Chapter- VI

Law and Dying Declaration- Indian, American and English

Approach

A. Introduction

Darkling I listen: and, for many a time

I have been half in love with easeful Death,
Call'd him soft names in many a mused rhyme,
To take into the air my quiet breath:
Now more than ever seems it rich to die,
To cease upon the midnight with no pain'.

By calling Death "soft names in many a mused rhyme," Keats, expresses his
past entreaties for a gentle end. He has been "half in love with easeful Death".
He sees it as an end to the sufferings of his life and appreciates it for that.
Death is very often visualized as end of all the sufferings and sorrows of life
and it is the point when one prepares for the meeting with the maker Himself.
Death is a romance born of long hours of contemplation, of one’s aching need
to see beyond the curtain of one’s life. It is believed that in such a mental
state when one is ready to meet his own maker, he will not leave with lie on
his lips. The great Victorian poet Mathew Arnold had written, “truth sits on the
lips of a dying person”. Since long perhaps time immemorial jurists,
criminologists had reposed their faith in the belief that a man will not meet his
maker with a lie in his mouth, which is derived from the maxim “Nemo
moriturus praesumitur mentire”.

When a man is dying, the grave position in which he is placed is held by law
to be sufficient ground for veracity: and, therefore, the tests oath and cross-

examination are dispensed with under such circumstances. Besides, if dying

declarations are excluded there would be miscarriage of justice in many
cases, since the victim being generally the eye witness and in many a cases,
the only eye-witness, the exclusion of the testimony of such a witness, would
leave the court searching & longing for the evidence.

John Keats, "Ode to a Nightingale," 51-56.

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Statements so made by the persons dying if are concerning the causes of the
victim’s injuries or the surrounding circumstances are known as Dying
Declarations. Dying declarations are admissible in evidence almost in all legal
systems. There is a difference between the Indian and English, American
approach towards the admissibility of the dying declaration. The difference
and distinction in approach is important for the present research. Let us now
see the Indian, English and American approaches and difference therein.

B. Indian Approach

Under Indian law, Section 32(1) of the Indian Evidence Act, 1872 deals with
the dying declarations. As per the provisions enshrined thereunder, the “Dying
Declaration” means the statement 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. Section 32 (1) of the Indian Evidence Act runs as under:

Section 32 Cases in which the statement of relevant fact by

person who is dead or cannot be found, etc., is relevant -
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 it relates to the 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 statement are relevant whether the person who made then
was or was not, at the time when they were made, under
expectation of death, and whatever may the nature of the
proceedings in which the cause of this death comes into
question.

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This section is one of those that provide exceptions to the principles of
excluding hearsay evidence. The purpose and reason of the hearsay rule is
the key to the exceptions to it. The theory of the hearsay rule is that the many
possible sources of inaccuracy and untrustworthiness which may be
underneath of bare untested assertion of a witness can be brought to the light
and exposed2.

The principle behind this exception is that a person who has the first hand
knowledge of the facts of a case but who, for the reasons mentioned in the
section, such as death or disability, is not able to appear before the court,
then his knowledge should be transmitted to the court through some person. If
he recorded his knowledge somewhere, that record may be produced or if he
has told the knowledge to another person that other person may appear in
court to testify of what he was told.

It’s very important to note here that this section comes into act when the
person whose statement, which is relevant, is sought to be proved has died,
or cannot be found, or has become incapable of giving evidence or whose
attendance cannot be procured at an amount of delay or expense which
under the circumstances of the case appears to be unreasonable. Since the
present research is pertaining to the dying declarations, the researcher will
confine himself to the circumstances and contexts of the death of such
witness.

Section 32(1) of the Indian Evidence Act had been enacted by the Legislature
as a matter of sheer necessity by way of an exception to the general rule that
hearsay is no evidence and that evidence which has not been tested by
cross-examination is not admissible. The purpose of cross-examination is the
test the veracity of the statements made by a witness. In view of the
Legislature, that rest is supplied by the solemn occasion when it is made,
namely, at a time when the person making the statement was in danger of
losing his life. At such a serious and solemn moment, that person is not
expected to tell lies: and secondly, the test of cross-examination would not be

2 SC Sarkar, Commentary on Law of Evidence Vol. I, p.365 (2006).

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available. In such a case, the necessity of oath also has been dispensed with
for the same reasons3.

As the initial words of this section “Statement, written or verbal” suggest that
the provisions of this section are applicable to both written and verbal (oral)
statements. A court cannot refuse to admit oral evidence of a verbal
statement which fulfills the requirements of this section, merely because the
evidence offered is the testimony of a witness. But a mere statement of a
rumour that the deceased had heard is not admissible under this section4.

A statement of a rumour by the deceased who was murdered that a certain

amount was offered by the accused for the head of the deceased is the
hearsay of the very worst type and cannot implicate the accused in the
offence. Such statement is not admissible as a dying declaration5. It was
observed by the Hon’ble Division Bench of the High Court of Calcutta:

How can evidence of rumour be substantive evidence

implicating the Roys in this offence? It is suggested that it is
admissible as a dying declaration. But it is not and cannot be a
statement made by a person as to the cause of his death or the
circumstances of the transaction which resulted in his death. All
that amounts to, is that the deceased said that he heard a
rumour that these people had offered money for his head6.

Before statement can be admitted under this section in evidence, it must be

proved that the maker of such statement is dead. The death of such person is
to be proved strictly. The statements of dead persons are admitted as relevant
upon the need so that regarding the death of the person the best evidence
can be led. When a person survives his statement cannot be made admissible
under this section7.

What is meant by the expression “written-statements made by a person who

is dead” is that the written statement must have been made by the deceased.

3 Ibid.
4 Ram Krishna Roy v. the State 1953 Cr. L. J 623.
5 Ibid.
6 Ibid.
7 Chaiianandan v. Rex, A.I.R 1942 Madras 450.

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One can made written-statement either by writing himself or by dictating to
someone else. Obviously, a person under the immediate expectation of death
is too decrepit to be able to write himself, so if any such written statement is
produced in court, it has to be proved that the statement was written by the
deceased or it was dictated by him and it was recorded as it was dictated. In
one latest case8, the Apex Court had observed that a person in intoxicated

state cannot write dying declaration. It was alleged in this case that the
accused had forcibly administered liquor laced with poison to the deceased.
The Apex Court upset the judgment of the Punjab and Haryana Court by
holding that person in such a condition could not have written-dying
declaration.

The word “person” here is not to be confused with the word “persons”. If a
statement is made written or verbal, is made by several persons, and one or
some of then is or are dead, and one or others is or are alive, the statement of
the deceased person or persons is admissible under this section
notwithstanding that the other person or persons who also made the
statement is or are alive. In such a case the statement is not one statement,
but each person making the statement must be taken to have made the
statement for himself or herself, and if any one of the makers of the
statements is dead, the statement made by that person is admissible under
this section9.

After getting an idea about the definition and related aspects of the dying
declaration as defined under Section 32(1) of the Indian Evidence Act, let us
proceed further point by point so as to ascertain the purposes for which
absentee statements can be adverted in evidence.

a) Statements relating to the cause of death

Clause (1) of section 32 lays down that when the statement is made by a
person as to the cause of his death, or any of the circumstances of

8 Nanhar and others v. State of Haryana, Crl. Appeal No. 2496 of 2009, decided on June

11, 2010.
9 Chandra v. Nilmadhab (1898) 26 C 236

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transactions which resulted in his death, his statement would be relevant
cases in which the cause of his death is the point at issue and comes into
question. Such a statement can be proved when it is made by a person as to
the causes of his death or relating to the circumstances of the transactions
which resulted in his death.

To avail of the provisions of this clause, the prosecution must establish that
his statement in the dying declaration was made by a person who is dead and
it relates to the cause of his death and that the cause of that person’s death is
in question in the case. When there is nothing to show that the injury to which
a statement in the dying declaration relates was the cause of the person’s
death, or that the circumstances under which it was received resulted in his
death, the statement is not admissible under this clause. If the injuries
received by the declarant are not the cause of his death, and he died of some
other malady such as pneumonia, his declaration cannot be admitted under
the clause.

This section refers to the actual death or to the transaction resulted in the
death10. In Kapiniah v. Emperor*11 a woman was raped and decides three days
later to commit suicide, the rape is not the cause of her death, though it may
be contingent move. Her statement was only held relevant under section 6 of
the Evidence Act, if it is connected with her rape as to form the part of the
same transaction but not under Section 32 of the Act.

The test of relevancy of statement under this clause is not what the final
finding in the case but whether the cause of the death of the person making
the statements comes into the question in the case.

b) Circumstances of the transaction which resulted in death

The words “resulted in death” as used in this section do not mean ‘caused
death’. The collection of words in this clause “any of the circumstances of the
transaction which resulted in the death” is apparently of wider amplitude than

10 Thakur Singh v. Emperor, A.I.R 1929 Lahore 64: 1930 Cr. L J 65

11 Kapiniah v. Emperor 1931 Madras 233(2): 1932 Cr. L. J. 751.

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saying “circumstances that caused death”. There need to be a direct nexus
between “circumstances” and “death”. It is enough if the words spoken of the
deceased have reference of any of circumstances, which has connection with
any of the transactions which ended up in the death of the deceased.

The expression “Circumstances of the transaction” also conveys some

limitations. It is not as broad as the parallels used in ‘circumstantial evidence’.
Circumstances must have some proximate relation to the actual occurrence
and must of the transaction which resulted in the death of declarant.
Circumstantial evidence of the transaction is different from the circumstances
of the transaction itself. It is not necessary that there should be a known
transaction other than the death of the declarant has ultimately been caused,
for the condition of the admissibility of the evidence is that the cause of (the
declarant) death had come into question. The statement disclosing
circumstances in which the deceased got injured and ultimately expired is
admissible under this clause. A statement mere suggestive of the motive
cannot be admitted in evidence unless it is intimately connected with the
transaction itself as a circumstance.

The expression “circumstances of the transaction which resulted in death”

was explained by the Hon’ble Privy Council in the landmark case of Pakala
Narayan Swamy12. It was a case of gruesome murder in which the dead body

cut to several pieces had been found inside a trunk. In the case before
proceeding to Berhampur where the murder took place, the deceased had
told his wife that he was going to the house of Sri Pakala Narayan Swamy to
receive the payment of the amount which had been given by him on loan. The
main point of consideration before the Hon’ble Privy council was that if the
statement made by the deceased to his wife before proceeding to Berhampur
would be admissible under Section 32(1) of the Evidence Act. The Privy
Council was initially finding the words “any of the circumstances of the
transaction which resulted in death” are ambiguous. It was held:

12 Pakala Narayan Swamy v. Emperor, A.I.R 1939 P.C 47.

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 A variety of questions have been mooted in the Indian courts as
to the effect of this Section {Sec. 32(1)}. It has been suggested
that the statement must be made after the transaction has taken
place that the person making it must be at any rate near death,
that the ‘circumstances’ also includes the acts done when and
when and where the death was caused. Their Lordships are of
opinion that the natural meaning of the words used does not
convey any of these limitations. The statement may be made
before the cause of death has arisen or before the deceased
has any reason to anticipate being killed. The circumstances
must circumstances of the transaction: general expressions
indicating fear or suspicion whether of particular individual or
otherwise and not directly related to the occasion of death will
not be admissible13.

It was held by the Hon’ble Privy Council14 that the statement made by the
deceased to his wife was a statement as to one of the circumstances of the
transaction which resulted in the death of the man. The facts of this case are
worth discussing as in the factual background of this case the meaning and
usage of the words “circumstances of the transaction which resulted in
death” will become clear as far as their use in this section is concerned.

The deceased was a man of about 40. He had been a peon with the Diwan of
Pithapur. One of the daughters of the Diwan of Pithapur was married to the
accused Pakala Narayan Swami. After marriage, the accused with his wife
went to live at Berhampur, which was at a distance of about 250 miles from
Pithapur. They came back at Pithapur in the year 1933 and stayed with Diwan
of Pithapur. From the facts of the case as came up before the court, it
appeared that they were in need of money at that time. The wife of the
accused was indebted to the deceased in the sum of Rs.3000/- which she had
borrowed @ 18% interests from the deceased on account of their needs
about a year before the tragedy.

A letter was received by the deceased on Saturday 20th March 1937, which
was not signed by anyone but which, it was reasonably clear that had come
from the accused’s wife, inviting him to come on that day or next day to
Berhampur. It was told to the court by the wife of the deceased that her

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husband had shown him the letter on the same day and had told her that he
was going to accused wife to take her money. On Sunday 21st March, the
deceased left his house to catch a train for the house of accused. But he did
not return to his house. On 23rd March 1937 around noon his body was found
in a steel trunk, chopped into seven pieces in a third class compartment of
Puri. His widow identified his body. For the gruesome murder of the
deceased, the accused Pakala Narayan Swami was tried and was sentenced
to death.

The evidence against the accused was firstly, his indebtedness to the
deceased, secondly, the statement of the deceased to his wife that he was
going to the accused, thirdly, the steel trunk was purchased by a Dhobi
(washer man) for and on behalf of the accused. Some other details about the
arrival of the deceased at the accused’s house, discovery of blood-stained
clothes and transportation of the trunk to the station were also proved.

As discussed above, it was informed to the court by the widow of the

deceased that her husband prior to leaving his house on 20lh March 1937
showed him the letter, written to him by the accused. He had also told her that
he was going to the house of the accused to receive his dues. The defence in
that case had objected to court in treating the letter as material piece of
evidence.

Their Lordships were of the view that this statement related to the
circumstances of the transaction which resulted in his death and so it was
relevant. It was also held that the statement made by the deceased that he
was proceeding to the spot where he was killed or as to his reason for the
proceeding or that he was going to meet a particular person or that he had
been invited by such person to meet him would each of the be circumstances
of the transaction and would be so whether the person was unknown or was
not the person accused. It was held:

Circumstance of the transaction” is a phrase no doubt that

conveys some limitations. It is not as broad as the analogous to
use in “circumstantial evidence” which includes evidence of all
relevant facts. It is on the other hand narrower than ‘res gestae’.

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 Circumstances must have some proximate relation to the actual
occurrence: though, as for instance, in a case of prolonged
poisoning they must be related to the dates at a considerable
distance from the date of actual fatal dose. It will be observed
that the circumstances of the transaction which resulted in the
death of the declarant. It is not necessary that there should be a
known transaction other than that the death of the declarant has
ultimately been caused, for the condition of the admissibility of
the evidence that ‘the cause of the declarant’s death comes into
question15.

It was also observed:

It has been suggested that the statement must be made after

the transaction has taken place that the person making it must
be at any rate near death, that the "circumstances" can only
include the acts done when and where the death was caused.
Their Lordships are of opinion that the natural meaning of the
words used does not convey any of these limitations. The
statement may be made before the cause of death has arisen,
or before the deceased has any reason to anticipate being
killed. The circumstances must be circumstances of the
transaction: general expressions indicating fear or suspicion
whether of a particular individual or otherwise and not directly
related to the occasion of the death will not be admissible,
but statements made by the deceased that he was proceeding
to the spot where he was in fact killed, or as to his reasons for
so proceeding, or that he was going to meet a particular person
or that he had been invited by such person to meet him, would
each to them be circumstances of the transaction, and would be
so ether the person was unknown, or was not the person
accused. Such a statement might indeed be exculpatory of the
person accused.

Circumstances of the transaction" is a phrase no doubt that

conveys some limitations. It is not as broad as the analogous
use in “circumstantial evidence” which includes evidence of all
relevant facts. It is on the other hand narrower than “res gestae".
Circumstances must have some proximate relation to the actual
occurrence.

—It will be observed that the circumstances are of the

transaction which resulted in the death of the declarant16.

Their Lordships also observed:

15
Ibid.
16
Ibid.

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 In the present case, the cause of deceased’s death comes into
question. The transaction is one in which the deceased was
murdered on 21st March or 22nd March, and his body was found
in a trunk proved to be brought on behalf of the accused. The
statement made by the deceased on 20th or 21st March, that he
was setting our the place where the accused live and to meet a
person, the wife of the accused, who lived in the accused’s
home, appears clearly to be the statement as of some of the
circumstances of the transaction which result in his death17.

