Unit 10

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UNIT 10

Statements by Persons who cannot be called as Witnesses (Section 32 – 33)

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 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 statements 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 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.

(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
controversy 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 expresses 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.

Section 33: Relevancy of certain evidence for proving, in subsequent proceeding, the
truth of facts therein stated— Evidence given by a witness in a judicial proceeding, or
before any person authorised by law to take it, is relevant for the purpose of proving, in a
subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of
the facts which it states, when the witness is dead or cannot be found, or is incapable of
giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be
obtained without an amount of delay or expense which, under the circumstances of the case,
the Court considers unreasonable:

Provided—

 that the proceeding was between the same parties or their representatives in interest;
 that the adverse party in the first proceeding had the right and opportunity to cross-
examine;
 that the questions in issue were substantially the same in the first as in the second
proceeding.

Explanation—A criminal trial or inquiry shall be deemed to be a proceeding between the


prosecutor and the accused within the meaning of this section.

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