Dying Declaration vs Dying Deposition under the Bharatiya Sakshya Adhiniyam, 2023: Section 26(a) and Section 27 Compared

Both are the words of a person who has since died, received in a proceeding he did not live to attend. The difference lies in a single feature: a dying deposition was given on oath, in the presence of the accused, who had the right and opportunity to cross-examine. That one difference converts untested hearsay admitted out of necessity into something standing very close to live testimony, and it explains why the two are governed by different sections and carry very different weight.

1. The Two Provisions

Section 26(a), BSA — Dying declaration

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;

and 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 27, BSA — Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated

Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which the Court considers unreasonable.

Provided that — the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; and that the questions in issue were substantially the same in the first proceeding as in the second.

Explanation. — A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

Section 26 corresponds to Section 32 of the Indian Evidence Act, and Section 27 to Section 33. A dying deposition is not a term used in either statute. It is the practitioner's name for evidence taken from a person expected to die, on oath and in the presence of the accused, which is afterwards proved under Section 27.

2. The Comparison

	Dying declaration	Dying deposition
Provision	Section 26(a)	Section 27
Nature	A statement made out of court	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. This is the defining absence	Available, and the adverse party must have had the right and opportunity to exercise it
Who records it	A Magistrate, a doctor, a police officer, a relative, or anyone who heard it	A Magistrate or other person authorised by law, in the manner of a judicial proceeding
Subject matter	Confined to the cause of death or the circumstances of the transaction resulting in it	Any relevant fact deposed to by the witness
Whose death	Only the maker's own death, and it must come into question in the proceeding	The witness need not be the deceased victim; he may be any witness who has since died or become unavailable
Conditions of unavailability	Dead, not found, incapable of giving evidence, or not procurable without unreasonable delay or expense	The same four, plus being kept out of the way by the adverse party
Same parties requirement	None	The earlier proceeding must have been between the same parties or their representatives
Same issues requirement	None	The questions in issue must have been substantially the same
Weight	Substantive evidence; may found a conviction if true and voluntary	Stands close to live testimony, since the oath and cross-examination were both present
Frequency in practice	Very common	Rare

3. Why the Difference Matters

The whole of the law of hearsay turns on the absence of cross-examination. Every exception in the Adhiniyam supplies some substitute for it — spontaneity, routine, an interest against the maker, or the solemnity of an approaching death. Section 27 is the only provision that does not need a substitute, because the safeguard itself was present.

Safeguard of live testimony	Dying declaration	Dying deposition
Statement made on oath	Absent	Present
Cross-examination by the adverse party	Absent	Present
Demeanour observed by a judicial officer	Partly — where a Magistrate records it	Present
Statement made in the presence of the accused	Absent	Present
Contemporaneous record of the words	Variable, depending on the recorder	Present, in the manner prescribed for recording evidence
What supplies the missing guarantee	The solemnity of approaching death — nemo moriturus praesumitur mentiri	Nothing is missing

⚠ The Explanation to Section 27 is essential in criminal cases

Without the Explanation, the requirement that the earlier proceeding be 'between the same parties' would be difficult to satisfy in a criminal case, since a prosecution is not litigation between parties in the ordinary sense. The Explanation deems a criminal trial or inquiry to be a proceeding between the prosecutor and the accused, which makes the section workable. A deposition taken at a committal inquiry, or at an earlier stage of the same trial, therefore satisfies the same-parties condition.

4. The Conditions of Section 27

Condition	What must be established	Where it fails
1. Evidence given by a witness	It must have been evidence, not a mere statement — given on oath in a judicial proceeding or before a person authorised by law to take it	A statement recorded during investigation is not evidence, and Section 27 does not apply to it
2. In a judicial proceeding or before an authorised person	A court, or a Magistrate or other officer authorised by law to take evidence	A statement recorded by a police officer, or by a body not authorised to take evidence
3. The witness is now unavailable	Dead, not found, incapable of giving evidence, kept out of the way by the adverse party, or not procurable without unreasonable delay or expense	The witness is available and must be called
4. Same parties or their representatives	The earlier proceeding must have been between the same parties. In a criminal case, the Explanation deems it to be between the prosecutor and the accused	The accused in the present trial was not a party to the earlier proceeding
5. Right and opportunity to cross-examine	The adverse party must have had both the right and the opportunity. An unexercised opportunity suffices; a denied opportunity does not	The deposition was taken before the accused was arrested, or in his absence
6. Substantially the same questions in issue	The issues in the earlier proceeding must have been substantially the same	The earlier proceeding concerned a different matter

⚠ Right and opportunity are two things

The proviso requires that the adverse party had the right and opportunity to cross-examine. A party who was present, was entitled to cross-examine, and chose not to has had both, and the deposition is admissible against him. A party who was entitled to cross-examine but was never given the chance — because he had not been arrested, or was not informed, or the deposition was taken in his absence — has had the right but not the opportunity, and the condition fails. This is the point on which most Section 27 applications are decided.

