Hearsay Evidence under the Indian Evidence Act: Concept, Exceptions, and Examples

 Introduction to Hearsay Evidence

Hearsay evidence refers to information that a person gathers or collects from someone else who has first-hand knowledge of that fact or information, making it second-hand information. According to the Indian Evidence Act, 1872, hearsay evidence is generally not considered valid evidence and is inadmissible in courts.

The fundamental principle underlying this rule is that oral evidence must be direct, as mandated by Section 60 of the Indian Evidence Act. This section requires that if evidence refers to a fact that could be seen, heard, or perceived by any other sense, it must be the evidence of a witness who says they directly saw, heard, or perceived it.

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Whether the court can rely on dying declaration of wife for convicting husband for an offence U/S 498A of IPC?

  A reading of the above pronouncements makes it clear that, in some circumstances, the evidence of a deceased wife with respect to cruelty could be admissible in a trial for a charge under Section 498 A of the IPC under Section 32(1) of the Evidence Act. There are, however, certain necessary preconditions that must be met before the evidence is admitted. {Para 20}

21. The first condition is that her cause of death must come into question in the matter. This would include, for instance, matters where along with the charge under Section 498A of the IPC, the prosecution has also charged the accused under Sections 302, 306 or 304B of the IPC. It must be noted however that as long as the cause of her death has come into question, whether the charge relating to death is proved or not is immaterial with respect to admissibility.

22. The second condition is that the prosecution will have to show that the evidence that is sought to be admitted with respect to Section 498A of the IPC must also relate to the circumstances of the transaction of the death. How far back the evidence can be, and how connected the evidence is to the cause of death of the deceased would necessarily depend on the facts and circumstances of each case. No specific straitjacket formula or rule can be given with respect to this.

23. To the above extent therefore, the judgments of this Court in Gananath Pattnaik (supra), Inderpal (supra), Bhairon Singh (supra) and Kantilal Martaji Pandor (supra), wherein it has been held that the evidence of the deceased cannot be admitted under Section 32(1) of the Evidence Act to prove the charge under Section 498 A of the IPC only because the accused stands acquitted of the charge relating to the death of the deceased, may not be correct. These judgments stand overruled to that limited extent.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1080 of 2019; 

Dated: MAY 13, 2022 

SURENDRAN Vs STATE OF KERALA

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Whether court can treat Suicide Note as Dying Declaration?

Whether Suicide Note can be treated as Dying Declaration:

29. Nilesh (P.W.-7), brother of the victim has also produced the suicide note (Ex. P-6) written by the deceased, taken in possession vide memo Ex. P-7 on 23.10.1998 at about 7.30 am. Her dead body was taken in possession on 23.10.1998 vide Memo Ex. P-10. The time of death is mentioned as 22/23.10.1998 before 3.00 am. In the suicide note (Ex. P-6) dated 22.10.1998, she has written that she does not want to live the life of disgrace nor the police will permit her to live gracefully. She has stated that to avoid disgrace to her and her parents, she is taking this step. She stated that it was her fault that she sat in their vehicle. They were drunk and that she sat in their vehicle by mistake and they thought that she is the girl of loose-character. In the suicide note she is categorical that she will not be able to live a life of disgrace. She stated that it will be better if she dies rather than to live a life of disgrace to her and her family members. She has stated that both of the accused had liquor and that whatever has happened to her has disrupted and ruined the life and that she does not want to ruin the life of the boys by punishing them. She was violated on 17.10.1998. She committed suicide after four days. From her suicide note, it is clear that she was violated and that she does not want to live life of disgrace. She has tried to convey that the accused were hungry (for sex) and that she became their food (victim). The entire reading of the dying declaration does not absolve the accused though she said that they be not punished.

30. The judgment relied upon by the learned counsel for the appellant in Lalji Dusadh (supra), was a case of trial for an offence under Sections 392 and 397 of the IPC wherein the dying declaration was found to be admissible. It was held that the words of Section 32 of the Act are very wide and it is not necessary that the charge should be one of homicide. The evidence as to the cause of death was relevant to the charge of robbery and consequently the cause of death i.e. the assault committed by the appellant came in question in the trial. 

