Dying declaration :: Its probative value::A dying declaration although a piece of substantive evidence has always been viewed with some degree of caution as the matter is not liable to cross-examination. It stands on the same footing as any other pieces of evidence ad has to be judged in the light of surrounding circumstances and common human experience. When there is a record of such statement of the deceased the court has to satisfy itself, in the first place, as to the genuineness of the same keeping in view all the evidence and circumstances in which the statement of the deceased was said to have been recorded. The alleged dying declaration , the only piece of evidence against the appellant, having not been free from reasonable doubt, the accused is entitled to the benefit of doubt.
Sk.Shamsur Rahaman Vs. The State (1990) 42 DLR 200.
Dying declaration – statement of a person about the cause of his death or circumstances leading to his death is substantive evidence under section 32(I) of the Evidence Act- if found reliable , it may by itself be basis for conviction even without corroboration.
Statement falling u/s. 32(I) of the Evidence Act is called a “Dying Declaration” in ordinary parlance- A dying declaration may be recorded by any person who available and it may be written or it may be verbal or it may be indicated by signs and gestures in answer to questions even – There is no requirement of law that a dying declaration should be recorded by a Magistrate as in the case of the confessional statement of an accused under section 164(3) of Cr.P.C. Nurjahan Begum Vs. The State (1990) 42 DLR 130.
Legislature in its wisdom has put a dying declaration at per with evidence on oath for the simple reason that a man under the apprehension of s
death is not likely to speak falsehood and involve innocent persons in preference to his assailant.
When a probationary officer actually recorded the statement in presence of, and under the observation of, the Superior office, there was hardly any wrong in his evidence that he recorded it in presence of witnesses.
Nurjahan Begum Vs. The State (1990) 42 DLR 130.
Dying Declaration :: Recorded not as utteredThe investigation officer who recorded the dying declaration of the deceased deposed that as the Bengali of the deceased was not correct, he improved the language retaining the full sense of what the deceased had spoken.
The Held: The dying declaration is not admissible.
Rejan Ali Vs. Crown (1955) 7 DLR 141.
Expectation of death :: Not necessary::For admissibility of statement , a person should not necessarily be under exception of death when he made it.
Statement with regard to the cause of death of another person injured in the same transaction in which the person making the statement was injured is also admissible.
Mian Khan Vs. Crown (1954) 9 DLR 6.
Dying declaration :: Its evidentiary Value ::Dying declaration – when admitted under section 32 of the Evidence Act stands on the same footing as any other evidence as to its value and credibility.
Tera Mia Vs. Crown (1955) 7 DLR 537
A diary kept by the accused , on which the prosecution placed reliance, as produced to prove:`
1. That the deceased was married to the accused and continued to be his wife till her death when she was pregnant from him for about two weeks.
2. That in view of his impending marriage elsewhere, the accused was insistent that the deceased must have an abortion and leave the city.
3. That for some time before the deceased’s death the accused had started threating her with death in case she refused to carry out the aforementioned wishes of the accused.
4. That the accused actually made attempts on the life of the deceased before she actually died on the 7th of December 1953.
The Held: The diary is admissible in evidence.
1956 PLD (Lah) 300.
-- Letter written by the deceased prior to the occurrence showing relationship with the accused- admissible.
Ghulam Ahamed Kan Vs. State (1958) 10DLR 55.
Md. Shahnewaz Zwaki Advocate Judge Court, Dhaka, Bangladesh.