Statements by Persons Who Cannot Be Called as Witnesses

Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) — re-enacting Section 32 of the Indian Evidence Act, 1872 (IEA) with one modernising tweak — admits as relevant statements, written or verbal, of relevant facts made by a person who is dead, who cannot be found, who has become incapable of giving evidence, or whose attendance cannot be procured without an unreasonable amount of delay or expense. The provision is the principal Indian statutory exception to the rule against hearsay, and it carries the eight cardinal categories under which such posthumous and unavailable-witness statements come into evidence.

The provision is therefore the doctrinal home of dying declarations, statements as to family relationships, statements made in the course of business, statements against pecuniary or proprietary interest, statements relating to the existence of public rights and customs, and the other categories listed in its eight clauses. The chapter is among the most heavily exam-tested in the Evidence syllabus, and the student who masters its eight categories has mastered the operational core of the hearsay exception.

Concept — admissibility of out-of-court statements by absent declarants

The general rule of evidence is that hearsay — an out-of-court statement offered for the truth of its content — is excluded, because the absent declarant cannot be cross-examined. The chapter on oral evidence and the direct-evidence rule develops the exclusion. Section 26 BSA is the principal statutory carve-out from the exclusion. It admits the statement of an unavailable declarant on the ground of necessity: where the declarant is dead, missing or otherwise unable to depose, the alternative to admitting his out-of-court statement is to lose the evidence altogether.

The Supreme Court in Bhajju @ Karan Singh v. State of Madhya Pradesh, (2012) 4 SCC 327, treated necessity as the underlying rationale of Section 32 IEA / Section 26 BSA. The provision admits an out-of-court statement where direct testimony is impossible, balancing the policy of necessity against the absence of cross-examination by limiting the kinds of statement that may be received and the conditions on which they enter the record.

Statutory anchor — Section 26 BSA / Section 32 IEA

Section 26 BSA opens with the gateway requirement: the declarant must be (i) dead, or (ii) cannot be found, or (iii) has become incapable of giving evidence, or (iv) whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable. Once the gateway is satisfied, the section admits the statement provided it falls within one of the eight enumerated categories of relevant fact.

The eight categories are: (1) statements as to the cause of death (dying declarations); (2) statements made in the course of business; (3) statements against the pecuniary or proprietary interest of the declarant; (4) statements giving an opinion as to a public right or custom or matter of general interest; (5) statements relating to the existence of any relationship by blood, marriage or adoption; (6) statements relating to the existence of any such relationship made in any will, deed, or family pedigree; (7) statements made in any deed, will or other document relating to the boundaries of property; and (8) statements made by several persons expressing feelings or impressions on their part relevant to the matter in question.

The chapter on relevancy of facts under Section 3 BSA develops the broader logic of which Section 26 BSA is one application, and the chapter on dying declarations and their evidentiary value develops in detail the most heavily litigated of the eight categories.

Statements as to cause of death — clause (1)

Clause (1) admits statements, written or verbal, of relevant facts as to the cause of the declarant's death, or as to any of the circumstances of the transaction which resulted in his death, when the cause of that person's death comes into question. The Privy Council in Pakala Narayana Swami v. Emperor, AIR 1939 PC 47, gave the foundational treatment: the statement is relevant whether or not the person was at the time under expectation of death — Indian law, unlike the English common law, does not restrict admissibility to declarations made in articulo mortis.

The Supreme Court in Magsoodan v. State of Uttar Pradesh, AIR 1983 SC 126, treated the clause as admitting dying declarations in both civil and criminal proceedings in which the cause of the declarant's death comes into question. Where the original dying declaration is not available, secondary evidence is admissible — see Aber Rama Gova v. State of Gujarat, AIR 1979 SC 1567. It is not mandatory that only a Magistrate record a dying declaration; it can be recorded by anybody, as the Supreme Court held in Surender Kumar v. Punjab, (2012) 12 SCC 120.

The chapter on dying declarations develops the special tests of reliability that govern this category — fitness of mind, opportunity to observe, freedom from tutoring, the role of the doctor, the consequences of multiple dying declarations. The student should treat dying declarations as the most heavily worked-out application of Section 26 BSA, with its own jurisprudence built on top of the clause (1) gateway.

