INTERIM PROPOSAL

A PROJECT REPORT ON

|LAW OF EVIDENCE}

SUBMITTED BY Varun Chib 08LS176 Summer Internship Programme Faculty of Law, ICFAI University DEHRADUN

TABLE CONTENTS
1. Acknowledgement 2. Abstract 3. Introduction 3 4 .. 6

4. Definitions.................................................... ...............................5 4.1. Indian Evidence 4.2. Dying Declaration 5. References .5 ..13 ........18

ACKNOWLEDGEMENT
I take this opportunity to convey my sincere and heartfelt gratitude to all those persons who inspired me to take up this project and support me in completing this significant process of documentation of the work. In the very beginning I thank Sir Dr.B.Kumar, Director, Faculty of Law, ICFAI University, Dehradun for arranging SIP for me under such a reputed Law firm Sankhla & Associates in Delhi. I am thankful to Mr. Akash Sinha (faculty guide) who guided me to do my project in a systematic way and extended a helping hand whenever required and went an extra mile in providing her supervision in successful completion of this project. I express my extreme gratitude to Mr. Piyush Mittal for providing me with the opportunity of working in the esteemed office. Mr. Piyush Mittal (Adv.) (Project Guide), who in spite of busy and hectic schedule took the pain of taking me to the courts whenever it was necess ary has been a constant source of motivation and help, whenever and in whatever form possible. I shall always look forward for your help in the future. I hope you remain as my guide and mentor at all times to come. Last but not the least; this project of mine would not be possible without my parents who have motivated me to complete my project.

ABSTRACT
Dying declaration is very important documentary evidence. It is hearsay evidence but even then it is given a lot of weightage in the court proceedings. Recording of dying declaration is very important. If it is recorded properly by the proper person keeping in mind the essential ingredients of the dying declaration it retains its full value. Missing any single ingredients of dying declaration makes it suspicious and offenders are likely to get the benefits of its shortcomings. A Dying Declaration means the statement of a person who has died explaining the circumstances of his death. It can be said to be a statement made by a mortally injured person, indicating who has injured them and/or the

circumstances surrounding their injury. The injured is aware that he/she is about to die and while the declaration is hearsay, it is admissible since it is believed that the dying person does not have any reason to lie. Evidential value of the writings contained in diary of deceased -wife is that of a dying declaration. On the principle underlying admissibility of dying declaration in evidence that truth sits on the lips of a dying person and the Court can convict an accused on the basis of such declaration where it inspires full confidence, there is no reason why the same principle should not be applied when such a dying declaration speaking o f the cause of the death exonerates the accused unless there is material available to form an opinion that the deceased while making such statement was trying to conceal the truth either having been persuaded to do so or because of sentiments for her husba nd.

INTRODUCTION
When a dispute, whether relating to a civil or criminal matter, reaches the court there will always be a number of issues which one party will have to prove in order to persuade the court to find in his or her favor. The law must ensure certain guidelines are set out in order to ensure that evidence presented to the court can be regarded as trustworthy. The Law of Evidence governs the use of testimony (e.g., oral or written statements, such as an affidavit) and exhibits (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by th e Trier of fact, such as jury) in a judicial or administrative proceeding (e.g., a court of law).

Introduction to Indian Evidence

The Indian Evidence Act, 1872 is largely based on the English law of Evidence. The Act does not claim to be exhaustive. Courts may look at the relevant English Common Law for interpretation as long as it is not inconsistent with the Act.

The Act consolidates, defines and amends the laws of evidence. It is a special law and hence, will not be affected by any other enactment containing provisions on matter of evidence unless and until it is expressly stated in such enactment or it has been repealed or annulled by an other statute.

Parties cannot contract to exclude the provisions of the Act. Courts cannot exclude relevant evidence made relevant under the Act. Similarly, evidence excluded by the Act will be inadmissible even if essential to ascertain the truth.

