1.

Res gestae

The Latin term for this doctrine is Res Gestae, which translates to “things done.” It explains a
spontaneous statement made by someone soon after an occurrence, before the human mind
has a chance to make up a fake story. A statement made under Res Gestae is one that is made
on the spot, that is, during or immediately after the conduct of the crime. There is extremely
little opportunity for uncertainty or doubt as a result. Res Gestae is a doctrine that places a
proclamation in such close proximity to the event’s commission that there is almost no
opportunity for confusion or incorrect interpretation.

 ‘Res Gestae’ basically means a transaction (thing done/ subject matter).

 The test of admissibility of evidence – as a part of Res Gestae is whether the Act, declaration
or exclamation is an intimately interwoven or connected with the principal facts.
 ‘Facts forming part of same transaction’ – This includes both physical acts and words spoken
whether by person doing such acts, the person to whom such acts, the person to whom such
acts are done or any other person(s).
 It is a general rule – The evidence of connected precedent or surrounding circumstances is
proper to show the probability that the principal fact has happened in all cases where it may
naturally be assumed that a connection exists between main fact and subordinate fact.
 The act or transmission may be completed in a moment of time, or may extend through a
period of days or weeks, or even months.

Pre-Conditions to Res Gestae:

 Statement must explain and characterize the incident in some manner.

 Statement must be a statement of fact and not opinion.
 Statement must be spontaneous and not merely narrative of the past.
 Statement must include participants of transaction; In criminal: Victim, accused, eye-
witness; In civil: Attesting witnesses and concerned parties
 Statements made by bystanders provided their presence on the spot is established.

Expansion of the Doctrine of Res Gestae

Courts have gradually expanded this section’s application to include situations including
domestic abuse, kid witnesses, etc. Domestic abuse and assault cases invariably have a
shocking event, which frequently involves the problem of ecstatic speech. Only the victims in
these situations can name the suspected offender. Therefore, it is necessary to accept such
victim evidence. Rape cases typically happen alone. Therefore, there is no eyewitness to such
an event. Rape and domestic violence cases are distinct from all other crimes.

In Bishna vs State of West Bengal AIR 2006 SC 302, where the two witnesses reached the
place of occurrence immediately after the incident had taken place and found the dead body
of Prankrishna and injured Nepal in an unconscious state. One of them found the mother of
Prannkrishna and Nepal weeping and heard about the entire incident from an eye-witness and
the role played by each of the appellants, their testimony was held to be admissible under
section 6 of the Evidence Act. In all the cases mentioned above the test applied to make the
evidence admissible was to consider that was the statement was made at the spur of the
moment without an opportunity to concoct and fabricate anything.

Vasa Chandrasekhar Rao vs Ponna Satyanarayana [1],

His wife and daughter were killed by the accused. Deposition of the deceased’s father that the
father of the accused made a telephone call to him, saying his son had killed the deceased was
not found admissible. The question before the court was that it was possible to admit the
deposition of the accused father under Section 6 and is Res Gestae going to be a hearsay
exception?

Failing to find out whether the information given by the accused father to the deceased’s father
who killed his wife and daughter was refused to accept the evidence as relevant under Section
6 either at the time of the crime being committed or immediately thereafter to form part of the
same transaction.

Conclusion
Usually, evidence is brought to res gestae if it can not be brought to any other section of the
Indian evidence act. The intention of lawmakers was to avoid injustice where cases are
dismissed due to lack of evidence. If any statement under Section 6 is not admissible, it may
be admissible in accordance with Section 157 as corroborative evidence.

Court has always believed that this doctrine should never be unlimitedly extended. For this
reason, the “continuity of transaction” test was always considered by Indian courts. Any
statement made following a long gap that was not a response to the event is not admissible
under Section 6 of the Evidence Act. But courts allowed some statement that was spoken after
a long gap from the occurrence of the transaction because there was enough evidence that the
victim was still under the stress of excitement and so everything that was said was a reaction
to the occurrence.

