Other Statements by Persons Who Cannot Be Called as Witnesses (s. 26(b)–(h)) — BSA (Law of Evidence) Notes

Other Statements by Persons Who Cannot Be Called as Witnesses (s. 26(b)–(h))

A village headman, decades ago, told everyone the lane past the temple was a public road. He is long dead. Today a landowner fences it off and denies it was ever public. The one man who knew is in his grave — must the truth die with him? Section 26 says no: some statements are so necessary, and so unlikely to be false, that the law lets a dead man speak.

Section 26 [IEA s. 32] admits statements — written or verbal — of relevant facts made by a person who is now unavailable, in eight specified cases. Clause (a) is the dying declaration (Topic 5). This topic covers the gateway every clause shares, and clauses (b) to (h).

A. The gateway — who counts as “unavailable”

Before any clause of s. 26 applies, the maker of the statement must be shown to be one of the following.

Dead, or
cannot be found, or
has become incapable of giving evidence (e.g. insane, comatose), or
whose attendance cannot be procured without an amount of delay or expense that the court, in the circumstances, thinks unreasonable.

Only if the maker crosses this gateway does the court look at which clause lets the statement in. (This is why these are called “statements by persons who cannot be called as witnesses”.)

B. The eight clauses — (a) to (h)

Learn each clause with a one-line trigger (the letters are the statute’s own, so they are kept and the list marker dropped).

Clause (a) — cause of death. The dying declaration (Topic 5): a statement as to the cause of the maker’s death or the circumstances of the transaction resulting in it.

Clause (b) — ordinary course of business. An entry or memorandum made in the regular course of business or professional duty (a shopkeeper’s ledger, a doctor’s case-diary, an acknowledgement of receipt, the date on a letter).

Clause (c) — against interest. A statement against the maker’s own pecuniary or proprietary interest, or one exposing him to a criminal prosecution or a suit for damages (people do not usually lie to their own harm).

Clause (d) — public right or custom. The maker’s opinion as to the existence of a public right, custom or matter of public or general interest, made before any controversy about it arose. This is the “public road” clause.

Clause (e) — relationship (special means of knowledge). A statement as to the existence of a relationship by blood, marriage or adoption, by a person who had special means of knowledge, made before the question in dispute was raised.

Clause (f) — relationship (deceased persons; will/pedigree). A statement as to a relationship between deceased persons, made in a will or deed relating to family affairs, or in a family pedigree, or on a tombstone or family portrait, made before the dispute arose.

Clause (g) — document under s. 11(a). A statement in any deed, will or document relating to a transaction of the kind mentioned in s. 11(a) (transactions by which a right or custom was created, claimed, modified, etc.).

Clause (h) — group feelings. A statement made by a number of persons expressing feelings or impressions relevant to the matter in question.

Two conditions recur and must be stressed in a problem: for clauses (d), (e) and (f) the statement must have been made before the controversy or dispute arose (so nobody was tailoring it to a case), and the maker must have the required standing (special means of knowledge, membership of the family, etc.).

🧩 WORKED EXAMPLE — the dead headman’s statement

Facts. The question is whether a lane is a public road. ‘A’, the village headman (now dead), had said years earlier, “the lane is a public road.” Is his statement relevant?

Rule. Section 26(d) admits a deceased person’s opinion as to the existence of a public right or custom, made before any controversy about it arose, provided he would likely have been aware of it.

Apply. A is dead (gateway satisfied). As headman he had special means of knowing the village’s public ways; his statement concerns a public right, and was made long before this dispute arose.

Conclusion. A’s statement is relevant under s. 26(d). (Pure hearsay in form, but saved by the clause.)

Note the limit. Had A said it after the fencing dispute began, clause (d)’s “before the controversy arose” condition would fail and it would be shut out.

Section 26(d), BSA 2023: “…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.”

In Simple Terms: A dead (or otherwise unavailable) person’s view about whether something is a public right or custom can be used — but only if he was well-placed to know it and said so before anyone started fighting about it, so the statement was not made to suit a case.

flowchart TD
    ROOT["Statement of an UNAVAILABLE person (s. 26)"]:::root
    ROOT --> GATE{"Dead / not found / incapable /<br/>attendance unreasonably costly?"}
    GATE -->|"No"| OUT["Call the witness — s. 26 not needed"]:::diamond
    GATE -->|"Yes"| CL["Which clause?"]:::leaf
    CL --> A["(a) cause of death — dying declaration"]:::leaf
    CL --> B["(b) course of business · (c) against interest"]:::leaf
    CL --> C["(d) public right/custom · (e)-(f) relationship"]:::leaf
    CL --> D["(g) s. 11(a) document · (h) group feelings"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef diamond fill:#FDECEA,stroke:#B22222,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Ramprasad vs State of Maharashtra (1999) — a statement is admissible under s. 32 (now s. 26) only after the maker’s unavailability (death, etc.) is established; the gateway is a condition precedent.
Ratan Gond vs State of Bihar (1959) — clause on public right/relationship requires the statement to be made before the controversy arose and by a person likely to know.
Sukhar vs State of Uttar Pradesh (1999) — reiterated that s. 32 statements are an exception to the hearsay rule, admitted on necessity and reliability.

📄 Full notes + Question Bank (₹199) — every topic in depth, model answers to all past KSLU questions, in one printable PDF. Get the bundle · 10 Solved Problems · All BSA (Law of Evidence) topics