of a statement made out of the Court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out of Court asserter."[3] The hearsay rule doesn’t allow the use of out of Court statements as evidence of the truth of the matters said in that statement. Because the person who is giving this evidence is not telling his experience but that of another person(heard from another person ). Dying declaration is one of the exceptions to the rule against hearsay. The reason for making dying declaration an exception to the hearsay rule arises out of necessity. If this evidence not considered very purpose of justice will be forfeited in certain situation when there may not be any other witness to the crime except the person who has since died.[4].suppose a person dies and he is the last evidence of a particular case then the objective of the case which is to hold justice becomes a useless one, there may come situations when someone would have been shot at or infected with fatal injuries while no one was around. under such situations to let the accused go free just because there was no witness to the crime would result into miscarriage

of justice. Hence, to avoid situations like these the dying declaration has been made an exception to the rule against hearsay. CHAPTERISATION: CHAPTER I. INTRODUCTION Ø HOW A DYING DECLARATION SHOULD BE Ø WHO MAY RECORD A DYING DECLARATION Ø IMPORTANT FACTS TO BE REMEMBERED BEFORE RECORDING DYING CHAPTER II. DYING DECLARATION: AN EXCEPTION TO THE RULE AGAINST HEARSAY EVIDENCE CHAPTER III. CONDITIONS FOR ADMISSIBILITY AND EVIDENTIARY VALUE OF A DYING DECLARATION CHAPTER IV. DISTINCTION BETWEEN INDIAN AND. ENGLISH LAW CHAPTER V. RELEVANCE OF DYING DECLARATION a)

Basis of Dying Declaration : How Problematic?

b)

Evidentiary Value to be Attached to A Dying Declaration.

c)

Procedures and Precautions

CHPATER V. JUDICIAL GUIDELINES ON DYING DECLARTION

[1]S. 32(1) of the Indian Evidence Act provides that a statement by a person since deceased, as tothe cause of his death or any of the circumstances of the transaction that resulted into his death is relevant, irrespective of the proceedings in which the cause of his death comes into question. [2]Sudipto Sarkar& V. R. Manohar, Sarkar on Evidence, 15th edn., vol. l.Wadhwa and Co., Nagpur, 1999, p. 633. [3]Dying Declaration, at http:/www.lawyersclubindia.com/articles [4]Dr. R. K. Gorea, “Critical Appraisal of Dying Declaration” JIAFM, 2004, 26(1).