Statements relating to family relationships — clause (5)

Clause (5) admits a statement, written or verbal, of relevant facts made by a person who is dead, missing, incapable, or whose attendance cannot reasonably be procured, when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship the person making the statement had special means of knowledge, and the statement was made before the question in dispute was raised.

The Supreme Court in Dolgobinda Paricha v. Nimai Charan Misra, AIR 1959 SC 914, applied the clause in a succession dispute, treating the deceased's statements as to the lineage of the family as admissible under what is now Section 26 BSA. Kalidindi Venkata Subbaraju v. Chintalapati Subbaraju, AIR 1968 SC 947, applies the same principle to long-standing genealogical disputes.

The clause has two protective conditions. First, the maker must have had special means of knowledge of the relationship — proximity to the family, position in the household, or independent investigation. Second, the statement must have been made before the question in dispute was raised, that is, before the maker had any motive to fabricate. Both conditions are strictly enforced. State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, observed that where a long line of descent has to be proved spreading over a century, there is a serious danger in relying on the evidence of witnesses given from pure memory, because interested witnesses tend to draw from imagination and twist facts. The trial court must scrutinise such evidence with care.

Statements in the course of business — clause (2)

Clause (2) admits a statement made by an unavailable declarant in the ordinary course of business, particularly when it consists of an 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.

The clause is the foundational provision for the admissibility of business records of deceased or missing persons. It operates together with the documentary chapter, which lays down the proof requirements for entries in books of account and public records. The chapter on documentary evidence — concept and classification develops these proof requirements, and the chapter on proof of documents — attesting witnesses, handwriting, signature develops the proof of authorship.

Statements against interest — clause (3)

Clause (3) admits a statement which is against the pecuniary or proprietary interest of the person making it, or which, if true, would expose him or would have exposed him to a criminal prosecution or to a suit for damages. The rationale is the inherent guarantee of trustworthiness that attaches to a statement against the maker's own interest: a person does not ordinarily make damaging statements about himself unless they are true.

The clause is closely connected to the doctrine of admissions, but operates only when the maker is unavailable. The chapter on admissions — definition, kinds and evidentiary value covers the broader doctrine of statements against interest. Where the admission was made by a person who has since died, gone missing, or become incapable, the clause (3) gateway brings the statement into evidence under Section 26 BSA, even though the admissions chapter would not strictly apply.

Statements as to public rights or customs — clause (4)

Clause (4) admits a statement giving the opinion of an unavailable declarant 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 which was made before any controversy as to such right, custom or matter had arisen. The clause supplements the rules on relevancy of customs in Section 11 BSA (previously Section 13 IEA), and it is most often invoked in disputes about long-standing communal rights, easements and customs.

The clause has the same protective conditions as clause (5): the maker must have been likely to be aware of the right, and the statement must have been made before the controversy arose. Both conditions go to the absence of motive to fabricate, and both are strictly enforced.

Statements as to boundaries of property — clause (7)

Clause (7) admits a statement made in any deed, will or other document relating to any transaction by which the boundaries of property in dispute are referred to. The clause is most often invoked in property litigation, where deeds and wills of deceased predecessors-in-interest are tendered as evidence of the boundaries of land. The proof of such deeds is governed by the documentary chapter, and the presumptions as to thirty-year-old documents — see our chapter on presumptions as to documents — thirty-year-old documents and public records — frequently come into play in old-deed proof.

Other clauses and their operation

The remaining clauses — clause (6) on family pedigree statements, clause (8) on collective expressions of feeling — are less heavily litigated but operate on the same architecture. Each requires that the gateway condition of unavailability be satisfied, and that the statement fall within the specific category. None of the clauses is a general open-door provision. The court must identify the specific clause under which the statement enters the record.

Necessity, special means of knowledge and the absence of motive

Three policy considerations animate the chapter. The first is necessity: the alternative to admitting an out-of-court statement of an unavailable declarant is to lose the evidence altogether. The second is special means of knowledge: the maker must have been in a position to know the fact stated. The third is the absence of motive to fabricate: the statement must have been made before the question in dispute arose, or in circumstances that exclude the possibility of self-serving invention.