The principles laid in the Pakala Narayan Swami case18 were accepted by the
Apex Court in Sharad Birdhichand case19. The facts of this case are very
much relevant as in the factual background: the principles laid down can be
clearly understandable. In the words of his Lordship Fazal Ali J:

This is rather an unfortunate case where a marriage arranged

and brought about through the intervention of common friends of
the families of the bride and bridegroom though made a good
start but ran into rough weather soon thereafter. The bride,
Manju, entertained high hopes and aspirations and was not only
hoping but was anxiously looking forward to a life full of mirth
and merriment, mutual love and devotion between the two
spouses. She appears to be an extremely emotional and
sensitive girl at the very behest cherished ideal dreams to be
achieved after her marriage, which was solemnised on February
11, 1982 between her and the appellant, Sharad Birdhichand
Sarda. Soon after the marriage, Manju left for her new marital
home and started residing with the appellant in Takshila
apartments at Pune. Unfortunately, however, to her utter dismay
and disappointment she found that the treatment of her husband
and his parents towards her was cruel and harsh and her
cherished dreams seem to have been shattered to pieces.
Despite this shocking state of affairs she did not give in and kept
hoping against hope and being of a very noble and
magnanimous nature she was always willing to forgive and
forget. As days passed by, despite her most laudable attitude
she found that "things were not what they seem" and to quote
her own words "she was treated in her husband’s house as a
labourer or as an unpaid maid-servant". She was made to
do all sorts of odd jobs and despite her protests to her husband
nothing seems to have happened. Even so, Manju had such a
soft and gentle frame of mind as never to complain to her
parents-in-law, not even to her husband except sometimes. On

17
Ibid.
18
Ibid.
19
Sharad Birdhichand Sarda v. State of Maharashtra, A.I.R 1984 S.C. 235.

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 finding things unbearable, she did protest, and expressed her
feelings in clearest possible terms, in a fit of utter desperation
and frustration, that he hated her. Not only this, when she
narrated her woeful tale to her sister Anju in the letters written
to her (which would be dealt with in a later part of the
judgment), she took the abundant care and caution of
requesting Anju not to reveal her sad plight to her parents lest
they may get extremely upset, worried and distressed.
Ultimately, things came to such a pass that Manju was utterly
disgusted and disheartened and she thought that a point of no­
return had reached. At last, on the fateful morning of June 12,
1982, i.e., nearly four months after her marriage, she was found
dead in her bed20.

There was a serious divergence between the prosecution version and the
defence case as the cause of death of Manju. It was the case of the
prosecution that the accused Sharad Birdhichand Sarda was not at all
interested in her and had illicit intimacy with another girl, Ujvala. He had
practically discarded his wife and when he found things to be unbearable he
murdered her between the night of June 11 and 12, 1982, and made a futile
attempt to cremate the dead body. The matter was reported to the police. Per
contra, the defence had taken a plea that while there was a strong possibility
of Manju having been ill-treated and uncared for by her husband or her in­
laws, being a highly sensitive and impressionate woman she committed
suicide out of sheer depression and frustration arising from an emotional
upsurge.

Both the High Court and the trial court rejected the theory of suicide and found
that Manju was murdered by her husband by administering her a strong dose
of potassium cyanide and relied on the Medical evidence as also that of the
chemical examiner to show that it was a case of pure and simple homicide
rather than that of suicide as alleged by the defence. The High Court while
confirming the judgment of the trial court affirmed the death sentence and
which resulted in appeal by special leave.

The prosecution had relied upon three letters of Manju written to her sister
Anju and friend Vahini. Those letters were analyzed by their Lordships for

20
Ibid.

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ascertaining the various aspects related to the mental state of mind of the
deceased and the circumstances related to her death. After summarizing the
letters, the following inference were drawn in by the Court21:

(a) Manju was a highly emotional and sensitive woman,

(b) She got the shock of her life when due to ill-treatment by
her husband and in-laws she found that all her dreams had
been shattered to pieces after marriage leaving her a
dejected, depressed and disappointed woman,
(c) she had been constantly ill-treated by her in-laws and her
position in the house was nothing but that of an unpaid
maid-servant or a labourer,
(d) she wanted to keep all her worries and troubles to herself
and on no account was she prepared to disclose them to
her parents or even to her sister, lest they also get
depressed and distressed.
(e) no serious allegation of cruelty had been made against
the husband personally by her and she thought that she
herself should suffer out of sheer frustration.

The Apex Court also dealt with the oral dying declaration made by the
deceased said to have been made to her parents and friends. Such
statements were made by her at her last visit to her parental house. She
narrated the troubles and tribulations only in her last visit and not prior thereto.
After discussing the whole circumstances including the letters written by the
deceased to her sister and friend and the narrations made by her to her
parents and friends at her last visit to her parental house, the Apex Court
found those inadmissible in evidence under Section 32(1) of the Indian
Evidence Act. While quoting Woodroffe & Amir Ali’s Law of Evidence22, their
Lordships observed:

A statement must be as to the cause of the declarant’s death or

as to any of the circumstances of the transaction which
resulted in his death i.e. the cause and circumstances of the
death and not previous or subsequent transaction, such
independent transactions being excluded as not falling within
the principle of necessary on which such evidence is received.
When a person is not proved to have died as a result of
injuries received in the incident in question, his statement
cannot be said to be a statement as to the cause of his death

z' Ibid.
22 Woodroffe & Amir Ali, The Law of Evidence, pp. 945-946 (14th Edition).

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 or as to any of the circumstances which resulted in his death.
(AIR 1964 SC 900). Where there is nothing to show that the
injury to which a statement in the dying declaration
relates was the cause of the injured person's death or that the
circumstances under which it was received resulted in his death,
the statement is not admissible under this clause23".

The Apex Court also discussed the law laid down in the Pakala Narayan
Swami Case2*. The court based its observations on what the Ld. writers
Woodroffe & Amir Ali quoted in their Law of Evidence25, in these words:

The expression 'circumstances of the transaction' occurring in

s.32, clause (1) has been a source of perplexity to Courts faced
with the question as to what matters are admissible within the
meaning of the expression. The decision of their Lordships of
the Privy council in Pukala Narayanaswanmi v. Emperor (LR 66
IA 66) sets the limits of the matters that could legitimately be
brought within the purview of that expression. Lord Atkin, who
delivered the judgment of the Board, has, however, made it
abundantly clear that, except in special circumstances no
circumstance could be a circumstance of the transaction if it is
not confined to either the time actually occupied by the
transaction resulting in death or the sense in which the actual
transaction resulting in death took place. The special
circumstance permitted to transgress the time factor is, for
example, a case of prolonged poisoning, while the special
circumstance permitted to transgress the distance factor is, for
example, a case of decoying with intent to murder. But the
circumstances must be circumstances of the transaction and
they must have some proximate relation to the actual
occurrence26.

Further quoting Woodroffe & Amir Ali’s Law of Evidence27, their Lordships
observed:

The clause does not permit the reception in evidence of all such
statement of a dead person as may relate to matters having a
bearing howsoever remote on the cause or the circumstances of
his death. It is confined to only such statements as relate to
matters so closely connected with the events which resulted in

23
Supra note 19.
24
Supra note 12 at p.47.
25
Supra note 22 at p. 946.
26
Ibid.
27
Id at 949.

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 his death that may be said to relate to circumstances of the
transaction which resulted in his death. (LR 66 IA 66).
'Circumstances of the transaction which resulted in his death'
means only such facts or series or facts which have a direct or
organic relation to death. Hence statement made by the
deceased long before the incident of murder is not
admissible28”.

It was also held:

Circumstances must have some proximate relation to the actual

occurrence and must be of the transaction which resulted in the
death of the declarant. The condition of the admissibility of the
evidence is that the cause of the declarant’s death comes into
question. It is not necessary that statement must be made after
the transaction has taken place or that the person making it
must be near death or that the ‘circumstance’ can only include
the acts done when and where the death was caused. -Dying
declarations are admissible under this clause”29.

After discussing the legal propositions related to the matter, their Lordships
further held that the letter written by deceased Manju and her oral statements
made to her relatives might relate to matter perhaps having a remote bearing
on the cause of circumstances of her death. Those circumstances did not
have any proximate relation to the actual occurrence resulting in her death
due to potassium cyanide poison, though, as for instance in the case of
prolonged poisoning they may relate to dates considerably distant from the
date of the actual fatal dose. Those were general impressions of deceased
indicating fear or suspicion, whether of a particular individual or otherwise but
not directly related to the occasion of her death.

In Kans Raj case30, the Supreme Court was once again dealing with another
dying declaration and it has to once again decide about “circumstances of the
transaction which resulted in the death”. Once again the facts of the case are
worth discovering. Sunita Kumari married on 9th July, 1985 was found dead
on 23rd October, 1988 at the residence of her in-laws at Batala in Punjab. The
death was found to have occurred not under the ordinary circumstances but

28
Supra note 12.
29
Ibid.
Kans Raj v. State of Punjab, A.I.R 2000 S.C. 2324.

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was the result of the asphyxia. On post-mortem it was found that the
deceased had injuries on her person including the ligature on the front, right
and left side of neck, reddish brown in colour starting from left side of neck,
below the left angle of jaw passing just above the thyroid cartilage and going
upto a point below the right angle of jaw. The parents of the deceased were
allegedly not informed about her death. It was a shocking occasion for the
brother of the deceased, when he came to deliver some customary presents
to her sister on the occasion of Karva Chauth, a fast observed by married
women for the safety and long life of their husbands, when he found the dead
body of his sister Sunita lying at the entrance room and the respondents were
making preparations for her cremation. Noticing ligature marks on the neck of
her sister, Ram Kishan telephonically informed his parents about the death
and himself went to the police station to lodge a report. On the basis of the
statement of Ram Kishan a case under Section 306 IPC was registered
against the respondents. After investigation, the prosecution presented the
charge-sheet against Rakesh Kumar, husband of the deceased and Ram
Piari, the mother-in-law of the deceased. Ramesh Kumar, brother-in-law and
Bharti, sister-in-law of the deceased were originally shown in Column No.2 of
the report under Section 173 of the Code of Criminal Procedure. After
recording some evidence, Ramesh Kumar and Bharti were also summoned
as accused. The appellant, the father of the deceased, filed a separate
complaint under Section 302 and 304B of the Indian Penal Code against all
the respondents. The Additional Sessions Judge, Gurdaspur vide judgment
dated 28th August, 1990, convicted the respondents under Section 304B I.P.C
and sentenced each of them to undergo 10 year Rigorous Imprisonment. He
also found them guilty for the commission of offence under Section 306 and
sentenced them to undergo rigorous imprisonment for 7 years besides paying
a fine of Rs.250/- each. The respondents were also found guilty for the
commission of offence punishable under Section 498A IPC and were
sentenced to undergo rigorous imprisonment for a period of two years and to
pay a fine of Rs.250/- each. The respondents filed an appeal in the High Court
against the judgment of conviction and sentence passed against them by the
Trial Court and the appellant, father of the deceased, filed a revision petition
against the said judgment praying for enhancement of the sentence to

230
imprisonment for life on proof of the charge under Section 304B of the IPC.
Both the appeals and the revision were heard together by a learned Single
Judge of the High Court who vides her judgment impugned in this appeal
acquitted the respondents of all the charges. The revision petition filed by the
father of the deceased was dismissed holding that the same had no merits.
The matter finally came before the Apex Court.

There arose a controversy before the Apex Court regarding the statements
made by the deceased before her family and acquaintances about the
harassment and cruelty on account of dowry demands by the accused
persons (her in-laws). She had narrated the incidents of her harassments at
the hands of her in-laws time and again and had also apprehended danger to
her life from her in-laws. It was argued by the defence that the statements
made by the deceased before her family and acquaintances were not
admissible under Section 32(1) of the Indian Evidence Act. It was also argued
that there was no evidence as to the cause of death or to the circumstances
leading to the death of the deceased. The Apex Court in this case, re-iterated
the principles laid down in the Pakala Narayan Swami case31. It was also
observed:

The words "as to any of the circumstances of the transaction

which resulted in his death" appearing in Section 32 must have
some proximate relations to the actual occurrence. In other
words the statement of the deceased relating to the cause of
death or the circumstances of the transaction which resulted in
his death must be sufficiently or closely connected with the
actual transaction. To make such statement as substantive
evidence, the person or the agency relying upon it is under a
legal obligation to prove the making of such statement as a fact.
If it is in writing, the scribe must be produced in the Court and if
it is verbal, it should be proved by examining the person who
heard the deceased making the statement32.

Their Lordships further proceeded with their observations and discussions

over the various observations of the different High Courts. Finally it was
observed that the statement made by the deceased to her parents, brother

31 Supra note 15.

32 Supra note 30.

231
and friends before her death was admissible in evidence under Section 32(1)
of the Indian Evidence Act as dying declaration. The Court relied upon its
earlier findings in the Rattan Singh case33 the Court where in it was held that
the expression “circumstances of transaction which resulted in his death”
meant that there need not necessarily be a direct nexus between the
circumstances and death. Even distant circumstance can become admissible
if it had nexus with the transaction which resulted in the death. The facts of
this case are worth discussion as the dictum of the court as above will be
crystal clear in the factual backdrop. The facts are as discussed hereinafter.

Kanta Devi aged 21 was married to Puran Chand and she was living with her
in-laws in her husband’s house at Bhali village. Her husband was working in
the Public Works Department and most-often he was living away from his
family. Her sister-in-law Sheela Devi though married was also residing in the
same house. Rattan Chand after superannuation from military has settled
down in his home village. He obtained a license for possession of a gun. In
course of time Rattan Chand developed some infatuation for Kanta Devi and
he started doting on her with libidinous intentions, but she was not willing to
reciprocate his feelings. This negative response had burgeoned the seed of
rancour in his mind towards Kanta Devi and thenceforth he started harassing
her. When she found him incorrigible she complained to the police about his
lewd conduct. In the proceedings arising out of her complaint, his gun was
seized by the authorities, but he secured it. Nonetheless his bitterness
towards Kanta Devi, instead of abating, was only brimming up. He made
some unsuccessful attempts to retaliate though in one such attempts he could
shoot down one of the pet dogs of her household.

On the night of 6.7.1982, all the inmates of Kanta Devi’s house were sleeping
on the courtyard of the house. As usual her husband was absent from the
house. Around 11 PM, her mother-in-law woke up sensing the intrusion of
someone into their privacy. She asked others whether they had noticed
anyone. Suddenly, Kanta Devi cried out and Rattan Chand was noticed
standing there with his gun. He had gate crashed into their house and shot at

33 Rattan Singh v. State of Himachal Pradesh, 1997 (4) S.C.C 161.

232
Kanta Devi with double barrel gun. The shoal of pellets spewed out of the
mouth of the gun had pierced into her lungs and heart and she died
instantaneously. Kanta Devi was pregnant by four months. Kanta Devi’s
brother-in-law Prakram Chand and his sister Sheela Devi pounced upon the
deceased and in about Sheela Devi succeeded in wresting the gun from him.
But Rattan Chand made his escape good leaving his torch-light and chappals
at the place of incident. Rattan Chand was put on trial. He denied his
involvement in the incident which led to the death of Kanta Devi. However, he
owned the gun produced in this case but he said that police had seized that
gun from his house. He denied the allegation that he was ogling on Kanta
Devi and later developed acerbity towards her. The trial Court disbelieved the
entire testimony of Sheela Devi as well as of Prakram Chand. Rattan Chand
was acquitted and he was permitted him to be armed with the gun again.

The matter went before the High Court. The Division Bench of the High Court
totally differed from the Sessions Court and relied on the testimony of Sheela
Devi as well as of Prakram Chand. The High Court did not take the omission
in the First Information Statement (regarding wresting the gun) seriously as it
did not cause any dent on the otherwise sturdy prosecution nutshell. The High
Court treated the reasoning of the Sessions Judge for sidelining the evidence
of two important witnesses as exceedingly unreasonable. One of the most
important items of evidence in this case was what the deceased had uttered
immediately before she was fired at. When her mother-in-law sensed that
somebody had intruded in the courtyard during the odd hours, the deceased
(near whom the intruder was standing then) spoke out that appellant was
standing nearby with a gun. In a split second the sound of firearm shot was
heard and in a trice the life of Kanta Devi was snuffed off.

