BSA S.24 to S.28 provide a comprehensive set of exceptions to the hearsay rule for situations where the maker of the statement is unavailable to testify. The unavailability may be due to death, disappearance, incapacity, or impracticability of attendance. Each sub-clause of S.24 specifies a different circumstance in which the statement was made, providing its own guarantee of reliability.
BSA S.24 = IEA S.32 (eight sub-clauses covering all situations of unavailable witnesses). BSA S.25 = IEA S.33 (relevancy of former testimony). BSA S.26 = IEA S.34 (entries in books of account). BSA S.27 = IEA S.35 (public records). BSA S.28 = IEA S.36 (statements in maps, charts, plans). Confidence: high.
Conditions of Unavailability (S.24 Opening)
The statements are relevant when made by a person who:
- Is dead
- Cannot be found
- Has become incapable of giving evidence
- Whose attendance cannot be procured without unreasonable delay or expense
Any one of these four conditions suffices.
The Sub-Clauses of S.24
| Sub-clause | Situation | Guarantee of Reliability |
|---|---|---|
| (a) Cause of death | Statement as to cause of death or circumstances of the transaction resulting in death | The declarant was involved in the very event |
| (b) Made in the course of business | Statement made in the course of business, and in particular when it is an entry in a book kept in the ordinary course of business | Routine, contemporaneous, no motive to fabricate |
| (c) Against interest | Statement against the pecuniary or proprietary interest of the maker, or exposing him to criminal prosecution | A person does not make a statement against his own interest unless it is true |
| (d) Public right or custom | Statement giving opinion as to the existence of a public right or custom or as to a matter of general interest | Community knowledge; declarant had no personal stake |
| (e) Statement relating to existence of relationship | Statement as to the existence of any relationship by blood, marriage or adoption between persons (when the question of such relationship is relevant) | Family knowledge |
| (f) Made before the question arose | Statement made before the question in dispute was raised, by a person who would have been competent to testify | No motive to fabricate (made before the controversy) |
| (g) Will or deed relating to the family | Statement in any will or deed relating to family affairs | Formal, deliberate |
| (h) Document relating to transaction | Statement in a document relating to a transaction mentioned in S.24 | Connected to the subject matter |
S.24(b): Statements in the Course of Business
This is the business records exception. An entry in a book kept in the ordinary course of business is admissible if the maker is dead or unavailable.
| Requirement | Content |
|---|---|
| Made in the course of business | Not a special record prepared for litigation |
| Entry in a book regularly maintained | Routine entries, not ad hoc notes |
| Made at or near the time of the event | Contemporaneity strengthens reliability |
| Maker dead or unavailable | One of the four conditions of S.24 |
Why this is reliable: A person recording routine business entries has no motive to fabricate. The entries are made as a matter of course, not to establish a fact in litigation.
S.24(c): Statements Against Interest
A statement is admissible if it is against the pecuniary or proprietary interest of the maker, or would expose him to a criminal prosecution or a suit for damages.
Why this is reliable: No rational person makes a statement against his own interest unless it is true. The self-harming nature of the statement is the guarantee.
Example: A deceased debtor's diary entry: "I owe Ravi Rs. 5 lakhs." This is against his interest (acknowledges a debt). Admissible under S.24(c) to prove the debt.
S.25: Former Testimony (Relevancy of Evidence in Previous Proceedings)
Evidence given by a witness in a judicial proceeding, or before any person authorised to take it, is relevant for the purpose of proving the truth of the facts stated, if:
- The witness is dead or unavailable (same four conditions as S.24)
- The proceeding was between the same parties or their representatives in interest
- The adverse party had the right and opportunity to cross-examine
Why: The witness testified under oath and was cross-examined. The absence of the witness at the current trial does not diminish the reliability of testimony already tested.
S.26: Entries in Books of Account (Regularly Kept)
Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.
Two limits:
- The books must be regularly kept (not fabricated for the suit)
- They cannot be the sole evidence of liability (they corroborate but do not alone prove)
S.27: Public Records (Made by a Public Servant in Discharge of Duty)
Statements of relevant facts made in published reports, or recorded in books, by a public servant in the discharge of official duty, or in the performance of a duty specially enjoined by law, are admissible.
S.28: Statements in Maps, Charts, Plans
Statements of facts in issue or relevant, contained in published maps, charts, or plans, or in any statement relating to matters of public interest, are admissible if the maker is dead or unavailable.
Recall Check
- Name the four conditions of unavailability in S.24.
- Why are statements against interest (S.24(c)) considered reliable?
