INTRODUCTION
The concept of a dying declaration is a well-established and unique exception to the general rule against hearsay evidence in Indian law. Traditionally, a dying declaration refers to a statement made by a person about the cause or circumstances of their impending death, when that person subsequently dies and cannot be called as a witness in court. The rationale for its admissibility stems from the ancient legal maxim “nemo moriturus praesumitur mentiri” — a person on the verge of death is presumed not to lie.
However, in today’s digital age, the forms in which declarations may be made have expanded beyond the traditional written or oral statements recorded by magistrates or police officers. With the widespread use of digital platforms such as video and audio recording devices or instant messaging applications like WhatsApp, new challenges and opportunities have emerged concerning the admissibility and evidentiary weight of such electronically recorded dying declarations.
This article explores how Indian law treats dying declarations in audio, video, and WhatsApp formats. considering both foundational legal principles and modern developments in admissibility of electronic evidence.
TRADITIONAL LEGAL FRAMEWORK FOR DYING DECLARATIONS
Under Indian law, dying declarations were historically governed by Section 32(1) of the Indian Evidence Act, 1872, which permitted statements made by a dying person about the cause or circumstances of their death to be admitted as evidence. Even though the Evidence Act has now been replaced by the Bharatiya Sakshya Adhiniyam (BSA), 2023, the essential principle remains: such declarations occupy a special position because the declarant cannot be cross-examined due to their subsequent death.
For admissibility, courts require:
- The declarant has died and the statement relates to the cause or circumstances of death.
- The maker was conscious and mentally capable of making the statement.
- The statement was voluntary and not influenced by tutoring or other pressures.
Once these conditions are met, no corroboration is mandatory for conviction if the declaration is reliable and inspires confidence
DIGITAL AGE CHALLENGES: AUDIO AND VIDEO RECORDINGS
In the modern era, victims may record statements in non-traditional formats — such as videos captured on smartphones, audios saved on digital devices, or even live broadcasts on social media platforms. The legal question arises: Can such recordings qualify as dying declarations or admissible evidence?
In principle, dying declarations are admissible irrespective of form, provided they meet the traditional conditions of Section 32(1) (or the corresponding provision in BSA). This means that electronic recordings — whether video or audio — can be presented in court if the statement clearly relates to the circumstances of the declarant’s death and is trustworthy.
Legal scholars and case law have recognized that dying declarations can exist beyond simple written or oral formats. For example, legal commentaries note that dying declarations may be made in formats including video or audio recordings, provided there is appropriate attestation and clarity.
However, admissibility in court does not automatically follow merely because a statement is recorded digitally. Electronic evidence is governed by separate rules concerning its authentication and integrity. For example, the Indian judiciary has clarified that video recordings are admissible evidence without needing a transcript, but may require compliance with electronic evidence law (previously under Section 65B of the Evidence Act and now its equivalent under BSA) to be properly admitted
This means that for a video or audio dying declaration:
- The authenticity of the recording must be established.
- It must be shown that the recording has not been tampered with.
- If the recording is a secondary copy (e.g., file from a phone), legal certification may be required under electronic evidence statutes.
Practical Example: Even a live-streamed video or an Instagram live session in which a victim names their attacker could, in principle, be used as a dying declaration — provided the court is satisfied that the content was voluntarily and clearly expressed by the declarant, relates directly to the cause of death, and its authenticity is demonstrated.
WHATSAPP MESSAGES AND TEXTUAL ELECTRONIC RECORDS
With millions of users relying on WhatsApp for communication, it is increasingly common for victims to send messages detailing the circumstances of an attack or impending death. The question thus arises whether WhatsApp chats can be treated as dying declarations or admissible evidence.
WhatsApp messages constitute electronic records under Indian law. To use them as evidence (whether for dying declaration or other purposes), they must normally satisfy the legal framework governing electronic evidence — previously codified under Sections 65A and 65B of the Indian Evidence Act and now under corresponding provisions in the Bharatiya Sakshya Adhiniyam
Key points about WhatsApp evidence:
- Printouts or screenshots of WhatsApp chats can be used as secondary evidence in court if they are accompanied by a certificate confirming their authenticity, usually under relevant electronic evidence provisions.
- A certification may be required to demonstrate that the electronic data is genuine and unaltered.
- If the original device containing the WhatsApp message is produced before the court as primary evidence, certification may not be required.
If WhatsApp messages are intended as dying declarations — where the victim expressly describes the attack or identifies their assailant — the same substantive legal conditions (truthfulness, voluntariness, and relevance to death) apply. Authentication under electronic evidence rules becomes crucial to ensure the court can rely on such electronic records.
JUDICIAL CONSIDERATIONS AND BEST PRACTICES
India’s judiciary has emphasised careful evaluation when admitting dying declarations of any form. A recent Supreme Court ruling clarified that the timing of a dying declaration relative to death should not be the sole basis for rejection — even if there is a lag between making the statement and the person’s death.
For digital recordings and WhatsApp messages, courts will typically examine:
- Whether the declarant was competent and mentally capable at the time of recording.
- Whether the content clearly refers to the cause or circumstances of death.
- Whether the technical authenticity of the digital evidence has been established according to law.
Recording dying declarations in audio or video — especially with proper certifying witnesses — can enhance their credibility and reduce disputes about their truthfulness or reliability. Experts have suggested that video recordings may help preserve the declarant’s exact words and expressions, reducing misinterpretation in court.
CONCLUSION
The digital age has transformed how statements may be recorded, stored, and presented in court. While the core legal principles governing dying declarations remain rooted in long-standing evidentiary exceptions, Indian law has evolved to accommodate electronic forms of evidence that include video, audio, and WhatsApp messages. Digital recordings can be powerful tools in preserving a dying declaration, provided they are authenticated and their contents clearly relate to the declarant’s death. As technology continues
Contributed BY : Akash Singh