36. The suicide note which is a dying declaration and just on the day of writing of such letter and five days of the occurrence, the dead body was taken in possession at about 9.30 a.m. on 23.10.1998 vide memo Ex. P-10 and the time of death is mentioned as 22/23.10.1998 before 3.00 am in the intervening night of 22nd and 23rd October, 1998. However, the suicide note is corroborated by the other evidence on record, which we discuss hereinafter.

37. In view of the evidence on record, the statement Ex. P-6 in the handwriting of the victim proved by Nilesh (P.W.-7) is a dying declaration, as she died on the same day, which fact is evident from the memo Ex. P-10 having been prepared around 9.30 a.m. on 23.10.1998, wherein the time of death is mentioned as "before 3.00 a.m. on 23.10.1998". The argument that the suicide note does not name the accused, is of no consequence, as the presence of the victim with the accused at the place of occurrence is proved from the statement of Kashi Singh (P.W.-1), Kishan Singh (P.W.-4) and also Manoj Sharma (P.W.-14), who recorded the first information report. The suicide note has to be read as a whole and not a line can be picked up from out of context.

IN THE HIGH COURT OF MADHYA PRADESH (JABALPUR BENCH)

Criminal Appeal No. 541/2000

Decided On: 01.11.2018

State of Madhya Pradesh Vs.  Mohammad Shahid and Ors.

Hon'ble Judges/Coram:

Hemant Gupta, C.J. and Atul Sreedharan, J.

Author:Hemant Gupta, C.J.

Citation: MANU/MP/0583/2018

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Latest Supreme Court Judgment on dying declaration

 A survey of the decisions would show that the
principles can be culled out as follows:
a. Conviction of a person can be made solely on
the basis of a dying declaration which inspires
confidence of the court;
b. If there is nothing suspicious about the
declaration, no corroboration may be necessary;
c. No doubt, the court must be satisfied that
there is no tutoring or prompting;

d. The court must also analyse and come to the
conclusion that imagination of the deceased was
not at play in making the declaration. In this
regard, the court must look to the entirety of
the language of the dying declaration;
e. Considering material before it, both in the
form of oral and documentary evidence, the court
must be satisfied that the version is compatible
with the reality and the truth as can be gleaned
from the facts established;
f. However, there may be cases where there are
more than one dying declaration. If there are
more than one dying declaration, the dying
declarations may entirely agree with one another.
There may be dying declarations where
inconsistencies between the declarations emerge.
The extent of the inconsistencies would then have
to be considered by the court. The
inconsistencies may turn out to be reconciliable.

g. In such cases, where the inconsistencies go to
some matter of detail or description but is
incriminatory in nature as far as the accused is
concerned, the court would look to the material
on record to conclude as to which dying
declaration is to be relied on unless it be shown
that they are unreliable;
h. The third category of cases is that where there
are more than one dying declaration and
inconsistencies between the declarations are
absolute and the dying declarations are
irreconcilable being repugnant to one another. In
a dying declaration, the accused may not be
blamed at all and the cause of death may be
placed at the doorstep of an unfortunate
accident. This may be followed up by another
dying declaration which is diametrically opposed
to the first dying declaration. In fact, in that
scenario, it may not be a question of an
inconsistent dying declaration but a dying

declaration which is completely opposed to the
dying declaration which is given earlier. There
may be more than two.
i. In the third scenario, what is the duty of the
court? Should the court, without looking into
anything else, conclude that in view of complete
inconsistency, the second or the third dying
declaration which is relied on by the prosecution
is demolished by the earlier dying declaration or
dying declarations or is it the duty of the court
to carefully attend to not only the dying
declarations but examine the rest of the
materials in the form of evidence placed before
the court and still conclude that the
incriminatory dying declaration is capable of
being relied upon?
OUR CONCLUSION ON MULTIPLE DYING DECLARATION
31. We would think that on a conspectus of the law as
laid down by this court, when there are more than one

