DYING DECLARATION

Introduction-

The Bharatiya Sakshya Adhiniyam, 2023, which came into force on 1st
July 2024, replaces the Indian Evidence Act, 1872 to modernize and
streamline evidence law. Evidence law governs the admissibility, relevance,
and evaluation of evidence in legal proceedings, ensuring fair and efficient
trials. It sets rules for what information can be presented in court and how it
should be evaluated to ensure fair trials. The new Act, consisting of 4 parts
and 170 sections, enhances the use of electronic evidence and addresses
the limitations of the 150-year-old colonial-era law.

Dying Declaration
A dying declaration refers to a statement made by a person regarding the
cause or circumstances of their death. It is considered an exception to the
hearsay rule under Section 26(a) of Bharatiya Sakshya Adhiniyam,
2023 (BSA 2023), as courts believe a person facing imminent death is
unlikely to lie.
Illustration of Dying Declaration
If A is attacked and, before dying, he states that "B stabbed me with a knife,"
this statement is admissible in court as a dying declaration
Section 26- Cases in which statement of relevant fact by person who
is dead or cannot be found, etc., is relevant.

Section 26 deals with the admissibility of statements made by certain

persons under specific conditions. The key principle behind this section is
that if a person who has direct knowledge of the case facts is unavailable,
their statement should still be considered as evidence.
Four Conditions for Applicability of Section 26
Under Section 26 BSA 2023, a statement is admissible if it is made by a
person who:
1. Is dead
Example: A murder victim states before dying that "X shot me." This
statement will be relevant under Section 26.
2. Cannot be found
Example: A witness disappears, but they had previously given a written
statement regarding the case. This can be admissible.
3. Has become incapable of giving evidence
 Example: A witness falls into a coma after an accident but had given a
statement before losing consciousness. This can be presented in court.
4. Whose attendance cannot be procured without unreasonable
delay or expenses
Example: A crucial witness is in a war-torn country and cannot attend
court. Their recorded statement may be accepted as evidence
Eight Circumstances Where Statements Are Relevant Under Section
26 (BSA 2023)
Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023) allows
for the admission of statements made by individuals who are dead,
missing, incapable of testifying, or unavailable due to unreasonable
delay or expenses. The section lists eight specific circumstances in which
such statements become legally relevant and admissible as evidence.
1. Statements Relating to the Cause or Circumstances of Death
(Dying Declaration)
When a person makes a statement about how or why they are dying or
were injured, and they later succumb to those injuries, the statement is
admissible in court. This is commonly known as a dying declaration.
Example:
A person who has been stabbed states, “Ramesh attacked me with a knife
while I was walking home.” If this person dies due to the injuries, their
statement can be used as evidence against Ramesh.
2. Statements Made in the Course of Business
Statements made by a person in the ordinary course of their professional
duties or business dealings are admissible, even after their death. This
ensures that important transactions and official records remain valid
evidence.
Example:
A deceased banker had recorded in his ledger, “Rs. 50,000 received from Raj
on March 1, 2023.” If a dispute arises about this transaction, this record
remains admissible in court.
3. Statements Against the Interest of the Maker
When a person makes a statement that is harmful to their own financial,
legal, or personal interests, it is presumed to be truthful and can be used
in court.
Example:
A deceased person had written a note saying, “I borrowed Rs. 1,00,000 from
Suresh and have not repaid him yet.” Even though the person is no longer
alive to confirm this, the statement is admissible because it goes against
their financial interest.
4. Statements Regarding Public Rights, Customs, or General
Interest
If the deceased made a statement about the existence of any public right,
custom, or general-interest matter, and they would reasonably have
known about it, and they made it before any legal dispute arose, that
statement is admissible.
Example:
A village elder, before his death, had declared, “This lake has been used as a
common water source for 100 years.” If a landowner later claims the lake as
private property, the elder’s statement can be used as evidence.
5. Statements Related to Existence of Family Relationship
If the declarant stated the existence of a family relationship (by blood,
marriage, or adoption) between persons, and the declarant had “special
means of knowledge” of that relationship, and the statement was made
before any dispute over that relationship arose, then it is admissible.
Example:
A deceased father had recorded in his diary, “My daughter, Priya, was born
on January 10, 1995.” If a dispute arises over Priya’s age, this diary entry can
serve as legal proof.
6. Statements Related to Existence of Family Relationship
between deceased persons
Statements about relationships between deceased persons when found in
certain family-related documents. Specifically, if the statement is in a will or
deed concerning the family affairs of the deceased, or in a family pedigree,
tombstone inscription, family portrait inscription, or similar family record,
and it was made before any dispute over the relationship, it is relevant.
Example:
A landowner wrote in his property deed, “This house belongs solely to my
son, Rohit.” If someone challenges Rohit’s ownership, the deed’s statement
is admissible evidence.
7. Statements in Documents Relating to Creation of Rights
It permits a statement contained in any deed, will or other document relating
to a transaction specified in clause (a) of Section 11. Section 11(a) deals with
transactions that created certain rights or customs (e.g. a grant creating a
right-of-way or a custom). So, if a statement appears in a document that is
about such a foundational transaction, it can be admitted.
Example:
If there was a deed that originally created a public path, and a deceased
person had written in that deed or a related memo something about the
path, that statement could be used. In essence, this clause allows
statements in older legal documents about how a right or custom began to
be used as evidence of that right or custom.

