When Statements made by persons who cannot be called as Witnesses are relevant?

Understanding the Concept

The Indian Evidence Act, 1872, governs the admissibility and relevance of statements in judicial proceedings. Typically, evidence is given by witnesses who testify before the court. However, the law also recognizes the importance of statements made by persons who, for various reasons, cannot appear as witnesses. Such statements are relevant under certain conditions because they provide insight, corroboration, or explanation of facts in issue. Sections 32 to 33 of the Evidence Act deal extensively with such situations, especially where the statement is dying declarations, statements against interest, or statements made under special circumstances. These rules ensure that the court can consider critical evidence even when direct testimony is unavailable.

Legal Basis and Definition

A person may be unable to appear as a witness due to death, incapacity, or legal restrictions, such as being a minor or otherwise incompetent under Section 118 of the Evidence Act. Section 32(1) specifies that statements made by a person concerning the cause of their death, or other relevant facts, are admissible if the declarant is unavailable as a witness. These statements are treated as exceptions to the general rule that oral testimony must be delivered by the witness in court. The rationale is rooted in practicality and justice: critical facts must not be excluded merely because the declarant cannot testify in person. By recognizing such statements, the law ensures that justice is served without compromising procedural fairness.

Types of Statements Relevant When the Person Cannot Testify

The law categorizes these statements into several types:

1. Dying Declarations: Statements made by a person who believes they are about to die, regarding the cause of their death or the identity of the perpetrator, are admissible under Section 32(1). Courts treat such declarations as highly reliable because they are made under the expectation of imminent death.
2. Statements Against Interest: Section 32(1)(c) allows statements that are against the declarant’s pecuniary or legal interest to be considered relevant. These statements are presumed truthful because people are unlikely to falsely incriminate themselves.
3. Statements Made in Documents: Certain documents, like letters, written statements, or confessions of a deceased person, can also be admitted if the declarant cannot testify.
4. Statements by Persons Who Cannot Testify Due to Privilege or Incapacity: Sometimes, statements from diplomats, legally incompetent persons, or minors may be considered under specific provisions when in the interest of justice.

These categories ensure that evidence is not excluded merely due to procedural technicalities, thereby upholding the principle of substantive justice.

Judicial Guidelines on Admissibility

The courts have consistently emphasized the reliability and relevance of statements by unavailable persons. In Bachan Singh vs. State of Punjab (1980), the Supreme Court held that a dying declaration is admissible if it is voluntarily made, clear, and related to the cause of death. Similarly, in K.M. Nanavati vs. State of Maharashtra (1962), statements made by deceased individuals regarding the sequence of events were treated as crucial evidence. The judiciary applies a circumstantial evaluation, considering:

• The declarant’s mental and physical state
• Clarity and spontaneity of the statement
• Corroboration by other evidence
• Circumstances under which the statement was made

This approach ensures that statements are reliable and carry probative value, while also safeguarding the rights of the accused.

Evidentiary Value and Limitations

Statements by persons who cannot testify are considered relevant evidence, but they are not conclusive proof. Their weight depends on corroboration and consistency with other evidence. Courts exercise caution because such statements cannot be cross-examined, unlike ordinary witnesses. For instance, a dying declaration is highly persuasive but may require supporting evidence, such as eyewitness testimony or forensic reports, to establish the accused’s guilt beyond reasonable doubt. Section 33 of the Evidence Act also clarifies that statements under special circumstances are admissible to the extent necessary to explain or prove facts in issue, but cannot override direct evidence if contradictory proof exists.

Practical Examples

1. Dying Declaration: A victim of assault informs a relative about the attacker before death. This statement is admissible and may guide the investigation.
2. Statement Against Interest: A deceased person writes in a letter acknowledging a financial liability to a party. The statement may be admitted as evidence of debt.
3. Witness Unavailability: A minor witness is declared incompetent to testify, but their prior written statement describing an accident may be read in court if corroborated.

These examples highlight the flexibility of the Evidence Act in admitting statements of unavailable persons to ensure justice is delivered.

Importance in Legal Practice

Understanding the relevance of statements by persons who cannot testify is crucial for legal practitioners. It allows lawyers to:

• Present critical evidence that would otherwise be excluded
• Strengthen cases where direct testimony is unavailable
• Ensure compliance with Sections 32 and 33 of the Evidence Act
• Advise clients regarding the collection of corroborative evidence to enhance credibility

For judges, these provisions enable judicious evaluation of all available evidence, ensuring fair trials even when witnesses cannot testify directly.

Mnemonic to Remember: “D-A-U”

• D – Dying Declaration: Statement before death regarding cause of death
• A – Against Interest: Statement harming declarant’s legal or pecuniary interest
• U – Unavailable Witness: Statements admissible if witness cannot testify

The mnemonic “D-A-U” helps quickly recall when statements of persons who cannot testify are relevant.

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