DEFINITIONS
THE LAW OF EVIDENCE IS THE LEX FORI

Law of evidence is part of the law of procedure. That why it is called the lex fori or the law of the court or forum. It means that Indian courts know and apply only the Indian law of evidence. Thus, the competency of a witness, whether a fact is proved or not is determined by the law of the country where the question arose, where the remedy is sought to be enforced and where the court sits to enforce it. For example, if a legal proceeding is going on in Sri Lanka and evidence is taken in India for the said proceeding whether by commission or by assistance of courts in India, the law which will be applied during such recording of evidence will Sri Lankan Law of Evidence.

THE LAW OF EVIDENCE IS THE SAME IN CIVIL AND CRIMINAL PROCEEDINGS

A civil case of will and murder will have the same law of evidence. For example, the date of death has to be clarified or confirmed for the will to come into existence and a murder date has to be set for proceeding further with the criminal investigations too. There are, however, certain sections that apply exclusively to civil matters and others that apply e xclusively to criminal cases. In civil cases, mere preponderance of evidence may be enough but in criminal cases the prosecution must prove its case beyond reasonable doubt and leave the other alternatives presented very unlikely and highly suspect.

BASIC PRINCIPLES OF EVIDENCE

The Act deals with Relevancy of Facts, Mode of Proof and Production and Effect of Evidence. The following principles are called the basic principles and the exceptions to the above principles; the exact application has been set out very clearly in the Act:

1. Evidence must be confined to the matters in issue. 2. Hearsay evidence may not be admitted. 3. The best evidence must be given in all cases. 4. All facts having rational probative value are admissible in evidence, unless excluded by a positive rule of paramount importance. Every case that comes before a court of law has a fact story behind it facts out of which cases arise keep happening in the ordinary course of life. There is a crowded road for example people are moving, vehicle are movi ng. Everyone is running at unmitigated speed suddenly two vehicles run against each other. One of them being loaded with dynamite the accident produce an explosion with a shocking noise as a result of which a noise in a nearby hospital drops a child from hands injuring the child cases arising out of the accident with flow into the courts. In each case the nature and cause of the accident would be in question. The facts which led up to the climax will have to reconstruct before the court. So that judge is able consider the real happening. Only then he will be in position to apply the appropriate law to the fact to arrive at a just solution about the right and liabilities of the parties. Thus, whenever a judge is called upon to pronounce upon the right and liabilities of parties arising out of fact certain information about the facts involved in his mind as to what the real facts are facts must be

proved in the first instances and the only the matter is rife for application of relevant laws. The practical reality is that the truth or merits of a case are worth less unless they can be proved to be acceptance of the judge and there to enable him to act on them. The means by which facts are proved are governed by the law of evidence. The function of the law of evidence is laid down rules according to which the facts of case can be proved or disproved before a court of law. The means which can be used to prove a fact are all control by the rules and principles laid down by the law of evidence. The law of evidence does not affect substantive right of parties but only lays down the law for facilitating the rules of evidence for the purposes of the guidance of the court. It is procedural law which provides inter alike how a fact is to be proved. The evidence means any things by which any alleged matter of facts is either establish or disprove. Where the question is whether an explosion took place before a fire occurred evidence can be both oral and documentary and electronic records can be produced as evidence. Even in criminal matter also there can be evidence by means of electronic records including video - conferencing. The noise of the explosion and its flash are evidence of it. Persons who can the flash or heard the noise can give evidence of the fact of the explosion. If the happening of the fact is recorded on anything apart from human meaning, that record is also an evidence of happening thus, evidence can be defined as any material which tends to persuade the court of the truth or probability of some fact asserted before.

MODES OF PROOF:-

1. Oral evidence 2. documentary evidence

Oral Evidence Section 59:- All facts, except the [contents of documents or electronic records] contents of documents, may be proved by oral evidence.

Definition of oral evidence: - (Sec 3) The meaning of expression Oral evidence is given along with the de finition of the term evidence in Sec 3. This first part of the provision which defines evidence deal with oral evidence it says:All the statements which the court permits or requires to be made before it by witness in relation to the matter of four un der inquiry, such statements are called oral evidence. Oral evidence is evidence which is confined to words spoken by the mouth. Words of the Section:This section is not very happily worded contents of documentary may be proved by oral evidence under certain circumstances, that is to say when such evidence of their content is admissible as secondary evidence.

