Section 26, BSA — Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

Statements, written or verbal, of relevant facts made by a person —

who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable,

are themselves relevant facts in the cases specified in clauses (a) to (h).

Dead

That the maker has died

Death certificate; post-mortem report; the evidence of relatives or of those who saw the body

Cannot be found

That the maker cannot be traced after a genuine and diligent search

Evidence of the enquiries made, the places searched and the persons asked. A perfunctory effort will not do

Has become incapable of giving evidence

Physical or mental incapacity — unconsciousness, severe illness, loss of speech or memory, unsoundness of mind

Medical evidence, ordinarily supported by the opinion of a physician under Section 39

Attendance cannot be procured without unreasonable delay or expense

That producing the maker would involve delay or expense which, in the circumstances of the case, the court regards as unreasonable

Evidence of the maker's location and situation. The court weighs the importance of the evidence against the burden of producing him

⚠ Unavailability must be proved, not assumed

The party tendering the statement bears the burden of establishing the condition of unavailability. This is the point at which a great many Section 26 applications fail. A bare assertion that the witness 'could not be found' is not proof of a diligent search, and an assertion that he is 'unwell' is not proof of incapacity to give evidence. The court must be satisfied on evidence, and the satisfaction is a condition precedent to the statement being received at all.

Unavailability established, and the statement falls within a clause

Relevant. The statement may be proved

Unavailability established, but the statement falls within no clause

Not relevant. Necessity alone does not admit a statement

The statement falls within a clause, but the maker is available

Not relevant under Section 26. He must be called as a witness

Neither established

The statement is hearsay and excluded by Section 55

(a)

Statements as to the cause of death, or as to any of the circumstances of the transaction which resulted in the maker's death, in cases in which the cause of the maker's death comes into question — the dying declaration clause

32(1)

The solemnity of the occasion, and the improbability that a person in expectation of death will lie

(b)

Statements made in the ordinary course of business — an entry or memorandum made in books kept in the ordinary course of business, an acknowledgment of receipt, or a document used in commerce

32(2)

Routine. Such records are made without reference to any dispute and without motive to misstate

(c)

Statements against the pecuniary or proprietary interest of the maker, or which would have exposed him to a criminal prosecution or a suit for damages

32(3)

A person does not ordinarily make a statement damaging to his own interest unless it is true

(d)

Statements giving the maker's opinion as to a public right or custom, or as to matters of general or public interest, made before any controversy as to such right, custom or matter had arisen

32(4)

The absence of any dispute at the time removes the motive to misstate, and the maker had means of knowledge

(e)

Statements relating to the existence of a relationship by blood, marriage or adoption, made by a person having special means of knowledge, and before the question in dispute arose

32(5)

Special means of knowledge, and the absence of any controversy at the time

(f)

Statements relating to the existence of a relationship, made in a will or deed relating to family affairs, or in a family pedigree, or on a tombstone or family portrait, made before the question in dispute arose

32(6)

The solemnity of the instrument, and the same absence of controversy

(g)

Statements contained in a deed or other document relating to a transaction by which a right or custom was created, claimed, modified, recognised, asserted or denied, within Section 11

32(7)

The formality of the instrument, and its connection with the transaction it records

(h)

Statements made by several persons expressing feelings or impressions relevant to the matter in question

32(8)

Multiplicity. A shared impression expressed independently by many is unlikely to be a fabrication

Expectation of death

The declarant must have been under a settled hopeless expectation of death

Not required. The clause applies whatever may have been the expectation of death, and whatever the nature of the proceeding

Type of proceeding

Confined to trials for homicide

Applies in any proceeding in which the cause of the maker's death comes into question, civil or criminal

Scope of the statement

Confined to the cause of death

Extends to any of the circumstances of the transaction which resulted in his death, a materially wider expression

Whether the maker must have died of the injury

Yes

The clause requires that the cause of the maker's death come into question. It is immaterial that death occurred from another cause, provided the statement relates to the transaction resulting in death

📖 Pakala Narayana Swami v. Emperor, AIR 1939 PC 47

Held: The expression 'circumstances of the transaction which resulted in his death' is wider than the cause of death. The statement need not be made after the injury, and need not be a statement about the cause of death at all; it is enough that it relates to circumstances of the transaction which resulted in the death. A statement by the deceased, made before he set out, that he was going to the place where he was later killed and to meet the person who invited him, was held admissible.

Ratio: The foundational construction of the clause. The statement may precede the injury, and the 'circumstances of the transaction' extend beyond the moment of the fatal act.

📖 Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116

Held: Clause (1) of Section 32 of the Indian Evidence Act is a departure from the English rule, and is materially wider. The expression 'circumstances of the transaction' is not confined to the actual occurrence, but the circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death. A general expression indicating fear or suspicion, whether of a particular individual or otherwise, and not directly related to the occasion of the death, will not be admissible.

