Law and You >Procedural Laws > Bharatiya Sakshya Adhiniyam, 2023 > Part II > Dying Declaration (S. 26(a) BSA)

A dying declaration is a statement made by a person who is under the belief that their death is imminent, regarding the cause or circumstances of their death. Dying declaration is hearsay evidence. Hearsay evidence are not allowed in the court proceedings, but Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023 specifically allows such statements to be admissible in court, despite being made without the presence of the accused or the opportunity for cross-examination, which typically makes a statement inadmissible.

The rationale behind admitting dying declarations is that a person facing imminent death is unlikely to fabricate or lie, as they are presumed to speak the truth, knowing that their time is limited. This unique provision acknowledges the inherent reliability of such statements when made voluntarily and with a clear understanding of their situation.

Evidentiary Value of Hearsay Evidence:

Hearsay evidence is generally excluded on the following grounds:

• The person making statement does not produce such evidence on oath
• The opposing party has no opportunity to cross examine such person or the original source of such information.
• The person is immune from all penalties of falsehood in such evidence.

Sometimes it may be impossible to procure the attendance of a witness or result in unreasonable expense who could have given direct evidence; the witness also could give evidence either written or oral which may reasonably be presumed to be true and thereby reliance can be placed on hearsay evidence.  There is an exception to the general rule that hearsay evidence would not apply which are stated in section 26 and section27 of the Bharatiya Sakshya Adhiniyam, 2023.

Section 26(a) BSA:

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.—

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 an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases, namely:—

(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;

This section states that statements, written or oral, of relevant facts made by a person

1. Who is dead
2. Who cannot be found
3. Who has become incapable of giving evidence
4. Whose attendance cannot be procured without unreasonable delay or expenses

according to the court Shall be considered to be relevant in the following circumstances:

1. When it relates to the cause of death; or
2. When is made in the course of business; or
3. When it is made against the interest of the maker; or
4. When it involves giving an opinion as to a public right or custom or matters of general interest; or
5. When it relates to the existence of a relationship; or
6. When it made in the will or deed relating to family affairs; or
7. When the document relates to a transaction mentioned in S. 11 BSA
8. When it made by several persons and expresses feelings relevant to the matter in question

For such statements to be considered admissible under this section, it is important to first and foremost prove that the maker of such statements is either dead or for any other reason is not available to be a witness.

Dying Declaration:

A dying declaration is thus an exception to hearsay evidence when such evidence relates to the cause of death or any circumstance of the transaction which results in the cause of death either oral or written and will be admissible as evidence. The same shall be relevant irrespective of the fact as to whether the person expected or was not expecting his death. Section 26(a) BSA deals with dying declaration.

Reasons for the Admissibility of a Dying Declaration:

Firstly, the necessity, the victim being the sole eye witness of the crime that has been perpetrated upon him, so excluding his evidence would violate the law of natural justice.

Secondly, they are the declarations made by a person under expectation of death so its presumed to be true as the maxim “Nemo Moriturus Praesumntur Mentire”  which means  “ A person who is about to die, can never lie” or the truth sits in his tongue at the time of death because of the fear of almighty God whom he will meet as soon as he will die so he always wanted to reduce his sins by saying truth as per the mythologies.

These are the two principles on which the concept of admissibility of dying declaration it is based upon.

Ingredients of Dying Declaration:

• It may be oral or written or even in the form of gestures (Queen Empress v. Abdulla);
• It must be complete;
• Anticipation of death is not necessary; (Pakala Narayana Swamy v. Emperor) and
• Proximity of time between the statement and death. There has to proximate relationship between the death and circumstances of death. (Sharada v State of Maharashtra)

Difference between Indian law and English law:

• Under English Law, the statement is relevant only in criminal cases of murder or manslaughter (R v Mead). But under Indian Law such statements are relevant in all the cases whether civil or criminal cases where the cause of the death of the person comes in as question
• Under English law the person who is making the statement must be in expectation of death. (R v Jennings). Under Indian Law anticipation of death is not necessary. 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. (Pakala Narayana Swamy v Emperor)

Evidentiary Value of Dying Declaration:

Dying declaration can only be taken into consideration when it is

• Recorded by a competent magistrate (with certain exception);
• the said statement must be recorded in the exact words;
• there must not be any scope of influence from the third party, and hence the declaration must be made soon after the incident that is the reason of the death; and
• there must not be any ambiguity regarding the identity of the offender or cause of death.

It is very important to note that such a statement must not be made under the influence of anybody or it must not be given by promoting or tutoring. In case there is such a suspicion, then such dying declaration needs evidence to corroborate.

