Dying Declaration: Statements by Persons who cannot be called as witnesses

Section 26 deals with relevancy of statements made by persons who cannot be called as witnesses. It is an exception to the general rule contained in Section 55 that oral evidence must in all cases be direct. According to Section 26 a statement (written or verbal) of relevant facts made by a person -

i. Who is dead;

ii. Who cannot be found;

iii. Who has become incapable of giving evidence;

iv. Whose attendance cannot be procured without unreasonable delay or expense, is relevant under the following circumstances:- 

a. When it relates to cause of death [Section 26(a)];

b. When it is made in the course of business [Section 26(b)]; 

c. When it is against the interest of maker [Section 26(c)];

d. When it gives opinion as to public right or custom, or matters of general interest [Section 26(d)];

e. When it relates to existence of relationship [Section 26(e)];

f. When it is made in will on deed relating to family affairs [Section 26(f)]

g. When it is in document relating to transaction mentioned in Section 11(a) [Section 26(g)];

h. When it is made by several persons and expresses feelings relevant to matter in question [Section 26(h)].

The Principle underlying Section 26 is that if the person who has first-hand knowledge of the case but who cannot be produced in the court for the reasons mentioned in Section 26 then that knowledge should be given to the court through some other person. It also stands as an exception to hearsay evidence.

Dying Declaration

'Dying declaration' is not define in the Bhartiya Sakshya Adhiniyam but the concept of dying declaration is contained under Section 26(a) of the Adhiniyam.

Meaning of dying declaration

According to Section 26(a) of the Bharatiya Sakshya Adhiniyam dying declaration is a statement made by a person who is dead, as to cause death of his death or as to any circumstances of transaction which resulted in his death, in cases in which his death comes into question. Such statements are relevant under Section 26(a) of BSA whether the maker of the statement was or was not under the expectation of death at the time when they were made.

Essential of Section 26(a)

Following are the essentials of Section 26(a):-

i. It is a statement oral or written;

ii. Statement is an to the cause of death or any of the circumstances of the transaction which resulted in death;

iii. Death of the person who made the statement is must;

iv. Expectancy of death while making the statement is not necessary;

v. Cause of death of the deceased must be in question;

vi. It can be either in civil or criminal proceedings.

Principle behind this provision

Dying declaration is admissible as an exception to the rule of exclusion of hearsay evidence due to necessity. The person who has died is the best source to reveal his cause of death; therefore, it is out of necessity that his declaration is admissible. In R v. Woodcock the court held that when the party is at the point of death and when every hope of this world is gone the very motive of falsehood is silenced. 

Supreme Court in P.V. Radhakrishna v. State of Karnataka, AIR 2003 SC 2859 observed that the principle on which a dying declaration is admitted in evidence is indicated in the maxim nemo moriturus proesumitur mentiri i.e. a man will not meet the maker with a lie in his mounth.

In Uka Ram v. State of Rajasthan, AIR 2001 SC 1814, the Supreme Court held that a sense of impending death produces in man's mind the same feelings as that of a virtuous man under oath and chances of falsehood are totally nullified.

The reasons for accepting dying declaration may be best stated in the words of Shakespeare in Richard II - "Where words are scarce, they are seldom spent in vain, For they breathe truth that breath their words in pain".

Death of person

Before admitting evidence under Section 26, the death of the person whose statement is to be proved must strictly be proved. Where the person making a dying declaration survives, his statement will not be admissible under Section 26. If he survives and gives evidence then his statement can be used to corroborate or contradict his testimony under Section 160 and 148 of BSA respectively.

Form of dying declaration

Bhartiya Sakshya Adhiniyam does not prescribe any particular for of dying declaration. The statement made by the dead person may be oral or in writing. Allahabad High Court in Queen v. Abdullah, ILR 7 ALI 385 held that statement may even be communicated by an adequate method fo communication such as signs or gestures provided the indication is positive and definite.

Supreme Court in Laxman v. State of Maharashtra, (2002) 6 SCC 710 observed that the dying declaration can be oral, in writing or by any adequate method of cummunication  whether by words or by signs provided that the indication must be positive and definite.

Statement relating to cause of death or circumstances of the transaction resulting in death

For admissiblity of dying declaration, it is necessary that it must relate to-

a. Cause of death of the person making it, or

b. Circumstances of the transaction which resulted in his death. 

a. Cause of death: The Statement made by deceased must relate to the cause of his death. For example: 'A' is assaulted and dies. Before his death, he makes statement that B assaulted him with a spear. This statement of A is admissible as it relates to the cause of his death.

b. Circumstances of transaction resulting in his death: The expression is wide in scope and anything which has the nexus with the death of the maker, proximate or remote, can also fall under Section 26(a) of the Adhiniyam.

In Pakalanarayan Swami v. Emperor, AIR 1939 PC 47, the appellant was charged with the offence of murder. The body of the deceased was recovered from a trunk in a railway compartment. One of the evidence against the accused person was the statement made by the wife of the deceased that the deceased received a letter asking him to go to the house of the accused for receiving money due to him.

