The most consequential single provision of Chapter II is one that admits words the court can never test in the ordinary way. The speakers are dead, missing, incapable of testimony, or beyond the practical reach of the trial. Yet what they said about the cause of their death, or in the ordinary course of their business, or against their own interest, may be the only reliable record of the truth. Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) admits eight defined categories of such out-of-court statements as relevant facts — the most powerful of which, clause (a), houses the doctrine of the dying declaration.
26. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. 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;
Clauses (b) to (h) then cover statements made in the ordinary course of business (clause b), statements against the maker's pecuniary or proprietary interest or exposing them to criminal prosecution (c), statements of opinion on public rights or general interests made before controversy arose (d), statements about relationships by blood/marriage/adoption where the maker had special knowledge (e), similar statements about deceased persons in wills, family pedigrees, or on tombstones/family portraits (f), statements in deeds/wills relating to transactions in Section 11(a) (g), and statements by numbers of persons expressing feelings or impressions relevant to the matter (h). Together with the fourteen illustrations, they set out one of the widest and most doctrinally important admissibility rules in the Act.
The BSA's edits: modernised language, cleaner structure
Section 26 corresponds to Section 32 of the Indian Evidence Act, 1872 (IEA). The BPRD BSA-to-IEA correspondence table records that the word "namely" was added to the opening sentence and the subsection headings were dropped, tidying the presentation. Two illustration edits also update the language of the section without altering meaning: in illustration (a), the older word "ravished" is replaced by "raped", and in illustration (j) the word "banya" is replaced by "business". The substantive rule, and every clause of admissibility, remain unchanged from Section 32 IEA.
| Change | Section 32, IEA | Section 26, BSA |
|---|---|---|
| Opening list marker | Colon only | "namely" added |
| Subsection headings | Present ("When it relates to cause of death", etc.) | Dropped |
| Illustration language | "ravished"; "banya" | "raped"; "business" |
Clause (a): the dying declaration doctrine
Clause (a) is the most invoked provision in the section and one of the most important in Indian criminal law. It admits statements made by a person about the cause of their death, or about any of the circumstances of the transaction that resulted in it, where the cause of that person's death comes into question. The declarant need not have been under expectation of death at the time — a crucial expansion over the common-law rule — and the type of proceeding (criminal or civil) is immaterial.
The Privy Council in Pakala Narayana Swami v. Emperor, AIR 1939 PC 47, gave the definitive early gloss. The phrase "circumstances of the transaction which resulted in his death" is wider than the immediate act of killing; it includes statements about the events that led up to and were closely connected with the transaction, provided they help explain the cause of death. In that case, the deceased's statement to his wife that he was going to meet the accused to collect money was admitted as a "circumstance of the transaction" of the murder that followed.
Clauses (b) to (h): the wider net
Why the section is so wide, and how the court disciplines it
Section 26 admits what would ordinarily be hearsay because the alternative — losing the evidence altogether — would defeat justice in many kinds of case. But the section is not a licence for uncontrolled reception. The threshold of unavailability must be genuinely established (dead, cannot be found, incapable, or unavailable without unreasonable delay/expense). And each clause has its own conditions: for clause (a), the statement must relate to the cause of death or the circumstances of the transaction that resulted in it; for clauses (d), (e) and (f), the statement must predate the controversy; for clauses (b) and (c), the statement's context must match the clause. Courts routinely reject material tendered under Section 26 where the clause's conditions are not fully met.
Key Takeaways
- Eight clauses of admissibility: statements from unavailable persons across dying declarations, business records, statements against interest, public-right opinions, relationship statements, family-history material, transactional statements, and group perceptions.
- Dying declarations: clause (a) covers both cause-of-death and "circumstances of the transaction" statements; no expectation-of-death requirement.
- Can form sole basis of conviction: per Laxman v. State of Maharashtra (2002) 6 SCC 710, no medical certificate is mandatory; the declarant's fitness may be established otherwise.
- Wider than immediate act: per Pakala Narayana Swami v. Emperor AIR 1939 PC 47, "circumstances of the transaction" includes events leading up to and closely connected with the death.
- Small edits from Section 32 IEA: "namely" added, subsection headings dropped, "ravished"→"raped", "banya"→"business" — substance unchanged.
Conclusion
Section 26 is the most consequential Chapter II admissibility provision. It rescues from evidentiary oblivion the statements of persons who cannot testify, admitting them across eight carefully calibrated categories that range from dying declarations to family-pedigree entries to remarks of a crowd. The Privy Council's guidance in Pakala Narayana Swami on the width of "circumstances of the transaction", and the Supreme Court's Constitution Bench guidance in Laxman on the fitness question, continue to shape how the section is applied every day in criminal and civil courts. The BSA has left the substantive doctrine untouched — only modernising the language of two illustrations and tidying the presentation of the eight clauses.