How much value does a dying declaration have and who can record it?

Question

The victim in a case made a statement before dying that implicates the accused. How reliable is this dying declaration as evidence? I would rather settle this without going to court if the law allows it, but I need to know my rights before I sign anything. Please tell me what to do first and what document to keep.

MyVakeel Legal Desk · Accepted Answer

Under Indian law, Bharatiya Sakshya Adhiniyam 2023, Section 26 is the starting point for this criminal law question. What follows is the position in substance, together with the steps that usually make the difference in practice.

BSA s.26 makes a statement of a person as to the cause of their death, or the circumstances of the transaction resulting in their death, relevant whether or not the person was under expectation of death at the time, unlike the stricter common-law dying declaration rule.

A dying declaration can form the sole basis of conviction without independent corroboration if the court is satisfied it is true, voluntary and made when the declarant was in a fit state of mind to make it.

The declaration is ideally recorded by a Magistrate after obtaining a doctor's certificate of fitness, but a declaration recorded by a police officer, doctor or even a private person is admissible if the court finds it credible and free from tutoring.

Multiple dying declarations that are consistent with each other strengthen reliability, while material contradictions between them require the court to examine which one, if any, inspires confidence.

BNSS s.176 obliges investigating officers to ensure that where a victim's condition is critical, a dying declaration is recorded promptly, ideally with audio-video documentation where feasible.

Practical steps: 1) Ensure a doctor's fitness certificate is obtained before or along with recording the declaration where possible; 2) Request that a Magistrate record the declaration rather than only an investigating officer, if time permits; 3) Preserve every version of the declaration recorded by different persons for comparison; 4) Have counsel scrutinise the fitness, language and consistency of the declaration during trial.

If the other side has already issued a notice, filed a case or set a deadline, treat the matter as time-sensitive — remedies under Bharatiya Sakshya Adhiniyam 2023, Section 26 carry limitation periods, and unexplained delay weakens an otherwise strong case. You can post the details on the MyVakeel forum for a practising advocate to review, or book a paid consultation with a Bar Council verified lawyer in criminal law.