BURDEN OF PROOF

The purpose of this research is to identify the principle of “Leterm Mortem” which
means “words said before death” & in a legal term it is called ‘Dying Declaration’. The
word “Dying Declaration” itself tells the meaning But this project highlights those
questions, which have a great value in legal field relating to dying declaration. The study
tells about those statements which converted into dying declaration, different forms of
dying declaration, which are admissible by law, it’s importance in the law & clears that
has it some value or not? And if it has, then what are the exceptions of it?

A statement by a person who is conscious and knows that death is imminent concerning
what he or she believes to be the cause or circumstances of death that can be
introduced into evidence during a trial in certain cases.

A dying declaration is considered credible and trustworthy evidence based upon the
general belief that most people who know that they are about to die do not lie. As a
result, it is an exception to the Hearsay rule, which prohibits the use of a statement
made by someone other thanthe person who repeats it while testifying during a trial,
because of its inherent untrustworthiness. If the person who made the dying declaration
had the slightest hope of recovery, no matter how unreasonable, the statement is not
admissible into evidence. A person who makes a dying declaration must, however, be
competent at the time he or she makes a statement, otherwise, it is inadmissible. A
dying declaration is usually introduced by the prosecution, but can be used on behalf of
the accused.

Word “Dying Declaration” means a statement written or verbal of relevant facts made by
a person, who is dead. It is the statement of a person who had died explaining the
circumstances of his death. This is based on the maxim ‘nemo mariturus
presumuntur mentri’ i.e. a man will not meet his maker with lie on his mouth. Our
Indian law recognizes this fact that ‘a dying man seldom lies.’ Or ‘truth sits upon the lips
of a dying man.’ It is an exception to the principle of excluding hearsay evidence rule.
Here the person (victim) is the only eye-witness to the crime, and exclusion of his
statement would tend to defeat the end of justice. Section 32 of Indian Evidence act
deals with the cases related to that person who is dead or who cannot be found.
I.1 Section 32: Cases in which statements of relevant fact by person who is dead or
cannot be found.—statement, written or verbal, or 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 expanse which,
under the circumstances of the case appears to the Court unreasonable, are
themselves relevant facts in the following cases:

(1) When it relates to cause of death.

(2) Or is made in course of business.
(3) Or against interest of maker.
(4) Or gives opinion as to public right or custom or matters.
(5) Or relates to existence of relationship.
(6) Or is made in will or deed relating to family.
(7) Or in document relating to transaction mentioned in section 13, clause (a).
(8) Or is made by several persons and expresses feelings relevant to matter in
question.

But here, we are studying about ‘dying declaration’ which deals with the cases relate to
cause of death. It is mentioned in sub-section (1) of section 32 of Indian Evidence act.

Section 32 (1) When it relates to cause of death.—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’s 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 exception of death, and whatever may be the
nature of the proceeding in which the cause of his death comes into question.

Illustration
The question is, whether A was murdered by B; or

A dies of injuries received in a transaction in the course of which she was ravished. The
question is, whether A was killed by B under such circumstances that a suit would lie
against B by A’s widow.

Statements made by A as to cause of his or her death, referring respectively to the

murder, the rape and the actionable wrong under consideration wrong under
consideration are relevant facts.

II. Identification Through Dying Declaration

There is no particular form of dying declaration which is identified or admissible in the

eye of law. But that must be functioning as a piece of evidence with the proper
identification.

In a case, Apex court has also held that, “The crux of the whole matter was as to who
had stabbed the deceased & why. These crucial facts are to be found in the dying
declaration.”
II.1 Question answer form

Where the dying declaration was not recorded in question-answer form, it was held that
it could not be discarded for that reason alone. A statement recorded in the narrative
may be more natural because it may give the version of the incident as perceived by the
victim.
II.2. Gestures & signs form

In the case of Queen-Empress v. Abdullah Accused had cut the throat of the

deceased girl & because of that, she was not able to speak so, she indicated the name
of the accused by the signs of her hand, it was held by the full bench of the Allahabad
High Court “If the injured person is unable to speak, he can make dying declaration by
signs & gestures in response to the question.” In another case The Apex Court
observed that “the value of the sign language would depend upon as to who recorded
the signs, what gestures & nods were made, what were the questions asked, whether
simple or complicated & how effective & understandable the nods & gestures were.”
II.3. Language of statement

