Statement by Persons who cannot be called a Witness 

By Chanchal Kumawat


Courts are very strict when it comes to recording the evidence by the witnesses. In the sway of Muslims in India, Evidence laws were not codified. There were customs and usages which are provided in the Muslim Law. Evidence has a great value not only in criminal cases but in civil cases as well, dharmashastra has discussed its importance too. It says that the ruler cannot punish anyone without the required evidence and looking at all the aspects of the cases, who were involved, what roles they played, and discussing them at the legal level. Meaning, that until and unless someone is not provided beyond doubts, he cannot be proven guilty. Administration of justice finds its backbone in Evidence. The Indian Evidence Act, 1872 in force was introduced by Britishers. The word evidence is derived from the Latin term “evidere” which means to substantiate or show any fact by legal resources.  

Indian evidence act has defined Evidence in section 2 as evidence including oral evidence and documentary evidence. 

In this article, we will be discussing statements given by persons who can’t be called witnesses under the Evidence Act. Section 33 of the Indian evidence act,1872 talks about this matter. And, Section 32 of the Indian evidence act lists down the persons who can be called as witnesses.

Hearsay Rule

Section 33 is an exception to the hearsay rule which as the name suggests are statements made by a person on the basis of not what he saw, but, he heard what a third party saw, these are not admissible in the court of law. 

For example, if Aman saw Binay, murdering Chinoy, Chinoy was the brother of Daud and Daud filed an appeal against Binay putting Aman as the evidence of the entire case. Does this mean that direct evidence has more value or less than circumstantial evidence? When we say that eyes can never lie, we’re implying that the court of law is wrong and only circumstantial evidence should be admitted. This is not true, because in this way people can present anyone witnessing in their favor, eyes can never lie but people can, and moreover the facts of a case are its circumstances which are placed in front of the court by the witness. So if we are saying that a direct witness is telling the truth, isn’t the possibility of circumstantial witness the exact same if circumstantial evidence can lie then why not direct evidence. If all are speaking the truth then circumstantial evidence is the best suitable because he has seen the incident and if the statements are false then none of the evidence should be given a chance to be a witness in the court of law. While awarding punishment to an accused none of the circumstances can be ignored which are against the statements of the witness. And when it comes to awarding the punishment to the accused it doesn’t matter if the evidence was circumstantial or direct if it is accepted as the proof of the guilt.

Section 32 of the Indian Evidence Act

Section 32(1) when the statement is related to causing death; the statement of evidence given by the witness before his death is relevant.  For example, A’s treatment is going on in a hospital because B injured him. A has told the police and medical officers the reason for the injury but when the time came for the trial, he died. Still, his statements will be relevant.

Section 32(2) statement made in the ordinary course of business; any statement made while doing business is relevant.  For example, if I asked my e-retailer about the delay in my paid order and he is telling me that I will receive the order in the next two days. So here any reply given by them is relevant. 

Section 32(3) the statement made against the interest of the maker; if the person who is making a statement which is against his own interests only. Then these statements are admissible in the court. For example, A murdered B and tells the court that he did the murder.

Section 32(4) statements that give an opinion as to public right and opinion; if an experienced person is giving opinions related to customs then they are admissible. For example, an old lady aged 102 years knows about customs she has seen throughout her life and obviously knows about them more than anyone else. 

Section 32(5) the statement as to the existence of a relationship; statements relating to relationships like marriages, and blood relationship becomes relevant if the person knows the fact. For example, if A gave birth to B then people present there at that time will become relevant.

Section 32(6) statement made in the will; if A is part of the will and his wife is B. then the statement of A that B is his wife will become relevant.

Section 32(7) statement in a document relating to transaction creating a right or custom; when the custom was made and the man was present there witnessing everything then his statement will become relevant.

Section 32(8) statement made by several persons expressing feelings about the question raised; if a group of people made a statement then it becomes relevant. For example, a person showing his feelings related to a public topic is relevant. 

