Admissions and Confessions under Indian Evidence Act,1972

The Indian Evidence Act, 1872 Section 17-31 deal with the
provisions related to admission and confessions and their
relevancy.
Section 17. Admission defined
An admission is a statement,8A[oral or documentary or contained in electronic form], which
suggests any inference as to any fact in issue or relevant fact, and which is made by any of the
persons, and under the circumstances, hereinafter mentioned.

Section 18. Admission- by party to proceeding or his agent

Statements made by party to the proceeding, or by an agent to any such party, whom the Court
regards, under the circumstances of the case, as expressly or impliedly authorized by him to
make them, are admissions.

By suitor in representative character — Statements made by parties to suits, suing or sued in a

representative character, are not admissions, unless they are made while the party making them
held that character.
Statements made by—
(1) By party interested in subject-matter—persons who have any proprietary or pecuniary interest
in the subject-matter of the proceeding, and who make the statement in their character of
persons so interested, or

(2) By person from whom interest derived- Persons from whom the parties to the suit have
derived their interest in the subject-matter of the suit, are admissions, if they are made during the
continuance of the interest of the persons making the statements.

Section 19. Admissions by persons whose position must be proved as against party to
suit
Statements made by persons whose position or liability it is necessary to prove as against any
party to the suit are admissions, if such statements would be relevant as against such persons in
relation to such position or liability in a suit brought by or against them, and if they are made
whilst the person making them occupies such position or is subject to such liability.

Section 20. Admissions by persons expressly referred to by party to suit

Statements made by persons to whom party to the suit has expressly referred for information in
reference to a matter in dispute are admissions.
Thus, by taking the collecting conclusion from section 17 to 20 admission can be define as a
statement oral or documentary or in electronic form which suggest any inference as to any fact in
issue or relevant fact and made by
1. A party to proceeding,
2. An authorized agent to any party to proceeding,
3. Parties to representative suit holding capacity as representative while making the statement,
4. Persons who have proprietary or peculiar interest in the subject matter of proceeding,
5. Person from whom parties to the suit have derived their interest in the subject matter of the
suit.
6. Persons whose position and liability it is necessary to prove against any party to the suit.
7. Persons to whom a party to the suit has expressly referred for information in reference to
matter in dispute.

Uses of Admission:-
Section 21. Proof of admissions against persons making them, and by or on their behalf
Admissions are relevant and may be proved as against the person who makes them, or his
representative in interest; but they cannot be proved by or on behalf of the person who makes
them or by his representative in interest, except in the following cases:-

(1) An admission may be proved by or on behalf of the person making it, when it is of such a
nature that, if the person making it were dead, it would be relevant as between third persons
under section 32.

(2) An admission may be proved by or on behalf of the person making it, when it consists of a
statement of the existence of any state of mind of body, relevant or in issue, made at or about the
time when such state of mind or body existed, and is accompanied by conduct rendering its
falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise
than as an admission.

Section 22. When oral admissions as to contents of documents are relevant

Oral admissions as to the contents of a documents are not relevant, unless and until the party
proposing to prove them shows that he is entitled to give secondary evidence of the contents of
such document under the rules herein after contained, or unless the geniuses of a document
produced is in question.

Section 22A. When oral admission as to contents of electronic records are relevant
Oral admissions as to the contents of electronic records are not relevant, unless the genuineness
of the electronic record produced is in question.]

Section 23. Admission in civil cases relevant

In civil cases no admission is relevant, if it is made either upon an express condition that
evidence of it is not to be given, or under circumstances from which the Court can infer that the
parties agreed together that evidence of it should not be given.

Explanation – Nothing in this section shall be taken to exempt any barrister, pleader attorney or
vakil from giving evidence of any matter of which he may be compelled to give evidence under
section 126.

Some important points as to admission:-

1. Admission is a formal positive act of acknowledgment, It is a conscious and deliberate act and
not something which would be inferred.
2. In India admission of fact is proved against the party making the admission but admission on a
pure question of law is not binding on the maker. (Jagwant Singh Vs. Sitam Singh ILR 21 ALL)
3. Admission by pleaders, Attorneys and counsels in civil cases if made with full authority and
knowledge without some serious mistake is conclusively binding upon the client and cannot
afterwards be withdrawn, but no admission by counsel in criminal cases can relieve the
prosecution of the duty to prove the case.
4. Admission must be taken as a whole and cannot be split up and use part of if against person
making it.

Section 31. Admission not conclusive proof, but may estop

Admissions are not conclusive proof of the matters admitted but they may operate as estoppels
under the provisions hereinafter contained.
Admissions are broadly classified in two categories judicial admissions and extra judicial
admissions.

Admissions dealt with in the Indian Evidence Act (in Sections 17 to 23 and 31) are different from
the judicial admissions. Admissions in the Evidence Act is nothing but a piece of evidence.
According to Section 31 admissions as dealt with in Sections 17 to 23 are only a piece of
evidence. They are not conclusive proof of the facts admitted like the judicial admissions, but
they may operate as estoppels under Sections 115 to 117 of the Act.