Where the deceased made the statement in Kannada & Urdu languages, it was held
that the statement could not be discarded on that ground alone, or on the ground that it
was recorded only in Kannada. Where the statement was in Telugu & the doctor
recorded it in English but the precaution of explaining the statement to the injured
person by another doctor was taken, the statement was held to be a valid dying
declaration.
II.4. Oral Declaration

The Apex Court emphasized the need for corroboration of such declaration particularly
in a case of this kind where the oral statement was made by the injured person to his
mother & she being an interested witness. Such declaration has to be considered with
care & caution. A statement made orally by the person who was struck down with a lathi
blow on head and which was narrated by the witness who lodged the F.I.R. as a part of
the F.I.R. was accepted as a reliable statement for the purpose of Section 32.
II.5. Thumb Impression

A dying declaration authenticated by thumb impression was considered to be doubtful in

view of the fact that the victim had sustained 100 percent burns.
II.6. Incomplete Statement

The Apex Court had held that if a deceased fails to complete the main sentence (as for
instance, the genesis or motive for the crime) a dying declaration would be unreliable.
However, if the deceased has narrated the full story, but fails to answer the last formal
question as to what more he wanted to say, the declaration can be relied upon.
II.7. where declarer survives
In a case decided by the Apex Court, the deceased who had made the dying
declaration was seriously injured, but was conscious throughout when making the
statement. The Court held that mirror incoherence in his statement with regard to facts
& circumstances would not be sufficient ground for not relying on his statement, which
was otherwise found to be genuine.
II.8. Absence of medical statement of fitness

Where the dying declaration of a dowry victim was challenged on the ground that
doctor’s certificate of mental fitness for statement was not there, the Supreme Court
attached no importance to that omission, because the case was not wholly dependent
upon the declaration. The facts were on record showing that the injured woman had
gone to the hospital all alone changing vehicles on the way. This was sufficient
evidence in itself to show her fitness.
II.9. Where interested witnesses were attending to the deceased

The Gauhati High Court has held that when the interested witnesses were attending on
the deceased when he was making a dying declaration, & because of the injuries, the
deceased was neither physically or mentally fit, no reliance could be placed on the
dying declaration, in the absence of evidence to show that the deceased was physically
& mentally capable of making the dying declaration, & was not the victim of any tutoring.
II.10. Where statement is not relevant to the cause of death

When the person making the statement is not proved to have died as a result of the
injuries received in the incident, his statement cannot be said to be the statement as to
the cause of his death or as to any of the circumstances of transaction which resulted in
his death.
II.11. Medical Report

The doctor in the hospital clearly recorded in the Accident Register of the Hospital that
the patient was conscious, her orientation was good & that she answered well the
question put to her. Her statement could not be discarded on the basis of her injury or
post-mortem report in which it was said that having regard to the nature of injuries
sustained by the deceased, she could not have been in a position to make a statement.
Where the medical report of fitness was available to the magistrate who was to record
the statement, it was held that it was not necessary for the magistrate to make an
independent inquiry as to fitness.
II.12. Doctor’s statement

In the case of a bride burning, the doctor to whom the deceased was taken for
treatment deposed that soon after her admission, she said that her husband had poured
kerosene on her clothes and set her ablaze. The doctor made a note of it in the case
papers. The testimony of the doctor became supported by the contemporaneous record.
The Court said that the doctor had no reason to falsely depose against the accused or
prepare false case papers.
II.13. FIR as dying declaration
In K.. Ramachand Reddy v. Public Prosecutor, it was held that where an injured person
lodged an FIR & then died, it was held to be relevant as a dying declaration.
II.14. Dowry Death, wife burning etc

The death of a married woman in the matrimonial home three or four months after her
statements expressing the danger to her life has been held by the Apex Court to be a
statement explaining the circumstances of her death. In a case of wife-burning, after
recording her statement that her husband had set afire, she mercifully pleaded that her
husband should not be beaten. It was argued on this basis that she wanted to
exonerate her husband. The court replied:

This is a sentiment too touching for tears & stems from the values of the culture of the
Indian womanhood; a wife when she has been set afire by her husband, true to her
tradition, does not want her husband should to be assaulted brutally. It is this sentiment
which promoted this dying tragic woman to say that even if she was dying, her husband
should not be beaten. We are unable to appreciate how this statement can be
converted into one exculpative of the accused. In a further application of this principle to
a case arising out of  “that atrocious species of murder “ , called wife burning, the Apex
Court said: “The three dying declarations corroborated by other circumstances are
sufficient in our view to bring home the offence. The counsel has sought to discredit
these declarations forgetting that they are groaning utterances of a dying woman in the
grip of dreadful agony which cannot be judged by the standard of fullness of particulars
which witnesses may give in other situations. To discredit such dying declarations for
short- falls here or there or even in many places is unrealistic, unnatural &
unconscionable, if basically there is credibility. The terrible in this case has taken place
in the house & in the presence of the husband who has been convicted. We hardly see
any reason for interfering in this conviction. In a case a bride was 80% burnt when she
had given statement to the doctors. But according to doctors she was in a fit condition to
give st8888888atement. The court said that from the fact of 80% burns no inference
was to be drawn that she could not have been capable of making the statement. Where
the declaration of the deceased wife was deposed only by her mother, the Court held
this to be not sufficient to convict.
II.15. Statements made to or implicating relatives

The Apex court laid down in the subsequent case of Barati v. State of U.P., that a
dying declaration made to the relatives of the deceased, when properly proved can also
be trusted. In this case the deceased who was killed by sprinkling acid on him first made
the statement to his brother & son, repeated it at the police station & again at the
hospital charging the accused, the court held that the statement was worthy of credit.
Where the dying statement was recorded by the wife of the deceased, the Supreme
Court did not reject it only on that ground, though it added that such evidence should be
scrutinized with care.
III. Evidentiary Value of Dying Declaration

In K.R. Reddy v. Public Prosecutor, evidentiary value of dying declaration was

observed as under :-
“The dying declaration is undoubtedly admissible under section 32 & not being
statement on oath so that its truth could be tested by cross-examination, the court has
to apply the scrutiny & the closest circumspection of the statement before acting upon it.
While great solemnity and sanctity is attached to the words of a dying man because a
person on the verge of death is not likely to tell lies or to connect a case as to implicate
an innocent person, yet the court has to be on guard against the statement of the ,/The
court must be satisfied that the deceased was in a fit state of mind to make the
statement after the deceased had a clear opportunity to observe & identify his
assailants & that he was making the statement without any influence or rancor. Once Z
the court is satisfied that the dying declaration is true & voluntary, it can be sufficient to
found the conviction even without further corroboration.”

In Khushal Rao v. State of Bombay, Apex Court laid down the following principles
related to dying to dying declaration:p

(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated. A true & voluntary declaration needs no corroboration.

(ii) A dying declaration is not a weaker kind of evidence than any other piece of
evidence;

(iii) Each case must be determined on its own facts keeping in view the circumstances
in which the dying declaration was made.

(iv) A dying declaration stands on the same footing as other piece of evidence & has to
be judged in the light of surrounding circumstances & with reference to the principle
governing the weight of evidence. ,
l

(v) A dying declaration which has been recorded by a competent Magistrate in the
proper manner, that is to say, in the form of questions and answers, &, as far as
practicable in the words of the maker of the declaration stands on a much higher footing
than a dying declaration which depends upon oral testimony which may suffer from all
the infirmities of human memory & human character.

(vi) In order to test the reliability of a dying declaration the court has to keep in view the
c-sjum 7* m ircumstances like the opportunity of the dying man for observation, for
example, whether there was sufficient light if the crime was committed in the night;
whether the capacity of man to remember the facts stated had not been impaired at the
time he was making the statement by circumstances beyond his control; that the
statement has been consistent throughout if he had several opportunities of making a
dying declaration apart from the official record of it; & that the statement had been made
at the earliest opportunity & was not the result of tutoring by interested party.”
V. Exceptions of Dying Declaration
The exceptions of ‘Dying declaration’ stipulate that where the statements made by dying
persons are not admissible:

IV.1. If the cause of death of the deceased is not in question: If the deceased made
statement before his death anything except the cause of his death, that declaration is
not admissible in evidence.

