Declaration..
Querist :
Anonymous
(Querist) 23 August 2011
This query is : Resolved
I want to file a suit declaration of civil death(death declaration)?? Under which provision of civil law am i suppose to file the said suit??? what should be the cause of action of the said suit?? who will be necessary/formal party to the said suit???
reply awaited....
Advocate Rajkumarlaxman
(Expert) 24 August 2011
Dying declaration is bases on the maxim
“Nemo moriturus praesumitur mentire” i.e. a man
will not meet his maker with a lie in his mouth.
Hearsay evidences are not given any weightage in
the courts because the person who is giving this
evidence is not telling his experiences but that of
another person and who cannot be cross examined
to verify the facts. Dying declaration is an exception
to this rule because if this evidence is not
considered very purpose of the justice will be
forfeited in certain situations when there may not
be any other witness to the crime except the person
who has since died. Sometimes it the best evidence
in such situations. Its admissibility is explained in
the section 32 (1) of Indian Evidence Act. According
to this section when the statement is made by a
person as to the cause of his death, or 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 this was expecting death or not [1]. In English
law he must be under expectation of death only
then this declaration is valid. This declaration is valid
both in civil and criminal cases whenever the cause
of death comes into question.
If we read the various judgments on the
admissibility of dying declaration at times various
judges have taken diagonally opposite views and
different explanations have been offered though the
motive in all have been to provide justice to the
people. Main thing is that if these declarations seem
trustworthy to courts these retain their full values.
Most important point of consideration is that
victim was in a fit condition of mind to give the
statement when recording was started and
remained in fit condition of mind till the recording of
the statement finished. Merely stating that patient
was fit will not serve the purpose. This can be best
certified by the doctor who knows best about the
condition of the patient. But even in conditions
where it was not possible to take fitness from the
doctor, dying declarations have retained their full
sanctity if there are other witnesses to testify that
victim was in such a condition of the mind which
did not prevent him from making statement. Medical
opinion cannot wipe out the direct testimony of the
eyewitness stating that the deceased was in fit and
conscious state to make the dying declaration. [2]
Second most important point to be
considered is that it should not be under the
influence of any body or prepared by prompting,
tutoring or imagination. Even if any one of these
points is proved then dying declaration is not
considered valid. If it becomes suspicious then it
will need corroboration.
If a person has made more than one dying
declarations and if these are not at variance with
each other in essence they retain their full value. If
these declarations are contradictory than these
lose value.
Best form of dying declaration is in the form
of questions and answers. If it is in the form of
narrations it is still good because nothing is being
prompted and every thing is coming as such from
the mind of the person making it. If a person is not
capable of speaking or writing he can make a
gesture in the form of yes or no by nodding and
even such type of declaration is valid. Whenever
this is being recorded in the form of questions and
answers precaution should be taken that exactly
25
JIAFM, 2004; 26(1). ISSN 0971-0973
what questions are asked and what
answers are given by the patient those should be
written. It is preferred that it should be written in the
vernacular which the patient understands and
speaks.
It is best that it is recorded by the magistrate
but if there is no time to call the magistrate due to
the deteriorating condition of the victim it can be
recorded by anybody e.g. public servant like doctor
or any other person. Courts discourage the
recording of dying declaration by the police officers
but if there is no body else to record it dying
declarations written by the police officers are also
considered by the courts. If these are not recorded
by the magistrate it is better that signatures of the
witnesses are taken who are present at the time of
recording it.
In burn cases usually it is debated the
person is not capable of making dying declaration
due to the effect of burns or due to the narcotic
sedation given to treat burns. But Gupta and Jani
have opined that neither effect due to burns nor the
drugs used to treat burns victims conventionally
affects the higher functions. Therefore they safely
concluded that compos mentis is not affected either
by burns or by its treatment [3].
If the person making it is imbecile or is of tender
age and was incompetent to testify due to this reason,
that dying declaration would not be valid [4]
As a measure of safety original dying
declaration should be sent to the court like FIR and
its Photostat should be kept in the case file [5].
It does not matter that the person has put a
thumb impression or signed it if this is duly
witnessed. But in the court question does arise if a
person who can sign puts a thumb impression. If a
literate person putting the thumb impression is in
such a condition that he cannot sign e.g. he was
lying in the bed and could not get up to sign it or it
was inconvenient for him to put thumb impression
due to his condition (intravenous drip on the back
of hand) or injury e.g. injury on the right hand in a
right handed person. In the absence of such
conditions if there is thumb impression and this is
not witnessed by disinterested persons a doubt may
be created whether this was done after the person
died to take revenge by some interested person.