- What are the conditions for admitting former testimony under S.25?
- Can books of account alone sustain liability (S.26)?
Distinctions
| Basis | S.24(a) (Dying Declaration) | S.24(b) (Course of Business) |
|---|---|---|
| Content | Cause of death / circumstances of transaction resulting in death | Any fact recorded in the ordinary course of business |
| When relevant | Only when cause of death is in question | In any proceeding |
| Guarantee of reliability | Involvement in the event | Routine recording, no motive to fabricate |
| Example | "A poisoned me" | A shopkeeper's ledger entry recording a sale |
| Basis | S.24(c) (Against Interest) | S.14 (Admission) |
|---|---|---|
| Maker | A person who is dead or unavailable | A party to the proceeding (who is present and available) |
| Why admissible | Against interest + unavailability | Party's own statement |
| Effect | Proves the fact stated (hearsay exception) | Shifts burden (not conclusive) |
| Self-interest | The statement must be against the maker's interest | An admission is against the maker's interest by definition, but the maker is alive |
| Basis | S.25 (Former Testimony) | S.24 (Statements by Unavailable Persons) |
|---|---|---|
| Form | Testimony under oath in a judicial proceeding | Any statement (oral, documentary, in business records) |
| Cross-examination | Required (opportunity must have existed) | Not required |
| Same parties | Required (or representatives in interest) | Not required |
| Reliability guarantee | Oath + cross-examination | Context-specific (business routine, against interest, cause of death, etc.) |
Flashcards
Name the four conditions of unavailability in S.24.
Dead, cannot be found, incapable of giving evidence, attendance cannot be procured without unreasonable delay or expense.
Why are statements against interest reliable?
No rational person makes a statement against his own pecuniary or proprietary interest unless it is true. The self-harming nature is the reliability guarantee.
What are the three conditions for admitting former testimony (S.25)?
(1) Witness is dead or unavailable; (2) the proceeding was between the same parties or representatives in interest; (3) the adverse party had the right and opportunity to cross-examine.
Can entries in books of account alone prove liability (S.26)?
No. They are admissible evidence but cannot alone be sufficient to charge any person with liability.
Name three sub-clauses of S.24 other than the dying declaration.
(b) Made in the course of business; (c) against pecuniary or proprietary interest; (d) as to public right or custom.
Exam Scenario
Problem: In a suit for recovery of Rs. 8 lakhs, the plaintiff relies on an entry in the account book of a deceased moneylender stating "Advanced Rs. 8 lakhs to Defendant on 5 March 2022." The defendant argues: (a) the moneylender is dead and cannot be cross-examined; (b) books of account alone cannot prove liability. Advise.
Step 1: Test admissibility under S.24(b) and S.26
| Requirement | Application |
|---|---|
| Maker (moneylender) is dead | Yes: one of the four unavailability conditions |
| Entry made in the course of business | Yes: a moneylender's account book is kept in the ordinary course of business |
| Regularly kept | Must be shown that the book was regularly maintained (not fabricated for this suit) |
The entry is admissible under S.24(b) as a statement by a dead person made in the course of business.
Step 2: Address the "cannot be cross-examined" argument
The defence is correct that the maker cannot be cross-examined. But that is precisely why S.24 exists: it admits statements by unavailable persons. The unavailability is the condition of the exception, not a bar to admissibility.
The guarantee of reliability is the routine nature of the entry (made in the ordinary course of business, not for litigation).
Step 3: Address the "sole evidence" argument under S.26
S.26 provides that entries in books of account regularly kept are admissible, but shall not alone be sufficient evidence to charge any person with liability.
The plaintiff must therefore produce some corroborating evidence: a receipt signed by the defendant, witness testimony of the advance, the defendant's own acknowledgment, or other independent evidence.
If the account entry is the only evidence, it is admissible but not sufficient to decree the suit.
S.24(b) makes it admissible; S.26 limits its sufficiency. The entry gets in (admissible) but cannot alone sustain the decree (insufficient). The plaintiff needs corroboration.
"Regularly kept" is a foundation fact. If the defendant challenges the regularity of the book (alleges fabrication or selective entries), the plaintiff must prove that the book was maintained as a routine business record, not prepared for this litigation.
Conclusion. The entry is admissible under S.24(b)/S.26 but cannot alone prove the debt. The plaintiff needs corroborating evidence.
See Also
- Dying Declarations : the most important sub-clause of S.24, treated separately.
- Primary and Secondary Evidence : how the account book is proved as a document.
- Admissions : admissions by a living party, contrasted with statements by dead/unavailable persons.