One of the important questions was whether the said statement of Kanta Devi,
which was clearly not made under the expectation of death, was admissible
as dying declaration. It was held:

When Kanta Devi (deceased) made the statement that appellant

was standing with a gun she might or might not have been
under the expectation of death. But that does not matter. The
fact spoken by the deceased has subsequently turned out to be

233
 a circumstance which intimately related to the transaction which
resulted in her death. The collocation of the words in Section
32(1) “Circumstances of the transaction which resulted in his
death" is apparently of wider amplitude than saying
"circumstances which caused his death". There need not
necessarily be a direct nexus between "circumstances" and
death. It is enough if the words spoken by the deceased have
reference to any circumstance which has connection with any of
the transactions which ended up in the death of the deceased.
Such statement would also fall within the purview of Section
32(1) of the Evidence Act. In other words, it is not necessary
that such circumstance should be proximate, for, even distant
circumstances can also become admissible under the sub­
section, provided it has nexus with the transaction which
resulted in the death34.

In Sudhakar case35, the Supreme Court was again requested to treat

statement of the prosecutrix as dying declaration made by her to police official
wherein she narrated the events. Apex Court did not treat it as dying
declaration. But in its observations, it explained the phrase “circumstances of
the transaction, which resulted in the death”. Facts of this case are also worth
appreciating. Prosecutrix, a young girl of about 20 years of age was working
as teacher in Zila Parishad Primary School at Banegaon, Maharashtra at a
monthly salary of Rs.300/-. The accused were the headmaster and teacher of
the same school. On one unfortunate morning of Saturday, the 9th of July,
1994 Ms. Rakhi went to her school in the morning as usual. When the school
was closed at about 12 o’clock in the afternoon and all students had gone
back to their homes, the appellants came in the room where Rakhi was sitting
and closed the door and windows of the room. She was forcibly subjected to
sexual intercourse by the appellants and her wailing cries did not have any
effect upon them. She was thus subjected to gang-rape by the appellants.
After the incident Ms. Rakhi went to her house and narrated the incident to
her mother Padmabai, brother Prakash and Uncle Balasaheb @ Balaji. The
incident was also narrated to the father of the prosecutrix who came back
home after two-three days. The matter was reported to the police on 20th
July, 1994. API Laxman Wadje incharge police station Pathri recorded the
statement of the prosecutrix and on that basis Crime Report was registered.
34
Ibid.
35
Sudhakar v. State of Maharashtra, A.I.R 2000 S.C. 2602.

234
Petticoat of the prosecutrix and the metal bangles which she was wearing at
the time of occurrence were seized. After preparation of Panchanama, the
seized articles were sent to the Chemical Analyser for his report.

Prosecutrix was taken for medical examination to Doctor, who reported that
the prosecutrix had been subjected to sexual intercourse in the recent past.
The case was registered and the accused were committed to the Court of
Session for the trial. After the medical examination, the prosecutrix was sent
to stay with her married sister Saraswatibai as it was found that she had lost
her equilibrium of mind and was mentally upset. Having failed to withstand the
humiliation to which she was subjected to on account of rape committed by
the accused, she was stated to have committed suicide on 22nd December,
1994 at about 10.30 p.m at the house of her sister Saraswatibai. Autopsy
was conducted on the same date and the cause of death was reported as
poisoning. In view of the subsequent happenings Section 306 read with
Section 34 IPC was added against the accused persons.

During the trial many witnesses turned hostile. The accused were held guilty
and were convicted by the Sessions Court under Section 376(2) (g) read with
Section 34 of the IPC and also under Section 306 IPC read with Section 34 of
IPC. Criminal appeal filed by the accused was also dismissed by the High
court. The matter finally came up before the Apex Court.

It was the admitted case before the Court that the prosecutrix reported the
matter at the police station after about 11 days from the day of occurrence.
The statement of the prosecutrix could not be recorded before any Judicial
Magistrate or the Criminal Court. It was, however, not denied that her
statement was recorded by ASI on 20th July, 1994 in which she had narrated
the whole incident and explained the delay for not lodging the report earlier.
Both the trial court and the High Court relied upon the aforesaid statement
treating as dying declaration being admissible in evidence under Section 32 of
the Evidence Act. Admissibility of the statement of prosecutrix was of
paramount importance for deciding the appeal before the Apex Court. So their
Lordships proceeded further with the analysis of the statement of the

235
prosecutrix made by her to the police officer. After discussing the provisions of
Section 32(1) of the Indian Evidence Act, it was held:

In this case the statement of the prosecutrix Exhibit P-59 not

directly states any fact regarding the cause of her death. At the
most it could be stretched to say referring to “circumstances of
the transaction” resulting in her death.

The phrase “circumstances of the transaction” were considered

and explained in Pakala Narayana Swami v. Emperor [AIR
1939 PC 47]: “The circumstances must be circumstances of the
transaction: general expressions indicating fear or suspicion
whether of a particular individual or otherwise and not
directly related to the occasion of the death will not be
admissible. But statements made by the deceased that he was
proceeding to the spot where he was in fact killed, or as to his
reasons for so proceeding, or that he was going to meet a
particular persons, or that he had been invited by such person to
meet him would each of them be circumstances of the
transaction, and would be so whether the person was unknown,
or was not the person accused. Such a statement might indeed
be exculpatory of the person accused.

“Circumstances of the transaction” is a phrase no doubt that

conveys some limitations. It is not as broad as the analogous
use in “circumstantial evidence” which includes evidence of all
relevant facts. It is on the other hand narrower than “res
gestae”. Circumstances must have some proximate relation to
the actual occurrence: though, as for instance, in a case of
prolonged poisoning they may be related to dates at a
considerable distance from the date of the actual fatal dose. It
will be observed that “the circumstances” are of the transaction
which resulted in the death of the declarant. It is not necessary
that there should be a known transaction other than that the
death of the declarant has ultimately been caused, for the
condition of the admissibility of the evidence is that “the cause of
(the declarant’s) death comes into question”36.

Their Lordships of the Apex court also discussed the dictum of Protima Dutta
case3,7. In that citation In that case the allegation was that there was
sustained cruelty extending over a period of three years interspersed with
exhortation to the victim to end her life’. Hon’ble Calcutta High Court has
clearly pointed out the nature and limits of the doctrine of proximity and has

Ibid.
Protima Dutta v. State, 1977 (81) Cal WN 713.

236
observed that in some cases where there is a sustained cruelty, the proximate
may extend even to a period of three years. In that connection, the high Court

observed thus:

The ‘transaction’ in this case is systematic ill- treatment for years

since the marriage of Sumana and incitement to end her life.
Circumstances of the transaction include evidence of cruelty
which produces a state of mind favourable to suicide. Although
that would not by it be sufficient unless there was evidence of
incitement to end her life it would be relevant as evidence.

This observation taken as a whole would, in my view, imply

that the time factor is not always a criterion in determining
whether the piece of evidence is properly included within
‘circumstances of transaction’...’38

His Lordship further observed and held that the evidence of cruelty was one
continuous chain, several links of which were touched up by the exhortations
to die. Thus evidence of cruelty, ill-treatment, and exhortation to end her life
adduced in the case must be held admissible, together with the statement of
Nilima (who committed suicide) in that regard which related to circumstances
terminating in suicide’.

Their Lordships in Sudhakar case39 further discussed the dictum of Onkar

case40 wherein the Hon’ble Madhya Pradesh High Court has explained the

nature of the circumstances contemplated by Section 32 of the Evidence Act

thus:

The circumstances must have some proximate relation to the

actual occurrence and they can only include the acts done when
and where the death was caused....Thus a statement merely
suggesting motive for a crime cannot be admitted in evidence
unless it is so intimately connected with the transaction itself
as to be a circumstance of the transaction. In the instant
case evidence has been led about statements made by the
deceased long before this incident which may suggest motive
for the crime41.

38
Ibid.
39
Supra note 35.
40
Onkarv. State of Madhya Pradesh 1974 Cri. L.J 1200..
41
Ibid.

237
The observations of two eminent Judges of the Hon’ble High Court of Madras
in Chinnavalayan case42 were also discussed by the Apex Court where the
Hon’ble Judges of the Madras High Court dealt with the connotation of the
word ‘circumstances’ in the following words:

The special circumstances permitted to transgress the time

factor is, for example, a case of prolonged poisoning, while the
special circumstances permitted to transgress the distance
factor is, for example, a case of decoying with intent to murder.
This is because the natural meaning of the words, according to
their Lordships, do not convey any of the imitations such as (1)
that the statement must be made after the transaction has taken
place, (2) that the person making it must be at any rate near
death, (3) that the circumstances can only include acts done
when and where the death was caused. But the circumstances
must be circumstances of the transaction and they must have
some proximate relation to the actual occurrence43.

After going through the legal proposition and discussing the various dictums
their Lordships were of the view44 that there was no legal evidence before
them to show that the prosecutrix while making her statement had disclosed
her mind for committing suicide allegedly on account of the humiliation to
which she was subjected to on account of rape committed on her person.
The prosecution evidence does not even disclose the cause of death of the
deceased. They were of the view that the circumstances stated in the
statement of the prosecutrix do not suggest that a person making such a
statement would, under the normal circumstances, commit suicide after
more than five and a half months. The statement was thus not treated as
dying declaration and the conviction was set aside.

G S Walia’s case45 is also very relevant on this point. Apex court considered
the admissibility of the statement made by the deceased to the doctor as
dying declaration when the death was caused not directly due to the injuries
suffered by the deceased in the incident.

42
Chinnavalayan v. State of Madras 1959 Mad. L.J 246.
43
Ibid.
44
Supra note 35.
45
G S Waiia v. State of Punjab and others, (1998) 5 S.C.C 150.

238
It was the case of the prosecution that Gurbachan Singh and Harbans Singh
were the brothers of the deceased Balwant Singh. Harjit Singh was the
nephew of the deceased. Balwinder Singh and Avtar Singh were closely
related to him. Though the deceased was serving as a driver he was also
having his own car. On 29.5.1986 at 7.30 p.m Balwant Singh had returned to
Khanna after completing his work and when he was about to sit in his car
which was parked near hotel of one Hari Singh situated at Samrala Chowk, he
was assaulted by Gurbachan Singh, Harbans Singh, Harjeet Singh, Balwinder
Singh, and Avtar Singh with iron rods, a tyre lever and an axe. He was
thereafter taken to the Civil Hospital at Khanna. He was conscious till he was
admitted in the hospital. The hospital authorities informed the police but by the
time they came his condition became worse, and, therefore, his statement
could not be recorded either on that day or on the next day. The doctors
attending the deceased had told the police that the deceased was not in a fit
condition to make a statement. The deceased was then removed from the
Civil Hospital at Khanna to the Civil Hospital at Ludhiana. He was reported fit
to give a statement on 31.5.1986 and thus his statement came to be recorded
by the police on that day. The police officer not finding any grievous injury or
an injury caused by sharp-edged weapon did not register any offence and
preferred to wait till further report was received from the doctor as regards
the nature of injuries received by the deceased. Balwant Singh subsequently
died on 16.6.1986 as a result of those injuries. The trial court accepted the
prosecution case and convicted the accused persons.

On 6.61986, the investigating officer received the report that Balwant Singh
deceased had three fractures. After the receipt of the report, a case against
the accused under section 326 IPC. The investigations were set in rolling.
Balwant Singh expired on 16.6.1986. The police obtained the opinion of the
doctor regarding the cause of the death of the deceased. On the basis of the
medical report, the necessary changes as the nature of the offences were
made and the accused were charge-sheeted and tried for committing the
murder of Balwant Singh. In the postmortem notes the cause of death of
Balwant Singh is stated in the following terms:

239
 In my opinion, death in this case was on account of Pulmonary
Embolism which means blocking of the main artery to the lungs by
piece of clot detached from any other part of the body. This is remote
complication of prolonged bed rest which was in this case due to the
multiple injuries. The injuries themselves were not sufficient to cause
death in the ordinary course of nature and were only indirectly
responsible to cause death due to a remote complication which in this
case was unavoidable. The injuries were ante mortem in nature and
were on account of blunt weapon46.

After considering all the relevant material, the doctor had opined that the
death of Balwant Singh was on account of Pulmonary Embolism and that the
said complication had arisen due to prolonged bed rest which was
necessitated by multiple injuries received by him. The medical evidence thus
clearly shows that though the injuries themselves did not cause the death,
they had necessitated bed rest and that led to Pulmonary Embolism.

The accused persons were convicted by the trial court. But the Hon’ble High
Court discarded the dying declaration on the ground that not being a
statement relating to cause of death it was not admissible under section 32 of
the Indian Evidence Act. The High Court held that the injuries inflicted were
not the cause of death as Balwant Singh died because of Pulmonary
Embolism which was the result of prolonged bed rest and the complications
arising there from. Apex Court considered the statement of the deceased
made to the doctor as admissible under Section 32(1) Indian Evidence Act as
dying declaration. It was held:

The medical evidence thus clearly shows that though the injuries
themselves did not cause the death, they had necessitated bed rest
and that led to Pulmonary Embolism. The evidence of Dr. Aneja
leaves no doubt that the injuries had necessitated bed rest and the
complication which had arisen was unavoidable and was the direct
result of bed rest. The death was the natural consequence of the
injuries caused and it was not because of any negligence or external
factor. Therefore, there is no substance in the contention raised by
Mr. U.R. Lalit that the injuries were only indirectly responsible for
causing death of Balwant Singh and as his death cannot be said to
have been caused due to the injuries caused, the statement made by
him would not fall within Section 32 of the Indian Evidence Act47.

46
Ibid.
47
Ibid.

240
In Kans Raf8, the Apex Court had clarified that that the test of proximity

cannot be stretched to a straight jacket formula. It was observed:

The test of proximity cannot be too literally construed and practically

reduced to a cut-and-dried formula of universal application so as to
be confined in a straitjacket. Distance of time would depend or vary
with the circumstances of each case. For instance, where death is a
logical culmination of a continuous drama long in process and is, as it
were, a finale of the story, the statement regarding each step directly
connected with the end of the drama would be admissible because
the entire statement would have to be read as an organic whole and
not torn from the context. Sometimes statements relevant to or
furnishing an immediate motive may also be admissible as being a
part of the transaction of death. It is manifest that all these statements
come to light only after the death of the deceased who speaks from
death. For instance, where the death takes place within a very short
time of the marriage or the distance of time is not spread over more
than 3-4 months the statement may be admissible under Section 32.

Lately, in Jayendra Saraswathi Swamigal case49, the Apex Court, once again

was faced with the situation where it has to decide whether a statement would
be admissible under section 32(1) of the Indian Evidence Act or not. Shri
Jayendra Saraswathi Swamigal, who was the Shankaracharya of Kanchi Mutt,
Kanchipuram, was arrested on 11.11.2004 from Mehboob Nagar in Andhra
Pradesh on the charges of murder of Sanakararaman. It was the case of the
prosecution that that at about 5.45 p.m. on 3.9.2004 while he was in the office
of Devarajaswamy Devasthanam: two persons armed with aruval came there

and caused multiple injuries to Sanakararaman, In-charge Administrative

Manager, who was sitting on a chair. Three persons were waiting outside and

the assailants escaped on their motor cycles.

According to the case of the prosecution, the Shri Jayendra Saraswathi

Swamigal had entered into a conspiracy with some other co-accused for
getting Sankararaman murdered. The motive for the commission of the
crime is said to be various complaints alleged to have been made by the
deceased levelling serious allegations, both against the personal character of

the petitioner and also his style of functioning as Shankaracharya of the Mutt.

4fi
Supra note 19.
49 Jayendra Saraswathi Swamigal v. State of Tamil Nadu, A.I.R 2005 S.C. 716.

