Evidence Law: Indian Evidence Act, 1872 / Bharatiya Sakshya Adhiniyam, 2023 (BSA)
Dying Declaration under Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023: Essentials, Forms, Multiple Declarations, Medical Certification and Evidentiary Value
A dying declaration is received on a proposition the law has never been willing to abandon: that a person who knows he is about to die does not ordinarily go to his death with a lie on his lips. Indian law goes considerably further than the English rule from which the doctrine came. No expectation of death is required, the statement need not concern the cause of death alone, and a conviction may rest on a dying declaration without any corroboration at all.
1. The Provision
Section 26(a), BSA — Statements as to cause of death Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense, are themselves relevant facts — (a) 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. Such statements 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 the proceeding in which the cause of his death comes into question. |
Section 26(a) corresponds to Section 32(1) of the Indian Evidence Act. The doctrine is expressed in the maxim nemo moriturus praesumitur mentiri — a man will not meet his Maker with a lie in his mouth.
2. How Indian Law Differs from the English Rule
Feature | English rule | Section 26(a) |
|---|---|---|
Expectation of death | The declarant must have been under a settled hopeless expectation of death | Not required. Relevant whether or not he was under expectation of death |
Type of proceeding | Confined to trials for homicide | Any proceeding, civil or criminal, in which the cause of death comes into question |
Scope | Confined to the cause of death | Extends to any of the circumstances of the transaction which resulted in the death |
Timing | Made after the fatal injury | May be made before the injury, provided it relates to the transaction resulting in death |
Corroboration | A rule of practice requiring corroboration | No rule of law requiring corroboration; a conviction may rest on it alone |
📖 Pakala Narayana Swami v. Emperor, AIR 1939 PC 47 Held: The expression 'circumstances of the transaction which resulted in his death' is wider than the cause of death. The statement need not be made after the injury and need not be about the cause of death at all; it is enough that it relates to circumstances of the transaction which resulted in the death. A statement by the deceased, made before he set out, that he was going to a particular place at the invitation of a named person, was held admissible where he was killed on that journey. Ratio: The foundational construction. A statement made before the fatal injury may be a dying declaration. |
📖 Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 Held: Clause (1) of Section 32 is a departure from the English rule and is materially wider. The expression 'circumstances of the transaction' is not confined to the actual occurrence, but the circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death. A general expression indicating fear or suspicion, whether of a particular individual or otherwise, and not directly related to the occasion of the death, will not be admissible. Ratio: The clause is wide but not unlimited. Proximate relation to the occurrence is the controlling requirement, and a vague expression of fear is not enough. |
3. The Essentials
Essential | What must be established | Where it fails |
|---|---|---|
1. The maker is dead | Death must be proved. If the declarant survives, the statement is not a dying declaration; it may be used to corroborate or contradict him as a witness under Sections 160 and 148 | The declarant survives, and is nevertheless not examined |
2. The cause of his death comes into question | The proceeding must be one in which the cause of the maker's death is in issue | The death is not in question in the proceeding |
3. The statement relates to the cause of death or the circumstances of the transaction | A proximate relation to the occurrence resulting in death | A vague expression of fear or suspicion unconnected with the occasion of the death |
4. The declarant was in a fit state of mind | That he was mentally capable of making a coherent statement, and understood what he was saying | Semi-consciousness, severe burns affecting comprehension, heavy sedation, or a medical opinion that he was not fit |
5. The statement is complete and consistent | It must not be a fragment left unfinished, and must not be internally contradictory | The declarant died mid-sentence; or the account is irreconcilable with itself |
6. It is voluntary and free from tutoring | That it was not the product of prompting, coaching or the influence of interested relatives | Relatives were present throughout; the words match their version exactly |
7. It is truthful and inspires confidence | That it fits the medical evidence and the surrounding circumstances | Inconsistent with the post-mortem findings as to the nature or number of injuries |
4. Forms of Dying Declaration
The section says 'written or verbal'. Both expressions have been construed generously, and no particular form is prescribed.
