Quick Answer
Section 32 of the Indian Evidence Act, 1872 — one of the most important exceptions to the hearsay rule in Indian criminal law — has been replaced by Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The dying declaration provision, contained in clause (1) of the old Section 32 and now in clause (a) of Section 26, remains substantively the same in its core requirement: a statement by a person as to the cause of their death, or any circumstances of the transaction resulting in their death, is admissible when the cause of death is in question. The BSA makes explicit what Indian law already provided but English law did not — that the statement is relevant "whether the person who made them was or was not, at the time when they were made, under expectation of death." This codifies the settled Indian position and distinguishes it from the stricter English common law requirement.
What Changed
| Feature | Section 32, Evidence Act | Section 26, BSA |
|---|---|---|
| Dying declaration | Clause (1) | Clause (a) |
| Expectation of death | "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" | Same explicit language retained |
| Nature of proceedings | "whatever may be the nature of the proceeding in which the cause of his death comes into question" | Same language retained |
| Scope of section | 8 clauses covering statements in course of business, against interest, about wills, etc. | Reorganised into clauses (a) through (h) with similar coverage |
| When maker is unavailable | Dead, cannot be found, incapable of giving evidence, or attendance cannot be procured without unreasonable delay/expense | Same conditions retained |
| Form of declaration | Oral, written, or by signs | Same — no electronic-specific provision added for dying declarations |
| Corroboration requirement | None (judicial preference only) | None (unchanged) |
Full Statutory Text (Dying Declaration Clause)
Section 32(1), Evidence Act
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: —
(1) When it relates to cause of death. — 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.
Section 26(a), BSA
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. 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.
Key Differences
Clause renumbering without substantive change. The dying declaration provision moves from "clause (1)" to "clause (a)" in the BSA, part of the broader shift from numbered to lettered sub-clauses. The operative text is verbatim identical.
Expectation of death — explicit retention of Indian position. Both the Evidence Act and the BSA contain the express statement that the declaration is relevant "whether the person who made them was or was not, at the time when they were made, under expectation of death." This is the critical distinction between Indian law and English common law, where a dying declaration was admissible only if the declarant had a settled hopeless expectation of death. The Indian Evidence Act departed from the English position from its enactment in 1872, and the BSA preserves this departure unaltered.
No expansion to electronic dying declarations. Despite the BSA's extensive overhaul of the electronic evidence framework (Sections 57-63), Section 26(a) does not add specific provisions for dying declarations recorded electronically — such as video recordings on mobile phones or audio messages. These are arguably covered under the general electronic evidence provisions, but a specific provision would have provided clarity.
All eight sub-clauses of Section 32 preserved. The full range of hearsay exceptions — statements in course of business (32(2)/26(b)), statements against interest (32(3)/26(c)), statements about public rights (32(4)/26(d)), statements about wills (32(6)/26(f)), and others — are all retained in Section 26 BSA with identical substance.
No corroboration requirement codified. The BSA does not introduce a mandatory corroboration requirement for dying declarations. The judicial position — that a dying declaration can be the sole basis for conviction if it inspires confidence and is found truthful — remains unchanged.
What This Means for Practitioners
The dying declaration remains one of the most powerful tools in criminal prosecution. Its evidentiary value flows from the principle nemo moriturus praesumitur mentire — a man will not meet his maker with a lie in his mouth. The BSA preserves this principle without modification.
Practitioners should note that the procedural safeguards developed through case law continue to govern the admissibility and weight of dying declarations:
Recording requirements. A dying declaration is best recorded by a Magistrate under Section 164 BNSS (formerly Section 164 CrPC). Where a Magistrate is not available, it may be recorded by a doctor, a public servant, or any person. The fitness certificate from the attending doctor — confirming that the declarant was in a fit mental state to make the statement — remains critical though not a statutory requirement.
Oral dying declarations. An oral dying declaration is admissible and can form the sole basis for conviction (Khushal Rao v. State of Bombay, AIR 1958 SC 22). However, courts scrutinise oral dying declarations more carefully than written ones, and defence counsel should explore inconsistencies in the testimony of witnesses who claim to have heard the declaration.