An admission is the best evidence that an opposite party can rely upon and though not
conclusive is the decisive of the matter unless successfully withdrawn or proved erroneous.

The principle underlying the evidentiary value of an admission may be summarized thus:
(1) An admission constitutes a substantive piece of evidence in the case and for that reason can
be relied upon for proving the truth of the facts incorporated therein.
(2) An admission has the effect of shifting the onus of proving to the contrary on the party against
whom it is produced with the result that it casts an imperative duty on such party to explain it. In
the absence of satisfactory explanation it is presumed to be true.
(3) An admission, in order to be competent and to have the value and effect referred to above
should be clear, certain and definite and not ambiguous, or confused.

As per section 58 of India Evidence Act fact admittedly need not to be proved:- No fact
need be proved in any proceeding which parties their to or their agents agree to admit at the
hearing or before hearing, they agree to admit by any writing under their hands or by any rule of
pleading in force at the time they are deemed to have admitted by their pleadings.
Provided that the court may in its discretion, require the facts admitted to be proved otherwise by
such admissions.
Section 17 to 31 deals with admission generally and include Section 24 to 30 which deal with
confession hence confession is a species of admission.
Section 24. Confession caused by inducement, threat or promise when irrelevant in criminal
proceedings
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of
the confession appears to the Court to have been caused by any inducement, threat or promise,
having reference to the charge against the accused person, proceeding from a person in
authority and sufficient, in the opinion of the Court, to give the accused person grounds, which
would appear to him reasonable, for supposing that by making it he would gain any advantage or
avoid any evil of a temporal nature in reference to the proceedings against him.

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. Mr. Justice Stephenin his Digest of
the law of Evidence defines confession as “confession is an admission made at any time by a
person charged with a crime stating or suggesting the inference that he committed that crime.”

Admission and confession-Difference

Confession Admission

1. Admission usually relates to civil transaction

1. Confession is a statement made by an
and comprises all statements amounting to
accused person which is sought to be proved
admission defined under section 17 and made
against him in criminal proceeding to establish
by person mentioned under section 18, 19 and
the commission of an offence by him.
20.

2. Confession if deliberately and voluntarily

2. Admissions are not conclusive as to the
made may be accepted as conclusive of the
matters admitted it may operate as an estoppel.
matters confessed.

3. Admissions may be used on behalf of the

3. Confessions always go against the person
person making it under the exception of section
making it
21 of evidence act.

4.Confessions made by one or two or more

accused jointly tried for the same offence can be 4. Admission by one of the several defendants
taken into consideration against the co-accused in suit is no evidence against other defendants.
(section 30)

5. confession is statement written or oral which 5. admission is statement oral or written which
is direct admission of fact. gives inference about the liability of person
making admission.
Difference between judicial and extra-judicial confession-
Judicial confession Extra-judicial confession

1. Extra-judicial confession are those which are

1. Judicial confessions are those which are
made to any person other than those authorized
made to a judicial magistrate under section 164
by law to take confession. It may be made to
of Cr.P.C. or before the court during committal
any person or to police during investigation of
proceeding or during trial.
an offence.

2. To prove judicial confession the person to 2. Extra-judicial confession are proved by

whom judicial confession is made need not be calling the person as witness before whom the
called as witness. extra-judicial confession is made.

3. Judicial confession can be relied as proof of 3. Extra-judicial confession alone cannot be

guilt against the accused person if it appears to relied it needs support of other supporting
the court to be voluntary and true. evidence.

4. A conviction may be based on judicial 4. It is unsafe to base conviction on extrajudicial

confession. confession.

Ingredients of Section 24
To attract the prohibition enacted in Section 24 the following facts must be established:-
•That the statement in question is a confession,
•That such confession has been made by the accused,
•That it has been made to a person in authority, (Police, Magistrate, Patel, Master of the
accused, Zimidar of the accused, Mukhia of a village or a Ziledar serving in a grate estate are the
persons in authority within the meaning of section 24)
•That the confession has been obtained by reason of any inducement, threat or promise,
proceeding from a person in authority,
•Such inducement, threat or promise must have reference to the charge against the accused,
and
•The inducement, threat or promise must in the opinion of the court be sufficient to give the
accused ground, which would appear to him reasonable, for supporting that by making it he
would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings
against him.

Extra-judicial Confession can be of three types:-

1.Confession made to a police officer – not admissible under Section 25.
2.Confession made in police custody – not admissible under Section 26.
3.Made to any third person neither to police officer, nor in custody and not to magistrate. If such a
confession is not hit by Section 24 it will be relevant and if proved admissible. So it has
evidentiary value depending upon the corroboration of it. Per se an extra judicial confession
cannot be a ground of conviction unless it is corroborated by other circumstances.
In State of MP Vs. Paltan Mallah (2005 SC),it has been held that extra judicial confession is a
good piece of evidence but it has to be pass through a stringent test of corroboration and proof. It
cannot be sole basis of conviction. Extra-judicial confession against a co-accused can be used
under Section 30.