241
The prosecution while opposing the bail application of Shri Jayendra
Saraswathi Swamigal had taken a plea that there was a dying declaration
implicating him. It was argued that the deceased had filed a complaint before
the Commissioner HR&CE not to allow the petitioner to visit China. The
deceased sent several letters alleging that the petitioner was selling
properties of the Mutt: was indulging in corruption and misappropriation of
funds. He also made complaint before Special Commissioner, HR&CE that
the petitioner was not observing the rules of Sanyasa Asrama Dharma: was
leading a luxurious life enjoying mundane comforts: not performing the Pooja
and promoting commercial ventures. It is also the case of the prosecution
that the deceased sent a letter under the name of Somasekara Ganapadigal
alleging that the petitioner was indulging in immoral activities and was having
relationship with women and finally a letter was sent by him on 30.8.2004 to
the petitioner as "last warning" wherein it was said that when the petitioner
went to Thalakeverj, Kaveri river dried: when he went to the only Hindu
Kingdom of Nepal, the entire royal family was wiped out: and when he went to
Kumbakonam, there was a fire tragedy and many innocent lives were lost.

It was also submitted by the counsel for the State that after receipt of this
letter dated 30.8.2004 described as "last warning", the Shri Jayendra
Saraswathi Swamigal called other accused and a conspiracy was hatched for
eliminating the deceased. In the background of these facts, the observations
of the Apex court are very much relevant:

Shri Tulsi has also submitted that there is also evidence of dying-
declaration in order to fasten the liability upon the petitioner and for
this reliance is placed upon the statement of Section. Vaidyanathan,
which was recorded under Section 164 Cr.P.C. on 28.12.2004.
This witness has merely stated that he knew deceased
Sankararaman and used to talk to him and further that at 1.30 p.m.
on 3.9.2004 Sankararaman contacted him over phone and told him
that his petition presented to HR&CE Department was numbered
and if any danger came to him, Jayendra alone will be responsible
for the same. Since the telephonic conversation which the
Sankararaman had with this witness, did not relate to the cause of
his death or as to any of the circumstances of the transaction which
resulted in his death, the same does not come within the purview of

242
 Section 32(1) of the Evidence Act and is not admissible in
evidence50.

The words “circumstances of the transaction which resulted in his death” were
held to envelope far wider amplitude than the cause of death by the Apex
court in another case51. The facts of this case are very much germane and will
explain the phrase “circumstances of the transaction which resulted in his
death” as used in Section 32(1) of the Indian Evidence Act. Asha Ben was
one of the 7 daughters of her father. She was married to Vinod Bhai and from
their wedlock two children were born. Accused developed some affair with
Sharada Ben, the sister of Asha Ben. She resented that for her own reasons.
She had expressed her abhorrence to her sister and also mentioned it to
some other persons. When accused came to know of the above reaction of
the deceased he wanted to settle score with her.

On 21.10.1988 at about 10 A.M., Asha Ben was proceeding to Bal Mandir

school for collecting her child Mital back home. On the way the accused, who
was on a scooter met her and buttonholed her malevolently. He questioned
her for spreading the canard that he and Sharada Ben had illicit relationship.
So doing he took out a can and doused combustible liquid contained therein
on Asha Ben. He then whipped out a lighter and after lighting it hurled its
flame on her. In a trice Asha Ben was transformed into an anthropoid inferno,
screaming and yelling she scampered towards a water-flow to escape from
the devouring fire. She reached the water column situated near the railway
station and sat beneath it, and the water flowed there from eventually
extinguished the flames and embers which enwrapped her. But by then she
was blistered with substantial burns and her clothes incinerated into ashes.
Among the pedestrians there was a lady who flanked Asha Ben with some
clothes to cover up her nudity and a rickshaw was procured for rushing the
charred victim to the hospital.

On coming to know of the incident, Vinod Bhai (husband of Asha Ben)

reached the place and by taking her in a rickshaw, speeded up her route to

Inderpalv. State of M.P, 2003 S.C.C (Cr.) 1049

243
the hospital. Though she was treated in the hospital for nearly a fortnight she
succumbed to her burn injuries on 15.11.1988.

On 21.10.1988, FIR was registered on the basis of the statement made by

Asha Ben to the police officer, who reached the hospital on getting some
uncrystalised information of the episode. In the meanwhile, the Executive
Magistrate on being informed by the doctor who examined the lady visited the
hospital and recorded her statement around 11.15 A.M. In that statement she
mentioned the name of Hiralal Patel as the culprit. After her death the police
continued the investigation and completed it and charge-sheeted the accused
for the offence of murder of Asha Ben.

In the trial, there was practically no dispute that Asha Ben was set ablaze
after dousing her with some inflammable liquid on the morning of 21.10.1988.
But on the question of who the culprit was, the prosecution and the defence
had great divergence. Prosecution relied on the statements made by the
deceased for establishing the identity of the culprit, which included the
statement given to her husband, to the Executive Magistrate and to the police
in the FIR. The Sessions Judge picked out some infirmities in the statements
of the deceased and finally held that those statements cannot be relied on as
dying declarations. He also found that the description of the incident narrated
by Asha Ben is not consistent with probability, particularly when the
investigating officer demonstrated in court how the lighter (alleged to have
been used in setting her ablaze) could be lighted.

The Division Bench of the High Court after re-evaluating the evidence came to
the conclusion that the trial court has grossly erred in rejecting the statements
of the deceased and that the reasons advanced by the trial court were so
erroneous that no court would ever have come to such conclusions. Relying
on the statements of the deceased learned Judges of the Division Bench of
the High Court came to the irresistible conclusion that the identity of the
assailant had been unmistakably established as against the appellant. Hence,
the High Court convicted him and sentenced him.

244
The matter went to the Supreme Court and one of the main arguments was
that the statement of the deceased Asha Ben was not admissible under
Section 32(1) of the Evidence Act as to be used under Section 32 of the
Evidence Act as the said statement related only to the parentage of Hiralal.
The court while discussing the provisions of Section 32 (1) of the Act
observed:

The above provision relates to the statement made by a person

before his death. Two categories of statements are made
admissible in evidence and further made them as substantive
evidence. They are: (1) His statement as to the cause of his death:
(2) His statement as to any of the circumstances of the transaction
which resulted in his death. The second category can envelope far
wider amplitude than the first category. The words statement as to
any of the circumstances is by themselves capable of expanding
the width and contours of the scope of admissibility. When the word
"circumstances" is linked to transaction which resulted in his death
the sub-section casts the net in a very wide dimension. Anything
which has a nexus with his death, proximate or distant, direct or
indirect, can also fall within the purview of the sub-section. As the
possibility of getting the maker of the statements in flesh and blood
has been closed once and for all the endeavour should be how to
include the statement of a dead person within the sweep of the sub­
section and not how to exclude it therefrom. Admissibility is the first
step and once it is admitted the court has to consider how far it is
reliable. Once that test of reliability is found positive the court has
to consider the utility of that statement in the particular case .

The Court then proceeded to discuss the case law on this point. After
discussing its previous dictum in Rattan Singh case53 and Sharad Birdhichand
Sarda case54, their Lordships of the Apex Court observed:

Taking cue from the legal position as delineated above we have to

consider now whether the statement of Asha Ben in Ext.67 related
to any circumstance connected with her death. We cannot overlook
the fact that the context in which she made such statements was
not for resolving any dispute concerning the paternity of a person
called Hiralal or even to establish his parentage. It was in the
context of clarifying her earlier statement that she was set ablaze by
a man called Hiralal whose second name happened to be

“ Ibid.
53 Supra note 33.
54 Supra note 19.

245
 mentioned by her as Laichand. When subsequently she was
confronted by the Investigating Officer with the said description to
confirm whether it was Hiralal son of Laichand who set her to fire,
she made the correction by saying that she made a mistake
inadvertently and that it was Hiralal Joitaram who did it and not
Hiralal Laichand. Thus Ext.67 is inextricably intertwined with the
episode in which she was burnt and eventually died of such burns.
Looking at Ext.67 from the above perspective we have no doubt
that the said statement would fall within the ambit of Section 32(1)
of the Evidence Act55.

c) Expectation of death

Clause (1) of the section 32 of the Indian Evidence Act provides that the
statement shall be relevant in every case or proceeding in which the cause of
death of person comes into question. This clause further goes on to provide
that such statements are relevant whether the person who made them was or
was not, at the time when they were made, under the expectation of death,
and whatever may be the nature of the proceeding in which the cause of
death comes into question. In one of the recent judgments55 Apex Court has
observed that it is not necessary that the declarant should be under the
expectation of death at the time of making the statement.

Thus, it is clear that all such statements made by the person whether oral or
written, as to the cause of his death and or as to the circumstances of the
transaction which resulted in his death do fall in the arena of dying
declarations irrespective of the fact as to whether such person was
apprehending immediate death or not.

When the Indian Evidence Act was enacted, our country was the colony of
Britain. The law on dying declarations was formerly contained in Section 371
of the Act XXV of 1861 and Section 29 of Act 11 of 1855. The Indian Evidence
Act was enacted by the Britishers for us and obviously mainly the principles
were the same. The Indian Evidence Act is a subset of English Act. The
clause (1) of Section 32 of the Indian Evidence Act incorporates the principle

Ibid.
Dharam Pal v. State of U.P. (2008) 17 S.C.C 337.

246
of English law relating to what are popularly known as dying declarations. It is
marked with a noteworthy divergence from the English Law.

C. English Approach

Dying declaration means the statement of a person who has died explaining
the circumstances of his death. According to English law, the statement is
relevant only when the charge is that of murder or manslaughter. In England,
dying declaration first appeared in famous Woodcock case57. In 1788, Silvia
Woodcock was severely beaten. Two days before she died from the
bludgeoning, she told a magistrate that her husband, William Woodcock, was
the perpetrator. For the first time, the court encountered a problem in which
hearsay evidence was available, but the witness was not. In an effort to allow
the magistrate to testify about deathbed statements of Silvia, the court
formulated an exception to the hearsay rule, in the case of a dying declaration
by a person who has received a fatal blow. While delivering the judgment
Eyre C. B. explained the general principle:

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 hope of this world is gone: when
every motive to falsehood is silenced and the mind is induced by the
most powerful considerations to speak truth58.

In another case59, it has been ruled by Coleridge, J. that trial of an indictment

of murder of man-slaughtering and only in such case, a verbal or written-
statement made by the deceased person, whose death is the subject matter
of the charge, although, that stated was not on oath and was not made in the
presence of the defendant is admissible in evidence either against the
defendant or for the defendant provided that it was made at the time when all
hope of living had left the mind of the defendant.

Under the English Law, it can be seen that it is necessary that defendant must
have entertained a settled hopeless expectation of death, death being

57 R. v. Woodcock (1789) 1 Leach 500: 168 E. R 509 (K.B.).

58 Ibid.
59 R. v. Scaife (1836) 1 Mood & R 551.

247
imminent or impending but he need not have been expecting immediate
death.60 In R v. Mead case61, the court was also faced with the similar

question. It was held:

The accused who had been convicted of perjury (giving of false

evidence) obtained an order for a new trial. Before this could take
place he shot dead one of the witnesses. It was sought to prove at
the new trial a declaration of the deceased witness given before his
death in which he stated certain facts material to the charge of
perjury62.

While expressing the opinion of the court Abbott C. J said:

We are all of opinion that the evidence cannot be received....

Evidence of this description is only admissible where the death of
the deceased is the subject of the charge, and circumstances of the
death, the subject of the dying63.

The discussion of the Woodcock case64 is very relevant. In that case, the
prisoner was charged with the murder of his wife. Her statements as to the
circumstances of death were recorded by a magistrate. Death came forty
eight hours after this. She consistently and rationally repeated the
circumstances of the ill-treatment meted out to her and she remained
conscious tili last moment and did not seem at all to be aware of her
approaching dissolution. Her statement was held relevant. The question
naturally before the court was whether she herself apprehended that she was
in such a state of mortality as would inevitably oblige her soon to answer
before her Maker for the truth or falsehood of her assertions. It was difficult to
know from her whether she thought herself likely to live or die while making
the statement to the Magistrate. In these regards, it was observed:

She was mortally wounded and was in condition which rendered

almost immediate death inevitable : her declarations ought to be
considered by a jury as being made under the impression of her

60 R. v. Perry (1908) 2 K.B 697 C.C.A.

61 R. v. Mead (1824) 2 B & C 605: 107 E.R 509 (K.B).
62 Ibid.
63 Ibid.
64 Supra note 57.

248
 approaching dissolution : for, resigned as she appeared to be, she
must have felt the hand of death, and must have considered herself
as a dying woman. She continued to repeat rationally and uniformly
the facts she had disclosed from the moment her senses had
returned, until her tongue was no more capable of performing its
office. Declarations so made are certainly entitled to credit...but the
degree of credit to which they are entitled must always be a matter for
the sober consideration of the jury65.

In a subsequent case66, the principle was further explained. In that case the

prisoner was charged of murder of a woman. It was the case of the

prosecution that he attacked the woman around midnight. There was
sufficient light for her to identify her assailant. After the attack she was taken
to the hospital where the clerk of the Magistrate was called to record her
statement. In her statement, she accused Jenkins of the crime. She was
asked by the clerk “Is it with the fear of death before you that you make these
statements?” and added, “Have you any present hope of your recovery?” Her
reply was “I make statement with no hope of my recovery”. The clerk then
read the statement over to her but before signing it, she desired to add the
words “at present” to her statement, so that the statement would read “I make
the statement with no hope of my recovery at present”.

The defence in that case contested the admissibility of the statement of the
deceased into evidence as dying declaration on the ground that the same did
not satisfy the requirements of the law. It was argued that the clerk of the
Magistrate wrote down that the declaration was made “with no hope of
recovery”. These words are in their terms absolute, but the deceased
deliberately refused to express herseif thus. She said, “No, that is not my
meaning. What I wish to say is not that I have no hope, but that I have no
hope, but that I have no hope at present.” It was argued that the deceased
thus carefully qualified what would otherwise have been an absolute
statement, and in the clearest way showed that she was not entirely without
hope. This declaration, therefore, does not come within the rule which admits
dying declarations. The defence counsel also quoted Greenleaf:

65
Ibid.
66
R. v. Jenkins (1869) L R 1 C. C. R 187: 11 Cox CC 250 (H.L).

249
 The law regards the admission of these declarations with great
jealousy, as they are wanting in these sanctions which guard
evidence in other cases.67.

The prosecution contested these arguments of the defence. It was argued

that the declaration was made “with the fear of death before me, and with no
hope at present of my recovery.” If the words “at present” were omitted the
case would be clear, but these words do not really alter the meaning of the
sentence. The sentiment of hope, or want of hope, must refer necessarily to
the time when the feeling is expressed. “I have no hope,” and “I have no hope
at present,” have the same meaning. Even if some meaning is to be attributed
to “at present” its most obvious signification is, that it is not absolutely
impossible that the deceased should recover. While there is life there is hope,
and therefore there cannot be absolutely any hope of recovery.

It was further argued that the real meaning of the insertion of the words “at
present” appeared in the case. The clerk asked the deceased, “Have you any
present hope of recovery?” She said “None”. He then wrote down “with no
hope of my recovery,” and she corrected this, because it was not what she
had in fact said, and not because it was not what she wished to say. She, no
doubt, saw no difference in meaning between the two sentences. Direct
evidence need not be given to show that the deceased was conscious of
approaching dissolution. This may be inferred from all the surrounding
circumstances. Reliance was also placed over the dictum of Reg v. Brooks.68

The main question before the court was whether the dying declaration of the
deceased was admissible in evidence as dying declaration or not. The court
was of the view that the question of admissibility was totally dependant upon
what passed between the clerk and the deceased just before and at the time
when the statement was made. In the words of his Lordship Kelly C B:

She was asked if she felt she was in dangerous state, whether she
felt she was likely to die? She said “I think so.” She did not express
an absolute belief, but an impression, that she was likely to die. There

Greenleaf on Evidence, Vol.1 i.s. 162, p.233 9th edition as quoted in R. v. Jenkins (1869) L

R 1 C. C. R 187 at page 189.

Reg v. Brooks 1 Cox C. C. 6.