Section 33 is an exception to the hearsay rule which deals with indirect evidence

For Example, A saw B conducting a robbery in the house of C, and C went to the court pleading remedies based on what A saw. C has not seen anything himself though, so the evidence by A will be inadmissible in the court of law. 

Section 33 of the Indian Evidence Act

Section 33 states the Relevance of certain evidence for proving, in a subsequent proceeding, the truth of facts therein stated.—Evidence given by a witness in a judicial proceeding, or before any person authorized 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.

In simple words, when in any criminal or civil proceeding evidence is given by the witness, it should be given while the judicial proceeding or in front of that person who is authorized by law to take that evidence, the displacement is inadmissible unless it is taken by a law officer or anyone authorized by law, this was stated in K. Venkatappa v. Uday Shanker. If the accused party feels that the evidence is inadmissible and raises an objection for the first time in the second appeal then by a general rule it will not be entertained by the High Court, Radha Krishna v. Kedarnath. The relevancy of that evidence will remain intact for the subsequent judicial proceeding or later stage of that same judicial proceeding and not anything else. The question that arises is when does this happen when we have to take the same evidence from the witness in a further proceeding. For this purpose, five situations are mentioned in the act

  1. When the person who gave the evidence in the previous trial is now dead, at the time of the second proceeding. It was held in Sajjan Singh v. The Crown that the death of the witness should be proved. If a witness dies during the retrial of a case and there is enough evidence against the accused given by him in the previous trial before a magistrate, then in the next trial another magistrate can carry on the same evidence, held in Nirmal Singh v. State of Haryana. Cross-examination is the right of the accused party and if the witness dies before the cross-examination then none of the evidence given by him will be admissible in the court. In the trial of testamentary proceedings, the witness was examined but later he died. His evidence was not taken in subsequent proceedings, and the available cross-examination was also not done. Then in the absence of cross-examination, evidence recorded in chief became acceptable, Shyamal Kumar Chatterjee v. Rabindra Narayan Banerjee.
  2. When that person is not found and is lost; if the person who has to give the evidence is absent and the judge issues a notice stating the date of the next hearing so that evidence is available suppose twenty days, but after twenty days again the witness is absent then session judge will make use of the evidence given before the committing magistrate by those same witnesses. 
  3. When the person is incapable; Like for example A went to court in a paralyzed state of body and is unable to speak anything or present the evidence. If A can’t hear or speak then he is capable because evidence can be in the form of writing under section 3 of the Evidence act. Precise evidence of the incapability which is not necessarily permanent should be given in the court.
  4. Kept out by an adverse party.
  5. When his presence cannot be obtained without an amount of delay or expense that the court considers unreasonable; this happens in the rarest of rare cases when the judge has to satisfy himself regarding the delay which is unreasonable and had to consider the evidence of the previous judgment. 

It is the basic right of the accused that the evidence against him, given by the witness should be in front of the court with proper procedure and without any sort of irregularities but even if anything happens resulting in the absence of the witness then only these conditions will come into force that too after proper proof. The strict proof should justify the previous statement taken in the record, this was noticed in Hari Prasad v. State of U.P

Section 33 is only applicable when it is provided that

  1. The statement made in the first proceeding by the parties should be carried on in the next proceeding with the same parties or their representatives, regarding the same issues in question.
  2. Adverse parties must have cross-examined. If the adverse party lacks cross-examination and before that, if any of the five things happen to the witness then the previous evidence by that witness will remain inadmissible. It does not protect the rights of the party who are producing the witnesses, V. M. Mathew v. V. S. Sharma.
  3. The questions raised were the same. This means, that if the witness has provided evidence of the supposed five questions that were raised in the previous proceeding then in the next proceeding in his absence that evidence will substantiate only if the questions are also the same. 

Dying Declaration

The meaning of the dying declaration can be explicated from subsection 1 of section 32 in the Indian Evidence Act, it is the statement made by a person at the time of his death, moments before his death when he recites the incident of his death. It was held in Ram Bihari Yadav v. State of Bihar that the person making the dying declaration is under the expectation of death and such statements are admissible in court under section 32 of the Indian Evidence Act. 