Regarding confession statement starting from Balmukund Case and passing through Palwinder
Kaur, Deoman Upadhyay, Agnoo Nagesia and uptil Nishikant Jha, three basic issues have been
raised:-
1.In a confessional FIR or generally in any other confessional statement, normally there are two
components –
(a) The sentences which amount to a direct confession of the guilt and
(2) Other sentences in the confession which are not a direct admission of the guilt but which are
admissions of surrounding incriminating circumstances if the confession was made to a police
officer then what is the effect of Section 25? Will it hit the entire statement or will it hit only the
purely confessional statements and, therefore can the other incriminating statements of an
admissional nature be still used against the accused.

2.If in a confessional statement there is some exculpatory statement as well then can it be
separated and used in support of the accused by the defence.

3.If a statement is made by the accused in such a manner that actually it does not amount to a
confessional statement. However, there are some admissions of incriminatory circumstances in
that statement coupled with some exculpatory circumstances. Then can be exculpatory part be
removed and the inculpatory be used as an admission.

In Agnoo Nagesia case it has been held that a confessional statement as to be read in totality
and whole FIR will be hit by Sections 25 and 26 unless some portion of it is exculpatory (but
Section 27 will apply and the discovery statement will be admissible).

The question whether a confessional statement containing exculpatory and inculpatory

statements, will be exculded in totality or can be bifurcated was raised inPakala Narayan Swami
Case (1939 PC)and later on in the Allahabad HC Case of Emperor Vs. Balmukund (1952
Allahabad) and subsequently in Palwinder Kaur Vs. State of Punjab (1953 SC).Also in Agnoo
Nagesia Case and was finally settled in Nishikant Jha Vs.State of Bihar (1968 S.C) by a five
judges bench of SC headed by Mitter J. The final ruling can be summarized as follows - “If the
confessional part will be negated if the exculpatory part is proved then the court has to examine
whether the exculpatory part is proved or not. If the exculpatory part is proved then the whole
confessional statement becomes inadmissible. However, if the court finds that the exculpatory
part is either disproved or is untrustworthy on the basis of the other proved evidences, then the
exculpatory part can be rejected and the incriminatory part will be admitted”.

Evidentiary value of confession

A confessional statement made by the accused before a magistrate if it is made voluntarily is a
good evidence and accused can be convicted on the basis of it. It is substantive piece of
evidence and a conviction can be bases solely on such confession provided it is voluntary and
proved. Now the settled law is that a conviction can be based on confession only if it is proved to
be voluntary and true. If corroboration is needed it is enough that the general trend of the
confession is substantiated by some evidence which would tally with the contents of the
confession. General corroboration is enough.

Value of extra-judicial confession- extra-judicial confessions are not usually considered

with favour but that does not mean that such a confession coming from a person who has no
reason to state falsely and to whom it is made in the circumstances which support his statement
should not be believed. The evidence of extra-judicial confession is a weak piece of evidence.
The extra-judicial confession must be received with great care and caution. It can be relied upon
only when it is clear, consistent and convincing.

Retracted confession meaning:-a retracted confession is a statement made by an accused

person before the trial begins before the magistrate by which he admits to have committed the
offence, but which he repudiate at the trial.

Value of retracted confession-In 1957 in Pyare Lal Vs. State of Assam it was held that a
retracted confession may still be used as a basis for conviction. Its corroboration would be a
matter of prudence and not of law. In Bharat Vs. State of Uttar Pradesh (1974 SC)it was held
that a confession is a substantive piece of evidence provided that it was made voluntarily.
However, when a confession is retracted the Court has to act cautiously and require a greater
corroboration of the confession. In Parmanand Teghu Vs. State of Assam (2004 SC)the same
points were reiterated. In NCT of Delhi Vs. Navjot Sandhu Alias Afsal Guruit was held that
once the earlier confession has been proved to be voluntary then retraction will not play any role
as such however in theParliament Attack Case, the confession of Afzal and Saukat, the two co-
accused was given up not because of retraction but because the earlier confession was
improperly recorded i.e. it was proved not to be made voluntarily.

Proof of judicial confession-Under section 80 of Evidence Act a confession recorded by the

magistrate according to law shall be presumed to be genuine. It is enough if the recorded judicial
confession is filed before the court. It is not necessary to examine the magistrate who recorded it
to prove the confession. But the identity of the accused has to be proved.

Proof of extra-judicial confession-extra-judicial confession may be in writing or oral. In the

case of a written confession the writing itself will be the best evidence but if it is not available or is
lost the person before whom the confession was made be produced to depose that the accused
made the statement before him. When the confession has not been recorded, person or persons
before whom the accused made the statement should be produced before the court and they
should prove the statement made by the accused.