250
 is nothing conclusive in this part of the statement. The clerk then went
on to ask her why she thought that she was about to die, She replied,
“From the shortness of breath.” The clerk says, “Her breath was
extremely short- the answers were disjointed from its shortness.
Some intervals elapsed between her answers.” The clerk then said to
her, “Is it with the fear of death before you that you make these
statements?” and added, “Have you any present hope of your
recovery?” She said “None”. Thereupon he wrote out what he
conceived to the substance of her statement. After detailing the facts
of the case, the statement as he wrote it made her say, “I have felt
great pain in my chest, bosom, and back. From the shortness of my
breath I feel that I am likely to die, and I have made the above
statement with the fear of death before me and with no hope of my
recovery.’” If the deceased had subscribed this declaration, a very
difficult question might have arisen. But it appears that after reading
over these words to her, and asking her to correct any mistake he
might have made, she suggested the words “at present.” She said no
hope “at present” of my recovery. The clerk then inserted words “at
present”.

The question is, whether this declaration as it now stands was

admissible in evidence. The result of the decisions is, that there must
be an unqualified belief in the nearness of death, a belief without
hope that the declarant is about to die, If we look at the reported
cases, and at the language of learned judges, we find that one has
used the expression “every hope of this world gone:” another “settled
hopeless expectation of death:” another “any hope of recovery,
however, slight, renders the evidence of such declaration
inadmissible.” We as judges must be perfectly satisfied beyond any
reasonable doubt that there was no hope of avoiding death: and it is
not unimportant to observe that the burden of proving the facts that
render the declaration admissible is upon the prosecution69.

The court then went on to see the effect of the insertion of words “at present”
in the light of the arguments advanced. It was opined that the insertion of
words “at present” was capable of two constructions. Firstly, when the
statement was read over to her, she might have remembered that what she
had been asked was whether she had “any present hope of recovery,” and
observing that the word “present” was omitted that she merely wished to
correct the discrepancy between the words as spoken and those written down
without wishing to make any alteration in the meaning of those words. On the
other hand, she may have meant to alter and qualify the statement as first
written. She may have wished to express “All I meant to say was, ‘I have no

69
Ibid.

251
hope at present,’” but not to say that she had absolutely no hope. It was held
by the court that out of these two constructions one was in the favour of the
accused and the other was against him. It was held:

The case is capable of either of these two constructions, one of which

is against and the other in favour of the prisoner: and if we had simply
to choose between the two, without anything to guide us as to the
real meaning of the deceased, we should resolve the doubt in favour
of the prisoner in favorem vitae70.

While delivering his judgment his Lordship Byles J expressed his opinion in
the following words:

In this case the deceased said originally she had no hope at present.
The clerk put down that she had no hope. She said in effect when the
statement was read over to her, “No, that is not what I said, nor what I
mean. I mean at present I have no hope:” which is, or may be, as if
she had said, “If I do not get better I shall die”71.

Thus from the above discussions it is clear that it has been held by the
English Courts that only such statements explaining the causes of death of a
person’s death are admissible which are made by the person apprehending
immediate death. Every hope of this world should have gone. In order to
make a dying declaration admissible, there must be an expectation of
impending death and almost immediate death, from the causes then
operating. There must be no hope whatever. One other principle that became
evident with the dictum of above case is that when two views are possible one
favoring the accused and other against him, the view favourable to the
accused is accepted favorem vitae.

Here the question can arise as to whether such statement shall be still
admissible if death does not come immediately after the statement. This was
answered by the Court of Criminal Appeal in the case of R. v. Perry72. The
discussion of the facts of this case and its dictum will further help in
understanding the concept as practiced under English Law.

70
Ibid.
71
Ibid.
72
Supra note 60.

252
Agnes Margaret Summersby was twenty four years of age. She was living
with her parents. On April 9, 1909, she was four months pregnant. On that
she went out, being then in good health, and returned late. On the following
morning, she vomited and her mother, at her request, sent for the Perry, who
was the doctor. He did not come on that day. On next day i.e. April 14, she
again went out. On April 13, Agnes Margaret sent her mother for the doctor,
who then visited her at her home. On April 14, Agnes Margaret had a
miscarriage. On April 16, early in the morning, Perry suggested that a doctor
should be sent for. A Dr. Smith, who was advanced in years and not in
general practice, came about 1 A.M., as he understood that the case was
urgent. He asked Agnes Margaret whether she could account for the
miscarriage and whether she had taken or done anything. She did not reply
but Perry told that she had been frightened by the horse. In her presence Dr.
Smith said, in reply to a question by Perry as to whether there was any
danger, that there was very great danger, and that the deceased might die at
any moment. In cross-examination, he told the counsel that he spoke in a
subdued voice, as he did not wish to add to mental anguish of the deceased,
but that the deceased could have heard him. She made no reply. She was, in
his opinion, suffering great pain.

On the same morning around 9-10 AM, Gertrude Summersby, the sister of the
deceased lay down on the bed beside her and said, “Oh, Meggie, what did
you have that woman for? I don’t like her.” The deceased replied, “Oh Gert, I
shall go, but keep this a secret. Let the worst come to the worst. That woman
opened my womb with something like a crochet hook on Good Friday” (April
9). “She told me to tale a half-quartern of gin and a half penny packet of salts,
and sit on a chamber of hot water, and I got up in the middle of the night and
did it. She told me that when I was bad I was to send for her and not for a
doctor, I laid myself on a sofa with my back towards her and one knee raised.”
When she made such statement, only her sister Gertrude Summersby was
present.

Subsequently at the request of Dr Smith, Dr Haynes was sent for, who arrived
around 11 AM. He asked the deceased in the presence of Perry, what had

253
caused her miscarriage. This was about an hour and half after she had made
the statement to her sister Gertrude Summersby. Perry replied that she was
frightened by a horse. Then the deceased replied that she was going along a
road and that the horse came out of an entry, kicking, and roaring and nearly
made her fall backwards a few days previously. She died on April 16 at 5-5.30
PM.

At the trial, the statement made by the deceased Agnes Margaret to her sister
Gertrude Summersby was tendered by the prosecution as a dying declaration
made by the deceased as to the cause of her death. It was objected by the
defence. It was contended that the said statement was not admissible as
dying declaration as it referred to a future time, and there was nothing in it to
indicate that the deceased when she made it believed that she as on the
verge of death. The words, it was contended, showed that the deceased did
not have a hopeless immediate expectation of death, which was necessary in
order to make the statement admissible. At the trial, Lawrence J., who was
satisfied that the deceased had abandoned all hope of recovery at the time
when she made the statement to her sister, admitted the statement as dying
declaration but expressed the opinion that, although it would be wrong for a
criminal court to be influenced by the fact of existence of the Court of Criminal
Appeal, the point was one of the difficulty (having regard to the conflicting
expressions to be found in the authorities) and one which might well be
considered by that Court. Upon the application of the petitioner, he granted a
certificate that the case was fit for an appeal and the appeal was filed
accordingly.

In the Appellate proceedings, it was argued by the appellate counsel that the
deceased on the same day as she made statement to her sister, made an
inconsistent statement to Dr. Haynes. If the two inconsistent statements are
made in the same sentence, neither would have the weight which a statement
which is admitted as a dying declaration ought to have, and the fact that one
of the inconsistent statements was made about an hour and half later than the
other can make no difference. It was also argued that the statement of the
deceased was not made under the hopeless expectation of death.

254
On behalf of the prosecution it was argued that in order the statement may be
admissible it is not necessary that the deceased should have believed that the
she would die immediately. It is sufficient if there is a settled hopeless
expectation of death. The evidence showed that the deceased was aware that
the death was impending. She knew that she was in a dying condition. While
delivering the judgment Lord Alverstone C. J, held:

We are of the opinion that the presence or absence of expectation on

the part of the declarant of immediate death is not the true test as to
whether a statement as to the cause of death is admissible or not.
Death must be imminent, but the material point is that the statement
must be made when every hope of life has gone from the person
making the statement. We think that that principle has been
recognized in the later cases, to one or two of which we desire to call
attention. In Reg v. Peel (2 F. & F 21) Willes J. said: “it must be
proved that the man was dying, and there must be settled hopeless
expectation of death in the declarant.” That sentence expresses in
very clear and crisp language the rule which I have been trying to
explain. In Reg v. Gloster (16 Cox C. C 471) Charles. J. after
examining the cases and citing Rex v. Woodcock (1 Leach C. C 500),
Reg v. Peel and Reg v. Osman (15 Cox. C. C 1) (where Lush L. J.
used the expression “immediate death”), and after expressing his
view that the word “immediate” might be misunderstood, said: “The
whole of the facts must be looked at from first to last: and I may say
before I refer to the evidence in detail that it goes no further than this:
that the woman thought that she was dying, thought that she would
not recover, but in my judgment- and it is a most difficult thing to form
a judgment of what was passing through the mind of this unfortunate
woman-she did not entirely give hope. And unless I can come to
conclusion that every hope was extinguished and gone I cannot
admit the statement.” It is also desirable to read a passage in the
earlier part of the judgment in which Charles J. referred to the
reasons why he differed from Lush L.J. He said: “In the latest of all
(Reg. v. Osman 15 Cox. C. C 1) Lush L.J lays down the principle in
these terms: ‘A dying declaration is admitted in evidence because it
is presumed that no person who is immediately going into the
presence of his Maker, will do so with a lie on his lips. But the person
making the declaration must entertain a settled hopeless expectation
of death. If he, thinks he will die to-morrow it will not do.’ That is the
judgment of Willes J. with this addition, that Lush L. J inserts the
word ‘immediate’ before death, and goes on to say: ‘ If he thinks he
will die to-morrow, it will not do.’ With the great deference to the latter
very learned judge I would rather prefer to adopt the language of
Willes J. and say that the declarant must be under a ‘settled
hopeless expectation of death.’ ‘Immediate death’ must be
construed in the same sense of death impending, not on the instant,

255
 but within a very very short distance indeed. These are the principles
that have been laid down and are to guide me in the exercise of my
judgment.” In other words the test is whether all hope of life has been
abandoned so that the person making the statement thinks that
death must follow. In our opinion that is the true principle73.

Before applying the above principles to the fact of the case, his Lordship laid
down the rule in these words:

We are of the opinion that the right view is that in determining

whether a declaration is admissible in evidence the judge at the trial
ought to consider whether the death of the deceased was imminent
at the time the declaration was made and to determine from the
language used by the deceased whether the statement was made at
a time when the deceased had “a settled hopeless expectation of
death”74.

While applying the principles laid down on the facts of the case, it was held:

In the present case, if the expression “I shall go” is taken alone, it

might mean I shall die some day: but, taking into consideration the
whole sentence, we concur with the opinion of Lawrence J. that the
statement was made by the deceased with the hopeless expectation
of death. By the expression “hopeless expectation of death” I mean
that the deceased had abandoned all hope of living. The statement is
therefore admissible as a dying declaration made by her75.

At this point, the dictum of one British Columbian court of Appeal is also worth
discussing. In Rex case76, Alex Louie, an Indian, was tried upon an indictment
charging, him with the murder of an Indian woman named Julian, alleged to
have been committed by him on the 1st day of April, 1903. On the trial the
prosecution sought to put in evidence a document in writing which purported
to be the dying declaration of the said Julian, the murdered woman. The
portion of the said declaration admitted in evidence and read to the jury as
aforesaid, is as follows:

I, Julian, knowing that I am likely to die, make oath and say:

“Yesterday he came to me to my mother's house (here) and asked
me to go home. I said no, I will not go, because you have been
73
Ibid.
74
Id at 703.
75
Id at 704.
Rex v. Louie (1903) 10 B. C. R 1 (566).

256
 beating me and have been bad to me. He was on his horse, and he
said, I will try and kill you right straight. Then he shot and I tried to
turn away. I fell down and did not know any- thing. I think I am going
to die and am telling only what is true”77.

Louie was held guilty for the murder of Julian and was sentenced to be
hanged. He went in appeal. The main question before the British Columbia
Court of Criminal Appeal was whether the dying declaration of the deceased
was rightly admitted in evidence. It appeared from the evidence that Julian
was wounded by a rifle bullet at three o'clock in the afternoon of April 1st: the
bullet entered the right side of the chest, passed through the upper lobe of the
left lung, entered the wall of the chest, fracturing three ribs and then turned
backwards and imbedded itself underneath the shoulder blade. The next day
at noon she was visited by Dr. Williams, who found her suffering from
traumatic pneumonia, as a result of the wound: she was then breathing very
rapidly and the doctor told her she could not live. The statement of the
deceased Julian was recorded on the same day around 2 PM.

The admissibility of the statement of the Julian as dying declaration was

contested by the defence on one of the grounds that that it was not shown
clearly and distinctly that the deceased was in fear of impending death, or
rather that her knowledge of impending death was not without hope of
recovery. After considering the whole evidence available on record, the court
upheld the decision of trial court admitting the statement of Julian as dying
declaration. His Lordship Drakes J. delivering the judgment observed:

I think when the whole of the evidence is read that this contention
cannot be sup- ported. Dr. Williams had informed her more than once
that she was dying. This standing alone is his opinion, and it does not
follow that the deceased accepted this view. But here Dr. Williams
says that she recognized the truth of his statement, and there is no
suggestion that she at any time expressed a contrary opinion, and in
her statement she reiterates the fact that she is about to die: and
Brazil says that the deceased said "I think I be dying." Indians use the
term "think" generally as a statement of fact. In my opinion the
statement was made at a time when she was in fact dying, and there
never was any chance of recovery78.

77
Ibid.
78
Ibid.

257
In another case79 it was held that if the declarant while making the statement
as the causes of the death was apprehending immediate death then it will not
make any difference to the relevancy of the statement that the deceased
entertained some hope or lingered between hope and death after making the
statement.

Regarding the admissibility of the statement as dying declaration, it

has been also held by the English courts that it is necessary for the
relevancy of such statement as dying declaration that the declarant, if
he had lived on, would have been a competent witness80.

In Nembhard case81, the facts were that the appellant was charged in
Jamaica with the murder of a police officer. The evidence for the prosecution
was that the deceased had been shot at the gate of his home and that there
were no eye witnesses, but that when his wife heard the shots and ran out to
him from the house, he told her that he was going to die, that she was going
to lose her husband and that the appellant had shot him. He died a few hours
later. The trial judge admitted the evidence of the wife as to her husband’s
statement on the basis that it was a dying declaration. There was no other
evidence which implicated the appellant. In his summing up, the trial judge
told the jury that they must be satisfied as to the reliability of the wife and that,
if so satisfied, they must also assess the probative value of the dying
declaration itself, bearing in mind that it had not been tested by cross-
examination, but he did not tell the jury that it was dangerous to rely on a
dying declaration in the absence of corroboration. The appellant was
convicted and his application for leave to appeal against conviction was
dismissed by the Court of Appeal of Jamaica. The appellant appealed to the
Privy Council, contending that the jury should have been directed that it was
dangerous to convict of murder solely on the evidence of a dying declaration
with no supporting or corroborating evidence and that, no such direction
having been given, the appellant’s conviction was unsafe and should be

79
R. v. Austin 8 C App. R. 27 (1912).
80
Ibid.
81
Nembhard v. R (1982) 1 All E.R 183 (P.C).

258
quashed. The Privy Council held that there was no rule of law or practice
whereby a special warning about the absence of corroborative evidence had
to be given where the only evidence implicating the accused consisted of a
dying declaration. A trial judge had a general duty to leave the jury with a
clear consciousness of the need for care in assessing the significance of a
dying declaration, and in the appellant’s case that duty had been discharged
by the trial judge in his summing up. Sir Owen Woodhouse, who wrote the
decision of the Privy Council observed:

It is not difficult to understand why dying declarations are admitted in

evidence at a trial for murder or manslaughter and as a striking
exception to the general rule against hearsay. For example, any
sanction of the oath in the case of a living witness is thought to be
balanced at least by the final conscience of the dying man. Nobody, it
has been said, would wish to die with a lie on his lips. So it is
considered quite unlikely that a deliberate untruth would be told, let
alone a false accusation of homicide, by a man who believed that he
was face to face with his own impending death. There is the further
consideration that it is important in the interests of justice that a
person implicated in a killing should be obliged to meet in court the
dying accusation of the victim, always provided that fair and proper
precautions have been associated with the admission of the evidence
and its subsequent assessment by the jury. In that regard, it will
always be necessary for the jury to scrutinize with care the
necessarily hearsay evidence of what the deceased was alleged to
have said both because they have the problem of deciding whether
the deponent who has provided the evidence can be relied on and
also because they will have been denied the opportunity of forming a
direct impression against the test of cross-examination of the
deceased’s own reliability82.

