HEARSAY & DYING DECLARATION
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Ch.4.1 Persons who are not called witnesses: Sn.32 (Exceptions to Hearsay Evidence Rule)
The general rule of Evidence Act is that any oral evidence must be direct i.e, Hearsay evidence is not admissible. It must be given on oath and must be subject to cross-examination by the opposite party. Otherwise, the evidence is not admissible.
There is, however one exception to this rule. Under Sections. 32 & 33, there are four types of persons who are neither called before the court as witnesses, nor, are they subject to cross-examination. They are:
- i) those who are dead
- ii) those who cannot be found
iii) those who have become incapable of giving evidence
- iv) those whose presence cannot be procured except after reasonable delay or expense.
The reason for allowing such an evidence is one of necessity and it may be impossible, to apply the test of cross-examination to them. But the circumstances show that their statements are true and trustworthy.
- i) Dying Declaration: Statements made by a person as to the cause of his death or circumstances leading to his death, are relevant.
- ii) Business or Professional duty: The statements made by the above four classes of persons, in the course of business or professional duty are admissible. Eg. entries in books kept by them or in documents used by them, are relevant and admissible.
Entries made by a Surgeon in her dairy, regularly kept, stating the birth of A on a particular day is relevant fact.
iii) Pecuniary or other interests: Statements made by any of against the pecuniary interest or title, ii) exposing a person to criminal prosecution or damages in torts, are relevant and admissible.
The question is about the payment of rent to A. Letter by A’s deceased agent that the rents were received and were kept under A’s order are relevant
The question is about the legality of the wedding between A and B. The statements made by the clergy man (or officiating person) that the circumstances of that wedding were such that, it would be a crime, are relevant.
- iv) Custom or matters of general interest:
Opinion of such persons as to the existence of a public right of way, or a custom or a matter of general interest are relevant. But such an opinion must have been made before the controversy arose.
The question is whether there was a public right of way over a road. The opinion of the deceased village Headman that it was a public road is relevant.
- v) Relationship, Pedigree etc:
Statements made by such persons as to the relationship by blood, marriage or adoption, are relevant if they had some-special knowledge and if the statement was made before the controversy arose.
Similarly, when such statements of relationship are made in any will, or family pedigree or tombstone etc., they are relevant, if they had been made before the controversy arose.
The question is whether S is the adopted son of F. A statement by F, in his will that S is his adopted son is relevant.
- vi) Evidence tendered in earlier proceedings:
Evidence given by any such person in a judicial proceedings is relevant and admissible-in a subsequent proceeding if
- i) the proceedings were between the same parties, or their legalrepresentatives. ii) there was cross-examination
iii) the questions were substantially the same as in the second proceeding. Conclusions:
In all the above circumstances, the statements by the four classes persons are relevant and admissible. Though the rule is that Hearsay evidence is not admissible, in the above circumstances, the statements are admissible and hence, are exceptions to that rule.
The general rule of evidence is that Hearsay evidence is not admissible. In other words, in the interest of justice, it is desirable that the person himself should give evidence (direct evidence) in a court, under a oath. Under Sn.32, Dying declaration is an exception to this rule. This is based on necessity and also on the fact that there is no better evidence available. Statement made by the deceased is relevant when it is in respect of
- i) cause of death and
- ii) circumstances which resulted in his death. Such a person must be under expectations of death at the .time of making it. The statement is admissible in Civil and Criminal proceedings, if the person dies thereafter.
Eg. a) The question is whether A was murdered by B. A dies of injuries received in a transaction in which she was ravished Statements by Aas to her cause of death are relevant.
The tongue of W, the wife was cut off by her husband, H, He threw the tongue from the window and escaped from the hinder-door of his house. W yelled. Police arrived within seconds. The Sub-Inspector put certain question to W. W made gestures and then died. Held: the gestures recorded were admissible.
Statements by deceased D, about the rape committed by A the accused on her, are relevant.
Patient in hospital made certain statements which were recorded. She was discharged from hospital. After a few days she died. Held, declaration not admissible. Hence, declaration becomes admissible, when the person making it dies soon after making the statement.
Corroboration is not necessary. The Supreme Court in Khushal Rao Vs. State of Bombay, held that dying declaration was not a weak evidence.