Section 32 Evidence Act vs Section 26 BSA: Dying Declaration Compared

In India, Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced Section 32 of the Indian Evidence Act, 1872 (IEA). The dying-declaration rule, now clause (a), is unchanged in substance. The changes are drafting ones: lettered clauses without sub-headings, a new cross-reference to section 11, and modernised illustrations.

At a glance

	Old law	New law
Section	Section 32, Indian Evidence Act, 1872 (dying declaration in clause (1))	Section 26, BSA 2023 (dying declaration in clause (a)); in force from 1 July 2024
What it does	Makes statements of relevant facts, by a person who is dead, cannot be found, is incapable of giving evidence or cannot be produced without unreasonable delay or expense, relevant in eight listed cases	Same, in clauses (a) to (h)
Punishment	None: rule of evidence	None: rule of evidence
Cognizable / bailable / triable by	Not applicable (no First Schedule entry)	Not applicable (no First Schedule entry)
Change type	—	Minor edit

What changed

Opening words — Minor edit. "in the following cases:––" becomes "in the following cases, namely:—". The four unavailability conditions are worded identically.
Numbering — Minor edit. Cases (1) to (8) become clauses (a) to (h), each opening in lower case and ending with a semicolon.
Clause sub-headings — Omitted. The IEA gave each case a sub-heading, such as "When it relates to cause of death", "or is made in course of business" and "or against interest of maker". The BSA clauses have none.
Clause (1) → (a), dying declaration — Minor edit. The words are the same. The IEA's two paragraphs run together, so the clause now reads "…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…".
Clauses (2)-(6) and (8) → (b)-(f) and (h) — Minor edit. The operative words carry over. "by blood, marriage or adoption" in cases (5) and (6), inserted into the IEA by Act 18 of 1872, now appears without amendment brackets.
Clause (7) → (g), cross-reference — Minor edit. "as is mentioned in section 13, clause (a)" becomes "as is specified in clause (a) of section 11". Both provisions deal with facts relevant when a right or custom is in question.
Illustration (a) — Minor edit. "ravished" becomes "raped", twice. The three alternative questions now run as one paragraph.
Illustrations (c), (d), (f), (h), (j) — Minor edit. In (c), "Calcutta" becomes "Nagpur" (twice). In (d), "Bombay harbour" becomes "Mumbai harbour" in the question and "Mumbai port" in the letter, and "London" becomes "Chennai". In (f), the comma before "is relevant" is dropped. In (h), "Captain" becomes "captain". In (j), "banya" becomes "business person". Illustrations (b), (e), (g), (i) and (k) to (n) are unchanged.
Cross-references in other provisions — Minor edit. CrPC s.162(2) excluded statements "falling within the provisions of clause (1) of section 32"; BNSS s.181(2) excludes those "falling within the provisions of clause (a) of section 26". IEA s.158 becomes BSA s.161, referring to "section 26 or 27".

Statutory text (relevant extract)

Section 32(1), Indian Evidence Act — extract:

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. …

Section 26(a), BSA — extract:

… 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;

How it works — the elements of clause (a)

A statement, written or verbal. The section speaks of "Statements, written or verbal". Laxman read this to include any adequate method of communication, including signs, if the indication is positive and definite.
By a person who is dead. The opening words list four kinds of unavailability. Clause (a) concerns the cause of the maker's own death, so it operates where the maker has died. The party relying on the statement must prove the death first. BSA s.107, Illustration (a): "A wishes to prove a dying declaration by B. A must prove B's death." Under s.141(2) and its Illustration (a), the death must be proved before evidence is given of the statement, unless the party undertakes to prove it and the Court is satisfied with the undertaking.
About the cause of death or the circumstances of the transaction. The statement must be "as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death". Sharad Birdhichand Sarda considered how far back in time the "transaction" can reach.
The cause of death must be in question. The case must be one "in which the cause of that person's death comes into question".
Any kind of proceeding; no expectation of death needed. The statement is relevant "whatever may be the nature of the proceeding", and whether or not the maker expected to die.

Worked example (BSA s.26, Illustration (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, and the question is whether B raped her. Or the question is whether B killed A in circumstances giving A's widow a suit against B. In each case, A's statements as to the cause of his or her death are relevant facts. The third is a civil claim: clause (a) is not confined to criminal trials.

