Comparative Study Of Dying Declarations Under The Indian Evidence Act, 1872 And Bharatiya Sakshya Adhiniyam, 2023

Abstract:

A Dying Declaration means the statement of a person who has died explaining the circumstance of his death, which stands as a profound exception to the rule against hearsay evidence, founded on the principle that a person at the verge of death will always speak the truth. Such statement can be proved when it is made by a person as to the cause of his death or as to any of the circumstances of the event that led to his death. This report undertakes a comparative analysis of its treatment under section 32 (1) of the Indian Evidence Act, 1872 (IEA) and the corresponding Section 26 (a) of its successor, the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The analysis reveals that the BSA largely re-codifies the existing provision with only minor updates, making no substantive change to the doctrine’s scope or application. This report argues that the legislative transition is re-packing rather than reform. This analysis will reveal that Section 26 (a) of BSA has introduced an important change in the evidentiary landscape. This analysis will examine the foundational principles, statutory provisions and judicial interpretations that have shaped the Indian Evidence Act for over a century and how those same principles and provisions will guide its judicial interpretations under the new act. The conclusion is based on continued application of this doctrine, where the core recipe remains unchanged, even if served in a new legislative dish.

Keywords: Dying Declaration, Section 32 (1), Indian Evidence Act, 1872 (IEA), Section 26 (A), Bharatiya Sakshya Adhiniyam, 2023 (BSA), Statement, Comparative Analysis, Foundational Principles, Statutory Provisions And Judicial Interpretations

 INTRODUCTION: 

In a recent 2024 decision, the Supreme Court of India was faced with the case of Shahin Praveen, a woman who has been set ablaze over a property dispute. In her final moments, she gave a dying declaration naming her brother-in-law, Pappi@Mashkoor, as the one who poured kerosene on her and lit the fire. While two other relatives were also implicated, her statement was specific only about pappi’s role. The Court, placing its full confidence in this final testament, upheld Pappi’s life sentence based solely on the declaration, while acquitting the others for lack of specific evidence.  This case Naeem v. State of Uttar Pradesh, powerfully illustrates the immense evidentiary weight a dying declaration can carry, often becoming a matter of life and death in the pursuit of justice.

The doctrine of Dying declaration is a critical and enduring exception to the general rule excluding hearsay evidence. Its admissibility rests on two foundational principles; first, the principle of necessity, as the victim is often the only eyewitness to the crime that led to their demise, and their exclusion would defeat the ends of justice; and second, a profound presumption of truth, encapsulated in the Latin maxim Nemo Moriturus Praesumitur Mentire – “a man will not meet their maker with a lie on their lips”. The solemnity of impending death is believed to create a sanction equal to the obligation of an oath.

Bharatiya Sakshya Adhiniyam (BSA) came into force on July 1, 2024 replacing the Indian Evidence Act, 1872. Section 26(a) of BSA replaced Section 32(1) of Indian Evidence Act which deals with Dying Declaration. This recent transition prompts a critical question of whether foundational evidentiary principles have been reformed or merely renumbered.

1. LEGAL FRAMEWORK OF DYING DECLARATION (IEA):

1.1 The Foundational Principle Of IEA: Nemo Moriturus Praesumitur Mentire

For over 150 years the concept of dying declaration has allowed the words of a deceased victim to be heard in the court of law. The doctrine of dying declaration is built upon the philosophical foundation of the legal maxim Nemo Moriturus Praesumitur Mentire – “a man will not meet their maker with a lie on their lips”. The solemnity of impending death is believed to create a sanction equal to the obligation of an oath.

This principle establishes a powerful presumption that a person on the verge of death, facing divine judgement will not lie during his last breath. He is compelled by the most solemn considerations to speak the truth. The law considers impending death to be equivalent to the obligation of judicial oath.

1.2 Statutory Mandate: Section 32 (1) Of The IEA

The doctrine is formally enshrined in section 32 (1) if the Indian Evidence Act, 1872. The provision states:

“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.”

