​KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Cases in Which Statement of Relevant Fact by Person Who is Dead or Cannot Be Found, etc., is Relevant (Section 26)

1. Basic Principle of Section 26
​Section 26 deals with situations where a statement made by a person becomes relevant even though that person cannot be produced before the court.
Normally, evidence must be direct and the maker of the statement should appear in court for examination and cross-examination. However, Section 26 creates an exception where the maker is:

• Dead
• Cannot be found
• Incapable of giving evidence
• Unable to attend without unreasonable delay or expense

In such cases, written or verbal statements of relevant facts made by that person may themselves become relevant.

2. Scope of Section 26
Section 26 is based on two principles:
(i) NecessityThe maker of the statement is unavailable, so the court allows the statement to avoid failure of justice.
(ii) ReliabilityCertain statements are considered naturally trustworthy because of the circumstances in which they were made.

3. Categories of Statements under Section 26
Section 26 recognizes the following types of statements:
(a) Dying DeclarationStatements relating to:

• Cause of death, or
• Circumstances of the transaction resulting in death

These are relevant when the cause of death is in question.

(b) Statements in Course of BusinessStatements made in the ordinary course of business or professional duty.
Examples:

• Diary entries
• Business records
• Medical reports
• Acknowledgments of receipt
• Commercial documents

(c) Statements Against Interest
Statements are relevant when they are against the maker’s:

• Pecuniary interest
• Proprietary interest
• Civil liability
• Criminal liability

The reason is that a person is unlikely to make a false statement against his own interest.

(d) Statements as to Public Right or Custom
Statements expressing opinion about:

• Public rights
• Customs
• Matters of general or public interest

These must be made before any dispute arose.

(e) Statements Relating to Relationship
Statements about relationship by:

• Blood
• Marriage
• Adoption

The maker must have special means of knowledge and the statement must be made before dispute.

(f) Statements in Wills, Deeds, Pedigrees, Tombstones, etc.
Statements relating to relationship between deceased persons are relevant when contained in:

• Wills
• Deeds
• Family pedigrees
• Tombstones
• Family portraits

(g) Statements in Documents Relating to Transactions
Statements contained in deeds, wills, or other documents relating to transactions under Section 11(a) are relevant.

(h) Statements by Several Persons Expressing Feelings
Statements made by a group of persons expressing common feelings or impressions are relevant when connected to the matter in issue.

A. Dying Declaration1. Meaning of Dying Declaration
A dying declaration is a statement made by a person about:

• The cause of his death, or
• The circumstances of the transaction resulting in his death

It becomes relevant when the cause of that person’s death is in question.

2. Rationale
The principle is expressed in the maxim:
“Nemo moriturus praesumitur mentiri”Meaning:
A person who is about to die is not presumed to lie.
The law assumes that a person facing death is unlikely to make a false statement. Since the victim may be the only direct witness, excluding such a statement may defeat justice.

3. Important Features

• It may be oral, written, or by signs/gestures
• It need not be made in expectation of death
• It may be used in civil or criminal proceedings
• It is an exception to hearsay evidence
• It can be the sole basis of conviction if reliable

4. “Verbal” is Wider than “Oral”
A dying declaration need not always be spoken.
In Queen Empress v Abdullah, the deceased could not speak because her throat was cut. She answered questions through gestures. The court held that signs and gestures can amount to a verbal statement.
Thus:

• Oral = spoken by mouth
• Verbal = words, signs, gestures, or any clear communication

5. Mode of Making Dying Declaration
A dying declaration may be made:

• Orally
• In writing
• By gestures
• By nods
• By signs
• Through any definite communication

In Mukesh v NCT of Delhi, the victim’s statement through gestures was accepted because she was conscious and medically fit to respond.

6. Who May Record a Dying Declaration
A dying declaration may be recorded by:

• Magistrate
• Doctor
• Police officer
• Any person present

However, a declaration recorded by a Magistrate usually carries higher evidentiary value.
In State of Jharkhand v Shailendra Kumar Rai, the Supreme Court held that a dying declaration does not become inadmissible merely because it was recorded by a police officer.

7. Form of Recording
There is no fixed legal form.
Preferably, it should be:

• In question-and-answer form
• In the exact words of the maker
• In the language of the maker
• Recorded after ensuring mental fitness

But absence of any one formality does not automatically make it invalid.

8. Evidentiary Value
A dying declaration is substantive evidence.
It may form the sole basis of conviction if the court is satisfied that it is:

• Voluntary
• Truthful
• Consistent
• Free from tutoring
• Made by a person in fit mental condition

Corroboration is not mandatory, but the court may seek it if the declaration appears doubtful.

9. Key Principles on Dying Declaration(i) Sole Basis of Conviction
In Khushal Rao v State of Bombay, the Supreme Court held that a reliable dying declaration can form the sole basis of conviction without corroboration.
(ii) If Victim SurvivesIf the maker survives, the statement is no longer a dying declaration. It may be used only for contradiction or corroboration.
(iii) Incomplete Dying DeclarationAn incomplete dying declaration may still be relied upon if it clearly identifies the accused and the cause of death.
(iv) Multiple Dying DeclarationsWhere there are several dying declarations, each must be examined independently. If inconsistencies are material, the court must act cautiously.
(v) VideographyVideography is a precautionary measure. Absence of videography does not automatically invalidate the dying declaration.

10. Multiple Dying Declarations – Note Form
When there are multiple dying declarations, the court should examine:

• Whether each statement was voluntary
• Whether the maker was mentally fit
• Whether inconsistencies are material
• Whether statements are supported by medical evidence
• Whether one statement is more reliable than another
• Whether the declaration recorded by Magistrate appears trustworthy

11. Interested Witnesses
​Evidence of interested witnesses is not automatically rejected. However, it must be carefully scrutinized.
If reliable and credible, it can be accepted. If doubtful, corroboration may be required.

12. Key Takeaways

• Section 26 is an exception to the rule against hearsay
• It applies when the maker is unavailable
• Dying declaration is the most important category under this section
• A dying declaration may be oral, written, or by gestures
• It can form the sole basis of conviction if reliable
• Courts must examine voluntariness, truthfulness, fitness, and absence of tutoring

One-Line Summary👉 Section 26 allows statements of unavailable persons to be admitted in special cases, especially dying declarations, where necessity and reliability justify departure from the ordinary rule of direct evidence.