Dying Declaration

Topics: Evidence law, Hearsay, Law Pages: 19 (6923 words) Published: December 14, 2011
A dying declaration is a statement made by a dying person as to the cause of his death or as to any circumstances of the transaction that resulted in his death. It is evidence under Section 32 (1) of Indian Evidence Act,1872. This section is an exception to the general rule that hearsay evidence is no evidence In this paper, the researcher will explore these facets namely – the scope and application of section 32 (1), the method of giving and recording a dying declaration and its evidenciary value by examining its interpretation by courts. Material examined:

The researcher has used the bare act of the Indian Evidence Act of 1872, and thereby used the various commentaries by eminent jurists and legal authors on The Indian Evidence Act 1872 to get a detailed and enhanced view of the scope and applicability of dying declaration. The researcher has also accessed websites like Manupatra and SCC online to have a full review of the relevant case law. Research Questions:

1) Whether there are parameters that affect the evidentiary value of Dying Declaration? 2) Whether weight is given by courts to dying declaration as evidence? 3) Whether dying declaration has got an evidentiary value? 4) Whether dying declaration is an exception to the hearsay rule? 5) Whether there is a difference between English law and Indian Law regarding dying declaration?

1) There are parameters that affect the value of Dying Declaration. 2) Weight is given by courts to dying declaration as evidence. 3) Yes.
4) Yes.
5) Yes.
Research Methodology:
The research methodology is doctrinal in nature. Primary and Secondary sources of data have been relied upon.

The maxim “Nemo moriturus praesumitur mentire” is basis for ''dying declaration'', which means '' a man will not meet his maker with a lie in his mouth''. A dying declaration is called as '' Leterm Mortem''. The word '' Leterm Mortem'' means "Words said before death''. Recording of dying declaration is very important task. Utmost care is to be taken while recording a dying declaration. If a dying declaration is recorded carefully by the proper person, keeping in mind the essential ingredients of the dying declaration, such declaration retains its full value. Under the Federal Rules of Evidence, a dying declaration is admissible if the proponent of the statement can establish: 1. The declarant’s statement was made while under the belief that his death was imminent; and 2. The declarant’s statement must relate to the cause or circumstances of what he believed to be his impending death. The declarant does not actually have to die for the statement to be admissible, but there must be a genuine belief that death was imminent and the declarant must be unavailable to testify in court. If the stipulations cannot be met, it would then constitute hearsay and not fall into the exception. As with all testimony, the dying declaration will be inadmissible unless it is based on the declarant's actual knowledge. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.’’ Dying declaration is an exception to this. Under Common Law, the hearsay provisions of the Criminal Justice Act 2003 reformed the common law relating to the admissibility of hearsay evidence in criminal proceedings begun on or after 4 April 2005. Section 116 of said act talks about the exception to the inadmissibility of hearsay evidence in case the witness cannot attend and therein falls dying declaration. In India, it is covered under the Indian Evidence Act 1872. Section 32 (1) makes an exception from the general rule that hearsay evidence is inadmissible. This section is an exception to the general rule that hearsay evidence is no evidence. The conditions in the section are...
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