Form | Position | What the court examines |
|---|---|---|
Recorded by a Magistrate | The most satisfactory form. Recorded under Section 183 of the BNSS, 2023, with the safeguards attending that provision | Compliance with the procedure; the certificate of fitness; whether questions and answers were recorded |
Recorded by a doctor | Perfectly admissible, and common in practice where a Magistrate could not be summoned in time | Whether the doctor recorded the declarant's own words; the fitness of the declarant |
Recorded by a police officer | Admissible. Section 23 has no application, because a dying declaration is not a confession by an accused | Scrutinised more closely, since the recorder is an interested official. Why a Magistrate was not called is examined |
Oral, deposed to by a witness | Admissible. Frequently the only form available where the declarant died quickly | The reliability of the witness; whether he can reproduce the words; delay in disclosure |
By signs or gestures | Admissible where the declarant was unable to speak | How the questions were framed; whether the gestures were unambiguous; whether they were recorded contemporaneously |
In a first information report lodged by the deceased | Admissible as a dying declaration where the informant later dies of the injuries | Ordinary tests of reliability; the FIR is otherwise not substantive evidence |
Contained in an electronic record | Admissible, subject to proof under Sections 57, 61 and 63 and the Schedule | Whether the record is primary evidence within the Explanations to Section 57, or requires the certificate under Section 63(4) |
📖 Queen-Empress v. Abdullah, (1885) ILR 7 All 385 Held: A Full Bench held that where the deceased, whose throat had been cut and who was unable to speak, answered questions by signs and gestures — by moving her hand — the answers so given amounted to a verbal statement within the meaning of the provision, and were admissible as a dying declaration. Ratio: The classical authority that a dying declaration may be made by signs or gestures. What matters is that a communication was made, not the medium of it. |
⚠ Declarations by gesture require particular care Where the statement consists of nods or hand movements in answer to questions, everything depends on the questions. Leading questions naming a suspect and inviting a nod are worthless, because the content of the answer has been supplied by the questioner. The court examines whether the questions were open, whether they were recorded verbatim, and whether the gestures were capable of only one meaning. |
5. Medical Certification
It is frequently assumed that a dying declaration is worthless without a doctor's certificate of fitness. That is not the law. The certificate is the best evidence of fitness; it is not the only evidence.
📖 Laxman v. State of Maharashtra, (2002) 6 SCC 710 Held: A Constitution Bench held that a dying declaration can be oral or in writing, and any adequate method of communication, whether by words or by signs, would 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 a statement is recorded by a Magistrate there is no prescribed form. The Court held that a certification by a doctor is essentially a rule of caution, and the voluntary and truthful nature of the declaration can be established otherwise. What is essentially required is that the person recording the declaration must be satisfied that the deceased was in a fit state of mind. Where the Magistrate has recorded his satisfaction on that point, the declaration is not to be discarded merely because the doctor did not certify fitness. Ratio: The leading authority. Medical certification is a rule of caution, not a condition of admissibility. Satisfaction as to fitness is what matters. |
Situation | Position |
|---|---|
Doctor certified fitness before and after recording | The strongest position. The declaration stands unless attacked on other grounds |
Magistrate recorded his own satisfaction as to fitness, no medical certificate | Admissible and may be acted upon — Laxman. The satisfaction of the recorder is what the law requires |
Neither certificate nor recorded satisfaction, but the doctor deposes that the declarant was conscious and coherent | Admissible. Fitness may be established by any evidence |
Medical evidence positively shows the declarant was not in a fit state | The declaration cannot be acted upon, whatever the certificate says |
The declarant was under heavy sedation or had extensive burns affecting comprehension | Fitness must be established affirmatively; the court will not assume it |
An oral dying declaration to a relative, with no recorder at all | Admissible. Fitness is established through the witness and the surrounding circumstances |
6. Dying Declaration Recorded by a Police Officer
Question | Position |
|---|---|
Is it excluded by Section 23? | No. Section 23 excludes confessions made by an accused. A dying declaration is a statement by the victim, not by the accused, and the provision has no application |
Is it admissible? | Yes, and it may be acted upon |
Is it scrutinised more closely? | Yes. The recorder is an official concerned with the investigation, and the court examines the circumstances with care |
What does the court look for? | Why a Magistrate was not summoned; whether there was time to do so; whether the declarant's own words were recorded; whether the doctor was present; whether the declaration was read over to the declarant |
Is corroboration required? | Not as a matter of law. But where the declaration was recorded by a police officer in circumstances that permitted a Magistrate to be called, the court will look for support |
⚠ The order of preference in practice The courts have not laid down a hierarchy as a rule of law, but a practical order of preference is discernible: a declaration recorded by a Magistrate stands highest, followed by one recorded by a doctor, then one recorded by a police officer, and finally an oral declaration deposed to by a relative. The order reflects the diminishing independence of the recorder and the diminishing reliability of the record, and it explains why an unexplained failure to summon a Magistrate is always the first question asked. |
7. Multiple Dying Declarations
Where the declarant made more than one statement before dying, the court must decide what to do with them. The approach depends entirely on whether they are consistent.