Confession to police (at any time before or after the investigation begins)
Section 25 – confession to police officer not to be proved.
No confession made to a police officer shall be proved as against a person accused of
any offence.

Reasons for exclusion of confession to police-another variety of confessions that are under the
evidence act regarded as involuntary are those made to a police officer. Section 25 expressly
declares that such confessions shall not be proved. If confessions to police were allowed to be
proved in evidence, the police would torture the accused and thus force him to confess to a crime
which he might not have a committed. A confession so obtained would naturally be unreliable. It
would not be voluntary. Such a confession will be irrelevant whatever may be its form, direct,
express, implied or inferred from conduct. The reasons for which this policy was adopted when
the act was passed in 1872 are probably still valid.

In Dagdu v. State of Maharashtra, A.I.R. 1977 S.C. 1579, Supreme Court noted: The archaic
attempt to secure confessions by hook or by crook seems to be the be-all and end-all of the
police investigation.
Statement Not Amounting To Confession is not hit by Section 25.

Use of Confessional Statement By Accused

Though the statements to police made by the confessing accused cannot be used in evidence
against him, he can himself rely on those statements in his defence. The statement of the
accused in FIR that he killed his wife giving her a fatal blow when some tangible proof of her
indiscretion was available was not usable against him to establish his guilt. But once his guilt was
established through other evidence, he was permitted to rely upon his statement so as to show
that he was acting under grave and sudden provocation. There is nothing in Evidence Act which
precludes an accused person from relying upon his own confessional statements for his own
purposes.

Special Legislation
A special legislation may change the system of excluding police confessions. For example, under
the Territorists and Disruptive Activities(prevention) Act, 1987, (S15) confessional statements
were not excluded from evidence on grounds that the persons making them were in police
custody. The court said in another case that section 15 was an important departure from the
ordinary law and must receive that interpretation which would achieve the object of that provision
was that a confession recorded under S.15 of TADA was a substantive piece of evidence and
could be used against a co-accused also.

Section 26- Confession By Accused While In Custody Of Police Not To Be Proved Against
Him.
No confession made by any person whilst he is in the custody of a police officer, unless it is
made in the immediate presence of a Magistrate, shall be proved as against such person.
Object-The object of section 26 of the Evidence Act is to prevent the abuse of their powers by the
police, and hence confessions made by accused persons while in custody of police cannot be
proved against them unless made in presence of a magistrate. The custody of a police officer
provides easy opportunity of coercion for extorting confession obtained from accused persons
through any undue influence being received in evidence against him.

Police Custody
The word custody is used here in wide sense. A policeman may lay his hand on a person, hand-
cuff him or tie his waist with a rope and may take him with him. Again a police officer may not
even touch a person but may keep such a control over him that the person so controlled cannot
go any way he likes. His movement is in the control of the police officer. A police officer comes to
A and asks him to follow to the police station as he is wanted in connection with a dacoity case. A
follows him. He is in custody of the police officer.

Thus it is settled that “the custody of a police officer for the purpose of section 26, Evidence Act,
is no mere physical custody.” A person may be in custody of a police officer though the other may
not be physically in possession of the person of the accused making the confession. There must
be two things in order to constitute custody. Firstly, there must be some control imposed upon the
movement of the confessioner, he may not be at liberty to go any way he likes, secondly, such
control must be imposed by some police officer indirectly. The crucial test is whether at the time
when a person makes a confession he is a free man or hid movements are controlled by the
police by themselves or through some other agency employed by them for the purpose of
securing such confession. The word ‘custody’ in this the following section does not mean formal
cutody but includes such state of affairs in which the accused can be said to have come into the
hands of a police officer, or can be said to have been some sort of surveillance or restriction.

In R. v. Lester, the accused was being taken in a tonga by a police constable. In the absence of
constable, the accused confessed to the tanga-driver that he committed the crime. The
confession was held to be in police custody as the accused was in the custody of constable and
it made no difference of his temporary absence. Where a woman, charged with the murder of her
husband, was taken into the custody of the police, a friend of the woman also accompanied her.
The policeman left the woman with her friend and went away to procure a fresh horse. The
woman confessed her guilt to her friend while the policeman was away. The confession would
not be admissible against the accused as the prisoner should be regarded in custody of the
police in spite of the fact that he was absent for a short time. But where the accused is not
arrested nor is he under supervision and is merely invited to explain certain circumstances, it
would be going further that the section warrants to exclude the statement that he makes on the
grounds that he is deemed to be in police custody.

Section 27- How Much Of Information Received From Accused May Be Proved:
Provided that, when any fact is deposed to as discovered in consequence of information received
from a person accused of any offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved.
Principle-this section of the act is founded on the principle that if the confession of the accused is
supported by the discovery of a fact then it may be presumed to be true and not to have been
extracted. It comes into operation only-
•If and when certain facts are deposed to as discovered in consequence of information received
from an accused person in police custody, and
•If the information relates distinctly to the fact discovered.

