Relevancy of Statements made by Persons who cannot be called as Witnesses(Sec 26 & 27 BSA)

Welcome to Lexplain.in, your premier destination for demystifying the complexities of Indian law! Today, we’re diving deep into one of the most intriguing and practically significant areas of evidence law: the relevancy of statements made by persons who cannot be called as witnesses. For law students, practitioners, and anyone keen to understand the nuances of the justice system, grasping this concept is not just an academic exercise, but a fundamental prerequisite for navigating real-world legal scenarios.

The legal landscape in India has recently undergone a monumental transformation with the enactment of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). This landmark legislation has replaced the venerable Indian Evidence Act, 1872, bringing with it a fresh perspective and refined provisions on how evidence is presented, admitted, and scrutinized in our courts. Among these pivotal changes, the provisions concerning hearsay evidence and its exceptions stand out as particularly crucial. Generally, the law casts a wary eye on hearsay – second-hand information where the original maker of a statement is not present to be cross-examined. The rationale is sound: how can one test the truthfulness of a statement if its originator is not available for questioning?

However, the pursuit of justice cannot always operate in an ideal vacuum. Life often presents unavoidable circumstances where a crucial witness might be deceased, untraceable, or simply incapacitated. To address these very real challenges, the Bharatiya Sakshya Adhiniyam, 2023, thoughtfully carves out indispensable exceptions, ensuring that vital information isn’t lost simply because a witness cannot physically appear in court. This is precisely where the relevancy of statements made by persons who cannot be called as witnesses becomes paramount, forming a cornerstone of fair and effective judicial proceedings.

In this comprehensive blog post, we will meticulously unpack the intricacies of Sections 26 and 27 of the BSA 2023. These two sections are the bedrock upon which the admissibility of such extraordinary evidence rests. We’ll explore the specific conditions under which these statements transition from mere hearsay to legally relevant and admissible evidence, shedding light on the underlying principles of necessity and reliability that justify their inclusion. Whether it’s the solemn weight of a dying declaration or the strategic application of previous evidence in subsequent proceedings, understanding these provisions is absolutely essential for your law exams and your future legal career. Join us as we demystify when and how the law grants relevancy to statements made by persons who cannot be called as witnesses under the transformative Bharatiya Sakshya Adhiniyam, 2023.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) has replaced the Indian Evidence Act, 1872, bringing in significant reforms, including provisions regarding the relevancy of statements made by persons who cannot be called as witnesses. This is a crucial aspect of evidence law, particularly for students preparing for exams, as it deals with exceptions to the general rule against hearsay evidence. Understanding Sections 26 and 27 of the BSA is key to mastering this topic.

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Introduction : Relevancy of Statements made by Persons who cannot be called as Witnesses

Bharatiya Sakshya Adhiniyam, 2023 (BSA): the relevancy of statements made by persons who cannot be called as witnesses. This is a vital topic for law students preparing for exams, as it forms a significant exception to the hearsay rule under the new Indian Evidence Law. Understanding the specific circumstances under which the relevancy of statements made by persons who cannot be called as witnesses is established is key to mastering Sections 26 and 27 of the Bharatiya Sakshya Adhiniyam, 2023. We will explore in detail when the law permits the admission of such statements, providing clarity on the conditions for their relevancy and their implications in judicial proceedings. Specifically, we will focus on the relevancy of statements made by persons who cannot be called as witnesses as outlined in these pivotal sections of the BSA 2023.”

In the realm of law, the pursuit of truth is paramount. However, sometimes, the ideal scenario where every witness can be physically present and subjected to examination and cross-examination isn’t possible. This is where the Bharatiya Sakshya Adhiniyam, 2023 (BSA) steps in, specifically through Sections 26 and 27, to ensure that justice isn’t hampered by the unavailability of a witness. These sections outline the crucial circumstances under which statements made by persons who cannot be called as witnesses become relevant and admissible as evidence.