There is usually no time limit that dying
declaration becomes invalid if the person died after
many months after making the declaration. Cases
are on record when it was considered valid after 4
months.
Even the HISTORY given by the injured
recorded by the doctor in the case file has been
considered as dying declaration by the honorable
Court if it is mentioned that the patient told in the
history that incident occurred in such and such
manner which was responsible for the death of the
victim [6]. Hence it is important that if such history
is written as narrated by the victim it should be
recorded carefully, keeping in mind the mentioned
finding of the court.
First information report got recorded by the
police has been taken as dying declaration by the
honorable Supreme Court, when the person did not
survive to get his dying declaration recorded [7].
But when patient remained admitted in hospital for
sufficient days i.e. for 8 days FIR cannot be treated
as dying declaration [8].
A suicidal note written found in the clothes
of the deceased it is in the nature of dying
declaration and is admissible in evidence under
section 32 of Indian Evidence Act [9].
CONCLUSIONS
Keeping in view the above mentioned
opinions of various courts it is suggested that
whenever dying declaration is to be recorded it
should be recorded very carefully keeping in mind
the sanctity which the courts attach to this piece of
evidence. It retains its full value if it can justify that
victim could identify the assailant, version narrated
by victim is intrinsically sound and accords with
probabilities and any material evidence is not
proved wrong by any other reliable evidence. [10].
it is perfectly permissible to reject a part of dying
declaration if it is found to be untrue and if it can be
separated [11]. Conviction can be based on it
without corroboration if it is true and voluntary. Dying
declaration becomes unreliable if it is not as per
prosecution version [12]. This has been summed
up the Supreme Court:
1. It is for the court to see that dying declaration
inspires full confidence as the maker of the
dying declaration is not available for cross
examination
2. Court should satisfy that there was no possibility
of tutoring or prompting.
3. Certificate of the doctor should mention that
victim was in a fit state of mind. Magistrate
recording his own satisfaction about the fit
26
JIAFM, 2004; 26(1). ISSN 0971-0973
mental condition of the declarant was not
acceptable especially if the doctor was
available.
4. Dying declaration should be recorded by the
executive magistrate and police officer to record
the dying declaration only if condition of the
deceased was so precarious that no other
alternative was left.
5. Dying declaration may be in the form of
questions and answers and answers being
written in the words of the person making the
declaration. But court cannot be too technical.
BIBLIOGRAPHY
1. Indian Evidence Act, 1872, Criminal Manual.
14th ed. Lucknow: Eastern Book Company,
2003: p15
2. N Ram v. State. AIR 1988 SC 912: 1988 Cri LJ
1485
3. Gupta BD, Jani CB. Status of compos mentis
in relation to dying declaration in burn patients.
JIAFM. 2004; 25(4):133 – 136
4. R v. Pike. C & P.1829; 3: 598
5. State of Karnataka v. Shivalingappa, 2001 (4)
RCR(Criminal) 237 (Karnataka) (DB)
6. State of Karnataka v. Shariff 2003CAR 219-228,
(SC)
7. AIR 1976 2199 (SC)
8. State of Punjab v. Kikar Singh, 2002 (30 RCR
(Criminal) 568 (P & H) (DB)
9. State v. Maregowda, 2002 (1) RCR (Criminal)
376 (Karnataka) (DB)
10. State of Gujarat v. Rabri Pancha Punja. Cri LJ.
1981;NOC: 171 (Guj)
11. Nand Kumar v. state of Maharastra. Cri LJ 1988;
1313
12. State of UP v. Madan Mohan. AIR 1989 SC
1519:1989 Cri LJ 1485h
Advocate Rajkumarlaxman
(Expert) 24 August 2011
One of our expert has givven details in this regard i have reprinted for your reference
“the accused shall be set free” !
Reasoning:
A. The Hon’ble Apex Court has held in several cases that there is no bar for basing conviction solely on the Dying Declaration but the same should be tested about the voluntaries and truthfulness.
The Hon’ble Apex Court in P.Mani vs. State of T.N. reported in (2006) 3 SCC 161 has held as follows :
Section 32 of the Evidence Act, 1872 – Dying Declaration – Must be wholly reliable – In case of suspicion, the Court should seek corroboration – If evidence shows that statement of deceased is not wholly true it can be treated only as a piece of evidence but conviction cannot be based solely upon it.
