Dying Declaration Under Section 26(a) of Bharatiya Sakshya Adhiniyam (BSA) – Meaning, Essentials & Case Laws

Section 26 deals with statements made by persons who cannot be called as witnesses for one reason or the other as mentioned in the section. Consequently, Section 26 is an exception to the hearsay rule as the opposite party has no opportunity to cross-examine the person who made the statement.

It is based on the rule of necessity arising out of the non availability of the particular persons as witnesses.

It refers to four cases of persons who are unavailable to appear as witnesses and they are :

1. The dead person
2. Persons not found
3. Persons incapable of giving evidence
4. Persons whose attendance cannot be procured without unreasonable delay and expense.

Dying Declaration

A dying declaration is a declaration made by a person as to the cause of his death or as to any of the circumstances, which resulted in his death. A dying declaration is provable under Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023.

Reasons for the admissibility of dying declaration:

• Necessity - The victim being the sole witness of the crime that has been perpetrated against him; excluding this evidence would defeat the end of justice.
• Nemo moriturus Praesumitur Mentire - A person who is about to die would not lie. It is thought that one who believes himself about to die has lost all motive for falsehood.

When dying declaration is relevant

As per Sec 26(a), dying declaration is relevant in cases in which the cause of that person's death comes into question whatever may be the nature of proceeding (Civil or Criminal).

Under English law the cause of the death must be called in question in criminal cases relating to homicide, i.e., murder and manslaughter only. Section 26(a) makes a clear departure from English law by providing that the dying declaration would be relevant "whatever may be the nature of the proceeding in which the cause of his death comes into question". Thus, section 26(a) could be pressed into service in a civil as well as in a criminal proceeding provided that the cause of the death came into question in that proceeding.

Though cause of death in most cases comes into question in criminal cases, it can come into question in civil cases as well. For examples :

• In a civil suit concerning the inheritance of a deceased person's property under Hindu Law, the cause of death may be in question, particularly when there are allegations that one of the heirs was responsible for the deceased’s murder. This is because, under Section 25 of the Hindu Succession Act, 1956, a person who commits the murder of the deceased is disqualified from inheriting their property.
• In a suit for claiming life insurance, the cause of death of the insured may be in question, especially when there is doubt about whether the death was due to suicide or the negligence of the deceased. This is important because, in such cases, the insurance company may deny the claim, as most life insurance policies exclude coverage for deaths resulting from suicide or intentional negligence.

Is it necessary for the admissibility of dying declaration that it was made under expectation of death?

Under English law, expectation of death is necessary for the admissibility of dying declaration.

Under Section 26(a), for the admissibility of dying declaration, it is irrelevant whether the person making the statement was under expectation of death or not at the time of making the statement.

In State v Kanchan (1954), SC held that though the expectation of the death does not affect the relevancy of dying declaration but it will certainly affect the weight attached to the declaration. If the person making the declaration is conscious that he is dying soon the possibility to speak the truth is very great.

Conditions to be satisfied for the admissibility of dying declaration:

1. Person making the statement must have died.
2. There must be a statement of the deceased either verbal or written.
3. The person must have died due to injuries received in the incident.
4. Statement must relate to :
   • cause of his death, or
   • circumstances of transaction which resulted in his death.
5. The statement must be complete.

Person making the statement must have died

If the person is able to survive after making a declaration, then such a declaration would not be admissible under Section 26(a) as a dying declaration, it is merely admissible under section 160 as corroborative evidence.

Statement of the deceased must be either verbal or written

Use of the term "verbal" and not "oral" in S. 26 (a) has given rise to conflict of judicial opinion as to whether "verbal" means "oral" i.e words spoken by mouth or something more.

In Queen Empress v. Abdullah (1885), Court held that if the term used in section were "Oral", it might be that the statement must be confined to words spoken by the mouth. But the meaning of "verbal" is something wider, it is not necessary that the words should be spoken only, it can be made through sign or gesture.

In Laxman v. Maharashtra (2002), SC held that "a dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will be sufficient provided the indication is positive and definite.”

The person must have died due to injuries received in the incident

The deceased must be proved to have died as a result of injuries received in the incident. In Moti Singh v State of UP (1964), the deceased made a statement shortly after an injury, and he was admitted in hospital and thereafter discharged, but after 5 days he died of high fever, the statement made by him in respect to the injuries inflicted upon him was not admissible as a dying declaration.

Statement must relate to cause of his death or any of the circumstances of transaction which resulted in his death

“His death”

Under section 26 (a) the statement must relate to the cause of the death of the declarant and not somebody else's death because the section refers to the cause of "his' death, i.e., the declarant's death.

