Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant:
Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:
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ADVERTISEMENTS:
(1) When it relates to cause of 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. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2) Or is made in course of business:
When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.
ADVERTISEMENTS:
(3) Or against interest of maker:
When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
(4) Or gives opinion as to public right or custom, or matters of general interest:
When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.
ADVERTISEMENTS:
(5) Or relates to existence of relationship:
When the statement relates to the existence of any relationship [by blood, marriage or adoption] between persons as to whose relationship [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
(6) Or 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 other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
(7) Or in document relating to transaction mentioned in section 13, clause (a):
When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).
(8) Or is made by several persons, and expresses feelings relevant to matter in question:
When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.
Illustrations:
(a) The question is, whether A was murdered by B; or
A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by В; or
The question is, whether A was killed by В under such circumstances that a suit would lie against В by A’s widow.
Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.
(6) The question is as to the date of A’s birth,
An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.
(c) The question is, whether A was in Calcutta on a given day.
A statement in the diary of a deceased solicitor, regularly kept in the course of business, that, on a given day, the solicitor attended A at a place mentioned, in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.
(d) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a deceased member of a merchant’s firm, by which she was chartered, to their correspondents in London to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.
(e) The question is, whether rent was paid to A for certain land.
A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact.
(f) The question is, whether A and В were legally married.
The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant.
(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day, is relevant.
(h) The question is, what was the cause of the wreck of a ship.
A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.
(i) The question is, whether a given road is a public way.
A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.
(j) The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased banуа in the ordinary course of his business is a relevant fact.
(k) The question is, whether A, who is dead, was the father of S. A statement by A that В was his son, is a relevant fact.
(I) The question is, what was the date of the birth of A.
A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.
(m) The question is, whether, and when, A and В were married.
An entry in a memorandum-book by C, the deceased father of. B, of his daughter’s marriage with A on a given date, is a relevant fact.
(n) A sues В for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libelous character. The remarks of a crowd of spectators on these points may be proved.
Comments:
Statement and object:
Sections 32 and 33 of the Evidence Act are exceptions to the general rule that hearsay evidence is not admissible. Hearsay evidence is not entertained by the courts on the ground that the evidence given by a person who does not have firsthand knowledge about the facts of the case. Because, according to Section 60 of this Act oral evidence must always be direct, that is, the person who has got first-hand knowledge about the facts of the case being entitled only to prove the facts.
For ends of justice the law always demands best evidence to be produced before the court of justice. The best evidence means evidence of the person who has made a statement or has written a document by himself. This is a best evidence of the person who has got firsthand knowledge about facts or original documents. When a witness appears before the court he is required to take oath and is subjected to cross-examination by the opposite party.
A second hand or hearsay evidence means derivative evidence. Hearsay evidence, according to Taylor, “all the evidence which does not derive its value solely from the credit given to the witness himself, but which rests also in part on the varacity and competence to some other person.” When the person or document (best evidence) cannot be available in the court, then the “other person” may be allowed by the court, who is not required to take oath or is put to cross-examination, to testify the contents of the documents prepared by the person who is not available for reasoned mentioned in Section 32. Thus, the hearsay evidence, is relevant when: (i) there is necessity and (ii) the special circumstances guaranteeing genuineness and trustworthiness. Section 32 is an exception to the hearsay rule. Unlike English law the Indian law does not make it wholly inadmissible.
Principle:
Under section 32 evidence given by a person in a judicial proceeding or before a person authorized by law to take evidence is relevant for the purpose of proving in a subsequent judicial proceeding the truth of the facts stated therein. It imposes restrictions upon the admissibility of statements made by persons who cannot be brought before the court to give evidence. As there is no better evidence available the statements made under this section are admitted as principle of necessity.” In other words written or verbal statements of relevant facts made by a person:—
(i) Who is dead;
(ii) Who cannot be found;
(iii) Who has become impossible of giving evidence; or
(iv) Whose attendance cannot be procured without unreasonable delay or expense, are relevant under the following circumstances of the case:
1. When it relates to the cause of his death, or
2. When it is made in course of business, or
3. When it is made against the pecuniary or proprietary interest of the maker, or
4. When it gives opinion as to right, custom or matters of general interest, or
5. When it relates to the existence of any relationships, or
6. When it is made in will or deed or other document to family affairs or
7. When it is made in document relating to transaction mentioned in Section 13, Clause (1), or
8. When it is made by several persons, and expresses feelings to the matter in question.
Necessity of Section 32:
This section comes into operation when any statement of a person who is either dead or cannot be found, or incapable to give evidence, or whose attendance is not possible without delay or expenses. Before any previous statement of any one of such persons can be admitted under section 32, at least one condition mentioned in clauses 1 to 8 must be fulfilled. In such circumstances the court may admit the statement of other persons “who are in the court to testify the previous statements of one of those above mentioned persons.
