Unveiling Truth: A Deep Dive into the Evidentiary Value of Dying Declarations Under BSA 2023

Introduction: The Voice of Truth at Life’s End

In the realm of criminal justice, uncovering the truth often depends on gathering scattered pieces of information. One of the most poignant and sometimes the only evidence in such cases is the dying declaration. This crucial legal concept, reaffirmed under the newly enacted Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023), continues to play a vital role in India’s evidence law. Although BSA 2023 replaces the old Indian Evidence Act, 1872, it preserves and strengthens the significance of dying declarations within a modern legal framework.

This in-depth article aims to clearly explain what dying declarations are, why they matter in legal contexts, how they are treated under BSA 2023, and what factors affect their admissibility and credibility in courtrooms. The foundational idea behind accepting dying declarations as evidence is rooted in the belief that a person on the brink of death is unlikely to lie, making their final words a reliable statement of truth.

Meaning and Definition: Deciphering the Last Words

(Dying Declaration BSA 2023)

A dying declaration refers to a statement made by a person, now deceased, that sheds light on the cause or circumstances of their death. This statement holds a special position in legal proceedings, as it serves as an exception to the general prohibition on hearsay—where typically, statements made outside the courtroom cannot be accepted as evidence. The legal principle behind this exception is rooted in the Latin maxim “Nemo Moriturus Praesumitur Mentire”, which translates to “A person about to die is presumed not to lie.” This ancient doctrine reflects the belief that individuals facing death are compelled to speak the truth.

Under the Bharatiya Sakshya Adhiniyam, 2023, the legal framework for dying declarations is detailed in Section 26(a). This provision is a modern adaptation of Section 32(1) from the earlier Indian Evidence Act, 1872, and it outlines the scenarios in which such statements become legally relevant.

Section 26(a) of the BSA 2023 states:

“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: (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.”

Key Highlights from BSA 2023’s Definition:

• Declarant Must Be Deceased: The declaration gains legal relevance only if the person who made the statement has died and the circumstances of that death are under scrutiny.
• Content Must Relate to Cause or Context of Death: The statement must pertain to the manner in which the death occurred or the events directly leading to it. For example, if someone is fatally poisoned, a statement identifying who gave the poison and how it was administered would be considered relevant under this clause.
• Expectation of Death Not Required: A notable provision retained in BSA 2023 is that the declarant need not be under the belief that death is imminent. This clarity extends the scope of admissibility and removes any previous uncertainties.
• Broad Forms of Expression Accepted: Section 26(a) recognizes that dying declarations may be made either orally or in writing. This includes verbal statements, handwritten notes, or even non-verbal communications such as signs or gestures, especially in cases where the declarant is conscious but unable to speak. With advancements in technology, even audio or video recordings may be admissible if their authenticity is proven.

Importance: The Indispensable Role in Justice

(Dying Declaration BSA 2023)

The dying declaration occupies a vital space within the framework of criminal justice, especially under the Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023). Its significance arises not merely from tradition, but from the practical and ethical need to uphold truth in situations where the primary witness—the victim—is no longer alive.

1. Necessity Doctrine (Lex Necessitatis)

In serious criminal cases, particularly those involving fatal injuries, the deceased is often the only direct witness to the act. If their final statement were excluded from evidence, key facts regarding the crime—such as the identity of the assailant or the motive—might remain hidden. The dying declaration fills this evidentiary gap, allowing the victim’s version of events to reach the court even after death. Without it, justice in many murder or grievous assault cases would be nearly impossible.

2. Presumed Honesty of the Dying

It is generally accepted that a person on the verge of death has no reason to lie. The sense of impending death, moral obligation, and fear of divine judgment often inspire truthfulness. This deeply rooted human psychology makes the dying declaration a highly credible and trustworthy form of evidence—frequently regarded with more weight than ordinary witness testimony.

3. Unfiltered, First-Hand Testimony

A dying declaration offers a direct narrative from the person who experienced the incident. This type of firsthand evidence, untouched by external interpretation, presents a more accurate and immediate portrayal of the events surrounding the death. Courts treat such firsthand accounts with great importance because of their authenticity and clarity.

4. Absence of Cross-Examination

Since the declarant is deceased, the statement cannot be tested through cross-examination. This limitation places a responsibility on courts to assess such statements with utmost care and caution. Under BSA 2023, judicial scrutiny becomes essential to confirm the statement’s truthfulness, voluntariness, and contextual relevance.

5. Can Form the Sole Basis of Conviction

One of the most striking features under Indian evidence law—and reaffirmed in BSA 2023—is that a conviction can be based entirely on a dying declaration, provided the court is convinced of its credibility and that it was made without coercion. This emphasizes the exceptional evidentiary value of such statements and the judiciary’s trust in their integrity. It also underlines why the authenticity and context of every dying declaration must be thoroughly evaluated.

Evidentiary Value of Dying Declaration (BSA 2023): A Detailed Analysis

The evidentiary value of a dying declaration under BSA 2023 is exceptionally high, positioning it as a potent and substantive piece of evidence. It is not merely corroborative but can stand on its own to secure a conviction. However, this high value comes with a strict set of conditions and considerations that courts meticulously apply to ensure justice.

I. Substantive Evidence Status under BSA 2023

The Supreme Court of India, through numerous pronouncements, has consistently held that a dying declaration is substantive evidence. This means it does not require corroboration to be acted upon, a principle firmly upheld by BSA 2023. If the court is convinced that the dying declaration is truthful and voluntary, it can form the sole basis for a conviction. This reflects the exceptional confidence placed in the veracity of a person’s last words.