This section is based on the view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the information was true and
accordingly can be safely allowed to be given in evidence. But clearly the extent of the
information admissible must depend on the exact nature of the fact discovered to which such
information is required to relate.

In Pandu Rang Kallu Patil v. State of Maharashtra, it was held by Supreme Court that section
27 of evidence act was enacted as proviso to Section 24 to 26. The provisions of sections of
Section 25 and 26, which imposed a complete ban on admissibility of any confession made by
accused either to police or to any one while in police custody. Nonetheless the ban would be
lifted if the statement is distinctly related to discovery of facts. The object of making provision in
section 27 was to permit a certain portion of statement made by an accused to Police Officer
admissible in evidence whether or not such statement is confessional or non confessional.

Requirements Under The Section- the conditions necessary for the application of Section
27 are:-
1. The fact must have been discovered in the consequence of the information received from the
accused.
2. The person giving the information must be accused of an offence.
3. He must be in custody of a police officer.
4. That portion only of the information which relates distinctly to the fact discovered can be
proved. The rest is inadmissible.
5. Before the statement is proved, somebody must depose that articles were discovered in
consequence of the information received from the accused. In the example given above, before
the statement of the accused could be proved, somebody, such a sub-inspector, must depose
that in consequence of the given information given by the accused, some facts were discovered.
6. The fact discovered must be a relevant fact, that is, to say it must relate to the commission of
the crime in question.

In State of Bombay Vs. Kathi Kalu Oghad (1963 SC) it was held that Section 25 is not per se
violative of Article 20 (3). The SC in this case approved the earlier decision of itself in Mohd.
Dastagir Vs. State of Madras (1960 SC).

Section 28provides that if there is inducement, threat or promise given to the accused in order to
obtain confession of guilt from him but the confession is made after the impression caused by
any such inducement, threat or promise has, in the opinion of the court been fully removed, the
confession will be relevant becomes free and voluntary.

Impression produced by promise or threat may be removed

•By lapse of time, or
•By an intervening caution given by some person of superior authority to the person holding out
the inducement, where a prisoner confessed some months after the promise and after the
warning his confession was received.

Section 29-confession is otherwise relevant, it does not become irrelevant merely because it
was made under a promise of secrecy, or in consequence of deception practiced on the accused
person for the purpose of obtaining it, or when he was drunk, or because it was made in answer
to question which he need not have answered, whatever may have been the form of those
questions, because he was not warned that he was not bound to make such confession, and that
evidence if it might be given against him.

Section 30- Consideration of Proved Confession Affecting Person Making It And Others
Jointly Under Trial For The Same Offence-
When more persons than one are being tried jointly for the same offence and a confession made
by one such persons affecting himself and some other such persons is proved, the court may
take into consideration such confession as against such other person as well as against the
person who makes such confession. It appears to be very strange that the confession of one
person is to be taken into consideration against another. Where the confession of one accused is
proved at the trial, the other accused persons have no other opportunity to cross examine him. It
is opposed to the principle of jurisprudence to use a statement against a person without giving
him the opportunity to cross examine the person making the statement. This section is an
exception to the rule that the confession of one person is entirely admissible against the other.

Hence before the confession of one accused may be taken into consideration against
others, it has to be shown that:
1) The person confessing and the others are being tried jointly.
2) They are being tried for the same offence.
3) The confession is affecting the confessioner and the others.

Evidentiary value of Confession in Section 30:-

The confession of a co-accused under Section 30 is admissible in evidence but the evidentiary
value is not as much as against the person making the confession. It has only an indicative
value. The PC in Bhaboni Sahu Vs. The Kind has held the same. This was also reiterated by
the SC inHarib Kurni Vs. State of Bihar (1964 SC)and also in Kashmira Singh Vs. State of
M.P. (1952 SC).
Statement by A Person who cannot be Called
as A Witness

Introduction

As a general rule of law, oral evidence is required to be direct and the oral
evidence is required to be stated before the court by the person who
received the first-hand knowledge of the facts. When any witness appears
before the court he needs to give his testimony on oath and there are also
the provisions of examination-in-chief, cross-examination and re-
examination. But there is a certain class of person whose statements are
recorded who are not considered to be a witness.

Hearsay rule

One of the exceptions to the general rule is hearsay evidence which is

considered inadmissible as it is not stated on oath and there is no
opportunity of cross-examining the original source by the party against
whom the proof is given. Also, there can be chances of falsehood.

Illustration:

A stabbed B and C was present at the scene of a crime, so he is a first-hand

witness. His testimony will be recorded on oath and he can be cross-
examined. He can even be held liable if he gives any false statement or any
misleading statement. But if there is D who gives a statement that C told D
that A stabbed B, it will be a second-hand witness and the hearsay rule will
be applicable.

The hearsay rule is mainly based on two major considerations:

1. The necessity of the evidence.

 2. The circumstantial guarantees of trustworthiness.

The hearsay evidence is excluded because they are considered

untrustworthy.