dying declaration, and in the earlier dying
declaration, the accused is not sought to be roped in
but in the later dying declaration, a summersault is
made by the deceased, the case must be decided on the
facts of each case. The court will not be relived of
its duty to carefully examine the entirety of materials
as also the circumstances surrounding the making of the
different dying declarations. If the court finds that
the incriminatory dying declaration brings out the
truthful position particularly in conjunction with the
capacity of the deceased to make such declaration, the
voluntariness with which it was made which involves, no
doubt, ruling out tutoring and prompting and also the
other evidence which support the contents of the
incriminatory dying declaration, it can be acted upon.
Equally, the circumstances which render the earlier
dying declaration, worthy or unworthy of acceptance,
can be considered.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 967 OF 2015

JAGBIR SINGH Vs  STATE (N.C.T. OF DELHI) 

K.M. JOSEPH, J.
Dated:September 4, 2019.

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Whether affidavit of examination in chief of witness is admissible U/S 32 of evidence Act if he dies prior to cross examination?

Secondly, even under section 32 of the Evidence Act, the statement of the deceased would become relevant subject to one of the four conditions mentioned in the main section and for purposes of the eight circumstances spelt out in the later part of the section itself. Therefore, unless both these predicates are satisfied, at least ordinarily, the statement of the deceased cannot be treated as "evidence" under the Evidence Act.

23. Section 32 of the Evidence Act comprises two parts. The main section provides that the 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, then such statements may themselves be relevant facts. The second part of section 32, however, states the circumstances, in which, such statements may be regarded as "evidence" of the relevant facts. They are as follows:

"(1) When it relates to the cause of his death.

(2) When it is made in the course of business, such as an entry in books, or acknowledgement or the receipt of any property, or date of a document.

(3) When it is against the pecuniary or proprietary interest of the person making it, or when it would have exposed him to a criminal prosecution or to a suit for damages.

(4) When it gives opinion as to a public right or custom or matters of general interest and it was made before any controversy as to such right or custom had arisen.

(5) When it relates to the existence of any relationship between persons as to whose relationship the maker had special means of knowledge, and it was made before the question in dispute arose.

(6) When it relates to the existence of any relationship between persons deceased and is made in any will or deed or family pedigree, or upon any tombstone or family portrait, and was made before the question in dispute arose.

(7) When it is contained in any deed, will, or other document.

(8) When it is made by a number of persons and expresses feelings relevant to the matter in question."

24. In the present case, the first part of section 32 of the Evidence Act was no doubt attracted because Mr. Desai died after filing his affidavit in lieu of examination-in-chief, but before his cross-examination could even commence. However, section 32 of the Evidence Act does not render the statements made by persons who cannot be called as witness admissible in all cases. The statements themselves may be regarded as "evidence" or relevant facts in the eight circumstances referred to in the second part of section 32 of the Evidence Act. The impugned judgment and order does not advert to the circumstances in second part of section 32 of the Evidence Act.

25. The statements in Mr. Desai's affidavit in lieu of examination-in-chief neither relate to cause of his death nor can they be said to be statements made in the course of his business. The statements can neither be said to be against Mr. Desai's pecuniary or proprietary interest nor can it said that such statements would have exposed to him some criminal prosecution or suit for damages. The statements obviously do not relate to any opinion as to public right or custom or matters of any general interest. The statements also do not relate to existence of any relationship between persons as to whose relationship Mr. Desai had any special means of knowledge. The statement in this case, was not made any will or deed or family pedigree in relation to existence of any relationship between persons deceased before any question or dispute arose. Mr. Desai's statement in the present case, was also not some statement and contained in any deed, will or other document. Finally, this is also not a case of statements made by several persons and expresses feelings relevant to the matter in question. This is the second reason why the statements in Mr. Desai's affidavit in lieu of examination in chief could not have been treated as "evidence" under the Evidence Act.