When a previous evidence given by a witness is intended to be proved, the facts must be proved strictly. In civil case the party can waive the proof, but in criminal cases strict proof must be given that the witness is incapable of giving evidence. In the present days the dying declaration has assumed much importance. But, the question as to how much weight can be attached to a dying declaration is a question of fact.
Before admitting evidence under section 32 the court must be satisfied the reasons mentioned in clauses (i) to (iv). If the person is dead, then the death must be proved. If the person making a statement survives, then the statement cannot be used as a dying declaration. If a person is not found after making certain statement, the court must be satisfied that all efforts of searching were made and exhausted. Similarly a witness after making statements became physically unfit and totally invalid to depose before the court.
If that happens the court has to be satisfied by producing true evidence as to his permanent incapacity. Sometimes it may happen that the witness is living in a foreign country and his appearance before the court cannot be possible without unreasonable delay or expense. In this circumstances relevant documents must be produced to satisfy the court that his abode in foreign country is permanent. It may also happen that certain original document is in possession of a person who is in abroad, the production of such document cannot be possible without delay or expenses. In such situations Section 32 is also applicable.
1. Statement of a dying person (Clause 1):
A statement of a dying person is generally called dying declaration. A dying declaration is a statement made by a person who is at the point of death and every hope of his life in the world is gone; that is, when the declarant is under the expectation of death and there should be no chance of operation of worldly motives. For example, A was assaulted and immediately afterwards died. Before his death A made a statement that “B had assaulted him.” The statement of A is admissible as to the cause of his death.
The death, whether it is the result of homicide of suicide is of no matter and the dying declaration may be written or oral or may be partly written and partly oral. In some cases it may be neither written nor oral, but may be consist of some signs or gesture made by the deceased. A dying declaration is, therefore, the last statement of the declarant who as under “settled and hopeless expectation of death.” It is admitted in evidence because it is presumed that no person who is immediately going into the presence of his maker, will do so with a lie on his lip.” The Supreme Court while admitting the maxim, nemo moriturus proesumitur mentisi (a man will not meet his maker with a lie in his mouth) as the basis of dying declaration, held:
“The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.” Thus the following conditions must be fulfilled before accepting a declaration as dying declaration or not:
(a) The person who made the statement must be died.
(b) The statement must relate to the cause of his death or any circumstances of the transaction which resulted in his death.
(c) The proceeding must be one in which the deponent’s cause of death was in question.
(d) The proceeding may be civil or criminal.
Dying declaration in English and Indian Laws:
Although the dying declaration under Indian law is founded on English law there are differences between the two legal systems:
1. Under English law the dying declaration in civil cases is not admissible. It is admissible in civil cases in India.
2. In English law the dying declaration is admission in homicide case “where the death of the deceased is the subject of the charge and circumstances of the death, the subject of the dying declaration.” Under Indian Law if the cause of death of the deponent comes in question his dying declaration is relevant irrespective of the nature of proceeding. There should be nexus between the circumstances stated by the victim and his/her death.
3. In English law it is necessary that the declarant had been in actual danger of death after receiving injuries and he should have abandoned all hopes of recovery. But, “if the declarant failed to complete his statement and died, the dying declaration is inadmissible.” In India the declarant’s death must have been ensured. It is immaterial whether the declarant was in actual danger and he had abandoned all hopes of life. If the declarant had been alive, he would have been a competent witness.
If the maker of a dying declaration was present in the court, making a statement stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof be subjected to cross-examination.