The Privy Council observed that circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant, i.e., statement is during a series of events in the continuity of which death is caused. The court held that the statement of the deceased made to his wife was admissible in evidence as it related to the circumstances of transaction which resulted in his death.

In Sharad Birdichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 Supreme Court explained the scope of Section 26(a) of BSA. In this case a married woman communicated with her parents through letters expressing danger to her life. She died few months later. Court held her statement admissible as showing circumstances of her death. Court observed that a relationship should exist between the statement and the circumstances of death. Distance and time would depend or vary with the circustances of each case. The court observed that the phrase 'circumstances of the transaction' in Section 32(1) [Now Section 26(a) of BSA] is not as broad as 'circumstantial evidence'. The necessary condition for admissibility of such statement is that there must be proximate relation to the actual occurrence.

Anticipation of death

Anticipation of death is not necessary under Indian law. In Pakla Narayan Swami v. Emperor, AIR 1939 PC 47, Lord Atkin observed that statement under Section 26(a) of BSA may be made before the casue of death has arisen or before the deceased has any reason to anticipate being killed.

This view of Privy Council was accepted by Supreme Court in Kaushal Rao v. State of Bombay, AIR 1958 SC 22. If the statement is made by a person who has died subequently and the statement explains the circumstances surrounding his death, the statement will be relevant even if no cause of death has arisen at the time of making the statement [Bhagirath v. State of Haryana, (1977) 1 SCC 481].

Evidentiary value of dying declaration

The evidentiary value of dying declaration was discussed in detail in Kauchal Rao v. State of Bombay, AIR 1958 SC 22, Supreme Court held that dying declaration is a substantive piece of evidence. There is no absolute rule of law nor is there any rule of prudence which states that dying declaration cannot form the sole basis of conviction unless it is corroborated by independent evidence. Each case must be determined keeping in view facts and circumstances of the case.

In R Mani v. State of Tamil Nadu, (2006) 3 SCC 1661 Supreme Court held that if the dying declaration is coherent, consistent and trustworthy and appears to have been made voluntarily then the conviction can be based on it even if there is no corroboration. 

In Paniben v. State of Madhya Pradesh, AIR 1992 SC 1817 court laid down the following guidelines while deciding upon reliability of dying declaration:

1. If the Court is satisfied that dying declaration is true and voluntary, it can base conviction on it, without corroboration. 

2. The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.

3. Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. 

4. A dying declaration which suffers from infirmity cannot form the basis of conviction. 

5. Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. Equally, merely because it is a bried statement, it is not to be discarded. In fact, shortness of statement itself guarantees truth.

6. Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

7. Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. However, if the dying declaration latter in point of time is more trustworthy, then that may be preferred.

However, conviction of an accused person solely on the basis of dying declaration is not safe as it suffers from the following shortcomings -

i. Being a piece of hearsay evidence it is not made on oath and it cannot be subject to cross-examination in the court.

ii. Made in the extremity, the maker might be physically and mentally in a state of confusion.

iii. The declarant may take advantage of the last opportunity for implicating all his enemies.

In Sampat Babso Kale v. State of Maharashtra, (2019) 4 SCC 739, Supreme Court held that though conviction can solely be based on dying declaration, corroborative evidence may be required when there is doubt as to whether the victim was in a fit state of mind to make the statement.

A dying declaration must be complete from the point of view of the declarant. If after making some statements he is about to state something but he dies then the statement would be incomplete and the dying declaration will not be relevant.

Use of the statement when injured survives: If the declarant survives, then his statement cannot be used as dying declaration under Section 31(1) [now Section 26(a) of BSA]. However, it can be used for corroboration under Section 157 [Now Section 160 of BSA] or for contradiction under Section 145 [now Section 148 of BSA] in case the declarant appears as witness [Maqsoodan v. State of UP., AIR 1983 SC 218]

Multiple dying declaration

In State of M.P v. Dhirendra Kumar, (1997) 1 SCC 93, Supreme Court held that if there are two dying declaration giving two different versions, serious doubts arise about truthfulness of the declaration. Supreme Court in Jagbir Singh v. State of (NCT of Delhi), (2019) 8 SCC 779 held that where there are divergent dying declaration the court must ascertain which statement contains the truth.

In Kashmira Devi v. State of Uttrakhand, (2020) 11 SCC 343, Supreme Court held that in case of multiple dying declarations each one of them has to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the content of another. The Court has to consider each of them in its correct prespective and satisfy itself which of them reflects true state of affairs.

Mode of recording dying declaration

The Bharatiya Sakshya Adhiniyam nowhere mentions as to by whom and how a dying declaration must be recorded. So, it can be recorded by any person be it a police officer, a doctor, a Magistrate or any other person. However, the evidentiary value attached to such dying declaration will differ depening on who has recorded the statement. 

In Samdhan Dhudaka v. State of Maharashtra, AIR 2009 SC 1099 it was held that a dying declaration and he is a neutral person. 

On the other hand, where a dying declaration is recorded by a police officer, it is better to leave such declaration out of consideration unless the prosecution satisfied the Court as to why it was not recorded by a Magistrate or doctor [Dileep Singh v. State of Punjab, 1979 Cr.LJ 700]. Similarly, dying declaration duly recorded by a doctor or any other person is alo admissible and can be relied on, if found trustworthy [Ram Bihari v. State of Bihar, AIR 1998 SC 1850].

