Dying declaration

 Sec 32 (1) of Indian evidence Act  1872  now restructured in sec 26 of BSA 2023

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 in to question , such statement 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 proceeding in which the cause of his death comes in to question 

Corpus Juris Secundum vol XL page 1283 & American jurist also interpret weighting of dying declaration in what circumstances under which they were made , whether it was outside influence ,sprit of  revenge , deceased not cross examined  ,under  expectation of death or not , these are the questions raised for the cause of death 

The principle on which dying declaration is admitted in evidence “ 

Statement having truth ness and also said voluntarily are the factors for making conviction by court 

Hon’ ble supreme court in his judgement  2023 INSC 758 Irphan @ Naka v state of UP explained that there is no hard & fast rule for determining when a dying declaration should be accepted the duty of court is to decide this question of  in the facts and surrounding and be fully convinced of the truthfulness of the same 

Certain factors considered to determination , however they will only affect the weight of dying declaration and not its admissibility

1) whether the person making them was or statement was in expectation of death ?

7)

2) whether the dying declaration was made at the earliest opportunity ?

3! Whether there is any reasonable suspicion to believe the dying declaration as put in the mouth of the dying person ?

4)whether there is any dying declaration was a product of prompting , tutoring or leading at the instance of police or any interested party ?

5) whether the statement was not recorded properly ?

6! Whether there is any dying declarant  had opportunity to clearly observe the incident ?

7) whether there is any dying declaration has been consistent throughout ?

8) whether there dying declaration in itself is a manifestation of/ fiction of the dying persons imagination of what he thinks transpired ?

9) whether the dying declaration was itself voluntary ?

10) in case of multiple dying declarations , whether there is any first one inspires truth and consistent with the other dying declaration was a?

11) whether as per the injuries it would have been impossible for the deceased to make a dying declaration ?

Supreme Court in this judgement further relied the reported judgement title Sujt Biswas v state of Assam (2013)12,SCC 406 in which it was held that :

The court has a duty to ensure that mere conjunctures or suspicion don't take place of legal proof 

The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand , then the benefit of doubt must be given to accused keeping in mind that a reasonable doubt is not an imaginary , trivial or merely probable doubt but a fair doubt based upon reason and common sense 

To Think & To understand

 These phrases have immense effect upon our life , Our life rounds between two phrases and we spend our life to understand the real things 

In our Hindu joint family our relations are so interrelated some time we surrender our emotions and even rights for the pious tie of joint family 

The principle to think and to understand applies in our every  area of life , this principle is not related to our joint family only  but it applies in each and every step we proceed in our daily life 

Our logics are some related to principles and some are  very practical   Some time our logics are tried by courts and the battle comes in last when we take last breath of judgement of final court 

This process to think and to understand is time consuming but it gives a satisfaction when resolved by the principle of understanding 

The gap between to think and to understand resolved some time by our mutual consent and this is a principle where we surrender our logics for the shake of solution of “To understand “

Many battles in our history was fought for securing the result between to think and to understand the universal concept of justice 

Maintainability of suit against sarfaesi proceedings

 A civil suit  was filed by plaintiff third party smt  Prabha jain against Sarfaesi proceedings  initiated by central bank of india 

central bank filed application under order 7 rule 11 of CPC claiming suit is barred under section  17 of the sarfacie act and appeal is the only remedy to DRT 

Trial court rejected application under order 7 rule 11 and bank went to high court against rejection of application &  high court accepted the appeal of central Bank and held  that trial court has no jurisdiction to try the case and  accepted appeal of bank

The matter went in Supreme Court by respondent / original plaintiff and Supreme Court observed the relief prayed in suit and documents pertaining to and  concluded that suit is maintainable as the sale deed and mortgage deed was executed without making partition of share in property and prayer in suit was prayed of document of sale to be declared  nullity and sec 17 of Sarfaesi act does not oust the jurisdiction of “ any  person” The question of validity of sale deed can not be decided by DRT The only argument posed by bank  that under sec 34 of Sarfaesi civil court has no jurisdiction to try the suit The jurisdiction to declare sale deed or a mortgage deed illegal is vested with civil court under sec 9 of cpc 

DRT can never have the jurisdiction to decide such civil disputes of title between a third party & borrower 

Number of appeals of Banks were also decided by common judgement where matter of adoption in title were involved and Supreme Court dismissed these appeals of bank and order of high court of Madhya Pradesh was set aside 

This was in essence  in reported case title  central Bank of India & ors v/s  Prabha jain & ors  civil appeal number 1876 of 2016 judgement delivered on dt 09/01/2025 

Rules inconsistencies to Act

 Supreme Court ordered in appeal  of dismissed writ  filed in high court , that particular rule framed in statue if is inconsistent to provisions of act , to be declared ultra virus and accepted appeal  This was held in civil appeal number 3954/2025! K Gopi v/s The sub registrar & ors  decided on 07/04/2025 

High court relied upon rule 55A(I) and dismissed writ Supreme Court found that rule making power under section  69 can not be exercised to make a rule inconsistent to registration act 1908 and declared rule 55A(I) to be ultra virus and accepted appeal