The strength of Section 6 is its vagueness. There is no distinction in this section between the
word transaction used. It varies from case to case. Every criminal case on its own merit should
be judged. The evidence is admissible under Section 6 if it is proven to be part of the same
transaction, but whether it is reliable or not depends on the discretion of the judge

2. Plea of Albi
What is an alibi
Alibi is a Latin word that means “elsewhere” or “somewhere else”, The word ‘alibi’ is
relevant in the studies of criminal and evidence law. In evidence law, an alibi is a defence or
an excuse used usually to avert the blame or punishment given to the accused.
In a crime, the most essential part of proving the guilt of the accused is to prove that the
accused was the person who committed the crime, and the prosecution shall have to prove
that the accused was present at the place where the crime took place and has thus committed
the crime. If the accused could defend that he was ‘elsewhere’ from the place where the
crime took place, he is said to have the defence of a plea of alibi.

An alibi is a claim or a piece of evidence that proves that the accused was not in the place
where the crime took place. More precisely, it may be improbable, if not impossible, for the
accused to be in the place where the crime has taken place.

Section 11(1) and plea of alibi

Section 11(1) defines that any facts that would otherwise be irrelevant would become
relevant if they were inconsistent with any facts in issue or relevant facts. In a case where a
crime has taken place, the plea of alibi would cause inconsistency with the facts in the issue
of the accused committing the crime.

Illustration:

The question is whether the crime in Chennai was committed by A on a certain day. Here,
generally on that day, the fact of A being in Bombay is relevant. It becomes relevant because
the place where A was when the crime took place is inconsistent with the place where the
crime took place. The impossibility of A to commit the crime that took place in Chennai as he
was in Bombay when the crime took place is the inconsistency defined in Section 11(1).

Section 103 and Plea of alibi

Section 103 of the Indian Evidence Act states that whoever wishes the Court to believe the
existence of any fact has the burden to prove such fact.
In the plea of alibi, the accused wishes the court to believe in the fact that he was elsewhere
from the crime scene. Hence, under Section 103, it is the burden of the accused to prove the
existence of the fact that he was elsewhere from the crime spot.

Who can take the plea of alibi

The accused is the only person who can take the plea of alibi. If the accused takes the plea of
alibi at the earlier stage of the prosecution, that would favour him as its credibility increases
by doing so.

Though not setting up the plea of alibi at the earliest may be unconvincing to the Court in
most cases, but in the case of Sahdeo v. State of Uttar Pradesh (2010), it was held that the
Court shall have no power to not give due weight to the public document filed before it for
the proof of alibi at any part of time during the prosecution.

Essential criteria to be met for making a plea of alibi

The following list of essential conditions have to take place for making the plea of alibi
before the Court.

 There should be a crime.

 The person taking the plea of alibi should be accused of the said crime.
 The accused must not be present at the crime scene.
 The accused has to prove the plea with no reasonable doubt.

Consequences of a false plea of alibi

A false plea of alibi by an accused as a defence before the Court could be a link in the chain
of circumstances that would be relevant to his conduct, but the plea could not be the sole link
on which a conviction could be made. Even if the accused has come up with a false alibi plea,
it would not lead him directly to conviction; the burden of convicting the accused is still with
the prosecution.

The Supreme Court, in the case of Gayadin v. State of MP (2005), held that, although the
accused resorted to a false plea of alibi, no court is empowered to point to such a false plea of
alibi as positive evidence that he was liable for the crime.

Case laws
Munshi Prasad v. State of Bihar (2001)
Facts of the case
The accused, along with a group of people, surrounded the deceased and his brother (the
person who informed the incident of the accused group of people killing his brother with
dangerous weapons) who were coming from the market after finishing their business in the
market in the town. The deceased and his brother were followed by two of the accused group
when they were on their way home, and suddenly four more people from the group, who
were hiding in the bushes, surrounded them along with the accused group. The informant ran
away from there, leaving his brother alone, but he saw that the accused group was attacking
his brother with their serious weapons. The brother informed the police about the incident
and lodged an FIR. The accused took the defence of his alibi before the Court, contending
that they had a witness who saw them 400-500 yards away from the crime spot.

Issues of the case

Is the defence of alibi by the accused applicable before the court?

Does 400-500 yards away from the crime spot, could cause impossibility to do the crime by
the accused?

