8.3 Dying Declarations & Expert Opinions

8.3 Dying Declarations & Expert Opinions

[!NOTE] Dual Exceptions to General Exclusion: The law of evidence ordinarily rejects hearsay (statements made out of court) and opinion (beliefs rather than factual perceptions). Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 creates the paramount exception to the hearsay rule for persons who are unavailable, headlined by the Dying Declaration under Section 26(a). Sections 39 to 45 codify the exception to the opinion rule, permitting specialized Expert Testimony to assist the court on scientific, forensic, and technical questions.

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Statements by Persons Who Cannot Be Called as Witnesses (Section 26 BSA / IEA Section 32)

The Four Gateway Inavailabilities

Statements, written or verbal, of relevant facts made by a person are relevant under Section 26 BSA when the maker:

1. Is dead;
2. Cannot be found;
3. Has become incapable of giving evidence (e.g., severe paralysis, coma, insanity); or
4. Whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable.

The Principle of Necessity

The rationale underlying Section 26 is necessity: the person who possessed direct firsthand knowledge of the facts is unavailable, and the exclusion of their statement would result in a complete failure of justice.

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Dying Declarations: Section 26(a) BSA (IEA Section 32(1))

Under Section 26(a) BSA, statements are relevant:

"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."

Anglo-Indian Divergence: The Fundamental Distinction

One of the most frequently tested concepts in the Maharashtra JMFC exam is the stark contrast between English Common Law and Indian Statutory Law regarding dying declarations:

                  DYING DECLARATIONS: ANGLO-INDIAN COMPARISON
                  
  Parameter               English Common Law                 Indian Law: Section 26(a) BSA
  ──────────────────────  ────────────────────────────────   ─────────────────────────────
  1. Expectation of       MANDATORY: Declarant must be in    NOT REQUIRED: Expressly relevant
     Imminent Death       a settled, hopeless expectation    "whether maker was or was not under
                          of imminent death (nemo moriturus  expectation of death at the time".
                          praesumitur mentire).
                          
  2. Proceeding Nature    CRIMINAL HOMICIDE ONLY: Limited    BOTH CIVIL & CRIMINAL: Admissible
                          strictly to trials of murder or    in murder, suicide insurance, motor
                          manslaughter.                      accident claims, or torts.
                          
  3. Survival of Maker    Inadmissible if declarant          If declarant survives, statement is
                          survives.                          not a dying declaration, but may
                                                             corroborate under Sec. 160 BSA.

Causation Nexus: Circumstances of the Transaction

Statements are admissible under Section 26(a) only if they relate directly to the cause of death or the circumstances of the transaction resulting in death:

• In Pakala Narayana Swami v. Emperor (AIR 1939 PC 47), the deceased told his wife before departing, "I am going to Berhampur to collect money from Pakala Narayana Swami." His severed body was later discovered in a steel trunk at Puri railway station. The Privy Council held this statement admissible under Section 32(1) IEA (Section 26(a) BSA) as a circumstance of the transaction resulting in death, establishing an unbroken nexus with the homicide.
• Negative Limit: Statements regarding remote, unconnected marital discords or general past grievances occurring months before the occurrence are inadmissible as they do not form part of the fatal transaction.

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Evidentiary Value & Judicial Guidelines on Dying Declarations

1. Sole Basis of Conviction: Khushal Rao v. State of Bombay (AIR 1958 SC 22)

In this landmark Constitution Bench ruling arising from Maharashtra, the Supreme Court laid down the definitive charter for dying declarations:

• A dying declaration does not stand on an inferior footing to any other piece of legal evidence.
• There is no absolute rule of law or even of prudence that a dying declaration cannot form the sole basis of conviction without corroboration.
• If the Court is satisfied that the declaration is voluntary, truthful, and coherent, and was not the result of tutoring, prompting, or imagination, it can sustain a conviction for murder without independent corroboration.

