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LAW OF EVIDENCE
MODULE 2
1. What is dying declaration? When it is admitted as relevant fact? Can a conviction be based
solely on the basis of dying declaration? 12M
2. Discuss the evidentiary value of dying declaration in the light of decided cases. 7M
3. Evidentiary value of Dying Declaration. 4M, 4M
4. DYING DECLARATION 4M
A. Introduction:
The principle on which dying declarations are admitted in evidence is indicated within the legal
maxim- nemo moriturus praesumitur mentire, which means ‘a man will not meet his Maker with
a lie in his mouth.’
B. Meaning:
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.
C. Definition:
According to Section 32 (1) of the Act, such statements made by the person are relevant when the
cause of their death comes into question, or as any of the circumstances of the transaction which
resulted in their loss of life.
These statements are considered valid whether the person who made them was alive or not at the
time they were made, regardless of the nature of the proceeding in which the cause of their death
is being questioned.
D. Ingredients of dying declaration:
1) The person who is giving the dying declaration must die.
2) The dying declaration must not be incomplete.
3) It must be done without any extra compulsion and freedom.
4) The cause of death must be explained which leads to the death of the deceased or at least the
circumstances which lead to his death must be explained.
5) The declarant who is making a dying declaration must be conscious.
6) The person must be of sound mind.
7) The cause of death of a person must be in question.
E. Recording of Dying Declaration:
a) It is best that it is recorded by the magistrate.
b) Public servant like doctor or any other person.
c) It cannot be said that a dying declaration recorded by a police officer is always invalid.
d) If any dying declaration is not recorded by the competent Magistrate, it is better that signatures
of the witnesses are taken who are present at the time of recording it.
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F. Evidentiary value of dying declaration: 4M, 4M
Evidentiary value of dying declaration will change from case to case according to fact and
circumstances of each case. The Apex Court in Khushal Rao v. State of Bombay observed the
evidentiary value of dying declaration and thereby clarifying the following:
a. Conviction can be based only on a dying declaration. A true and voluntary declaration requires
no confirmation because the possibility of death guarantees the truth of the statement made.
b. A dying declaration is not less reliable than any other type of evidence. Each case must be
decided on its own facts, taking into account the circumstances surrounding the dying
declaration.
c. To determine the reliability of a dying declaration, the court must consider factors such as the
dying man's ability to be observed.
d. The Court must be convinced that there was no component of tutoring, that the deceased was
in a sound mental state, and that the statement was not fabricated.
G. Conviction on the basis of Dying Declaration:
In the case of Makhan Singh v. State of Haryana, the SC observed that the dying declaration can
be the sole basis for recording conviction and if it is found reliable and trustworthy, no
corroboration is required. In case there are multiple dying declarations and there are
inconsistencies between them, the dying declaration recorded by the higher officer like a
Magistrate can be relied upon.
H. Types of Dying Declaration:
a) Gesture and Sign:
Dying Declaration can be given in the form of gestures and signs and it is admissible.
❖ Queen Express v. Abdulla
In this case, the throat of the deceased girl was cut and she being unable to speak indicated
the name of the accused by the signs of her hand, this was held to be relevant as dying
declaration and it was concluded that if an injured person is incapable of speaking, he may
make his dying declaration in form of gestures and signs.
❖ In Mukesh & Ors. v. State of NCT of Delhi, that is, the “Nirbhaya Rape Case,” the victim
made a dying declaration in the form of a sign and gesture, which was recorded. The first
declaration was recorded by the doctor when she was admitted and the second by the sub-
divisional magistrate (SDM) during which she made the exact statements of such mis-
happenings. Then, the third declaration was recorded by the metropolitan magistrate on
December 25, 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 nods is admissible as evidence.
b) Oral and written:
When the person gives the name of the murderer to a person present & written by them then it
is a relevant dying declaration. An oral dying declaration is admissible as an exception to the
general rule of evidence that hereby evidence is no evidence in the eyes of law.
