Dying Declarations: Their Evidentiary Significance in Legal Proceedings

In criminal trials, the victim is often the most critical witness – but what happens when that witness dies before they can testify? Indian law has a clear answer: their last words may still speak in court. A dying declaration is a statement made by a person regarding the cause of their death or the circumstances surrounding it. Courts treat these words with exceptional seriousness, grounded in the age-old legal presumption that nemo moriturns praesumitur mentiri – a person about to die is presumed not to lie. Far from being a legal relic, the dying declaration remains one of the most powerful pieces of evidence in India’s criminal justice system today.

Legal basis: from the Indian Evidence Act to the Bharatiya Sakshya Adhiniyam
The rationale behind admissibility
Essentials of a valid dying declaration
Forms a dying declaration can take
Who should record a dying declaration?
Evidentiary value and the question of corroboration
Key judicial principles in a nutshell
India vs. England: a comparative note
Dying declarations under the BSA 2023: what’s new?

Legal basis: from the Indian Evidence Act to the Bharatiya Sakshya Adhiniyam

Historically, the dying declaration found its home in Section 32(1) of the Indian Evidence Act, 1872. The provision made statements by a deceased person admissible when they related to the cause of death or the circumstances of the transaction resulting in death. With the enactment of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), this position continues unchanged – now governed by Section 26(a) of the BSA. The language of the provision is virtually identical to its predecessor, which means all landmark judicial interpretations under the old law remain fully applicable.

Crucially, Indian law takes a significantly broader stance than English law on this point. Under English law, a dying declaration is admissible only in criminal cases of homicide or manslaughter, and the declarant must have been under a settled expectation of imminent death. Indian law imposes neither restriction – a dying declaration is admissible in both civil and criminal proceedings, and the declarant need not have been expecting death at the time of making the statement. This reflects a fundamentally necessity-driven rationale: in many crimes, the victim is the only eyewitness, and excluding their statement could defeat the ends of justice entirely.

The rationale behind admissibility

A dying declaration is, at its core, hearsay evidence – it is a statement made outside the courtroom by someone who cannot be cross-examined. Hearsay is generally inadmissible in Indian courts, but Section 26(a) of the BSA carves out a specific exception. Two justifications underpin this exception:

First, there is necessity. The victim is often the only person who directly witnessed the offence. If their statement is excluded, justice may become impossible to achieve. Second, there is the presumed sanctity of last words. As explained in K.R. Reddy v. Public Prosecutor, a person on the verge of death is unlikely to falsely implicate an innocent person – the moral weight of impending death is considered an obligation equivalent to an oath administered in court. This is why courts treat a dying declaration as substantive evidence capable of forming the sole basis of conviction, without requiring corroboration.

Essentials of a valid dying declaration

Not every statement made by a dying person automatically qualifies as a dying declaration. For it to be admissible, several core conditions must be satisfied:

The declarant must have died. If the person who made the statement survives, their statement cannot be used as a dying declaration under Section 26(a). In Maqsoodan & Others v. State of Uttar Pradesh, the court confirmed that survival of the declarant disqualifies the statement from being treated as a dying declaration – though it may still be used for corroboration.

The statement must relate to cause of death or circumstances of the transaction. The statement must have a proximate connection to the events that led to the declarant’s death. General expressions of fear or suspicion – not tied to the specific occasion of death – are not admissible. In the foundational case of Pakala Narayana Swami v. Emperor (1939), the Privy Council clarified that a statement about going to a specific person’s house to collect money – when the person was later found murdered – constituted a relevant circumstance of the transaction. The phrase “circumstances of the transaction” carries a specific legal meaning: narrower than res gestae but requiring a proximate relation to the actual occurrence.

The cause of death must be in question. A dying declaration only becomes relevant when the cause of the declarant’s death is directly at issue in the proceedings.

The declarant must have been in a fit mental state. Courts require that the person making the declaration was conscious, coherent, and capable of understanding and communicating what happened. A declaration made while the person was under sedation, in a confused state, or otherwise mentally unfit carries little evidentiary weight.

The statement must not be the product of tutoring or coercion. As laid down by the Supreme Court in Mallella Shyamsunder v. State of A.P. and reiterated across multiple judgments, courts must be satisfied that the declaration was made voluntarily and was not shaped by prompting, coaching, or external pressure.

Forms a dying declaration can take

The law places no restriction on the form a dying declaration must take. Section 26(a) of the BSA recognizes oral, written, and non-verbal communications as valid. In the landmark case of Queen Empress v. Abdullah, the declarant’s throat had been cut and she was unable to speak. She identified her attacker through signs and gestures. The court held that questions and signs taken together constituted a verbal statement within the meaning of Section 32 of the Indian Evidence Act. With technological advancements, even audio or video recordings may be admitted if their authenticity is established.

