Dying Declaration Under the Bharatiya Sakshya Adhiniyam, 2023
Introduction
A dying declaration is one of the most significant exceptions to the rule against hearsay evidence. It is a statement made by a person relating to the cause of his or her death or the circumstances of the transaction that resulted in the death. Such a statement becomes relevant only when the maker subsequently dies and the cause of that person’s death is in question before a court.
The law relating to dying declarations is contained in Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which substantially corresponds to the former Section 32(1) of the Indian Evidence Act, 1872. The provision is founded on the legal maxim nemo moriturus praesumitur mentire, meaning that a person is not presumed to meet death with a lie on his lips. The law, therefore, treats such statements as reliable, despite the absence of cross-examination.
Unlike English law, Indian law does not require the declarant to be under an expectation of immediate death. The only essential requirement is that the statement must relate to the cause of the declarant’s death or the circumstances of the transaction resulting in the death, and the declarant must subsequently die.
Nature and Form of a Dying Declaration
There is no prescribed format for recording a dying declaration. It may be:
- Written or oral;
- Recorded in question-and-answer form or as a narrative;
- Communicated through gestures, signs, or nods where the declarant is unable to speak;
- Recorded electronically through audio or video means.
The declaration should, as far as possible, contain the exact words of the declarant without interpretation or embellishment.
Who May Record a Dying Declaration?
A dying declaration may be recorded by:
- A Judicial Magistrate (preferred);
- A Medical Officer;
- A police officer in exceptional circumstances; or
- Any other person before whom the declaration is voluntarily made.
Although the law does not require that the declaration be recorded only by a magistrate, a declaration recorded by a judicial magistrate carries greater evidentiary value because of the magistrate’s independence and impartiality.
Where a magistrate cannot be secured without delay and the condition of the victim is critical, the declaration may be recorded by a doctor or, if necessary, by the investigating officer. The Supreme Court has consistently held that a dying declaration recorded by a doctor or police officer is not inadmissible merely because it was not recorded by a magistrate.
Procedure for Recording a Dying Declaration
While no rigid statutory procedure exists, the following safeguards should ordinarily be observed:
- The injured person must receive immediate medical treatment. Recording the declaration should never delay life-saving care.
- The fitness of the declarant should, wherever practicable, be certified by the attending doctor before recording begins. The absence of a medical certificate is not by itself fatal if other evidence establishes that the declarant was mentally fit.
- The declaration should be recorded in a calm atmosphere, free from the influence of relatives or other interested persons.
- The statement should preferably be recorded in the declarant’s own language and, where possible, in question-and-answer form.
- Leading or suggestive questions should be avoided.
- After recording, the statement should be read over to the declarant and, if possible, signed or marked with the declarant’s thumb impression. Where this is not possible, the reason should be recorded.
- The person recording the declaration should certify that it was made voluntarily and that the declarant appeared to be in a fit mental condition.
Dying Declaration by Signs or Gestures
Where the declarant is unable to speak due to severe injuries or medical intervention, a dying declaration may be communicated through signs, gestures, or nods. In such cases, the questions put to the declarant and the precise responses by signs should be carefully recorded. Courts have recognized such declarations as admissible, provided the declarant was conscious and capable of understanding the questions.
Oral Dying Declaration
A dying declaration need not always be in writing. An oral declaration made to a doctor, police officer, relative, or any other person is equally admissible under Section 26 of the Bharatiya Sakshya Adhiniyam. However, because oral declarations are more susceptible to misunderstanding or embellishment, courts examine them with greater caution.
Multiple Dying Declarations
A person may make more than one dying declaration. If all the declarations are consistent, they strengthen the prosecution case. Where material inconsistencies exist, the court examines the circumstances in which each declaration was made, the mental condition of the declarant, and the possibility of tutoring or influence. A conviction should not ordinarily be based upon conflicting dying declarations unless the court is satisfied as to which version is truthful.
Incomplete Dying Declaration
An incomplete dying declaration is not necessarily inadmissible. If the statement, though unfinished, clearly identifies the assailant or explains the material circumstances of the occurrence, the court may rely upon the completed portion, provided it inspires confidence.
Evidentiary Value of a Dying Declaration
A dying declaration is substantive evidence and, if found to be voluntary, truthful, and reliable, may by itself form the sole basis of conviction without corroboration. Nevertheless, courts exercise great caution while evaluating such evidence because the maker cannot be cross-examined.
