Statements by Persons Who Cannot Be Called as Witnesses**

Statements by persons who are dead or cannot be found (Section 30 BSA)

Section 30 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which likely corresponds to Section 32 of the Indian Evidence Act, 1872, deals with the relevancy of statements made by persons who are dead or cannot be produced in court for various reasons.

When the statement is made relating to the cause of his death (Dying Declaration)

• Relevancy: A statement 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, is relevant under this section if the person was, at the time of making the statement, under the impression that his death was imminent, and that he therefore gave up all hope of life.

• Conditions for Admissibility:

  • The statement must be made by the deceased.

  • It must relate to the cause of death or the circumstances directly leading to the death.

  • The person making the statement must have believed that death was imminent and had no hope of survival.

  • The statement must be voluntary and not obtained by tutoring, prompting, or coercion.

• Evidentiary Value: Dying declarations are considered reliable evidence, but courts examine them with caution, ensuring their reliability and voluntariness.

When the statement relates to the cause of death

This reiterates the point above, emphasizing that statements concerning the cause of death are particularly relevant when made by a person who has since died.

• Section 30(1) BSA: A statement 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, is relevant if the person was, at the time of making the statement, under the impression that his death was imminent and that he therefore gave up all hope of life.

Statements made in course of business (Section 31 BSA)

Section 31 of the BSA (likely corresponding to Section 32(2) of the Indian Evidence Act) deals with the relevancy of statements made in the ordinary course of business.

• Relevancy: A statement made by a person in the ordinary course of business, that is, in performing a duty or in acting in a way that is regular, routine, or professionally expected, is relevant.

• Conditions:

  • The statement must be made in the ordinary course of business.

  • It must relate to a fact relevant to the matter in question.

  • The person making the statement must be dead or unable to be called as a witness.

• Examples: Entries in account books, shopkeepers' delivery books, bills of lading, records of a company, or entries made by a clerk in the ordinary course of his duties.

• Purpose: These statements are considered reliable because they are made in the usual course of business, without any special motive to falsify. They are often made contemporaneously with the event.

Statements as to custom (Section 32 BSA)

Section 32 of the BSA (likely corresponding to Section 32(4) of the Indian Evidence Act) makes statements relevant when they relate to public rights or customs.

• Relevancy: A statement made by a person relating to the existence of any right or custom, as to the existence of which he was likely to have been aware, and such statement is made before any dispute as to the right or custom arose, is relevant.

• Conditions:

  • The statement must be about a public right or custom.

  • The person making the statement must have been likely to know about the existence of the right or custom.

  • The statement must have been made before any dispute arose concerning that right or custom.

  • The person must be dead or unable to be called as a witness.

• Examples: Ancient documents declaring customary rights, oral statements made by elders in a community about a local custom regarding land use.

• Purpose: This allows for the establishment of long-standing customs or public rights through statements made by those who had knowledge of them, especially when direct evidence is unavailable.

Statements relating to relationship in family and onANEOUS occasions (Section 33 BSA)

Section 33 of the BSA (likely corresponding to Section 32(5) of the Indian Evidence Act) makes statements relating to family relationships relevant.

• Relevancy: Statements relating to the existence of any relationship as between members of a family who are in substance members of one of any joint family, such as by blood, marriage, adoption or as members of a joint family, are relevant.

• Conditions:

  • The statement must relate to the existence of a family relationship.

  • The person making the statement must be dead or unable to be called as a witness.

  • The statement must have been made before the question in dispute was raised.

• Examples: Statements in family pedigrees, statements made in wills or deeds relating to family matters, oral statements by family members about kinship.

• Purpose: This is important in cases involving inheritance, legitimacy, or other matters where family relationships are in issue.

Statements relating to existence of any relationship by way of family, kinship, marriage, etc. (Section 34 BSA)

This section appears to be a reiteration or clarification of Section 33 BSA, emphasizing the relevancy of statements concerning family relationships.

• Relevancy: Statements relating to the existence of any relationship by way of family, kinship, marriage, adoption or as members of a joint family, by persons who are dead or cannot be called as witnesses, are relevant.

• Examples: Statements found in family bibles, inscriptions on family portraits, or oral accounts by deceased family members regarding lineage, marriages, or adoption.

• Purpose: To prove familial connections when direct evidence is unavailable.

Statements relating to common intention

Statements relating to common intention are generally relevant under Section 6 of the BSA (which deals with Res Gestae and conspiracy), rather than under the sections dealing with statements by persons who cannot be called as witnesses.

• Section 6 BSA: Evidence of things done in furtherance of a common intention is relevant. If these acts or statements are made by a person who is dead or cannot be found, they would be relevant under Section 6 if they are part of the res gestae.

• Distinction: These are not statements made by a deceased person about their own death or business, but rather statements made by any person (whether alive or dead) in furtherance of a common intention that are relevant to prove the existence of such intention.