Dying Declaration means 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:

1. When it relates to cause of their death
2. When the statement is made in course of business such as, entry in books, or acknowledgement or the receipt of any property, or date of a document.
3. when the statement made is against the person’s financial (pecuniary) or property (proprietary) interests, or when if true, would expose him or would have exposed him to a criminal charge or a lawsuit for damages.
4. When it gives opinion as to a public right or custom or matters of general interest and it was made before any controversy as to such or custom has arisen.
5. When it relates to the existence of any relationship between persons as to whose relationship the maker had special means of knowledge and was made before the question in dispute arose.
6. When it relates to the existence of any relationship between deceased persons and is made in any will or deed or family pedigree, or upon any tombstone on family portrait and was made before the question in dispute arose.
7. When it is contained in any deed, will or other document.
8. When it is made by a number of persons ad expresses feelings relevant to the matter in question.

1.3 Conditions for admissibility:

The Indian courts have established a set of necessary, non-negotiable conditions that a statement must meet to be admitted as a dying declaration:

1. The Declarant Must Die: The person who made the statement must have subsequently passed away. If the declarant survives, the statement cannot be admitted as a dying declaration under section 32 (1). It may, however, be used to corroborate their testimony in court.
2. Nexus with Cause of Death: The statement must have a proximate relationship with the cause of death or the circumstances of the transaction that led to it.
3. Mental Fitness of the Declarant; the person making the declaration must have been in a sound and fit state of mind, capable of rational comprehension and clear communication. A certificate from a medical professional attesting to the declarant’s fitness carries significant weight, though it is not an absolute prerequisite. If other evidence convincingly establishes the declarant’s competency, the absence of a doctor’s certificate is not fatal to the declaration admissibility.
4. Volunatriness: the statement must be the declarant’s own, made freely and voluntarily. It must not be the result of torturing, prompting, coercion, or the product of imagination.
5. Completeness: The declaration must be complete. If the declarant fails to complete the statement due to death or unconsciousness, it is generally considered in admissible, as the intended meaning cannot be definitively ascertained.

The judiciary’s heavy emphasis on “mental fitness” and “voluntariness” is a direct consequence of the statutory removal of the “expectation of death” requirement. These judicially crafted safeguards serve as a crucial substitute. The courts, deprived of the common law’s primary test for reliability, have elevated these other factors to become the new cornerstone of credibility. The admissibility of a dying declaration in India hinges less on the declarant’s spiritual state and more on the court’s satisfaction with the procedural integrity of its recording and the cognitive state of the declarant.

1.4 Forms, Procedures And Hierarchy:

The law is pragmatic and flexible regarding the form of a dying declaration. There is no prescribed format and a declaration can be made in various ways:

1. Oral: a verbal statement to another person, who then testifies in court.
2. Written: A statement recorded by any individual, ideally in the declarant’s own words and language to enhance authenticity.
3. Gestures and Signs: When a declarant is unable to speak due to injury, non-verbal communication like nods, signs, or gestures are admissible. This was famously established in the case of Queen Empress v. Abdullah and reaffirmed in modern cases, such as in Nirbhaya case.
4. Question and answer format: This format is often preferred by courts as it can provide specific and clear information. A statement recorded in a narrative form is equally valid.
5. First Information Report (FIR): an FIR lodged by an injured person who subsequently dies can be treated as a dying declaration, as held in Ramachanda Reddy v. Public Prosecutor.

While the form is flexible, the courts have established a clear hierarchy regarding the credibility of the person recording the declaration. The declaration can be recorded by the Judicial Magistrate, Doctor, Police Officer, Family Members or Private Citizens.

1.5 Judicial Precedents:

• Khushal Rao v. State of Bombay (1958): It established that there was no absolute requirement for corroboration and that a true, voluntary declaration can be the sole basis for conviction. The Court also noted that a declaration recorded by a competent magistrate in a question-and-answer format stands on a much higher evidentiary footing than an oral one, which is subject to frailties of human memory.
• Laxman v. State of Maharashtra (2002): this judgement clarified that a doctor’s certification of the declarant’s mental fitness is a valuable rule of caution but not an absolute prerequisite.
• V. Radhakrishna v. State of Karnataka (2003): this judgement reinforced the judicial approach to multiple dying declarations. If the declarations are materially inconsistent and contradictory, they cannot be relied upon to convict the accused without strong independent corroborative evidence.

2. THE BHARATIYA SAKSHYA ADHINIYAM, 2023:

2.1 Necessity And Legislative Shift

The stated purpose behind replacing the colonial-era Indian Evidence Act was twofold. Firstly, it was part of a broader political project to decolonize Indian’s foundational criminal laws and replace them with the legislation that reflects the “Indian spirit”. Secondly, there was a pressing and undeniable need to modernize the laws of evidence to align it with the technological realities of the 21^st century.

