Dying Declaration Under the BSA (Section 26): Evidence Act 32 Mapping (2026)
What a dying declaration is, why it can be relied on even without an oath or cross-examination, what Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 says, and how it maps to Section 32 of the old Evidence Act. Last verified October 2026.
Explainer · BSA · Evidence Law
A dying declaration is a statement by a person about the cause of their death, which the court can rely on even though the maker is not alive to be cross-examined. It is now governed by Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced Section 32(1) of the Indian Evidence Act, 1872 from 1 July 2024. It is a rule of evidence, not an offence, so it carries no punishment. Last verified October 2026.
- What it is: a dying declaration under Section 26 of the BSA, 2023, a statement about the cause of one’s death.
- Old law: it replaced Section 32(1) of the Indian Evidence Act, 1872.
- Key feature: the maker need not have expected death for the statement to be relevant.
- No punishment: this is an evidence rule, not an offence, so it carries no punishment.
- Search and track: Claw finds Section 26 judgments and tracks live cases across 9,102 forums.
01What a dying declaration is
A dying declaration is what a person says about how they came to be dying. The maxim behind it is that a person who is near death is not presumed to lie, so the law lets the statement be used even though the maker can never enter the witness box.
Under Section 26 of the BSA, a statement made by a person about the cause of their death, or about any of the circumstances that led to their death, is relevant when the cause of that person’s death comes into question. It can be made in any form, for example to a doctor, a Magistrate, a police officer or a family member.
This is an exception to the normal rule that evidence must be given on oath and tested by cross-examination. Because the maker is gone, the courts apply care before relying on the statement, but a true and voluntary dying declaration can be the sole basis of a conviction.
02When a dying declaration is relevant
A few points decide whether a dying declaration can be used.
- It is about the death. The statement must concern the cause of death, or the circumstances of the transaction that led to the death.
- The cause of death is in question. The provision applies where the court has to decide how the person died.
- Expectation of death is not needed. The maker does not have to believe that death is near for the statement to be relevant. This is an important feature of Indian law.
- Fitness to speak. The courts look for signs that the maker was in a fit state of mind to make the statement.
A dying declaration is trusted because the law assumes a person close to death has no reason to lie. But the court still checks that it was voluntary, truthful and made by a person fit to speak.
Beyond death cases, the wider provision also makes relevant the statements of a person who cannot be found, or who is unable to give evidence, in certain situations. The dying declaration is the best known part of that wider rule.
03Section 26 and old Section 32: the mapping
Section 26 of the BSA corresponds to Section 32 of the Indian Evidence Act, 1872. The dying declaration was clause (1) of the old Section 32.
| Old law (Indian Evidence Act, 1872) | New law (BSA, 2023) | Subject |
|---|---|---|
| Section 32(1) | Section 26(a) | Statement as to cause of death (dying declaration) |
| Section 32 (other clauses) | Section 26 (other clauses) | Statements by persons who are dead or cannot be found |
If you are searching for "section 32 evidence act in bsa", the answer is Section 26. The substance of the dying declaration is carried forward. The change is in the numbering and the layout, not in the core rule.
04Is there a punishment? Is it cognizable or bailable?
Section 26 does not create an offence, so it has no punishment. The words cognizable, bailable, and triable by do not apply to it. It is a rule about which statements the court may treat as relevant.
The offence being tried, for example murder or dowry death, is charged under its own section in the Bharatiya Nyaya Sanhita, 2023. Section 26 only decides whether the statement of the deceased can be used to prove how the death happened.
05What changed from the old law
For anyone trained on the old section, the move to Section 26 is mostly a renumbering.
- Same rule, new number. The dying declaration continues as before, now under Section 26.
- No expectation of death. Indian law keeps the position that the maker need not have expected death, which is wider than the old common law rule.
- Settled case law still guides it. Because the substance is carried forward, the judgments that shaped the dying declaration continue to apply.
For the bigger picture, see our overview of the new criminal laws of 2024 and the key changes from the Evidence Act to the BSA. For a related topic, see when a confession to police cannot be used.
06Where Claw fits
Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.
Dying declaration points under Section 26 come up constantly in murder, dowry death and burns cases, and the courts keep refining when a declaration can be the sole basis of a conviction. This is where Claw helps. You can search 30 crore+ judgments across the Supreme Court and 25 High Courts to see how courts have treated Section 26 and the old Section 32, and you can track live cases and orders across 9,102 courts, benches and forums, all by section, party or advocate name, with results in under 5 seconds.
Create a FREE Claw account to search and track cases under this section by party or advocate name. There is a free plan for individual advocates, with paid plans for teams. To go deeper, see the guide to case search across Indian courts.
07Sources and further reading
- India Code (official text of the Bharatiya Sakshya Adhiniyam, 2023): indiacode.nic.in
- Ministry of Home Affairs (the new criminal laws): mha.gov.in
- Supreme Court of India (judgments): sci.gov.in
- Claw: clawlaw.in
This explainer is general information, not legal advice. The new criminal laws are still being interpreted by the courts, so check the current text of the BSA and take advice from counsel before you rely on a provision.
08Frequently asked questions
What is a dying declaration under the BSA?
It is a statement by a person about the cause of their death, or the circumstances that led to it, which the court can treat as relevant under Section 26 of the Bharatiya Sakshya Adhiniyam, 2023. It can be used even though the maker cannot be cross-examined.
Which section of the Evidence Act is Section 26 of the BSA?
Section 26 of the BSA corresponds to Section 32 of the Indian Evidence Act, 1872. The dying declaration was clause (1) of the old Section 32 and is now in Section 26.
Does the person have to expect death?
No. Under Indian law the maker does not have to believe that death is near for the statement to be relevant. This is wider than the old common law rule, and it is carried forward in Section 26 of the BSA.
Can a conviction rest only on a dying declaration?
Yes, it can, if the declaration is found to be true, voluntary and made by a person in a fit state of mind. Courts apply care, but a reliable dying declaration can be the sole basis of a conviction.
What is the punishment under Section 26 of the BSA?
There is none. Section 26 is a rule of evidence, not an offence, so it carries no punishment and the terms cognizable or bailable do not apply to it. The offence itself is charged under its own section in the Bharatiya Nyaya Sanhita, 2023.
How can I find judgments on dying declarations?
Claw lets you search 30 crore+ judgments across the Supreme Court and 25 High Courts by section, party or advocate, and track live cases across 9,102 forums, with results in under 5 seconds. You can create a free account to search and track cases under this section.