Judgement of the case

The Court held that the distance of 400-500 yards from the place where the crime had taken
place would not amount to the impossibility of the accused committing the crime. The plea of
alibi requires the impossibility of the accused committing the crime because of his absence.
The accused could not prove their defence of the plea of alibi, and hence they were
prosecuted and convicted for the crime and sentenced to rigorous imprisonment for 10 years.

Gurpreet Singh v. State of Haryana (2002)

Facts of the case
The appellant was accused and convicted of the murder of his deceased wife. The deceased
was burned alive by her husband the appellant, because they had bad terms in their marriage.
At the time of the examination of the crime scene, the police found that the deceased was
lying in a burnt condition in one room, and the appellant was sitting in another room. The
appellant was arrested by the police and charged with murdering his wife. The appellant
made a plea of alibi before the court that he was in the Gymkhana club, and he further
contended that it was only at the club that he came to know about the fire in his house.

Issue of the case

Whether the plea of alibi of the accused and his brother can be accepted?

Judgement of the case

The Court held that the facts and evidence produced before it by the prosecution prove that
the appellant has committed the crime of murdering his wife, and he was present at the same
place where the crime took place. The Court further held that the burn marks present in the
appellant’s body were caused by his wife’s burning body, and this proves that he was present
at the crime scene. Thus, the Court rejected the plea of alibi of the appellant.

Conclusion
The scope of the plea of alibi is in the hands of the accused, who has to prove his innocence
by proving to the court that he was somewhere else when the crime was committed, which he
has been accused of. If the plea of alibi is accepted and proved, the Court shall acquit the
accused according to Section 11(1) of the Indian Evidence Act, as his presence in one place is
inconsistent with the place where the crime has taken place. The plea gives the defence
(though it is not included in the general exceptions of the Indian Penal Code, 1860) to the
accused by implying his impossibility to commit the crime because of his absence at the
crime spot.

3. Admission
Meaning of Admission
Admission plays a vital part in judicial proceedings as if in a case either of the parties
to the suit in the judicial proceeding proves that the other party has admitted the fact
in issues or the relevant facts in the case then it becomes easy for the Court to
administer justice effectively as the court need not take much evidence and has not to
involve in the judicial proceedings because the question of the case has already been
settled by either of the parties in the course of admission. Section 17 to 23 of the
Indian Evidence Act specifically deals with the portions related to admission.

The word ‘Admission’ expressed in the Evidence Act means “When any person
voluntarily acknowledges the existence of any facts in issue or facts”. Like in the case
of confession we discovered that confession is not much described in the Evidence
Act in the same manner the Indian Evidence Act also has not done much effective
work on expressing, the term ‘Admission’ in an outspread sense.

Section 17 of Indian Evidence Act, defines admission as any statement made in either
form such as oral, documentary or in electronic form which has enough probative
value to suggest or conclude any inference as to any fact in issue or relevant fact.

Definition of admission
According to Section 17 of the Indian Evidence Act, 1872, admission is defined as any
statement made by any of the persons, which suggests any inference as to any fact in issue or
relevant fact, and under certain circumstances. Admissibility simply means the power to
approach. Admission can be oral or documentary or contained in electronic form. Thus, the
admissibility of evidence means any evidence or document used in the court of law to prove
or disprove alleged matters of fact.
“Admissions are considered primary evidence and they are admissible to prove even the
contents of written documents, without notice to produce, or accounting for the absence of,
the originals.” In Bishwanath Prasad v. Dwarka Prasad, the court said “Admissibility is
substantive evidence of the fact which is admitted when any previous statement made by the
party used to contradict a witness does not become substantive evidence. The Admissibility
of evidence serves the purpose of throwing doubt on the veracity of the witness.”

Principles of admission

In Basant Singh v. Janki Singh, the High Court mentioned some principles regarding
admissions:

Any kind of statement in the plaint is admissible in evidence.

No obligation on the Court to accept all the statements as correct and the court may accept
some of the statements as relevant and reject the rest.

There is no distinction between an admission made by a party in a pleading and other

admissions.

An admission made by a party in a plaint signed and verified by him may be used as evidence
against him in other suits.
Admissions are always examined as a whole, hence they cannot be divided into parts.

