Law and You >Procedural Laws > Bharatiya Sakshya Adhiniyam, 2023 > Part II > Hearsay Evidence When Admissible (Ss. 26, 27 and 161 BSA)

A fact to be proved by oral evidence must be stated before the court by a person who has first-hand knowledge on the facts to be proved. When a witness appears before a court to give evidence of his first-hand knowledge, he takes an oath. Further, the opposing party has the right to cross examine him. At the same time, he must give a testimony, which may expose him to all the penalties in case of falsehood of such evidence. In this article we shall discuss “Hearsay Evidence When Admissible”

Evidentiary Value of Hearsay Evidence:

Second-hand evidence is loosely termed as hearsay evidence. Hearsay evidence is generally excluded on the following grounds:

• He does not produce such evidence on oath
• The opposing party has no opportunity to cross examine him or the original source of such information.
• He is immune from all penalties of falsehood in such evidence.

Sometimes it may be impossible to procure the attendance of a witness or result in unreasonable expense who could have given direct evidence; the witness also could give evidence either written or oral which may reasonably be presumed to be true and thereby reliance can be placed on hearsay evidence.  There is an exception to the general rule that hearsay evidence would not apply which are stated in section 26 and section 27 of the Bharatiya Sakshya Adhiniyam, 2023.

Hearsay Evidence When Admissible

Following are the classes of persons who cannot be called as witnesses under section 26 BSA and their statements are allowed to be proved in their absence.

• Persons who are dead
• Persons who cannot be found
• Persons who have become incapable of giving evidence
• Persons whose attendance cannot be procured without an amount of delay or expense.

According to the court shall be considered to be relevant in the following circumstances:

• When it relates to the cause of death; or
• When is made in the course of business; or
• When it is made against the interest of the maker; or
• When it involves giving an opinion as to a public right or custom or matters of general interest; or
• When it relates to the existence of a relationship; or
• When it made in the will or deed relating to family affairs; or
• When the document relates to a transaction mentioned in S. 13
• When it made by several persons and expresses feelings relevant to the matter in question

For such statements to be considered admissible under this section, it is important to first and foremost prove that the maker of such statements is either dead or for any other reason is not available to be a witness.

Section 26 clause a

When it relates to the cause of death

When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, known as dying declaration. Suicide note also comes within the purview of Dying Declaration.

When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

Illustration (a):

The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was raped. The question is whether she was raped by B; or the question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.

Ingredients of Dying Declaration:

• It may be oral or written or even in the form of gestures (Queen Empress v. Abdulla);
• It must be complete;
• Anticipation of death is not necessary; (Pakala Narayana Swamy v. Emperor) and
• Proximity of time between the statement and death. There has to proximate relationship between the death and circumstances of death. (Sharada v State of Maharashtra)

Reasons for the Admissibility of a Dying Declaration:

There are two reasons.

• Firstly, the necessity, the victim being the sole eye witness of the crime that has been perpetrated upon him, so excluding his evidence would violate the law of natural justice.
• Secondly, they are the declarations made by a person under expectation of death so its presumed to be true as the maxim “Nemo Moriturus Praesumntur Mentire”  which means  “ A person who is about to die, can never lie” or the truth sits in his tongue at the time of death because of the fear of almighty God whom he will meet as soon as he will die so he always wanted to reduce his sins by saying truth as per the mythologies.

Evidentiary Value of Dying Declaration:

• Dying declaration can only be taken into consideration when it is
• Recorded by a competent magistrate (with certain exception);
• The said statement must be recorded in the exact words;
• There must not be any scope of influence from the third party, and hence the declaration must be made soon after the incident that is the reason of the death; and
• There must not be any ambiguity regarding the identity of the offender or cause of death.

In Ravi Kumar v State of Tamil Nadu AIR 2006 SC 1448 it was held by the Supreme court that dying declaration is admissible upon the consideration that declarant has made it in extremity when maker is at the point of death and when every hope of this world is gone, when every motive of the falsehood is silence and mind is induced by the most powerful consideration to speak the truth.

A dying declaration which is truthful, consistent, coherent and without any infirmity don’t need corroboration. A dying declaration which was recorded by the competent magistrate in the proper manner such as question and answer, and as practicable in the words of the maker of the declaration, stands on mush higher footing than a dying declaration which depend upon oral testimony

In Mannu Raja v. State of M.P. AIR 1976 SC 2199 case, the Supreme Court observed that although a dying declaration recorded by police officer during the course of investigation is admissible u/s 32 IEA (S. 26(a) BSA) it is however better to leave such dying declaration out of consideration unless and until the prosecution satisfies the court as to why it was not recorded by magistrate or a doctor.

In Paniben v State oof Gujarat, AIR 1992 SC 1817 case, the Supreme Court laid down certain guidelines while dealing with dying declaration held that

• In case dying declaration is suspicious it should not be acted upon without corroboration.
• Dying declaration which surfers from infirmity cannot be the basis of conviction.
• Merely the dying declaration does not contain details, is short, is not be discarded
• Where there is more than one version of dying declaration, the first in point of time be preferred.
• Where the dying declaration is incomplete by the reason of death but clear and makes a clear accusation against the accused, it can be relied for conviction.