D. American Approach

American approach is almost akin to that of English approach. When the

dying declaration first appeared in England around same time, United Stated
witnessed the development of the traditional Common Law. The requirements
of the dying declarations were substantially similar as in the English law.
"Although originally the use of dying declarations was not limited to particular

Ibid 185

259
types of cases, by the early 19th century common-law courts had begun to
restrict their use to homicide prosecutions...."83.

James Fitzjames Stephen defines dying declaration as:

A declaration made by the declarant as to the cause of his death, or

as to any of the circumstances of the transaction which resulted in his
death, is relevant only in trials for the murder or manslaughter of the
declarant and only when the declarant is shown, to the satisfaction of
the judge, to have been in actual danger of death, and to have given
up all hope of recovery at the time when his declaration was made84.

Rule 804 (b) (2) of the Federal Rule of Evidence provides that in a prosecution
for homicide or in a civil action or proceeding, a statement made by a
declarant while believing that the declarant's death was imminent, concerning
the cause or circumstances of what the declarant believed to be impending
death, is not excluded by the hearsay rule, if the declarant is unavailable.

The “cause and circumstances” of the death have been described as the “res
gestae” of the death85. The California Supreme Court in one case86 has held
decedent’s dying declaration, including reference to his assault, the carrying
of his body to the river and throwing it in, admissible as res gestae. It was
opined:

[T]he res gestae embrace, not only the actual facts of the
assault and the circumstances surrounding it, but the matters
immediately antecedent to and having a direct causal
connection with the assault as well as acts, immediately
following the assault and so closely connected with it as to form
in reality a part of the occurrence87.

°° People v. Nieves, 492 N.E.2d 109, 113 (N.Y. 1986) (citing 5 JOHN H. WIGMORE,

EVIDENCE IN TRIALS AT COMMON LAW [section] 1430 (Chadbourn ed. 1974).

84 James Fitzjames Stephen, A Digest of the Law of Evidence: p.39 (2nd Edition—Reprint

1879).
85 Witkin, California Evidence, The Hearsay Rule, § 728, p. 710 (1986), Also see People v.

Taylor (1881) 59 Cal. 640, 648.

86 People v. Cipolla (1909) 155 Cal. 224, 227-228.

260
In 1975, the concept was codified in the Federal Rules of Evidence. The
traditional Common Law rule, which was applicable in criminal homicide
cases and cases of man-slaughter, was expanded to include civil actions also.
The courts relying on the English and common law rules held that Rule 804(b)
(2) provided for an exception to the hearsay rule because:

[T]he circumstances of belief of impending death seem to

obviate any motive on the part of the declarant to misstate the
truth. More realistically, the dying declaration is admitted,
because of compelling need for the statement rather than any
inherent trustworthiness88.

Louisiana, the only civil law jurisdiction in the United States, adopted a similar
rule in 1989. The only difference between the Louisiana rule and the Federal
rule is that there is no requirement that the statements be used only in cases
of criminal homicides. The language is virtually identical to the Federal rule
except that the Louisiana rule allows the statement to be used in all cases,
both criminal and civil.

The rule that dying declarations are admissible in homicide cases is of

universal application in the United States, but this rule has not escaped the
severest criticism. Professor Wigmore attacked the general rule which
excludes such declarations in civil actions as being based upon dubious
authority and as entirely lacking in logic to support it or to differentiate it from
the rule in homicide cases. Efforts were also made by various to base the
change in the general rule of restricting such evidence to the one class of
cases on the fact disclosed by experience that some really do not tell the truth
even in articulo mortis, with the arguments that it was safer to exclude such
statements except when the exclusion might let a murderer go free. If this was
ever seriously deemed the basis of the change, it certainly lacked the merit of
the logic or consistency, for some are not truthful when under the sanction of
an oath duly administered, and in calls of cases should doubtful evidence safe
to be admitted in such a case be deemed proper in an action involving mere
property rights. It was suggested by Professor Wigmore:

United States v. Thevis, 84 F.R.D. 57, 63 (N.D. Ga. 1979)

261
 The notion that crime is more worthy of the attention of courts
than a civil wrong is a traditional relic of the days when civil
justice was administered in the royal courts as purchased favour
and criminal prosecutions in the king’s name were zealously
encouraged because of the fines which added to the royal
revenues. The sanction of a dying declaration is equally
efficacious, whether it speaks of a murder, or a robbery, or a
fraudulent will: and, the necessity being the same, the
admissibility should be the same. The spurious principle is
recognized as unworkable in logical strictness, and, when fairly
carried out, comes into conflict with convenience and good
sense. Its limitations are heresies of the present century, which
have not even the sanction of antiquity. They should be wholly
abolished by legislations89.

The Oklahoma Supreme Court in its judgment in Blair v. Rogers90 had

principally agreed with the attack of the Professor Wigmore on the general
rule. It was observed:

We observe that the general rule with respect to criminal cases

is that such declarations are admissible in homicide cases only,
and Professor Wigmore stands against this rule as strongly as
against the rule with respect to civil actions. We agree with him
that if another rule is to be adopted, the Legislature should
provide for it91.

Professor Wigmore was very much vocal for the change in the general rule
but at the same time was of the view that changes be accomplished by
legislative action rather than judicial flat. He was of the view:

The rule admitting and the rule restricting as indicated are

entirely Court-made, and when the reason for this restriction to
cases of homicide cases, it ever existed, then such restriction
should likewise cases... We are confronted with a restrictive rule
of evidence commendable for its age, its respectability resting
solely upon a habit of judicial recognition, formed without
reason, and continued without justification. The fact that the
reason for a given rule perished long ago is no just excuse for
refusing now to declare the rule itself abrogated, but rather the
greater justification for so declaring: and, if no reason ever
existed, that fact furnished addition justification. The doctrine of
stare decisis does not preclude a departure from precedent

gq
Wigmore on Evidence, sec. 1436.
90 1939 OK 171: 185 Okla. 63.

262
 established by a series of decisions clearly, erroneous, unless
properly complications have resulted, and a reversal would work
a greater injury and injustice than would ensue by following the
rule. The tendency is towards the reception rather than the
rejection of evidence, experience having shown that more harm
results from its exclusion than from its admission92.

In one case93, the Supreme Court of Louisiana by majority had held:

[T]he “dying declaration” exception to the hearsay rule has

developed through the centuries, from its origin which is rooted
in the common law of England, and now, this exception provides
for the admission of evidence in civil proceedings. Although
many older cases discuss the applicability of the “dying
declaration” exception in the context of a criminal proceeding,
these discussions are still relevant to the civil proceeding at
hand94

In another case95 decided on 25th June 1986 by Oklahoma Court of Criminal

Appeals, the Court considered the Sixth Amendment of the US Constitution.
In the light of the various judgments of the Supreme Court of US, it interpreted
the sixth amendment. It was held that the right to confrontation was not
absolute. General rules of law of this kind [i.e., the right to confrontation],
however beneficent in their operation and valuable to the accused, must
occasionally give way to considerations of public policy and the necessities of
the case. Constitution "does not preclude the use of. . . preliminary hearing
testimony, in proper circumstances.” When a hearsay declarant is not present
for cross-examination at trial, the Confrontation 'Clause normally requires a
showing that he is unavailable. Even then, his statement is admissible only if it
bears adequate 'indicia of reliability.’ Reliability can be inferred without more
in a case where the evidence fails within a firmly rooted hearsay exception. In
other cases, the evidence must be excluded, at least absent a showing of
particularized guarantees of trustworthiness. With these observations, the
court relied upon the dying declaration.

Supra note 66 at pp. 229-230.

Garza v. Delta Tau Delta Fraternity Nat'l, 04-1484 (La. App. 1 Cir. 5/6/05).
Ibid.
Britt v. State 1986 OK CR 99, 721 P.2d 812.

263
Since long it has been a cornerstone of the Anglo-American system of law
that a witness may not testify against an accused unless the witness confronts
the accused with the testimony. The requirement of confronting the witness
serves a range of purposes. Confrontation guarantees openness of
procedure, which among other benefits ensures that the testimony of witness
is not the product of torture or of milder forms of coercion or intimidation.
Confrontation provides a chance for the defendant, personally or through
counsel, to dispute and explore the weaknesses in the witness’s testimony.
The U.S. Supreme Court has repeatedly endorsed John Henry Wigmore’s
characterization of cross- examination as “beyond any doubt the greatest
legal engine ever invented for the discovery of truth.”96.

Confrontation not only discourages falsehood as well but also assists in the
detection of the falsehood. With the confrontation, the trier of fact has an
opportunity to assess the demeanor of the witness. There is one other
symbolic purpose of this confrontation as also has been recognised by the US
Supreme Court that “there is something deep in human nature that regards
face-to-face confrontation between accused and accuser as ‘essential to a fair
trial in a criminal prosecution.97”

The sixth amendment of the United States Constitution introduced the

Confrontation Clause, which provides that “in all criminal prosecutions, the
accused shall enjoy the right to be confronted with the witnesses against him”.

96
5 John H. Wigmore, Evidence § 1367, at 32 (James Chadbourn rev. 1974) (quoted in part
in Lilly v. Virginia, 527 U.S. 116, 123 (1999) (plurality opinion)). See also White v. Illinois,
502 U.S. 346, 356 (1992): Maryland v. Craig, 497 U.S. 836, 844 (1990): Perry v. Leeke,
488 U.S. 272, 283 n.7 (1989): Kentucky v. Stincer, 482 U.S. 730, 736 (1987): California v.
Green, 399 U.S. 149, 158 (1970): Ford v. Wainwright, 477 U.S. 399, 415 (1986): Lee v.
Illinois, 476 U.S. 530, 540 (1986): Watkins v. Sowders, 449 U.S. 341, 348 n.4 (1981):
Roberts v. Ohio, 448 U.S. 56, 63 n.6 (1980): cf. United States v. Salerno, 505 U.S. 317,
328 (1992) (Stevens, J., dissenting) (“Even if one does not completely agree with
Wigmore’s assertion . . . one must admit that in the Anglo-American legal system cross-
examination is the principal means of undermining the credibility of a witness whose
testimony is false or inaccurate.”).
97 Maryland v. Craig, 497 U.S. (1990) at 847, quoting Coy, 487 U.S. at 1017, quoting in part

Pointer v. Texas, 380 U.S. 400, 404 (1965).

264
Evidence law generally makes hearsay inadmissible at trial, but it permits the
introduction of hearsay that fits within a long list of exceptions. The existence
of these exceptions is puzzling if one reads the text of the Clause broadly to
give a defendant the right to confront at trial, through cross-examination, all
those who make statements offered by the prosecution. Such a reading would
require that the prosecution put on the stand at trial anybody who makes a
statement that it wants to use against the defendant, making the admission of
any type of hearsay unconstitutional.

The Confrontation Clause says nothing about hearsay, and many statements
that fit within the basic definition of hearsay—that is, out-of-court statements
offered to prove the truth of what they assert—do not plausibly threaten to
violate the right of a defendant “to be confronted with the witnesses against
him98.

An important derivative of this right is the Hearsay Rule99 (Federal Rule of

Evidence 801c) which, in general, prohibits hearsay because the defendant
cannot confront an absent witness. However, the U.S Supreme Court in a
plethora of cases had held that the confrontation clause does not prohibit
hearsay under certain exceptions: if the prosecution demonstrated good-faith
in getting a witness to testify: if the hearsay is trustworthy and reliable in the
totality of circumstances: or any number of other exceptions to the hearsay
rule.

The Confrontation Clause relates to the common law rule preventing the
admission of hearsay that is to say, testimony by one witness as to the
statements and observations of another person for the purpose of proving that
the statement or observation was accurate. The rationale was that the
defendant had no opportunity to challenge the credibility of and cross-
examine the person actually making the statements. Certain exceptions to the

98 Richard D Friedman, “The Confrontation Clause Re-Rooted and Transformed”, Cato

Supreme Court Review, p. 448 http://www.cato.org/pubs/scr/2004/confrontationclause.pdf
as visited on August 12, 2008.
99 Rule 801(c), Federal Rule of Evidence.

265
hearsay rule have been permitted: for instance, admissions by the defendant
are admissible, as are dying declarations. Nevertheless, the Supreme Court
has held that the hearsay rule is not exactly the same as the confrontation
clause: hearsay may, in some circumstances, be admitted though it is not
covered by one of the long-recognized exceptions: for example, prior
testimony may sometimes be admitted if the witness is unavailable.

In its 1980 decision100, the Court made reliability the key inquiry in considering

the admissibility of hearsay statements against Confrontation Clause

challenges. The Court went on to explain that a statement is sufficiently
reliable if it “falls within a firmly rooted hearsay exception” or if there is “a
showing of particularized guarantees of trustworthiness.101”

With Crawford102 the Supreme Court finally overruled Roberts, relegating

reliability to the scrapheap of Confrontation Clause theory. In an effort to
better align modern confrontation doctrine with the original meaning of the
Clause, the Court laid out a new test centered not on the reliability of a
hearsay statement, but on its testimonial nature. Crawford103 bars the hearsay
statements that are “testimonial” unless the defendant was afforded an
opportunity of prior cross-examination of the witness. But the court chose to
“leave for another day any effort to spell out a comprehensive definition of
“testimonial”

In America in the famous Crawford case, the court defined “testimonials” by

way of implication. It labeled the core out of class statements, to which the
Confrontation Clause must apply as “testimonials”. It declined to specifically
define “testimonial” but found that it applies “at minimum to prior testimony at
a preliminary hearing, before a grand jury or at a formal trial: and to police
interrogations. The Court further defined “testimonial statements” as
“Statements.... made under circumstances which would lead an objective

100
Ohio v. Roberts, 448 U.S. 56 (1980).
101
Ibid.
102
Crawford v. Washington 124 Section. Ct. 1354 (2004).
103
Ibid.

266
witness reasonably to believe that the statements would be available for use
at a later stage.104

The one deviation which the court found to the inadmissibility of “testimonial”

hearsay evidence is Dying Declaration. They determined that though, not all
the dying declarations were “testimonial” in nature, there was authority for

admitting those that were “testimonial”. The court stated that this exception to
hearsay, as a general rule to criminal law, cannot be disputed. It opined that

“If this exception must be accepted on historical grounds, it is sui generis (the
only one of its kind)”105.

The Court acknowledged that the right of confrontation admits hearsay

exceptions. The court referenced possible exceptions for excited references
and res gestae statements by citing Thompson case106 for the proposition

that: “[T]o the extent for hearsay exception for spontaneous declarations
existed at all, it required that statements be made immediately upon the hurt
received, and before the declarant had time to devise or contrive anything for
own advantage107. In order to better appreciate the legal proposition settled in

that case it would not be out of place to peep into the factual matrix of that

case.

a) Crawford case108 at a glance

On August 5, 1999, Michael Crawford, upset by a report that Kenneth Lee had

made advances on his wife Sylvia, went with Sylvia to Lee’s apartment. A
violent fight followed, during the course of which Crawford was cut badly on
the hand and stabbed Lee in the stomach, seriously injuring him. The police
arrested Crawford and interrogated both him and his wife. Crawford's
statement to the police suggested that the victim either already was holding or
was reaching for a weapon before Crawford stabbed him. Sylvia Crawford,

Id at 1365.
Id at 1368 FN66 (Black's Law Dictionary, 5th Ed., West Publishing Co., (1979).
Thompson v. Tervanion Skin 402, 90 Eng. Rep. 179 (KB 1694)
Supra note 102 at 1369 FN 69.
Supra note 102.

267
under arrest and in response to interrogation, made a tape-recorded
statement to police officers that implicated her husband Michael in assault
and attempted murder. She said that the victim had nothing in his hand when
Michael stabbed him. Statement of Sylvia corroborated version of events as
advanced by Crawford, except that she had an arguably different account of
whether the victim had a weapon before Crawford attacked him. The state of
Washington charged Crawford with assault and attempted murder, to which
he claimed self-defense. Sylvia was then un-available to testify at trial. Her
statement was especially damning because it was inconsistent with self-
defense justification argument of Crawford. At trial, the prosecution was
barred from calling Sylvia to the stand because of Washington's marital
privilege law109 which provides that a husband shall not be examined for or
against his wife, without the consent of the wife, nor a wife for or against her
husband without the consent of the husband: nor can either during marriage
or afterward, be without the consent of the other, examined as to any
communication made by one to the other during marriage.

