State three circumstances in which the statement of a dead person would be relevant and admissible in evidence?

Question: State three circumstances in which the statement of a dead person would be relevant and admissible in evidence? [UPHJS 1988]

Find the answer to the mains question only on Legal Bites. [State three circumstances in which the statement of a dead person would be relevant and admissible in evidence?]

Answer

As a general rule of law, oral evidence is required to be direct and the oral evidence is required to be stated before the court by the person who received the first-hand knowledge of the facts. But there is a certain class of person whose statements are recorded who are not considered to be a witness.

I. Hearsay rule

One of the exceptions to the general rule is hearsay evidence which is considered inadmissible as it is not stated on oath and there is no opportunity of cross-examining the original source by the party against whom the proof is given. Also, there can be chances of falsehood. The hearsay rule is mainly based on two major considerations:

1. The necessity of the evidence.
2. The circumstantial guarantees of trustworthiness.

The hearsay evidence is excluded because they are considered untrustworthy.

Persons who cannot be called as a witness as dealt with under Section 32 of the Indian Evidence Act, 1872 is an exception to the general rule of hearsay and under this section the hearsay evidence is admissible. Under this section, indirect evidence is relevant as held in the case of Mst. Biro v. Atma Ram [AIR 1937 PC 10].

According to section 32, any written or verbal statement containing relevant facts which are made by a person who is either dead or cannot be found or has been given by a person who has become incapable of giving evidence or the attendance of such person can require delay or expense which seems unreasonable to the court, are relevant in the following cases:

1. When the statement is related to causing of death-

Section 32(1): When it relates to cause of death. The provision under section 32(1) relates to the statement made by a person before his 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, and such statements are admissible. There is a difference between English and Indian law.

In English law, the Dying declaration is applicable in only criminal cases but in Indian law, dying declaration is applicable in civil and criminal cases. Word “Dying Declaration” means a statement written or verbal of relevant facts made by a person, who is dead. It is the statement of a person who had died explaining the circumstances of his death. This is based on the maxim ‘nemo mariturus presumuntur matrix i.e. a man will not meet his maker with lying on his mouth.

Our Indian law recognizes the fact that ‘a dying man seldom lies.’ Or ‘truth sits upon the lips of a dying man.’ It is an exception to the principle of excluding hearsay evidence rule.

2. A statement made in the ordinary course of business-

Clause(2): Statements in course of business; This clause discusses those statements which are made by a person during the course of business or whose duty it was to make such

statement or whose business was such that statements of the kind were to be expected in the ordinary course of things. In order to found a case for the reception of a statement under this

clause, it must be proved that the declarant is dead or that he cannot be called as a witness for any of the reasons mentioned in the section and the burden of proving this is on the person who wishes to give such statement in evidence.

3. The statement is made in will or deed relating to family affairs-

When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or another thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

The statement made under section 32 must be made by a person who is dead before admitting the statement before this section. The statement of a dead person has been given importance under this section as there can be no better evidence can be laid than the statement made by the dying person himself about his death. If the person who has made the dying declaration survives then such statement is not admitted under section 32 but under the provision of confession.

---

Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X