Dying Declaration Under the Bharatiya Sakshya Adhiniyam, 2023: Evidentiary Value and Legal Nuances

The transition from the Indian Evidence Act, 1872 to the Bharatiya Sakshya Adhiniyam, 2023 (BSA) marks a historic overhaul of India's evidentiary regime. Amid these legislative shifts, the legal sanctity accorded to a dying declaration remains one of the most critical instruments in criminal trials, especially in homicides, dowry deaths, and custodial offences.

Rooted in the ancient legal maxim nemo moriturus praesumitur mentire—a person will not meet their maker with a lie in their mouth—the statement of a dying person carries immense legal weight. Under the new criminal law framework, which operates alongside the Bharatiya Nyaya Sanhita, 2023 (BNS) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), understanding the exact statutory and procedural standing of a dying declaration is crucial for practitioners, litigants, and law enforcement agencies alike.

Statutory Framework: Section 26 of the Bharatiya Sakshya Adhiniyam, 2023

Under the old law, Section 32(1) of the Indian Evidence Act governed dying declarations. In the modern framework, this principle is codified primarily under Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023.

Section 26 provides that statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or whose attendance cannot be procured without unreasonable delay or expense, are admissible in evidence.

Specifically, under Section 26(a), a statement is admissible:

"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."

The provision further clarifies that such statements are admissible regardless of whether the person 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 their death comes into question.

Significant Continuity with Modern Context

While the substantive core of Section 32(1) remains intact under Section 26(a) of the BSA, the new Act modernizes evidentiary rules by explicitly integrating electronic and digital records. Under the BSA, statements recorded via audio-visual electronic means are granted broader statutory recognition, impacting how statements of severely injured persons can be memorialized in digital formats.

Essential Ingredients for Admissibility

For a statement to qualify as a valid dying declaration under Section 26(a) of the BSA, the following conditions must be satisfied:

Death of the Declarant: The person who made the statement must have died. If the declarant survives, the statement cannot be treated as a dying declaration under Section 26(a); instead, it may be used as a previous statement to corroborate or contradict their testimony under relevant provisions of the BSA.
Nexus with Cause of Death: The statement must explicitly pertain to the cause of the declarant's death or the circumstances of the transaction that resulted in death.
Proximity of Time and Causation: While the declarant need not be in immediate apprehension of death (unlike English Common Law), the circumstance described must have a proximate and direct bearing on the ultimate fatal event.
Mental Fitness (Compos Mentis): The declarant must possess the physical and cognitive capacity to comprehend questions and make conscious, rational answers at the time of recording.

Permissible Forms of a Dying Declaration

The law does not mandate a rigid format for a dying declaration. Under the BSA, courts admit declarations recorded in several forms, provided their authenticity is beyond reproach:

Written Declarations: Recorded verbatim in the declarant's own words, read back, and affixed with a signature or thumb impression.
Oral Declarations: Spoken statements made to witnesses, such as attending physicians, relatives, or police officers.
Signs and Gestures: When a victim is unable to speak due to extensive burns or physical trauma, clear gestures and signs made in response to specific inquiries can be admitted as evidence.
Electronic and Video Recordings: Recorded via smartphones, body cameras, or institutional video setups. Under the BSA's expanded framework for electronic evidence, audio-visual recordings of dying declarations are increasingly relied upon, provided chain-of-custody and certificate requirements under Section 63 of the BSA are satisfied.

Procedure and Best Practices for Recording

The probative reliability of a dying declaration depends largely on who records it and the conditions under which it is taken.

1. Recording by a Magistrate

The most credible form of dying declaration is one recorded by a Judicial Magistrate or Executive Magistrate. Magistrates are trained to adhere to standard procedures:

Ensuring the room is cleared of interested parties or relatives who might tutor the victim.
Recording the statement in a question-and-answer format.
Sticking strictly to the victim's exact language and words.

2. Medical Certification of Mental Fitness

Before and during the recording, an attending medical officer should certify that the patient is conscious, coherent, and in a fit state of mind (compos mentis). An endorsement made on the declaration sheet confirming mental fitness before the statement begins and after it concludes provides robust evidentiary backing against allegations of incoherence or delirium.

3. Police Officers and Private Persons

While a declaration recorded by a police officer or private person is not inadmissible per se, courts scrutinize such records with greater caution. In trials under BNS charges (such as Section 103 for murder or Section 80 for dowry death), courts evaluate whether the police had sufficient time to summon a Magistrate before stepping in to record the statement themselves.

Evidentiary Value: Can It Form the Sole Basis of Conviction?

It is settled jurisprudence that a dying declaration can form the sole basis of conviction without independent corroboration, provided the court is satisfied that the statement:

Is truthful, voluntary, and natural.
Was not the result of tutoring, prompting, or imagination.
Was made by a person who was physically and mentally capable of understanding what was being said.

However, if the court finds infirmities—such as suspicious delays, unexplained discrepancies, signs of tutoring, or serious medical doubts regarding the victim's consciousness—the court will insist on corroborating material before convicting an accused.

Handling Multiple Dying Declarations

In complex criminal proceedings, victims may give multiple declarations (e.g., first to an attending doctor, then to a police officer, and finally to a Magistrate). In such cases, Indian courts adhere to clear principles:

Minor discrepancies in non-essential details do not destroy the prosecution's case.
If there are irreconcilable or material contradictions regarding the identity of the assailants or the core sequence of events, the court cannot arbitrarily pick one version over another. The benefit of such reasonable doubt invariably goes to the accused.

Frequently Asked Questions (FAQs)

1. What happens if the person making the dying declaration survives?

If the declarant survives, the statement loses its character as a dying declaration under Section 26(a) of the BSA. It cannot be used as substantive evidence of the cause of death. However, it can be used during trial to corroborate their testimony or contradict them as a prior statement under the BSA.

2. Is a doctor's fitness certificate strictly mandatory for a dying declaration to be valid?

While an explicit medical certificate of mental fitness is highly desirable and carries strong persuasive value, the absence of an endorsement does not automatically render the declaration void. If the person who recorded the declaration can convincingly depose that the victim was fully conscious, alert, and oriented, the court may accept the declaration.

3. How does the Bharatiya Sakshya Adhiniyam, 2023 affect video-recorded dying declarations?

The BSA emphasizes the admissibility of electronic records. A video-recorded dying declaration is admissible as direct electronic evidence, provided the recording device's integrity is preserved and the requisite electronic record certifications under Section 63 of the BSA are submitted during trial.

Conclusion

The evidentiary regime under Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023 preserves the sanctity of dying declarations while adjusting to modern digital realities. For criminal defense advocates and prosecutors alike, meticulous adherence to procedural safeguards—mental fitness, absence of tutoring, and transparent recording—remains decisive in determining whether a declaration will stand up to judicial scrutiny.

If you require comprehensive legal guidance or representation regarding criminal proceedings, trial strategy, or evidence law under the new criminal acts, reach out to APS Law. Our legal team assists clients across Mumbai, Thane, and Mira Road.