Evidential Value of statement by a person who can not be called as a witness

STATEMENT BY A PERSON WHO CANNOT BE CALLED AS A WITNESS

Author: Mr. Badal Khurana, JIMS School of Law.

“All the evidence that we have indicates that it is possible to assume in almost every human being”

INTRODUCTION

Section 32[1] and the subsequent Section 33[2]of the Indian Evidence Act, 1872 deal with the relevancy of statements given by persons who cannot be called as witnesses.

There is a particular class of people who cannot be called as witnesses under Section 32 and their statements are allowed to be proved in their absence. The list of persons is as follows:

• 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

Case in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant statement, 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, but they are themselves actually facts in the many circumstances.

Though Section 60 of the Indian Evidence Act, 1872[3] insists that oral evidence must, in all cases, whatever, be direct. In other words, hearsay evidence is no evidence. But under Section 32, hearsay evidence is admissible so it can be said that it is an exception to Section 60.

The following cases where the statements made my list of people mentioned above is:

• When it relates to 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, 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 the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. Suicide note also comes within the purview of the Dying Declaration.

Reasons behind the admissibility of a dying declaration are:

• 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 it is 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.

On behalf of these reasons, dying declarations are admissible in the court of law.

• Or is made in the 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 acknowledgment 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.
  
• Or against the interest of the 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 criminal prosecution or to a suit for damages.

• Or gives an opinion as to the 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.

• Or relates to the existence of a relationship

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.

• Or 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.

• Or in a document relating to transaction mentioned in section 13, Clause (a)

When the statement is contained in any deed, will or other documents which relate to any such transaction as is mentioned in Section 13, Clause (a).

• Or is made by several persons and express feelings relevant to a matter in question

When the statement is made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question, in such situations also the statements given by people become relevant.

RELATED CASES

• In the case of Emperor v. Mohammad Sheikh[4], it was observed that information lodged by a person who died subsequently relating to the cause of his death, is admissible in evidence under Section 32 (a) of the Indian Evidence Act, 1872.

• In the case of Ram Manorath v. State of U.P.[5], the Supreme Court observed that a dying declaration that suffers from infirmity cannot form the basis of conviction.

• In the case of Sunder Singh v. State of Uttaranchal[6], it was held that when a victim making a dying declaration survives the said dying declaration does not remain substantive evidence.
  
  

• In Bhajju v. State of Madhya Pradesh, the court held that if the dying declaration has been recorded in accordance with law, and is reliable and gives a cogent and possible explanation of the occurrence of the events, then the dying declaration can certainly be relied upon by the court and could form the sole piece of evidence resulting in the conviction of the accused. 

PERSONAL COMMENTS

For ends of justice the law always demands best evidence to be produced before the court of justice. The best evidence means evidence of the person who has made a statement or has written a document by himself. This is a best evidence of the person who has got firsthand knowledge about facts or original documents. When a witness appears before the court he is required to take oath and is subjected to cross-examination by the opposite party.

A second hand or hearsay evidence means derivative evidence.When the person or document (best evidence) cannot be available in the court, then the “other person” may be allowed by the court, who is not required to take oath or is put to cross-examination, to testify the contents of the documents prepared by the person who is not available for reasoned mentioned in Section 32. Thus, the hearsay evidence is relevant when: (i) there is necessity and (ii) the special circumstances guaranteeing genuineness and trustworthiness. Section 32 is an exception to the hearsay rule.

Author

Badal Khurana

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[1]https://indiankanoon.org/doc/1959734/

[2]https://indiankanoon.org/doc/800773/

[3]https://indiankanoon.org/doc/1681167/

[4](1942) 2 Cal 144

[5](1981) 2 SCC 654

[6](2010) 10 SCC 611