Statement relating to dying declaration:
Section 32(1) of the Evidence Act provides that the statement of the deceased may amount to a dying declaration provided the statement either relates to cause of death or exhibits the circumstances of transaction which resulted in his death. The statement of the declarant as to the cause of death or circumstances leading to death would be relevant in a case in which the cause of his death is the point of issue. If the statement is a reliable piece of evidence it can form the basis of a conviction. “The varacity, reliability and truthfulness of the dying declaration would be tested only after the evidence was recorded in court and if on proper evaluation of such evidence, the court came to conclusion that the dying declaration was truthful version then there is no question of any further corroboration as the conviction could be based on such dying declaration only. The deceased stated that the accused poured kerosene on her and set her on fire. Statement were recorded by the magistrate after the doctor found her to be in position to give statement. Doctor endorsed the declaration. The conviction of the accused was proper.
“The circumstances of the transaction which resulted in death” are wider in scope in application than the expression “cause of death.” The proximity of the statement with the actual occurrence has been found in the leading decision of the Privy Council in Pakala Narayana Swami v. Emperor. Their Lordships held:
“The statement related to the circumstances of transaction which resulted in his death and so it was relevant. They also held that, the statement made by the deceased that he proceeding to the spot where he was killed or as to his reason for the proceeding or that he was going to meet a particular person or that he had been invited by such person to meet him would each of them be circumstances of the transaction and would be so whether the person unknown or was not the person accused. ‘Circumstances of the transaction is a phrase no doubt that conveys some limitations.
It is not as broad as the analogous use in ‘circumstantial evidence’ which includes evidence of all relevant facts. It is on the other hand narrower than ‘res gestae.’ Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in death of the declarant, though as for instance in case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual total date.
It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that the cause of (the declarant) death comes into question.”
The Privy Council expressed the opinion that the statement of the accused was partly confession and party an explanation for his innocence. By giving him benefit the Privy Council set aside the conviction of the accused. But the statement made by the victim that “he was proceeding to the spot where he was killed or as to his reason for so proceeding or that he was going to meet a particular person or that he had been invited by such particular person to meet him would each of them be circumstances of transaction.” The words statement as ‘to any of the circumstances’ are by themselves capable of expanding the contours of the scope of admissibility. When the word ‘circumstances’ is linked to ‘transactions’ which resulted in his death the sub-section casts the net in a very wide dimension”. The principles laid down by the Privy Council on dying declaration were accepted by the Supreme Court in Khushal Rao v State of Bombay case.
The Supreme Court once again held that a dying declaration, as a piece of evidence, stands as the same footing as any other piece of evidence, it has to be judged and appreciated in the light of surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. As a matter of fact, perfect wording and neatly structured dying declaration may bring about an adverse impression and create a suspicial in the mind of the court since dying declarations need not be drawn with mathematical precion of the declarant should be able to recollect the situation resulting in the available state of affairs. Not that the plurality of dying declarations that adds weight to prosecution case but their qualitative worth. Dying declaration should be such nature as to inspire full confidence. It is not sufficient to convict an accused merely because dying declaration was correctly recorded and it was true version of declarant. The dying declaration must be inspiring confidence when it forms basis of conviction. Once the Court is satisfied that the dying declaration is true and voluntary it is sufficient for conviction.
Proximity Rule:
The proximity rule laid down by the Privy Council means the circumstances must have some proximity relating to actual occurrence. But the text of proximity cannot be too literally construed and practically reduced to a cut and dried formula of universal application so as to confine in a strait- jacket. “They were not too remote in time from the point of death” but “being proximate in point of time and space to the happening the entire statement would have to be read as an organic whole and not torn from the context.” The statement of the deceased is admissible only to the extent of briefing the cause of circumstances of the transaction which resulted in death of the deceased. The statement has closed nexus with the actual transaction.
Corroboration not necessary:
“There is no absolute rule of law, or even a rule of prudence, that a dying declaration unless corroborated by other evidence, is not fit to be acted upon and made the basis of a conviction.” The true and voluntary dying declaration needs no corroboration. It is not essential that the dying declaration should always be corroborated. However, care and caution must be exercised in accepting it as trustworthy evidence. If no infirmity is found the dying declaration can be the sole basis for conviction without any corroboration.1 There is neither rule of law nor prudence that dying declaration cannot be acted upon without corroboration. The rule requiring corroboration is merely a rule of prudence.