Any admission cannot be regarded as conclusive and it is open to both parties to show
whether it’s true or not.

Admissibility of a plea of guilt can be determined only if the plea is recorded by the accused
in his own words.
An admission to have a substantive evidence effect should be voluntary in nature.
Admissions do not carry a conclusive value, it is only limited to being prima facie proof.
Admissions that are clear in the words of the accused are considered as good evidence of the
facts submitted.

The relevancy and admissibility of admission

The admission is said to be relevant when the facts are so related as to render the existence or
non-existence of other facts probable according to a common course of events or human
conduct. Nothing which is not relevant may be adduced as evidence as per the law. In the
common-law countries, the evidence is both ascertained and simultaneously restricted by the
assertions of the parties.
The Supreme Court in Ram Bihari Yadav vs. State of Bihar observed that the terms
‘Relevancy’ and ‘Admissibility’ are not interchangeable though sometimes they may be
taken as synonymous. However, all relevant evidence may not be admissible but all
admissible evidence is relevant. The legal implications of the relevancy and admissibility are
distinct. It is determined by the ruler of the Act that the relevancy is the test of admissibility.

As mentioned in Amir Ali and Woodroffe’s Commentaries the word ” relevant” as used in
the Act, is equivalent to “having probative force” and the effect of the Section is to make the
evidence admissible in the circumstances specified independently of the consent of the
parties.

Relevancy has been stated in Section 5 to Section 55 of the Indian Evidence Act, 1872. The
concept of relevancy is based on logic and human experience. Relevancy merely implies the
relevant facts and signifies what facts are necessary to prove or disprove a fact in an issue.

Conditions required for the admissibility of evidence in Court

Section 20 of the Indian Evidence Act, 1872 states the admissions made by any person
expressly referred to by party to suit. The section states, any statements made by a person to
whom a party to the suit has expressly referred for facts in respect to a matter in dispute are
referred to as admissions. This section also brings an exception to the general principle of
admissions which are made by strangers.

The admissibility of evidence depends upon the relevance and reliability of the fact. The
evidence is not related to the particular case, it is considered irrelevant and is inadmissible in
the court. Whereas, reliability refers to the credibility of a source that is being used as
evidence.

Admissibility of evidence in the Courts

Admissibility of evidence in the criminal proceeding
In criminal proceedings, evidence can only be produced when it is considered admissible and
relevant to the facts or issues. Here, the evidence is used to prove whether the defendant in a
disputed matter is guilty or not beyond a reasonable doubt. The general rule is that the burden
of proof always lies with the prosecution to prove the guilt of the defendant. The substantive
law in the criminal proceedings defines what the appellant has to prove to convict the
defendant. In criminal proceedings, the prosecution must prove all the necessary elements of
the offence laid out in the Criminal Code against the defendant.

Admissibility of evidence in the civil proceeding

In civil proceedings, the evidence is generally produced in the form of government
documents such as leases, sale deeds, rent agreements, gift deeds, etc. The general rule in a
civil proceeding is that the burden of proof lies on “the person who claims must prove”. In a
civil trial, the legal burden of proving a fact lies on the party who claims that fact. If the
defendant denies the allegations and finds a positive default such as “counterclaim”, then in
that case the burden of proof shifts towards the defendant. However, at first, the burden of
proof lies on the plaintiff in civil proceedings, after that it will shift to the defendant.

Lakshmandas Chaganlal Bhatia v. State

In this case, the court laid down some “relevant facts” under Section 9 of the Indian Evidence
Act, 1876. The Court held that a fact in an issue became relevant if it is necessary to explain
or introduce, or facts which support or rebut an inference, facts which establish the identity of
anything or person, facts which fix the time and place at which any fact in issue has happened
and any facts which show the relation of parties by whom any fact in issue was transacted.

Conclusion
Hence, evidence is significant and crucial in both civil and criminal proceedings. It is the
most integral and indispensable element of any proceedings. The evidence should always be
admissible in court if the facts are relevant and reliable. The evidence shall satisfy all the
specific provisions under the code. Both logical and legal relevance should be considered
during admission. Hence, the courts should let in only those facts which have a high degree
of probative value that would help the courts.

