Section 32 IEA & 26 BSA: Dying Declaration & FIR Admissibility

The Architecture of Section 32 IEA / Section 26 BSA

Section 32 of the Indian Evidence Act, 1872 — mirrored now in Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 — begins with a general condition before arriving at the eight specific circumstances. Statements, written or verbal, of relevant facts made by a person who falls into one of four categories of unavailability are themselves declared relevant in the eight cases that follow.

The four classes of unavailable persons are:

A person who is dead — with the critical reminder that death must first be proved before Section 32 can be invoked, as Illustration (a) to Section 104 expressly states: "A wishes to prove a dying declaration by B. A must prove B's death."
A person who cannot be found — not mere ignorance of whereabouts, but proof of diligent search and failure to trace the person after reasonable exertion.
A person who has become incapable of giving evidence — incapacity evaluated under the double test of Section 118, namely comprehension and communication, whether by reason of extreme old age, disease of body or mind, or any other similar cause.
A person whose attendance cannot be procured without unreasonable delay or expense — a discretionary ground, available only in extreme cases where the Court is satisfied that the cost in time or money would be disproportionate to the circumstances.

These four grounds are exhaustive. Unless the person making the statement falls into one of these categories, Section 32 is simply not available, however valuable or reliable that person's statement might appear to be.

The Eight Circumstances: When Statements of Unavailable Persons Are Relevant

Clause (1) / Section 26(a) — Cause of Death or Circumstances of Transaction

This is the most frequently invoked of all the eight clauses — the dying declaration provision. A statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death is relevant, in cases where the cause of that person's death comes into question. Two features make this provision uniquely liberal in comparison to English common law: first, the statement is relevant whether or not the person was under expectation of death when making it; and second, it is relevant whatever may be the nature of the proceeding — civil or criminal — in which the cause of death comes into question.

The phrase "circumstances of the transaction which resulted in his death" received its most authoritative interpretation in the Privy Council's landmark judgment in Pakala Narayana Swami v. King-Emperor (AIR 1939 PC 47). The victim received a letter asking him to travel to collect money; he made a statement to his wife about this letter, and his mutilated body was found days later. The Privy Council held that the circumstances of the transaction are not confined to acts done when and where death was caused — the statement may be made before the cause of death has arisen, or even before the deceased had any reason to anticipate being killed, as long as the statement forms part of the organic whole of the transaction that ended in death.

Illustration (a) to Section 32 / Section 26 confirms that the clause applies to cases of murder, rape, and civil wrongs alike. The Supreme Court in Sharad Bidhrichand Sarda v. State of Maharashtra (AIR 1984 SC 1622) further clarified that the test of proximity between the statement and the death cannot be reduced to a cut-and-dried formula — where death is the logical culmination of a continuous drama, each statement forming part of that drama is admissible.

Clause (2) / Section 26(b) — Statements Made in the Ordinary Course of Business

When the statement was made by the person in the ordinary course of business — including entries in books kept in the regular course of business, entries made in the discharge of professional duty, acknowledgments of receipt, commercial documents, and dated letters — it is relevant under this clause.

The rationale is that there is no motive to fabricate what is done routinely. Illustrations (b), (c), (d), and (g) exemplify this provision through a deceased surgeon's diary entry, a solicitor's attendance note, a merchant's letter, and a dated letter. The FIRs registered by police, post-mortem reports by surgeons, and entries in account books kept in the ordinary course of trade all potentially fall under this category, as long as the maker is dead or unavailable and the entry was made in the normal exercise of their duties.

Clause (3) / Section 26(c) — Statements Against the Interest of the Maker

When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him to criminal prosecution or a suit for damages, such a statement is relevant.

The logic here is analogous to admissions: a person is unlikely to fabricate what damages his own interests. Illustration (e) captures this in the context of an agent's letter acknowledging receipt of rent — an entry against his own pecuniary position. Illustration (f) shows a deceased clergyman's statement about a marriage that would expose him to criminal liability, which is held to be relevant. Crucially, the statement must have been against the maker's interest at the time it was made — subsequent developments that render it inconvenient do not attract this clause.

Clause (4) / Section 26(d) — Opinion as to Public Right, Custom, or Matter of General Interest

A statement giving the opinion of the deceased as to the existence of any public right, custom, or matter of public or general interest is relevant, provided that (a) the maker would likely have been aware of its existence, and (b) the statement was made ante litem motam — that is, before any controversy had arisen about the right or custom in question.