IV.2. If the declarer is not a competent witness: declarer must be competent witness. A
dying d eclaration of a child is inadmissible. In Amar singh v. State of Madhya
Pradesh,1996 hu Cr LJ (MP) 1582, it was held by M.P. High Court that without proof of
mental or physical fitness, the dying declaration was not reliable.

IV.3. Inconsistent declaration: Inconsistent dying declaration is no evidentiary value.

IV.4. Doubtful features: In Ramilaben v. State of Gujarat it was held by the court that
second degree burn injuries, the injured dying 7-8 hours after the incident, four dying
declarations recorded but none carried medical certificate. There were other doubtful
features, evidence not taken into account.

IV.5. Uninfluenced declaration: it must be noted that dying declaration should not be
under influence of any one.
M,
IV.6. Untrue declaration: it is perfectly permissible to reject a part of dying declaration if
it is found to be untrue & if it can be separated.

IV.7. Incomplete declaration: dying declaration must complete.

IV.8. if the statement relates to the death of another person: If the statement made by
the deceased does not relate to his death, but to the death of another person, it is not
relevant.

.9. Contradictory statements: if a declarant made more than one dying declarations & all
are contradictory, then those all declarations lose their value.

IV.10. Unsound person: where the married dying of burns was a person of unsound
mind & the medical certificate vouchsafed her physical fitness for a statement & not the
state of mind at the crucial moment, t he court said that the statement could not be
relied upon.

IV.11. I If dying declaration is not according to prosecution: in the case of State of  U.P.
v. Madan Mohan the Apex Court held that:

1. It is for the court to see that dying declaration inspires full confidence as the maker ;
JN cvthe dying declaration is not available for cross-examination.

2. Court should satisfy that there was \no possibility of tutoring or prompting.A
3. Certificate of doctor should mention that victim was in a fit state of mind. Magistrate
recording his own satisfaction about the fit mental condition of the declarant was not
acceptable especially if the doctor was available.

4. Dying declaration should be recorded by the executive magistrate & police officer to
record the dying declaration only if condition of the deceased was so precarious that no
other alternative was left.

5. Dying declaration may be in the form of questions & answers & answers being written
in the words of the person making the dying declaration. But court cannot be too
technical.

Section 43 in The Indian Evidence Act, 1872

43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant.—Judgments,
orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the
existence of such judgment, order or decree, is a fact in issue, or is relevant under some other
provisions of this Act. Illustrations

e) A is charged with theft and with having been previously convicted of theft. The previous conviction is
relevant as a fact in issue

Evidence of character is irrelevant in civil cases

Section 52
Section 52 of the Indian Evidence Act provides that in civil cases, a fact
pertaining to the character of an individual is not relevant. It lays the
principle that the character of a party as a piece of evidence can’t be used to
mv anifest that conduct attributed to him is probable or improbable. 

Illustration- 
  ‘A’, a businessman is charged with fraud. 
 In this case, no evidence of the fact can be treated as relevant which
states that he is an honest man i.e. the character is such that he can
never commit fraud.
 Neither can the opposite party present evidence of the fact that A’s
character had been so trickery that he must have committed the
fraud.

The reasons behind the irrelevance are that a case has to be decided based
on the facts of the case and not the character of the parties. Evidence of
conduct doesn’t just delay the proceedings but also hampers and impairs the
mind of the judge. In civil cases, previous convictions of the accused person
are irrelevant.

There are a few exceptions to Section 52-

 Section 55 of the Evidence Act provides that in civil cases, evidence

of the good or bad character of the person that is to receive the
amount of damages is relevant. The character of the original plaintiff
is relevant. 

For example- In a case of the action of damages for rape or seduction, the
character of the plaintiff is relevant as it is likely to affect the damages that
the plaintiff ought to receive.

 When the character of the party is itself a fact in issue then the
evidence pertaining to the character of that party is relevant.  

For example- if divorce is sought on the ground of cruelty of husband, in

such case evidence pertaining to the character of the husband will be
relevant as the cruel character is itself a fact in issue.

