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Indian Evidence Act, 1872 · Chapter II: Of the Relevancy of Facts · Statements by persons who cannot be called as witnesses

Section 32: Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

The Indian Evidence Act, 1872 was repealed and replaced by the Bharatiya Sakshya Adhiniyam, 2023 from 1 July 2024. It still applies to matters and proceedings from before that date, as the repealing law provides.

Now in the BSA section 26 (Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant)

In plain words

Written or oral statements of relevant facts by a person who is dead, cannot be found, cannot give evidence, or cannot be brought without unreasonable delay or expense, are relevant in certain cases.

  • Statements about the cause of their death or the circumstances leading to it, where that cause is in question, whether or not they expected to die then. These are known as dying declarations.
  • Statements made in the ordinary course of business or professional duty, such as account entries, receipts, commercial documents or dates on letters.
  • Statements against the maker's financial or property interest, or that would expose them to prosecution or a damages suit.
  • Opinions on public rights, customs or matters of general interest, made before any dispute arose.
  • Statements about family relationships by persons with special knowledge, or in wills, deeds, pedigrees or tombstones, made before the dispute arose.
  • Statements in documents about transactions under clause (a) of section 13, and statements by many persons expressing feelings relevant to the matter.

Example: Whether A was murdered by B: statements A made about the cause of his death are relevant.

A simplified explanation, prepared with AI assistance from the official text below and checked automatically against it for numbers and cross-references. The official text is the law and prevails over this summary. Not legal advice.

Read the in-depth explanation, with key Supreme Court rulings ↓

Official text

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:––

(1) When it relates to cause of death;––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.

(2) or is made in course of business;––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.

(3) or against interest of maker;––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. 1. Ins. by Act 3 of 1891, s. 4 (w.e.f. 13-2-1891). 2. Cf. the Indian Penal Code (45 of 1860), Explanation 4 to s. 108.

(4) or gives opinion as to public right or custom, or matters of general interest;––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.

(5) or relates to existence of relationship;––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.

(6) or is made in will or deed relating to family affairs;––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.

(7) or in document relating to transaction mentioned in section 13, clause (a);––When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).

(8) or is made by several persons and expresses feelings relevant to matter in question;––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 ravished. The question is whether she was ravished 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 Calcutta 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 Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Bombay 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 London, to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact. 1. Ins. by Act 18 of 1872, s. 2 (w.e.f. 29-8-1872).

(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 banya 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.

Corresponding sections were matched by comparing the wording of both official texts, and for the IPC and BNS, also against a published correspondence table. Wording, punishments and structure often changed, so read both sections before relying on the match.

Source: India Code (Legislative Department), the text of the Act as it stood before its repeal. Words in square brackets [ ] were inserted or substituted by later amending Acts, and *** marks words omitted by an amendment. The amendment footnotes are not reproduced here.

Understanding this section

Section 32 makes statements of people who cannot be called as witnesses, because they are dead, cannot be found or are incapable, relevant in certain cases. The most important is clause (1), the dying declaration: a statement by a person about the cause of his death, or the circumstances of the transaction that resulted in it.

An exception to hearsay

Normally a statement by someone who is not a witness is hearsay and inadmissible. Section 32 admits it out of necessity, because the person cannot be cross examined. Clause (1) is the best known of eight situations.

No need to expect death

Unlike English law, Indian law does not require that the person believed death was near. A statement is admissible whether or not the person was under expectation of death, and in any proceeding where the cause of his death is in question.

Circumstances of the transaction

Clause (1) covers not only the immediate cause of death but the circumstances of the transaction that resulted in death. These must have a proximate relation to the death; remote events are not included.

Can a conviction rest on it alone

Yes, if the court is satisfied that the dying declaration is true, voluntary, and made in a fit state of mind. Corroboration is not a rule of law. But courts scrutinise it carefully, because the maker cannot be cross examined: they check consistency, whether the person could identify the assailant, whether there was tutoring, and the condition of the declarant.

Fitness of mind

A doctor's certificate of fitness is desirable but not essential. If witnesses, such as the Magistrate who recorded it, establish that the declarant was conscious and fit, the declaration can be acted on.

Key Supreme Court rulings

  • Laxman v. State of Maharashtra 2002 INSC 352

    A Constitution Bench held that absence of a doctor's certificate of fitness does not make a dying declaration unacceptable where witnesses prove the declarant was fit and conscious; a dying declaration may be oral or written and may be acted on if voluntary and truthful.

  • Kans Raj v. State of Punjab 2000 INSC 251

    A statement about circumstances resulting in death is admissible as an exception to hearsay, but the circumstances must have some proximate relation to the actual occurrence.

Common mistakes

  • Requiring expectation of death, as in English law.
  • Rejecting a dying declaration only because there is no doctor's certificate.
  • Admitting statements about events too remote from the death.

Read with: Section 60 Evidence Act, Section 162 CrPC, Section 26 BSA

Prepared with AI assistance as a study aid. Every ruling listed was checked against the Supreme Court's own judgments on this site, and quoted words appear in those judgments; linked names open the full judgment. Read the judgments themselves before relying on them. Not legal advice.

Supreme Court judgments citing the section 32