Dying Declaration - How be recorded

There is no provision under the Bhartiya Sakshya Adhiniyam as to the form and manner or recording dying declaration. However, by various decisions of courts, the following can be laid down as rules for recording dying declaration:

1. There is no particular form to be employed for recording dying declaration. Preferably, it should be in a question-answer form, if recorded by Magistrate.

2. It is better to record the dying declaration in the exact words of the maker and in the language of the maker or in any other language if the person recording it is well conversant with the language. 

3. Such declaration must be recored when the maker was in the fit state of mind and capable of answering questions or narrating the events.

4. The certificate of a medically trained person that such dying declaration is made by the deceased in a fit state of mind in insisted upon.

5. The doctor certifying such fit state of mind of the deceased shall be examined in court. However, if not cross-examined, the evidentiary value of the dying declaration will not be affected if it is otherwise found trustworthy. 

However, if dying declaration is recorded in any other manner and if the court is satisfied, on the basis of other material evidences, that such dying declaration is trustworthy, the court may rely on it [Ram Bihar Yadav v. State of Bihar, AIR 1996 SC 1850]

In Punushottam Chopra v. State (NCT Delhi), 2020 11 SCC 489, Supreme Court held that if a particular statement satisfies all the criteria of dying declaration it cannot be discarded merely because it has not been recorded by Magistrate or Police officer did not obtain the attestation by any person present at the time of making the statement.

Statement made in course of business [Section 26(b)]

Section 26(b) provides that the statements made by a person in ordinary course of business and in particular, statements contained in any entry or document or any book maintained by a person in ordinary course of business, or any letter which is dated, etc. are relevant.

For example: The question is as to the date of A's birth. An entry in the diary of the deceased surgeon, regularly kept in the course of business, stating that on a given day he attended A's mother and delivering her of a son, is a relevant fact. Also, a letter from A's deceased father to a friend announcing A's birth on a given day is also a relevant fact.

Statement against the maker's interest [Section 26(c)]

Section 26(c) provides that when the statement is against the proprietary of pecuniary interest of the person making it or which would, if proved, incriminate him or make him liable for damages are relevant. 

It must be noted that before the statement can be admissible it must be shown that the person making it knew that it was against his pecuniary or proprietary interest.

For example: Where a Hindu widow executed in favour of A, a deed of heir - ship, this deed was held admissible in a suit between A and a mortgage of a certain property covered by the deed was against the interest of the widow.

Statement in relation to public right, custom or matters of general or public interest [Section 26(d)]

Under Section 26(d), the statements relating to public right or custom or matters of general or public interest are relevant if made by the person who would have been aware of its existence provided such statement was made before the controversy as to such right or custom or such matter as arisen. 

For example: The question is whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

Statement in relation to existence of relationship between two persons [Section 26(e)]

According to Section 26(e), statement relating to the existence of any relationship by blood, marriage or adoption, made by a person who would have had special means of knowledge of such relationship is relevant provided such statement is made before the dispute in question as arisen.

Four conditions must be fulfilled for the application of Section 26(e). 

Firstly, the statements, written or verbal, of relevant fact must have been made by a person who is dead or cannot be found etc., as mentioned in initial part of the section;

Secondly, the statements must relate to existence of any relationship by blood, marriage or adoption;

Thirdly, the person making the statement must have special means of knowledge as to the relationship in question and lastly, the statements must have been made before the question in dispute was raised.

For example: The question is whether A and B are legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant.

Statements relating to existence of relationship between the persons deceased [Section 26(f)]

Section 26(f) makes relevant the statements relating to existence of relationship between the persons deceased if such statement is contained in any will or document of the same kind relating to family affairs to which the deceased belong or any family portrait or family pedigree, etc. provided such statement is made ante litem motem.

For example: A, B and C made a statement in a document as to correctness of a pedigree table of their family before any dispute about the pedigree arose, A and B died. Theri statements contained in such document may be proved under Section 26(f) of the BSA.

Difference between sub-Section (e) and Sub-section (f)

1. Sub-Section (e) is applicable to persons living as well as dead. Sub-Section (f) applies to persons who are dead.

2. In Sub-Section(e) the statement must be made by person having person having special means of knowledge. No such condition is imposed in Sub-Section (f).

3. In Sub-Section (e) statement may be written or verbal. In Sub-Section (f) the statement must be written.

Statement contained in any document relating to any transaction mentioned under Section 11(a) [Special 26(g)]

Section 26(g) makes relevant all statements relating to any transaction by which any public right or custom is created or modified or claimed, extinguished, asserted or denied, etc. if such statement is contained in any will, deed or other document relating to such transaction.

Statement by number of persons expressing feelings [Section 26(h)]

According to Section 26(h), the statements made by a number of persons expressing their feeling or impression in relation to matter in dispute is relevant.

For example: A sues B for libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libelous charachter. The remark of crowd of spectators on these points may be proved.