5. Why Dying Depositions Are Rare

Requirement	Practical difficulty
The accused must be present	He must already have been arrested and be capable of being produced at the bedside. In most cases the investigation has not reached that stage when the victim is dying
A judicial officer must convene the proceeding	A Magistrate must be available and must be willing to hold a proceeding in a hospital ward
There must be time	The declarant must survive long enough for arrest, production and the taking of evidence. Most victims do not
The declarant must be fit to be cross-examined	Fitness to make a short statement is one thing; fitness to withstand cross-examination is another, and the second is a materially higher standard
Legal representation	The accused should have his advocate present, which introduces a further delay

The consequence is that in the overwhelming majority of cases the prosecution must rely on a dying declaration under Section 26(a), untested by cross-examination, and the elaborate body of case law on fitness, tutoring, multiple declarations and medical certification exists precisely because that safeguard is missing.

6. Where the Two Overlap

A single set of words may be receivable under both provisions, and a party need not elect between them.

Situation	Section 26(a)	Section 27
A victim's statement recorded by a Magistrate, no accused present	Yes, as a dying declaration	No — no opportunity to cross-examine
A victim's evidence taken on oath with the accused present, and the victim then dies	Yes, since it relates to the cause of his death	Yes, all conditions satisfied
A witness who is not the victim deposes at a committal inquiry and then dies	No — the statement does not concern his own death	Yes
A victim survives the injury, deposes at the trial, and dies of an unconnected cause before cross-examination	No — his death is not in question, and there is no statement as to its cause	Doubtful — the opportunity to cross-examine was not complete
A statement to a relative at the scene	Yes	No — not evidence in a judicial proceeding

⚠ The fourth row is the practical trap

Where a witness has been examined in chief and dies before cross-examination, the position is difficult. The adverse party had the right but arguably not a full opportunity, and the deposition is at best of limited value. Courts have taken the view that such evidence may be received but must be weighed with considerable caution, and that it cannot ordinarily be the sole basis of a conviction. Where the witness is the victim and the statement relates to the cause of his death, Section 26(a) supplies an independent route.

7. Both Compared with Live Testimony

	Live testimony	Dying deposition	Dying declaration
Oath	Yes	Yes	No
Cross-examination	Yes	Yes	No
Demeanour observed by the trial court	Yes	No — observed by the earlier court	No, save partly where a Magistrate recorded it
Provision	Sections 54, 55 and 142	Section 27	Section 26(a)
Basis of admission	The ordinary rule	The safeguards were present when the evidence was given	Necessity, plus the solemnity of approaching death
Weight	Highest	Close to live testimony	Substantive; may found a conviction if true and voluntary
Corroboration	Not required	Not required	Not required in law, but sought where doubt exists

📖 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 must be judged in the light of surrounding circumstances. It is not a weaker kind of evidence than any other. A declaration recorded by a competent Magistrate stands on a much higher footing than one depending on oral testimony which may suffer from the infirmities of human memory.

Application: The proposition that a dying declaration is not a weaker species of evidence is what permits a conviction to rest on it despite the absence of cross-examination.

8. The Distinction in Summary

A dying declaration is a statement; a dying deposition is evidence. The first is made out of court, the second in a judicial proceeding.
The defining difference is cross-examination. A deposition was tested; a declaration was not.
A declaration is confined to the maker's own death; a deposition may concern any relevant fact and may be that of any witness.
Section 27 imposes three additional conditions — same parties, right and opportunity to cross-examine, and substantially the same questions in issue. Section 26(a) imposes none of these.
Section 27 recognises a fifth ground of unavailability — that the witness is kept out of the way by the adverse party — which Section 26 does not.
The Explanation to Section 27 makes the section workable in criminal cases, by deeming a trial or inquiry to be a proceeding between the prosecutor and the accused.
Dying depositions are rare in India because the conditions are difficult to assemble at a deathbed, which is why the case law on dying declarations is so extensive.

9. Related Topics and Provisions

Topic or provision	Connection
Dying Declaration — Section 26(a)	The essentials, forms and evidentiary value of a declaration
Multiple Dying Declarations	Where more than one account exists
Dying Declaration Recorded by a Police Officer	The scrutiny applied where the recorder is an investigating official
Statements by Persons Dead or Unavailable — Section 26	The conditions of unavailability and the eight clauses
Hearsay Evidence — Rule and Exceptions	The rule to which both sections are exceptions, and the substitutes each supplies
Sections 140 to 143, BSA	Order of production and examination of witnesses, and examination in chief, cross-examination and re-examination
Section 183, BNSS, 2023	Recording of statements by a Magistrate, including by audio-video electronic means