It is further held in the very same decision that,
“Indisputably conviction can be recorded on the basis of the dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, if may be considered only as piece of evidence in which event conviction may not be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them.”
A leading and landmark decision rendered by a five-Judge Bench of the Hon’ble Apex Court in respect of Dying Declaration is Laxman V. State of Maharashtra (2002 SCC (Cri.) 1491) in which the Hon'ble Apex Court has held as follows :
“3. … The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. …. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
4. …..
5. …. It is indeed a hyper technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. ….”
In a decision in Amol Singh V. State of M.P. (2002 (5) SCC 468 that Hon’ble Apex Court has held as follows:
“S.32(1) of the Evidence Act, 1872 – Dying Declaration – Evidentiary value – Multiple dying declarations – Inconsistencies – Discrepancies in the last dying declaration making it doubtful – Held, it would not be safe to convict the appellant – Penal Code, 1860, Ss.302 and 34.
Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If there are more than one dying declaration they should be consistent. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.
On facts, it would be unsafe to convict the appellant. The discrepancies make the last declaration doubtful. The nature of the inconsistencies is such that they are certainly material. The High Court had itself observed that the dying declaration (Ex.t.P-11) scribed by the Executive Magistrate (PW 9) at about 0435 hours in the same night was not in conformity with the FIR and the earlier dying declaration (Ext.P-3) scribed by ASI, B (PW 8) insofar as different motives have been described. That is not only variation. There are several other discrepancies, even as regards the manner in which she is supposed to have been sprinkled with kerosene and thereafter set fire on her.”
Section 32 – Dying Declaration – Recorded in translated version – Reliability – Declaration made by deceased in Telugu – translated by the duty doctor in Tamil and recorded by the Magistrate in Tamil – Statement so recorded was read over and explained by doctor to deceased – Deceased admitted it to be correct – As regards translation none was cross examined – No material to show that it was a result of tutoring – Declaration corroborated by evidence of sister-in-law of deceased – is trustworthy and credible – Ravi Kumar alias Kutti Ravi vs. State of Tamil Nadu - 2006 AIR SCW 1037.
Section 32 – Dying Declaration – Contradiction with accident register – Declaration stating that accused put deceased on fire – Case of suicide, however, recorded in accident register – Doctor who made entry, however, explained that entry was so made on presumption since cause of injuries was not informed to him at that time – Evidence of doctor clear and unambiguous – Defence case of suicide cannot be accepted on face of two dying declarations recorded by Magistrate and Police Constable and their clear evidence – Ravi Kumar alias Kutti ravi vs. State of tamil Nadu - 2006 AIR SCW 1037.
Section 32 – Dying Declaration – Deceased was assaulted by accused with sword, axe etc. – Presence or non presence of eye-witness or non-mentioning of name of said eye-witness in dying declaration – Has no connection with ascertainment of veracity and creditworthiness of dying declaration – Thus disbelieving dying declaration of deceased recorded by doctor on ground that deceased did not mention presence of eye-witness in dying declaration – Not proper – Heeralal Yadav vs. State of M.P. - 2006 AIR SCW 3425.
Section 32 – Dying declaration – Recording of – Only because a dying declaration was not recorded by a Magistrate – Same by itself may not be a ground to disbelieve entire prosecution case –Balbir Singh vs. State of Punjab - 2006 AIR SCW 4950 (A).
Section 32 – Dying declaration – Reliability – possibility of deceased becoming instantaneously unconscious – Expressed by doctor conducting post mortem – No ground to disbelieve dying declaration – There is a difference between something possible and something possible or certain – More so, when dying declaration was recorded before deceased reached hospital – Gangaram Shantaram Salunkhe vs. State of Maharashtra - 2006 AIR SCW 5918 (A).
Section 32 – Multiple dying declarations – Reliability – Accused was named in all dying declarations as per who poured kerosene on deceased and set him on fire – Dying Declarations though more than one not contradictory to and inconsistent with each other – Evidence of witnesses corroborating dying declarations – reliance can be placed on such dying declarations – Vimal vs. State of Maharashtra - 2006 AIR SCW 5953.