The court ordinarily examines whether:
- The declarant was mentally fit;
- The declaration was voluntary;
- There was no tutoring or coercion;
- The statement is consistent and natural;
- It is supported by the surrounding circumstances and medical evidence.
Where the declaration suffers from serious inconsistencies or appears doubtful, the court generally seeks corroboration before acting upon it.
Key Factors Considered by Courts
| Factor | What the Court Examines |
|---|---|
| Mental Fitness | Whether the declarant was conscious and mentally capable of making the statement. |
| Voluntariness | Whether the statement was made freely and without coercion or influence. |
| Truthfulness | Whether the contents of the declaration appear truthful and reliable. |
| Consistency | Whether the declaration is consistent with other material evidence. |
| Medical Evidence | Whether the medical evidence supports the circumstances stated in the declaration. |
| Absence of Tutoring | Whether the declarant was free from the influence of relatives or interested persons. |
Role of the Investigating Officer Under BNSS
Under the Bharatiya Nagarik Suraksha Sanhita, 2023, the Investigating Officer should:
- Ensure prompt medical treatment for the injured person;
- Immediately request a magistrate to record the dying declaration wherever feasible;
- Preserve the original declaration and obtain the medical certificate regarding the declarant’s fitness;
- Examine all persons present during the recording;
- Collect corroborative medical, forensic, and electronic evidence.
Although a dying declaration may itself be sufficient to sustain a conviction, the Investigating Officer should always endeavor to collect independent evidence to corroborate the prosecution case.
Judicial Principles on Dying Declarations
The Supreme Court has consistently laid down the following principles:
- A truthful and voluntary dying declaration can form the sole basis of conviction.
- Corroboration is a rule of prudence and not an absolute rule of law.
- The absence of a doctor’s certificate does not invalidate a dying declaration if the evidence establishes that the declarant was mentally fit.
- A dying declaration recorded by a doctor or police officer is legally admissible, though a declaration recorded by a magistrate ordinarily carries greater evidentiary weight.
- Multiple inconsistent dying declarations require careful judicial scrutiny.
- Every dying declaration must be assessed on its own facts and circumstances.
Case Laws on Dying Declarations
Recent Supreme Court rulings (2025–2026) have reaffirmed the strong evidentiary value of dying declarations, holding that a voluntary and reliable one can form the sole basis of conviction under Section 302 IPC without needing corroboration.
State of Himachal Pradesh v. Chaman Lal
In State of Himachal Pradesh v. Chaman Lal (2026 INSC 57), the Court emphasized that dying declarations require no rigid format and that minor inconsistencies cannot undermine their credibility if the statement is found truthful and voluntary.
Mitesh @ T.V. Vaghela v. State of Gujarat
Similarly, in Mitesh @ T.V. Vaghela v. State of Gujarat (2026 INSC 469), the conviction was upheld solely on a trustworthy dying declaration. The Court has also clarified that an imminent expectation of death is not essential under Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Section 32(1) of the Indian Evidence Act), and statements recorded even days before death remain admissible.
Collectively, these decisions reinforce that voluntariness, truthfulness, and overall reliability are the decisive factors in assessing dying declarations.
Key Takeaways on Dying Declarations
- Section 26 of the BSA, 2023, governs the law relating to dying declarations.
- A dying declaration may be written, oral, electronic, or communicated through signs and gestures.
- A judicial magistrate is generally preferred for recording a dying declaration.
- A declaration recorded by a doctor or police officer is not automatically inadmissible.
- A truthful and voluntary dying declaration may be sufficient by itself to sustain a conviction.
- An expectation of imminent death is not essential under Indian law.
- Courts carefully examine mental fitness, voluntariness, consistency, and the possibility of tutoring.
- Multiple inconsistent dying declarations require careful judicial scrutiny.
Conclusion
A dying declaration is one of the most valuable forms of evidence in criminal jurisprudence. While the law recognizes its exceptional evidentiary value under Section 26 of the Bharatiya Sakshya Adhiniyam, 2023, courts insist that it must be voluntary, truthful, and made by a person in a fit mental condition. Proper recording, prompt medical attention, and careful investigation under the Bharatiya Nagarik Suraksha Sanhita, 2023, ensure that the declaration retains its credibility and serves the ends of justice.