Persons who cannot be called as a

witness
Section 32 of the Indian Evidence Act, 1872 is an exception to the
general rule and under this section the hearsay evidence is admissible. Under
this section, indirect evidence is relevant as held in the case of Mst. Biro v.
Atma Ram.

According to section 32, any written or verbal statement containing relevant

facts which is made by a person who is either dead or cannot be found or has
been given by a person who has become incapable of giving evidence or the
attendance of such person can require delay or expense which seems
unreasonable to the court, are relevant in the following cases:

When the statement is related to causing of

death
According to section 32(1), when the question comes to the death of a
person and that person gives a statement regarding the cause of his death or
about any of the circumstances which led to his death then it is considered to
be relevant.

The statements made are considered relevant even if that person making a
statement was there or not at the time when the statement was made during
the expectation of death.

Illustration:
When the question arises that whether B murdered A or not.

A dead due to the injury caused by B and suit against B is carried on by legal
heir of A.

The statement of A regarding his death referring to the murder and other
actionable wrongs are relevant facts.

A statement made in the ordinary course of

business
A statement which has been made by such person during the ordinary course
of business and such statement consists of any statement or entry of
memorandum or any book maintained by him in the ordinary course of
business. It may be considered of any acknowledgement which has been
written and signed for him of any document which is used for commerce
which has been written and signed by him according to sub-clause (2)
of section 32.

ILLUSTRATION: When the question in dispute is regarding the question

that whether the ship sailed from Kolkata harbour on a particular date then,
a letter written by a member of merchant’s firm to the correspondent stating
that the cargo has been shipped on the particular date is a relevant fact.

The statement made against the interest of

the maker
When a statement made by a person is against his pecuniary or proprietary
interest and it will expose him if it is true to criminal prosecution or to the
suit of damages then it considered being relevant under section 32(3).

Illustration:
A has made any statement which is against his interest and such statement
can expose him, then such statement is relevant.

The statement which gives an opinion as to

public right or custom
When a statement is made which gives an opinion regarding the existence of
any public rights, customs, or a matter related to the general public interest
which it existed, he would have been aware of and when such statement has
been made there was no controversy of such rights, customs or matter
under section 32(4).

Illustration

If a question arises whether the road is a public way. The statement by X

who is a deceased headman of that village is relevant.

The statement as to the existence of a

relationship
Under section 32(5), when a statement is given which is related to the
existence of a relationship by blood, marriage or adoption by the party
making the statement has a special means of knowledge about the existence
of such relationship about marriage, blood relation or adoption and such
statement is required to be made before the dispute was raised.

Illustration:

If the question of the dispute arises that whether or not A and B are legally
married, then the statement of a deceased clergyman that they were married
by him under certain circumstances will be relevant.
A statement made in a will or deed in family
affairs
When the statement made is related to the existence of a relationship by
blood, adoption or marriage between the deceased persons in any deed or
will and such will or deed is related to the family affairs of such deceased
person then it is considered to be relevant under section 32(6). Such a
statement is required to be made before the question in dispute was raised.

ILLUSTRATION: If the question arises that A who is a deceased person,

whether the father of B. The statement of A in his will considering B as his
son is relevant.

Statement in a document relating to

transaction creating a Right or custom
According to section 32(7), when a statement is stated in any will, deed or
any other document which is related to the question of the existence of a
right or custom under section 13(a) of the Evidence Act,1872. Such a
statement should be regarding the existence of a certain right or custom by
which such right or custom which is in question was created, coined,
recognised or denied.

Illustration:

When an issue arises about a custom or right in a particular area, the

statement of X who was present when such right or custom was created is
relevant.
A statement made by several persons
expressing feelings relevant to the matter
in question
When the statement has been made by several numbers of persons who
have expressed their feelings on their part, then such statement is relevant
under section 32(8).

EXAMPLE: Public opinion about a matter in dispute.

Who can make the above statements?

The person who is dead

The statement made under section 32 must be made by a person who is
dead before admitting the statement before this section. The statement of a
dead person has been given importance under this section as there can be
no better evidence can be laid than the statement made by the dying person
himself about his death.

If the person who has made the dying declaration survives then such
statement is not admitted under section 32 but under the provision of
confession.

The person who cannot be found

When a person disappears and never heard of and his presence as a witness
cannot be compelled and such a person makes a statement and the party to
the proceeding is able to prove that such person has disappeared but his
statement can be proved then such statement can be admitted.
Before such a statement is admitted it is required to be proved that the
person who is seeking for admission of such a statement has made an
examination of that person with an honest effort.

By the person who is incapable of giving

evidence
When a person making a certain statement later become physically
unfit and incapable to depose, in such a situation, if the statements made
are related to the sub-clauses of section 32 of the Act, then it is admitted
and may be proved during the proceedings. This section includes any person
who becomes physically incapable of giving a statement on a later stage.