IN THE HIGH COURT OF BOMBAY

Appeal No. 333 of 2017 in Testamentary Suit No. 28 of 1995

Decided On: 22.10.2018

 Anuradha Anil Bhagwat Vs. Kirit Navnitlal Damania and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and M.S. Sonak, JJ.

Citation: AIR 2019 Bom 41,2019(3) MHLJ 790

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Whether Dying Declaration by a person explaining circumstances of death of another is admissible?

 In the present case, we are concerned with Point (iii) as we are concerned with the question whether statement of Prabhabai is relevant for determining cause of death of Savita. In other words, when charge is of murder of Savita, whether cause of death of Prabhabai which is integral part of the incident can also be held to be in question.

19. On a plain reading, the statement is admissible about the cause of death or the circumstances of the transaction which resulted in the death of the person making the statement. Question is what happens when two deaths have taken place in the same transaction and circumstances of the transaction resulting in one death is closely interconnected with the other death. Admittedly, the DD of Prabhabai is admissible as to cause of her death as well as the circumstances of the transaction which resulted in her death. Such statement may not by itself be admissible to determine the cause of death of anyone other than the person making the statement. However, when the circumstances of the transaction which resulted in death of the person making the statement as well as death of any other person are part of the same transaction, the same will be relevant also about the cause of death of such other person.

20. Expressions "Relevant" and "facts in issue" are defined in the Evidence Act as follows:

"Relevant"-One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

"Facts in issue"-The expression "facts in issue" means and includes--any fact from which, either by itself or in connection with other facts, the existence, nonexistence, nature or extent of any right, liability, or disability asserted or denied in any suit or proceeding, necessarily follows.

Section 6 is as follows:

6. Relevancy of facts forming part of same transaction-Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations

Xxxxxxx

21. Thus, when a dying declaration relating to circumstances of the transaction which resulted in death of a person making the declaration are integral part of circumstances resulting in death of any other person, such dying declaration has relevance for death of such other person also.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1330 of 2009

Decided On: 26.02.2015

Tejram Patil Vs. State of Maharashtra

Hon'ble Judges/Coram:

Dipak Misra and A.K. Goel, JJ.

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Notes on dying declaration

Central Government Act

Section 32 in The Indian Evidence Act, 1872

32 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:—

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.

A dying declaration is a statement made by a dying person as to cause of his death or as to any of the circumstances of the transaction which resulted in his death when the cause of his death is in 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 nature of proceedings in which the cause of his death comes into question.

If the person making dying declaration chances to live,his statement is inadmissible as a dying declaration,but it might be relied on U/S 158 to

corroborate his testimony when examined.Such a statement can also be used to contradict him U/S 145.

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Whether letters written by deceased related to her death are admissible as her dying declaration?

Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge:

(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar, conditions of our society and the I'lvccip nature and character of owe people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend on vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death, It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over snore, than 3-4 months the statement may be admissible under Section 32.

(3) The second part of Clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four comers of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 745 of 1983

Decided On: 17.07.1984

 Sharad Birdhichand Sarda Vs.  State of Maharashtra

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Whether offence U/S 498A of IPC can be proved on basis of dying declaration?

 Unless the statement of a dead person would fall within the purview of Section 32(1) of the Indian Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstances of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disunited from the offence under Section 306, IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned."

11. The evidence of PW 2 Antakala is not only sketchy, vague and inherently unreliable due to proved omissions, the evidence is inadmissible since the evidence is entirely hearsay. PW2 is not a witness to the alleged illtreatment. The illtreatment is said to be narrated to her by the deceased. Similarly, the evidence of PW3 and PW4 is entirely hearsay and inadmissible for reasons spelt out supra.

