STATEMENT

{SEC. 32 & 33}

Sec.32(2)~ Statements made by the person in the Ordinary
Course of Business are Relevant.
1. Statement made by any of the following persons~
a) Who is dead;
b) Who can not be found;
c) Who has become incapable of giving evidence; or
d) Whose attendance can not be procured (without an amount of delay or expense), which the court
consider unreasonable under the circumstances of the case.
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2. Two Category of Statements are covered~
e) Ordinary~ Statement made in the ordinary course of business; and
f) Particular~
a) Any entry or memorandum made by him in books kept in the ordinary course of business, or
b) Any entry or memorandum made in the discharge of professional duty; or
c) Acknowledgment written or signed by him of the receipt of money, goods, securities or property
of any kind; or
d) About the document used in commerce written or signed by him; or
e) About the date of a letter or other document usually dated, written or signed by him.
 Sitaji And Ors. v. Bijendra Narain Choudhary, AIR 1954 SC 601.
1. Witness gave his evidence. He says that the document was written partly by his
father, who is dead, and partly by an ancestor whose writing he cannot identify
because they were written before he was born.
2. His father died in 1896, so it is evident that those entries were made long before the
present dispute arose.
3. He is not clear about the earliest entries in the said document but he presumed they
had been written by his father.
4. Whether that is so or not, these Panjis are ancient and have come from proper
custody. They are admissible under Section 32(2).
Sec.32(3)~ Statement against the interest of maker
1. Statement is against the ‘pecuniary interest of the person making it; or
2. Statement is against the ‘proprietary’ interest of the person making it.
TEST
a) Statement Exposing to Criminal / Civil Liability~ If such statement (when made) true,
{it would expose the person making it} / would have exposed him to a criminal prosecution
or to a suit for damages.
Sec.32(4)~ Statement gives Opinion as Public Right, Custom or Matter of General Interest (Evidence under the Rule of
Necessity)

1. Statement gives the opinion of any such person, as to the existence of :

a) Any Public right or custom or
b) Matter of public or general interest,
TEST
c) Awareness~ Statement of the existence of which, if it existed he would have been likely to
be aware.
d) Statement made before any controversy arose~ Such statement was made before any
controversy as to such right, custom or matter had arisen.
2. Section~ 48. Opinion as to existence of right or custom, when relevant (Direct Evidence)
a) When the Court has to form an opinion as to the existence of any general custom or right,
b) The opinions, as to the existence of such custom or right, of persons who would be likely
to know of its existence if it existed, are relevant.
c) The expression “general custom or right” includes customs or rights common to any
considerable class of persons.
Sec.32(5)~ Statement Relates to Existence of Relationship
1. Statement relates to the existence of any relationship :
a) Relationship by blood,
b) Relationship marriage or
c) Relationship adoption] between persons.

TEST
a) Special means of knowledge as to the existence of relationship~ The person making the
statement had special means of knowledge, and
b) Statement made before any controversy arose~ When the statement was made before the
question in dispute was raised.
Sec.32(6)~ Statement made in Will or Deed relating to Family
Affairs
1. When the statement relates to the existence of any relationship between deceased persons:
a) Relationship by blood,
b) Relationship marriage or
c) Relationship adoption
2. Such statement is made in any:
a) Will or
b) Deed {Such will / deed was relating to the affairs of the family to which any such deceased
person belonged}
c) In any family pedigree, or
d) Upon any tombstone,
e) Family portrait, or
f) Other thing on which such statements are usually made, and w
3. Such statement was made before the question in dispute was raised.
Sec.32(7)~ Statement in Document relating to transaction
mentioned in Section 13 Clause (a)
1. When the statement is contained in any deed, will or other document which relates to any
such transaction as is mentioned in section 13, clause (a).
2. Statement is relating to any transaction by which the right or custom in question was created,
claimed, modified, recognized, asserted, or denied, or which was inconsistent with its
existence
Sec.32(8)~ Statement made by Several persons and Expresses
feelings relevant to matter in question
1. When the statement was made by a number of persons, and expressed feelings or impressions
on their part relevant to the matter in question.
 SEC.33
RELEVANCY OF CERTAIN EVIDENCE
FOR
PROVING, IN SUBSEQUENT PROCEEDING, THE TRUTH
OF FACTS THEREIN STATED
 Whether any fact ‘F’ is true or not? It is a Question in a judicial proceeding
before the Court.
Evidence of ‘F’ was given by a witness ‘W’ in a previous judicial proceeding, or before any person
authorized by law to take evidence;
Previous proceeding was between the same parties or their representatives in interest.
When the witness ‘W’ is~
Dead or
cannot be found, or
incapable of giving evidence, or
kept out of the way by the adverse party, or
his presence cannot be obtained without an amount of delay or expense which, under the
circumstances of the case, the Court considers unreasonable.
For the purpose of proving the truth of the facts ‘F’, the testimony of ‘W’ is relevant in a subsequent
judicial proceeding, or in a later stage of the same judicial proceeding.
Section 33
TEST
a) Adverse party in the first proceeding had the right and opportunity to cross-examine such
witness;
b) Questions in issue were substantially the same in the first as in the second proceeding.
Explanation.—A criminal trial or inquiry shall be deemed to be a proceeding between the
prosecutor and the accused within the meaning of this section.
PRINCIPLE
Testimony of such witness ‘W’ is required in the proceeding, but ‘W’ can not be brought
before the court.
‘F’ fact had already been established before the court in the past on same issue and same
parties.
It would be appropriate to use such evidence in the present matter in hand to prove ‘F’.
 Mohd. Afzal @ Guddu And Another v. State of U.P., (2022)02ILR All.
Statement of the witness recorded under Section 161 Cr.P.C. does not fall within the ambit
of evidence. Such evidence is only for confrontation in cross-examination.
The statement of witness recorded under Section 161 Cr.P.C., being wholly, inadmissible
in evidence, cannot be taken into consideration. Because an investigation is not a judicial
proceeding. Opportunity to cross-examine has not been given to the accused. There are not
two proceedings between same the parties in this case and no question that issues were
substantially the same in the first as in the second proceeding.