Unreasonable delay or expenses

When there can be unreasonable delay or expenses in the procedure of
appearance of a witness, then if his previous statement is relevant, it is
admissible.

But, the mere fact that a person is living far away from the place of trial, is
not a valid ground of the admission of a statement under section 32. For the
admission of a statement under section 32, it must be proved that in the
attendance of the person, unreasonable delay and expense will take place.

Dying declaration
The term “dying declaration” is not defined under the Evidence Act but it can
be interpreted according to sub-section (1) of section 32.

As held in the case of Ram Bihari Yadav v. the State of Bihar, “A dying
declaration can be defined as a statement made by a person who is dead
regarding the reason for the cause of his death and regarding any
transaction which resulted in his death. Also when the question of death
comes into question then such statements are relevant under section 32 of
the Indian Evidence Act. The person making such a statement was under the
expectation of death or not at the time when such statement was made
comes into question”.

Evidentiary Value of Dying Declaration

When a dying declaration is made orally and the person gives the name of
assailants and it is written by any of them, then it is a valid dying
declaration. The people present can dispose of orally that the names of
assailants were given by the deceased as held in the case of Nanhu Ram v.
the State of M.P.

The oral dying declaration is considered admissible and they are an exception
to the general rule of evidence that considers hearsay evidence as invalid
evidence in the eyes of law.

In the case of Bable v. State of Chattisgarh, it was held that the oral dying
declaration is an exception of the Hearsay evidence.

Even when a dying declaration has been made by the deceased before his
wife, father-in-law or any relative in a conscious state and the doctor
conducting his post mortem examination has not made a cross-examination
about the mental state of the deceased, then also the dying declaration
considered absolutely valid and conviction can be made on the basis of such
declaration as held in this case of Prabin Ali v. State of Assam.

In the case of Vijay Pal v. State (Government of NCT) Delhi, it was held
by the court that it is clear by the law that when a dying declaration is
credible and there is nothing in the record that the condition of deceased was
not so that he could have made the statement to a witness. Like in this case
when the witness rushed to the house of the deceased, she told him that her
husband has poured kerosene on her.
In the case where the death of the deceased by burning by the husband, in
such cases, the dying declaration made by the deceased is considered to be
totally true and no evidence is present that can prove the contrary. Even the
absence of kerosene oil in the deceased hairs cannot render the dying
declaration as doubtful as held in the case of Tanua Rabidas v. State of
Assam.

The dying declaration cannot be used for conviction of accused if it is the sole
evidence. The conviction cannot be made solely on the basis of dying
declaration unless it is corroborated and each case is decided on an
individual basis of the case. The circumstances of the case affect the value of
the dying declaration. sole evidence

Reason for admissibility of dying declaration

in evidence
A dying declaration is admissible in the evidence based on the principle of:

‘Nemo moriturns proesumitur mentiri’

This principle means that a man does not lie at the time of his death and he
will not meet God with a lie in his mouth”. A dying declaration is considered
to be correct as long as confidence is inspired by it in the mind of the Court.
A dying declaration is required to be judged according to its circumstances as
held in the case of Umakant v. State of Chattisgarh.

As held by the Supreme Court in the case of Uka Ram v. State of

Rajasthan, the sense of death leads to the same feeling which a virtuous
man get under oath and the principle of admissibility of dying declaration is
based upon this principle. The admission of dying declaration is made on the
consideration that the declaration has been made by the deceased under
extremity. When a person is near death and his hope is gone for this world
then it is powerful consideration that he will be speaking the truth.
Indian law is based on the principle that “a dying man seldom lies.

There are two types of statements which are made admissible by

section 32(1):

1. A statement stating the cause of death

2. Statement related to any circumstances which resulted in death.

Conditions for dying declaration

The statement is considered as a dying declaration when the statement is
made under the following circumstances and conditions:

Cause of death
When a person makes a statement regarding his cause of death or about any
circumstances or transaction that resulted in his death then such statement
will be considered as a dying declaration and it is considered relevant.

Illustration:

A dies due to assault. Before his death, A makes a statement than B stabbed
him with a knife. Such a statement is admissible before the court as a dying
declaration and the fact the deceased survived for few days even after a fatal
injury does not deprive such statement of being of a character of dying
declaration.

The statement related to the cause of death of the deponent is admissible

and the time gap between the statement of deceased and the death is
considered immaterial.

The statement of the deceased made but the cause of death is something
else or some disease, then such statement is not considered as a dying
declaration.
When declarant dies of injury that is yet to be
proved
For the statement to be considered as a dying declaration it is required to be
proved that the cause of his death is due to the injury he received in the
incident for which the accused is to be prosecuted. As in the case
of Chandra Bhan Singh v. State where the deceased narrated the incident
of murder before the police about the attack on him for murder but later it
was found that the death of deceased was because he developed cancer. So,
the statement of the deceased could not be considered as a dying
declaration.