In the case of Scott v. Sampson, the court held that the term ‘character’
should mean a man’s reputation and nothing more than “general evidence of
reputation”.
Evidence of previous good character is relevant in
criminal cases 

Section 53
Unlike civil cases where the character is irrelevant, in criminal cases it is
relevant. Section 53 of The Indian Evidence Act provides that in criminal
cases, the good character of the accused person is relevant. The reason
behind this is the basic human psychology that a person of good character
will not generally resort to a criminal act. If goodness is proved it helps in a
presumption of non-commission of the offence by that individual. 

Evidence of good character is always admissible. In a doubtful case, it may

be used to tilt the balance in favour of the accused but in a case where there
is positive evidence of guilt of the accused then the good character cannot
outweigh the positive evidence. It depends on the discretion of the court
that how much weight the evidence of the good character has to be given
while deciding the case.

In the case of Habeeb Mohammad v. State of Hyderabad, the Supreme

Court held that in criminal proceedings, the character of the accused can
help in determining the innocence or guilt of the accused. It can help in
either making him suspicious or free from all the suspicions. Accused is
allowed to prove general good character in the question of punishment.

Evidence of character or previous sexual experience

not relevant in certain cases  

Section 53A
Section 53A of the Indian Evidence Act was inserted by Act 13 of 2013. This
section provides that in cases where the offence is committed under the
following sections of Indian Penal Code-

 Section 354 (Assault or criminal force to woman with intent to

outrage her modesty), 
  Section 354A (Sexual harassment and punishment for sexual
harassment), 
 Section 354 B (Assault or use of criminal force to woman with intent
to disrobe),
 Section 354 C (Voyeurism),
 Section 354 D (Stalking), 
 Section 376 (Rape), 
 Section 376 A (Intercourse by a man with his wife during
separation), 
 Section 376 B (Intercourse by public servant with woman in his
custody), 
 Section 376 C (Intercourse by superintendent of jail, remand home,
etc.), 
 Section 376 D (Gang Rape), 
 Section 376 E (Punishment for repeat offenders) and,
 an attempt to commit such offences 

and the consent or quality of consent is in question, then neither the

character of the accused nor the victim is relevant. Evidence pertaining to
previous sexual acts of the victim is also irrelevant.

Previous bad character not relevant, except in

3Reply   character state

Section 54
According to Section 54 of the Indian Evidence Act, evidence pertaining to
the fact that the accused has a bad character is not relevant in criminal
cases. In other words, the prosecution cannot present evidence of the
accused’s bad character as a part of the main case. 

There are certain exceptions to this section-

 When the accused has submitted any evidence of his good

character, in such a case to rebut, the prosecution can present
evidence pertaining to the bad character of the accused.
 Explanation 1 to Section 54 provides that when the character is itself
a fact in issue then evidence of bad character can be submitted. 
Illustration: In a defamation case, the character of the plaintiff becomes a
fact in issue. Section 110 of the Code of Criminal Procedure provides that if a
person is by habit a robber, a housebreaker, etc. then he is to be bound
down.

In the case of B. Vasanthi v. Bakthavatchalu, the characters of both the

plaintiff and the defendant were facts in issue and the court considered
evidence of the character of both to decide in the best interest, the custody
of the children.  

Bad character isn’t defined in Indian law but it amounts to the general
meaning as interpreted by the society. Explanation 2 of section 54 provides
that evidence showing any previous conviction is also relevant as evidence of
bad character in criminal cases. According to Section 71 of the Indian Penal
Code, any person who is already a previous convict should be sentenced a
longer term of imprisonment than that is awarded ordinarily.   

Character as affecting Damages: Section 55

Section 55 of the Indian Evidence Act states that in cases of civil nature, the
character of the person who is ought to receive the amount of damages is
relevant. This section is an exception to Section 52 mentioned above. The
evidence pertaining to the good or bad character of the accused is irrelevant
whereas evidence of the good or bad character of the victim is relevant.

For instance, in cases of seduction or rape or defamation, the evidence of

the good or bad character of the original plaintiff is relevant to decide the
amount of damages that the plaintiff is ought to receive. This is generally
used to reduce the amount of damages. 