In Ratan Gond v State of Bihar (1959), two sisters, Baisakhi and Aghani went to the nearby forest to pluck wild berries. The accused attacked them and beheaded Baisakhi. Aghani who survived the attack went home and made a statement to her mother and also others about the cause of the death of Baisakhi. Aghani died within a few months even before her statement could be recorded by the Court. Question before the SC was whether Aghani’s statement could be treated as a dying declaration. SC observed that the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death; on the contrary, the statements relate to the death of her sister. Therefore it was not admissible as a dying declaration.

In the landmark case of Tejram Patil v. State of Maharashtra (2015), the Supreme Court made a significant observation regarding dying declarations. In this case, the accused husband set his wife on fire by pouring kerosene on her. The wife’s mother attempted to save her and, in the process, sustained burn injuries herself. Both were taken to the hospital, where the wife was declared dead, and the mother died three days later due to her injuries.

Before her death, the mother gave a statement describing the incident. This statement was sought to be admitted as a dying declaration not only on her own behalf, but also as a statement relating to the death of her daughter.

The Supreme Court held that a dying declaration is admissible not only with respect to the cause of death of the person making it, but also with respect to the circumstances of the transaction that resulted in their death. Moreover, if those circumstances are closely and integrally connected to the death of another person, the statement does not become inadmissible merely because it also relates to that other death.

This decision affirms that when the deaths are part of the same transaction, a dying declaration can serve a dual evidentiary purpose.

"Circumstances of the transaction which resulted in his death”

The expression "any of the circumstances of the transaction which resulted in his death" are wider in scope than the expression "cause of death." A statement not relating to the cause of death of its maker may be admissible if it relates to the circumstances of the transaction which resulted in his death.

In Pakala Narayana Swami v Emperor (1939), the victim received a letter asking him to come to the debtor's village to receive money due to him. He showed the letter to his wife and stated that he is going to receive payment for the dues. Two days after the victim left his home, his mutilated dead body was found in the trunk in a railway coach. The question in this case was whether the statement made by the victim to his wife that he received the letter and that he was going to collect the money from debtor was admissible in evidence as the dying declaration of the deceased.

Their Lordships of the Privy Council held that this statement related to the circumstances of the transaction which resulted in his death and so it was relevant as a dying declaration. They also held that the statement made by the deceased that he was proceeding to the spot where he was killed or as to his reason for proceeding or that he was going to meet a particular person or that he had been invited by such person to meet him would each of them be circumstances of the transaction. Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in death of the declarant. In the present case the deceased was murdered and his body was found in a trunk proved to be brought on behalf of the accused who had invited him to receive the due money. In such circumstances the statement given to the wife before leaving the house clearly appears to be a statement as of some of the circumstances of the transaction which resulted in his death.

In Sharda Birdhichand Sharda v State of Maharashtra (1984), SC held that statement must have a proximate relation to the circumstances of transaction which resulted in one’s death and proximity depends upon facts and circumstances of each case. The statements made before a person has received any injury or before the cause of death has arisen or before the deceased has any reason to anticipate of being killed are relevant as dying declarations, but such statements should have a direct relation to the cause or occasion of death.

In this case, a married woman had been writing to her parents and other relatives about her ill treatment at the hands of her in-laws. She lost her life by suicide four months later. Her letters were held to be admissible as dying declarations. The whole affair, ill-treatment and subsequent suicide, being all one transaction, consequently the statement of the deceased was admissible as a dying declaration.

In Rattan Singh v State of HP (1996), the SC held that if the said statement had been made when the deceased was under expectation of death it becomes a dying declaration in evidence after his death. Nonetheless, even if he was nowhere near expectation of death, still the statement would become admissible as a dying declaration, provided it satisfies one of the two conditions i.e either such statements should relate to the cause of his death or it should relate to any of the circumstances of transaction which resulted in his death.

The Statement must be complete

Where the declarant collapses even before completing the declaration then such incomplete declaration cannot be accepted in evidence. Suppose the declarant says:

“A attacked me with a knife and caused grievous injury because …”

and dies. This statement is patently incomplete because, maybe, the declarant wanted to add that he attacked the assailant first or that he was caught in a compromising position with the assailant's wife. In the former case it would be no offence as the assailant was acting in selfdefense and, in the latter case, it could be culpable homicide not amounting to murder.

In Abdul Sattar v. State of Mysore (1956), the court held that though the dying declaration is incomplete, but if it had unmistakably pointed out the guilt of the accused, it can be made admissible. In this case the dying declaration was: “I was going home. When I came near the house of Abdul Majid, Sattar shot me from the bush. He ran away, I saw….”. Though the deceased wanted to say something more, he had already pointed out the guilt of the accused. Therefore, the statement was treated as a dying declaration.