Multiple dying declarations. Where a person makes more than one dying declaration and they are inconsistent, the court must evaluate which is more reliable based on the circumstances — proximity to death, fitness of mind, presence of interested parties, and overall consistency with other evidence.
Video-recorded declarations. With the prevalence of smartphones, dying declarations recorded on video are increasingly common. These must satisfy the electronic evidence requirements under BSA Sections 61-63, including the Section 63 certificate requirement for secondary copies. The original device should be produced where possible.
Does Old Case Law Still Apply?
Yes, fully. The dying declaration provision is one of the most frequently litigated in Indian criminal law, and the body of precedent is vast and directly applicable.
Pakala Narayana Swami v. Emperor (AIR 1939 PC 47) — The Privy Council's interpretation of "circumstances of the transaction" broadly — covering the entire transaction leading to death, not merely the immediate cause — remains authoritative. This means a statement about events leading up to the attack, threats received beforehand, or the identity of the attacker are all admissible.
Laxman v. State of Maharashtra (2002) 6 SCC 710 — The Supreme Court held that a dying declaration can be the sole basis for conviction without corroboration if it inspires full confidence. This principle carries forward without modification.
Khushal Rao v. State of Bombay (AIR 1958 SC 22) — The five-judge bench decision establishing that there is no absolute rule of law requiring corroboration of a dying declaration remains the bedrock precedent. A dying declaration that is voluntary, truthful, and not influenced by others can sustain a conviction alone.
Judicial interpretation under BSA Section 26 (post-July 2024)
The following cases from the Veritect Legal Intelligence database show how courts are applying the dying declaration provisions in practice:
Sita Ram v. State of Himachal Pradesh (6 March 2025)
Court: Supreme Court of India | Judge: J.B. Pardiwala, R. Mahadevan | Result: Convictions upheld with modified sentences
The Supreme Court examined the admissibility of an FIR as a dying declaration under Section 32 of the Evidence Act. The appellant argued that the FIR could not qualify as a dying declaration because it was not made in anticipation of death. The Court rejected this argument, reiterating the settled Indian law position that Section 32 does not mandate an expectation of death — the statement is relevant if it relates to the cause or circumstances of death. The Court also upheld the finding that medical evidence establishing that a head injury can lead to hypoxic-brain injury and asphyxia satisfied the proximate cause requirement.
Veritect reference: Diary_39584-2012_Judgment
Emerging patterns
- FIR as dying declaration firmly established. Courts continue to accept FIRs lodged by the victim as dying declarations when the victim subsequently dies from the injuries described. The 2025 SC judgment reinforces that no expectation of death is needed.
- Proximate cause chain accepted. Where medical evidence links the initial injury to the eventual cause of death through a chain of medical consequences (injury leading to brain damage leading to asphyxia), courts accept the causal link for Section 26(a) BSA purposes.
- No weakening of dying declaration under BSA. The transition from Section 32 to Section 26 has not altered the substantive position — all existing principles continue to apply.
Frequently Asked Questions
Can a dying declaration be made by signs or gestures? Yes. Indian courts have accepted dying declarations made by nods, gestures, and thumb impressions. In cases where the victim is unable to speak — for example, due to burn injuries affecting the throat — statements made by signs in response to questions are admissible, provided the questions are not leading and the victim's mental fitness is certified.
Must a doctor certify that the victim was fit to make a statement? It is not a mandatory legal requirement, but a fitness certificate from the attending doctor significantly strengthens the evidentiary value. Where the victim dies without medical attention, courts may rely on the testimony of witnesses about the victim's mental state at the time of the declaration.
Can a dying declaration recorded on a mobile phone be used as evidence? Yes, subject to the electronic evidence provisions of BSA Sections 61-63. If the original device is produced, it is primary evidence. If a copy is produced, a Section 63 certificate with hash value verification is required. The content of the declaration is governed by Section 26(a) BSA, while its form as an electronic record is governed by the documentary evidence provisions.
What if the victim survives — is the earlier statement still admissible? If the person who made the statement survives and is available to testify, the statement may not be admissible as a dying declaration under Section 26(a) because the precondition (that the maker is dead, unavailable, or incapable) is not satisfied. However, it may be used as a previous statement under other provisions, or the person may testify directly.