Section 32 – Dying Declaration – Conviction can indisputably be based on a dying declaration but before it cannot be acted upon, the same held to have been rendered voluntarily and truthfully – Consistency in the dying declaration is the relevant factor for placing full reliance thereupon – Mehiboobsab Abbasafi Nadaf vs. State of Karnataka – 2007 (5) Supreme 713.
The Hon’ble Apex Court in Samadhan Dhudka Koli V. State of Maharashtra reported in 2008 (8) Supreme 719 has held that,
“16. Consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record.”
The Hon'ble Apex Court in Kalawati W/o, Devaji Dhote vs. State of Maharashtra 2009(1) Supreme 800 has held that, in respect of the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben vs. State of Gujarat (AIR 1992 SC 1817):
i. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [Munnu Raja and another vs. The State of Madhya Pradesh (1976) 2 SCR 673)].
ii. If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [State of Uttar Pradesh vs. Ram Sagar Yadav and Others AIR 1985 SC 416 and Ramavati Devi vs. State of Bihar AIR 1983 SC 164].
iii. The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased has an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [ K. Ramachandra Reddy and another vs. The Public Prosecutor (AIR 1976 SC 1994)].
iv. Where the dying declarati0on is suspicious, it should not be acted upon without corroborative evidence. [Rasheed Beg vs. State of Madhya Pradesh (1974 (4) SCC 264)].
v. Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. [ Kala Singh vs. State of M.P. (AIR 1982 SC 1021)].
vi. A dying declaration which suffers from infirmity cannot form the basis of conviction. [ Ram Manorath and others vs. State of U.P. (1981 (2) SCC 654)].
vii. Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [State of Maharashtra vs. Krishnamurthi Laxmipati Naidu (AIR 1981 SC 617)].
viii. Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [Srajdeo Oza and Others vs. State of Bihar ( AIR 1979 SC 1505)].
ix. Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declatation looks up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [ Nanahau Ram and another vs. State of Madhya Pradesh (AIR 1988 SC 912)}.
x. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [State of U.P. vs. madam Mohan and others (AIR 1989 SC 1519)].
xi. Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted [ Mohanlal Gangaram Gehani vs. State of Maharashtra (AIR 1982 SC 839) and Mohan Lal and others vs. State of Haryana (2007) (9) SCC 151)].
B. Samadhan Dhudaka Koli vs. State of Maharashtra 2008 (8) Supreme 719 – when a contradictory and inconsistent stand is taken by deceased in different dying declarations they should not be accepted on their face value.
Evidence – Appreciation of – Prosecution can solely based on the circumstantial evidence – Principles of appreciation of circumstances from which the conclusion of guilt can be drawn.
In Sarbir Singh vs. State of Punjab – 1993 Supp (3) SCC 41 it was held as follows :
"It is said that men lie but circumstances do not. Under the circumstances prevailing in the society today, it is not true in many cases. Sometimes the circumstances which are sought to be proved against the accused for purpose of establishing the charge are planted by the elements hostile to the accused who find out witnesses to fill up the gaps in the chain of circumstances. In Countries having sophisticated modes of investigation, every trace left behind by the culprit can be followed and pursued immediately. Unfortunately it is not available in many parts of this country. That is why the Courts have insisted
I. The circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established;
II. All the facts so established should be consistent only with the hypothesis of the guilt of the accused and should be such as to exclude every hypothesis but the one sought to be proved;
III. The circumstances should be of a conclusive nature;
IV. The chain of evidence should not have any reasonable ground for a conclusion consistent with the innocence of the accused.
In Padala Veera Reddy v. State of A.P. [1989 Supp (2) Supreme 706], the Hon’ble Apex Court laid down the principle that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
The Hon’ble Apex Court in Chattar Singh and Anr. V. State of Haryana reported in 2008 (8) Supreme 178 has held that,
"10. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh (AIR 1952 SC 343), wherein it was observed thus:
“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”
The Hon’ble Apex Court re-iterated the above principles in Baldev Singh V. State of Haryana reported in 2008 (8) Supreme 544.
C. Appreciation of – Not to cull out one circumstance from rest:-
Circumstantial evidence – Appreciation of – Court should not cull out one circumstance from the rest to give a different meaning to it – Gade Lakshmi Mangraju alias Ramesh vs. State of Andhra Pradesh – AIR 2001 SC 2677.
D. Hypothesis of the guilt:-
Circumstantial Evidence – Appreciation of – Circumstances must be consistent with the hypothesis of the guilt of the accused and totally inconsistent with his innocence – Circumstances from which the conclusion of guilt is to be drawn should be fully proved and circumstances must be conclusive in nature to connect the accused with the crime. Court should not get swayed by emotional considerations - Balwinder Singh vs. State of Punjab – AIR 1996 SC 607.