There is also no prescribed format. While declarations recorded in a question-and-answer format are preferred – as they more clearly capture what exactly was asked and what was answered – a narrative statement is equally valid. The absence of a question-answer format does not diminish the declaration’s evidentiary value.

Who should record a dying declaration?

The law does not specify who must record a dying declaration. It can be made to anyone – a relative, a friend, a police officer, a doctor, or even a stranger. However, a declaration recorded by a judicial magistrate carries the highest probative value. Best practice requires a fitness certificate from the attending physician before a magistrate records the statement, and the declaration should be sent directly to the court without being routed through the police.

A declaration recorded only by a police officer is not automatically unreliable, but courts tend to subject it to closer scrutiny. Notably, an FIR recorded by police has been treated as a dying declaration by the Supreme Court in cases where the declarant subsequently died. Under the BSA 2023, the declaration is not subject to Section 181 of the Bharatiya Nagarik Suraksha Sanhita – the provision that applies to confessions and statements recorded during investigation.

Evidentiary value and the question of corroboration

One of the most significant principles governing dying declarations is that corroboration is not a mandatory requirement. In the landmark ruling of Khushal Rao v. State of Bombay (1958), the Supreme Court held clearly that there is no absolute rule of law – or even of prudence – requiring a dying declaration to be corroborated before it can form the basis of a conviction. If the court is satisfied that the declaration is true, voluntary, and reliable, a conviction can rest on it alone.

That said, courts are expected to apply careful scrutiny. The factors courts weigh include the consistency and coherence of the statement, the declarant’s opportunity to observe and identify the accused, whether the statement was made at the earliest opportunity, and whether it was free from the influence of interested parties. Where a dying declaration appears suspicious, is inconsistent with the prosecution’s version, or is incomplete in a material way, courts may require corroborating evidence before acting on it.

The Supreme Court in Laxman v. State of Maharashtra clarified that dying declarations can take varied forms as long as the communication is clear and affirmative. In Kashmira Devi v. State of Uttarakhand, it was affirmed that when multiple dying declarations exist, each must be assessed independently on its own merit – rejection of one cannot automatically invalidate the others.

Key judicial principles in a nutshell

Over decades of judicial interpretation, the Supreme Court has consistently crystallised the governing principles. These are well-summarised across rulings from Khushal Rao (1958) to Sher Singh v. State of Punjab (2008): the declaration stands on the same footing as any other evidence and must be judged in light of all surrounding circumstances; a magistrate-recorded declaration carries higher probative force than one recorded through oral testimony; the court must be convinced that the declarant was mentally fit, had a clear opportunity to observe the accused, and spoke without external influence; and where the declaration is voluntary, credible, and consistent, a great degree of sanctity is attached to it and it can form the sole basis for conviction.

India vs. England: a comparative note

The contrast with English law is worth noting because it underscores the deliberate policy choice Indian law has made. Under English law, the doctrine of dying declaration is narrow – restricted to homicide cases and conditioned on the declarant having had a settled, hopeless expectation of imminent death. Indian law has consciously rejected both limitations. The declarant need not have expected death, and the declaration is admissible across all civil and criminal proceedings where the cause of death is in question. This broader approach reflects India’s pragmatic recognition that truth must be preserved even when the only available witness is the victim themselves.

Dying declarations under the BSA 2023: what’s new?

The Bharatiya Sakshya Adhiniyam, 2023 does not fundamentally alter the substantive law on dying declarations – the provision in Section 26(a) mirrors Section 32(1) of the Indian Evidence Act almost verbatim. What the new law signals, however, is a push toward modernisation of procedure. Legal scholars and courts have advocated for mandatory audio-video recording of dying declarations, standard operating procedures for both medical and law enforcement personnel involved in recording them, and the eventual creation of a digital registry. These reforms aim to reduce the risks of tutoring, misinterpretation, and contested authenticity – vulnerabilities that have historically weakened the value of otherwise strong declarations.

The BSA 2023 also broadens recognition of non-verbal and technologically recorded communications, which is especially significant in an era where hospital-based recordings and electronic documentation are increasingly routine.

What do you think? If a dying declaration is the only evidence in a murder case and it was recorded without a magistrate’s presence, should courts be more cautious in convicting – or does the presumption against lying before death make the recorder’s identity secondary? And given the technological tools available today, should India make audio-video recording of dying declarations mandatory by statute rather than leaving it to judicial discretion?

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Table of Contents

Legal basis: from the Indian Evidence Act to the Bharatiya Sakshya Adhiniyam 🔗

The rationale behind admissibility 🔗

Essentials of a valid dying declaration 🔗

Forms a dying declaration can take 🔗

Who should record a dying declaration? 🔗

Evidentiary value and the question of corroboration 🔗

Key judicial principles in a nutshell 🔗

India vs. England: a comparative note 🔗

Dying declarations under the BSA 2023: what’s new? 🔗