The law relating to evidence is not suitable for the present age and it must be amended for
better functioning. The law is supreme and no man should be given the discretionary power
to bend it. There must be a distinction between the law and the discretionary power of the
judge. However, a new mechanism must be developed to admit or not admit a particular
evidence.

4. Confession

Meaning of Confession
According to Sir James Stephen “An admission made at any time by a person charged
with a crime stating or suggesting the inference that he committed a crime”.

Though it an undiscovered fact that the term ‘confession’ is nowhere defined or

expressed in the Indian Evidence Act, but the inference explained under the definition
of admission in Section 17 of Indian evidence Act also applies to confession in the
same manner. Section 17 expressly provides that any statement whether oral or in the
form documentary which put forward for the consideration of any conclusion to the
fact in issue or to the relevant facts.
Types of Confession and process of recording confession

Formal Confession

Formal confession is also known as Judicial Confession and those statements which are made
before an office of magistrate or in the court of law during any criminal proceedings are known
as formal or judicial confession. A judicial confession not much other than a “plea of guilty”
as per the provision explained under Article 20(3) if Indian Constitution otherwise any
confession made against the person who is making the confession will have no evidentiary
value and he cannot be concluded guilty of any offence on the behalf of such confession.

Informal Confession

Informal confession is also known as extrajudicial confession and those statements which are
made at any place other than the place where there is an absence of magistrate or at any place
other than the court is considered as an extra-judicial confession. It is not necessary that the
statements should have been addressed to any definite individual. Just like in the principle of
judicial confession, informal confession can also be made in the form of prayer, the informal
confession is in any private room or a self conversation. But the court has to take care that no
matter judicial or extrajudicial confession, the confession by the accused must be consistent
with Article 20(3) of Indian Constitution which say ‘No one should be compelled to give
evidence against himself’ that means the confession should be on the will of the confessor and
must be true, then only a person can be charged for any criminal offence.

When is a confession irrelevant?

Sections 24, 25, 26 and relevant part of Section 27 of the Indian Evidence Act, 1872 deals with
condition that when can confession be irrelevant.

Section 24 of the same Act describes different instances when a confession on the basis of such
instances becomes irrelevant. Section 24 of Indian Evidence Act provides that a confession
made by a person who is accused of some offence is irrelevant if such confession comes out of
any inducement, threat or promise and such instances have proceeded from a person in
authority like police, magistrate, court etc., the other condition of this section is that
inducement, threat or promise should be in reference to charge of any offence and all such
inducements, threat or promise should give benefit of temporal nature.

For better understanding, we may divide the complete structure into 4 different essentials that
are:

 The confession must be out of inducement, threat or promise, inducement, etc.

 Such confession should proceed from a person in authority.
 It should relate to the charge in question.
 It should have the benefit of temporal nature or disadvantage.
Thus, when these conditions are fulfilled then the confession becomes irrelevant.

Confession to Police, Police Custody and effect of police presence

The essence of commission can be found in different statutes but Section 24 to 30 of Evidence
Act and section 162 to 164 of CrPC specifically deals with a confession.

Section 25 provides that “No statements made to a Police Officer shall be considered as a
confession for the purpose of proving that confession against that person who is accused to the
case”. The terms explained under Section 25 of this Act has vital importance which makes sure
that any confession made by the accused to the police officer under any circumstances until
provided, is totally not admissible as evidence in a court of law against the accused to prove
his guilt.

Section 26 prohibits the judicial bodies to prove the guilt of accused by his confession which
is made to police in police custody. Section 26 imposes a partial ban on provisions stated in
Section 25 that confession made to the police officer in police custody may be admissible if
the confession recorded in the immediate presence of a magistrate.

5. Dying Declaration
Introduction
Whenever any offence has been committed, there is always the two persons, who voraciously
knew what actually happened i.e. the Accused, who commit the offence and the other one is
Victim, with whom offence had been committed.

In order to prove their positions, and make one’s story to be true, they give Statements to
judge but their story one can not rely on the veracity of statements which they made to
support their stories, as it may be prejudiced or untrue so generally, the role of Witness
becomes crucial to determine the truth.

