Previous Testimony of an Unavailable Witness under the Bharatiya Sakshya Adhiniyam, 2023: When It May Be Read, and When It May Not

Witnesses die, disappear, fall ill and are bought off. In a system where trials run for years, the question of what becomes of the evidence a witness has already given is not occasional but routine. The Adhiniyam answers it with a single provision, Section 27, which permits earlier testimony to be read as evidence of the truth of what it states. Everything else that a party may want to do with an absent witness's words — corroborate, contradict, or simply place them before the court — is either governed by different provisions or is not permitted at all.

1. The Problem

A witness who has been examined and cross-examined has given the court everything the adversarial process is designed to extract. If he then becomes unavailable, the material is not lost, and Section 27 permits it to be read at a later stage or in a later proceeding. That is the straightforward case.

The difficulty arises with everything short of that. A witness whose statement was recorded during investigation but who never gave evidence has left nothing that can be read as evidence of anything. A witness examined in chief who dies before cross-examination has left something, but something incomplete. A witness who deposed in a different proceeding, or between different parties, or on different issues, has left evidence which is complete but which does not satisfy the conditions the section imposes. Each of these situations is common, and the answers differ.

2. What Counts as Previous Testimony

The distinction that governs the whole subject is between evidence and a statement. Only the first is within Section 27.

Evidence is what a witness gives on oath, in a judicial proceeding or before a person authorised by law to take it. A deposition at a committal inquiry, at an earlier stage of the trial, in an earlier suit, or before a commissioner appointed to record evidence is all evidence. It was given under the safeguards the law regards as the test of truth, and it may be read later for what it says.

A statement is everything else. A statement recorded by a police officer during investigation is not evidence, however carefully taken. Nor is a statement recorded by a Magistrate under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which is a statement made in the course of investigation, not testimony given at a trial. Neither can be read under Section 27, and neither becomes evidence of its contents because the maker has since died.

3. The Route Under Section 27

The five grounds of unavailability, the three conditions in the proviso, and the operation of the Explanation are examined in the separate treatment of Section 27. What matters for present purposes is the shape of the requirement: the earlier evidence must have been given in circumstances where the party against whom it is now tendered could have tested it, and the questions must have been substantially the ones now in issue.

4. The Recurring Situations

4.1 The witness dies between the committal inquiry and the trial

This is the commonest case and the one the Explanation was framed for. The deposition at the inquiry was given on oath, in the presence of the accused, who was entitled to cross-examine. The Explanation deems the inquiry and the trial to be proceedings between the prosecutor and the accused, so the same-parties condition is satisfied, and the deposition may be read.

4.2 A de novo trial or a retrial

Where a trial must begin afresh — on transfer to another court, where a de novo trial is directed on the succession of a presiding officer, or where a retrial is ordered on appeal — every witness must in principle be recalled. The words 'or in a later stage of the same judicial proceeding' in Section 27 permit the earlier evidence of a witness who has since died or become untraceable to be read at the fresh trial, subject to the same conditions.

4.3 A witness kept away by the adverse party

The fourth ground of unavailability exists because a deposition already recorded is a standing temptation to the party it damages. Where it is shown that the adverse party has concealed the witness, induced him to stay away or intimidated him, the deposition may be read against that party although the witness could otherwise have been produced. The protection operates only against the party responsible; a witness kept away by somebody else does not fall within the ground.

4.4 A second suit between the same parties

In civil litigation, where an earlier suit was withdrawn or dismissed on a technical ground and a fresh suit is brought on the same subject matter, the evidence recorded in the earlier suit is receivable in the later one if the parties, the opportunity to cross-examine and the issues all correspond.

4.5 The witness dies part-way through

Where a witness has been examined in chief and dies before cross-examination is completed, the position is uncomfortable. The adverse party had the right and, in a sense, an opportunity, but not a full one. Such evidence is not automatically excluded, but it is weighed with considerable caution, and how far the cross-examination had progressed is material. Where the witness died before cross-examination began at all, the deposition is of very little value and would not ordinarily be safe to act upon.