The General Rule: Hearsay and Its Exceptions

Before diving into the specifics, it’s vital to grasp the concept of hearsay evidence. Generally, hearsay (second-hand information, where the witness did not directly perceive the fact) is inadmissible in court. The rationale is simple: it lacks the directness, reliability, and the opportunity for cross-examination that is essential for testing the veracity of a statement.

However, the law recognizes that rigid adherence to this rule could lead to injustice in certain situations. Thus, various exceptions to the hearsay rule exist, and Sections 26 and 27 of the BSA are prime examples of such exceptions, rooted in principles of necessity and reliability.

Section 26, Bharatiya Sakshya Adhiniyam, 2023: When Unavailability Opens Doors

Section 26 of the BSA (corresponding to Section 32 of the old Indian Evidence Act) is the cornerstone for admitting statements of persons who cannot be produced as witnesses. It enumerates specific categories where such statements, whether written or verbal, become relevant. This section operates on the principle that in certain dire circumstances, the statement itself carries inherent trustworthiness.

The conditions for admissibility under Section 26 are when the person who made the statement is:

1. Dead: The most common and significant instance is when the person who made the statement has passed away.
2. Cannot be Found: Despite reasonable efforts, the person cannot be traced or located.
3. Has Become Incapable of Giving Evidence: This includes physical or mental incapacity, such as being in a coma, suffering from a severe illness, or mental instability that renders them unable to testify.
4. Whose Attendance Cannot be Procured Without Unreasonable Delay or Expense: If bringing the witness to court would cause undue delay or incur disproportionate expenses, their previous statements may be admitted.

Once any of these conditions are met, the statement becomes relevant if it falls into one of the following categories:

Key Categories of Relevant Statements under Section 26:

(a) Dying Declaration (Cause or Circumstances of Death): This is arguably the most critical and frequently encountered exception. A dying declaration is a statement made by a person as to the cause of their death, or as to any of the circumstances of the transaction which resulted in their death, in cases where the cause of that person’s death comes into question.

• Rationale: The legal maxim “Nemo moriturus praesumitur mentire” (no one at the point of death is presumed to lie) forms the basis of this exception. It is believed that a person facing imminent death is unlikely to utter falsehoods.
• Key Points for Students:
  • The maker of the statement need not be under an expectation of death at the time of making the statement. This is a crucial distinction from common understanding and a vital point for exams.
  • The statement must relate to the cause of death or the circumstances that resulted in death. It doesn’t have to be a direct accusation.
  • Dying declarations are admissible in both civil and criminal proceedings, though they are most commonly seen in murder or culpable homicide cases.
  • While a dying declaration can form the sole basis of conviction, courts usually scrutinize its reliability and may look for corroboration, especially if it suffers from infirmities.

Example: A person gravely injured in an assault tells a doctor or police officer about how they were attacked and who attacked them, and subsequently succumbs to their injuries. This statement would be a relevant dying declaration.

(b) Statement Made in the Ordinary Course of Business: Statements made by a person in the ordinary course of their business, or in the discharge of professional duty, are relevant. This includes entries in books of account, acknowledgments of receipt of goods or money, or documents used in commercial transactions.

• Rationale: Such statements are considered reliable because they are made in the routine performance of duty and are unlikely to be fabricated.
• Examples: Entries in a ledger by a deceased accountant, a receipt issued by a deceased shopkeeper, or a letter from a deceased agent regarding a business transaction.

(c) Statement Against Interest of the Maker: When a statement is against the pecuniary or proprietary interest of the person making it, or if it would expose them to a criminal prosecution or a suit for damages, it becomes relevant.

• Rationale: People generally do not make statements that are detrimental to their own interests unless they are true.
• Example: A deceased person’s admission of owing money to someone.

(d) Statement Giving Opinion as to Public Right or Custom: Statements that give an opinion of the deceased or unavailable person as to the existence of any public right, custom, or matter of public or general interest, of which they would have been likely to be aware, are relevant.