F.I.R. as dying declaration:
A First Information Report (FIR) when fulfilled all conditions under section 32( 1) it is relevant as dying declaration. Where father of deceased son logged FIR after admitting him in hospital and mentioned about oral dying declaration with necessary details, such dying declaration given to interested person is reliable. In a bride-burning case the statement given by the deceased was initially recorded as complaint and treated as FIR after death of the deceased. But, the FIR as well as the statement given by the injured to the investigating officer is not admissible as dying declaration under section 32 of the Evidence Act. Similarly, a declaration noted down by an Asstt. Sub-Inspector even before FIR was lodged was held not be acceptable.
Recording of dying declaration by a Magistrate:
A dying declaration recorded by a Magistrate in a proper manner and in question answer forms as far as practicable and the doctor’s certificate that the declarant was conscious and in a fit condition to make the declaration, should be endorsed on the dying declaration. When neither a doctor nor a nurse was available for giving necessary certificate, the dying declaration is the best evidence available against the accused, the court may rely upon such “defective dying declaration” if there is reliable corroboration. It would be very unsafe and hazardous to sustain the conviction of the accused charged for offences under section 302 read with Section 34. I.P.C. on the basis of dying declaration recorded by a special executive magistrate and police officer separately. It was not sufficient to convict an accused merely because the dying declaration was correctly recorded and it was true version of declarant. The dying declaration must be inspiring confidence when it forms basis of conviction. It is not necessary that dying declaration must be made in presence of magistrate and should be made in the expectation of death. The statement of the deceased was recorded when she was fit and signed the statement in connection with dowry demand case the accused was liable to be convicted under section 304 of I.P.C.
More them one dying declaration:
Where there are more than one dying declarations and they are inconsistent then it is not possible to pick out one such declaration wherein accused is implicated and bare the conviction on the sole basis of that dying declaration. There was gap between two declarations, yet they were totally consistent with each other, the dying declaration were held reliable.
Where two dying declarations, one recorded by the doctor and the other recorded by the Magistrate, it will not be safe to rely on either of the dying declaration. In multiple dying declaration lost dying declaration was not in conformity with FIR and declaration made to police as regards motive for offence is concerned. Besides, the manner in which the deceased was set on fire was also different in two declarations. It was held that the conviction cannot be based on dying declaration if there are inconsistence’s in three dying declarations the conviction of appellants was held consafe on such evidence.
Dying declarations in respect of dowry death and bride burning:
In case of dowry death, suicide or bride burning, if death takes place within short period or within three or four months the statement of the deceased is admissible. In case of bride burning the doctor to whom the deceased was taken for treatment deposed that soon after the deceased was admitted into the hospital she told him that her husband had poured kerosene on her and set fire to her clothes.
The statement was considered as dying declaration. In State of U.P. v Harimohan a housewife was in her in-law’s house. A letter written by her to her father two days prior to the incident stating therein that she should be immediately taken to back from the house of her in-laws as otherwise her brother-in law, mother-in law and husband would murder her, was treated as dying declaration. The death by drawing in family well of a housewife and statement made by her to her father as to her suffering at in-laws house was held to be relevant. In case of dowry death the dying declaration must be as quickly as possible in medico-legal register by a doctor and to be signed by him. A true copy of the entry shall be signed and certified by the doctor and forwarded through the investigating officer to the court in order to avoid any subsequent tampering.
Where the dying declaration was made by a married woman, which was taken down by the Naib Tehsildar. The evidence of the doctor was that she was burnt to the extent of 70% and would have remained capable of speaking only for an hour or two after the incident. On the other hand the post-mortem report was that she was burnt about 80%. It was held that a report prepared after death could not supersede the opinion which was formulated by the doctor when the injured was brought to the hospital. Other witnesses also deposed that her husband had sat her on fire. The conviction was uphold.
“Few minutes before her death the deceased made a declaration quietly to her mother naming therein all the three relatives along with the husband who poured kerosene to burn her alive. It was in evidence that the deceased had extensive burn injuries including her mouth, nose and lips.
The Court held that if any credence is to be allowed to the same, then and in that event, the evidence of the mother about the confession stands believed by itself. Significantly, the doctor’s evidence as in available on record would also go a long way in the unacceptability of the evidence of the mother as regards confession.”