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I. Conclusion:
A dying declaration is one of the most important pieces of evidence that is admissible in court as
a dying declaration can be the sole purpose for the conviction of the accused. The court should
record the dying declaration carefully according to the procedure mentioned and ensure that it is
not tampered with by anyone.
5. Define CONFESSION. Examine its evidentiary value. 12M
6. When a statement will amount to confession and be relevant. Distinguish Judicial and Extra-
Judicial confessions. 12M
7. Discuss the evidentiary value of retracted confession. 7M
A. Introduction:
The word “confession” appears for the first time in Section 24 of the Indian Evidence Act. This
section comes under the heading of Admission so it is clear that the confessions are merely one
species of admission. Confession is not defined in the Act. Under the Indian evidence act, Section
24 to Section 30 deals with “confession”.
B. Meaning of Confession:
Confession is an admission made at any time by a person charged with a crime, stating or
suggesting the inference that he/she committed a crime. Confession must be either admitted in
terms of the offence or at any rate substantially all the facts which constitutes the offence.
In Pakala Narayan Swami v Emperor, Lord Atkin observed: “A confession must either admit in
terms the offence or at any rate substantially all the facts which constitute the offence. An
admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a
confession”.
C. Evidentiary Value of confession:
I. Judicial confession:
Confessions made before the court or a magistrate during the proceedings of the case. Section
164 of Cr.P.C empowers judicial magistrate to record confessions. The judicial confession
empowers only the judiciary to record statements and the executive has no authority to record
confessions.
Section 80 of the Indian Evidence Act governs the evidentiary value of confessions. The
confession should be voluntary and the accused has to be protected under Article 20(3) of the
Indian Constitution which talks about “self-incrimination”.
❖ State of Uttar Pradesh v. Singhara Singh
The case debated on the admissibility of the oral evidence of magistrate, who had recorded
the confession of the respondents, who were accused of murder charge. It was held that
confession was not recorded as per Section 164 of Cr.P.C and the record could not be put
in evidence as per Sections 74 and 80 of the Evidence Act to prove confession. Hence the
oral evidence of the magistrate was not admissible.
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II. Extra-judicial confession:
The confession which is not made before a court or magistrate comes under the category of
extra-judicial confessions. It is also called informal confession. Extra-judicial confession is a
weaker kind of evidence compare to judicial confession. The value of extra-judicial confession
increases only if the statement is consistent and convincing that the accused can be proved
against his confession.
In Sahoo v. State of Uttar Pradesh, the accused after killing his daughter in law, on his way
out from the house, he said that he finished her and her daily quarrels. This statement was held
to be a confession that can be proved against him. It was held that the confession doesn’t need
to be communicated to any definite individual.
III. Difference between judicial and extra-judicial confession:
Judicial confession Extra-judicial confession
1. Extra-judicial confession are those which
are made to any person other than those
1. Judicial confessions are those which are
authorized by law to take confession. It may
made to a judicial magistrate under section
be made to any person or to police during
164 of Cr.P.C.
investigation of an offence.
2. To prove judicial confession the person 2. Extra-judicial confession are proved by
to whom judicial confession is made need calling the person as witness before whom the
not be called as witness. extra-judicial confession is made.
3. Judicial confession can be relied as proof
3. Extra-judicial confession alone cannot be
of guilt against the accused person if it
relied it needs support of other supporting
appears to the court to be voluntary and
evidence.
true.
4. A conviction may be based on judicial 4. It is unsafe to base conviction on extra-
confession. judicial confession.
IV. Retracted confession:
A retracted confession is a statement made by an accused person before the trial begins, by
which he admits to having committed the offence but which he rejects at the trial.
Evidentiary Value of Retracted Confession 7M
When a confession is retracted, the Court must look for the reasons for making of the
confession as well as for its retraction, and must weigh the two to determine whether or not the
retraction affects the voluntary nature of the confession.