The primary practical driver of the BSA was to create a legal framework that could effectively govern the admissibility and evaluation of electronic and digital evidence, ensuring the principles of evidence remained relevant for a fair trial in the modern era. The BSA is more of a massive technological update rather than a philosophical rewrite.

2.2 Key Updates:

The most significant change in the BSA is its comprehensive approach to electronic and digital evidence, bringing the law in line with technological advancements. Under the IEA, electronic records were treated as secondary evidence. The BSA fundamentally changes this by classifying electronic records as primary evidence. The definition of “document” in the BSA now explicitly includes “electronic and digital records.” This covers a wide range of digital information, such as emails, server logs, messages on smartphones, websites, and locational evidence. It adds “coercion” as a ground for making a confession irrelevant, alongside the existing grounds of inducement, threat, or promise.

Wile the foundational principles of evidence law remain largely the same, the Bharatiya Sakshya Adhiniyam, 2023, represents a significant legislative update. Its primary focus is on modernizing the legal framework to effectively address the challenges and realities of the digital age, particularly by elevating the status of electronic evidence and clarifying the procedures for its admission in court.

3. CRITICAL ANALYSIS – SAME RECIPE, NEW DISH?

The comparative study of dying declarations under Section 32(1) of the Indian Evidence Act, 1872 and Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023 reveals that while the legislative framework has been updated, the doctrinal essence remains unchanged. The BSA retains the foundational principle of Nemo Moriturus Praesumitur Mentire, preserving the presumption that a person on the verge of death speaks the truth. Though the statutory language has shifted, the admissibility conditions—mental fitness, voluntariness, nexus with death, and completeness—continue to be shaped by judicial interpretation rather than textual innovation. The BSA’s modernization primarily targets electronic evidence, leaving the treatment of dying declarations largely intact. This continuity ensures that the vast body of case law built over 150 years remains relevant, with courts still relying on procedural safeguards and evidentiary discretion. Thus, the transition is best understood as a legislative repackaging— “same recipe, new dish”—where the evidentiary weight and practical application of dying declarations remain rooted in precedent, not reform.

4. CONCLUSION:

The transition from the Indian Evidence Act, 1872, to the Bharatiya Sakshya Adhiniyam, 2023, represents a moment of legislative consolidation rather than substantive reform for the doctrine of dying declarations. The BSA’s Section 26(a) retains the functional and textual core of its predecessor, Section 32(1) of the IEA, ensuring that the vast edifice of case law built over 150 years remains the primary source of law on the subject. The reliability of this crucial piece of evidence continues to be a matter of practice, not text; of judicial caution, not statutory command. In answering the titular question, the BSA serves not a “new dish,” but the very same recipe, perhaps with refined plating and a modernized menu description. The core ingredients, meticulously selected and balanced by generations of judicial wisdom, remain fundamentally unchanged.

REFERENCE(S):

1. Indian Evidence Act, No. 1 of 1872, S 32 (1), India Code (1872).
2. Bharatiya Sakshya Adhiniyam, No. 47 of 2023, S 26 (a), Gazette of India, July 1, 2024.
3. Khushal Rao v. State of Bombay, (1958) SCR 552 (India).
4. Laxman v. State of Maharashtra, (2002) 6 SCC 710 (India).
5. P.V. Radhakrishna v. State of Karnataka, (2003) 6 SCC 443 (India).
6. Queen Empress v. Abdullah, (1885) ILR 7 All 385 (India).
7. K. Ramachandra Reddy v. Public Prosecutor, (1976) 3 SCC 618 (India).
8. Naeem v. State of Uttar Pradesh, 2024 SCC Online SC 456 (India).
9. Adv. Hemant More, Dying Declaration (S. 26(a) BSA), The Legal Quotient (Mar. 28, 2025), https://thelegalquotient.com/procedural-laws/bharatiya-sakshya-adhiniyam-bsa/dying-declaration-s-26a-bsa/6599/.
10. Bureau of Police Research & Development, Correspondence Table and Comparison Summary of the Bharatiya Sakshya Adhiniyam, 2023 and the Indian Evidence Act, 1872, https://bprd.nic.in/uploads/pdf/Comparison%20Summary%20BSA%20to%20IEA.pdf.
11. Principles of Dying Declaration, Drishti Judiciary (May 27, 2024), https://www.drishtijudiciary.com/current-affairs/principles-of-dying-declaration.