E. Conditions for reliance:-
Conditions for reliance – Tests to be satisfied before convicting an accused on the basis of circumstantial evidence.
The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence – Gambhir vs. State of Maharashtra – AIR 1982 SC 1157.
Missing link to connect the accused – Non explanation of the accused as to what happened on the fateful night – section 313 statement – Chain of circumstances completed – Witness may lie, Circumstances will not – Joseph vs. State of Kerala – (2000) SCC (Cri) 926.
Circumstantial Evidence – Evidence must be compete and incapable of explanation on any other hypothesis except that of the guilt of the accused – Reddy Sampath Kumar vs. State of A.P. – (2005) 7 SCC 603.
Circumstantial Evidence –Last seen theory itself sufficient to connect the accused in the absence of any other links in the chain of circumstantial evidence – Jaswant Gir vs. State of Punjab – (2005) 12 SCC 438.
Circumstantial Evidence – Bride burning – All the circumstances must conclusively established – If there is any break in the link of chain, accused entitled for the benefit of doubt – Sarojini vs. State of M.P. – 1993 Supp (4) SCC 632.
Further:
F. The Hon'ble Apex Court in Rang Bahadur Singh V. State of U.P. reported in AIR 2000 SC 1209 has held as follows:
“The time-tested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits.”
In yet another decision in State of U.P. V. Ram Veer Singh and Another reported in 2007 (6) Supreme 164 the Hon'ble Apex Court has held as follows:
"The golden thread which runs through the web of administration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."
R.Ramachandran
(Expert) 24 August 2011
Dear Mr. Rajkumar,
I am afraid, you have given answer in regard to "Dying Declaration" while the question relates to Civil declaration of Death.
Dear Anonymous: Please indicate the exact fact situation in which you want to get the "Declaration".
Querist :
Anonymous
(Querist) 24 August 2011
Ramchandran sir... LIC has asked me to produce a court decree of civil declaration of death.. my question was who shall be parties and why?? what should be the cause of action in the said suit..??
R.Ramachandran
(Expert) 24 August 2011
In which facts and circumstances the LIC asked you to produce the decree of civil declaration of death?
prabhakar singh
(Expert) 24 August 2011
Mr.R.Ramchandran your prob is right but the questioner has not returned back,hence i prefer to proceed with reply on presumption that some one who was insured by lic is missing for which a death benefit against the missing insured is being claimed and lic is asking a court decree.
there may be situations where the exact time and manner of death of a person cannot be ascertained or known. Say for example, a person suddenly disappears and his whereabouts are not known thereafter, despite reasonable efforts of his near and dear relatives or people who ought to have known about his existence in the normal course had he been alive.
In such a situation, the question arises as to when the nominees of the missing insured can lay a claim to the benefits of the policies and what their obligations are. Are they bound to continue to pay premium? If so how long are they bound to make payment, and when does the law presume the death of such an insured?
Now to author : Anonymous!
your desired suit would be filed under section 108 Indian Evidence Act.
All those including lic from whom some right accruing to heirs must be made parties,better even if union and stae are also arrayed as party,as though may not be necessary,but would be proper parties but before they are arrayed they need to be served with a notice u/s 80 of C.P.C.
Fortunately i have a case dealt with by apex court between LIC of India v/s Anuradha.If I summarized the law laid down
then one may find following points:
1. After the lapse of seven years, ONLY and only death could be presumed by the court.
2. There is no presumption of the time of death under Section 108 of Indian Evidence Act, 1872.
3. Time of death has to be proved by independent evidence.
4. The Claimant in order to successfully maintain the claim in such cases, has to continue to pay premium till the claim is made, failure to payment of premium shall lead to lapse of policy and disentitle the nominee or the Claimant to pay the entire amount payable under the policy.
Querist :
Anonymous
(Querist) 24 August 2011
the person in whose name the policy is absconding and his whereabouts are not known since 7 years...
prabhakar singh
(Expert) 24 August 2011
i anticipated and have already advised you with law laid down by APEX COURT very relevant for you.He is not absconding rather he has left without address and has not been heard of or seen by persons who would have naturally in his contact,one way or the other, had he been alive.
an absconder is one escapes after committing an offence.