The condition of ante litem motam is indispensable. A statement made after a dispute has erupted about the existence of a right carries the taint of partisan interest and is, therefore, not admissible under this clause. Illustration (i) — a deceased headman's statement that a road was public — perfectly illustrates the scope of this provision. Public rights of way, fisheries, wells, and temples are examples of the kinds of rights contemplated.

Clause (5) / Section 26(e) — Statements as to Relationship (Special Means of Knowledge)

When the statement relates to the existence of any relationship by blood, marriage, or adoption between persons, and when the maker of the statement had special means of knowledge about that relationship, and when the statement was made before the question in dispute was raised, it is relevant.

The requirement of special means of knowledge distinguishes this clause from clause (6). The maker must have been in a position of proximity — familial, social, or otherwise — that gave him or her special insight into the relationship in question. Illustration (k) — a deceased father's statement that B was his son — and illustration (l) — a deceased father's letter announcing the birth of A — exemplify this clause.

Clause (6) / Section 26(f) — Statements in Wills, Deeds, or Documents Relating to Family Affairs

Where the statement relates to the existence of relationship between deceased persons and is found in a will or deed relating to the affairs of the family, or in a family pedigree, tombstone, family portrait, or other thing on which such statements are usually made, it is relevant, provided it was made before the question in dispute arose.

Unlike clause (5), this clause does not require the maker to have special means of knowledge — the solemnity of the document (a will, deed, or tombstone) itself provides the guarantee of authenticity. The statement under this clause must always be written, not oral. Illustration (m) — a deceased father's memorandum-book entry recording his daughter's marriage — exemplifies this provision.

Clause (7) / Section 26(g) — Statements in Documents Relating to Transactions Under Section 13(a)

When the statement is contained in any deed, will, or other document that relates to a transaction of the kind mentioned in Section 13, clause (a) — that is, a transaction by which a right or custom was created, claimed, modified, recognised, asserted, or denied — it is relevant under this clause.

This clause, in essence, extends the reach of Section 13's provisions on proving rights and customs by allowing documents executed as part of such transactions to be proved even after the relevant parties are unavailable. Illustration (g) — a letter written by a person who cannot be found — falls under this category.

Clause (8) / Section 26(h) — Statements by Several Persons Expressing Feelings or Impressions

When the statement was made by a number of persons and expressed feelings or impressions on their part relevant to the matter in question, it is relevant under this clause — what may be called composite hearsay.

Illustration (n) — the remarks of a crowd of spectators about the libellous character of a caricature exhibited in a shop window — is the statutory example. This clause is a recognition that the collective reaction of many observers, when spontaneously formed and uniformly expressed, carries a guaranty of truth that an individual's hearsay statement may not. Du Bost v. Beresford (2 Camp 512) — the original Beauty and the Beast case from which the illustration is taken — shows how public reactions to a displayed libel could be proved through multiple witnesses.

The Problem: Can A's FIR Be Admitted as A Dying Declaration?

Now we turn to the problem — a compact but sophisticated question on the proximity requirement and the scope of "circumstances of the transaction which resulted in death" under Section 32(1) IEA / Section 26(a) BSA.

A lodges an FIR at the police station stating that B has beaten him and threatened to kill him. Two days later, A is murdered. The question is whether the FIR can be admitted as a dying declaration under Section 32(1).

The Core Requirement: Nexus with Cause of Death

For a statement to be relevant under Section 32(1), it must satisfy one of two tests: it must relate to the cause of the declarant's death, or it must relate to the circumstances of the transaction which resulted in the declarant's death. The person need not have been under any expectation of death when making the statement — that much is settled. But what is required is a proximate and rational connection between the statement and the death that ultimately occurred.

The Privy Council in Pakala Narayana Swami established that the circumstances of the transaction can extend even to events preceding the fatal moment, as long as they form part of the same organic chain of events leading to death. The Supreme Court in Rattan Singh v. State of Himachal Pradesh (AIR 1997 SC 768) elaborated upon this to hold that even if the person making the statement was nowhere near the expectation of death, the statement would be admissible under Section 32(1) "provided it satisfies one of the two conditions set forth in the sub-section. Either such statement should relate to the cause of his death or it should relate to any of the circumstances of transaction which resulted in his death."

The FIR in the Present Case: A Strong Argument for Admissibility

In the given facts, A's FIR contains two crucial elements: a report that B had beaten him, and a threat by B to kill him. A dies by murder two days later. Several important conclusions follow from this.