8. Joint Statements of Feelings/Impressions

If several people made a statement together, expressing their collective
feelings or impressions relevant to the matter, it is admissible.
Example:
Imagine a group of villagers wrote a joint letter or complaint expressing their
collective fear or experience about a local situation (e.g. “We were all
frightened by X’s behavior on that night”); if these signatories are now
unavailable, their shared statement of feeling can be used.
Authorities That Can Record a Dying Declaration
1. A Magistrate (Preferred Choice)
Example: If a person is dying in a hospital, the police should request a
magistrate to record their statement.
2. A Police Officer (If No Magistrate is Available)
Example: In emergency cases, a police officer can record a dying
declaration. However, courts scrutinize such statements carefully to
prevent fabrication.
3. A Doctor (If Victim Is in Critical Condition)
Example: If a patient is dying in an ICU, a doctor can note down their
statement and testify in court.
4. Any Witness (If No Official is Available)
Example: A passerby records a video of a dying victim saying who
attacked them. This video can be used as evidence
Consistent Dying Declarations
A consistent dying declaration occurs when a person makes multiple
statements before their death, and all those statements align with one
another in identifying the accused and the circumstances of the crime.
For example, if a victim, before succumbing to injuries, tells a police officer,
a magistrate, and a doctor that "X attacked me with a knife," and all three
statements remain the same without contradictions, these are considered
consistent dying declarations.
Legal Treatment
Courts generally consider consistent dying declarations highly reliable. If
they are voluntary, truthful, and recorded properly, they can be the
sole basis for conviction even without further corroboration.
Case Reference
In Laxman v. State of Maharashtra (2002) 6 SCC 710, the Supreme
Court held that if a dying declaration is recorded properly, free from
tutoring, coercion, or prompting, and remains consistent, it can be
sufficient for conviction without any further supporting evidence.
Inconsistent Dying Declarations
An inconsistent dying declaration occurs when a victim makes multiple
statements before death, but these statements contradict each other on key
aspects such as the identity of the accused or the manner of the attack.
For example, if a victim first states to a doctor that "X poisoned me" but later
tells the police that "Y poisoned me," the declarations are inconsistent,
creating doubt about the reliability of the statement.
Legal Treatment
When inconsistent dying declarations exist, courts cannot rely solely on
them to convict an accused. Instead, the court must:
 Scrutinize each declaration carefully to determine which one is
more reliable.
 Give more weight to the declaration recorded by a judicial
magistrate as it is presumed to be free from influence.
 Seek corroborative evidence, such as eyewitness testimony,
medical reports, or forensic evidence, to resolve the inconsistencies.
Case Reference
In Munnu Raja v. State of M.P. (1976) 3 SCC 104, the Supreme Court
ruled that if dying declarations are inconsistent, the court must look for
external corroboration before convicting an accused.
Multiple Dying Declarations
A situation arises where a victim makes more than one dying
declaration, which may either be consistent or inconsistent. The
presence of multiple declarations adds complexity to the case, requiring
careful judicial assessment.
Legal Treatment
If multiple dying declarations exist, the court follows these general
principles:
 1. If all declarations are consistent, they strengthen the prosecution’s
case, and conviction can be based solely on them.
2. If there are contradictions, the one recorded by a magistrate or
under proper safeguards is given more weight.
3. If discrepancies are minor, they may not affect admissibility.
However, if they are significant, corroborative evidence is required.
4. If there are severe contradictions with no explanation, the court
may discard the dying declarations altogether.
Case Reference
In Patel Hiralal Joitram v. State of Gujarat (2001) SC, the victim made
multiple statements, initially naming the accused incorrectly and later
clarifying the name. The Supreme Court ruled that minor discrepancies
should not invalidate the declaration if the overall truthfulness
remains intact
Evidentiary Value of Dying Declarations
The evidentiary value of a dying declaration depends on its truthfulness,
voluntary nature, and freedom from external influence. While it is a
significant piece of evidence, courts follow certain guidelines to determine
its weight:
1. A single dying declaration can be enough for conviction if it is
clear, unambiguous, and free from suspicion.
2. The court must ensure the victim was mentally fit while making
the statement. If witnesses testify that the victim was conscious and
aware, their statements override medical opinions.
3. Corroboration is not legally required but preferred, especially in
cases of multiple or inconsistent declarations.
4. If inconsistencies exist, the court may reject the dying declarations
entirely unless supported by strong corroborative evidence.
Case Reference
In Atbir v. Govt (NCT of Delhi), (2010) 9 SCC 1, the Supreme Court laid
down the principle that a dying declaration can be the sole basis for
conviction, provided it is clear, voluntary, and free from external
influences.
Case Laws-
1. In Queen Empress v. Abdullah (1885) ILR 7 All 385, a girl who had
her throat cut was unable to speak but used hand gestures to
identify her attacker. The court ruled that gestures could be
considered a valid dying declaration, as they clearly conveyed the
victim’s intent. This case established that a dying declaration does
 not need to be verbal and can be made through signs or gestures
if they indicate the victim's understanding of the situation.

