Report No. 69

Chapter 12

Statements Made under Special Circumstances by Persons who Cannot be Called as Witnesses

I. Introductory

12.1. Introductory.-

Admissions (including confessions) which we have discussed so far, constitute a species of exceptions to the rule against hearsay. We shall now deal with statements made under certain special circumstances by persons who cannot be called as witnesses, these being another species of exceptions to the rule against hearsay. These statements form the subject-matter of sections 32 and 33.

12.2. General rule-Oral evidence to be direct.-

It is a general rule of evidence that a witness cannot give evidence based on what some other person told him. To this general rule, the Act (as does the English common law of evidence), makes certain exceptions. We are, in this chapter, concerned with an important group of sections embodying such exceptions.

12.3. In general, oral evidence must be direct1, in other words, if the evidence refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; and if it refers to a fact which could be perceived by any other sense or in any other manner, it must be evidence of a witness who says he perceived it by that sense i.e. the organ of sense or in that manner.

1. See section 60.

12.4. Exceptions when justified.-

It may happen, however, that a witness who has to be present before the Court to give this direct evidence, is dead, or cannot be found or has become incapable of giving evidence by reason of physical or mental injury or disease; or it may be that his attendance cannot be procured without an amount of delay or expense, which, having regard to the circumstances of the case, would be unreasonable.

12.5. Two conditions.-

The existence of one or the other of such circumstance.- briefly, the non-availability of the witness-is a condition precedent for the admission of what could be technically hearsay-a statement made out of court.

12.6. It is, however, also necessary that one other condition should be fulfilled before such statement made out of court can be testified to; and that condition requires the existence of one or the other of certain circumstances, from which the truth of the statement made by the person who is unavailable may reasonably be presumed. When these two conditions co-exist, the law dispenses with direct oral evidence of the fact. That is the rationale of sections 32 and 33-in some form or other, these two conditions are satisfied in most of the 8 cases dealt with in section 321, and also in the case dealt with in section 33. These two sections contain the most important exceptions to the rule against hearsay. Statements made by persons who cannot be called as witness fall into the following categories:

(1) those made as to the cause of death;

(2) those made in the course of business;

(3) those against the interest of the maker;

(4) those giving an opinion as to a public right or custom or matters of general interest;

(5) and (6) those relating to the existence of relationship, or those made in a Will or deed relating to family affairs;

(7) those relating to any transaction by which a right or custom in question was created, modified, denied, etc.;

(8) those made by several persons expressing feelings or impressions; Section 33 adds another category-

(9) those given as evidence in earlier judicial proceedings. We are not concerned in the present Chapter with sections 34 and 35.

1. As to section 32(1), see infra.

12.7. Section 32 and 33-independent provisions.-

Of course, the two sections (sections 32 and 33) are independent provisions, and it has been specifically held1 that section 32 is not controlled by section 33. For the present, however, it will suffice to say that circumstantial probability of trustworthiness of the statement made out of court, coupled with the consideration of necessity, would seem to constitute the two principal considerations on which sections 32 and 33 are based. The first condition removes, to a reasonable degree, the possible source of untrustworthiness and inaccuracy that may normally lie underneath the bare untested assertion of a person not in court. The second condition recognises the fact that the usual guarantees of truth-the tests of cross-examination and oath-are impossible of being, applied, where the declarant is dead or otherwise not available.

1. Shyarna Nand v. Rarnakant, 1904 ILR 32 Cal 6.

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