STATEMENTS BY PERSONS WHO

CANNOT BE CALLED AS WITNESSES

SECTION 32 - 33
 PRINCIPLE AND EXCEPTION
PRINCIPLE:
I. As a general rule oral evidence must be direct
II. Witness appears in the court he has give evidence, take
oath and face cross examination
III. Hearsay evidence is excluded on the following evidence
1. It is not stated on oath
2. Party has no opportunity of being cross- examined
3. Immune from all sorts of penalties
IV. Hearsay is sufficiently untrustworthy
V. Special circumstances in which hearsay is acceptable
 EXCEPTION TO THE GENERAL RULE
Section32 - Cases in which statement of relevant fact
by person who is dead or cannot be found, etc., is
relevant
Statements, written or verbal, of relevant facts made by a
person who is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose
attendance cannot be procured, without an amount of
delay or expense which under the circumstances of the case
appears to the Court unreasonable, are themselves relevant
facts in the following cases
PRINCIPAL: We have to prove that the person falls under
any of the circumstances given above
CLAUSE 1 :when it relates to cause of death.-When the statement is made by a person as to the
cause of his death, or as to any of the circumstances of the transaction which resulted in his
death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when
they were made, under expectation of death, and whatever may be the nature of the proceeding
in which the cause of his death comes into question
DEFINETION
DYING DECLARATION COULD BE ORAL OR WRITTEN
ORAL DYING DECLARATION
1. AMAR SINGH vs. STATE OF RAJASTHAN(2010 sc 512)(dowry death)
2. PAKALA NARAIN SWAMY vs. EMPEROR(1939)(proximate relation with the actual
occurrence)
3. SHARAD BIRDICHAND vs. STATE OF MAHARASHTRA(1984)(letters relating to her
condition)
 REASON FOR ACCEPTING DYING DECLARATION( nemo moriturns proesumitur mentiri)
 CAUSE OF DEATH
 DECLARANT DIED OF INJURY
 CIRCUMSTANCES OF TRANSACTION WHICH RESULTED IN HIS DEATH
 STATEMENT ABOUT THE DEATH OF ANOTHER
 DYING DECLARATION NOT RECOREDED FROM THE ACTUAL WORDS OF THE MAKER
 EXPECTATION OF DEATH
 FORM OF DYING DECLARATION
 DYING DECLARATION TO MAGISTERATE
 EVIDENTIARY VALUE
CLAUSE(2) or is made in course of business.-When the
statement was made by such person in the ordinary course of
business, and in particular when it consists of any entry or
memorandum made by him in books kept in the ordinary
course of business, or in the discharge of professional duly; or
of an acknowledgment written or signed by him of the
receipt of money, goods, securities or property of any kind; or of
a document used in commerce written or signed by him; or of
the date of a letter or other document usually dated, written
or signed by him.
IN THE COURSE OF BUSINESS: In the way the business is
conducted
STATEMENT VERBAL OR WRITTEN
CONTEMPORANEOUS
ENGLISH LAW(direct knowledge and personal knowledge)
VALUE OF ENTRIES
PROOF
CLAUSE(3) or against interest of maker.-When the
statement is against the pecuniary or proprietary interest
of the person making it or when, if true, it would expose him
or would have exposed him to a criminal prosecution or to a
suit for damages
PRINCIPLE
1. Effects his pecuniary interest
2. Proprietary interest
3. Personal liberty or property
 ENGLISH LAW
 STATEMENTS AGAINST PECUNIARY INTEREST
 AGAINST PROPRIETARY INTEREST(actual
possession)
 CRIMINAL PROSECUTION AND SUIT FOR DAMAGES
 ALL FACTS CONTAINED IN THE STATEMENT
CLAUSE (4) or gives opinion as to public right or
custom, or matters of general interests.-When the
statement gives the opinion of any such person, as to the
existence of any public right or custom or matter of
public or general interest, of the existence of which, if it
existed he would have been likely to be aware, and when
such statement was made before any controversy as to
such right, custom or matter had arisen.
OPINION
DECLARATION ANTE-LITEM MORTEM
CLAUSE (5) or relates to existence of relationship.-When
the statement relates to the existence of any relationship 1
[by blood, marriage or adoption] between persons as to
whose relationship 1 [by blood, marriage or adoption] the
person making the statement had special means of
knowledge, and when the statement was made before the
question in dispute was raised.