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If the Court is satisfied that it was retracted because it was an after-thought advice, the
retraction may not weight with the Court if the general facts proved in the case and the tenor
of the confession as made and the circumstances of its making and withdrawal warrant it user.
All the same, the Court would not act upon the retracted confession without finding assurance
from some other sources as to the guilt of the accused. Here are two important cases related to
the evidentiary value of a retracted confession.
❖ Bharat v. State of UP
Justice Hidayatullah observed that a court might take into account the retracted
confession. But it must look for the reasons for the making of the confession as well as for
its retraction. And must weigh both of them to determine whether the retraction affects the
voluntary nature of the confession or not.
❖ Manjit Singh v. CBI
In this case, two accused persons made confessional statements, and subsequently, they
retracted from their statements. Considering the question of whether retracted confessions
of the co-accused could be relied upon to convict the accused, the court held that the
retracted statements could be used against the accused as well as co-accused, provided that
such statements should be truthful and voluntary when made.
D. Confessions when Not Relevant:
A confession becomes irrelevant and thus, inadmissible, in situations described in Sections 24, 25,
and 26.
1) Section 24 – Confession caused by inducement, threat, or promise from a person in
authority:
Confession made by an accused is irrelevant in a criminal proceeding if the making of the
confession appears to the court to have been caused by inducement, threat, or promise, made
by any person in authority and that in the view of the court such inducement, threat, or promise
gives reasonable ground to the person that by making the confession he would gain any
advantage or avoid any evil of a temporary nature in reference to the proceedings against him.
❖ Empress vs Mohan Lal
The confession by a person who was threatened to be removed from his caste for life, was
held to be relevant because the threat did not have anything to do with the charge.
2) Confessions to Police:
It is presumed that police hold a position of great influence over the actions of the accused and
so there is a high probability that confessions obtained by the police are tainted with threat or
inducement. Further, it is important to prevent the practice of oppression or torture by the
police to extract the confession. This principle is given under Sections 25 and 26.
E. Confessions when Relevant:
The following three types of confession are relevant and admissible –
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1) Section 27 – Confession leading to a discovery:
Section 27 provides another exception when a confession made to the police is admissible.
This is when a confession leads to the discovery of a fact connected with the crime. The
discovery assures that the confession is true and reliable even if it was extorted. In order to
ensure the genuineness of recoveries, it has become a practice to affect the recoveries in the
presence of witnesses.
2) Section 28 – Confessions made after removal of threat:
If the confession is obtained after the impression caused by threat, inducement, or promise is
removed in the opinion of the court, then the confession is admissible.
3) Section 29 – Confession made under promise, deception, etc.:
If a confession is otherwise relevant, it does not become irrelevant merely because it was made:
a) under a promise of secrecy or
b) in consequences of a deception practiced on the accused person for the purpose of obtaining
it or
c) while the accused was drunk or
d) while answering the questions he need not have answered or
e) when the accused was not warned that he was not bound to make such confession and that
evidence of it might be given against him.
In Rex v. Shaw, A was accused of murder, and B, a fellow prisoner, asked him about how he
did he do the murder. A said, “Will you be upon your oath not to mention what I tell you?”, to
which B promised on his oath that he will not tell anybody. A then made a statement. It was
held that it was not such an inducement that would render the confession inadmissible.
F. Conclusion:
A confession by a person guilty of any crime is any charge levelled against him that may be used
to show his guilt. Confessions are admission improvements that distinguish it, hence the phrase
"All confessions are admissions, but not all admissions are confessions" is frequently used.
8. What are ADMISSIONS? When admissions are relevant under the Evidence Act? 12M
9. "Admission cannot be proved by or on behalf of the persons making it." Explain this
principle outlining its exceptions. 7M
10. Admissibility of admission 4M
A. Introduction:
Admission is dealt under Sections 17 to 31 in the Indian Evidence Act, Sections 17 to 23 deals
with the general admission and Sections 24 to 31 deals with confession. The word Admission
means voluntarily acknowledgement of the of the existence or truth of a particular fact. But under
Evidence Act admission is defined in a narrower sense.