2. In Pakala Narayana Swami v. Emperor (1939), the deceased told

his wife that he was going to meet the accused to collect money. A
few days later, his body was found in a trunk purchased by the
accused. The Privy Council ruled that a statement does not have to
be made at the moment of death but must relate to the cause or
circumstances leading to death. General expressions of fear or
suspicion are not admissible, but specific statements about the events
resulting in death are valid. This case clarified that a dying
declaration can be made even before death, as long as it is
directly connected to the fatal event.

3. In the Nirbhaya case (Mukesh & Anr v. State for NCT of Delhi,
2020), the victim, a young woman who was brutally assaulted and
later succumbed to her injuries, gave multiple dying declarations
detailing the attack and identifying the accused. Her statements were
recorded by a sub-divisional magistrate, a doctor, and police
officers, and remained consistent throughout. The Supreme Court
upheld the validity of these dying declarations, emphasizing that they
were made voluntarily, without coercion, and in a fit state of
mind. The court ruled that a consistent, clear, and credible dying
declaration can be the sole basis for conviction, leading to the
death penalty for the accused. This case reaffirmed the principle that
dying declarations hold strong evidentiary value if recorded
properly and free from doubt
Section 27: Relevancy of certain evidence for proving , in
subsequent proceeding, truth of facts therein stated
If a witness already testified under oath (or before an authorized official) in
an earlier trial or hearing, that recorded testimony can be used again later
(or in a subsequent trial) to prove the same facts if the witness cannot
testify now. This exception applies only when one of the following
makes the witness unavailable: the witness is dead, missing, mentally or
physically incapable, wrongfully kept away by the party against whom the
testimony is offered, or would require unreasonable delay/expense to
procure. The rationale is that the witness’s earlier testimony can be treated
as reliable evidence because the opposing side had a fair chance to
cross-examine at that earlier time.
 Three key conditions (from the proviso) must also be met for Section 27 to
operate:
 Same parties: The earlier proceeding and the current one must involve the
same parties (or their legal representatives).
 Right to cross-examine: The party against whom the evidence is now used
must have had a full opportunity to cross-examine the witness in the prior
proceeding.
 Same issues: The points or questions in dispute must be substantially the
same in both proceedings.
If these conditions are satisfied, the earlier testimony is admissible to prove
the truth of the facts it contains. The Explanation clarifies that in criminal
cases the “parties” are the prosecutor and accused, so Sec.27 applies
whenever a witness’s prior testimony is being used for or against the
accused in the same case.