The evidence of the family members of the deceased is mostly if not entirely inadmissible and section 32(1) of the Indian Evidence Act does not come into play since cause of death or the circumstances leading to death was not an issue in so far as offence under section 498-A of IPC, is concerned. However, even if the evidence is taken at face value, the prosecution has not established cruelty of the nature and extent which can be the basis of conviction under section 498-A of IPC.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal Nos. 17 and 74 of 2000

Decided On: 07.09.2017

Purushottam Sitaram Bakal and Ors. Vs.The State of Maharashtra

Hon'ble Judges/Coram:

R.B. Deo, J.

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Whether legal necessity can be proved by statement of deceased recorded before tenancy court?

Exhibits 133 and 134 record of tenancy
proceeding which was filed by Laxmibai against husband
of Anjanibai shows that the proceeding was filed for
possession by Laxmibai on the ground that the husband of
Anjanibai was not giving crop share to her. These
documents include evidence of Laxmibai recorded before
the tenancy Court and there is both, the examination-inchief
and the cross-examination of Laxmibai. This record
is considered by the Courts below as Laxmibai is dead and
it is relevant matter under section 32 of the Evidence Act.
This record shows that maximum quantity of six mans
food-grains was given to Laxmibai by the husband of
Anjanibai in one year and in one year only three mans
food-grain was given. The record shows that Laxmibai had
tried to convince the husband of Anjanibai to give more
food-grains as crop share for her survival and that was
done through mediator also. But the husband of Anjanibai
had refused to give her crop share. In the cross
examination of Laxmibai it was suggested to her that

under agreement with husband of Anjanibai, land was
given for cultivation and she had no objection against the
husband of Anjanibai to cultivate the land if he was acting
as per the terms and conditions of lease. It was brought
on the record that Laxmibai had made attempts to give
the suit land to one Mohan for cultivation. Laxmibai had
stated that due to husband of Anjanibai, Mohan had
refused to cultivate the land. Thus, difficulties, which
Laxmibai had faced in cultivating the land and get it
cultivated through others were stated before the authority
by Laxmibai.
27) The aforesaid discussion shows that Laxmibai
had become helpless. The family of the plaintiff was not
taking care of her. She was not in a position to personally
cultivate the land. Further the land was not giving
sufficient income and for survival she was required to take
some steps. Considering the value of the land it was not
possible for her to raise money by mortgaging the land for
her survival. Further there would have been question of
repayment of loan. In view of these circumstances
Laxmibai sold the property to Tatyaba. It is specifically

mentioned in the sale deed that she wanted to repay the
loan and she wanted to use the remaining money, part of
the consideration, for family expenses, for maintenance.
This evidence was certainly sufficient to create probability
that there was legal necessity and there was no other
alternative before Laxmibai than to sell the property. The
effect of the aforesaid circumstances ought to have been
considered by the Courts below in view of the law laid
down in that regard. The aforesaid circumstances are not
separately and cumulatively considered by the Courts
below.
THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.55 of 1989
 Kisan Ramchandra Kokane

V
 Anjani w/o Laxman Kapase,


 CORAM: T.V. NALAWADE, J.
 DATE : 20th JUNE 2016.
Citation: AIR 2017 (NOC) 64 Bom

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Whether dying declaration not recorded by Magistrate is admissible in evidence?

 Dying declaration made by the deceased is admissible in evidence Under Section 32(1) of the Evidence Act, 1872. In the absence of any kind of infirmity or/and suspicious circumstances surrounding its execution, once it is proved in evidence in accordance with law, it can be relied on for convicting an accused even in the absence of corroborative evidence but with a Rule of prudence that it should be so done with extreme care and caution. (See-Panchdeo Singh v. State of Bihar, MANU/SC/0775/2001 : AIR 2002 SC 526)

33. One of the principles, which is always kept in mind, while examining the dying declaration of the deceased is that "a man will not meet his Maker with a lie in his mouth". As aptly said by Mathew Arnold in very old English case [see-Lyre LCR in R v.Woodcock (1789) 1 Leach 500]-"Truth sits on the lips of a dying man". This principle is deduced from a well known Latin legal maxim "nemo moriturus praesumitur mentire".