SPECIAL MEANS OF KNOWLEDGE(burden of proof lies
on the who offers such evidence)
ANTE LITEM MORTEM
CLAUSE (6) or is made in will or deed relating to family
affairs.-When the statement relates to the existence of any
relationship 1 [by blood, marriage or adoption] between
persons deceased, and is made in any will or deed relating
to the affairs of the family to which any such deceased
person belonged, or in any family pedigree, or upon any
tombstone, family portrait, or other thing on which such
statements are usually made, and when such statement was
made before the question in dispute was raised.
PEDIGREE EVIDENCE
1. Existence of relationship
2. Between deceased persons
3. Any will or other deed
4. ANTE LITEM MORTEM
 CLAUSE 5 CLAUSE 6
1. Declaration of a person 1. Evidence of things
deceased or otherwise
2. Relationship between people 2. The people whose relations in
dead or alive controversy dead
3. Can be oral or written 3. Can be only written
4. Special means of knowing the 4. No need for special knowledge
relation
CLAUSE(7) or is document relating to transaction
mentioned in section 13, clause (a).-When the statement
is contained in any deed, will or other document which
relates to any such transaction as is mentioned in section 13,
clause (a).
STATEMENT MADE IN A DOCUMENT RELATING TO
TRANSACTION
CLAUSE(8) or is made by several persons and expresses
feelings relevant to matter in question.-When the
statement was made by a number of persons, and expressed
feelings or impressions on their pan relevant to the matter
in question.
SECTION 32 AND SECTION 11
Section33 - Relevancy of certain evidence for proving, in
subsequent proceeding, the truth of facts therein stated   
Evidence given by a witness in a judicial proceeding or before any person
authorized by law to take it, is relevant for the purpose of proving, in a
subsequent judicial proceeding, or in a later stage of the same judicial
proceeding, the truth of the facts which it states, when the witness is dead
or cannot be found, or is incapable of giving evidence, or is kept out of
the way by the adverse party, or if his presence cannot be obtained
without an amount of delay or expense which, under the circumstances of
the case, the Court considers unreasonable :
Provided
that the proceeding was between the same parties or their representatives in
interest;
that the adverse party in the first proceeding had the right and opportunity
to cross-examine;
that the questions in issue were substantially the same in the first as in the
second proceeding.
Explanation. A criminal trial or inquiry shall be deemed to be a proceeding
between the prosecutor and the accused within the meaning of this section.
SECTION 32 AND 33 ARE EXCEPTION TO HEARSAY
EVIDENCE
RELEVANCY OF CERTAIN EVIDENCE IN SUBSEQUENT
STAGE OF A PROCEEDING OR IN OTHER PROCEEDINGS
PREVIOUS STATEMENT IN THE SAME PROCEEDING
CONDITIONS TO BE FULFILLED:
1. Evidence was taken in a judicial proceeding
2. Between same parties or their representatives in interest
3. Had the right and full opportunity of cross-examining the
deponent when it was taken in previous proceeding
4. Issues involved are the same or substantially the same in both
proceedings
5. Witness is dead or could not be found or has become
incapable of giving evidence or is kept out of the way by the
adverse statement or could not come without unreasonable
amount of delay
JUDICIAL PROCEEDINGS
BEFORE ANY PERSON AUTHORISED BY LAW
INDENTITY OF THE PARTIES
REPRESENTATIVES-IN-INTEREST
PARTIES IN A CRIMINAL PROCEEDING
CROSS EXAMINATION
DEVER PARK BUILDERS PVT LTD vs. SMT. MADHURI JALAN
AND OTHERS(2002 cal 281)(witness died during cross
examination)
IDENTITY OF THE ISSUES
INABILITY OF WITNESS TO APPEAR BEFORE THE COURT
o DEATH
o CANNOT BE FOUND
o INCAPABLE OF GIVING EVIDENCE
o IS KEPT OUT OF WAY
o UNREASONABLE AMOUNT OR EXPENSE
DEPOSITION IN A CRIMINAL CASE USED IN CIVIL CASES