In Pakala Narayan Swamy v. Emperor, person A goes to a man in order to take approximately three thousand rupees, but the man refuses in consideration of the promise that he will give money the next day. A went the home and told his wife whatever the man said, the next day when he went to collect the money from the man he went missing and after two days his body was cut into seven pieces and was found on a train. In this case, the statement made by the wife was admissible in the court and that man was accused. Statements will be again applicable when there is evidence supporting them like for example in this case, since the man has to give money to A, it can be said that he murdered him so that the loan stays out of the picture. And, the bag in which A’s body was found was also purchased through that man. 

Evidentiary Value

The statement can be recorded by anyone be it a doctor, judicial magistrate, or police. Nothing specific is mentioned as to who can record the statements in section 32 of the Indian evidence act. A dying declaration can be the sole basis for announcing a punishment to the accused, but only in cases where opposite circumstances are not present. For example, in the case law R. Mani v/s State of Tamil Nadu, the wife, husband, and children were present in the house and one day the husband told the children to go out of the house and play. When they came they heard their mother is in the hospital because she suffered serious burn injuries on his body. As a matter of her dying declaration, the lady told the doctors in the hospital that it was her husband who tried to kill her when nobody was home. But later in the case some circumstances come into the picture like children told the court that their mother tried to commit suicide once before too, and the relationship between her and her husband was not good she was suspicious that her husband is having an affair. Hence, the dying declaration was not followed and the husband was released. 

When someone tries to convey something by actions and not only words, it is also admissible like in Nirbhaya’s case when she pointed out the rapist while lying on her hospital bed in serious condition, which was recorded by the police in form of evidence. In Queen Emperor v. Abdullah the lady was attacked in such a way that her voice box was removed and she was unable to speak so when she pointed at the accused it was recorded as a form of evidence. 

Why do we admit Dying Declarations?

In the Indian jurisprudence, it was presumed that when a person is on his deathbed, on the verge of dying he might not be lying because those are his last moments. Nemo moriturns proesumitur mentiri means a person will not meet god if at his last moment he utters a lie. In Tuka ram v/s state of rajasthan it was held by the supreme court of India that when a person dies it is the same moment as if someone is taking an oath. The consideration here is the extremity, in the last moments, there is no hope left for him to live so under this he will speak the truth.

Essentials of Dying Declaration

  1. Cause of death

When the statement tells how the person reached such a situation where he is fighting for his life or any circumstances that resulted in his death. Here the time of death and the time at which the statement was given has no relation. For example, A was seriously injured by B but did not die at the moment and gave his statement to a concerned police officer then after days he was again attacked by people of B and in that situation, he died. In this case, his previous statements are fully admissible. 

  1. When a declarant dies of an injury that is yet to be proved

In Chandra Bhan Singh v. State of U.P it was noticed that what was narrated to the police by the injured was the story of a murder but the deceased died of cancer. Then, his statements cannot be considered a dying declaration. 

  1. The intention to use such a statement as a dying declaration is not necessary

It was said in the case law Bhagirath v. State of Haryana that it is not necessary that the statements which are made by the deceased, he has an intention for making the same. If a person is dying of a gunshot then statements made by him are also dying declarations.

  1. The person who made the statement is alive

In such a case that person will be treated as a normal human being like all of us, he has provided proof for the statements he said.


As we can see not every person qualifies for being evidence in the eyes of law. Law is a very dynamic subject, things change as fast as the situation changes. Judges have to deal with new circumstances very often here. A person giving evidence is responsible for either making the accused suffer years of imprisonment or letting him free from all kinds of liabilities imposed upon him. One bad piece of evidence, one criminal left free in society can give very dangerous results in the future. So it becomes very useful to not only study those who are eligible to give evidence but also who are not. 

Leave a Reply

Your email address will not be published. Required fields are marked *