Law and You >Procedural Laws > Bharatiya Sakshya Adhiniyam, 2023 > Situational Problems BSA: Set 02 (Dying Declaration)

Q 1. A dying declaration of Sita has been recorded on 3-occasions as under.

1. When Sita was brought in hospital she made a statement before the Doctor:- My mother in law pour kerosene on my body and my husband put me on fire.
2. After one hour Sita made a statement before the police officer that my mother in law, father in law and husband poured Kerosene on my body and they set me on fire ; and
3. Dying declaration of Sita was recorded by the Magistrate during midnight wherein she has stated that who poured Kerosene on my body and who set me on fire I cannot recall and name the person.

a. Which statement of Sita can be considered as a Dying Declaration?

b. What is the evidential value of the above Dying declarations?

a) The third statement given by Sita which was recorded by the Magistrate during midnight will be considered as a dying declaration. (Section 26 of the Bharatiya Sakshya Adhiniyam, 2023)

b)  Section 26 of the Bharatiya Sakshya Adhiniyam, 2023, cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant and Section 27 of the Bharatiya Sakshya Adhiniyam, 2023, relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated, gives evidentiary value to Dying Declaration.

Q 2. A seriously injured victim on reaching the hospital tells the doctor on duty that “X has stabbed me because, and before completing the sentence, he collapses and dies. Discuss the relevancy and veracity of the above dying declaration in the trial of X for murder. According to the Supreme Court of India, dying declaration can be the sole basis of conviction subject to certain precautions. What are these precautions?

In this case the statement made by victim to the doctor amounts to dying declaration and is a relevant fact. A dying declaration is defined under Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 as a statement made by a person as to the circumstances or the cause of their death, which becomes relevant when the cause of death of the person is in question in the case. It must be corroborated with other evidence.

In Kusa v. State of Orissa, AIR 1980, SC 559 case, the Supreme of India held that dying declaration can be the sole basis of conviction subject to certain precautions. The precautions are as follows:

• Dying declaration is true and voluntary;
• It is coherent  and consistent;
• It is not a result of tutoring, prompting, or imagination;
• The person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.
• There is no legal impediment in founding the conviction on such a dying declaration, even if there is no corroboration.

Q 3. Surbhi was pricked in the stomach by her Husband who was angry as she could not bring the dowry as per his demand from her parents. She was admitted to the hospital by her neighbour, and she narrated to them that her husband had caused the injuries. She also told the same to the on-duty policeman at the hospital Police-chowki. Later, Surbhi passed away.

a) What will be the value of Surbhi’s statement to her neighbour, in the trial that would be held against her husband?

b) Give landmark Judgment relevant to this situation with provision.

a) Statement of Surbhi can be considered as dying declaration. “A dying declaration is a declaration written or verbal 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”. Dying declaration can be made to anyone even to police officer or constable. But if it is not in front of the Magistrate, then it must be corroborated.

Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 refers to a statement made by a person who is dead or cannot be found etc. Generally, hearsay evidence are not admissible but statement made by a person who is dead or cannot be found etc. is admissible as exception under Section 19(1) of the Bharatiya Sakshya Adhiniyam, 2023.

b) The landmark judgment is Laxman v. State of Maharashtra, AIR 2002 SC 2973. In this case the apex court observed that what is essentially required is that, a person who records the statement must be satisfied that the injured person was in a fit state of mind.

Q 4. A dying declaration of Ramsharan was recorded on two occasions i.e. by ‘doctor’ and by Magistrate. However Ramsharan survives. In this situation:

a) Whether the said statement bof Ramsharan can be called dying declaration?

b) Since Ramsharan is survived, what is evidentiary value of the said statements?

a) According to Section 107 BSA, the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. Thus, to prove a dying declaration by Ramsharan, first Ramsharan’s death must be proved. As Ramsharan has survived, there is no question of dying declaration by Ramsharan. Thus it is not dying declaration.

b) As Ramsharan has survived, there is no question of dying declaration by Ramsharan. Thus it is not dying declaration. So the statements given by Ramsharan to doctor or magistrate do not have any evidentiary value. But, under Section 160 BSA, in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

Q 5. Mrs. Rohini in her suicide note dated 7-12-2011 which was found near her body next day that is 7-12-2011, wherein she had pointed out her husband responsible for physical torture as well as mental harassment regularly till her death.

a) Does the statement made in suicide note has evidentiary value?

b) If so, which are the provisions of BSA applicable in instant case?

a) Yes, it will be treated as dying declaration under Section 26 of the Bharatiya Sakshya Adhiniyam, 2023. In State of Madhya Pradesh v. Mohammad Shahid case, the Madhya Pradesh High Court observed that evidence as to the cause of death is relevant not only to the cause of death of the person making the statement but also to the circumstances of the transaction which resulted in death. The Court held that such a suicide note is to be treated as a dying declaration and is admissible under Section 32 of the Evidence Act, of 1872 (S. 26 BSA).

b) Thus S. 26 of the Bharatiya Sakshya Adhiniyam, 2023 is applicable.

More Situational Problems:

• Set 01: Admission and Confession
• Set 03: Burden of Proof
• Set 04: Privileged Communication
• Set 05: Documentary Evidence
• Set 06: Witness
• Set 07: Miscellaneous

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