Dying Declarations, Expert Opinion, and Character Evidence notes — Unit 3

The general rule of evidence is that all evidence must be direct (heard/seen by the witness personally in court). Hearsay is bad. Why? Because the person who actually saw the event is not in court to take an oath and face cross-examination.

But what if the person who saw the event is dead? Section 32 provides exceptions to the hearsay rule out of absolute necessity.

⇒Section 32 applies when a person is:

• Dead.
• Cannot be found.
• Has become incapable of giving evidence (e.g., paralyzed, coma).
• Whose attendance cannot be procured without unreasonable delay or expense.

The most famous and frequently used clause of Section 32.

⇒The Rule

Statements, written or verbal, of relevant facts made by a person who is dead, are themselves relevant facts... 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.

⇒The Philosophy (Nemo moriturus praesumitur mentiri)

The Latin maxim translates to: "A man will not meet his Maker with a lie in his mouth." The law presumes that when a person is facing imminent death, the motive for falsehood is removed, and the solemnity of the occasion acts as a substitute for an oath.

Indian Law has some specific rules regarding Dying Declarations that differ slightly from English law.

• Expectation of death NOT required: Under Indian law, it is NOT necessary that the person was under an expectation of imminent death when making the statement. Even if they thought they would survive, but eventually died of those injuries, the statement is valid.
• Must relate to cause of death: The statement must specifically relate to the circumstances that caused their death, not some random past event.
• Form is immaterial: It can be verbal, written, or even through gestures/nods (if unable to speak). A statement recorded by a Magistrate (often in Question-Answer form) carries the highest weight, but a statement to a doctor or even family members is valid.

⇒Evidentiary Value

A dying declaration is substantive evidence. The Supreme Court has repeatedly held that a person can be convicted solely on the basis of a dying declaration, without any other corroboration, provided the court is satisfied it is true, voluntary, and the deceased was in a fit state of mind.

Generally, the opinions of witnesses are irrelevant. Witnesses must state facts, and the Judge forms the opinion. However, Judges are legal experts, not medical or scientific experts.

⇒When Expert Opinion is Relevant

When the Court has to form an opinion upon a point of:

• Foreign law
• Science or art
• Identity of handwriting
• Identity of finger impressions

...the opinions upon that point of persons specially skilled in such foreign law, science or art, etc., are relevant facts. Such persons are called experts.

Is the judge bound to blindly follow the expert's advice?

• Not Binding: Expert evidence is essentially advisory in nature. The judge is not bound to accept it. The expert must place before the court the data and reasons for their conclusion, so the judge can form an independent judgment.
• Corroboration usually required: It is considered a weak type of evidence (especially handwriting analysis). Courts usually seek independent corroboration before basing a conviction solely on expert testimony.
• Medical vs Eyewitness: A classic conflict. If three eyewitnesses swear they saw A shoot B from a distance, but the medical expert says the bullet wound shows it was a point-blank shot, the court usually prefers the medical evidence (because science doesn't lie, witnesses do) provided the medical evidence completely rules out the eyewitness account.

⇒Opinion as to Handwriting (Sec 47)

You don't always need a forensic expert to identify handwriting. When the Court has to form an opinion as to the person by whom any document was written, the opinion of any person acquainted with the handwriting of the person in question is a relevant fact.

(Acquainted means: someone who has seen that person write, or regularly received letters from them - like a clerk or a spouse).

⇒Opinion on Electronic Signatures (Sec 47A)

When the Court has to form an opinion as to the electronic signature of any person, the opinion of the Certifying Authority which has issued the Electronic Signature Certificate is a relevant fact.

Character refers to a person's general reputation and disposition.

⇒The Rule in Civil Cases

In civil cases, the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him, is irrelevant.

(Example: A sues B for breaching a business contract. A cannot bring witnesses to say "B is a known liar and a bad man, so he probably breached this contract." B's general bad character has nothing to do with whether he breached this specific contract).

⇒The Exception (Section 55)

Character evidence is relevant in civil cases ONLY when character itself affects the amount of damages to be received. (e.g., In a defamation suit, if A's reputation was already terrible before the defamation, A will get lesser damages).

The rules change drastically in criminal law, balancing fairness to the accused with public safety.

⇒Good Character is Relevant (Sec 53)

In criminal proceedings, the fact that the person accused is of a good character is ALWAYS relevant. An accused can bring character witnesses to say "He is a peaceful man, incapable of murder."

⇒Bad Character is IRRELEVANT (Sec 54)

The prosecution CANNOT initially give evidence that the accused has a bad character to prove he committed the crime. You cannot tell the jury "He is a career thief, so he definitely stole this car."

There are three specific exceptions under Section 54 where the prosecution CAN bring up the accused's bad character:

• 1. In Reply: If the accused themselves give evidence of their good character, the "door is opened." The prosecution can now bring evidence of bad character to rebut it.
• 2. Character is in Issue: When the bad character itself is the main fact in issue. (e.g., In proceedings for taking security for good behavior from habitual offenders under CrPC, their habitual bad character is the whole point of the case).
• 3. Previous Conviction: A previous conviction is relevant as evidence of bad character (often used during the sentencing phase to increase punishment).

⇒Rape Cases (Section 53A)

Evidence of the victim's character or previous sexual experience with any person is strictly irrelevant on the issue of consent. (The "She is a woman of loose morals" defense is completely banned).

⇒Summary of Master Concepts

• Dying Declaration (Sec 32): Statement about cause of death by a deceased. Imminent expectation of death not required in India. Can form the sole basis of conviction.
• Expert Opinion (Sec 45): Advisory evidence on science/art/foreign law. Usually requires corroboration against eyewitnesses.
• Civil Character (Sec 52): Irrelevant, except to determine damages (Sec 55).
• Criminal Character (Sec 53-54): Good character always relevant. Bad character irrelevant initially, but becomes relevant if accused claims good character.

⇒University Exam Tips for this Unit (Premium Advice)

• Dying Declaration Requirements: Always mention that under Indian law, unlike English law, the expectation of imminent death is NOT required. Cite the maxim 'Nemo moriturus praesumitur mentiri'.
• Character Evidence Dynamics: Exams love testing the "Bad character in criminal cases" rule. Remember the trigger: Prosecution cannot use it as a sword, but if the defense uses Good Character as a shield, the prosecution can bring Bad Character in reply.
• Section 53A: Highlight this recent amendment regarding rape trials as an important progressive step in evidence law.