Section 26 Bharatiya Sakshya Adhiniyam, 2023: Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

Section 26 of Bharatiya Sakshya Adhiniyam, 2023: Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases, namely:—

(a) When the statement is 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, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;

(b) When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him;

(c) When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;

(d) When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen;

(e) When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;

(f) When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised;

(g) When the statement is contained in any deed, will or other document which relates to any such transaction as is specified in clause (a) of section 11;

(h) When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Illustrations

(a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was raped. The question is whether she was raped by B; or the question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.

(b) The question is as to the date of A's birth. An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day he attended A's mother and delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Nagpur on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a given day the solicitor attended A at a place mentioned, in Nagpur, for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Mumbai harbour on a given day. A letter written by a deceased member of a merchant's firm by which she was chartered to their correspondents in Chennai, to whom the cargo was consigned, stating that the ship sailed on a given day from Mumbai port, is a relevant fact.

(e) The question is, whether rent was paid to A for certain land. A letter from A's deceased agent to A, saying that he had received the rent on A's account and held it at A's orders is a relevant fact.

(f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.

(h) The question is, what was the cause of the wreck of a ship. A protest made by the captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(j) The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased business person in the ordinary course of his business, is a relevant fact.

(k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact.

(l) The question is, what was the date of the birth of A. A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is, whether, and when, A and B were married. An entry in a memorandum book by C, the deceased father of B, of his daughter's marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a) Document Sec 2(1)(b) Evidence Sec 2(1)(c) Fact Sec 2(1)(d)

Legal Commentary & Landmark Judgments: Section 26

Section 26 governs statements by persons who cannot be called as witnesses, codifying the law of Dying Declarations under clause (a).

Core Legal Standard: Section 26 (formerly Section 32 IEA) makes relevant statements, written or verbal, made by a person who is dead, who cannot be found, or whose attendance cannot be procured without unreasonable delay or expense.
Operational Mechanism: Clause (a) governs the Dying Declaration: statements made by a person as to the cause of their death, or as to any of the circumstances of the transaction which resulted in their death, in cases in which the cause of that person's death comes into question.

Other clauses cover statements made in ordinary course of business (clause b), statements against pecuniary/proprietary interest (clause c), statements expressing public rights or customs (clause d), pedigree statements regarding family relations (clauses e and f), and statements in deeds/wills (clause g).

Key Landmark Precedents:

Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116: Laid down the comprehensive principles governing circumstantial evidence and dying declarations, ruling that statements regarding circumstances of the transaction must have proximate nexus with death.
Atbir v. Govt. of NCT of Delhi (2010) 9 SCC 1: Held that a dying declaration can form the sole basis of conviction without corroboration if the court is satisfied that it is true, voluntary, and the declarant was in a fit state of mind.
Purshottam Chopra v. State (Govt. of NCT of Delhi) (2020) 2 SCC 693: Held that non-recording by a Magistrate or absence of doctor's endorsement does not automatically render a dying declaration inadmissible if the witness testimony proves mental fitness.

Legal Commentary:

Section 26(a) is founded on the Latin maxim *Nemo moriturus praesumitur mentire*—a man will not meet his Maker with a lie in his mouth. A dying declaration is substantive evidence of the highest order, capable of sustaining a capital sentence without eyewitness corroboration if proven voluntary and credible.