If a witness has died before his examination in the court during the trial, then that means his evidence is not available for the purposes of the trial. So, generally speaking, it is a case of no evidence as far as that particular witness is concerned. However, in certain special circumstances, as laid down in the Evidence Act, his statement before his death may be admissible in the court, for example, under Section 32 of the Evidence Act, the statement of a relevant fact by a person who is dead may be relevant (for example, dying declaration of that person in the circumstances mentioned in Section 32 of the Evidence Act may be admissible as evidence).
Barring these very special circumstances, as mentioned in the Evidence Act, the previous statements of a person who has died are not admissible in the court as evidence. Therefore, generally speaking, if a person has died before he could be examined in the court as a witness in the trial, his evidence does not exist in the eyes of law and naturally, the prosecution case will suffer to that extent if he was a crucial witness in the trial on behalf of the prosecution.
At this juncture, let me point out that the statement of a witness recorded by the police during the investigation under Sections 161/162 of the Cr.P.C. cannot be used for any purpose other than for the purpose of contradicting him during his examination in the court. Therefore, statement of a witness recorded by the police during investigation is of no use during the trial in the court if that person has already died before being examined in the court.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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