Contents of document cannot be proved by oral evidence :It is rule of evidence not one of technically but of substance that, where written documents exist they shall be produced as being two best evidence of their own contents. What fact may be proved by oral evidence: Oral evidence may suffice to prove possession oral evidence of credible would be sufficient to prove a little by prescription. Oral evidence weigh and value: where oral evidence is conflicting and where documentary evidence does not help on in coming to a decisive conclusion the duly proper course is to see what are the admitted fact in case and what case the circumstance deducible from the can be no doubt this can be the true method of arising a correct conclusion. SECTION 60. Oral evidence must be direct Oral evidence must, in all cases whatever, be direct; that is to say If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection. PRINCIPLE: - The first degree of moral evidence and that which is most satisfactory to the mind is afforded by our own sense , this being the direct evidence of the highest nature. Where this cannot be had as is generally the case in the proof of fact by oral testimony. Testimonial elements: - When a witness statement is offered as a basis of evidence in reference inference to t he fact stated. Moreover in the function fulfilled by each these three element or processes are to be found in general from the fundamental cannot for assigning to each its probative value. Thus the nation of perception that the external event has is some way or other impressed itself on correspond to the witness, then should adequately respected or correspond to the fact itself as it objectively existed or exist. The strength of the inference depends on the probability of a fairly accurate on the part of w itness.

General human trails affecting testimony: - But the individual witness testimony is affected not merely by the condition inherent in there three elements of testimony, but also by enabled to generalize. These generalize common to large of individual may at time find him set. Race: - In respect to the element of testimony perception, recollection and narration professional any scientific observation have thus for contributed little knowledge that is serviceable in estimating the influence of value testimony in judicial proceeding. In this connection there are several more condition pertaining to general sense perception. First of all there is that so called vicariousness of sense which Substitute. One sense for another in representation. The vicariousness of visual sensation is the most humorous and the most important. Anybody who has been pushed or beaten and has felt the blow will of other circumstance permit and the impulse be strong be strong enough be convicted that he has been seen his assaulter and manner of the assault. upon

DYING DECLARATION
Dying declaration is bases on the maxim Nemo moriturus praesumitur mentire i.e. a man will not meet his maker with a lie in his mouth. Hearsay evidences are not given any weightage in the courts because the person who is giving this evidence is not telling his experiences but that of another person and who cannot be cross examined to verify the facts. Dying declaration is an exception to this rule because if this evidence is not considered ver y purpose of the justice will be forfeited in certain situations when there may not be any other witness to the crime except the person who has since died. Sometimes it the best evidence in such situations. Its admissibility is explained in the section 32 (1) of Indian Evidence Act. According to this section when the statement is made by a person as to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question. Such statements are relevant whether the person who made this was expecting death or not In English law he must be under expectation of death only then this declaration is valid. This declaration is valid both in civil and criminal cases whenever the cause of death comes into question. If we read the various judgments on the admissibility of dying declaration at times various judges have taken diagonally opposite views and different explanations have been offered though the motive in all have been to provide justice to the people. Main thing is that if these declarations seem trustworthy to courts these retain their full values. Most important point of consideration is that victim was in a fit condition of mind to give the statement when recording was started and remained in fit condition of mind till the