5. Where Section 27 Does Not Apply

The section fails more often than it succeeds, and it is worth being clear about the situations in which the earlier material simply cannot be read.

6. What a Previous Statement Can and Cannot Do

Where Section 27 is unavailable, parties frequently attempt to achieve something like the same result by other routes. It is useful to be clear about what those routes actually permit.

Section 160 allows a former statement of a witness, made at or about the time of the fact or before an authority competent to investigate it, to be proved in order to corroborate his testimony. It presupposes that he has given testimony. It does not make the former statement evidence of its contents, and it cannot be used where the witness has never been examined.

Section 148 allows a witness to be contradicted by his previous statement in writing, after his attention has been drawn to the relevant parts. This too presupposes that he is in the witness box, and it too leaves the former statement as material going only to his credit.

Section 158 permits the credit of a witness to be impeached, including by proof of former statements inconsistent with any part of his evidence. Again, the witness must have given evidence.

The common feature is that none of these makes a previous statement substantive evidence, and none of them operates at all where the witness has never testified. Section 27 is the only provision under which the words of an absent witness become evidence of the facts they state.

7. Proving the Earlier Evidence

A deposition is a document and must be proved as one, though in practice this is straightforward. Evidence recorded by a court forms part of that court's record, and a certified copy is ordinarily produced. Section 78 permits the court to presume the genuineness of a certified copy, and Section 79 permits it to presume the genuineness of a document produced as a record of evidence.

Two matters must be established in addition, and they are sometimes overlooked. The first is the identity of the witness — that the person who deposed is the person now said to be unavailable. The second is the identity of the proceeding — that the earlier proceeding is the one in which the conditions of the section are satisfied, which requires the record of that proceeding to be sufficiently before the court for the parties and the issues to be identified.

Where the earlier evidence was recorded by audio-video electronic means, the recording is an electronic record within Section 2(1)(d), and Sections 57, 61 and 63 govern its proof. The provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 permitting trials, inquiries and proceedings to be conducted in electronic mode make this an increasingly ordinary situation, and a party relying on such a record must attend to the certificate requirements in the Schedule to Section 63(4) where the record tendered is not primary evidence within the Explanations to Section 57.

8. The Weight of Previous Testimony

Evidence read under Section 27 is not hearsay in the sense that Section 26 material is hearsay. It was given on oath and was open to cross-examination, and it is approached without the reserve that attaches to an untested statement.

What is lost is that the trial court does not see the witness. Where the issue is the content of the evidence — what the witness saw, when, and where — that loss matters little, and the deposition serves nearly as well as live testimony. Where the issue is credibility — whether the witness is truthful at all — the loss is real, because demeanour is part of how credibility is assessed and the second court has none of it.

Three further matters bear on weight. Whether the cross-examination in the earlier proceeding was thorough, since a deposition tested searchingly is worth more than one where the adverse party asked nothing. Whether the issues in the earlier proceeding, though substantially the same, gave the cross-examiner the same incentive to probe the particular point now in dispute. And whether the deposition is consistent with the other material now before the court.

9. The Position Stated Shortly

1. Only evidence may be read under Section 27, and evidence means testimony given on oath in a judicial proceeding or before a person authorised by law to take it.
2. A statement recorded during investigation is not evidence, whether recorded by a police officer or by a Magistrate, and does not become evidence because the maker has died.
3. Five grounds of unavailability are recognised, including the ground peculiar to this section — that the witness is kept out of the way by the adverse party.
4. Three conditions must be satisfied — the same parties or their representatives, a right and opportunity to cross-examine, and substantially the same questions in issue.
5. The Explanation makes the section workable in criminal cases, and the words 'later stage of the same judicial proceeding' cover a de novo trial or a retrial.
6. Sections 148, 158 and 160 are not substitutes. They operate only where the witness has actually testified, and they never make a previous statement evidence of its contents.
7. Unavailability must be proved, and a bare assertion that a witness is untraceable is not proof.
8. The deposition must be proved as a document, ordinarily by a certified copy, with the identity of the witness and of the proceeding established.

10. Related Topics and Provisions