Each clause weighs these three considerations differently. Clause (1) on dying declarations relies most heavily on the imminence of death as the safeguard against fabrication. Clauses (4) and (5) rely on the temporal condition that the statement be made before the dispute arose. Clause (3) on statements against interest relies on the inherent self-disserving character of the statement. Clause (2) on statements in business relies on the routine and unreflective character of business records.

Distinguishing Section 26 BSA from neighbouring rules

Two distinctions are critical.

Section 26 BSA versus Section 4 BSA (res gestae). Section 4 BSA admits contemporaneous statements that are part of the same transaction; the maker may be alive and available. Section 26 BSA admits statements by an unavailable declarant; the maker must be dead, missing or incapable. The two heads can overlap on the same facts — a dying declaration may also be res gestae if uttered at the moment of the assault — but the gateway conditions are entirely different. The chapter on the doctrine of res gestae under Section 4 BSA develops the boundary.

Section 26 BSA versus Section 27 BSA (statements in former proceedings). Section 27 BSA (previously Section 33 IEA) admits the depositions of an unavailable witness given in a former judicial proceeding, on conditions of identity of parties and opportunity of cross-examination. Section 26 BSA admits any out-of-court statement of an unavailable declarant, without the condition of prior cross-examination, but only within the eight enumerated categories. The two provisions cover different territory and should not be confused.

Application in dowry-death and matrimonial litigation

Section 26 BSA does some of its heaviest work in dowry-death and matrimonial litigation. Where a married woman dies an unnatural death within seven years of marriage, the prosecution invariably tenders her statements made before death — to relatives, neighbours, mahila helpline operators, treating doctors, investigating officers — under clause (1) of Section 26 BSA. The reliability of such statements depends on the conditions in which they were made, the proximity to the death, and the presence or absence of tutoring by interested relatives. The chapter on dying declarations and their tests of reliability develops the special jurisprudence that has grown around dowry-death dying declarations, including the rule on multiple inconsistent declarations.

A statement made by the deceased to a doctor at the time of treatment is admissible if it relates to the cause or circumstances of the transaction that resulted in death, and is treated by the courts with particular weight because the doctor is an independent witness with no interest in the family dispute. A statement recorded by the investigating officer at the bedside of the deceased is admissible on the same footing, but is examined more rigorously because of the standing risk that the police officer's framing may have shaped the substance of the statement. In matrimonial cases involving cruelty, statements of the deceased to her parents and siblings about the conduct of the husband and in-laws are often the principal evidence available to the prosecution. The clause (1) gateway depends on the cause of death coming into question; in a dowry-death prosecution under Section 80 BNS (previously Section 304B IPC), it does. The statements are therefore admissible, subject to the conditions of reliability that the case law has developed.

Application in commercial litigation — entries and acknowledgments

In commercial litigation, clause (2) of Section 26 BSA is the principal route by which entries in the books of a deceased proprietor or partner come into evidence. The provision admits entries and memoranda made by the deceased in books kept in the ordinary course of business, acknowledgments of receipt of money or goods, documents used in commerce, and the dates on letters and other documents usually dated by the deceased. The reliability rationale is the routine and unreflective character of business records: a person making a contemporaneous entry in his own books has no occasion to fabricate.

The proof requirements interact with the documentary chapter. The party tendering an entry must establish the unavailability of the maker, the routine business character of the record, and the conditions of authenticity that the documentary chapter requires. The chapter on oral testimony under the direct-evidence rule sits beside this commercial application: the entry comes in not because the entry is a witness but because the law receives it as a substitute for the testimony of an unavailable maker. The chapter on burden of proof under Sections 101 to 114 develops how such an entry interacts with the burden of leading evidence in commercial trials.

BSA-specific changes — minor cosmetic only

The BSA reproduces Section 32 IEA in Section 26 BSA without substantive change. The cosmetic textual edits in the official correspondence table — the word "namely" added before the list of clauses, headings of subsections dropped, the word "ravished" replaced by "raped" in an illustration, "banya" replaced by "business" — do not affect doctrine. The classical authorities — Pakala Narayana Swami, Magsoodan, Dolgobinda Paricha, State of Bihar v. Radha Krishna Singh — continue to govern the renumbered section. For the side-by-side mapping see our IEA to BSA section-mapping table.