First, A's statement in the FIR directly identifies B as a person who had beaten him and threatened his life. If B is indeed the one who subsequently murders A — which is the very charge in the prosecution — then A's FIR is a statement as to the circumstances of the transaction which resulted in his death. The beating and the threat together constitute the beginning of the transaction that culminated in A's murder. The FIR is thus not a statement about an unconnected past event; it is the opening chapter of the very story that ended in A's death.

The Supreme Court in Jitender Singh v. Delhi (CRL.A. 1403/2014, decided 27 May 2016) clearly held that "the same very statement which was recorded as a complaint or statement under Section 161 CrPC can be considered as a dying declaration if ultimately the victim does not survive as a result of injury sustained by him/her." That principle applies here: the FIR is a complaint, and A did not survive.

Second, the condition that death ensued from the same transaction — and not from some independent intervening cause — is critical. In Moti Singh v. State of Uttar Pradesh (AIR 1964 SC 900), the Supreme Court held that where the person did not die from the injuries in the incident but from an intervening cause, the statement was not a dying declaration. However, in the present case, B is charged with A's murder — meaning the prosecution's case is precisely that A's death was the culmination of the same violent transaction commenced by B's beatings and threats. If that case is established, the FIR squarely narrates the circumstances of that transaction.

Third, and importantly, A's statement in the FIR is a written complaint expressing apprehension of death. It has been consistently held that "a complaint in writing made by a person who dies sometime thereafter, expressing apprehension of death at the hands of a person, is admissible in evidence under this clause, when the person whose conduct is the source of the apprehension is charged with the offence of murder of the person making the complaint." In a Bombay High Court case — Allijan Munshi v. State (AIR 1960 Bom 290) — a woman filed a written complaint against her husband with the Commissioner of Police stating she was afraid of being killed by him. She was subsequently killed. The Court held the statement to be relevant under Section 32(1) as it showed apprehension of death on account of the husband's conduct. A's FIR fits perfectly within this mould.

The Limiting Condition: The Proximity Test

There is one important caveat that the Court must carefully evaluate. In Pakala Narayana Swami, the Privy Council also cautioned that "general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of death are not admissible." What this means is that the statement must not merely be a vague expression of generalised fear — it must bear a proximate, intelligible connection to the specific transaction that ended in death.

Here, the connection is not vague or general. A specifically names B, identifies a beating, and reports a specific threat to kill. Two days later, A is murdered and B is arrested and prosecuted for that very murder. The gap of two days does not destroy the nexus. The Supreme Court in Sharad Bidhrichand Sarda made clear that the test of proximity cannot be reduced to a rigid formula — it depends on the facts and circumstances of each case, and where the statement is directly linked to the chain of events leading to death, the time gap is not determinative.

Also Relevant Under Section 32(2): Entry in the Ordinary Course of Business

There is an additional avenue of admissibility that must not be overlooked. The FIR is an entry made by the police in their official register in the ordinary course of their professional duty — it falls within Section 32(2) / Section 26(b) as an entry made in the ordinary course of business. The FIR registered at the police station is precisely the kind of routine official record that this clause contemplates. This ground of admissibility exists independently of Section 32(1) and may be pressed into service even if, for some reason, the Section 32(1) argument were to fail.

The Conclusion

A's FIR can and should be admitted as a dying declaration under Section 32(1) of the Indian Evidence Act, 1872 / Section 26(a) of the Bharatiya Sakshya Adhiniyam, 2023, subject to the Court's satisfaction that the death of A resulted from the same transaction commenced by B's actions.

The statement in the FIR goes directly to the circumstances of the transaction that resulted in A's death — it identifies the assailant, describes the beating, and records a specific death threat. A died at the hands of the person he named in the FIR, two days after the FIR was lodged. The absence of any expectation of imminent death at the time of the FIR is entirely immaterial under Indian law. The Privy Council's warning against "general expressions of fear" does not apply here because A's complaint is specific and targeted — it names B, describes an act of violence already committed, and records an explicit threat of death.

In admitting such a statement, the Court would of course bear in mind the safeguards identified by the Supreme Court: that the declaration must be true, voluntary, and free from tutoring or prompted imagination, and that it must inspire the confidence of the Court. Corroboration, while not legally necessary, would strengthen the probative value of the FIR considerably — and in this case, the corroboration lies in the very fact of A's subsequent murder at the hands of B.