What this means in practice

For the prosecutor: Prove the death before the statement (s.107, Illustration (a)). Prove the statement through the person who heard or recorded it. Neither the BSA nor the BNSS requires a Magistrate. Khushal Rao nevertheless placed a declaration recorded by a competent Magistrate in question-and-answer form on "a much higher footing than a dying declaration which depends upon oral testimony". Prove the declarant's fitness through the recorder or the doctor; under Laxman, a doctor's certificate is a rule of caution, not a condition of law.
For the defence advocate: Section 161 BSA lets you prove any matter to contradict the statement, or to impeach the maker's credit, that you could have proved had the maker testified and denied it in cross-examination. Where the declaration is oral, the witness who reports it can be impeached by an earlier inconsistent statement (s.158(c), Illustration (b)). Test the Khushal Rao factors: opportunity to observe, capacity to remember, consistency and whether the statement was made at the earliest opportunity. Khushal Rao also treats prompting by interested parties, or answers to leading questions, as detracting from a declaration's value.
For the investigating officer: A statement recorded from an injured person during investigation is not barred from use by s.181(1) BNSS if it falls within s.26(a): s.181(2) says so expressly. The first proviso to s.180(3) BNSS allows such a statement to be recorded by audio-video electronic means. On a reading of the text, such a recording is an electronic record and so a "document" under s.2(1)(d) BSA, and its contents may be proved in accordance with s.63 (s.62). See the electronic evidence page.

Judgments that still matter

Apart from the drafting changes above, s.26(a) BSA repeats the operative words of IEA s.32(1). On a reading of the text, judgments construing those words remain relevant. None of the judgments below applies the BSA.

Khushal Rao v. State of Bombay, [1958] 1 S.C.R. 552 (1957 INSC 79), 25 September 1957. B.P. Sinha J. delivered the judgment of a three-judge bench. Its six propositions include that it cannot be laid down as an absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated, and that it is not a weaker kind of evidence. The Court added: "once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration." It said the absence of an expectation of death would affect weight, not admissibility. The appeal was dismissed. Why it matters now: s.26(a) BSA repeats the words construed.

Tapinder Singh v. State of Punjab, [1971] 1 S.C.R. 599, 7 May 1970. I.D. Dua J. delivered the judgment of a bench with A.N. Ray J. The Court held that s.162(2) "in express terms excludes" statements falling within s.32(1), so the declaration was both relevant and outside the bar (report p. 605). It called a dying declaration an exception to the hearsay rule, admitted "on the principle of necessity", whose weak points put the Court on guard (p. 607). It held that "An accusation in a dying declaration comes from the victim himself and if it is worthy of acceptance then in view of its source the court can safely act upon it." (p. 609). The appeal was dismissed. Why it matters now: BNSS s.181(2) carries the same exclusion for BSA s.26(a).

Sharad Birdhichand Sarda v. State of Maharashtra, [1985] 1 S.C.R. 88 (1984 INSC 121), 17 July 1984. Three judges wrote separately. S. Murtaza Fazal Ali J. held (report pp. 108-109) that s.32(1) covers suicide as well as homicide, and that the "test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application". On that view, the deceased wife's letters from the months before her death were admissible; A. Varadarajan J. held them inadmissible. Sabyasachi Mukharji J. agreed with Fazal Ali J. but warned that extending the rule beyond the immediate "should be the exception and must be done with very great caution and care". The appeal was allowed and the appellant acquitted. Why it matters now: s.26(a) BSA keeps the phrase "any of the circumstances of the transaction which resulted in his death".

Laxman v. State of Maharashtra, [2002] Supp. 1 S.C.R. 697 (2002 INSC 352), 27 August 2002. G.B. Pattanaik J. delivered the judgment of a five-judge Constitution Bench. It held that "There is no requirement of law that a dying declaration must necessarily be made to a magistrate", and there is no specified statutory form (report pp. 700-701). A dying declaration may be oral or written, by words, signs or otherwise. What matters is that the recorder is satisfied the declarant was in a fit state of mind; "A certification by the doctor is essentially a rule of caution". The Court held Paparambaka Rosamma not correctly decided and affirmed Koli Chunilal Savji (p. 702). Why it matters now: neither s.26 BSA nor the BNSS prescribes who records a dying declaration or how.

Shankar v. State of Rajasthan, [2026] 4 S.C.R. 298 (2026 INSC 315), 2 April 2026. Sanjay Karol J. wrote for a bench with Nongmeikapam Kotiswar Singh J. The Court said that s.32 IEA "and Section 26 of its successor, Bhartiya Sakshya Adhiniyam, 2023 deal with dying declarations". It held that dying declarations "are exceptions to the rule of hearsay and, if a Court finds them consistent, believable and free of tutoring, it can convict the person named therein" (para 9). The recording Magistrate had obtained the duty doctor's certificate, so the challenge to the declarant's fitness failed (para 10), and the appeal was dismissed (para 13). The case arose from a 2012 death, before the BSA commenced. Why it matters now: it is a post-2024 Supreme Court statement treating s.26 BSA as the successor provision.