Circumstances which resulted in his death

The expression “any circumstances of transaction that resulted in death” has
a wider scope than the expression cause of death. Even if a statement is not
considered as a cause of death but it might be admissible under the
circumstances which resulted in death.

In the case of Patel Hiralal Joita Ram v. the State of Gujrat, it was held
by the court that statement of circumstances that resulted in death is itself
enough to expand the scope of admissibility of the declaration. Any
statement related to death directly or indirectly, proximately or remotely are
considered under this and it expands the ambit of dying declaration.

Intention to use such a statement as dying

declaration is not compulsory
In the case Bhagirath v. the State of Haryana it was held by the
Supreme Court that it is not compulsory that while recording the dying
declaration that statement is to be used at dying declaration. The intention to
use the statement at a dying declaration is not mandatory.
In this case, also the deceased who has suffered the gunshot made his
statement but later he died. The statement recorded was considered as the
dying declaration.

The person making a statement when not

dead
When the person who has made the statement as dying declaration survives
and does not die, then such statement is not considered as a dying
declaration. It will be considered as confession statement but not as a dying
declaration.

Expectation of death
A statement recorded as dying declaration is considered relevant when the
person making the statement was or was not having an expectation of death.

The expectation of death does not affect the validity of dying declaration but
it affects the weight attached to it. When a person who is making the
statement has knowledge that he is going to die and he does not have any
hope of recovery left, then the chances of statements to be true increases as
held in the case State v. Kanchan [AIR 1954 All 153].

The Supreme Court is also of the view that there is no doubt that when a
person is expecting death soon then the chances of falsehood decreases but
the value of the statement is not lost if the person is alive for a longer time
than expected.

Proximate cause
The statement made as dying declaration must have a proximate relationship
with the actual occurrence and not remote as observed by the privy council
in the case of Narain Swami v. Emperor. The statement of a person should
be regarding the cause of death or circumstances leading to the death of the
person and it should be made by the deceased person.

Difference between Indian Law and

English Law regarding the dying
declaration
The rules regarding the dying declaration are different under English law than
the Indian Law as follows:

1. The dying declaration is not admissible in the civil cases under the
English Law but under Indian law, the dying declaration can be
admissible even in civil cases into question.
2. In the criminal cases under the English Law, the dying declaration is
considered only in single instances of homicide such as murder or
manslaughter where the circumstances of the death are subject to
dying declaration while under the Indian Legal System, the
statement made as dying declaration act as evidence whatever the
nature of charges may be.

3. As per the English law, for dying declaration certain conditions are
required to exist during the time of declaration such as:

 It is important that the declarant should be in actual danger of

death and the statement should be made receiving the injury.

 The declarant should be aware of his danger and he should have left
every hope of recovery.

 The death should be caused.

Under the Indian Legal system, the third condition of death is necessary as
the dying declaration is considered admissible only when the declarant dies
but the first two conditions are not mandatory under Indian Law for a
declaration to be admissible as dying declaration.
Under section 32 of the Evidence Act, the statement of the deponent is
considered as a dying declaration even when he was not in actual danger or
he has no actual knowledge of the danger

Under English law, admissibility of the dying declaration depends on the

principle that sense of death is produced in a man’s mind some feeling of
that is same as a virtuous person giving a statement under oath. When a
person is at the verge of death and he has no hope left for life, then the
feelings of falsehood disappears and a person’s mind only speaks the truth.
Under Indian Law, for consideration of statements as dying declaration and
testing its credibility, a weight is given to the facts and circumstances of the
case.

Dying declaration recorded by the police

A dying declaration recorded by a police during his course of investigation is
considered admissible under section 32 of the Indian Evidence Act but it is
better to leave such declaration out of consideration unless the prosecution is
able to satisfy the court that why it was not declaration recorded by a
magistrate or a doctor as held by the Supreme Court in the case Dileep
Singh v. the State of Punjab [1979 CrLJ 700].

Conclusion
There are certain classes of people who cannot be called as a witness but
their statement when recorded under certain circumstances, it is considered
as relevant. Such as when the statement is made by a person who is dead or
a person who cannot be found or the attendance of whom requires
unreasonable delay or expenses then the statement made by them regarding
his death, or ordinary course of business and certain other conditions as
mentioned under section 32 are considered relevant.

One the major statement is the dying declaration. The dying declaration is
considered admissible under the Indian Legal system and holds important
evidentiary value under law. The dying declaration solely does not lead
conviction but under few circumstances of the case, even the sole dying
declaration can lead to the conviction of accused.

The consideration of the dying declaration also depends upon the facts and
circumstances of the case. There is a major difference between the concept
of dying declaration between the English Law and under the Indian Legal
System.

The dying declaration and the weight attached to also depends upon the
knowledge of the deceased about the expectation of death as there is the
concept in the legal system that when a person knows he is going to die,
then the statement given by him are not false and it also improves the
credibility of dying declaration.