34. We are not impressed by the submission of learned Counsel for the Appellant when he urged that the dying declaration is bad because it was recorded by the Inspector and not by any Magistrate.

35. In our considered opinion, firstly, the law does not prescribe any format for recording dying declaration; and secondly, it also does not prescribe any specific authority to record it unless any special law or Rule is enacted to that effect. No such Rule was brought to the notice of the Courts below and here also. On the other hand, we find that perfect working and neatly structured dying declaration at times brings about an adverse impression and creates suspicion in the mind of the Court since the dying declaration need not be drawn with mathematical precision.

36. All that the law requires is that the declarant should be in a fit state of mind and be able to recollect the situation resulting in the available state of affairs in relation to the incident and the Court should be satisfied that the reliance ought to be placed thereon rather than distrust.

37. We have not been able to notice any kind of illegality in recording the dying declaration by the Inspector as urged by the learned Counsel for the Appellant. As observed supra, the concerned Inspector before recording the statement had got the deceased medically examined by the Doctor and it was only after the Doctor certified that the deceased was in fit state of mind to speak, his dying declaration was recorded. In the absence of any other suspicious circumstances surfacing the dying declaration, it is not possible to discard the dying declaration only on this ground.

38. This takes us to the next argument of learned Counsel for the Appellant. It was urged that since the deceased died 10 days after the incident, his statement could have been recorded by the Magistrate during this intervening period.

39. We find no merit in this submission. Once the statement of the deceased had been recorded after taking due procedural care and pursuant to which the police started the investigation and promptly arrested the Appellant herein on 13.10.1997, there was no need to record another statement of the deceased during the intervening period of 10 days. It was neither a case of infirmity in the prosecution case and nor was the requirement of law to do so.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2311 of 2009

Decided On: 14.12.2016

Shama Vs. State of Haryana

Hon'ble Judges/Coram:

A.K. Sikri and Abhay Manohar Sapre, JJ.

Citation: 2017 ALLMR(CRI)448 SC

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Whether dying declaration given by wife is admissible for conviction of husband U/S 498A of IPC simplicitor?

Before discussing the evidence, it would
be appropriate to refer to the question which had
come up for consideration before the Hon'ble the
Supreme Court in the matter of Bhairaon Singh vs.
State   of   M.P.   (supra).   The   question   recorded   by
the Hon'ble Supreme Court in the above Judgment in
Para 2 is as under:­
"2.  The question that arises for consideration
in this appeal by special leave is : in a case
where accused has been acquitted of the offence
punishable under Sections 304­B and 306, IPC,
and the death of wife is neither homicidal nor
suicidal   but   accidental,   whether   the   oral
evidence of witnesses about what the deceased
had   told   them   against   the   accused   about   the
treatment meted out to her is admissible under
Section   32(1)   of   the   Evidence   Act   to   sustain
conviction under Section 498­A IPC?"

 The Hon'ble Supreme Court then dealt with
the provisions under Section 32(1) of the Indian
Evidence   Act,   1872   and   the   concerned   law   on   the
subject and after referring to the evidence of the
brothers of the victim in that matter, observed in
Para 11 as under:
"11. The   moot   question   is:   whether   the
statements attributed to the deceased could be
used   as evidence   for  entering  upon  a  finding
that the accused subjected Ranjana Rani @ Raj
Kumari   to   cruelty   as   contemplated   under
Section   498­A,   IPC.   In   our   considered   view,
the evidence of PW­4 and PW­5 about what the
deceased   Ranjana   Rani   @   Raj   Kumari   had   told
them against the accused about the torture and
harassment is inadmissible under Section 32(1)
of  the  Evidence  Act  and  such   evidence  cannot
be looked into for any purpose. Except Section
32(1)   of   Indian   Evidence   Act,   there   is   no
other provision under which the statement of a
dead   person   can   be   looked   into   in   evidence.
The  statement  of  a dead  person  is  admissible
in law if the statement is as to the cause of
death or as to any of the circumstances of the
transactions which resulted in her death, in a
case   in   which   the   cause   of   death   comes   into
question.   What   has   been   deposed   by   PW­4   and
PW­5   has   no   connection   with   any   circumstance
of   transaction   which   resulted   in   her   death.
The   death   of   Smt.   Ranjana   Rani   @   Raj   Kumari
was   neither   homicidal   nor   suicidal;   it   was
accidental. Since for an offence under Section
498­A   simpliciter,   the   question   of   death   is
not and cannot be an issue for consideration,
we are afraid the evidence of PW­4 and PW­5 is
hardly   an   evidence   in   law   to   establish   such

