Section 32 Indian Evidence Act: Statements of Unavailable Persons and Dying Declarations

Section 32 of the Indian Evidence Act, 1872 dealt with statements of relevant facts made by persons who are dead, missing, incapable of giving evidence or unavailable without unreasonable delay or expense. Its current counterpart is Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The rule includes dying declarations and seven other categories of statements.

Meaning and scope of Section 32

The general rule prefers testimony from witnesses who can be examined and cross-examined. Section 32 creates defined exceptions when the maker of a relevant statement is unavailable. It is not a blanket rule admitting every statement made by a deceased person.

When is the maker considered unavailable?

• The person has died.
• The person cannot be found.
• The person has become incapable of giving evidence.
• Securing attendance would involve delay or expense that the court considers unreasonable in the circumstances.

Eight categories of relevant statements: IEA Section 32 and BSA Section 26

1. Cause of death - Section 32(1) / BSA 26(a)

A statement by the person whose death is in question, concerning the cause of death or circumstances of the transaction resulting in death, is relevant. This is commonly called a dying declaration. The maker need not have expected death when speaking. The provision can apply regardless of the nature of proceedings where the cause of death is in question.

2. Ordinary course of business - Section 32(2) / BSA 26(b)

Entries, memoranda or documents made in the usual course of business or professional duty may be relevant, including acknowledgements of money, goods or property, commercial documents and ordinarily dated correspondence.

3. Statements against the maker's interest - Section 32(3) / BSA 26(c)

A statement against the maker's financial or property interest, or one which, if true, would expose the maker to criminal prosecution or a damages suit, may be relevant.

4. Public rights or customs - Section 32(4) / BSA 26(d)

An informed opinion about a public right, custom or matter of general interest may be relevant when expressed before a controversy arose.

5. Family relationship - Section 32(5) / BSA 26(e)

A statement concerning a relationship by blood, marriage or adoption may be relevant if the maker had special means of knowledge and spoke before the dispute arose.

6. Family records and memorials - Section 32(6) / BSA 26(f)

Statements concerning relationships among deceased persons, recorded in wills, family deeds, pedigrees, tombstones, portraits or customary family records before a dispute, may be relevant.

7. Deeds or wills recording relevant transactions - Section 32(7) / BSA 26(g)

A statement in a deed, will or other document relating to a transaction of the kind addressed in Section 13(a) of the former Evidence Act is covered. The corresponding reference in the BSA is Section 11(a).

8. Collective feelings or impressions - Section 32(8) / BSA 26(h)

Statements made by a number of persons expressing feelings or impressions relevant to a matter in issue may be considered under the specified conditions.

Statutory illustrations explained

The former Section 32 provided fourteen illustrations, (a) to (n), demonstrating the breadth of the eight categories. Their substance is retained below.

1. (a) Death-related statements: Statements by A concerning the circumstances of A's killing, a sexual assault resulting in death, or a wrongful act leading to death, may be relevant when the cause of death is in issue.
2. (b) Birth recorded by a surgeon: A deceased surgeon's regular diary entry recording the delivery of a child may help establish the birth date.
3. (c) Solicitor's business diary: A deceased solicitor's regular record of meeting A in Calcutta (now Kolkata) may help show A's presence there.
4. (d) Ship's departure: A deceased merchant's commercial letter reporting a ship's sailing from Bombay (now Mumbai) may be relevant to the departure date.
5. (e) Rent receipt: A deceased agent's letter acknowledging receipt of rent for A may be relevant to payment.
6. (f) Marriage and exposure to prosecution: A deceased clergyman's statement about having solemnised a marriage in circumstances exposing him to criminal liability may be relevant.
7. (g) Dated letter: A dated letter written by a person who cannot be found may be relevant to when the letter was written.
8. (h) Shipwreck report: A captain's protest or report may be relevant to the cause of a wreck when the captain cannot reasonably be produced.
9. (i) Public road: A deceased village headman's statement that a road was public may be relevant.
10. (j) Grain prices: A deceased trader's ordinary business record of grain prices may be relevant to the market price on a particular day.
11. (k) Parentage: A deceased person's statement that B was his son may be relevant to parentage.
12. (l) Birth announcement: A deceased father's letter announcing his child's birth may be relevant to the birth date.
13. (m) Marriage date: A deceased parent's memorandum recording a daughter's marriage may be relevant to the date and fact of marriage.
14. (n) Crowd reactions: Spectators' remarks about a caricature displayed publicly may be relevant in a defamation case concerning its resemblance and defamatory character.

Dying declaration: important safeguards

A dying declaration is not automatically true merely because it is admissible. Courts examine whether the maker was capable of understanding and communicating, whether the statement was voluntary, its consistency, the circumstances of recording and whether it inspires confidence. A reliable dying declaration can support a conviction without a universal requirement of corroboration, but doubtful statements require careful scrutiny.

Practical distinction: relevance and weight

Relevance means the law permits a court to consider the statement under the specified conditions. Probative weight is how persuasive that statement is after assessing its authenticity, circumstances, consistency and other evidence. A statement may be relevant but carry little weight.

Official statutory references

• India Code: Bharatiya Sakshya Adhiniyam, 2023 (official PDF) - Sections 26 and 170.
• India Code: BSA official Act page.
• Ministry of Home Affairs: New Criminal Laws.

Frequently asked questions

What replaces Section 32 of the Indian Evidence Act?

Section 26 of the Bharatiya Sakshya Adhiniyam, 2023, effective from 1 July 2024, contains the corresponding eight categories.

Is every statement of a deceased person admissible?

No. The statement must satisfy the applicable statutory conditions and fall within one of the defined categories.

Must a dying declaration be recorded by a Magistrate?

Not invariably. Its admissibility and reliability depend on the governing law and facts; recording by a Magistrate may provide important safeguards.

Does a dying declaration require an expectation of death?

No. Under the Indian statutory rule, the maker need not have believed death was imminent.

This article provides general legal information. The applicable statutory framework and evidentiary findings depend on the proceeding and its commencement date.