Oral dying declaration in honour killing:
It is a case of honour killing of six persons. One of deceased, bother of informant total who were his assailants.
Fact was not mentioned by the informants in FIR as well as in statement recorded under Section 161. Cr. RC. Evidence of informant that after incident he had gone near his injured brother and upon enquiry his brother told him about his assailant was not impossible. His evidence was not impeached in cross- examination. It was held that the dying declaration cannot be disbelieved.
Evidentiary value of dying declaration:
In order to assess the evidentiary value of dying declaration under section 32(1) one must not think of that it is “an absolute rule of law” and sole basis of conviction. The general principle on which the dying declaration is admitted that when any person who made such declaration was “at a point of death and when every hope of this world is gone and when even motive to falsehood is silenced, and the mind induced by the most powerful considerations to speak the truth a situation solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by positive oath administered in a court.”
In Khushal Rao v State of Bombay the basic principles have been laid down by the Supreme Court in the following words which would be considered as ratio:
1. “That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;
2. That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;
3. That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence;
4. that a dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;
5. that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and
6. that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, where there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it, and that the statement had been made at the earlier opportunity and was not the result of turtoring by interested parties.”
Whether dying declaration is evidence:
The dying declarations are not depositions as the maker does not have any opportunity to take oath, but sometimes they may be considered as relevant where the dying declaration is recorded by the magistrate; it is an evidence and can be admitted without proof under section 80 of this Act. Dying declaration is not depositions unless made in the presence of the accused and recorded by a magistrate.
Where there are “multiple declarations each has to be considered independently on its own merit as to its evidentiary value. One cannot be rejected because of contents of other. But there is no requirement of law that dying declaration must necessarily be made to a magistrate. If evidence of the prosecution has no connection with any circumstance of transaction which resulted in death would not be admissible in evidence as dying declaration of the deceased.
Statement under sections 161 and 162, Cr. PC:
The statement of the person who is injured recorded under section 161, Cr. PC is relevant relating to cause of death if he dies subsequently. Section 162(2), Cr. PC in express terms, excludes from its purview statements falling under section 32(1). In this case dying declaration was held to be relevant.
2. Statements made in course of business (Clause 2):
The clause 2 of Section 32 is another exception to the general rule of hearsay that derivative proofs are not receivable in evidence. It covers statements, written or oral, of a dead person made or done in the ordinary course of business. According to this clause when a statement made by a person in course of business and in particular:
(i) When it consists of any entry or memorandum made by him in book kept in ordinary course of business; or
(ii) In discharge of professional duty: or
(iii) When it consists of acknowledgement written by him or written by someone and signed by him of the receipt of money, goods, securities or property of any kind; or
(iv) When it consists of a documents used in commerce written or signed by him; or
(v) When it consists of a date of letter or other document usually dated, written or signed by him.
The statement is relevant. Illustrations (b), (c), (d) and (g) speak for themselves.
When the date of birth is in question. An entry in the diary of a deceased surgeon regularly kept in the course of business stating that on particular day he attended a lady who delivered her of a child, it is relevant [Illustration (b)]. The declaration as to date of birth when in question, the school records have more probative force than horoscope.
Similarly, the question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business that, on a given day the solicitor. A attended at a place mentioned, in Calcutta for the purpose of conferring with him upon special business, is relevant fact [Illustration (c)].
The expression “statement made in course of business” has got a significant meaning that it “must be nearly contemporaneous with the performance of duty” the expression ‘course of business’ is also to be found in Sections 16, 34 and 114. “The rule laid down extended only to statements made during the course, not of any particular transaction of an exceptional kind, such as the execution of a deed of mortgage, but of business of professional employment in which the declarant was ordinarily or habitually engaged.” In a proceeding for fixation of fair rent counterfoils made in ordinary course of business are admissible to prove the date of construction of building. The statement of a person who is not available is a statement of that person made in the ordinary course of business in discharging of his professional duty. The business referred to may be of temporary character.
The phrase “is a apparently used to indicate the current routine of business which was usually followed by the person whose declaration it is sought to be proved.” In order to admit statement the extrinsive evidence must be given by the party and such evidence must also be weight full to prove the statement made during course of business. Where the entries were signed by the person concerned they were held to be relevant; but where the statement was written, the hand-writing of the declarant and that it was made in course of business, must be proved.
