Unseen, unheard, yet relevant

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) modernizes India’s law of evidence by aligning it with present day realities, including electronic records. It lays down clear provisions on when statements by persons who cannot be called as witnesses, statements made under special circumstances, the extent to which a statement must be proved, and judgments of courts are considered relevant. These provisions ensure that the absence of a witness or the form of evidence does not hinder the delivery of justice.

When are statements made by a person who is dead or cannot be found considered 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 unreasonable delay or expense, are themselves relevant facts in certain specified cases.

In which cases are such statements considered relevant?

These statements are relevant in the following cases:

(a)
When the statement is made by a person as to the cause of his death, or any circumstances of the transaction which resulted in his death, when the cause of that person’s death comes into question. Such statements are relevant whether or not the person was under expectation of death, and whatever may be the nature of the proceeding in which the cause of death comes into question.

(b)
When the statement was made by such person in the ordinary course of business, such as entries or memoranda in business books, acknowledgments of receipts, commercial documents or dated letters written or signed by him.

(c)
When the statement is against the pecuniary or proprietary interest of the person making it, or, if true, would expose him to criminal prosecution or a suit for damages.

(d)
When the statement gives the opinion of such person on the existence of any public right, custom, or matter of general interest, of which he was likely to be aware and was made before any controversy arose regarding it.

(e)
When the statement relates to the existence of any relationship by blood, marriage, or adoption between persons, and was made by someone with special means of knowledge before any dispute arose.

(f)
When the statement relates to the existence of a relationship by blood, marriage, or adoption between deceased persons, and is made in a will, deed, family pedigree, tombstone, family portrait, or similar item, before the dispute arose.

(g)
When the statement is contained in any deed, will, or other document relating to a transaction relevant under the general law of relevancy.

(h)
When the statement was made by several persons together and expressed their collective feelings or impressions relevant to the matter in question.

What are some illustrations where such statements become relevant?

The following are examples:

(a)
If the question is whether A was murdered by B, or A died of injuries during a rape, statements made by A about the cause of death or the transaction leading to it are relevant.

(b)
When the question is about A’s date of birth, an entry in the diary of a deceased surgeon recording the delivery of A is relevant.

(c)
If the question is whether A was in Nagpur on a certain day, an entry in the deceased solicitor’s diary noting a meeting with A in Nagpur is relevant.

(d)
When the question is whether a ship sailed from Mumbai harbour on a given day, a letter by a deceased merchant confirming that the ship sailed that day is relevant.

(e)
When the question is whether rent was paid to A, a letter from A’s deceased agent acknowledging receipt of rent is relevant.

(f)
If the question is whether A and B were legally married, the statement of a deceased clergyman that he married them is relevant.

(g)
If the question is whether a missing person wrote a letter on a certain day, the date on that letter is relevant.

When is evidence given by a witness in one proceeding relevant in another?

Evidence given by a witness in a judicial proceeding, or before any legally authorized person, is relevant to prove the truth of facts stated in a subsequent judicial proceeding, or a later stage of the same proceeding, if the witness is dead, cannot be found, is incapable of giving evidence, is kept out of the way by the adverse party, or cannot attend without unreasonable delay or expense.

What conditions must be satisfied for such evidence to be relevant?

The proceeding must be between the same parties or their representatives, the adverse party must have had the right and opportunity to cross examine and the questions in issue must be substantially the same in both proceedings.

When are entries in books of account relevant?

Entries in books of account, including electronic records, regularly kept in the course of business are relevant whenever they refer to a matter into which the Court must inquire. However, such entries alone are not sufficient to charge any person with liability.

If A sues B for Rs. 1,000/- and produces account book entries showing B’s indebtedness, the entries are relevant but not sufficient without other evidence.

When is an entry in a public or official record relevant?

An entry in any public or official book, register, or electronic record stating a fact in issue or relevant fact, made by a public servant in discharge of official duty or by a person performing a legally enjoined duty, is a relevant fact.

When are statements in maps, charts, or plans relevant?

Statements of facts in issue or relevant facts made in published maps or charts offered for public sale, or in maps or plans made under government authority, are relevant as to matters usually represented in them.

When is a statement in an Act or notification relevant?

When the Court must form an opinion on a fact of public nature, any statement of it made in a recital contained in a Central or State Act or government notification in an Official Gazette or its digital form is relevant.

When are statements as to any law contained in law books relevant?

When the Court has to form an opinion as to the law of any country, any statement of such law in a book printed or published under that government’s authority, or any report of rulings of its courts contained in such books, is relevant.

When a statement forms part of a longer conversation or document, how much of it should be proved?

Only so much of the statement, conversation, document, electronic record, book, or series of letters or papers as the Court deems necessary to fully understand the nature and effect of the statement and the circumstances in which it was made.

When is a previous judgment relevant to bar a second suit or trial?

The existence of any judgment, order, or decree which by law prevents a Court from taking cognizance of a suit or holding a trial is relevant when determining whether the Court should take cognizance of such suit or trial.

When is a final judgment in probate, matrimonial, admiralty, or insolvency jurisdiction relevant?

A final judgment, order, or decree of a competent Court or Tribunal in such jurisdiction, conferring or taking away any legal character or declaring entitlement to any such character or specific thing absolutely, is relevant when the existence of such legal character or title is in question.

What are the effects of such a judgment?

(a)
The legal character conferred accrues from the time the judgment came into operation.

(b)
The legal character declared to belong to a person accrues at the time the judgment declares it to have accrued.

(c)
Any legal character taken away ceases from the time the judgment declares it to have ceased.

(d)
Any property declared to belong to a person is deemed his property from the time so declared.

When are other judgments, orders, or decrees relevant?

Judgments, orders, or decrees other than those above are relevant if they relate to matters of a public nature relevant to the inquiry, but they are not conclusive proof of what they state.

If A sues B for trespass, and B claims a public right of way, a previous decree between A and C on the same issue is relevant but not conclusive.

When are judgments not mentioned above irrelevant?

Judgments, orders, or decrees other than those already covered are irrelevant unless their existence is itself a fact in issue or relevant under some other rule of evidence.

(a)
A and B sue C separately for libel. A’s decree against C is irrelevant in B’s case.

(b)
A prosecutes B for theft, B is convicted; later A sues C for the stolen cow. The conviction of B is irrelevant as between A and C.

What may a party prove regarding judgments obtained by the other side?

Any party may show that a judgment, order, or decree relevant under the above provisions, and proved by the adverse party, was delivered by a Court not competent to deliver it or was obtained by fraud or collusion.

Therefore, the provisions under the BSA maintain the balance between fairness and practicality in evidence law. By recognizing reliable statements, records and judgments even in special situations, the BSA strengthens the evidentiary system and promotes justice based on truth rather than technicalities.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.