Explanation of this section states that the term character which is used in
sections 52, 53, 54 and 55 includes both reputation and disposition.

 Disposition is often referred to as what a person is in a person’s

reality. A person’s inherent qualities which he had obtained through
education, upbringing or any material condition in life is called
disposition. A bad reputed person may have a good disposition.
 Reputation is often referred to as the general estimation of a person.
It is what other people think about that individual. It is to be noted
 the evidence of those who do not know the individual but have
heard of his reputation is not admissible in court.

Illustration: In the show ‘Suits’, the character Harvey Specter had a

reputation of an arrogant and selfish individual whereas he had a disposition
of a highly confident, self-motivated, practical thinker and focused
individual. Both of these things combiedly defined the character of Harvey
Specter.

Distinction Between Relevancy of character in

Criminal and Civil Cases 
In order to differentiate the first thing to note is that the Indian Evidence Act
talks about two types of characters- good and bad character. 

In cases of civil nature, the evidence pertaining to character is irrelevant as

per Section 52 of the Evidence Act. There are two exceptions to this rule:
first, when the character of the party is a fact in issue then evidence of
character is relevant and second, the character of the person who ought to
receive the amount of damage is relevant(Section 55). 

Whereas in cases of criminal nature, the previous good character of the

accused person is relevant(section 53) but the previous bad character is not
relevant(section 54). Evidence of the bad character of the accused is
relevant in two cases: first, to rebut the evidence of good character
presented by the prosecution and second, when the character of the party is
itself a fact in issue.
MODULE 3

2) Definition of Admission:

According to 17 of Indian Evidence Act, "An admission is a statement, oral or

documentary or [contained in electronic form which suggests any inference as
to any fact in issue or relevant fact. Section 17 Of the Indian Evidence
Act defines Admission.

There are three parts of the definition:

1) It defines term "admission"

2) It says that an admission will be relevant only if it is made by any of the

person specified in the Act.

3) "Admission" is Relevant only in the circumstances mentioned in the Act.

3) Characteristics of Admission : 
    

definition stated above.

1) It may be oral or documentary

2) It is a statement to suggest any inference to any fact in issue or relevant fact.

3) It must be made by any person prescribed under the Act; and

4) It must be made under the circumstance prescribed under the Act.

       The admission must be clear and unambiguous. The admission is

admissible because of the following reasons:

a) Admission as a waiver of proof;

b) Admission as a statement against interest;

c) Admission as evidence of contradictory statement;

d) Admission as evidence of truth.

Admission is the best substantive evidence that an opposite party can rely
upon.

PERSON WHOSE ADMISSION IS RELEVANT

Admissions may be made by the:-

1. Party to the proceedings (Section 18)

2. By the agent of such party who is authorised.

3. Suitor in a representative character, when he held that character.

4. Party having pecuniary or proprietary interests.

5. Predecessor in the title (who was in the title before me).

6. Person whose position or liability in question. (Section 19)

7. Referee (Section 20)

Evidentiary Value of Admission

Admission is not conclusive proof of th B e fact admitted as it is a piece of
prima facia evidence only. But it may operate as an estoppel. The person can
be stopped to deny the truth of the statement.

Supreme Court in Banarasi Das vs. Kanshi Ram, 1963 said, ‘it is a weak
type of evidence, and the court may reject it if the contrary is proved.’
In Bishwanath Prasad vs. Dwarka Prasad, 1974, the Supreme Court met
further observations-

1. Admissions are substantive evidence by themselves though they are not the
conclusive proof of the matter admitted.
2. Admission duly proved are admissible in evidence irrespective of the fact
whether the party making them appeared as a witness or not.
3. Clarification: Admissions will be admissible even when the party is not
called as a witness.

The purpose of contradicting a witness in section 145 and the object of proving

admission here is entirely different. In case of contradiction, it will be
necessary to put the statement to the witness so that he will have an
opportunity to explain it. But it is not so required in admission.

In this context, Justice Krishna Iyer pointed out that admission is substantive
evidence. While the purpose of section 145 is to clear doubt on the
veracity (accuracy, truthfulness, correctness, faithfulness, conformity to
facts) of witness and does not become substantive evidence.