Dying Declaration

The general rule is that oral evidence must be direct according to section 60. The person giving the
evidence must be present at the time of submitting evidence. It is because when a person deposes to a
fact in acourt ,he speaks under the sanction of an oath and his statement can be tested by cross
examination. Thus there is some sort of guarantee of the truth of his statement. But sec.32 is an
exception to the rule against hearsay. In the following circumstances statement of relevant fact by 4
kinds of people is relevant.

Written or verbal statements as to relevant fact made by a person i. who is dead ii. who cannot be
found iii. Who has become incapable of giving evidence iv.whose attendance cannot be procured
without unreasonable delay or expense are relevant in the following circumstances,

i. When it relates to the cause of his death.

ii. When it is made in the course of business.

iii.

Dying declaration is a statements made oral or documentary made by a person as to the cause of his
death or as to the circumstances of the transactions resulting in his death. The grounds of admission of
a dying declaration are,

i. Necessity, for the victim being generally the only eye witness to the crime, the excusion of his
statement might defeat the ends of justice. And

ii. the sense of impending death which creates a sanction equal to the obligation to an oath.

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 hop0e of this world has gone
,when every motie to falsehood is silenced and the mind is induced by the most powerful
consideration to speak the truth: a situation so solemn an so awful is considerd by law as creating an
obligation equal to that which is imposed by positive oath administered in a court of justice. 1

Difference between English and Bangladeshi law

i. In English law a dying declaration is admissible only on a criminal charge ,whereas according to
section 32 dying declaration is admissible in all proceedings civil or criminal. In civil proceeding ,for
example, according to hindu succession rules murderer is excluded from inheritance of murdered
person. Dying declaration of the murdered person is relevant in civil proceeding in respect of
murderers succession.

ii. Under the English law the declaration should have been made under the sense of impending death,
whereas under Evidence act it is not necessary that the deceased , at the time of making the dying
declaration, should have been under expectation of death.

1 R Vs Woodcock 1789 1 Leach 500

Can a dying declaration form the basis of conviction

If truthfulness of a dying declaration is accepted ,it can always form the basis of conviction of the
accused ,and if a dying declaration is acceptable as truthful even in the absence of corroborative
evidence, court may act upon it and convict. Truthful, coherent and consistent dying declaration needs
no corroboration and conviction may be based on it.

Whether court will regard the dying declaration or recourse to corroborative evidence depends upon
facts and circumstances. The court must consider the times between declaration and death. Dying
declaration in expectation of death is more reliable than declaration in the absence of expectation of
death.

Person to whom a dying declaration may be made

It may be made to a magistrate , to a police officer, a public servant or private person. It may be
writing or oral ,or made by signs and gestures in answer to question when declarant is unable to
speak. It may take the form of first information report.

When a magistrate records a dying declaration , preferably it should be in question and anser form.
The declaration should be taken down in the exact words of the person making it.The declaration
made spontaneously and willingly is more credible and reliable than suggested one.