Persons who cannot be called as a witness
- Section 32 of the Indian Evidence Act, 1872 is an exception to the general rule and under this section the hearsay evidence is admissible. Under this section, indirect evidence is relevant as held in the case of Mst. Biro v. Atma Ram.
- According to Section 32, any written or verbal statement containing relevant facts which is made by a person who is either dead or cannot be found or has been given by a person who has become incapable of giving evidence or the attendance of such person can require delay or expense which seems unreasonable to the court, are relevant in the following cases:
Section – 32 (2) of Evidence Act
- A statement made in the ordinary course of business
- A statement which has been made by such person during the ordinary course of business and such statement consists of any statement or entry of memorandum or any book maintained by him in the ordinary course of business. It may be considered of any acknowledgement which has been written and signed for him of any document which is used for commerce which has been written and signed by him according to sub-clause (2) of section 32.
- ILLUSTRATION: When the question in dispute is regarding the question that whether the ship sailed from Kolkata harbour on a particular date then, a letter written by a member of merchant’s firm to the correspondent stating that the cargo has been shipped on the particular date is a relevant fact.
Section – 32 (3) of Evidence Act
- The statement made against the interest of the maker
- When a statement made by a person is against his pecuniary or proprietary interest and it will expose him if it is true to criminal prosecution or to the suit of damages then it considered being relevant under section 32(3).
- Illustration:
- A has made any statement which is against his interest and such statement can expose him, then such statement is relevant.
Section – 32 (4) of Evidence Act
- The statement which gives an opinion as to public right or custom
- When a statement is made which gives an opinion regarding the existence of any public rights, customs, or a matter related to the general public interest which it existed, he would have been aware of and when such statement has been made there was no controversy of such rights, customs or matter under section 32(4).
- Illustration
- If a question arises whether the road is a public way. The statement by X who is a deceased headman of that village is relevant.
Section – 32 (5) of Evidence Act
- The statement as to the existence of a relationship
- Under section 32(5), when a statement is given which is related to the existence of a relationship by blood, marriage or adoption by the party making the statement has a special means of knowledge about the existence of such relationship about marriage, blood relation or adoption and such statement is required to be made before the dispute was raised.
- Illustration:
- If the question of the dispute arises that whether or not A and B are legally married, then the statement of a deceased clergyman that they were married by him under certain circumstances will be relevant
Section – 32 (6) of Evidence Act
- A statement made in a will or deed in family affairs
- When the statement made is related to the existence of a relationship by blood, adoption or marriage between the deceased persons in any deed or will and such will or deed is related to the family affairs of such deceased person then it is considered to be relevant under section 32(6). Such a statement is required to be made before the question in dispute was raised.
- ILLUSTRATION: If the question arises that A who is a deceased person, whether the father of B. The statement of A in his will considering B as his son is relevant.
Section – 32 (7) of Evidence Act
- Statement in a document relating to transaction creating a Right or custom
- According to section 32(7), when a statement is stated in any will, deed or any other document which is related to the question of the existence of a right or custom under section 13(a) of the Evidence Act,1872. Such a statement should be regarding the existence of a certain right or custom by which such right or custom which is in question was created, coined, recognised or denied.
- Illustration:
- When an issue arises about a custom or right in a particular area, the statement of X who was present when such right or custom was created is relevant.
Section – 32 (8) of Evidence Act
- A statement made by several persons expressing feelings relevant to the matter in question
- When the statement has been made by several numbers of persons who have expressed their feelings on their part, then such statement is relevant under section 32(8).
- EXAMPLE: Public opinion about a matter in dispute.
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