It is very important to understand Dying Declaration in Bangladesh with its case laws. Without case laws nothing is fulfill under law. So, I am going to discuss Dying declaration and Bangladesh view on the case laws.
Dying DeclarationJudge’s failure to warn the jury that the declaration was not liable to cross-examination does not vitiate the trial.
Abdur Rahaman Vs. State(1959) 11 DLR 494
Recorded in English without the language of the deceased- who made the statement in Bengali- Admissible.Where the dying declaration made in Bengali has been recorded in English without improving on the language of the deceased, such a dying declaration suffers from no infirmity and is admissible in evidence. State Vs. Bahar Ali (1959) 11 DLR 258.
Record does not contain the exact words of the deceased –Record unreliable.
Omar Ali Vs. State (1961) 13 DLR 251.
Omission to mention in the dying declaration the name of the one of the three witnesses due to serious physical conditions is not of much significance.
Gulam Hussain Vs. Zainullah (1961) 13 DLR (SC) 147.
Made in the course of police investigation- Admissible.A dying declaration though made in course of investigation to which clause 32(I) applies, would not be hit by section 162 of the criminal procedure code.
Shahidullah Khan Vs. State (1960) 12 DLR
When alone can form the basis of conventionIf a dying declaration is found to be genuine and true, it can by itself from a satisfactory basis for conviction.
Some of the main tests for determining the genuineness of dying declaration are : Whether intrinsically it rings true, whether there is chance of mistake on the part of the deceased in identifying or naming his assailants and whether it is free from promoting from any outside quarter and is not inconsistent with the other evidence and circumstances of the case.
If a dying declaration stands the normal test for judging its veracity it becomes wholly reliable piece of evidence, but if it does not, it is far worse than an ordinary statement of witness because the make of the dying declaration was not subject to cross-examination and not under an oath.
This is not saying that if a dying declaration is false in some particulars, it must away be rejected, but most certainly if it is found that deceased in his statement has indulged in telling lies even partially, that would put the courts on ground against accepting the rest of the statement without any corroboration, and the result may well be that the whole of the statement is rejected.
Taj Mohmud Vs. State (1960) 12 DLR (WP) 30
Dying Declaration -- AdmissibilityA dying declaration is inadmissible when upon its face it is incomplete and no one can tell what the deceased was about to add. It is a serious error to admit a dying declaration in part.
It is further and more serious error not to point out to the jury that it had not been liable to cross-examination.
Cyril Waugh Vs. King (1957) 9 DLR (PC) 353
Dying declaration need not be identical and of the same but if substance of the same fulfills other conditions to act upon such declaration, then it is admissible in evidence. A detailed statement cannot necessarily lead to the inference that the statement is fabricate one. It is now well settled that a dying declaration, oral or written, when established as true can form the sole basis of conviction.
State Vs. Moinul Haque (2008) 60 DLR 298
--- While dealing with the question of dying declaration the judge has to discuss this matter from four stand-points:
1. Whether the maker had the physical capability;
2. Whether the witnesses who heard the deceased making the statement heard him correctly;
3. The judge has to deal with the question whether the maker had any opportunity to recognise the assailants;
4. There is no rule of law that a dying declaration must be corroborated before it can be acted upon.
Ajmat Ali Vs. Crown (1955) 7 DLR 356.
Dying Declaration are admitted into evidence on principle of necessity, but a dying declaration can be made the basis of conviction only when the jury are satisfied beyond all shadow of doubt that the man who made the dying declaration had a good opportunity of recognising his assailant.
Ajmat Ali Vs. Crown (1955) 7 DLR 356.
1. Dying Declaration
2. Dying Declaration:: Bangladeshi View (Part-2)
Md. Shahnewaz Zwaki Advocate Judge Court, Dhaka, Bangladesh.