recording of the statement finished. Merely stating that patient was fit will not serve the purpose. This can be best certified by the doctor who knows best about the condition of the patient. But even in conditions where it was not possible to take fitness from the doctor, dying declarations have retained their full sanctity if there are other witnesses to testify that victim was in such a condition of the mind which did not prevent him from m aking statement. Medical opinion cannot wipe out the direct testimony of the eyewitness stating that the deceased was in fit and conscious state to make the dying declaration. Second most important point to be considered is that it should not be under the influence of any body or prepared by prompting, tutoring or imagination. Even if any one of these points is proved then dying declaration is not considered valid. If it becomes suspicious then it will need corroboration. If a person has made more than one dying declarations and if these are not at variance with each other in essence they retain their full value. If these declarations are contradictory than these lose value. Best form of dying declaration is in the form of questions and answers. If it is in the form of narrations it is still good because nothing is being prompted and everything is coming as such from the mind of the person making it. If a person is not capable of speaking or writing he can make a gesture in the form of yes or no by nodding an d even such type of declaration is valid. Whenever this is being recorded in the form of questions and answers precaution should be taken that exactly what questions are asked and what answers are given by the patient those should be written. It is preferred that it should be written in the vernacular which the patient understands and speaks. It is best that it is recorded by the magistrate but if there is no time to call the magistrate due to the deteriorating condition of the victim it can be recorded by anybody e.g. public servant like doctor or any other person

Meaning of Dying Declaration In laymans language, we can say that dying declaration is the statement made by a person who is dying. But in legal sense it has got a different meaning. It is not that all the statements made by a dying person can be termed as dying declarations. It is only that statement of the deceased, which he made before his death and which shows the cause of death or the circumstances leading to his death can be termed as dying declaration, provided the death of that person comes in question before a judicial authority. Dictionary Meaning of Dying Declaration None of the language dictionaries define the word dying declaration jointly but the words dying and declaration has bee n shown separately the literal meaning of which a declaration or statement which is going to die. But if we go by these meanings the whole meaning of dying declaration will lose its significance. Therefore this meaning cannot be assigned to the term dying declaration.

DISTINCTION BETWEEN ENGLISH AND THE LAW IN INDIA

The first clause is widely different from the English law upon the subject of dying declaration, according to which: (a) this description of evidence is not admissible in any civil case; and (b) in criminal cases only in the single instance of homicide, that is, murder or manslaughter, where the death of the deceased is the subject of the charge and the circumstances of the death are the subject of the dying declaration. Both in England and America, evidence of this description (dying declarations), are not admissible in any civil case and in criminal cases it is not admissible upon charges other than homicide; or as to homicides other than that of the declarant. On the other hand, under the Indian Evidence Act the

statement is relevant whatever may be the nature of the proceeding, in which the cause of the death of the person who made the statement comes into question. Further, according to English law, certain conditions are required to have existed at the time of declaration, namely, it is necessary that t he declarant should have been in actual danger of death; secondly, that they should then have had a full apprehension of his danger and lastly, that death should have ensued. The existence of the latter condition is of course as necessary under that Act as under the English rule, inasmuch as the statement is admissible only in cases in which the cause of the death of the person who made it comes into question. But, under this Act, the statement is relevant whether the person who made it was or was not at the time when it was made, under expectation of death. Under the Indian Law for a declaration to be relevant under s 32(1), it is not necessary that the declaration should have been made when the person making the same was in actual danger of death and had given up all hope of recovery at the time when he made the declaration. Therefore, whether the declarant was or was not in actual danger of death, and knew or did not know himself to be in such danger, are considerations, which will not affect the admissib ility of this kind of evidence in India. But these considerations ought not to be laid aside in estimating the weight to be allowed to the evidence in particular cases. Under the Law which was in force prior to this Act (s 371, Act 25 of 1861) s 29, Act 2 of 1865, and which with one modification relating to the entertainment by the deceased of hopes of recovery was similar in this respect to the English law, it was held that before a dying declaration could be received in evidence, it must be distinctly found that the declarant knew or believed at the time he made the declaration, that he was dying or likely to die. Of course, before the statement

can be admitted under this section, the declarant must have died. Where a person making a dying declaration chan ces to live, his statement cannot be admitted in evidence as a dying declaration, though it may be relied on under s. 157 to corroborate the testimony of the complainant when examined in the case. The statutory provision in s. 164 Criminal Procedure Code s hould be followed if the statement in inculpatory and in the nature of a confession.

REFERENCES
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Indian Evidence Act, 1872, Criminal Manual , 14th ed. Lucknow: Eastern Book Company, 2003: p15 wikipidea.com findlaw.com www.ipfrontline.com legalpandit.com law4india .com manupatra.com