Essentials of the Dying declaration to be relevant

• Person making statement must die and the cause of his death is in question before the Court. As dying declaration is a statement of a person about the cause of his death’ or ‘circumstances which resulted in his death’ in case where his death is in ‘question’. The death may be caused by either homicide or suicide. Therefore, if a person survived after making such statement, such is not dying declaration. Statement of deceased is dying declaration. Therefore, the death of the person making statement must be proved before the Court to use the statement of the person making it as ‘dying declaration’. If such person survived after making statement as ‘dying declaration’ such statement later may be used to corroborate the testimony of the person making it under sec 160 BSA or to contradict him under sec 148 BSA. Statement about the death of another person is not dying declaration
• Statement must relate to the cause of his death or the circumstances of the transaction which resulted his death The expression ‘the cause of death’ is concerned with reason of the death of the person making the statement. For example, A makes a statement that B assaulted him with spear and died. Such statement of A is admissible as ‘dying declaration’ in the case where cause of death of A is in question. The immediate death is not required, If A dies after some time, it don’t affect the nature of ‘dying declaration’ because cause of the death was the injury given by the B. As held in Moti Singh v State of UP AIR 1964 SC 900 the death of the person making statement caused by the injury he received in the incident for which accused is being prosecuted. If death is caused by any other reason, such statement would not be admissible as dying declaration. For example, A was tried for the murder of B. B narrated the story of his death to the Police. But in medical examination the reason of the death was’ tetanus’. The statement of the B is not admissible as dying declaration.

In Ravi Kumar v State of Tamil Nadu AIR 2006 SC 1448 it was held by the Supreme court that dying declaration is admissible upon the consideration that declarant has made it in extremity when maker is at the point of death and when every hope of this world is gone, when every motive of the falsehood is silence and mind is induced by the most powerful consideration to speak the truth.

A dying declaration which is truthful, consistent, coherent and without any infirmity don’t need corroboration. A dying declaration which was recorded by the competent magistrate in the proper manner such as question and answer, and as practicable in the words of the maker of the declaration, stands on mush higher footing than a dying declaration which depend upon oral testimony

In Mannu Raja v. State of M.P. AIR 1976 SC 2199 case, the Supreme Court observed that although a dying declaration recorded by police officer during the course of investigation is admissible u/s 32 IEA (S. 26(a) BSA) it is however better to leave such dying declaration out of consideration unless and until the prosecution satisfies the court as to why it was not recorded by magistrate or a doctor.

In Paniben v State oof Gujarat, AIR 1992 SC 1817 case, the Supreme Court laid down certain guidelines while dealing with dying declaration held that

• In case dying declaration is suspicious it should not be acted upon without corroboration.
• Dying declaration which surfers from infirmity cannot be the basis of conviction.
• Merely the dying declaration does not contain details, is short, is not be discarded
• Where there is more than one version of dying declaration, the first in point of time be preferred.
• Where the dying declaration is incomplete by the reason of death but clear and makes a clear accusation against the accused, it can be relied for conviction.

Pakala Narayan Swami v. Emperor (1939) 41 BOMLR 428 Case:

On Tuesday, March 23, 1937, at noon the body of the deceased man (Kuree Nukaraju) was found in a steel trunk in a third-class compartment at Puri, the terminus of a branch line on the Bengal Nagpur Railway, where the trunk had been left unclaimed. The body has been cut into seven portions. The body of the deceased was identified by his widow. The deceased was a man of about 40 and working as a peon in the service of dewan of Pithapur.

Pakala Narain Swami, the accused, was married to one of the daughters of deceased. After marriage Pakala Narain Swami and his wife went to live at Berhampur about 250 miles away from Pithapur. In the year of 1933, they came back to Pithapur. On account of their needs of money the accused’s wife borrowed Rs. 3000 at interest at the rate of 18% per annum. About 50 letters and notes proving these transactions signed by the accused’s wife were found in the deceased man’s house at Pithapur after his death.

On Saturday 20th March 1937, the deceased received a letter from the accused inviting him to come that day or the next day to Berhampur. The deceased’s widow told the court that on that day her husband showed her a letter and said that he was going to Berhampur as Swami’s wife had written to him inviting him to come to receive payment of his dues. The deceased left his place on 21st march to catch the train for Berhampur. He did not come back and on Tuesday 23rd March his body was found in a steel trunk in a third-class compartment of a train at Puri.

The accused was tried and convicted for murder and was sentenced to death. Appeal was made at Privy Council. The statement of the deceased to his wife was considered as a dying declaration and hence admissible under section 32(1) IEA (S. 26(a) BSA).

Conclusion:

According to Lord Eyre, C.B., “the principle on which this species of evidence is admitted is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of the world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and awful is considered by the law as creating an obligation equal to that which is imposed by the law as creating an obligation equal to that which is imposed by a positive oath administered in the court of justice.”

Physical or mental weakness consequent upon the approach of death, a desire of self-vindication, or a disposition to impute the responsibility for a wrong to another, as well as the fact that the declarations are made in the absence of the accused, and often in response to leading questions and direct suggestions, and with no opportunity for cross-examination: all these considerations conspire to render such declarations a dangerous kind of evidence. Hence, now-a-days dying declaration has lost its creditability and authenticity.

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