Admissibility of Gestures as Dying Declaration: BSA & IEA

Problem I: A's Statement by Gestures — Is It Admissible?

The Facts in Their Legal Significance

A, a woman, has had her throat cut. She cannot speak. She is conscious, alert, and able to respond to questions with signs and gestures. Before her death, she indicates by gestures that B was her assailant. The question is whether this communication — wordless yet deliberate — constitutes an admissible statement in evidence against B.

The answer, stated without hesitation, is: Yes, this statement by gestures is admissible as a dying declaration under Section 32(1) of the Indian Evidence Act, 1872 (= Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023), provided certain conditions are met.

The Word "Verbal" and the Key Statutory Choice

The resolution of this question turns entirely on a single word. Section 32 of the IEA (Section 26 of the BSA) declares that statements, "written or verbal", of relevant facts made by persons who are dead — or unavailable — are relevant in the cases enumerated. The legislature deliberately chose the word "verbal" and not "oral." This is no accident. Under the Evidence Act, "oral" refers exclusively to spoken words — as Section 3 and Section 60 plainly use "oral evidence" to mean evidence delivered by mouth. "Verbal," however, carries a wider connotation. It means "by words" — and words need not necessarily be spoken. A nod of the head, a wave of the hand, a point of the finger — these too are words in the broader sense, if they are intended as assertions and are adopted by the declarant in response to a specific proposition placed before them.

The Locus Classicus: Queen Empress v. Abdullah (1885 ILR 7 All 385)

The facts of this case are remarkably similar to the problem before us, and a student of evidence cannot encounter this problem without recognising Abdullah's face in it. Dulari, a woman whose throat had been slit with a razor, was taken to a hospital. She was conscious but could not speak on the doctor's advice. Questions were put to her by various persons — her mother, the Kotwal, a Deputy Magistrate, and the Surgeon. It was agreed that she would indicate "yes" and "no" by signs. When Abdullah's name was mentioned, she gave an affirmative sign. A Full Bench of five judges of the Allahabad High Court considered whether those signs, taken together with the questions, constituted a verbal statement under Section 32(1).

In a 4-1 decision, Petheram C.J. — with Straight, Oldfield and Brodhurst JJ. concurring — held: "Verbal means by words. It is not necessary that the words should be spoken. If the term used in the section were 'oral', it might be that the statement must be confined to words spoken by the mouth. But the meaning of 'verbal' is something wider. From the earliest times it has been held that the words of another person may be so adopted by a witness as to be properly treated as the words of the witness himself." A nod of assent to the question "Did Abdullah injure you?" is, in effect, the adoption of those words as her own.

Justice Mahmood, the sole Indian member of the Bench, dissented. He held that "verbal" could only mean "by means of a word," and that nodding the head or waving the hand was not a word. His view, though intellectually coherent, represents the minority position and has not been followed. It is worth noting that Broomfield J. of the Bombay High Court, in Emperor v. Moti Ram (1937 Bom LR 68), expressed sympathy with Mahmood J.'s position, though he acknowledged that since Abdullah, such evidence had been treated as admissible as a matter of settled practice.

Confirmation by the Privy Council: Chandrasekhara Alisandiri v. King (LR 1937 AC 220)

Fifty years after Abdullah, the question reached the Privy Council in a case from Ceylon, whose Evidence Ordinance was in pari materia with the Indian Evidence Act. A woman's throat had been half-slit. She could not speak but was conscious and able to make signs. The critical question put to her was "Was it Alisandiri?" — and she gave a nod of assent. The Privy Council, relying on Abdullah, confirmed that a nod in response to such a question constitutes a verbal statement under Section 32. The Council drew a helpful analogy: such a case closely resembles that of a person who is dumb and converses by signs, and Section 119 of the IEA (= Section 125 of the BSA) expressly treats the answers of a dumb witness given by signs as oral evidence. If signs are equivalent to words for the purpose of evidence given in court, they must equally serve as statements outside court under Section 32.