Dying Declaration is a statement made by the person while he was dying and states the
reason for his death. The statement given by the dying person can be circumstantial or tells
the cause for his death. Hence, the only statement given just before the death of a person is
called Dying Declaration. The person who is conscious of Compos Mentis and knows that
death is about to happen can make a declaration and state the cause of his death and that
statement will be Admissible and treated as Evidence in the Court. Declaration made by the
deceased person can be in oral, written and by conduct. The word Dying Declaration explain
the word itself.

Types of Dying Declaration

There is no particular form to be employed in making the Dying Declaration. it can be Oral,
Written, Gestures & Signs, Thumb impression, Incomplete and can also be in the form of
Question Answer. However, there must be a distinct and definite assertion on the part of the
person who produces the statement. Possibly the declaration should be in written form in the
exact words stated by the person who made the statement. When a magistrate records the
dying declaration, then it should be in Question-Answer form as the magistrate will opt the
maximum information rightly, as in some cases dying declaration becomes the sole way to
help in the conviction of the accused.

Gesture and Signs

In the case of Queen-Empress v. Abdullah[1] the appellant was charged with the offence of
murder before the court of session. That he had murdered one DULARI, a prostitute by
cutting her throat through RAZOR. It seems that one-morning dulari with her throat cut was
taken to the police station and from there to the dispensary. She was alive till the morning.
The post-mortem report shows that the windpipe and the anterior wall of the gullet had been
cut through. When Dulari was taken to the police station, she was questioned by her mother
in the presence of a sub-inspector. She was again questioned by the sub-inspector, deputy
magistrate and subsequently by the assistant surgeon.

She was unable to speak but conscious and able to make gestures and signs. Magistrate asked
dulari, as who had wounded her, but due to the injured condition dulari was unable to speak.
After that, The magistrate mentioned several names one by one and asked if they had
wounded her. Dulari moves her hand forward and backwards and made negative and
affirmative signs. Subsequently, the magistrate asked whether Abdullah had wounded her, for
that dulari waved her hand made the sign in the affirmative, the magistrate recorded the
statement. After that question was put to her that if she been wounded with a knife or sword.
In this regard, dulari makes a negative sign, again magistrate asked her if she had been
wounded with the RAZOR. She in answer to this made an affirmative sign.

The dying declarations made by Nirbhaya were recorded.

The first declaration was recorded by the doctor when she was admitted in the hospital on the
night of December 16, 2012 and the second on December 21 by the sub-divisional magistrate
during which she gave exact details of the mishappening.

The third declaration was recorded by the metropolitan magistrate on December 25 and was
mostly by gestures. The bench said that as far as the third dying declaration is concerned, this
court has already held that the dying declaration made through signs, gestures or by nods are
admissible as evidence.

Oral and written

When the person gives the name of the murderer to a person present and written by any of
them then it is a relevant dying declaration. However, people may dispose of the name of the
mugger orally.

An oral dying declaration is admissible in evidence as an exception to the general rule of

evidence that hereby evidence is no evidence in the eyes of law. The oral dying declaration
made before his wife, father-in-law and other near relatives were made in the conscious state.

In the case of Amar Singh v. State Of Rajasthan[2]. The deceased’s mother and brother gave
the evidence, that the deceased made the statement month prior to the incident of suicide by
her that the appellant, her husband used to taunt the deceased saying that she had come from
a hunger house and the appellant himself go to the house of deceased and asked for 10.000/-.
It was held that the dying declaration and appellant were convicted under section 304B and
498A of IPC. The Court referred to Pakala Narain Swamy v. Emperor[3]. in which Lord
Atkin: held that the circumstances of the transaction which resulted in the death of the
declarant will be admissible if such transaction has some proximate effect.

Incomplete Dying Declaration

Dying declaration made by the person, which is found to be incomplete can not be admissible
as evidence. When the condition of the deceased is grave and at his own request a statement
made by him in the presence of the doctor was later taken by the police but could not be
completed as the deceased fell into a coma from which he could not recover. It was held that
the dying declaration was not admissible in court as the declaration appears to be incomplete
on the face of it. But the statement, though it is incomplete in the sense but conveys the
declarant all necessary information or what he wanted to state, yet stated as complete in
respect of certain fact then the statement would not be excluded on the ground of its being
incomplete.

