In legal proceedings, evidence plays a very vital role to discover the truth of the case. But what if a key witness or person connected with that case who was having important information is dead, missing, or can’t testify? The law still allows considering their statements relevant and can be used as evidence.
What is the Dying Declaration under Section 26(a) of BSA?
Section 26(a) of Bharatiya Sakshya Adhiniyam,2023 (BSA) talks about dying declaration .It’s a statement made by a person who is dead or resulted in the cause of his death or which resulted in his death due to any circumstances of transaction i.e in cases in which the person’s death comes into question.Section 26(a) of BSA ,makes such statements relevant,whether the maker of the statement was or was not under the expectation of death at the time when it was made.
The Dying Declaration under Bharatiya Sakshya Adhiniyam,2023 (BSA) is an exception to the rule of Hearsay Evidence due to necessity and is admissible.It is also called as ‘Necessity Rule or Nisi’ .Dying Declaration is indicated in the legal maxim, ‘Nemo moriturus praesumitur mentire’ which means no person will die with a lie on his lips.Under this section, following are the essentials:-
- Statement of a person who is dead
- Statement may be verbal written or by gestures
- Should relate to cause of death or circumstances of the transaction which resulted in death
- Expectation of death not necessary
- Statement relevant when cause of death is in question
Dying Declaration in BSA is considered as a substantive piece of evidence.Dying Declaration made under Section 26 of BSA is subject to control of Section 161 of BSA.It is admissible even if it made to a police officer.To decide the reliability of Dying Declaration, following guidelines needs to be considered,they are:-
- It should be true and voluntary .It can form a sole basis of conviction without any corroboration by independent evidence.
- It should not be tutored,prompted or imaginary.
- If suspicious , it should not be acted upon without proper corroboration.
- It Suffers from infirmity ,cannot form the basis of conviction.
- If More than one statement, one first in point of time must be preferred.
From the point of view of the declarant,the Dying Declaration in evidence must be complete.If while making some statements he dies in the middle and the statement remains incomplete,it will not be relevant.(Earlier under Section 32 of Indian Evidence Act,1872)
STATEMENT OF RELEVANT FACT BY PERSON WHO IS DEAD OR CANNOT BE FOUND IS RELEVANT (SECTION 26 OF BSA)
Key Components
(a)Cause of Death -Statement of a person about the cause or circumstances of his death is considered relevant where question arises regarding his death cause, even if they didn’t expect to die when making the statement.
(b)Ordinary Course of Business -Statements made by a person in the regular course of business activities are considered relevant. Like,entries of business records, acknowledgments of receiving money or goods, or use of documents for business transactions.
( c)Against Personal Interest – Making a statement by a person that goes against their financial or property interests, or could expose them to criminal prosecution, such statement is considered relevant.
(d)Public Rights or Customs – Giving an opinion on public rights, customs, or matters of general interest, which is made before any dispute which arose, is relevant.
(e)Family Relationships – Any Statements about family relationships like blood, marriage, or adoption are treated relevant if that person had special knowledge regarding these relations and made them before any dispute arose.
(f)Family Documents -Any Statements about family relationships found in wills, deeds, family pedigrees, or inscriptions or family portraits are considered relevant if made before any dispute arose.
(g)Legal Documents -Statements made relating to any legal documents like deeds or wills that relate to a transaction in question are treated relevant.
(h)lCollective Statements – Statements made by a group of people expressing feelings or impressions on any matter, is relevant.
Exceptions
Under specific legal conditions only these statements are considered relevant. If the person is alive and available, the statement might not be taken into consideration and will not be admitted. The law strictly limits their use in situations where the person is genuinely not available.
Examples
- If B murdered A. A made a statement about his murder before dying, his statement would be relevant in finding the cause of A’s death.(Cause of Death)
- A surgeon who died,had a diary that included an entry about delivery of a baby on a particular date. This entry could be relevant in finding the birth date of that baby.(Business Records)
- A person who died left a letter which acknowledges a receipt of rent for a property. This letter is relevant in proving whether rent was paid or not.(Financial Interests)
- A dead village headman’s statement regarding a road that it is public could be relevant in finding out the road’s legal status.(Public Rights)
- A letter from a father who died announcing the birth of his child on a particular date is relevant in finding out he child’s birth date.(Family Relationships)
Why is this Important?
To understand a legal case,it is very crucial to understand the relevance of these statements.
They help in determining that no important information is lost when a person is not available, helping bridge gaps in evidence and pursue justice.
Bharatiya Sakshya Adhiniyam,2023(BSA) allows statements from persons who are dead, missing, or not available to be used as evidence under specific conditions, for justice and fairness in legal cases, even when the person cannot testify.
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