Code
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 an amount of delay or expense which under the circumstances
of the case appears to the Court unreasonable, are themselves relevant facts in the following
cases, namely:—
(a) when the statement is made by a person as to the cause of his death, or as
to any of the circumstances of the transaction which resulted in his death, in cases in
which the cause of that person’s death comes into question. Such statements are
relevant whether the person who made them was or was not, at the time when they
were made, under expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into question;
(b) when the statement was made by such person in the ordinary course of
business, and in particular when it consists of any entry or memorandum made by him
in books kept in the ordinary course of business, or in the discharge of professional
duty; or of an acknowledgement written or signed by him of the receipt of money,
goods, securities or property of any kind; or of a document used in commerce written
or signed by him; or of the date of a letter or other document usually dated, written or
signed by him;
(c) when the statement is against the pecuniary or proprietary interest of the
person making it, or when, if true, it would expose him or would have exposed him to
a criminal prosecution or to a suit for damages;
(d) 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;
(e) when the statement relates to the existence of any relationship by blood,
marriage or adoption between persons as to whose relationship by blood, marriage or
adoption the person making the statement had special means of knowledge, and
when the statement was made before the question in dispute was raised;
(f) when the statement relates to the existence of any relationship by blood,
marriage or adoption between persons deceased, and is made in any will or deed
relating to the affairs of the family to which any such deceased person belonged, or in
any family pedigree, or upon any tombstone, family portrait or other thing on which
such statements are usually made, and when such statement was made before the
question in dispute was raised;
(g) when the statement is contained in any deed, will or other document which
relates to any such transaction as is specified in clause (a) of section 11;
(h) when the statement was made by a number of persons, and expressed
feelings or impressions on their part relevant to the matter in question.
Illustrations.
(a) The question is, whether A was murdered by B; or A dies of injuries received in a
transaction in the course of which she was raped. The question is whether she was raped
by B; or the question is, whether A was killed by B under such circumstances that a suit
would lie against B by A’s widow. Statements made by A as to the cause of his or her death,
referring respectively to the murder, the rape and the actionable wrong under consideration,
are relevant facts.
(b) The question is as to the date of A’s birth. An entry in the diary of a deceased
surgeon regularly kept in the course of business, stating that, on a given day he attended
A’s mother and delivered her of a son, is a relevant fact.
(c) The question is, whether A was in Nagpur on a given day. A statement in the diary
of a deceased solicitor, regularly kept in the course of business, that on a given day the
solicitor attended A at a place mentioned, in Nagpur, for the purpose of conferring with him
upon specified business, is a relevant fact.
(d) The question is, whether a ship sailed from Mumbai harbour on a given day. A
letter written by a deceased member of a merchant’s firm by which she was chartered to their
correspondents in Chennai, to whom the cargo was consigned, stating that the ship sailed
on a given day from Mumbai port, is a relevant fact.
(e) The question is, whether rent was paid to A for certain land. A letter from A’s
deceased agent to A, saying that he had received the rent on A’s account and held it at A’s
orders is a relevant fact.
(f) The question is, whether A and B were legally married. The statement of a deceased
clergyman that he married them under such circumstances that the celebration would be a
crime is relevant.
(g) The question is, whether A, a person who cannot be found, wrote a letter on a
certain day. The fact that a letter written by him is dated on that day is relevant.
(h) The question is, what was the cause of the wreck of a ship. A protest made by the
captain, whose attendance cannot be procured, is a relevant fact.
(i) The question is, whether a given road is a public way. A statement by A, a deceased
headman of the village, that the road was public, is a relevant fact.
(j) The question is, what was the price of grain on a certain day in a particular market.
A statement of the price, made by a deceased business person in the ordinary course of his
business, is a relevant fact.
(k) The question is, whether A, who is dead, was the father of B. A statement by A that
B was his son, is a relevant fact.
(l) The question is, what was the date of the birth of A. A letter from A’s deceased
father to a friend, announcing the birth of A on a given day, is a relevant fact.
(m) The question is, whether, and when, A and B were married. An entry in a
memorandum book by C, the deceased father of B, of his daughter’s marriage with A on a
given date, is a relevant fact.
(n) A sues B for a libel expressed in a painted caricature exposed in a shop window.
The question is as to the similarity of the caricature and its libellous character. The remarks
of a crowd of spectators on these points may be proved.
Explanation of Section 23 BSA
Section 23 of the Bharatiya Sakshya Adhiniyam governs the admissibility of statements made by individuals who are no longer available to testify in court. Such individuals may be:
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Deceased,
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Missing,
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Incapable of testifying due to physical or mental conditions,
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Or whose attendance would cause unreasonable delay or expense.
These statements can still be considered relevant in several circumstances, including:
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Dying declarations,
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Business records,
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Statements against interest,
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Public rights or customs,
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Family history or relationships,
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Legal documents like deeds and wills,
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Group impressions (such as public outcry or opinions at the time of an event).
This provision is crucial in ensuring that key evidence is not excluded merely because the original speaker cannot be brought to court.
Illustrations
Here are some practical examples of how Section 23 applies:
🔹 Example 1: Dying Declaration
A woman dies due to injuries from a violent assault. She had previously told a nurse that her husband attacked her. This statement is admissible under Section 23(a).
🔹 Example 2: Business Record
A deceased surgeon wrote in his diary that he delivered a child on a certain date. This entry helps prove the child’s date of birth under Section 23(b).
🔹 Example 3: Statement Against Interest
A deceased businessman’s note admitting to hiding assets can be used in court because it was against his own pecuniary interest (Section 23(c)).
🔹 Example 4: Statement on Public Right
A now-deceased village elder had once stated that a path was a public road. His statement is admissible to prove public right (Section 23(d)).
🔹 Example 5: Family Relationship
A deceased priest’s statement that he performed a marriage ceremony between A and B is relevant to establish their marriage under Section 23(e).
🔹 Example 6: Tombstone Inscription
A tombstone stating that “X, beloved husband of Y, died in 1990” may be used to establish marital relationship and death (Section 23(f)).
🔹 Example 7: Shipwreck Report
A captain’s protest (written document) about a shipwreck is admissible, even though the captain cannot be found (Section 23(h)).
Common Questions and Answers on Section 23 BSA
1. What is a dying declaration and is it admissible under Section 23?
Yes, a dying declaration (a person’s statement regarding the cause or circumstances of their death) is admissible under Section 23(a).
2. Can personal diaries be used as evidence?
Yes, if the diary was maintained in the ordinary course of business and the author is now unavailable, such entries are admissible (Section 23(b)).
3. Are statements made by missing or absconding individuals valid in court?
Yes, if their absence causes unreasonable delay or expense and the criteria under Section 23 are met, their prior statements may be considered.
4. Is hearsay allowed under Section 23?
Only specific forms of hearsay that fall under the enumerated exceptions in Section 23 are admissible. These include dying declarations, business records, etc.
5. Can a family member’s old letter be used to establish relationships?
Yes, letters, inscriptions, or family documents written by now-deceased individuals that establish family relationships are admissible under Section 23(e) and (f).
Conclusion
Section 23 of the Bharatiya Sakshya Adhiniyam ensures that critical information is not lost simply because a person cannot testify. It strikes a balance between procedural fairness and evidentiary necessity, making key exceptions to the hearsay rule in Indian law.
Whether it’s a dying declaration, a business ledger, or a statement about family lineage, these exceptions uphold the truth-seeking function of the courts.
🔍 For expert legal interpretations and more BNSS/BSA articles, visit ApniLaw 🚀
