Q. State the four circumstances where the statements of relevant facts by a person, who is dead and cannot appear before the Court to give evidence, are relevant. [MPCJ 2010]

Ans.   As per section 32 of the Evidence act, the statement whether written or verbal of any person who is dead, who cannot be found etc are made relevant and raised to the status of the substantive evidence under the following circumstances:-

  • When it relates to the cause of his death or as to any of the circumstances of the transaction which resulted in his death then it is relevant in all cases in which the cause of that person\’s death comes into question. This is popularly known as dying declaration. The rationale of its relevancy is embedded in the Latin maxim \” Nemo Moriturus Praesumitur mentire i.e. a man will not meet his maker with a lie in his mouth. Such a solemn moment of death operates in the substitute of oath or cross- examination. Similarly on the point of reliability of the dying declaration the hon\’ble Apex court held in Kushal Rao Vs State of Maharashtra AIR 1958 SC 22 that dying declaration can be sole basis of conviction if on the principal laid to down to weigh evidentiary value of dying declaration the court is satisfied that it does not suffer from infirmity.
  • When statement was made by such person in the ordinary course of business. Since, in such circumstances the statement is made in ordinary course of business so chance of fabrication is ruled out.
  • When it is declaration against the interest of the maker. The rationale is in the ordinary course of affairs a person is not likely to make a statement to his own detriment unless it is true. Such statement may be calculated to be detrimental to the maker if they affect the pecuniary interest, proprietary interest etc.
  • The opinion as to public and general rights are admissible if following essential are fulfilled-
  • The opinion must relate to the existence or non-existence of a public right or custom or a matter of public or general interest.
  • The opinion must be of a person who would have been likely to be aware of the existence of the right, custom or matter to which the opinion relates.
  • The opinion must have been expressed before any controversy as to the existence of that right arose i.e. ante litem mortam.

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