The provision does not apply to, among other situations, civil actions, or
proceedings for crimes committed by one spouse against the other. With live,
in-court testimony out of the question, the state sought to refute Crawford's
claim of self-defense another way: through Sylvia's tape-recorded statement
to the police. The prosecution offered Sylvia's out-of-court statement under
Washington's hearsay exception for statements against penal interest,
arguing that the statement indeed was against Sylvia's penal interest because
she admitted that she had facilitated the assault by leading Crawford to the
victim's home.

Wash R. Evid. 804(b) lists five exceptions that can be used only where the
declarant is deemed to be unavailable. The language of Wash. R. Evid.
804(b) (3) is similar rather nearly identical to the language of corresponding
exception under the Rule 804(b) (3) of the Federal Rules of Evidence of U.S.
It defines a statement against interest as a statement which was at the time of
its making so far contrary to the declarant's pecuniary or proprietary interest,

109 Wash. Rev. Code § 5.60.060(1) (1994).

268
or so far tended to subject the declarant to civil or criminal liability, or to render
invalid a claim by the declarant against another, that a reasonable person in
the declarant's position would not have made the statement unless the person
believed it to be true. A statement tending to expose the declarant to criminal
liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the
statement.

The trial court rejected Crawford's Confrontation Clause objection, admitting

the statement of Sylvia to the police under the "particularized guarantees of
trustworthiness" prong of the Roberts110 reliability test. Under the Roberts test,
a hearsay statement that fits within a Federal Rules hearsay exception will
almost always satisfy the Confrontation*111. The court cited several reasons
why Sylvia's statement was trustworthy: "Sylvia was not shifting blame but
rather corroborating her husband's story that he acted in self-defense or
'justified reprisal': she had direct knowledge as an eyewitness: she was
describing recent events: and she was being questioned by a 'neutral' law
enforcement officer.” The jury convicted Crawford of assault.

The Washington Court of Appeals in an unpublished 2-1 decision reversed

the decision of the jury and of the court of trial112. The court applied
Washington's nine-part test for particularized guarantees of trustworthiness to
Sylvia's out-of-court statement and found it unreliable for several reasons. It
was held that the statement of Sylvia contradicted one she had previously
given: it was made in response to specific questions: and at one point she
admitted she had shut her eyes during the stabbing. Furthermore, the court of
appeals rejected the prosecution's argument that Sylvia's statement was
made reliable by its similarity to Crawford's statement because the two
statements conflicted on the critical issue for Crawford's self-defense claim-
whether the victim had something in his hand when Crawford stabbed him.

'lu Roberts v. Ohio, 448 U.S. 56

111 Federal Rules of Evidence Manual: Stephen A. Saltzburg, Michael M. Martin & Daniel J.
Capra (8th ed. 2002), as quoted in Columbia Law Review Vol. 105:2409 at p. 2423.
112 State v. Crawford, No. 25307-1-11, 2001 WL 850119 (Wash. Ct. App. July 30, 2001).

269
Washington Supreme Court held that Sylvia Crawford’s statement, made in
the station house to investigating officers, was admissible against Crawford,
even though Sylvia was considered unavailable to testify at trial, because the
statement was deemed sufficiently reliable to satisfy Roberts113.

The matter went for the consideration of the Supreme Court of Washington114.

In its unanimous decision, the Hon’ble Supreme court reversed the court of
appeals and reinstated Crawford's conviction, concluding that Sylvia's
statement to the police was in fact reliable for confrontation purposes under
Roberts's "particularized guarantees of trustworthiness" prong. The court
rejected the lower appellate court's finding that Crawford's and Sylvia's
statements were contradictory, as both statements were "equally unsure"
about whether the victim had a weapon in his hand and when he may have
grabbed for one. The court held that "it is this omission by both that interlocks
the statements and makes Sylvia's statement reliable.115"

Writing for the Court, Justice Scalia116 overruled the reliability test of
Roberts117 and laid out a new framework for analyzing Confrontation Clause

challenges. The Court first looked to the text of the Confrontation Clause but
found it too indeterminate to resolve the case. The Hon’ble Court then
proceeded further to see the history of the Confrontation Clause in an effort to
understand its original meaning.

Justice Scalia canvassed hearsay practices in England and the American

colonies before the adoption of the Clause, as well as the states soon after
the framing. The Court made two key inferences from these Common Law
practices. First, “the principal evil at which the Confrontation Clause was
directed was the civil-law mode of criminal procedure, and particularly its use
of ex parte examinations as evidence against the accused.”118 Second, that

113
Supra note 110.
114
State v. Crawford, 54 P.3d 656 (Wash. 2002).
115
Ibid.
116
Ibid.
117
Supra note 110.
118
Supra note 114.

270
the Framers would not have allowed admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to testify, and
the defendant had had a prior opportunity for cross-examination. The Court
synthesized these two inferences into the new Confrontation Clause test for

the admissibility of hearsay: "[w]here testimonial evidence is at issue ... the

Sixth Amendment demands . . . unavailability and a prior opportunity for
cross-exa m i n ation.119”

The Court explained that its prior Confrontation Clause decisions were largely
consistent with these two principles. But the Court acknowledged that the
rationales undergirding these decisions were not as faithful to the original
understanding of the Clause120. In particular, the Court criticized the Roberts

reliability test for departing from the original meaning in two ways. First, it was
over inclusive because, rather than targeting only testimonial statements, it
applied the same test to both testimonial and non testimonial statements,

"often resulting] in close constitutional scrutiny in cases that are far removed
from the core concerns of the Clause121. Second, it was under inclusive

because it admitted ‘ex parte testimony upon a mere finding of reliability’,

thereby countenancing testimonial statements that had not been cross-
examined. According to the Court, this second departure from the original

understanding of the Clause was the ‘unpardonable vice’ of Roberts, as it

"admit [ted] core testimonial statements that the Confrontation Clause plainly
meant to exclude.122” Justice Scalia likened dispensing with confrontation

upon a finding of reliability, which was permitted by Roberts, to "dispensing

with jury trial because a defendant is obviously guilty123."

In Crawford 124 the Court conceded that the age-old hearsay exception for

dying declarations was at odds with its new rule. The Court in Mattox v.

119
Ibid.
120
Ibid.
121
Ibid.
122
Ibid.
123
Ibid.
124
Ibid.

271
United States case125 held that the Confrontation Clause does not bar dying

declaration hearsay. Yet the Supreme Court of Washington in Crawford126 left

unanswered the question of whether the new confrontation framework would

permit the continued use of such statements as an exception to the rule.

Post Crawford

People v. Monterroso127 is, so far as this researcher is aware, the first post-
Crawford decision to hold that the dying declaration exception takes a
statement out of the confrontation right. We all are well aware that the dying
declaration exception removes the hearsay bar from a statement made by a
declarant explaining the cause or circumstances of what the declarant
believes to be his or her impending death. Traditionally, it was applicable in
the homicide cases only. In the Federal Rules of Evidence version, FRE
804(b)(2), it is also applicable in a civil case. What is required is that the
declarant must actually be unavailable at trial: in a homicide case this is true
by definition: in a civil case, one could imagine a miraculously recovering
declarant who becomes unavailable for some other reason.

The need for the declarant to believe that his death is imminent has been a
requirement since the concept was first applied in 1789. The concept carried
on throughout the years as the United States adopted and codified the rule,
as did many states, including Louisiana. Mattox v. United States'28 is one of
the earliest cases in the United States that pronounced this rule. The Court
stated that dying declarations could be admissible in a criminal homicide,

[b]ut it must be shown by the party offering them in evidence

that they were made under a sense of impending death.129

156 U.S. 237 (1895).

Supra note 102.
(2004) 34 Cal.4th 743.
146 U.S. 140 (1892).
Id at 151.

272
The court was of the view that the determination must consider the
statements of the declarant, the nature of the wound, the declarant's conduct,
and communications made by the medical advisors. Imminence was not
precisely defined as a specific time after the statement was made, although
the length of time was a relevant factor.

[I]t is the impression of almost immediate dissolution, and not

the rapid succession of death, in point of fact, that renders the
testimony admissible.130

The Court of Appeals of Ohio, U.S in State v. Duncan 131 while agreeing with
the dictum of State v. Mx132 had held:

The rationale for the exception is that such statements are

inherently reliable because the declarant, believing he or she is
about to die, will be motivated to tell the truth for fear of
punishment in the hereafter. Such statements are admitted,
also, out of simple necessity, since a homicide victim is often the
only witness to his murder or the only person to understand its
circumstance133.

In another case134 it was held by the court:

Declarations of the deceased have sometimes been received,

but then he must be the declarations ... of one so near his
death that no hope of life remains135.

The common law emphasized that where it appears that the deceased, at the
time of the declaration, had any expectation or hope of recovery, however
slight it may have been, and though death actually ensued in an hour
afterwards, the declaration is inadmissible136. The statutory exception only
requires that the decedent believe that his death is probable.137

130
Ibid.
131
2006-0hio-5009.
133
State v. Nix, Hamilton App. No. 030696, 2004-0hio-5502.
133
Supra note 131.
134
State v. Moody, 3 N.C. 31 (N.C. Super. L. & Equity, 1798).
135
Ibid.
136
Greenleaf on Evidence, Chap. IX §158 (1858)
137
McCormick on Evidence. Fifth Ed., §310, note 2 (1999).

273
In previous centuries, religious reasons were credited with fostering a fear of
impending death that was assumed to be as powerful an incentive for telling
the truth as the obligation of an oath. Thus, prior to the 20th century, courts in
the United States required that dying declarations be received only when the
court was satisfied that the declarant was fully aware of the fact that his
recovery was impossible138. Eighteenth century rationale was that the
impending judgment of God imposed an obligation of honesty upon the dying,
so as to justify an exception to the exclusionary hearsay rule139.

In Dying Declarations in Louisiana Law140, it has been observed:

[l]t remains to determine exactly why courts attribute

trustworthiness to the declarations of a man who thinks his end
is near. Professor Wigmore lists the three explanations most
often advanced by courts:

(1) The declarant, being at the point of death, ‘must lose the use
of all deceit’ - in Shakespeare’s phrase. There is no longer any
temporal self-serving purpose to be furthered.

(2) If a belief exists in a punishment soon to be inflicted by a

Higher Power upon human ill-doing, the fear of this punishment
will outweigh any possible motive for deception, and will even
counterbalance the inclination to gratify a possible spirit of
revenge.

(3) Even without such a belief, there is a natural and instinctive

awe at the approach of an unknown future - a physical revulsion
common to all men, irresistible, and independent of theological
belief.141

Even in more secularized times, admissibility of a dying declaration depends

upon the physical circumstances in which the dying declaration was made
and whether the statement was made under the sense of impending or
imminent death. The Supreme Court of Louisiana had held that Declarant’s

IJO Carver, 164 U.S. at 695, 17 S.Ct. at 229.

139
Manderson, Et Lex Perpetua, “Dying Declarations & Mozart’s Requiem”, 20 Cardozo
L.Rev. 1621, 1629(1999): see also, People v. Nieves, 492 N.E. 2d 109, 113 (N.Y. 1986).
140 Timothy J. McNamara, 22 La. L. Rev. 651 (1962) at 657 (1962), quoting 5 WIGMORE at
§ 1443.

274
belief in the reality of his impending death was a “mere mental operation”: his
statement - “I have been shot to death by Isidore for nothing” - was a
recitation of observable facts concerning the person (Isidore), motive
(nothing), and mechanism (shooting) of his impending death142.

This dictum of Supreme Court of Louisiana was also relied upon in another
case143 the Supreme Court of Louisiana has established a test for determining
whether a declarant’s statement was made with a sense of impending death:

[T]he more serious the injury and impairment of the declarant’s

physical condition, the more probable is his belief that the end is
144
near

The United States Supreme Court went further to require that the declarant be
"fully aware of the fact that his recovery was impossible, and in this particular
the requirement of the law is very stringent"145.

The facts and dictum of one of the recent US case146 is worth observing. Dr.
Shepard was a major in the U.S. Army Medical Corps. He was convicted of
murdering his wife. It was alleged by the government that Dr. Shepard
poisoned his wife with bichloride of mercury. The testimony of Mrs. Shepard’s
nurse, Clara Brown was a key piece of evidence. She testified to the effect
that Mrs. Shepard who was ill in bed and she had a conversation with Mrs.
Shepard. Mrs. Shepard had asked her to retrieve a bottle of liquor from a shelf
in Dr. Shepard’s room. When Brown produced the bottle, Mrs. Shepard said
she had drunk some of the whiskey shortly before collapsing and wondered if
there was enough left in the bottle to test for poison, claiming, "Dr. Shepard
has poisoned me."

It was believed by the prosecution that this statement of Mrs. Shepard

qualified as a dying declaration. Justice Cardozo, writing for a unanimous

142
State v. Augustus, 129 La. 617, 56 So. 551 (1911).
143
State v. Verrett, 419 So.2d 455, 457 (La. 1982).
144
Ibid.
145
Supra note 138.
146
Shepard v. United States, 290 U.S. 96 (1933).

275
Court, found that the statement did not qualify as a dying declaration,
because:

[t]o make out a dying declaration the declarant must have

spoken without hope of recovery and in the . . . shadow of
impending death, and the government failed to show this as to
Mrs. Shepard147.

It was held:

[f]ear or even belief that illness will end in death will not avail of
itself to making a dying declaration. There must be 'a settled
hopeless expectation' that death is near at hand, and what is
said must have been spoken in the hush of its impending
148
presence .
Second Court of Appeal of the State of California had observed149:

Several of the statements do qualify as dying declarations under

Evidence Code section 1242, notwithstanding the fact that
several days elapsed between the victim’s injuries and the
statements. The test is not the duration of time between the
injuries and the statements, but rather whether the statements
were in fact made under an impending sense of death, and
relate to the (eventual) cause of death.

Some states in United States including Louisiana required that the declarant
be "in possession of his mental faculties sufficiently to understand what he is
doing and to be able to give a true and correct account of the facts to which
the statement relates"150. The Louisiana Supreme Court stated that dying
declarations "must be the utterance of a sane and rational mind"151. The court
went further to add that in considering whether "the declarant was in such a
mental state at the time of making a dying declaration as to entitle such
declaration to admission in evidence, resort may be had to all the
circumstances of the case, and expressed utterances are not necessary to

147
Id. p.99.
148
Ibid.
149
The People v. Keith E. Gatson, B107221 (Super. Ct. No. BA072997).
150
People v. Tilley, 94 N.E.2d 328, 331 (III. 1950).
151
State v. Rankins, 30 So. 2d at 840.

276
such a determination"152. Other states in United States held that the declarant
‘must have felt or known that he could not survive’153.

In another case154, it was held by the Supreme Court of America (State of

Minnesota) that in order for a dying declaration to be admissible, the profferor
must show something more than simply that the declarant was aware of the
seriousness of his or her injuries and the possibility of death. It was further
held:

Fear or even belief that illness will end in death will not avail of
itself to make a dying declaration. There must be ‘a settled
hopeless expectation’ that death is near at hand, and what is
said must have been spoken in the hush of its impending
presence ■■ 1 ^ .
In other case156, the Supreme Court of America (State of Minnesota)
categorically held that the declarant’s state of mind may be shown through
direct evidence, such as a statement expressing the declarant’s conviction of
impending death, but also may be inferred from the surrounding
circumstances. In that case there was evidence to the effect that the declarant
was shot “seven or eight times in her chest, abdomen, arm, and thigh,” and
was found lying in a pool of blood, struggling to breathe, and died within hours
after she was shot. It was held that it was sufficient for the trial court to
conclude that the declarant had a firm belief in her impending death even
without an express statement to that effect by the declarant. This was further
re-iterated by the Supreme Court of America (State of Minnesota) in another
case157.

