Abstract

The dying declaration is a key element of evidentiary law, especially in criminal trials related to homicide or unnatural deaths. With the passing of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), India has introduced important changes in evidence law, replacing the Indian Evidence Act of 1872. This paper examines the concept, legal foundation, and judicial handling of dying declarations under the BSA. It looks at procedural safeguards, evidentiary value, and admissibility, while also discussing challenges and suggesting ways to improve implementation in line with current legal standards.

The concept of dying declaration is crucial in evidentiary law, particularly in unnatural death or homicide cases. The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaces the Indian Evidence Act, 1872, maintains and restates the legal basis for dying declarations under Section 26. This section permits statements made by a person who dies regarding the cause or circumstances of their death, even if these statements would normally be considered hearsay.

This paper explores the scope, significance, and judicial interpretation of dying declarations under the BSA, while emphasizing procedural safeguards, evidentiary issues, and different legal viewpoints. Despite its limitations, the dying declaration remains an essential tool in seeking justice, provided it is recorded and assessed carefully and fairly.

Introduction

In criminal law, statements from victims who do not survive to testify create a unique evidentiary issue. Understanding the importance of these statements, legal systems have created the doctrine of the dying declaration. This is a statement made by someone who is close to death, outlining the circumstances of their death. The Bharatiya Sakshya Adhiniyam, 2023, modernizes the law and continues to acknowledge and regulate dying declarations under Section 26.

The main idea behind admitting such statements is the belief that a person facing imminent death is not likely to lie. This belief, based on the principle nemo moriturus praesumitur mentire, justifies using dying declarations as an exception to the hearsay rule. However, the evidentiary weight of these statements must be weighed against risks like coercion, misinterpretation, or improper recording.

Legal Provision under the Bharatiya Sakshya Adhiniyam, 2023

1. Section 26 – Statements of Persons Who Cannot Be Called as Witnesses

   Section 26 of the BSA, 2023, replaces Section 32(1) of the Indian Evidence Act. It states:

   “Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who is unable to give evidence… are relevant when the statement is made by a person about the cause of their death or about any circumstances of the event leading to their death, where the cause of that person’s death is in question.”

This provision keeps the core legal essence of the older Act but uses simpler language and aligns it with current legal standards.

Essentials of a Valid Dying Declaration

For a dying declaration to be considered admissible and reliable under the BSA, the following conditions must usually be met:

• The declarant must be dead: The statement is relevant only when the person who made it has died and the cause of death is in question.
• Statement must relate to the cause or circumstances of death: It should concern the event or surrounding facts leading to the death.
• Voluntariness: The declaration must be made freely, without any coercion.
• Mental fitness of the declarant: The person must be in a sound state of mind when making the statement.
• Proper recording: Ideally by a magistrate or doctor, but in urgent situations, police officers or even laypersons may record it.

Evidentiary Value of Dying Declaration

The BSA does not require corroboration for a dying declaration to serve as a basis for conviction. Indian courts have consistently ruled that if a dying declaration is found to be true, voluntary, and free from coaching, it can be the sole basis for conviction.

Key Case Law

• Khushal Rao v. State of Bombay (1958): The Supreme Court decided that a dying declaration can stand alone as a basis for conviction if it meets the reliability standards.
• Laxman v. State of Maharashtra (2002): The Court determined that proof of the declarant’s mental fitness is not required but is advisable.
• Puran Chand v. State of Haryana (2010): The court reaffirmed that multiple dying declarations need to be consistent and credible.

Form and Method of Recording

1. Who Can Record a Dying Declaration?

   • Magistrate (preferred method)
   • Doctor
   • Police Officer
   • Ordinary person, in urgent situations

2. Best Practices Under BSA

   • Ensure mental fitness of the declarant.
   • Record in the declarant’s own words.
   • Avoid leading questions or prompting.
   • Read over the statement to the declarant for confirmation.
   • Signature or thumb impression should be collected if possible.
   • Audio-video recording is recommended for transparency.

Comparative Legal Position

1. United Kingdom

   Dying declarations are admissible only in homicide cases and only when the declarant believes death is imminent.

2. United States

   Under the Federal Rules of Evidence (804(b)(2)) dying declarations are allowed in civil and homicide criminal cases, requiring that the declarant believes death is imminent.

3. India (Under BSA, 2023)

   The Indian position is broader, not necessitating an explicit expectation of death. The statement is admissible as long as it relates to the cause or circumstances of death and the declarant dies before trial.

Challenges and Concerns

Despite its usefulness, the dying declaration faces several challenges:

• Possibility of tutoring or coercion
• Difficulty in confirming voluntariness
• Improper recording by untrained personnel
• Lack of cross-examination

These issues can compromise the fairness of a trial, especially in capital punishment cases where the dying declaration may be the only evidence.

Recommendations for Reform

To ensure fair application of Section 26 of the BSA:

• Mandatory audio-video recording of dying declarations.
• Standard operating procedures for police and medical staff.
• Training for personnel likely to record such statements.
• Clear judicial guidelines on evaluating the credibility of inconsistent or multiple dying declarations.
• Creation of a digital registry for dying declarations.

Conclusion

The dying declaration remains an important evidentiary tool in criminal trials involving unnatural deaths. Under the Bharatiya Sakshya Adhiniyam, 2023, its importance continues, but with a modernized and simplified legal framework. While courts have consistently affirmed its admissibility and significance, it is vital to establish safeguards to ensure these declarations are made freely, recorded properly, and assessed carefully. The ongoing development of legal procedures, especially with technology integration, will further enhance the reliability of dying declarations in India’s criminal justice system.

References:

• Bharatiya Sakshya Adhiniyam, 2023 – Section 26
• Khushal Rao v. State of Bombay AIR 1958 SC 22
• Laxman v. State of Maharashtra, (2002) 6 SCC 710
• Puran Chand v. State of Haryana, (2010) 6 SCC 566
• Federal Rules of Evidence, Rule 804(b)(2), USA
• Ratanlal & Dhirajlal, Law of Evidence, LexisNexis
• Sarkar on Evidence, 18th Edition

Written By: Devanshi Rana