Commentary on Section 32(4) of the Indian Evidence Act, 1872

This paper will talk about section 32(4) in-depth. In the section of general overview, section 32 of the Evidence Act, 1872 will be introduced briefly. In the next section, section 32(4) will be discussed. The purpose of this paper is to understand this particular sub-section by way of illustrations and case laws.

Section 32 of the Indian Evidence Act, talks about the written or verbal declarations of relevant facts made by a person who is deceased, or who cannot be identified, or who has become unable to provide evidence, or whose presence cannot be obtained without delay or cost, which in the circumstances of the case, appear to the court to be unfair, are themselves relevant facts in the cases where, it is related to the cause of death; or it is made in the course of business;

or it is made against the interest of maker;

or it gives an opinion regarding public right or custom, or regarding matters of general interest;

or it relates to the existence of relationship;

or when it is made in a will relating to family matters; or in a document that is related to a transaction mentioned in section 13(a) and;

or is made by several persons, and expresses feelings relevant to matter in question.

Keywords: Public right, Custom, Opinion, Competent person, Ante-litem motam, Ante mortem

I. General Overview of Section 32 Of The Evidence Act, 1872

The exceptions to the general rule that hearsay evidence is not admissible are sections 32 and 33 of the Evidence Act. Hearsay evidence is not produced by the courts on the ground that the evidence is provided by an individual who does not have first-hand knowledge of the facts of the case. According to section 60 of the Indian Evidence Act,1872, oral proof must always be clear, and due to this, the person who has first-hand knowledge of the facts of the case is entitled only to prove the facts.

The law often needs the best evidence for the purposes of justice to be presented before the court of justice. The best evidence suggests proof of the person who made a statement or wrote a paper on his own. This is the best proof of a person who has first-hand knowledge of evidence or original records. He is obligated to take an oath when a witness appears before the court and is subject to cross-examination by the opposing side.

Evidence presented by a person in a judicial proceeding or before a person allowed by statute to take evidence is important for the purpose of demonstrating the validity of the facts mentioned in a subsequent judicial proceeding, pursuant to section 32. It imposes limitations on the admissibility of claims made by people who are unable to present evidence before the court. The arguments made under this section are acknowledged as a theory of necessity, since there is no better evidence available.

Before allowing evidence under section 32, the court must be satisfied with the reasons mentioned in the clauses of the section. If the person is dead, then death has to be confirmed. If the person making a statement survives, then it is not possible to use the statement as a dying declaration. If after making such a decision, a person is not identified, the court must be assured that all search attempts have been made and exhausted. Similarly, after making claims, a witness was mentally incompetent and absolutely invalid to be deposed before the court.

II. Critical Comment on Section 32(4) of The Indian Evidence Act, 1872

Section 32(4) of the Indian Evidence Act 1872 states that-

“Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. —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:—

4. or gives opinion as to public right or custom, or matters of general interest. —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.”

1. Meaning

Where a person was likely to be aware of the existence of any public right or custom or matter of public or general interest, and being so aware makes a statement giving his opinion about the existence of such public right or custom or matter of public or general interest, before any controversy as to such right arose and dies after making such a statement or cannot be found or has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense, then such a statement can be used as evidence and will be admissible in the court under section 32(4).

This sub-section makes the statements of relevant facts made by persons who are dead admissible in evidence if such statements give the opinions of such persons as to the existence of any public right or custom or matter of public or general interest. A fact in issue is always a relevant fact and statements relating to facts and issue cannot be excluded from the operation of Section 32(4). If they were to be excluded much valuable evidence would be unavailable as will be apparent from the illustrations to Section 32 and also to the definitions of facts and issues and relevant facts.[i]

Illustrations

1. A question arises about a particular road in a village is a public way. In this case, the word or statement by an X person who is a deceased headman of that particular village is relevant. In order to prove a public or general right or custom, or matter of public or general interest, the statements made by the deceased person before the dispute arose must only be admissible.
2. A question arises about a house in the vicinity and its usage for illegal purposes. A now-deceased man who had been residing in its vicinity for a long period of time, his statements will be relevant.
3. A question arises about domestic violence in a particular household. A now-deceased maid who had worked in the house let’s say for 15 years, her statements will be relevant.
4. A question arises about the construction of a mosque. A statement in a gift deed, saying that it was constructed by a certain person, will be relevant.