The deceased stated, “I was going home when I came near the house of Abdul Majid, Sohail
shot me from the bush. He ran away. I saw.” this was the dying declaration made by the
deceased and further was unable to answer the questions. It was held that there is no question
of incompleteness so far as the context of the case is concerned. In the case of Muniappan v.
State of Madras[4]. The deceased made the dying declaration as follows :
“Sir,

This day 24th January 1960 in the afternoon at 12:30 Muniappan son kola goundan of
kamnav-kurechi stabbed me in my body with a knife.”

Soon the deceased died after the statement. His thumb impression was taken after he was
dead. This declaration against Muniappan was complete and admissible.

Question- Answer form

Dying Declaration can be made in the form of Question-answer. the deceased, in some of her
statement, did not state the actual part played by the appellant. She merely answered the
questions put to her. The court held that when questions are put differently then the answer
will also appear to be different. At first glance, the detailed description of the offence may
appear to be missing but the statement of the deceased construed reasonably. However, when
the magistrate records the dying declaration, it must be preferred to be recorded in the form
of a question-answer must be preferred. If there is nothing to doubt that the person who
records the statement made by the deceased exact word to word, would not make any
difference merely because the same was not recorded in the form of question and answer.

Who should record the dying declaration?

Any person can record the dying declaration made by the deceased, but the person who is
recording the dying declaration must have some nexus with the deceased either
circumstantially or by some fact. However, the doctor or police officer hold more value as
compared to the normal person. As far as the dying declaration is concerned the magistrate
entrusted to record the dying declaration, as the statement recorded by him is considered
more evidential rather than statement recorded by the doctor, police officer and by the normal
person.

Recorded by a normal person

A dying declaration can be recorded by a normal person. As in some circumstances where the
judicial magistrate, police officer and doctor is not available, the Court can not reject the
dying solely statement made before the normal person. But the person who records the
statement must show that the deceased was in a fit state of mind and conscious while making
the statement no matter if the statement is not recorded by Judicial Magistrate, doctor and
police officer. The statement is admissible in a court of law.

Recorded by the doctor or a police officer

If there is no time to call the magistrate keeping in the mind the deteriorated condition of the
declarant, the statement can be recorded by the doctor or by a police officer. But one
condition must be coupled with it that while recording the statement there shall one or two-
person present there as a witness otherwise the Court may find the statement to be suspicious.
Moreover, the statement record by the doctor, later endorses that the declarant was not in a
stable condition and his statement would not be considered as evidence, rectify by the witness
that the deceased was in a fit state of mind and conscious to make the declaration. It was held
in the case of N. Ram v. State[11] that the medical opinion can not wipe out the direct
testimony of an eye witness which states that the deceased was in a fit mental condition and
able to make a dying declaration.

Recorded by the magistrate

When the deceased statement recorded by the competent magistrate has deemed to be
considered as reliable and attracts the evidentiary value as he presumed to know how the
dying declaration should be recorded and he is a neutral person. Moreover, the magistrate has
empowered to record the dying declaration under 164 of Cr.P.C.

Section 164 Cr. P.C states that SubSection (1) gives power to the magistrate to record the
statement of the dying person, no matter whether he has jurisdiction over that case or not, and
in case where the statement recorded by the magistrate who has no jurisdiction in that case
subsection (6) will apply. Here the word “statement” does not confine to only the statement
by the deceased and witness but also include a statement of the accused, in order to satisfy
himself, but the accused statement will not amount to a confession.

Language of the statements

As far as the language of the statement is concerned, it should be recorded in the language of
the deceased in which he is fluent or may possible than in Court language. The court cannot
reject the dying statement on the basis of the language in which it was made. It can be
recorded in any language. Even if the dying declaration is made by the deceased in Urdu,
Hindi, Punjabi languages, it was considered that statement could not be denied on the ground
of language in which it was made solely or on the ground that it was recorded in Urdu. When
the statement was given by the deceased in Urdu and the magistrate recorded it in English
than in that case precaution should be taken while in explaining every statement to the
deceased by another person, it was declared that the statement was the valid dying
declaration.

