ADVOCATE YASMEEN ANSARI
Under the English Law, it is essential for the admissibility of dying declaration that the declarant must have entertained a settled hopeless expectation of death, but he need not is expecting immediate death. Indian Law doesn’t put any such restrictions. It’s not required under Indian Law that the maker should be under expectation of imminent death, neither is it restricted to case of homicide only. If the maker survives, it’s going to be used to corroborate or contradict his statement within the court.
According to sec 32(1) itself:
- A statement could also be oral or written. But within the Emperor v. Abdullah was held that conduct to be relevant in dying declaration.
- The statement must be on :-
- Cause of death.
- Circumstances of the transaction.
- Resulted in the death.
In Pakala Narayan swamy V/s Emperor, 1939, the statement made to his wife that he was getting to the accused to gather money from him by the deceased was held to be admissible under sec 32(1) of the Indian Evidence Act 1872.
It’s a crucial piece of evidence. Though there’s a significant flaw but it still carries weight within the court of law. It constitutes radical departure from the established principles of evidence because the statement and its veracity can’t be cross examined and virtually admissibility of evidence.
Basic to the entire process is that the avowed sanctity of an individual who utters last word before leaving the planet and honestly averring the involvement of a person who inflicted injuries on him leads to his death.
Obviously prosecution will attempt to find force in it enabling him to punish the offender and therefore the defence is shattering the prosecution story of weakening the force therein to determine doubts for getting exonerated from the criminal liability that he facing trial. Between two extremes such depends upon the adjudicating officer to give due and reasonable weight to such evidence. In due course of your time Indian Courts have evolved the principle of caution and what’s marshalled is clarity rule.
If the statement is obvious, unambiguous, pointed and match or support the prosecution story beyond and unerringly courts will lean heavily in favour of using the statement. Evidence of a fact is to be adduced and therefore the balance of admissibility has got to be accepted by the presiding adjudicator.