offence.   In   that   situation   Section   32(1)   of
the Evidence Act does not get attracted."
8. In view of the above observations of the
Hon'ble the Supreme Court, it is clear that what
victim   told   PW­1   and   PW­2   against   the   accused
about the alleged demand and harassment would be
inadmissible   evidence   under   Section   32(1)   of   the
Indian Evidence Act and the said evidence cannot
be looked  into as here also  death  appears  to be
accidental. 
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
BENCH AT AURANGABAD
   CRIMINAL APPEAL NO.93 OF 2003

Subhash  Purandas Pawar, Vs  The State of Maharashtra  
  
              CORAM:   A.I.S. CHEEMA, J.
  
   DATED : 15TH JUNE, 2016.

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Whether Suicide note written by deceased found in her clothes can be treated as dying declaration?

In the case ''State v. Maregowda, 2002 (1) RCR (Criminal) 376 (Karnataka) (DB)'', it was held  that ''A suicide note written found in the clothes of the deceased it is in the nature of dying declaration  and is admissible in evidence under section 32 of Indian Evidence Act''. -1

What is equally curious was that the rejection of Ex. P. 3-suicide note by the Trial Court on the ground that identification of the handwriting of the deceased by the father and other relations was not sufficient, since they are interested witnesses. Who else could identify the daughter's signature better than the father? Equally erroneous was the reasoning of the Trial Court that the suicide note cannot be accepted because it was written on the reverse side of Electrol card and written in red ink. We asked ourselves the question where was the need for the Trial Court to reject Ex. P. 3 merely because it was in red ink or on the reverse of a electral card. The Trial Court conveniently forgot that if the suicide note was fabricated there would have been allegations with respect to the dowry. All that Ex. P. 3 states is that certain people owe monies to her and her husband was the main cause for her suicide. The deceased further states in the suicide note that the difficulty she had faced should not come to anybody else. A prayer in anguish on brink of death cannot be rejected for flippant reasons. The Trial Court hurt the memory of the deceased by giving such insensitive reasons.

15-A. We have no hesitation in coming to the conclusion that Ex. P. 3 which was identified by the relations of the deceased is a genuine document found in the clothes of the deceased and was undoubtedly in the nature of a dying declaration which was perfectly admissible in evidence under Section 32 of the Evidence Act.1

Karnataka High Court

State By Kamakshipalya Police, ... vs Maregowda And Ors. on 27 August, 2001

Equivalent citations: 2001 CriLJ 4491, I (2002) DMC 458, ILR 2001 KAR 4657

Author: K Rajaratnam

Bench: K Rajaratnam, V Sabhahit

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Value of statement recorded by police u/s 162 of crpc when said witness is dead

  We have analysed the statement of the deceased Kalu made to the police under Section 161 Cr.P.C. We do not find that the statement of the deceased was in regard to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. The statement is in regard to the accused's involvement in the abduction of a boy and has no remote connection or reference to the death of the deceased and thus would not be admissible under Section 32 of the Evidence Act. The statement recorded by the police although could be proved as there would not be any bar under Section 162 Cr.P.C. for proof of such statement, but it would not be admissible under Section 32 of the Evidence Act, and thus it could not have been relied upon by the prosecution to prove the motive for commission of the crime by the accused appellant.

Supreme Court of India

Vinay D. Nagar vs State Of Rajasthan on 3 March, 2008

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