Admissibility of Statements by Deceased Persons as evidence in legal proceedings is governed by Section 26 : Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant of the Bharatiya Sakshya Adhiniyam, 2023. This section outlines specific situations where such statements, whether written or verbal, become relevant and admissible as evidence.
Statements by persons who cannot be called as witnesses
Provision Section 26 : Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant
26. 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;
(b) when the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him;
(c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;
(d) when the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen;
(e) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;
(f) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised;
(g) when the statement is contained in any deed, will or other document which relates to any such transaction as is specified in clause (a) of section 11;
(h) when the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question
Illustrations.
(a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was raped. The question is whether she was raped by B; or the question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.
(b) The question is as to the date of A’s birth. An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.
(c) The question is, whether A was in Nagpur on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a given day the solicitor attended A at a place mentioned, in Nagpur, for the purpose of conferring with him upon specified business, is a relevant fact.
(d) The question is, whether a ship sailed from Mumbai harbour on a given day. A letter written by a deceased member of a merchant’s firm by which she was chartered to their correspondents in Chennai, to whom the cargo was consigned, stating that the ship sailed on a given day from Mumbai port, is a relevant fact.
(e) The question is, whether rent was paid to A for certain land. A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders is a relevant fact.
(f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant.
(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.
(h) The question is, what was the cause of the wreck of a ship. A protest made by the captain, whose attendance cannot be procured, is a relevant fact.
(i) 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.
(j) The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased business person in the ordinary course of his business, is a relevant fact.
(k) The question is, whether A, who is dead, was the father of B. A statement byA that B was his son, is a relevant fact.
(l) The question is, what was the date of the birth of A. A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.
(m) The question is, whether, and when, A and B were married. An entry in a memorandum book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.
(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.
Section 26 Admissibility of Statements by Deceased Persons BSA explain :
1. Section 26(a) Dying Declarations : Statements made by a person concerning the cause or circumstances of their death are admissible in cases where the cause of death is a relevant fact in the proceeding. This applies whether the person was expecting death at the time of the statement and regardless of the type of legal proceeding.
Illustrations (a) provides several examples, such as:
A statement made by a deceased person alleging murder, rape, or actionable wrong leading to their death is relevant and admissible.
2. Section 26(b) Statements Made in the Ordinary Course of Business : Statements made in the regular course of business, including entries in business records, acknowledgments of receipt for money, goods, or property, and documents used in commerce, are admissible if the person making the statement is deceased.
Illustrations (b), (c), (d), and (e) demonstrate this:
Entries in a deceased surgeon’s diary about a birth, a deceased solicitor’s diary about a meeting, a deceased merchant’s letter confirming a ship’s departure, and a deceased agent’s letter about rent collection are all considered relevant.
3. Section 26(c)Statements Against Pecuniary or Proprietary Interest : Statements made against the financial or property interests of the deceased person, or those that would have exposed them to criminal prosecution or lawsuits if true, are admissible.
Illustration (f) exemplifies this:
A statement by a deceased clergyman admitting to performing a marriage under circumstances constituting a crime would be admissible.
4. Section 26(d) Statements Regarding Public Rights or Customs : Statements made by the deceased person about the existence of public rights, customs, or matters of public interest are admissible if the person was likely aware of their existence and the statement was made before any dispute about the right or custom arose.
Illustration (i) clarifies this:
A statement by a deceased village headman confirming a road’s public status is admissible.
5. Section 26(e) & (f) Statements Regarding Relationships : Statements by the deceased person about family relationships, based on their special knowledge and made before any dispute arose, are admissible. This also includes statements in wills, deeds, family pedigrees, tombstones, and family portraits if made before any dispute arose.
Illustrations (k), (l), and (m) showcase this:
A deceased person’s statement acknowledging paternity, a letter announcing a birth, and a diary entry recording a marriage are all considered relevant.
6. Section 26(g)Statements in Documents Relating to Transactions : Statements contained in deeds, wills, or other documents relating to transactions specified in Section 11(a), which deals with facts showing the existence of a right or custom, are admissible if the person making the statement is deceased.
7. Section 26(h)Statements Expressing Feelings or Impressions : Statements made by multiple persons expressing shared feelings or impressions about the matter in question are admissible if those individuals are deceased.
Illustration (n) explains this:
Remarks from a crowd about a potentially defamatory caricature can be used as evidence.
Additionally, Section 27 allows evidence given by a deceased witness in a previous judicial proceeding to be used in a subsequent proceeding if specific conditions are met.
READ MORE : Section 158 Impeaching the Credit of a Witness Under Bharatiya Sakshya Adhiniyam
Section 23 Admissibility of Confessions to Police Officers Under the Bharatiya Sakshya Adhiniyam (BSA)
Important Supreme Court and High Court Cases on Admissibility of Statements by Deceased Persons
1. Laxman v. State of Maharashtra (AIR 2002 SC 2973)
In this case, the Supreme Court ruled that a dying declaration is admissible even if it is not recorded by a magistrate. The court emphasized that the key factor is whether the deceased was in a fit state of mind to make the statement. The court also highlighted that the absence of a magistrate’s presence does not invalidate the declaration if it is reliable and voluntary.