II. Admissibility Criteria under BSA 2023

For a dying declaration to be admissible and carry its intended evidentiary value under BSA 2023, the following conditions must be strictly met:

1. Relation to Cause of Death: As stipulated in Section 26(a) of BSA 2023, the statement must relate directly to the cause of the declarant’s death or the circumstances of the transaction that resulted in their death. Any statement extraneous to this direct nexus will not be admissible as a dying declaration.
2. Declarant is Deceased or Unavailable: The declaration gains relevance only when the person who made it is no longer available to testify. This includes scenarios where the person is dead, cannot be found, has become incapable of giving evidence (e.g., due to a coma or severe amnesia), or whose attendance cannot be procured without unreasonable delay or expense.
3. Mental Fitness of the Declarant: A paramount consideration is that the declarant must have been in a fit mental condition to make the statement. This implies that they must be conscious, coherent, and fully capable of understanding the questions put to them and forming rational answers.
   • Medical Certificate: While a medical certificate affirming mental fitness is highly desirable and adds significant weight, it is not an absolute legal prerequisite under BSA 2023. The court can rely on other evidence, such as the testimony of the person recording the declaration, to ascertain the declarant’s mental state. However, the absence of such a certificate might require stronger corroborating evidence regarding mental fitness.
   • Consciousness and Coherence: The court will critically evaluate whether the declarant was lucid enough to comprehend their situation and articulate their thoughts clearly.
4. Voluntary and Spontaneous Nature: The dying declaration must be made freely and voluntarily, without any external influence, prompting, or coercion. Any suspicion that the declaration was tutored, induced, or extracted under duress will significantly diminish its evidentiary value and may even lead to its rejection. The court looks for spontaneity in the statement.
5. Absence of Suspicious Circumstances: The court must be satisfied that there are no suspicious circumstances surrounding the making of the declaration. This includes considerations like:
   • Multiple Dying Declarations: If there are multiple dying declarations, the court will carefully examine their consistency. While inconsistencies do not automatically render all declarations inadmissible, they do compel the court to scrutinize each one more deeply. The first declaration made is often considered more reliable as it is likely to be free from tutoring.
   • Variations in Language/Content: Minor variations are acceptable, but fundamental contradictions can raise doubts.
   • Time Lapse: While there’s no strict time limit, a declaration made too long after the incident, especially if the victim’s condition was deteriorating, might be viewed with more caution.
   • Recording Authority: While a police officer can record a dying declaration, statements recorded by a judicial magistrate or a medical practitioner are generally preferred and carry greater weight due to their impartiality and professional training in administering oaths and recording statements accurately. BSA 2023 emphasizes fairness and impartiality.

III. Factors Influencing the Weight (Credibility) of a Dying Declaration

Although a dying declaration may be legally admissible, the actual weight and credibility it holds in court depends on several crucial factors, all of which are carefully scrutinized by the judiciary:

• Thoroughness of the Statement: A declaration that thoroughly explains all relevant facts and the events surrounding the death generally holds greater evidentiary value. However, even if the statement is partial or incomplete, it can still be accepted, provided it clearly indicates the accused’s involvement and retains meaningful content.
• Timely Documentation: The sooner a dying declaration is recorded after the incident, the more reliable it is perceived to be. Quick recording ensures the details are fresh in the declarant’s memory and reduces the chance of external influence.
• Integrity of the Recording Individual: The credibility of the person who records or witnesses the declaration is crucial. If the individual has questionable motives or lacks neutrality, the value of the statement can diminish significantly.
• Alignment with Other Evidence: While corroboration is not a legal necessity, consistency between the dying declaration and other supporting evidence—such as medical reports, forensic data, or eyewitness accounts—adds to its strength. On the other hand, if there are clear contradictions, its credibility may suffer.
• Condition of the Injured Person: The extent and seriousness of the injuries may affect the declarant’s ability to think or communicate clearly. If the injuries are so severe that they likely impaired the person’s mental clarity, courts may be more cautious.
• Risk of Coaching or External Influence: Any indication that the declarant may have been tutored, pressured, or influenced by others can significantly undermine or nullify the evidentiary value of the statement.

IV. Judicial Prudence under BSA 2023

Despite being considered strong evidence, courts in India exercise utmost caution while evaluating dying declarations under the Bharatiya Sakshya Adhiniyam, 2023. Since the person making the statement is not alive to be cross-examined, the judiciary ensures stringent safeguards are met. Specifically, the courts verify that the statement is:

• Given voluntarily and without coercion,
• Made by a person who was mentally and physically fit, and
• Free from any suspicious or doubtful circumstances.

If there’s any uncertainty regarding these elements, the court may require additional corroboration. In cases where doubts remain unresolved, the declaration may be excluded from evidence altogether.

Conclusion: The Unyielding Voice of Justice (Dying Declaration BSA 2023)

Under the modern legal structure provided by the Bharatiya Sakshya Adhiniyam, 2023, the concept of dying declarations remains a vital and compelling form of evidence in criminal law. As codified in Section 26(a), such statements are recognized as substantive evidence, and when found to be genuine and voluntary, they can independently form the foundation for a conviction. The legal assumption that an individual on the verge of death has no reason to lie grants these statements exceptional credibility.

Despite their strong evidentiary value, Indian courts maintain a balanced and cautious approach when assessing dying declarations. The judiciary ensures that each statement is thoroughly examined for the declarant’s mental clarity, voluntariness, and the absence of suspicious influences or circumstances. The BSA 2023 strengthens these safeguards, allowing the final words of victims—spoken in the shadow of death—to be respected and rightfully considered in the administration of justice.

In essence, a proper understanding of the Dying Declaration under BSA 2023 is crucial—not only for legal scholars or practitioners but also for ensuring that the criminal justice system continues to uphold truth, fairness, and justice by honoring the victim’s voice when no other voice remains.