Sajjad Husain LawSajjad Husain Law Associates

Introduction

A witness tells the court that a dying man named his attacker moments before he died. The accused was never present to hear that declaration, will never get to cross-examine the man who made it — he is dead. So how does the defence test whether the declaration was ever really made, or whether it can be trusted?

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) answers that question with Section 161, in Chapter X ("Of the Examination of Witnesses"). It is a short but powerful provision: it takes the ordinary toolkit courts use to test a live witness's credibility and extends it, by legal fiction, to statements made by people who can never take the stand at all — most famously, dying declarations. This article explains how that fiction works, what it lets litigants prove, and why it matters most in exactly the cases where the maker of a statement cannot be cross-examined.

Section 161 Explained: A Legal Fiction That Restores Cross-Examination

Sections 26 and 27 of the BSA are hearsay exceptions. Section 26 makes admissible certain statements — including dying declarations — made by a person who is dead, untraceable, incapacitated, or otherwise unavailable. Section 27 makes admissible testimony given in an earlier judicial proceeding when the witness is similarly unavailable for the current one. Both provisions let the court hear from someone who is not, and cannot be, physically present to answer questions.

That creates an obvious fairness problem: ordinary witnesses are tested through cross-examination, but a person whose statement comes in under Section 26 or 27 was never cross-examined, and often never will be. Section 161 is the fix. It provides that once such a statement is proved, any party may prove whatever matters could have been proved if the maker had actually been called as a witness and had denied the truth of the matter under cross-examination. In effect, the law treats the absent declarant as though they were sitting in the witness box and stonewalling every question — and lets the parties respond exactly as they would to a live, uncooperative witness.

The Two Categories of Matters Section 161 Opens Up

The section actually creates two distinct, if related, categories of proof:

This is a deliberate mirror of Section 158 of the BSA, which governs impeaching the credit of an ordinary witness through prior inconsistent statements, bias, bad character for truthfulness, and similar means. Section 161 does not invent a new toolkit — it borrows Section 158's toolkit wholesale and applies it to a person who was never actually examined, because the whole point of the fiction is to put the absent declarant on equal footing with a witness who was.

Worked Example: Testing a Reported Dying Declaration

Suppose a witness testifies that, moments before dying, the victim named the accused as the person who struck the fatal blow. That declaration is admissible under Section 26. The defence, unable to cross-examine the deceased directly, instead calls a second witness who was also present and testifies that the dying man actually said nothing of the kind — or named someone else entirely.

Why This Provision Matters More for Dying Declarations Than Almost Anything Else

Indian courts have long wrestled with how much weight a dying declaration can carry on its own. In the landmark case Khushal Rao v. State of Bombay (1958), the Supreme Court held that there is no absolute rule requiring a dying declaration to be corroborated before it can support a conviction — a reliable, trustworthy declaration can be sufficient by itself. But that same judgment made clear that reliability is not assumed; it has to be tested against the circumstances in which the declaration was made.

Section 161 is the statutory mechanism that makes that testing possible at all. Without it, a dying declaration reported by a single witness could stand largely unchallenged, since the one person who could confirm or deny it is gone. Section 161 gives the opposing party a genuine route to contest it — through contradicting evidence, evidence of the declarant's state of mind or capacity at the time, or evidence bearing on whether the statement was influenced or coached — mirroring exactly the kind of scrutiny a living witness's testimony would face under cross-examination.

Section 161 BSA vs. Section 158 IEA: The Rule Is Unchanged

Section 161 corresponds to Section 158 of the Indian Evidence Act, 1872 (IEA), and the substance is identical — only the internal cross-reference has shifted, from the old Sections 32 and 33 to the renumbered Sections 26 and 27.

Because the rule carries over intact, the extensive body of dying-declaration jurisprudence built under Section 158 IEA — including the Khushal Rao line of cases on reliability and corroboration — applies directly to Section 161 practice under the BSA without modification.

Who Section 161 Actually Affects

1. Prosecutors relying on a dying declaration or former testimony should anticipate that its contents and the declarant's credibility can both be challenged, and prepare corroborating evidence in advance.
2. Defence counsel gain a genuine, statutory route to contest an unavailable declarant's statement — not merely to argue about its weight in closing submissions, but to affirmatively introduce contradicting or impeaching evidence.
3. Witnesses who heard or recorded a dying declaration — often doctors, police officers, or family members — should expect their own account of what was said to be tested against other witnesses' recollections.
4. Trial judges must actively weigh both the statement and whatever contradicting or corroborating matter is proved under Section 161, rather than accepting an unchallenged hearsay statement at face value.
5. Appellate courts reviewing a conviction resting heavily on a Section 26 or 27 statement will look closely at whether the reliability testing Section 161 makes possible was actually carried out at trial.

Key Takeaways

1. Section 161 restores cross-examination by legal fiction: it treats an unavailable declarant as though they had denied the statement under cross-examination, opening the door to contradicting evidence.
2. Two categories of proof are permitted: matters going to the statement itself (contradiction/corroboration) and matters going to the declarant's credit (impeachment/confirmation).
3. It mirrors the ordinary witness-impeachment toolkit: Section 161 applies the same techniques used under Section 158 BSA for live witnesses to statements admitted under Sections 26 and 27.
4. It is central to dying-declaration litigation: under the Khushal Rao doctrine, a reliable dying declaration can support a conviction alone — but Section 161 is what makes testing that reliability possible.
5. The rule is unchanged from 1872: Section 161 BSA carries forward Section 158 IEA, with only the internal cross-references renumbered.

Conclusion

Section 161 solves a problem that would otherwise be unsolvable: how do you test a statement made by someone who can never answer a question again? By fictionally placing the absent declarant in the witness box and denying everything, the section gives both sides a genuine, structured way to contest what was said and who said it — reproducing the adversarial testing ordinary testimony receives, even when the person who spoke is beyond reach.

For litigants and counsel handling dying declarations or former testimony, the lesson is clear: a Section 26 or 27 statement is not the end of the inquiry, but the beginning of one. Section 161 is what makes it possible to actually interrogate that statement's truth, long after the person who made it is gone.