Multiple Dying Declaration

When there are multiple dying declarations, the court applies a set of judicial principles to determine their evidentiary value. There is no absolute rule that one dying declaration must be preferred over another. The reliability, consistency, and voluntary nature of each declaration is assessed by the court.

If the dying declarations are consistent with each other, they strengthen each other’s credibility.

In Sharda v Rajasthan (2010), the deceased made three dying declarations, the first to a doctor, second to Sub-Inspector, and the third to an Executive Magistrate, and the first two declarations said that the cause was the stove-burst and the third said that it was mother in law that poured kerosene and set her ablaze, the Supreme Court overturned the conviction due to glare inconsistency in multiple dying declaration.

In Mukesh v.State for NCT of Delhi (2017), popularly known as Nirbhaya Gang Rape Case, three dying declaration of the deceased were recorded on different days, all the three dying declaration were found to be consistent with each other and hence the court relied upon it to record the conviction.

In Nallam Veera Stayanandam v Public Prosecutor, High Court of AP (2004), SC held that in cases where there are more than one dying declaration which are not consistent, it is the duty of the court to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs by corroborating it with other evidence.

Dying Declaration recorded by Police

Dying declarations can be recorded by anybody, including a police officer. A dying declaration made to the police is admissible in evidence even if it is made during investigation.

Though section 181 (1) of BNSS bars at any trial the use of a statement made to the police during investigation, section 182 (2) provides an exception that a dying declaration made to a police officer during investigation can be used during the trial.

In Munnu Raja v State of MP, (1976) the Supreme Court observed: "The Practice of the Investigating Officer himself recording the declaration during the course of investigation ought not to be encouraged.”

The court further stated that such dying declarations are not always untrustworthy but such methods should only be resorted to only when there is no sufficient time to get it recorded through other reliable methods.

In Babura v State of Rajasthan (1993), where the declaration was recorded by the investigating officer (IO) himself as the condition of the deceased was grave and there was no time to call a Magistrate, the Dying declaration recorded by IO was held to be admissible.

In Meera v State of Maharashtra (2004), where the declaration was recorded by the police officer even though he had enough time to get it recorded by a Magistrate, it was held that the declaration was not reliable.

In Ramanbhai Naranbhai Patel v Gujarat (2000), the Court held that FIR could also be treated as a dying declaration. In this case the police officer recorded the statement of the injured person in the hospital as an FIR, the FIR was itself treated as a dying declaration after the declarant died due to the injuries.

Evidentiary Value of Dying Declaration

In Ram Nath Madhoprasad vs. State of Madhya Pradesh (1953), SC held that as a rule of prudence, a dying declaration must be corroborated with other evidence because dying declaration is a statement not made on oath and it can neither be subjected to cross-examination.

In Khushal Rao v. State of Bombay (1958), Apex Court laid down the following principles related to evidentiary value of dying declaration:

1. each case must be determined on its own facts keeping in view the circumstances in which dying declaration was made
2. there is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. A true & voluntary declaration needs no corroboration.
3. If the Court is satisfied that the dying declaration is true and voluntary, it can be sufficient to record the conviction even without further corroboration. Hence, the Dying declaration is a substantive piece of evidence.

In Shaik Nagoor v State of AP (2008), the Supreme Court summarised the law relating to credibility of dying declaration as follows :

1. There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. If the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it, without corroboration.
2. The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination.
3. Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence.

In Sambat Babso Kale v State of Maharashtra (2019), SC held that though the conviction can solely be based on dying declaration, corroborative evidence may be required as a rule of prudence wherever there is doubt regarding its truthfulness.

Factors which strengthen the credibility of dying declaration

1. Verbatim Record - In Najjam Farooqui v. State of West Bengal (1992), it was held that if a dying declaration is in the language of the declarant, it acquires added strength and reliability.
2. The person recording the dying declaration should try to reproduce the words actually used by the declarant to the extent possible.
3. To add credibility a medical certificate as to mental fitness of the declarant at the time of making dying declaration can also be furnished, if possible.
4. Dying declarations recorded soon after the incident have higher probative value.
5. Dying declaration recorded by the Magistrate stands on higher footing.
6. Dying declaration in question answer form - Where a Magistrate records a dying declaration, it is desirable that it is recorded in question and answer form. This is intended "to enable the court to see how much was suggested by the examiner and how much spontaneously produced by the declarant."

(The above factors only strengthen the credibility of dying declaration and does not mean that dying declaration is inadmissible in absence of it)