2. Satishchandra v. State of Madhya Pradesh ([2014] 6 SCC 723)
This judgment reinforced that a dying declaration can form the sole basis of conviction if it inspires full confidence. The court stated that the declaration must be free from doubt and reflect a clear and consistent account of the events. The mental condition of the declarant and the authenticity of the recording process are crucial factors.
3. Khushal Rao v. State of Bombay (1958)
This significant ruling established foundational principles concerning dying declarations. The Supreme Court held that such declarations could form the sole basis for conviction if they are credible and devoid of doubt. Each case must be assessed individually, considering the context in which the statement was made. The focus is on the declaration’s reliability and the circumstances surrounding it.
4. State of Uttar Pradesh v. Ram Sagar Yadav (1985)
In this case, the Supreme Court stressed the importance of consistency and authenticity in dying declarations. Declarations recorded by authorized officials, like magistrates, carry substantial evidentiary value. If supported by additional evidence, their weight in court is significantly enhanced, reinforcing the need for procedural integrity.
5. P. Mani v. State of Tamil Nadu (2006)
The court ruled that dying declarations don’t always need external corroboration if they are made voluntarily, without pressure, and with mental clarity. However, if inconsistencies or doubts arise, such declarations might be rejected. The focus is on ensuring the statement’s voluntary nature and coherence.
6. Vikas v. State of Maharashtra (2008)
This judgment emphasized treating dying declarations with high regard, especially if made when the individual is medically fit. If supported by medical evidence, the declaration’s reliability is further strengthened, highlighting the importance of corroborative details for enhancing evidentiary value.
FAQs on Admissibility of Statements by Deceased Persons
Overall, Section 26 of the BSA provides a detailed framework for determining the admissibility of statements made by deceased persons in legal proceedings. The circumstances outlined in this section aim to ensure that such statements, despite the unavailability of the person who made them, can be considered as evidence when they hold significant relevance to the case and meet the specified criteria for reliability and trustworthiness.
1. What is the section of dying declaration in BSA?
Dying declarations are governed by Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023.
2.What do you mean by dying declaration?
A dying declaration is the statement made by a person who believes they are about to die, explaining the circumstances or reasons for their death.
3.What is the dying declaration?
A dying declaration is evidence given by a person about the cause of their death when they are expecting death. It plays crucial role in criminal cases like murder or suicide.
4.Can police take a dying declaration?
Yes, police officers can record a dying declaration if a magistrate is unavailable. However, statements recorded by a magistrate are given more importance in courts.
5.What is the famous case law of dying declaration?
The landmark case Pakala Narayana Swami vs Emperor (1939) clarified the scope and admissibility of dying declarations in Indian law.
6.What is an example of a dying declaration?
A burn victim saying, “My husband set me on fire,” before succumbing to her injuries is an example of a dying declaration.
7.What is the latest judgment of the Supreme Court on the dying declaration?
In Bhagwan vs State of Maharashtra (2023), the Supreme Court ruled that a dying declaration can alone justify a conviction if it is voluntary, truthful, and consistent.
8.What is the evidentiary value of a dying declaration under Indian law?
A dying declaration is strong evidence in Indian courts and can lead to a conviction if found credible and free of influence.
9.What is the maxim of dying declaration?
The maxim “Nemo moriturus praesumitur mentiri” means “A person on the verge of death is presumed not to lie.” This principle underpins the admissibility of dying declarations.
10.Can an FIR be used as a dying declaration?
Yes, if the deceased lodged the FIR explaining the circumstances of their death and later passed away, it can be treated as a dying declaration.
11.What is the meaning of ‘in the ordinary course of business’?
It means regular business activities or routine transactions, like daily ledger entries, receipts, or records, which are admissible under Section 26(b) of the BSA.
12.What are statements made under special circumstances?
These include statements related to financial loss, public rights, customs, relationships, or transactions, as mentioned in Section 26(c)-(h) of the BSA.
14.What facts are relevant when a right or custom is in question?
Facts like long-standing usage, acknowledgment in public documents, or statements made by knowledgeable individuals before any dispute are considered relevant under Section 26(d).
Overall, Section 26 of the BSA provides a detailed framework for determining the admissibility of statements made by deceased persons in legal proceedings. The circumstances outlined in this section aim to ensure that such statements, despite the unavailability of the person who made them, can be considered as evidence when they hold significant relevance to the case and meet the specified criteria for reliability and trustworthiness.
READ MORE: Secondary Evidence under Bharatiya Sakshya Adhiniyam 2023 : A Detailed Guide
Section 113 Terrorist act of the Bharatiya Nyaya Sanhita (BNS)
BNS Section 95 : Hiring, Employing, or Engaging a Child to Commit an Offence