2. Statements of a Competent Person are only Admissible

The statements made by a person who is known to have no knowledge on the matter cannot be used for evidence. The statements of a competent person, who is known to have knowledge on the subject of the matter, can be admissible.[ii] Such statements made are known as declarations as to public rights.

Public rights are generally those common to all members of the state like rights of highways, public parks etc. and this clause of section 32 is only applicable in the case of public rights.

In the case of Pranballav Saha and Ors. v. Tulsibala Dassi and Ors.[iii], the meaning of ‘competent person was widened’. A competent person is not only a person who has immense knowledge on the subject matter but can also be a person who lives in the vicinity of the area where the subject matter is. In this case, which revolves around a particular place of residence in the vicinity, a witness, who was a man who lived in the vicinity since boyhood was not considered by the trial judge.

Whereas, now the Hon’ble High court has considered him a witness. The court observed that the person is an independent witness and is unconnected with the parties or with the premises in question. He lived in the vicinity of the residence in question and had live there since boyhood. He was a responsible person and was a government servant under the Eastern Railway. Such a person is entitled to speak of the reputation of the premises. The importance of this evidence is that it was the evidence of reputation under Section 32(4) of the Evidence Act coming from a man who lived in that vicinity, and spoke of the house in question covering a time which went back to the period in question.

Therefore, any person who happens to have knowledge about the subject matter, be it a expert in academics or an ordinary person connected to the subject matter somehow, is a competent person whose statements are admissible as evidence even after their death.

3. Statements to be made “Ante Mortem” and “Ante-Litem Motam”

The two legal maxims that are ‘ante mortem’ and ‘ante-litem motam’ fit right into the meaning of the subsection.

Ante Mortem is latin for ‘before death’. It is used to describe a statement that is made before you die[iv]. This can be included in the meaning of the subsection. The statements or opinions declared, before the death of a person, are admissible in court as evidence. Although, the statements of those who cannot be found or will delay the process of law can also be admissible.

Another maxim, ‘Ante-Litem Motam, meaning before the suit is brought; or before the controversy is instituted[v]. The section requires the statement or the declaration to be made prior to the rising of the controversy.

To make a statement relevant under this clause, it is not only necessary that the declarant was possessed of adequate knowledge but also that at the time of making the statement, he was not under a controlling motive or misrepresentation.

The declarant must be disinterested at the time of making his statement. If it is proved that the declarant had some interest to misrepresent, his declaration could be rejected. It is, therefore, necessary to the admissibility of declarations of this description that they should be made before the controversy was raised and before the dispute arose. The reason why such statements are taken as evidence is that they are considered as disinterested and not misleading and made without any intention to serve a particular cause or mislead the posterity[vi].

III. Conclusion

Section 32 of the Indian Evidence Act, 1872, no doubt allows important pieces of information as evidences in court. The evidence which can change the course of the court proceedings can be admissible under this section.

If the declaration is simple and unambiguous, courts will lean heavily in favour of using the statement beyond and unerringly. Therefore with due care, the courts emphatically indicated, and if the declaration stands to meet the parameters, there is enough space to depend on it. It is important to provide proof of a fact and the balance of its admissibility must be agreed upon by the presiding adjudicator.

IV. Suggestions

1. The statements that can be admissible as evidence under this sub-section, cannot be cross-examined and hence, there is no way to verify verbal statements made by a person who is not available. Hence, at least two or three persons who have heard such statements being made must be called upon as witnesses.
2. Instead of accepting verbal statements, statements which are written in this matter can be more reliable. Even in situations like deciding whether a road in a village is a public road, documented evidence is much more reliable than a verbal statement made by the headman of the village.
3. Declarations which are admissible under this section should not be the primary evidence because to verify that the intention of the person while making the statement was not malicious is very difficult. Hence, these statements must be used as secondary evidence.

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[i] S. Subramaniyan and Co. v. The State of Tamil Nadu, (1998) 3 MLJ 526

[ii] Khagum Khan and Ors. v. Mohamed Ali Sahib and Ors., AIR 1955 AP 209.

[iii] Pranballav Saha and Ors. v. Tulsibala Dassi and Ors., AIR 1958 Cal 713

[iv] Black’s Law Online Dictionary.

[v] Ibid.

[vi] Batuk Lal, The Law of Evidence, (23^rd Edition, 2020), Central Law Agency, Allahabad

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