The Privy Council, however, offered a qualification of significant practical importance: "Evidence of signs of an ambiguous or uncertain character ought not to be admitted at all." The signs must be positive and definite. A vague movement of the hand that could equally mean yes or no, or a gesture that is ambiguous in its purport, falls outside the protection of this doctrine.

The Supreme Court's Authoritative Formulation

The Supreme Court in Laxman v. State of Maharashtra (2002 6 SCC 710) stated the principle with unambiguous clarity: "A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite." This formulation has become the governing test in Indian law.

In Meesala Ramakrishna v. State of A.P. (1994 4 SCC 182), the Court specifically considered the evidentiary value of a dying declaration recorded by signs and nods of a person unable to speak and held that such a statement amounts to a "verbal statement" and is relevant and admissible under Section 32(1). The Court also reiterated the critical distinction: a verbal statement is not the same as an oral statement.

This principle received its most recent and dramatic application in the Nirbhaya case — Mukesh v. State for NCT of Delhi (2017 6 SCC 1). The victim of the brutal gang rape had sustained injuries so grave that she could not speak coherently. A Metropolitan Magistrate recorded her dying declaration partly in writing and partly by signs and gestures, putting her multiple-choice questions. The Supreme Court, in upholding all the death sentences, affirmed the admissibility and weight of this declaration, observing that though the questions were of the nature of leading questions, they were simple, effective, and indispensable given the physical state of the victim.

Applicable Provisions

Section 32(1) IEA / Section 26(a) BSA, 2023 — statement by a person as to the cause of their death or the circumstances of the transaction resulting in their death.
Section 26 (Statement, Explanation), BSA, 2023 — makes clear: "Verbal means by words. It is not necessary that the words should be spoken. The words of another person may be adopted by a witness by a nod or shake of the head."
Section 119 IEA / Section 125 BSA, 2023 — the analogy of a dumb witness: signs and gestures are treated as oral evidence when given by a witness in court, and the same logic supports treating them as verbal statements under Section 32.

Decision on Problem I

A's statement is admissible as a dying declaration under Section 32(1) of the IEA / Section 26(a) of the BSA, 2023. The questions put to her and the signs made by her in answer, taken together, constitute a verbal statement as to the cause of her death. The only condition to be satisfied is that the signs were positive and definite — and on the facts given, her indication that B had cut her throat appears to be a clear and specific response. The defence cannot object to admissibility on the ground that the statement was made by gestures. However, the weight to be attached to such evidence will depend on the clarity of the signs, the method of recording them, the fitness of the declarant, and whether the questions were truly leading or otherwise.

Problem II: A Survives — Can the Declaration Be Used Against X and Y?

The Facts and the Defence's Objection

A is severely beaten. A Magistrate records a statement in which A implicates X and Y, apparently believing death to be imminent. A survives due to medical treatment. X and Y are now prosecuted for attempt to commit murder. The defence raises what it believes to be a fatal objection: the declarant is not dead, therefore the statement cannot be a dying declaration, and therefore it is inadmissible.

This objection, though superficially plausible, is only partially correct as to one aspect, and entirely incorrect as to the more important question of whether the statement is usable at all.

The Partial Correctness of the Defence's Objection

The defence is right on one narrow point: A's statement cannot be used as a dying declaration under Section 32(1) of the IEA / Section 26(a) of the BSA, 2023 because A is alive. Section 32 requires, as its foundational condition, that the declarant should be dead (or otherwise unavailable). Illustration (a) to Section 104 of the IEA states in so many words: "A wishes to prove a dying declaration by B — A must prove B's death." The weight of authority consistently supports this. In Emperor v. Ram Sattu (4 Bom LR 434) it was first laid down that if the person purporting to make a dying declaration survives, the statement is not admissible under Section 32. The principle has been affirmed repeatedly since.

In Biswanatha Jena v. State (2002 Cr LJ NOC 37 Ori), a victim with multiple injuries had a statement recorded by a doctor, but survived — the statement was not allowed to be used as substantive evidence. In Heera Lal Dr. v. State of U.P. (2001 Cr LJ 2849 All), an accused who committed murder of his wife and children and attempted to kill himself made a statement before a Magistrate under Section 164 CrPC — the Court held it could not be treated as a dying declaration because he survived.