Now when we have analysed the Indian approach, English and American
approach, it would be convenient here to discuss the difference between the

152
Ibid.
153
United States v. Mobley, 421 F.2d 345, 347 (5th Cir. 1970) (citing Mattox v. United
States, 146 U.S. 140, 151 1892).
154 State v. Elias 205 Minn. 156, 158, 285 N.W. 475, 476-77 (1939).
155 Id. at 159, 285 N.W. at 477 (internal citation omitted).
156 State v. Buggs, 581 N.W.2d 329, 335-36 (Minn. 1998).
157 State of Minnesota v. Lennell Maurice Martin bearing no. A04-279.

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Indian approach and English approach. It is also to be keep in mind at this
stage that the American approach is almost identical to the English approach.

E. Difference Between The Indian. English and American

Approaches

As also discussed above, prior to enactment of the Indian Evidence Act, the
law on dying declarations was formerly contained in Section 371 of the Act
XXV of 1861 and Section 29 of Act 11 of 1855 and it was decided under those
sections that the rule of English law restricting the use of dying declarations to
cases of homicide, manslaughter, had no application in India.

Before the enactment of the Indian Evidence Act, 1872, it was ruled in R V.
Bisso Ranjan158 that there was no necessity in India for following the very
narrow rule of English Law that a dying declaration could not be used as
evidence in a charge of rape and that the rule of English law restricting the
admission of this evidence to the cases of homicide had not application in
India. Therefore, in India it is not necessary that the charge should be one of
homicide.

There is a major departure and distinction between the evaluation of a dying

declaration under the English Law and that under the Indian Law. Under the
English Law, credence and the relevancy of a dying Declaration is only where
a person making such a statement is in a hopeless condition and is expecting
imminent death. So under the English Law, for its admissibility, the declarant
should have been in actual danger of death at the time when they are made,
and that he should have had a full apprehension of this danger and the death
should have ensued.

Under the Indian Law, the dying declaration is relevant whether the person
who makes it was or was not under expectation of death at the time of
declaration. Dying declaration is admissible not only in the case of homicide
but also in civil suits. Under the English Law, the admissibility rests on the

(1866)6 W. R. (CR) 73.

278
principle that a sense of impending death produces in a man’s mind the same
feeling as that of a conscientious and a virtuous man under oath. The general
principle on which this species of evidence are admitted is that they are
declarations made in extremity, when the party is at the point of death, and
when every hope of this world is gone, when every motive to falsehood is
silenced and the mind is induced by the most powerful considerations to
speak only the truth. If evidence in a case reveals that the declarant has
reached this state while making a declaration then within the sphere of Indian
Law, while testing the credibility of such dying declaration, weightage can be
given, of course, depending on the other relevant facts and circumstances of
the case.

In India, it has been held by the Hon’ble High Court of Allahabad159 and by the
Hon’ble High Court of Lahore160 that though the expectation of death does not
effect the relevancy of dying declaration but it will certainly affect the weight
attached to the dying declaration. If the person making the declaration is
conscious that he is dying soon the possibility to speak the truth is very great.

In English Law the declaration should be made under the sense of impending
death. English law admits as dying declaration only such statements of
material facts concerning the cause and circumstances of homicide, as are
made by the victim under the fixed and solemn belief that his death is
inevitable and near at hand. The solemnity of the occasion on which the
statements are made is deemed to produce a state of mind in which the
statements of the dying person are to be taken as free from all ordinary
motives to mistake whereas under the Indian Law it is not necessary for the
admissibility of the dying declaration that the deceased at the time of making,
should have been under the expectation of death. Similar is the American
approach. In one of its latest judgments, the Supreme Court of Ohio161, United
States, it was held by the Supreme court of Ohio that the dying declaration
should be made to appear to the court, by preliminary evidence, not only that

159 State v. Kanchan A.I.R 1954 All 153.

160 Enayat Khan v. Emperor A.I.R 1935 Lah. 94.
161 State of Ohio v. Thomas J Ray III, 2010 Ohio 2348. Also See State v. Woods (1972), 47

Ohio App.2d 144, 147, 352 N.E.2d 598, quoting Robbins v. State (1857), 8 Ohio St. 131.

279
they were made in articulo mortis (at the point of death), but also made under
a sense of impending death, which excluded from the mind of the dying
person all hope or expectation of recovery.

This distinction has been clearly pointed out in the case of Rajindra Kumar v.
State162 where the following observations were made:

Clause (1) of Section 32 of the Indian Evidence Act provides

that statements, written or verbal, of relevant facts made by a
person who is dead,....are themselves relevant facts 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... It is well settled by now that there is
difference between the Indian Rule and the English Rule with
regard to the necessity of the declaration having been made
under expectation of death.

In the English Law the declaration should have been

made under the sense of impending death whereas under the
Indian Law it is not necessary for the admissibility of a dying
declaration that the deceased at the time of making it should
have been under the expectation of death163.

In Sudhakar case164 it was observed by the Supreme Court of India:

To attract the provisions of Section 32 for the purposes of

admissibility of the statement of a deceased, it has to be proved
that: (a) The statement sought to be admitted was made by a
person who is dead or who cannot be found or whose
attendance cannot be procured without an amount of delay and
expense or is incapable of giving evidence, (b) Such statement
should have been made under any of the circumstances
specified in sub-sections 1 to 8 of Section 32 of the Evidence
Act.

As distinguished from the English Law Section 32 does not

require that such a statement should have been made in
expectation of death. Statement of the victim who is dead is

162
A.I.R 1960 Punjab 310.
163
Ibid.
164
Supra note 35.

280
 admissible in so far as it refers to cause of his death or as to any
circumstances of the transaction which resulted in his death165.

Thus in the case of R. v. Pike166 park, j. refused to admit the statement of a

four year old child upon the ground that it was not possible that it could have
had the idea of a future state which is necessary to make such declarations

admissible. Little discussion of the facts of that case will make the point clear.
In that case, two prisoners were indicted for the wilful murder of their niece,
Elizabeth Pike, a child aged four years, by beating on the head. Shortly before
her death, the child made a statement to her mother, as to the manner in

which she had been treated by the two prisoners. The prosecution offered to
give this statement as dying declaration in evidence. While delivering the
judgment Mr. Justice PERK observed:

We allow the declaration of persons in articulo mortis to be given

in evidence, if it appears that the person making such
declaration was then under the deep impression that he was
soon to render an account to his Maker. Now, as the child was
but four years old, it is quite impossible that she, however,
precocious her mind, could have had that idea of a future state
which is necessary to make such a declaration admissible. N the
deposition of the mother, to whom this declaration was made, I
find it stated, that the deceased asked the deponent to lie down
by her, which she did and that, on the child’s asking her how
long she would lie by her, the deponent replied that she would
lie by her till she got up: and that, upon her saying this deceased
said the shoe should never get up any more, and then went on
to tell her mother of something that had happened. Now this,
though it shows that the deceased thought that she was dying,
does not show that she had any idea of a future state: indeed I
think that, from her age, we must take it that she could not
possible have had any idea of that kind, I thought, when I read
the depositions that this declaration was not admissible107.

One thing come very clear from the above observations of the Hon’ble Court
that for admission of a statement as dying declaration, the mental state of the
declarant should be as such that he/she must be aware of the impending end
and of a possible meeting with his Maker, which serves as the guarantee of

166
(1829)3 C&P598:
167 Ibid.

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speaking of truth. In another case168 the dying declaration of a child of ten
years of age was held to have been rightly admitted.

Another departure in the Indian Evidence Act is that under Indian law, the
statement is relevant, whatever be the nature of the proceedings in which the
cause of death of a person comes into question. Illustration (a) appended to
Section 32 of the Indian Evidence Act, itself gives an example of a civil, as
well as of criminal case. It runs as under:

(a). 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 she was
ravished by B: or
The question is, whether A was killed by B under such
circumstances that a suit would lie against B by A’s widow:
or
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 are relevant facts.

The Indian Evidence Act is comprehensive in its nature and it deals with the
law of evidence applicable in both civil and criminal proceedings. The
provisions of Section 32, does not make any distinction between civil and
criminal proceedings so far as the applicability of the provisions are
concerned.

Under English Law, and under the laws of most of the American States, the
dying declarations are admissible only in criminal cases and that too, of the
homicide cases but under Indian Law and under the laws of the State of
Louisiana of the United States, such statements are admissible in civil cases
as well.

The history of the rule and its application as given by the leading text-writers
on evidence shows that at a very early time it was thought with the fathers of
the civil law that one would tell the truth on his death bed, and for a time dying
declarations were admitted in cases both civil an criminal: but later they were

168 R. V. Perking (1840) 2 Mood CC 135.

282
confined to cases of homicide, the idea having become prevalent that so
exceptional and dangerous a class of evidence should be restricted in its use
and application to the ‘public necessity of preserving the lives of the
community by bringing manslayers to justice169. Professor Wigmore had
attacked the general rule that is followed under English law and under
American Law that dying declarations are admissible in the cases of homicide
and man-slaughter. It is really not understandable, if a statement of a person
is found reliable in criminal case where the standard of proof is beyond
reasonable doubt why such statement cannot be found reliable in civil cases,
where the standard of proof is probability on the basis of preponderance of
evidence.

In some of the English cases, the statements of the victims had not been
taken into consideration as dying declarations on the ground that the same
did not relate to the offense which caused the death. The York Assizes170
refused to allow victim Amelia Deighton's statement as evidence. She had
identified two rapists to the police, and was examined by a surgeon. Then she
went home and, immediately upon her arrival, cut her throat. Found mortally
wounded, and told she would die, she again dictated the accusation to the
magistrates. But the written transcript was not admitted as a hearsay
exception: Hill, J. said that it was not admissible as a dying declaration, as it
did not relate to the offense which caused her death. The suicide was not
attributed to anguish caused by the rape. The victim, Amelia Deighton, cut her
throat. If the suicide had been seen as causally linked to the rape, the offense
her statements related to, the written statement should have been allowed
under the Dying Declaration exception to the rule against hearsay. But under
the Indian law such statement is admissible in evidence as dying declaration
as it relates to the “circumstances of the transaction which resulted in death”.
Under Indian law it is not necessary that the statement of the deceased
should be related to the offence which resulted in death. A statement

169 Greenleaf on Evidence, (15lh Edition) sec. 156 as quoted in Law relating to Dying
Declaration: Panda B. B: Delhi Law House, Delhi (2005) page 1.
170 R. v. Newton and Carpenter in 1859, E.R. V.175, pp.887-8, originally 1 Foster and
Finlason 641-4.

283
describing the causes of death or the about the circumstances of the
transaction which resulted in death is also admissible as dying declaration.

Under the English law the dying declaration of a person, who is incompetent
in law as a witness, is inadmissible in evidence. Thus imbecility or tender age
of the declarant will exclude the declaration. It is doubtful whether this rule is
applicable in India though undoubtedly the declaration of a person not
competent to testify will carry little weight, Further under the English Law
lapse of considerable interval between the making of the declaration and the
death of the deceased does not render it inadmissible if at the time when it
was made he had the apprehension that the death was immediately
impending. In the case of Sharacf171 though there was considerable interval
between the letters written by the deceased and the statements directly
connected with or related to her death was held by majority to be admissible
under Section 32(1) of the Act thus laying down guidelines for the construction
of the test of proximity. The distance of time, it was held, in such cases would
not make the statement irrelevant. But Varadarajan. J. while disagreeing held
that the instant case was not one of prolonged poisoning as the death
occurred due to potassium cyanide poison. Therefore, the statement made by
the deceased ceased to certain witnesses could not be said to have
proximate relation to actual occurrence. The oral evidence of the witnesses
was therefore inadmissible under Section 32(1) of the Act. In the case of
Padma Rai (Smt.)U2 where the letters written by the deceased bearing no date
and found to have been written about a month or so before her death, it was
held by the M. P. High Court speaking through M. D. Bhatt, J. that the time
elapsed is reasonable and quite close in proximity prior to suicide and letters
were held to be rightly admitted.

F. Practical Aspects of Difference of Approaches

The purpose of the present researcher of discussing the difference between

the different approaches viz, Indian approach, English approach, and the

171
Supra note 19.
172 Padma Bai (Smt.) v. State ofM. P. 1987 C. Cr. J. (M.P) 54.

284
American approach is to see the practical implications of the difference of
approaches. In view of the present researcher none of the three approaches
can be labeled as perfect one in the modern times. The perfect one can be a
blend of these three approaches. Dying declaration shall be admissible in civil
as well as criminal cases of all nature. The English and American approach
(barring the State of Louisiana) that the dying declaration is admissible only in
criminal cases, that too, of homicide and man slaughtering do not hold good
waters as also attacked by Prof. Wigmore. This exclusion might have held
waters in olden days when civil justice was administered in the royal courts as
purchased favour and criminal prosecutions in the name of the King were
zealously encouraged because of the fines which added to the royal
revenues. The sanction of dying declaration is equally efficacious whether it
speaks of a murder, or a robbery, or a fraudulent will: and, the necessity being
the same, the admissibility should be the same. Indian approach in these
regards is more practical and more effective wherein there is no distinction as
to the admissibility of dying declaration in criminal and civil cases.

Under English and American Law, the statement of a person dying is

admissible in evidence as dying declaration only when such statement is
made by the person under extreme expectation of death and almost
immediate death and no hope whatsoever of survival whereas under Indian
Law, there is no such stipulation and requirement. Indian approach seems
more practical but in modern times, it is the personal view of the present
researcher that English and American approaches are correct and effective.
In modern times, we have witness an unexpected and multifold growth in
material consumer products. Man of today has become more materialistic.
The very basis of the admissibility of the dying declarations i.e., the religious
belief has weakened immensely. Advancement in Medical sciences has also
raised the hope of survival even in fatal diseases and fatal injuries. The moral
values are also on decline. Religion has become ceremonial and ritual and no
longer remains a matter of faith, of course, with certain exceptions. Other
vices like, vengeances, lust for money and power, welfare and benefit of own
family etc., have taken forefront and the religious considerations even at the
fag end of life have taken backseat. Till the hope of survival is there and

285
strong, man of today is not ready to think of leaving this world what to say
about the meeting with the Maker. Even at the dying moments modern man is
worried about material acquisitions, material belongings, and like
considerations. Acceptance of death and submission to the destiny is rare. It
is only when the final result is accepted, and the death is assumed to be
certain, the possibility of speaking truth is there and that is also not certain. It
is when one has lost hope of survival and he is under extreme expectation of
death, one can expect the element of truth in the statement of such a person.

In our country, where still a large percentage of population is poor, illiterate,

and underprivileged, it is not justified to expect same kind of behaviour at the
penultimate moment of life as expected of people of England and America. In
our country, we are still emotionally attached with our family members. People
still are having some special kind of bond, a mixture of love towards some and
hatred or jealousy towards some. Social evils like, dowry, corruption,
unemployment etc. have also added to the degradation of moral values.
People in India are not so prosperous and nicely placed as in English and
American States. Leaving the common attributes of human nature like, hatred,
jealousy etc., people in our country can speak lie to save siblings or for the
benefit of children or even of siblings. Perhaps for these reasons, when the
Law of Evidence was framed by Britishers for us, the changes were made.

Here it cannot be forgotten that still in our country, majority of people still live
in orthodox and conventional environments where still the old values are
visible and existent. Death means here the end to the present stay on earth
and it is considered a new beginning, a new life. So, there is a possibility of
getting the truth in the statement when there is an expectation of death. It is
not possible in our country at present times, where medical facilities are not
so advanced that every needs gets medical treatment and every injured or
every person dying gets proper treatment and attention. Sometimes, it is not
practically possible to even get the proper statement of the person dying and
many a times, still at this day, statements are rejected on the ground that the
same were not properly recorded thus, it is not safe to rely upon such
statements. Further, it is not possible to ascertain in all the cases whether the

286
person making statement is under the expectation of death or not. Majority of
population in our country is still illiterate and thus handicapped in expressing
their feelings unambiguously and that may lead to confusion or incorrect
inferences. In these circumstances, the correct approach, as per the view of
the present researcher, is to give credence to the statements, which are made
under the imminent expectation of death, though, with no strict adherence as
the same is not possible.

287