Pakala Narayan Swami v. Emperor (1939) 41 BOMLR 428 Case:

On Tuesday, March 23, 1937, at noon the body of the deceased man (Kuree Nukaraju) was found in a steel trunk in a third-class compartment at Puri, the terminus of a branch line on the Bengal Nagpur Railway, where the trunk had been left unclaimed. The body has been cut into seven portions. The body of the deceased was identified by his widow. The deceased was a man of about 40 and working as a peon in the service of dewan of Pithapur.

Pakala Narain Swami, the accused, was married to one of the daughters of deceased. After marriage Pakala Narain Swami and his wife went to live at Berhampur about 250 miles away from Pithapur. In the year of 1933, they came back to Pithapur. On account of their needs of money the accused’s wife borrowed Rs. 3000 at interest at the rate of 18% per annum. About 50 letters and notes proving these transactions signed by the accused’s wife were found in the deceased man’s house at Pithapur after his death.

On Saturday 20th March 1937, the deceased received a letter from the accused inviting him to come that day or the next day to Berhampur. The deceased’s widow told the court that on that day her husband showed her a letter and said that he was going to Berhampur as Swami’s wife had written to him inviting him to come to receive payment of his dues. The deceased left his place on 21st march to catch the train for Berhampur. He did not come back and on Tuesday 23rd March his body was found in a steel trunk in a third-class compartment of a train at Puri.

The accused was tried and convicted for murder and was sentenced to death. Appeal was made at Privy Council. The statement of the deceased to his wife was considered as a dying declaration and hence admissible under section 32(1) IEA (S. 26(a) BSA).

Section 26 clause b

Statement Made in Course of Business:

when the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.

Illustration (b):

The question is as to the date of A’s birth. An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.

Illustration (c):

The question is, whether A was in Nagpur on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business that on a given day the solicitor attended A at a place mentioned, in Nagpur, for the purpose of conferring with him upon specified business, is a relevant fact.

Illustration (d):

The question is, whether a ship sailed from Mumbai harbour on a given day. A letter written by a deceased member of a merchant’s firm by which she was chartered to their correspondents in Chennai, to whom the cargo was consigned, stating that the ship sailed on a given day from Mumbai port, is a relevant fact.

Illustration (g):

The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.

Illustration (h):

The question is, what was the cause of the wreck of a ship. A protest made by the captain, whose attendance cannot be procured, is a relevant fact.

Illustration (i):

The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

Illustration (j):

The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased business person in the ordinary course of his business, is a relevant fact.

This clause discusses about those statements which are made by a person during the course of business or whose duty it was to make such statement or whose business was such that statements of the kind were to be expected in the ordinary course of things. In order to found a case for the reception of a statement under this clause, it must be proved that the declarant is dead or that he cannot be called as a witness for any of the reasons mentioned in the section and the burden of proving this is on the person who wishes to give such statement in evidence.

In State Of Rajasthan v. Mathura Lal Tara Chand, 1971 CRILJ 1816 Case, where the injury report had been prepared by the attending Medical Officer Doctor Naveen Chand and that it bears his signature. At the time of trial Doctor Naveen Chand was dead. Compounder Moti Lai, P.W. 6. stated before the trial Court that the injury report had been prepared by Doctor Naveen Chand and that it bears his signature. This statement of the compounder proves the injury report on the record and the injury report having been proved, is admissible and relevant Under Section 32(2) IEA (Section 26(2) BNS. The Rajasthan High Court further said that when the statement was made by such person in the ordinary course of business, and in particular …. in the discharge of professional duty. The language of the above quoted section demonstrates that where the medical officer is dead or cannot be found, the aforesaid decisions have no application. The injury report given by the doctor, who is no more in this world, would be admissible and relevant under the aforesaid provisions of law.

In Ram Balak Singh v. State. Anant Singh, AIR 1964 PAT 62 case, G. M. Prasad. JJ. Of Patna High Court pointed out that Dr. Bhola Mahto, who had performed the autopsy over the dead body of Kedar at 2 P.M. on the 10th November, 1959, was. at the time of the trial, out abroad, and his post-mortem report (Ex. 3) was proved by Dr. E. N. Pathak (P.W. 6) by proving the handwriting and signature of Doctor Bhola Mahto on the post-mortem report. Since Dr. Bhola Mahto was not easily available the post- mortem report prepared by him would be admissible in evidence.

Section 26 Clause c

The Statement is against Interest of Maker:

When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.

Illustration (e):

The question is, whether rent was paid to A for certain land. A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders is a relevant fact.

Illustration (f):

The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant.

This clause makes a declaration against interest admissible in evidence. This clause is based upon knowledge of human nature.

In Soney Lall Jha v. Darbdeo Narain Singh, AIR 1935 Pat 167 case, the Patna High Court held that, two conditions must be satisfied before a statement is admissible under Section 32(3) of the Evidence Act (S. 26(c) BSA); firstly, that it must be a statement of a relevant fact and secondly, it must be a statement against the proprietary interest of the person making it.