The defence therefore succeeds in its objection insofar as it seeks to prevent the statement from being read as a dying declaration. That specific route is closed.

But the Objection Does Not Render the Statement Inadmissible

Here the defence's argument collapses. A surviving declarant does not leave the prosecution without recourse. The statement recorded by the Magistrate is a Section 164 CrPC statement — and it carries its own independent evidential significance, quite apart from the provisions of Section 32.

Since A is alive and has presumably appeared as a witness at trial, the statement recorded by the Magistrate becomes a former statement of a witness within the meaning of Section 157 of the IEA (= Section 160 of the BSA, 2023). Section 157 provides that in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact — "before any authority legally competent to investigate the fact" — may be proved. A Magistrate recording a statement under Section 164 CrPC is unquestionably an authority legally competent in this sense. Accordingly, if A testifies at trial and implicates X and Y, the earlier Magistrate's statement can be proved to corroborate A's testimony.

If A turns hostile at trial — a contingency that the law always guards against — the earlier statement can be used to contradict A under Section 155 of the IEA (= Section 158 of the BSA) read with Section 145 of the IEA.

The Special Status of a Section 164 CrPC Statement

Crucially, a statement recorded by a Magistrate under Section 164 CrPC, even when the declarant survives, is not treated as a mere police statement. Courts have consistently recognised that such a statement is of a superior quality and higher value than a statement recorded under Section 161 CrPC by the investigating officer. In Ranjit Singh v. State of M.P. (AIR 2011 SC 255), the Supreme Court stated expressly: "Such statement has to be taken as of a superior quality and of a higher value than that recorded under Section 161 CrPC. It can also be used under Section 157 as the former statement of witnesses for corroboration purposes." The fact that it was recorded by a Magistrate — an independent authority who is neither party nor police — lends it a degree of reliability that a police statement under Section 161 simply cannot claim.

Similarly, in Maqsoodan v. State of U.P. (AIR 1983 SC 126), the Supreme Court clarified that while a statement by a surviving declarant cannot be treated as a dying declaration, it is entirely capable of being used to corroborate or contradict the maker's testimony when he appears as a witness. This position was reaffirmed in Ram Prasad v. State of Maharashtra (AIR 1999 SC 1969): "A dying declaration can be used for corroborating or contradicting the maker of the statement if he survives and appears as a witness."

An Important Caveat: The Section 162 CrPC Trap

One must draw a careful distinction here. If the statement had been made to a police officer and not to a Magistrate, the position would have been entirely different. Section 162 CrPC bars the use of any statement made to the police during investigation for any purpose at inquiry or trial — except for contradicting a prosecution witness under Section 145 IEA. Even corroboration under Section 157 is barred. The reason this does not apply in A's case is that the statement was recorded by a Magistrate — who is not a police officer and whose recording of the statement under Section 164 CrPC is expressly saved from the bar of Section 162.

Decision on Problem II

The defence's objection is sustained on the narrow ground that A's statement cannot be received as a dying declaration under Section 32(1) IEA / Section 26(a) BSA. A's survival destroys the foundational prerequisite for that provision.

However, the statement does not vanish from the record. Since it was recorded by a Magistrate under Section 164 CrPC, it is available to the prosecution in the following ways:

If A appears as a witness and supports the prosecution case, the Magistrate's statement is admissible to corroborate A's testimony under Section 157 IEA / Section 160 BSA, 2023.
If A resiles from his earlier statement and turns hostile, the Magistrate's statement may be used to contradict him under Section 155 IEA / Section 158 BSA, read with Section 145 IEA.
The statement itself, being of superior quality compared to a Section 161 statement, carries significant persuasive weight before the court.

The prosecution of X and Y is therefore not defeated. The statement recorded before the Magistrate remains a potent and legitimate weapon in the prosecution's armoury, and the defence's objection, while valid in its narrow technical compass, does not achieve the acquittal it seeks.