There is a legal maxim – nemo moriturus praesumitur mentire. It means that “A man will not meet his maker with a lie on his mouth”. In other words, it is believed that a dying person does not lie. This is where the relevance of dying declaration under BSA lies. It is stated that a person on his/her death bed would not lie, and statements made regarding the cause of death would be relevant evidence to suggest the cause of death of such a person. Here, we are attempting to explain the legal backing on why dying declarations are the most reliable pieces of evidence in law, and what changed with the shift from the Indian Evidence Act to the Bharatiya Sakshya Adhiniyam, 2023.
Dying Declaration under Indian Evidence Act, 1872
Section 32 of the Indian Evidence Act laid the law regarding “Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant”. It may be understood that in case of otherwise, the person who is a witness and whose statement is recorded in evidence, is subjected to examination and cross examination, to assess whether the initial statement was true or was tutored, and if at all was relevant to the case in hand. Sub-Section 1 of Section 32 of the Evidence Act particularly deals with the circumstances – “When it relates to cause of death”.
In simple words, the provision laid that if a person has said anything related to the cause of his/her death, or about a transaction which led to his/her death, is relevant.
Dying Declaration BSA: Section 26(a)
The provision under Section 32 is verbatim under the Bharatiya Sakshya Adhiniyam. The provision under Section 26(a) of BSA regarding dying declaration has been reproduced below:
“26. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant – 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, namely:—
(a) 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;”
Note: There are additional sub-sections to Section 26 of Bharatiya Sakshya Adhiniyam. However, they are not exactly related to dying declaration under BSA 2023. Thus, not mentioned here.
Dying Declaration in BSA – Explained
The provision for dying declaration under BSA 2023 has been provided above as it is. To get the hang of it, a statement is made by a person in the oral or written form, stating the cause of his/her death, or parts of transaction which resulted in his/her death, becomes relevant if the person’s cause of death is a matter in question. It is further clarified that it does not matter whether death was the ultimate expectation or not at the time when such statement was made. In the law of evidence, hearsay is not as such admissible, meaning that a person heard from another regarding the incident becomes a hearsay and may not be reliable, instead, the person who himself witnessed the incident may be more reliable for corroborating the incident. However, when a person has told the cause of his/her death to another, and died later, would not be available for corroborating in the Court later. Thus, in such cases, even the principle of hearsay is avoided, upholding the admissibility of dying declaration under Bharatiya Sakshya Adhiniyam, 2023.
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What are the elements of a dying declaration?
The three essential elements upholding the relevance of a dying declaration are:
- There should have been actual danger of death at the time when the declarant made the statement;
- he/she should have had full apprehension of his danger; and
- death should have ensued.
In addition, the said dying declaration should inspire confidence of the Court indicating its truthfulness. It clearly reflects that if it does not result in the death of the person, declaration made in this regard would not be acceptable.
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What is the procedure of recording dying declaration?
The Magistrate should record the statement of person on death bed in the absence of Police after obtaining a fitness certificate from the Doctor concerned. Such Magistrate should also obtain the signature/thumb impression of the declarant on the dying declaration under BSA 2023, if possible. It is also advisable to record the dying declaration in question-answer format, however, this is not a hard and fast rule. The general rule is that a dying declaration under BSA should be recorded in the words of declarant. However, lack of exact words in the dying declaration does not warrant its rejection. Medical opinion regarding whether the person declaring was mentally fit to give his/her statement is also relevant before the Court.
It may further be noted that a dying declaration given to a police officer is not subject to Section 181 of BNSS. If the statement of a victim is recorded by the police as an FIR containing declaration, the same is also reliable. The dying declaration so recorded under Bharatiya Sakshya Adhiniyam 2023 should be sent to the concerned court through a special messenger in a cover and the same should not be handed over to the police. A copy of the declaration may be given to the police for further investigation.