In Sm. Savitri Devi v. Ram Ran Bijoy, AIR 1950 PC 1 case, the Privy Council held that the principle upon which hearsay evidence is admitted under Section 32(3) of the Evidence Act (S. 26 (c) BSA) is that a man is not likely to make a statement against his own interest unless true, but this section does not arise unless the party knows the statement to be against his interest.

Section 26 Clause d

Statement Gives Opinion as to Public Right or Custom, or Matters of General Interest:

when the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

Illustration (i):

The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

In proof of public or general right and customs or matters of public or general interest statements made by deceased persons of competent knowledge as to the existence of such rights, etc. and as to the general reputation thereof in the neighbourhood, if made ante litem motam (meaning “before the lawsuit started” or “before the controversy began”) are admissible.

The conditions of admissibility of a statement under this clause are:

• Statement must be in the form of an expression of opinion of a person who cannot be called as a witness for any of the reasons mentioned in the section;
• Opinion must relate to the existence or non- existence of a public right or custom;
• Opinion must be of persons who would have been likely to be aware of existence of such right etc.; and
• Such opinion must have been expressed before any controversy as to the existence of that right etc. arose.

Section 26 Clause e

Statement Relates to Existence of Relationship (Pedigree):

When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

Illustration (k):

The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact.

Illustration (l):

The question is, what was the date of the birth of A. A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

Illustration (m):

The question is, whether, and when, A and B were married. An entry in a memorandum book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.

The declaration under (5) may relate to existence of relationship between persons who are alive or dead, and from persons having special knowledge and written or verbal declarations. The declaration must have been made ‘ante litem motam’ (meaning “before the lawsuit started” or “before the controversy began”).

Section 26 Clause f

Statement is Made in Will or Deed Relating to Family Affairs:

when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

Illustration (l):

The question is, what was the date of the birth of A. A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

Illustration (m):

The question is, whether, and when, A and B were married. An entry in a memorandum book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.

Not that, Section 26(f) applies to relationship of deceased, and statement in written form only.

Section 26 Clause g

Statement in Document Relating to Transaction Mentioned in Section 11, Clause (a):

When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 11, clause (a).

A statement in any relevant document, however recent and though not more than 30 years old, is admissible. Statements of facts contained in a will of a deceased person tending to show that the properties are his self acquisitions are admissible. This clause is to be read with section 11 (a) of BSA.

Section 26 Clause h

Statement is Made by Several Persons, and Expresses Feelings Relevant to Matter in Question:

When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Illustration (n):

A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved.

When a number of persons assemble together to give vent to one common statement which expresses their feelings produced in their mind at the time of making of statement may be given in evidence.

Section 27 BSA:

Relevancy of Certain Evidence for Proving, in Subsequent Proceeding, Truth of Facts Therein Stated:

Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:

Provided that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine and the questions in issue were substantially the same in the first as in the second proceeding.

Explanation:

A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

The section makes the previous deposition admissible only when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by adverse party, or if his presence cannot be obtained without an unreasonable amount of delay or expense.

The section further says that the cases in which evidence given by a witness: (i) in a judicial proceeding, or (ii) before any person who is authorized by law to take evidence, such evidence is relevant in a subsequent proceeding or at the later stage of the same proceeding. The admissibility of such statement and the subject matter do not depend on their intrinsic character but on circumstances on which they are made.

The first part of proviso to Section 27 provides “that the proceeding was between the same parties or their representative-in-interest. According to second part of the Proviso, the evidence shall not be admitted unless it was tested by cross-examination by the opposite party at the previous proceeding. The rule is that the adverse party must have right to cross-examine the witness. Section 27 applies in civil suit as well as in criminal cases. It would be applicable inter alia in a case where either the witness who has been examined-in-chief is incapable of giving evidence, or is absent, or his presence cannot be detained without any amount of delay or expense which the court considers unreasonable. Sometimes it may happen that a witness did appear before the court and his depositions were duly recorded in judicial proceeding where the opposite party exercised rights and opportunities to cross-examine him. However, when he died and could not be found at the later stage of the same proceeding or in any subsequent proceeding between the parties and on the same issues involved therein; the deposition given by the witness in the previous proceeding is relevant under section 27.

Section 161 BSA:

What Matters may be Proved in Connection with Proved Statement Relevant under Section 26 or 27:

Whenever any statement, relevant under section 26 or 27, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.

The statement admissible under Section 26 and 27 BSA are exceptional cases and the evidence is only acknowledged from the impossibility, improbable ness or great inconvenience of producing the authors of the statement. It is just therefore, that all the same safeguards for truth should be provided as if the authors of the statements themselves before the Court and subjected to oath and cross-examination. So with consider to the impeachment of witnesses, the general rule applies where the witness whose testimony is attacked is dead or absent. This Section places a person whose statement has been used as proof under Section 26 in the same category as a witness actually produced in Court for the purpose of contradicting his statement by a former statement made by him.

Thus, this Section relates to ‘credit of persons who are not witnesses’. The object of this Section is to expose statements by such persons to every possible means of contradiction or corroboration in the same manner as that of a witness before Court under cross-examination. No sanctity attaches to the statement of a person because he is dead or is not available.

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