Dying declarations (section 26(a))

Bharatiya Sakshya Adhiniyam · Unit II · Topic 7 of 26 · 6 min read

Why a dead person's statement about the cause of death is admitted, how the Indian rule differs from the English one, the 'circumstances of the transaction' test from Pakala Narayana Swami, and the judicial standards for relying on a dying declaration from Khushal Rao to Laxman.

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On this page

1. The provision
2. Justification
3. Comparison with English law
4. "Circumstances of the transaction which resulted in his death"
5. Judicial standards for weight
6. Further rules
7. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Almost certain to be set. A dying declaration question appeared in Unit II of every paper from February 2025 to January 2026. Section 26(a) is old s.32(1), word for word.

1. The provision

Section 26 makes relevant the statements, written or verbal, of relevant facts made by a person who is dead, or cannot be found, or has become incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense. Clause (a) covers a statement 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.

Two sentences at the end of clause (a) mark the Indian rule off from the English one. Such statements are relevant:

whether or not the maker was under expectation of death when he made them; and
whatever the nature of the proceeding in which the cause of death comes into question, civil or criminal.

For a dying declaration, only the first of the opening conditions works: the maker must be dead. A person who survives is a witness, and his earlier statement can only corroborate or contradict him (sections 160 and 148).

2. Justification

A dying declaration is hearsay. It is admitted for two reasons. Necessity: the victim is often the only eye-witness, and excluding his account would let the killer benefit from the killing. Sanctity of the occasion: the old maxim nemo moriturus praesumitur mentire, a man will not meet his maker with a lie in his mouth. The Indian rule rests more on necessity, since expectation of death is not required.

3. Comparison with English law

In English common law the declarant must have had a settled, hopeless expectation of death; in India this is not required.
English law admitted dying declarations only in prosecutions for murder or manslaughter of the declarant; in India they are admitted in any proceeding, including civil suits for compensation, where the cause of his death is in question (illustration (a): a suit by the widow).
Both require that the declarant be dead and that the statement relate to the cause of his death.

4. "Circumstances of the transaction which resulted in his death"

In Pakala Narayana Swami v. Emperor (Privy Council, 1939) the deceased told his wife, before leaving home, that he was going to Berhampur because the accused's wife had written asking him to come and receive payment of a debt. His body was found in a trunk days later. Lord Atkin held the statement admissible. "Circumstances of the transaction" are narrower than "circumstances" generally; they must have some proximate relation to the actual occurrence. But the statement may be made before the cause of death has arisen, and before the deceased had any reason to anticipate being killed. Statements about the journey and its purpose qualified; general expressions of suspicion or fear do not.

The Supreme Court followed this in Rattan Singh v. State of Himachal Pradesh, 1996 INSC 1467, (1997) 4 SCC 161: even distant circumstances can be admitted if they have a nexus with the transaction that caused the death.

5. Judicial standards for weight

Khushal Rao v. State of Bombay, 1957 INSC 79, AIR 1958 SC 22, laid down the propositions still cited:

There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated.
Each case is decided on its own facts, keeping in view the circumstances in which the declaration was made.
A dying declaration is not weaker evidence than other evidence; it stands on the same footing and is tested in the same way.
Its reliability depends on whether the declarant had the opportunity to observe and identify the assailant, whether he was in a fit state of mind, whether the statement was made at the earliest opportunity, and whether it was free from tutoring or prompting.
A declaration recorded by a competent Magistrate in proper form, in question and answer and as far as possible in the declarant's words, stands on a higher footing than one resting on oral testimony.

Paniben v. State of Gujarat, 1992 INSC 78, (1992) 2 SCC 474, collected further rules: the Court must be satisfied the declarant was in a fit state; a declaration that is suspicious or tutored cannot be acted on without corroboration; where the declarant was unconscious or could not speak, it is rejected; a brief declaration is not for that reason to be discarded; and where there are several inconsistent declarations, the Court must examine which is reliable.

Laxman v. State of Maharashtra, 2002 INSC 352, (2002) 6 SCC 710 (Constitution Bench), settled a conflict on medical certification. A certificate by a doctor that the declarant was in a fit state of mind is not a legal requirement; it is a rule of caution. If the person recording the statement is satisfied, from his own observation, that the declarant was fit, the declaration can be acted on. Paparambaka Rosamma (1999), which had held otherwise, was overruled on this point.

6. Further rules

Who may record it. Anyone: a Magistrate, doctor, police officer or private person. A Magistrate is preferred. A declaration to the police is not hit by section 181 BNSS, which expressly excludes statements under section 26(a) (section 181(2)).
Form. Oral, written, or by signs and gestures, if they are clear. No oath is needed.
Incomplete declaration. If the declarant dies before completing it, and what was said is not complete in itself, it is unsafe to rely on.
Survival. If the maker survives, the statement is not a dying declaration; it may be used under section 160 to corroborate him.

Trap. Do not write that a dying declaration "requires corroboration" or "must be certified by a doctor". Both are rules of prudence that apply only when the Court has doubts. Khushal Rao and Laxman say exactly that.

7. Problem

D, with 80 per cent burns, tells the attending doctor in the presence of her mother that her husband poured kerosene on her. An hour later the Executive Magistrate records her statement, without a doctor's endorsement of fitness, in which she says the stove burst. She dies the next day. How should the Court treat the two statements?

Conclusion. Both are relevant under section 26(a). The absence of a medical certificate is not fatal (Laxman). Where there are inconsistent declarations, the Court must decide which is reliable on the surrounding circumstances (Paniben): who was present, whether either was prompted, what the medical evidence says about the burns, and whether there was a dowry demand (relevant to section 118, the presumption of dowry death). Neither can be accepted mechanically; if the conflict cannot be resolved, the benefit goes to the accused.

How this is examined

"What is a dying declaration? What are the conditions for its admissibility?" (June 2025), "Discuss the importance of dying declaration" (Jan 2026), "Discuss its evidentiary value" (Law of Evidence, June 2025). Write the section, then the English comparison, then Pakala on circumstances, then Khushal Rao, Paniben and Laxman on weight.

Now try the real questions: Bharatiya Sakshya Adhiniyam past question papers.