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Other statements by persons who cannot be called, former evidence, and statements in special circumstances (sections 26(b) to (h), 27 to 33)

Bharatiya Sakshya Adhiniyam · Unit II · Topic 8 of 26 · 6 min read

The remaining hearsay exceptions in section 26, evidence given in an earlier proceeding (section 27), and the statements in special circumstances: account books, public records, maps, Gazettes, law reports and how much of a statement is proved.

On this page
  1. 1. The opening condition of section 26
  2. 2. Clauses (b) to (h)
  3. 3. Section 27: evidence in a former proceeding
  4. 4. Sections 28 to 32: statements in special circumstances
  5. 5. Section 33: how much of a statement is to be proved
  6. 6. Problem
  7. How this is examined
Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The common thread. Each of these provisions admits a statement made out of court because the maker cannot be called, or because the occasion on which it was made gives a guarantee of reliability (a duty, a business routine, an interest against which he spoke). Section 26 is old s.32, section 27 is old s.33, and sections 28 to 33 are old ss.34 to 39.

1. The opening condition of section 26

The maker must be dead, or cannot be found, or has become incapable of giving evidence, or his attendance cannot be procured without delay or expense the Court considers unreasonable. Clause (a) (cause of death) is dealt with in the note on dying declarations; the other clauses apply to all four conditions.

2. Clauses (b) to (h)

Clause (d) to (f) statements must be made ante litem motam, before the dispute arose. Once a controversy begins, statements are likely to be partisan.

3. Section 27: evidence in a former proceeding

Evidence given by a witness in a judicial proceeding, or before a person authorised by law to take it, is relevant in a subsequent judicial proceeding, or a later stage of the same, to prove the truth of what it states, when the witness is dead, cannot be found, is incapable of giving evidence, is kept out of the way by the adverse party, or cannot be brought without unreasonable delay or expense. Three provisos:

A criminal trial is treated as a proceeding between the prosecutor and the accused (Explanation). The section is about testimony tested by cross-examination, so a statement under section 180 BNSS to the police, which was never open to cross-examination, does not qualify.

4. Sections 28 to 32: statements in special circumstances

5. Section 33: how much of a statement is to be proved

When a statement forms part of a longer statement, conversation, document, electronic record, book or series of letters, evidence is to be given of so much and no more as the Court considers necessary to a full understanding of the nature and effect of the statement and the circumstances in which it was made (old s.39). It prevents a party from picking out a convenient sentence and hiding its context, and it works with the rule in Palvinder Kaur that a confession must be read as a whole.

6. Problem

In a suit for the price of goods, the plaintiff produces his day-book and ledger showing a balance of Rs. 2 lakh against the defendant. The clerk who made the entries has since died. No delivery receipts or other proof is offered. Is the claim proved?

Issue. Whether account books alone can charge the defendant with liability. Law. Section 28 makes regularly kept account books relevant but says they are not alone sufficient to charge any person with liability; section 26(b) makes the deceased clerk's entries relevant as made in the ordinary course of business. Application. The books are admissible on both grounds, and their regular keeping can be proved by the plaintiff or another employee. But the defendant denies the debt, and nothing independent shows the goods were delivered or accepted. Conclusion. The entries are relevant but do not by themselves prove the claim; the plaintiff needs corroborating evidence such as delivery challans, correspondence or an acknowledgment.

How this is examined

The syllabus lists sections 26(b) to (h) and 28 to 33, and they appear as short notes: "Statements against interest", "Evidence given in a former proceeding", "Entries in books of account". In the essay on statements of persons who cannot be called as witnesses, open with the four conditions of section 26, give one illustration per clause, and contrast clause (a) briefly with the others.

Now try the real questions: Bharatiya Sakshya Adhiniyam past question papers.