Common pitfalls in answer scripts

Three errors recur and they trip up even mains candidates.

First, treating Section 26 BSA as a general open-door provision for hearsay. It is not. The provision admits only statements that fall within one of the eight enumerated categories and only when the gateway condition of unavailability is satisfied. A statement of an unavailable declarant that does not fit any clause is excluded.

Second, treating the unavailability gateway as automatic. The proponent must affirmatively prove that the declarant is dead, cannot be found, has become incapable of giving evidence, or that his attendance cannot be procured without unreasonable delay or expense. Mere inconvenience is not enough.

Third, conflating the family-relationship clause with the dying-declaration clause, or either with res gestae. Each clause has its own conditions, and the answer script must identify the specific provision under which the statement enters evidence.

For the broader topic-cluster of Evidence Act and BSA notes — covering relevancy, admissions, confessions, dying declarations and the BSA-specific innovations — the chapter index links to every other unit in the syllabus.

Conclusion — necessity tempered by category

Section 26 BSA is the principal statutory exception to the hearsay rule in Indian evidence law. It admits the out-of-court statement of an unavailable declarant on the ground of necessity, but only within the eight categories enumerated by the section, and only on conditions designed to ensure trustworthiness — special means of knowledge, absence of motive to fabricate, contemporaneity with the matter stated. The mains aspirant who has internalised the eight categories and the gateway condition will not be tripped up by any unavailable-witness fact-pattern, however ingeniously the examiner constructs it. The chapter rewards close reading of each clause in turn, with attention to its specific protective conditions, and to the case law that the Supreme Court has built around clause (1) on dying declarations in particular.

Frequently asked questions

What does Section 26 BSA require before an out-of-court statement of a deceased person is admitted?

Section 26 BSA (previously Section 32 IEA) requires two things: a gateway condition and a category condition. The gateway condition is that the declarant must be dead, cannot be found, has become incapable of giving evidence, or his attendance cannot be procured without unreasonable delay or expense. The category condition is that the statement must fall within one of the eight enumerated clauses — cause of death, course of business, against interest, public right or custom, family relationship, family pedigree, boundaries, or collective feelings. Both conditions must be satisfied; either alone is not enough.

Is a dying declaration admissible in civil proceedings under Section 26 BSA?

Yes. Clause (1) of Section 26 BSA admits statements as to the cause of death in any proceeding, civil or criminal, in which the cause of the declarant's death comes into question. The Supreme Court in Magsoodan v. State of Uttar Pradesh, AIR 1983 SC 126, applied the rule. Although the most reported case law concerns murder prosecutions, the clause is equally available in civil actions for damages on death, in succession disputes turning on the cause of death, and in similar civil contexts.

Why must family-relationship statements be made before the dispute arose?

Clause (5) of Section 26 BSA admits family-relationship statements only when made before the question in dispute was raised. The condition exists to exclude the possibility of self-serving fabrication. A statement made after the dispute has arisen carries an obvious risk that the declarant tailored the statement to support one side or another. The statutory condition therefore protects the trier of fact from precisely the manipulation that the absence of cross-examination would otherwise leave undetected.

How does Section 26 BSA differ from Section 27 BSA on former proceedings?

Section 26 BSA admits any out-of-court statement of an unavailable declarant, but only within the eight enumerated categories and without any requirement of prior cross-examination. Section 27 BSA (previously Section 33 IEA) admits the depositions of an unavailable witness given in a former judicial proceeding, on conditions of identity of parties and opportunity to cross-examine. The two provisions cover different territory: Section 26 BSA covers casual or business statements; Section 27 BSA covers prior judicial testimony.

Can an out-of-court statement of an unavailable declarant be admitted if it does not fit any of the eight clauses?

No. Section 26 BSA is not a general open-door provision for hearsay. It admits only statements that fit one of the eight enumerated clauses. A statement of an unavailable declarant that does not fall within any clause is excluded as hearsay, however probative it may be. The student should resist the temptation to treat the section as a residual provision; it is exhaustive of the categories of admissible posthumous and unavailable-witness statement.