Situation | Approach |
|---|---|
All declarations consistent | They corroborate one another, and the case is considerably strengthened. The court may act on them |
Inconsistent on material particulars | The court must examine each and determine which, if any, is reliable, having regard to the circumstances in which each was recorded, the condition of the declarant at each stage, and consistency with the other evidence |
A later declaration contradicting an earlier one | Neither is automatically preferred. The court examines whether the change is explicable — by tutoring in the interval, by improved consciousness, or by the presence of relatives |
Inconsistency on peripheral detail only | Immaterial. Minor discrepancies in a statement made by a dying person are natural and do not displace the declaration |
Irreconcilable contradiction on the identity of the assailant | Ordinarily fatal. Where the court cannot say which version is true, no conviction can rest on either |
📖 Nallam Veera Stayanandam v. Public Prosecutor, High Court of Andhra Pradesh, (2004) 10 SCC 769 Held: Where there are multiple dying declarations and they are at variance with one another, the court must scrutinise the evidence and determine which of them is reliable, having regard to the circumstances in which each was recorded. It is not the law that in every case of multiple declarations the earlier must be preferred, nor that inconsistency renders all of them worthless. The court must examine the whole of the material and decide whether any one of them can safely be acted upon. Ratio: Inconsistency between multiple declarations calls for scrutiny, not automatic rejection. |
📖 Amol Singh v. State of Madhya Pradesh, (2008) 5 SCC 468 Held: Where there is inconsistency between dying declarations, the court has to examine the nature of the inconsistency — whether it is material or otherwise. If the inconsistencies go to a material particular, and the court is unable to hold any of the declarations to be reliable, it would not be safe to convict on the basis of such declarations. The court must consider the circumstances in which each was recorded, including the condition of the declarant and the persons present. Ratio: Material inconsistency between declarations, unresolved, defeats the prosecution. |
8. Whether Conviction Can Rest Solely on a Dying Declaration
📖 Khushal Rao v. State of Bombay, AIR 1958 SC 22 Held: There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. A dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. It is not a weaker kind of evidence than any other. Each case must be determined on its own facts, keeping in view the circumstances in which the declaration was made. Where the court is satisfied that the declaration is true and voluntary, and that the maker was in a fit state of mind, it can found a conviction upon it without corroboration. Ratio: The leading authority. Corroboration is a rule of prudence applied where doubt exists, and not a rule of law. |
📖 Paniben v. State of Gujarat, (1992) 2 SCC 474 Held: The Court collected the principles governing dying declarations. There is neither a rule of law nor of prudence that a dying declaration cannot be acted upon without corroboration. If the court is satisfied that the declaration is true and voluntary it can base a conviction on it without corroboration. The court has to scrutinise the declaration to ensure that it is not the result of tutoring, prompting or imagination, and must be satisfied that the deceased was in a fit state of mind. Where the declaration suffers from infirmity it cannot form the basis of conviction. A declaration which is not consistent with the medical evidence, or which is incomplete, or where the deceased was not in a fit state of mind, cannot be relied upon. Merely because a declaration is brief, it does not follow that it is unreliable. Ratio: The standard compendium of principles, cited in most subsequent decisions. |
📖 Atbir v. Government of NCT of Delhi, (2010) 9 SCC 1 Held: The Court restated the principles. A dying declaration can be the sole basis of conviction if it inspires the full confidence of the court. The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement, and that it was not the result of tutoring, prompting or imagination. Where the court is satisfied about the truthfulness and voluntariness of the declaration, there is no impediment to basing a conviction upon it without corroboration. Where there is any suspicion over its veracity, or where the evidence relating to it is not credible, the court must look for corroboration. Ratio: The modern restatement, and the standard citation for the proposition that a conviction may rest on a dying declaration alone. |