The injury report and post-mortem report prepared by the doctor are relevant and can be used as evidence against the accused after having been proved to be his handwriting. In Panjis or pedigree tables maintained by Panjikars in discharge of profession duty fall under this clause. A statement to which signatures are appended that a document is a copy of the original is admissible when made by the deceased person in a document relating to a relevant fact and also as an admission.
Entry memorandum of account, books, registers etc. is also relevant. Where entries in account book are relevant under section 32(2) and person producing has no personal knowledge, the court may require corroboration. It was held that the books were maintained properly and regularly and that there is reason to doubt their veracity.
3. Statement against interest of maker (Clause 3):
Generally no one can say anything against his own interest unless it is true. Clause (3) of Section 32 lays down that statements of a dead person, which is against his pecuniary or proprietary interest and if it is true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages being relevant. It is the same as that of admission. The principle of admissibility is that in the ordinary course of business a person is not likely to make a statement to his own detriment unless it is true.
If the statement of a person, who is dead or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense is neither against his pecuniary or proprietary interest nor if true would expose him to a criminal prosecution or to a suit for damages it will not be relevant. The admissibility of the statement depends on the presumption of what actually the maker had stated against his own interest. The subject of declaration against interest has been given in a leading case.
In order to render a person’s statement admissible under clause (3) it must be against his interest which may be pecuniary, proprietary or any other kind. But, the statement must have been made consciously with the knowledge that it was against his interest. In order to determine whether a statement is against interest, the statement itself and not the nature of the transaction is to be looked at. Statement of respondent’s predecessor-in-title who is dead against his interest before the settlement officer was admissible and it being recorded in a quasi judicial proceeding can be proved by a certified copy thereof. The statements when admissible against the maker are also admissible against his representative.
Statement against pecuniary interest:
A statement against pecuniary interest means against the monetary interest of the maker. If a statement made by a person against his pecuniary interest, it may impose upon him the pecuniary liability or it has the effect of charging him with pecuniary liability to another or discharging some other person upon whom he would otherwise have a claim [Illustration (e)]. “In short, any statement to the effect that his financial position is worse that it would prima facie appear to be bad be not made the statement, will be received as a declaration against his interest.” The statement by dead person in a deed that he separated himself from the other coparceners is against interest.
Statement against proprietary interests:
A statement by a person against proprietary interest means a declaration while he is in possession of the property, that he has limited interest denying the superior interests of another. When a person in possession of land admits that he is a tenant only he admits he is not the title holder of the land. A statement by the deceased that he had purchased land in the name of another person not merely as a benami transaction but with a view to making him owner. It is admissible.
It was held that the statement of the deceased Manager of a joint Hindu family that he purchased certain property out of the income of the property in the name of his son-in-law is a statement against the proprietary interests of the managers. It must be remembered that in order to make a statement admissible it must be proved that the declarant was in possession at the time of making such declaration.
Criminal prosecution and suit for damages:
Any statement which would have exposed the declarant to a criminal prosecution or a suit for damages is relevant. For example, the statement of the deceased that he set fire to rubbish was held to be relevant. Similarly the confession of co-accused in joint trial is relevant. The confession of a deceased co-accused was admissible under section 30 read with Section 32(3) of the Evidence Act.
4. Statement as to public right or custom (Clause 4):
Clause (4) of Section 32 deals with the declaration of person who cannot be called before the court to prove any public right, or custom or matters of general interest. The person who was aware of the existence of such right, custom etc. made a statement to this effect and died, such statements are relevant under clause 4. The conditions to be fulfilled include:
(i) The existence of public right, custom or matter of general interests,
(ii) The declaration must come from competent person, and
(iii) The statement is not merely hearsay. Public rights are those rights which affect public at large, such as, right to use public highways, ferries, funeral places, right of bathing in river etc.; general rights are rights affecting a considerable section of the population or community, such as parochial or manorial rights.
It is to be noted that: (i) rights claimed must not be private right, and (ii) the declaration must have been expressed before the controversy as to the existence of that right, custom or matter of interest i.e. ante litem motam (before the dispute arose).
Example of public right:
A statement, in a gift dead, to the effect the mosque was constructed by certain person as a matter of charity, was held to be relevant.