Ratio: The clause is wide but not unlimited. Proximate relation to the occurrence is the controlling requirement.

In the ordinary course of business

The entry must be part of a regular and habitual practice, not made specially for the occasion. This links closely with Section 14 on the existence of a course of business

Contemporaneous

Made at or about the time of the transaction it records. An entry made long afterwards loses the guarantee routine supplies

By the maker himself

The person who made the entry must be the person who is dead or unavailable

Distinguished from Section 28

Section 28 deals with entries in books of account regularly kept, and applies whether or not the maker is available; clause (b) applies where the maker is unavailable and is not confined to books of account

Against interest when made

The statement must have been damaging to the maker at the time he made it, not merely inconvenient later

An acknowledgment of a debt; an admission that land belonged to another

Pecuniary or proprietary

It must affect money or property, or expose him to prosecution or a suit for damages

An admission of having received a payment already claimed to be outstanding

Knowledge of the maker

He must have known that the statement was against his interest, since the guarantee rests on the improbability of a person harming himself untruthfully

An entry by a deceased agent acknowledging receipt of money he was accountable for

Distinguished from an admission

An admission under Sections 15 to 21 binds a party; clause (c) admits a statement by a third person who is dead or unavailable

The statement of a deceased predecessor in interest may operate under either provision, depending on the relationship

(d) — public right or custom

The statement must have been made before any controversy as to the right, custom or matter arose, by a person likely to have been aware of its existence

Litigation over rights of way, fisheries, ferries, bathing ghats, rights of worship and processions. Works closely with Section 11 and Section 42

(e) — relationship

The maker must have had special means of knowledge of the relationship, and the statement must precede the question in dispute

Succession, legitimacy, marriage and adoption disputes

(f) — relationship stated in a family instrument

The statement must appear in a will, a deed relating to family affairs, a pedigree, a tombstone or a family portrait, and must precede the dispute

The same class of disputes, where the evidence is documentary rather than oral

(g) — transaction creating or denying a right or custom

The document must relate to a transaction within Section 11

Title and easement litigation, where ancient deeds are the principal material

(h) — expressions of feeling

The statements must have been made by several persons and must express feelings or impressions relevant to the matter

Questions of reputation, public sentiment, and the character of a locality or an institution

⚠ The 'before any controversy arose' requirement

Clauses (d), (e) and (f) all contain a temporal condition. The statement must have been made before the dispute arose, and the reason is the same in each case: once a controversy exists, everyone connected with it acquires a motive to say what suits their side. A statement made after that point loses the very disinterestedness on which the clause depends. In practice this is the condition on which most pedigree and custom evidence is challenged.

Subject

Statements by persons who cannot be called as witnesses

Evidence given by a witness in a judicial proceeding, or before a person authorised by law to take it

Nature of the statement

Ordinarily made out of court, without oath or cross-examination

Given on oath, with the adverse party having had the right and opportunity to cross-examine

Condition of unavailability

Dead, not found, incapable of giving evidence, or not procurable without unreasonable delay or expense

Substantially the same conditions, together with the requirement that the proceeding be between the same parties or their representatives and the questions in issue substantially the same

The guarantee

Varies with the clause — solemnity, routine, against-interest, absence of controversy

The oath and the opportunity to cross-examine, which is the closest substitute for live testimony that the law recognises

Weight

Received with the caution appropriate to untested material

Stands close to live testimony, since the essential safeguards were present when it was given

1

Is the material a statement, written or verbal, of a relevant fact?

Section 26 has no application

2

Is the maker dead, untraceable, incapable of giving evidence, or not procurable without unreasonable delay or expense?

He must be called as a witness. The statement is hearsay

3

Has that condition been proved, and not merely asserted?

The statement cannot be received

4

Does the statement fall within one of clauses (a) to (h)?

Necessity alone does not admit it; the statement remains hearsay

5

Are the specific conditions of that clause satisfied — proximate relation, ordinary course of business, against interest, before any controversy arose?

The clause does not operate

6

Has the mode of proof been satisfied — oral evidence of the person who heard it, or the document proved under Sections 56 to 60, or the electronic record under Sections 57, 61 and 63?

It cannot be received in the form tendered

7

What weight does it carry?

Assessed with the caution appropriate to material never tested by cross-examination

Hearsay Evidence — Rule and Exceptions

The rule to which Section 26 is the largest exception

Dying Declaration — Section 26

Clause (a) in detail, with its essentials, forms and evidentiary value

Doctrine of Res Gestae — Section 4

The exception resting on spontaneity, which frequently overlaps with clause (a)

Existence of Right or Custom — Section 11

Referred to in clause (g), and the setting in which clause (d) operates

Section 27, BSA

Evidence given in a former judicial proceeding

Sections 28 to 32, BSA

Entries in books of account and public records, and statements in maps and notifications

Section 42, BSA

Opinion as to the existence of a general custom or right

Section 55, BSA

The requirement that oral evidence be direct, and the two provisos