Of The Relevancy Of Facts
Statements By Persons Who Cannot Be Called As Witnesses
Section – 32 – 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 following cases:-
(1) When it relates to the 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, in cases in which the cause of that person’s death comes into question.
Such statement are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2) or is made in 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 acknowledgement 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.
(3) or against interest of 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 a criminal prosecution or to a suit for damages.
(4) or gives opinion as to 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 controversary as to such right, custom, or matter had arisen.
(5) or relates to existence of 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.
(6) 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.
(7) or in document relating to transaction mentioned in section 13, clause (a) – When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).
(8) or is made by several persons and express feelings relevant to matter in question – When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.
In the case of Rattan Singh v. State of Himachal Pradesh, AIR 1997 SC 768, this Court has held as under:
“Section 32(1) of the Evidence Act renders a statement relevant which was made by a person who is dead in cases in which cause of his death comes into question, but its admissibility depends upon one of the two conditions: Either such statement should relate to the cause of his death or it should relate to any of the circumstances of transaction which resulted in his death. The collocation of the words in Section 32(1)
“circumstances of the transaction which resulted in his death” is apparently of wider amplitude than saying “circumstances which caused his death”. There need not necessarily be a directed nexus between “circumstances” and “death”. It is enough if the words spoken by the deceased have reference to any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Section 32(1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death.”
In the case of Kans Raj v. State of Punjab & Ors., AIR 2000 SC 2324, a 3-Judge Bench of this Court dealt with Section 32(1) statement made by the deceased who had allegedly died due to dowry harassment and in para 10 held as under: “Section 32 of the Evidence Act is an exception to the general rule of exclusion of hearsay evidence and the statements of a person, written or verbal, of relevant facts, after his death are admissible in evidence if they refer to the cause of his death or to any circumstances of the transaction which resulted in his death. To attract the provisions of Section 32, for the purposes of admissibility of the statement of a deceased the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without an amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in sub-sections (1) to (8) of Section 32 of the Act. Section 32 does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. The words “as to any of the circumstances of the transaction which resulted in his death” appearing in Section 32 must have some proximate relation to the actual occurrence. In other words, the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who
heard the deceased making the statement.