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B. Definition:
According to Section 17 of Indian Evidence Act, 1872, admission is a statement in oral,
documentary, or electronic form which suggests some inference as to the existence of a fact in
issue or fact relevant to the issue.
C. Principles regarding admission:
The principles regarding evidence are mentioned in Besant Singh v. Janki Singh are as follows:
• The admission should be duly signed and verified by the party.
• An admission can only be examined as a whole and cannot be divided into parts.
• Admission should be voluntary in nature.
• Admissions are limited to prima facie proof.
• Admissions which are clear are known to be the best proof of the facts submitted.
D. Essential conditions for admissibility of Admission: 4M
➢ They must be related to a subject matter.
➢ Self- harming form must always be in the nature of Admissions.
➢ Admissions can only be made by the people on the basis of Section 18 to 20 of the Indian
Evidence Act.
E. Persons whose Admissions are Relevant:
Admissions may be made by the:
1) Party to the proceedings (Section 18)
2) By the agent of such party who is authorised.
3) Suitor in a representative character, when he held that character.
4) Party having pecuniary or proprietary interests.
5) Predecessor in the title (who was in the title before me).
6) Person whose position or liability in question. (Section 19)
7) Persons expressly referred to. (Section 20)
F. When Admission May be Proved: 7M
Section 21 – Proof of admission against persons making them and by or on their behalf:
Admission may be used against the party making the admission but it cannot be used by the party
who makes the Admission for his own use. This Section further lays down three exceptions to this
rule. These exceptions are:
i. Admission falling under Section 32:
An Admission can be used by the person for his own use if the person making such Admission
is dead. In this case, such admission will be relevant as between the third person under Section
32. Section 32 lays down that statements made by persons dead or who cannot be found may
be proved if it was made under the circumstances mentioned in the Section.
ii. State of body and mind under Section 14:
An Admission made by a person regarding the existence of the state of body or mind relevant
can be used by the person making such Admission if such a state of body or mind existed.
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iii. Statement relevant otherwise than as admission:
An Admission made by a person may be used by the person making it if it is proved that the
statement is relevant otherwise than as Admission.
G. Relevancy of Admissions [Ss.22, 22-A, 23]
I. When Oral Admissions as to Contents of Documents Are Relevant:
According to Section 22, when there is a document then nobody can be allowed to prove the
content of that document. However, there are some exceptions to this rule:
a) In the case the party is entitled to give secondary evidence of the contents of the documents
then he can rely on oral Admission.
b) In the case where the original document is lost or if it is in the possession of the opposition
party, then also the party may make oral Admission.
❖ Patel Prabhudas Hargovandas v Heirs of Patel Babubhai Kachrabhai
In the context of a gift deed, one of the donor’s pleaded that he was a minor at the time of
execution of the deed. His statement in the deed was that he was of 22 years. He was held
to be bound by his statement in the deed. It was his burden to show that he was below
majority at that time.
Section 59 says all facts except the contents of documents or electronic records may be proved
by oral evidence.
Section 63(5) says oral accounts of the contents of a documents given by some person who
has himself seen it.
II. When Oral Admissions as to Contents Of Electronic Records are Relevant:
Section 22A inserted by IT Act 2000. When genuineness of electronic record produced is in
question, then only oral admissions as to the contents of electronic records are relevant.
III. When Admission in Civil Cases Is Relevant:
Section 23 –Where there is an agreement to the fact that evidence of admission will not be
given, then it will not be produced before the court. It is just to encourage the parties to settle
their matter of dispute with full freedom where they can diverse the things. It is only applicable
to civil cases and do not extend to criminal cases.
H. Conclusion:
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.