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
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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.
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)
- (b) In the ordinary course of business. Entries in books kept in the ordinary course of business or in discharge of professional duty, acknowledgments of receipt of money or goods, commercial documents, and the date on a letter usually dated. Illustrations: a deceased surgeon's diary of a delivery (proving A's birth date), a deceased solicitor's diary showing he attended A at Nagpur. The guarantee is routine: there is no reason to lie in a regular record.
- (c) Against interest. A statement against the maker's pecuniary or proprietary interest, or one which would expose him to prosecution or a suit for damages. People do not lightly say things that harm themselves. A deceased agent's letter acknowledging receipt of rent on his principal's account (illustration (e)) is an example.
- (d) Opinion on public right or custom, or matter of public or general interest, made before any controversy arose (ante litem motam), by a person likely to know. A deceased village headman's statement that a road is public.
- (e) Relationship by blood, marriage or adoption, by a person with special means of knowledge, made before the question in dispute was raised. A deceased father's letter announcing his son's birth.
- (f) Relationship stated in family records: a will or deed relating to family affairs, a family pedigree, a tombstone or family portrait, made before the dispute.
- (g) Statements in deeds or wills relating to a transaction by which a right or custom was created, claimed or recognised, as in section 11(a).
- (h) Statements by a number of persons expressing feelings or impressions relevant to the matter. The remarks of a crowd looking at a libellous caricature in a shop window (illustration (n)).
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:
- the proceeding was between the same parties or their representatives in interest;
- the adverse party in the first proceeding had the right and opportunity to cross-examine; and
- the questions in issue were substantially the same.
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
- Section 28, account books (old s.34), now including those maintained in electronic form. Entries regularly kept in the course of business are relevant, but "shall not alone be sufficient evidence to charge any person with liability". The illustration: A's account books showing B owes him a thousand rupees are relevant but do not, without more, prove the debt. Independent evidence of the transactions is needed.
- Section 29, public records (old s.35), now including electronic records. An entry in a public or official book, register or record, made by a public servant in the discharge of official duty, or by any person in performance of a duty enjoined by law, is relevant. Birth registers, school admission registers (often used on age), voters' lists and land records are typical. The entry is relevant but its weight depends on who supplied the information.
- Section 30, maps, charts and plans (old s.36) generally offered for public sale, or made under the authority of the Central or a State Government, as to matters usually represented in them. Section 82 presumes that Government maps are accurate; maps made for the purposes of a case must be proved accurate.
- Section 31, facts of a public nature (old s.37) stated in a recital in a Central or State Act or in a Government notification in the Official Gazette, including the electronic Gazette.
- Section 32, statements of foreign law (old s.38) in books printed under the authority of a foreign Government, and reports of rulings of its courts, now expressly including electronic or digital form.
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.