Points to remember

 Dying declaration made by the deceased can be recorded in any language.

 If the statement was recorded in another language than the one which magistrate
recorded, then precautions should be taken to explain each and every aspect and
phrase.
 The court cannot deny or discard the dying declaration only on the ground of
language.
F.I.R as a dying declaration
In a situation where a person dies after, when a F.I.R was lodged and stating that his life was
in danger, it is relevant to be recorded as circumstantial dying declaration.

In the case of Munnu Raja and another v. State of M.P[16] the Supreme Court Of India
observed that statement made by injured person recorded as FIR can be deemed as dying
declaration and such declaration is admissible under Section 32 of Indian Evidence Act. It
was also observed by the court that dying declaration must not shows the whole incident or
narrate the case history. Corroboration is not necessary in this situation, Dying declaration
can be declared as the exclusive evidence for the purpose of conviction.

Requirements of dying declaration

I. According to section 32 clause (1) of Indian Evidence Act, the requirement of dying
declaration is as follows:

II. The statement made by the deceased may be oral or written. But in some cases it can
be made with sign and gesture depends on the condition of the deceased

The statement must be as:

 Cause of death- when the statement is made by the person as to the cause of his death
or as to any of the circumstances of the transaction which was the reason for his death
not cover all the incident which are not relevant in order to determine the cause
 Circumstances of the transaction- the statement made by the deceased is only related
to the circumstances of the transaction will result in the death of the deceased,
remoteness or having no nexus which can not be connected with the transaction have
no value.
 Resulted in the death- the deceased statement should have the cause and
circumstances that will clearly reason for his death or ultimately result in his death.

Exception of dying declaration

There are many circumstances in which the statement made by the dying person is not
admissible in a court of law. These conditions are as follows:

1) If there is no question for consideration about the cause of death of the deceased. For
example, if a person in his declaration state anything which is not remote or having a
connection with the cause of death than the statement is not relevant and hence not be
admissible.
2) The declarant must be competent to give a dying declaration, if the declaration is made by
the child then the statement will not be admissible in court as it was observed in case of
Amar Singh v. State of M.P[27] that without the proof of mental fitness and physical
fitness the statement would not be considered reliable.
3) The statement which is inconsistent has no value and can not be considered as evidentiary
in nature.
4) The statement made by the deceased should be free from any influential pressure and
should be made spontaneous.
5) It is perfectly allowed to the court if they reject any untrue statement which contradicting
in nature.
6) If the statement is incomplete in the sense which means it can not answer the relevant
questions which are necessary to found guilty, and on the counterpart, statement deliver
nothing so it will not be deemed to consider.
7) Doctor’s opinion and the medical certificate should with the statement and support that
the deceased is capable of understanding what statement he makes.
8) If the statement is not according to the prosecution. In this regard, the following points
should be taken into consideration by the apex court.
9) While making the statement deceased must be in fit mind of the state.
10) Should be recorded by the magistrate or by a police officer and person in a case when
deceased was so precarious
11) A dying declaration should be recorded in question-answer form and written in words of
the persons exactly who gives the statement.

Dying Declaration should be free and spontaneous

Dying declaration due to compulsion or pressure not be relied upon whereas dying
declaration free from any biased relied upon. As it was held in the case of Krishna Lal v.
Jagun Nath that the wife was burnt by the husbands-in-law and in her dying declaration she
held that she was not burnt by her husbands-in-law and she was believed.

Conclusion
The dying declaration is not specifically mentioned in our penal law under Section 32(1) of
IPC. it is the statement made by the person who is going to die, and that statement will be
considered as evidence in court, how his death caused and who is the mugger. There are
many conditions that relied upon the dying declaration that it should be in an adequate
manner as dying declaration is the weapon who convicted the accused and stood as strong
evidence. The admissibility of dying declaration accepted in our Indian court because the law
presumes that in Leterm Mortem i.e in his last parting words the man will never lie as anyone
will meet his maker with a lie on his lips. This is because a man who is going to die, end with
all his needs and wants and his interest is no more passionate for self deeds so he seldom lies.