Dying Declaration under Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023: Evidentary Sufficiency, Collective Attribution, and Liability Arising from Emotional and Relational Exploitation

 Dying Declaration under Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023:

Evidentary Sufficiency, Collective Attribution, and Liability Arising from Emotional and Relational Exploitation

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By : 

Advocate Salil Kumar

Roll No. K/136/1999

Kozhikode-673001 , Kerala

I. Introduction

The concept of a dying declaration occupies a unique position in criminal jurisprudence. It is one of the most significant statutory exceptions to the rule against hearsay, premised on the belief that a person standing at the threshold of death is unlikely to make a false statement. The doctrine has withstood constitutional scrutiny and continues to be recognised as a vital evidentary tool in criminal trials.

With the enactment of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), Parliament has consciously retained the substance of the law relating to dying declarations through Section 26(a). Though the statute has undergone structural changes, the jurisprudential foundations laid under Section 32(1) of the Indian Evidence Act, 1872 remain intact. Consequently, precedents of the Supreme Court of India and the Kerala High Court continue to guide the interpretation and application of this provision.

This article undertakes a detailed examination of three critical aspects of dying declarations under Section 26(a) BSA, which frequently arise in contemporary criminal trials.

II. Statutory Scope of Section 26(a), BSA 2023

Section 26(a) makes admissible statements made by a person regarding the cause of his death or the circumstances of the transaction that resulted in his death, in cases where the cause of death is in question. The phrase “circumstances of the transaction” has been deliberately construed expansively by courts to include not only the immediate act causing death but also antecedent events that have a proximate nexus with the death.

The retention of this language in BSA 2023 signifies legislative approval of the settled judicial interpretation that dying declarations are not confined to the last physical act but may encompass a chain of conduct culminating in death.

III. When a Dying Declaration Alone Is Sufficient to Sustain Conviction

A. Principle of Sufficiency

One of the most settled propositions in criminal law is that a conviction can be based solely on a dying declaration, provided it inspires full confidence in the mind of the court. There is no statutory requirement under Section 26(a) BSA for corroboration as a matter of law.

The Supreme Court has consistently clarified that a dying declaration stands on a higher evidentary footing than ordinary testimonial evidence, because it is made in circumstances where the declarant has no motive to falsely implicate another.

B. Judicial Tests of Reliability

However, courts have simultaneously emphasised that such declarations must pass strict judicial scrutiny. The reliability of a dying declaration depends on several interrelated factors:

First, the mental fitness of the declarant at the time of making the statement must be established. Though medical certification is desirable, it is not indispensable if the court is otherwise satisfied that the declarant was conscious, coherent, and capable of understanding and answering questions.

Secondly, voluntariness is of paramount importance. Any indication of tutoring, prompting, coercion, or influence—whether by relatives, police, or others—renders the declaration suspect.

Thirdly, internal consistency is essential. A dying declaration containing contradictions, improbabilities, or embellishments cannot be the sole foundation for conviction.

C. Naming of the Accused

When the dying declaration clearly names the accused and explains their role in causing the death, such naming assumes great evidentary significance. Courts have repeatedly held that once the declaration is found to be truthful and reliable, the mere absence of corroborative evidence does not weaken the prosecution case.

IV. Dying Declarations Involving Multiple Accused or Collective Responsibility

A. The Legal Challenge of Collective Attribution

A more complex issue arises when a dying declaration implicates more than one person or attributes responsibility to a group collectively. Defence challenges often argue that such declarations are vague and incapable of sustaining conviction.

The law, however, does not recognise any rigid principle that a dying declaration loses its sanctity merely because it names multiple accused. What is required is not numerical specificity but substantive clarity.

B. Requirement of Role Attribution

Courts have drawn a crucial distinction between collective attribution and vague accusation. If the dying declaration indicates a common design, conspiracy, or shared course of conduct, and the roles of the accused are reasonably discernible, the declaration retains its evidentary value.

Conversely, where the declaration merely states that “all of them are responsible” without indicating how or in what manner each accused contributed to the death, courts have been cautious in acting upon such statements without corroboration.

C. Kerala High Court’s Approach

The Kerala High Court has consistently held that in cases involving multiple accused, courts must carefully examine whether the dying declaration discloses a coherent narrative of participation. If the declaration reflects a clear and consistent account of collective wrongdoing forming part of the same transaction, it does not lose its legal sanctity merely due to multiplicity of accused.

V. Cheating, Honey Trapping, and Relationship Exploitation in Dying Declarations

A. Nature of Allegations in Modern Prosecutions

In recent years, courts have increasingly encountered dying declarations involving allegations of emotional manipulation, cheating in intimate relationships, financial exploitation, and so-called honey-trap operations. These cases pose delicate legal questions, as not every moral wrong translates into criminal liability.

B. Legal Threshold for Criminal Liability

The settled legal position is that cheating in a relationship or emotional betrayal, by itself, does not amount to an offence leading to conviction for homicide or abetment. Criminal liability arises only when such conduct crosses the threshold of intentional deception, sustained exploitation, or deliberate inducement, and is shown to have a direct and proximate nexus with the death.

For offences such as abetment of suicide, courts require proof of mens rea, namely, intention or knowledge that the accused’s conduct was likely to drive the victim to commit suicide.

C. Evidentary  Value of the Dying Declaration

A dying declaration that specifically narrates a systematic pattern of cheating, emotional coercion, or financial exploitation, and clearly links such conduct to the decision of the deceased to end his or her life, becomes a relevant and potent piece of evidence. However, courts remain cautious and insist on examining whether the declaration establishes more than mere disappointment or emotional distress.

Where the declaration demonstrates a continuing course of conduct designed to exploit or trap the deceased, and names the accused who acted in concert, it may legally support conviction under abetment or conspiracy provisions.

VI. Judicial Caution and Safeguards

Despite the evidentiary value accorded to dying declarations, courts have repeatedly warned against their mechanical acceptance. The irreversible nature of criminal conviction demands that dying declarations be evaluated with the utmost care, especially in cases involving:

interpersonal relationships,

multiple accused,

allegations rooted in emotional or psychological harm.

The court must be satisfied that the declaration is not a product of anger, frustration, or a desire for posthumous retribution.

VII. Conclusion

Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023 continues the long-standing balance between necessity and caution in criminal evidence law. A dying declaration remains a powerful piece of evidence, capable of sustaining conviction even in the absence of corroboration, provided it meets judicially evolved standards of reliability and credibility.

At the same time, the law does not permit dying declarations to become instruments of unverified accusation. Courts are duty-bound to ensure that criminal liability is imposed only where the declaration reveals a clear, voluntary, and proximate link between the conduct of the accused and the death of the declarant.