Dying Declaration

SECTION 3

Evidence

Oral Documentary

• Evidence should emanate from a person who has seen, heard or perceived such facts from
his senses.

• Hearsay evidence is excluded by implication.

SECTION 32(1)

32. Statements, written or verbal, of 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 circumstances of the case,
appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) 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' 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 proceedings in which the
cause of his death comes into question.

• Contains several instances where evidence of persons who cannot be called as witnesses
become admissible.

• The rule in this Section is considered an exception to the hearsay rule.

• The evidence of the exceptions must bear a logical connection to the fact in issue.
Requirements to be established before leading evidence

1. That the maker of the statement is dead

2. That the statement made by the deceased refers to his cause of death or to the
circumstances of the transaction which resulted in his death.

• Such evidence only becomes admissible where the cause of death of the maker of the
statement is in question.

• If the above requirements are satisfied, the statement made by the deceased becomes
admissible regardless of the maker of the statement being under the expectation of death,
at the time of making the statement.

Legal concepts regarding admissibility of evidence

1. The statement could either be in writing by signs or made orally;

Section 32 does not refer to the term “oral” but refers to the term “verbal”.

Chandrasekara alias Alisandiri Vs King

- Nod of assent by a dying woman is admissible.

Palaniandy v The State

- Statement made by a child can be considered as a dying declaration.

2. The statement must be regarding the cause of death or the circumstances of the
transaction which resulted in the death of the maker.

Livera v Abeywickrema

- Any statement sought under S32(1) must relate to the cause of death of the maker or
any other circumstance of the transaction which resulted in the maker’s death. Section
32(1) will not apply to a case where the death was suicide.

3. The statement referred to in S.32(1) of the Evidence Ordinance is admissible if the

statement made by the deceased related to the cause of death or the circumstances
irrespective of the point of time it was made.
King v Arnolis Perera

- A girl disappeared from Gampaha, her corpse was found the following day laying in a
threshing floor about a half a mile from her house.
- The wathcher of the Gampaha botanic garden was prosecuted.
- Prosecution relied on a statement made by the deceased to her daughter, to the effect
that she is going to Rambukkana with the accused.
- It was held that the provisions of S.32(1) is limited to statements made by a person after
the event which resulted in his death.

King v Mudalihamy

- statement made to mistress which was before the event which resulted in death and before
the deceased had any reason to expect to be killed was considered admissible.

King v Marshall Appuhamy

- Statement sought under S.32(1) may be one which was made before the cause of death
arose or before the deceased had any reason to expect to be killed. The transaction
cannot be limited to the physical cause of death but would include connected events which
culminated in death.

4. A dying declaration made under Section 32(1) is admissible even to implicate the
accused for a murder of any other person other than the declarant.

King v Samarakone Banda

- Deceased’s father made a statement to the police before succumbing to his injuries.
Dying declaration was admissible as a relevant fact.

5. A statement would not be admissible under Section 32(1) if there is no connection

between the alleged cause in the statement and the immediate cause of death.

King v Herashamy

- Statement was not admissible as the cause of death reported was bed sores whereas the
incident involved assault.
 6.The manner in which a dying declaration is to be treated.

King v Asirvadan Nadar

a)The jury must be specifically and adequately cautioned that a dying declaration amounts to
hearsay but is admissible under Section32(1),

b) That the jury must be invited to consider that the maker of a dying declaration has not been
tested by cross-examination,

c) In accepting a dying declaration, the jury must be invited to consider how the other facts and
surrounding circumstances would support the truth of the dying declaration.

7.Can a conviction be entered upon solely upon a Dying declaration?

Sigera v Attorney General

- An accused can be convicted of murder based mainly and solely on a dying declaration
made by a deceased without corroboration in certain circumstances.

Queen v Fernando

- A dying deposition should not be treated as an inferior kind of evidence and it would
amount to a misdirection to hold that such a deposition is diminished in weight by the
absence of cross-examination.