8.1 When corroboration is looked for
Circumstance | Effect |
|---|---|
The declaration is inconsistent with the medical evidence | It cannot be acted upon |
The declarant was not in a fit state of mind | It cannot be acted upon |
The declaration is incomplete, the declarant having died before finishing | It cannot ordinarily be acted upon; an unfinished account may omit the qualification that changes its meaning |
There are indications of tutoring or prompting | Corroboration is essential, and the declaration is viewed with suspicion |
Interested relatives were present throughout the recording | The court examines whether the words are the declarant's own; corroboration is sought |
The declaration is brief | Brevity alone is no ground for rejection — Paniben |
Minor discrepancies with other evidence | Immaterial. A dying person cannot be expected to give a precise account |
The declaration is true, voluntary and consistent with the other material | It may found a conviction without corroboration |
9. Dying Declaration and Dying Deposition
Dying declaration | Dying deposition | |
|---|---|---|
What it is | A statement by a person as to the cause of his death or the circumstances of the transaction resulting in it | Evidence recorded from a person expected to die, on oath, in the presence of the accused, who is given the opportunity to cross-examine |
Provision | Section 26(a) | Section 27 — evidence given in a judicial proceeding, or before a person authorised by law to take it |
On oath | No | Yes |
Presence of the accused | Not required | Required |
Cross-examination | Not available | Available, and this is its defining feature |
Who records it | A Magistrate, doctor, police officer, or anyone who heard it | A Magistrate or other authorised person, in the manner of a judicial proceeding |
Weight | Substantive evidence; may found a conviction if true and voluntary | Stands close to live testimony, since the essential safeguards were present |
Frequency in practice | Very common | Rare in India |
⚠ Why the dying deposition is rare A dying deposition requires the accused to have been arrested and produced, and requires enough time for the proceeding to be convened at the bedside. In most cases the declarant dies before either condition can be met. Where it is possible, however, the deposition is considerably stronger than a declaration, because the one safeguard a dying declaration can never have — cross-examination — is present. |
10. The Position in Summary
- No expectation of death is required. Section 26(a) applies whether or not the declarant expected to die.
- It extends beyond the cause of death to the circumstances of the transaction resulting in death, subject to the requirement of proximate relation.
- It applies in any proceeding in which the cause of death comes into question, civil or criminal.
- No particular form is prescribed. It may be oral, written, by signs or gestures, or contained in an electronic record.
- Medical certification is a rule of caution, not a condition of admissibility. Satisfaction of the recorder as to fitness is what the law requires.
- A police officer may record it, and Section 23 has no application, though it is scrutinised more closely.
- A conviction may rest on it alone, without corroboration, where it is true, voluntary and made in a fit state of mind.
- Corroboration is sought where doubt exists — tutoring, unfitness, incompleteness, or inconsistency with the medical evidence.
11. Related Topics and Provisions
Topic or provision | Connection |
|---|---|
Statements by Persons Dead or Unavailable — Section 26 | The four conditions of unavailability and the remaining seven clauses |
Hearsay Evidence — Rule and Exceptions | The rule to which Section 26(a) is an exception |
Doctrine of Res Gestae — Section 4 | A statement at the moment of the attack may be admissible under both provisions |
Substantive Evidence and Corroborative Evidence | The status of a dying declaration as substantive evidence |
Section 27, BSA | Evidence in a former judicial proceeding — the dying deposition |
Section 39, BSA | Medical opinion as to fitness and as to the cause of death |
Sections 57, 61 and 63 and the Schedule, BSA | Proof of a dying declaration contained in an electronic record |
Section 183, BNSS, 2023 | Recording of statements by a Magistrate, including by audio-video electronic means |