• Rationale: Such statements, coming from individuals with special knowledge or proximity to public matters, are considered reliable due to their nature.
• Example: A statement by a deceased village elder regarding a public pathway.

(e) Statement Relating to Existence of Relationship: Statements concerning the existence of any relationship by blood, marriage, or adoption between persons, where the maker had special means of knowledge and the statement was made before the question in dispute arose, are relevant.

• Rationale: These statements are often made within a family or community context, implying reliability.
• Example: A letter from a deceased father announcing the birth of his child.

(f) Statement in Will or Deed Relating to Family Affairs: Statements contained in any will, deed, or other document that relates to the affairs of a family and is made by a deceased or unavailable member of the family are relevant.

(g) Statement in Document Relating to Transaction Mentioned in Section 13(a) of BSA: Statements contained in any deed, will, or other document which relates to any such transaction as is mentioned in Section 13, clause (a) of the BSA (dealing with facts relevant when right or custom is in question).

(h) Statement by Several Persons Expressing Relevant Feelings or Impressions: When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Section 27, Bharatiya Sakshya Adhiniyam, 2023: Previous Evidence in Subsequent Proceedings

Section 27 of the BSA (corresponding to Section 33 of the old Indian Evidence Act) deals with the relevancy of certain evidence for proving, in a subsequent judicial proceeding, the truth of facts therein stated. This section primarily addresses situations where a witness has already given evidence in a previous judicial proceeding or before a person authorized by law to take it, but is now unavailable.

For such previous evidence to be relevant in a subsequent proceeding, the following conditions must be met:

1. Unavailability of Witness: The witness must be dead, cannot be found, is incapable of giving evidence, is kept out of the way by the adverse party, or their attendance cannot be procured without unreasonable delay or expense.
2. Same Parties or Representatives: The previous proceeding must have been between the same parties or their representatives in interest.
3. Right and Opportunity to Cross-Examine: The adverse party in the first proceeding must have had the right and opportunity to cross-examine the witness. This is crucial for ensuring fairness and testing the credibility of the evidence.
4. Substantially Same Issues: The questions in issue in the first proceeding must have been substantially the same as in the second proceeding.

Explanation: A criminal trial or inquiry is deemed to be a proceeding between the prosecutor and the accused for the purpose of this section.

Example: A witness testifies in a committal proceeding before a magistrate. If that witness dies before the trial in the Sessions Court begins, their previous testimony (recorded before the magistrate) may be read out as evidence in the Sessions trial, provided the accused had the opportunity to cross-examine them in the committal proceeding and the issues are substantially the same.

Why are these sections important for your exams?

• Direct Application of Law: These sections are frequently tested to assess your understanding of the exceptions to the hearsay rule and their practical application.
• Problem-Solving: You might be given hypothetical scenarios where you need to identify if a particular statement is relevant under Section 26 or 27.
• Conceptual Clarity: A strong grasp of these provisions demonstrates your understanding of the principles of evidence, such as necessity, reliability, and fairness.
• Distinction between Sections: Be clear on the distinct circumstances and types of statements covered by each section. For instance, while both deal with unavailable witnesses, Section 26 focuses on specific types of statements (like dying declarations), while Section 27 deals with previously recorded testimony in a judicial setting.

Conclusion

The Bharatiya Sakshya Adhiniyam, 2023, through Sections 26 and 27, plays a vital role in balancing the strict rules of evidence with the practicalities of judicial proceedings. By making exceptions for statements of persons who cannot be called as witnesses, the BSA ensures that valuable evidence is not lost, thereby contributing to the fair and efficient administration of justice. For students, a thorough understanding of these provisions, their nuances, and the underlying legal principles will be instrumental in excelling in their law examinations. Mastering these sections means mastering a significant chunk of the law of evidence in India.