2. Medical Fitness & Certification: Laxman v. State of Maharashtra ((2002) 6 SCC 710)

A five-judge Constitution Bench resolved long-standing conflict regarding medical certification of fitness:

• Rule of Prudence vs. Rule of Law: The requirement of a doctor's endorsement certifying mental fitness is a rule of caution and prudence, not an inflexible requirement of law.
• Primary Metric: What is paramount is whether the declarant was in a fit, conscious, and orienting state of mind to make a coherent statement.
• If the magistrate or person recording the dying declaration testifies that the deceased was conscious, alert, and capable of understanding questions, the absence of a doctor's formal fitness certificate will not render the dying declaration inadmissible.

3. Multiple Dying Declarations: The Consistency Test

When multiple dying declarations exist (e.g., first to a relative, second to a doctor, third to a Judicial Magistrate):

• In Atbir v. Govt. of NCT of Delhi ((2010) 9 SCC 1) and Purshottam Chopra v. State ((2020) 11 SCC 489), the Supreme Court ruled that the Court must evaluate whether the multiple declarations are mutually consistent on material particulars.
• If there are irreconcilable contradictions regarding the identity of the assailant or the nature of assault, the Court cannot arbitrarily pick one and must reject the dying declarations in the absence of clinching corroborative evidence (Lakhan v. State of M.P., (2010) 10 SCC 265).

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Other Relevancies under Section 26 BSA (IEA Section 32)

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Relevancy of Prior Judicial Depositions (Section 27 BSA / IEA Section 33)

Evidence given by a witness in a prior judicial proceeding is relevant in a subsequent judicial proceeding to prove the truth of facts stated, when the witness is dead, cannot be found, incapable, or delayed, subject to three strict cumulative statutory provisos:

1. The proceeding was between the same parties or their representatives in interest;
2. The adverse party in the first proceeding had the right and opportunity to cross-examine; and
3. The questions in issue were substantially the same in the first as in the second proceeding.

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Expert Opinions: Sections 39 to 45 BSA (IEA Sections 45 to 51)

Under Section 39 BSA (IEA Section 45), the opinion of third persons specially skilled is relevant when the Court has to form an opinion upon:

• A point of foreign law;
• A point of science or art;
• The identity of handwriting;
• The identity of finger impressions; or
• Electronic signatures, digital records, and cyber forensics [Section 39(1)-(2) BSA].

                         THE LAW OF EXPERT TESTIMONY
                         
   Section 39 BSA: Competency      Section 40 BSA: Fact Basis     Section 41-42 BSA: Identification
   ──────────────────────────      ──────────────────────────     ─────────────────────────────────
   Specially skilled in science,   Facts not otherwise relevant   Opinions on handwriting and
   art, foreign law, cyber         become relevant if they        digital signatures of persons
   forensics, or fingerprints.     support or rebut opinions.     acquainted or certified.
                                                │
                                                ▼
                                   EVIDENTIARY VALUE OF EXPERT
                                   • Merely ADVISORY and CORROBORATIVE
                                   • Court is the "Expert of Experts"
                                   • Cannot override credible Ocular Evidence

Evidentiary Weight of Expert Evidence

1. Advisory Character: An expert is not a witness of fact. Their function is to furnish scientific data and specialized criteria to enable the Judge to form an independent conclusion (Magan Bihari Lal v. State of Punjab, AIR 1977 SC 1091).
2. Corroborative Requirement: Expert opinion on handwriting or ballistics is generally regarded as frail evidence; judicial prudence cautions against convicting solely upon uncorroborated expert testimony.

The Decisive Conflict: Ocular Evidence vs. Medical Opinion

A classic Maharashtra Judicial Service examination problem involves an apparent discrepancy between direct eye-witness testimony and forensic medical evidence:

• General Rule: Where the direct ocular testimony of eye-witnesses is consistent, trustworthy, and unimpeachable, it decisively overrides conflicting medical opinion evidence (Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484; Darshan Singh v. State of Punjab, (2010) 2 SCC 333).
• The Sole Exception: Medical evidence can overcome ocular testimony only when it completely rules out all physical possibility of the ocular version being true (e.g., witnesses swear the victim was killed by a close-range rifle bullet, but post-mortem demonstrates death exclusively by potassium cyanide poisoning with zero mechanical trauma).

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