5. Statement relating to existence of relationship (Clause 5):
Under clause 5 the statement made by a person who is dead or who cannot be found and etc. will be relevant when it relates to the existence of relationship between persons. Four conditions must be fulfilled, viz.—(i) the statement, written or verbal, of relevant facts must have been made by a person who is dead, or cannot be found etc. (ii) the statement must relates to the existence of any relationship by blood, marriage or adoption, (iii) the person making the statement must have special means of knowledge as to the relationship in question, and (iv) the statement must have been made before the question in dispute was raised.
The above conditions are sine qua non and the Supreme Court has reiterated in Dalgobinda v Nimaicharan case. The question of inheritance was raised as to whether the plaintiff and defendant were real bothers. Entries made by the Panda (priest) of a temple were admitted that the parties to the suit were not brothers.
The special knowledge is presumed to be knowledge of the declarant who was a member of the family and was intimately connected with it. The statement contained in a pedigree is also governed by this clause. Statements made by deceased members of the family are admissible in evidence to prove pedigree if they are made before there was anything to throw doubt upon them. The Supreme Court observed that when a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link found to be missing then in the eye of law the genealogy cannot be said to have been fully proved.”
A document executed subsequent to the dispute cannot be relied upon for ascertaining relationship.
6. Statement made in will or deed (Clause 6):
When a statement is made by a person who is dead or who cannot be found and etc. (i) relates to the existence of any relationship by blood, marriage, or adoption, (ii) between persons deceased and is made in any will or other deed relating to family affairs of the family to which any of such deceased person belonged and (iii) when the statements made ante litem motam; it is relevant. [Illustrations (h) and (l)].
Although clause 5 and clause 6 are apparently similar there are marked differences between the two; viz.,
(a) Clause 5 deals with the proof of existence of relationship between persons who are alive or dead, whereas clause 6 deals with the persons who are already dead.
(b) Clause 5 admits the evidence of statements, written or verbal, whereas the clause 6 admits only written evidence.
(c) In clause 5 the evidence is the declaration of a person deceased or otherwise inproducible, whereas in the clause 6 the evidence is that of a things viz. wills, family genealogical trees etc.
Under the clause 6 the statement of declaration is expected to come from family member who has good blood relationship, but in some circumstances the statements of persons having special knowledge about relationship are relevant. For examples, birth/death certificates issued by the Birth Registration, Marriage Certificate issued by the priest of a temple etc.
7. Statement made in document relating to transaction (Clause 7):
Under this clause a statement contained in any deed, will or other documents which relate to any transaction mentioned under section 13(a) of the Act, is relevant. This clause does not allow introduction of parole evidence. Under this clause only that statement which is contained in any dead or will or in other document relating to any transaction by which a right or custom in question was created, claimed, modified, recognized, asserted or denied, is admissible. The statement must be covered under section 13(a) of the Act and the document must have been related to transaction. A family custom may be proved by recitals contained in family document executed before controversy.
8. Statements of several persons expressing their feelings (Clause 8):
Last clause of Section 32 relates to the statement made by a number of persons expressing feelings or impressions on their part is relevant [Illustration (n)]. The statement must have been the common feeling or impression of an aggregate number of persons. In the well known case of “Beauty and the Beast” it has been decided that “there was an action for damages for destroying a picture; the impression produced upon the find by the picture was allowed to be proved on the defence, by witnesses who swore to the exclamations and declarations of other spectators of the picture in their presence, such spectators not being themselves put into witness box.”
Fact of the case:
“In that case plaintiff a painter, had painted one Mr. Hope and his wife Mrs. Hope. The former was extremely pain and the other handsome whereupon the plaintiff exhibited it public with the title of “Beauty and the Beast.” The defendant Bareford, the brother of Mrs. Hope, cut the picture to pieces and therefore the action was brought to recover damages. The defence was that the picture was libel circulated to bring the defendant into public ridicule, and he was therefore justified in destroying it.
To prove this, witnesses were called who swore to the impression produced by the picture on their own minds, viz, that it was intended to be a representation of the defendant and his wife, and to the statements of recognition by other spectators. The evidence was received. What the witness said as to his own feelings was in the nature of original evidence, that he reported by sanders to have said was in the nature of hearsay. Now the latter is receivable as relevant.”