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872 … as if this Adhiniyam had not come into force". On a reading of that clause, a dying declaration in such a case is proved under IEA s.32(1). In a proceeding begun on or after 1 July 2024, s.26(a) BSA applies; the operative words are the same. See which law applies to an offence before 1 July 2024.

Frequently asked questions

Must the person have expected to die for the statement to count as a dying declaration? No. Section 26(a) BSA says 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". The same words were already in Section 32(1) of the Evidence Act. In Khushal Rao v. State of Bombay ([1958] 1 S.C.R. 552) the Supreme Court said that circumstance goes to weight, not admissibility.

Can a court convict on a dying declaration alone? Yes, if it is found true. Construing Section 32(1), the Supreme Court in Khushal Rao ([1958] 1 S.C.R. 552) held that there is no absolute rule of law that a dying declaration must be corroborated, and that once the court finds it truthful no question of further corroboration arises. Tapinder Singh v. State of Punjab ([1971] 1 S.C.R. 599) applied that test. Section 26(a) BSA repeats the words construed.

Must a Magistrate record a dying declaration? Neither the BSA nor the BNSS says so. Section 26 BSA says nothing about who records the statement, and the words "dying declaration" do not appear in the BNSS. A Constitution Bench held in Laxman v. State of Maharashtra ([2002] Supp. 1 S.C.R. 697) that there is no requirement of law that a dying declaration be made to a Magistrate, and no statutory form for recording it.

Is a doctor's certificate of fitness essential? Not as a rule of law. In Laxman v. State of Maharashtra ([2002] Supp. 1 S.C.R. 697) the Supreme Court held that a doctor's certification is essentially a rule of caution. Where the Magistrate's testimony shows the declarant was fit, the declaration can be acted on if the court holds it voluntary and truthful. The Court held an earlier contrary decision not correctly decided.

Can a dying declaration be made by signs or gestures? Section 26 BSA covers "Statements, written or verbal". Construing the same words in Section 32, the Supreme Court in Laxman v. State of Maharashtra ([2002] Supp. 1 S.C.R. 697) said a dying declaration can be oral or in writing, and any adequate method of communication, whether by words or by signs or otherwise, will suffice if the indication is positive and definite.

Can a statement to the police be used as a dying declaration? Yes, if it falls within Section 26(a) BSA. Section 181(2) BNSS says the bar on using statements made to the police during investigation does not apply to any statement falling within clause (a) of Section 26. Section 162(2) CrPC said the same of Section 32(1). In Tapinder Singh v. State of Punjab ([1971] 1 S.C.R. 599) the Supreme Court, applying the same exclusion in Section 162(2) of the Code of Criminal Procedure as it then stood, held a dying declaration outside the police-statement bar.

What if the injured person survives? Clause (a) of Section 26 BSA applies only where the statement concerns the cause of the maker's own death and that cause comes into question. If the person survives and can testify, the opening words of Section 26 are not met. A former statement may then be proved to corroborate that person's testimony under Section 160 BSA, if it was made at or about the time of the fact or before an authority legally competent to investigate it.

Which Act applies to a dying declaration in a case pending on 1 July 2024? Section 170(2) BSA says any trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force is dealt with under the Indian Evidence Act, 1872 as if the BSA had not come into force. On a reading of that clause, a dying declaration in such a case is proved under Section 32(1) of the Evidence Act, whose words Section 26(a) BSA repeats.

Sources

Acts and sections read: BSA 2023 ss.2(1)(d), 6, 11, 26, 61-63, 107, 141, 158, 160, 161, 170 (Gazette CG-DL-E-25122023-250882); BNSS 2023 ss.180(3), 181 (Gazette CG-DL-E-25122023-250884); Indian Evidence Act, 1872 ss.13, 32 with footnotes; CrPC 1973 s.162 (original India Code texts).
Judgments read (Veritect judgment corpus, full text): Khushal Rao v. State of Bombay (1958_1_552_570_EN.md); Tapinder Singh v. State of Punjab (1971_1_599_611_EN.md); Sharad Birdhichand Sarda v. State of Maharashtra (1985_1_88_198_EN.md); Laxman v. State of Maharashtra (S_2002_1_697_702_EN.md); Shankar v. State of Rajasthan (2026_4_298_312_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.

Section 32 Evidence Act vs Section 26 BSA — Dying Declaration and Statements of Persons Who Cannot Be Called