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KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Declaration Against the Interest of the Maker (Section 26(c))
1. Basic Principle of Section 26(c)Under Section 26(c) of the Bharatiya Sakshya Adhiniyam, the law provides that:
A statement made by a person who is dead or unavailable is relevant if it is against his own interest, i.e., it:
2. Underlying Principle👉 A person would not normally make a statement against his own interest unless it is true.
3. Essential Conditions (Note Form)For admissibility under Section 26(c):
4. Types of Interests Covered
5. Illustration from Case LawIn Bhim Singh v Kan Singh:
6. Correlation with Section 19 (Important Note)Section 19 (Self-Serving Statements)
Exception via Section 26(c)
7. Evidentiary Value
8. Key Legal Principle👉 A declaration against interest is admissible because it is unlikely that a person would falsely make a statement detrimental to himself.
9. Purpose of Section 26(c)
10. Key Takeaways
One-Line Summary👉 Statements made by an unavailable person against his own pecuniary, proprietary, or legal interest are relevant and considered reliable evidence.
1. Basic Principle of Section 26(c)Under Section 26(c) of the Bharatiya Sakshya Adhiniyam, the law provides that:
A statement made by a person who is dead or unavailable is relevant if it is against his own interest, i.e., it:
- Affects his pecuniary or proprietary interest, OR
- Exposes him to civil or criminal liability
2. Underlying Principle👉 A person would not normally make a statement against his own interest unless it is true.
- Such statements are considered:
- Trustworthy and reliable
3. Essential Conditions (Note Form)For admissibility under Section 26(c):
- ✔ Unavailability of Maker
- Person must be:
- Dead or cannot be found
- Person must be:
- ✔ Personal Knowledge
- Maker must have:
- Direct knowledge of the facts
- Maker must have:
- ✔ Statement Against Interest
- Must:
- Harm his own:
- Financial (pecuniary) interest
- Property (proprietary) interest
- Legal position (civil/criminal liability)
- Harm his own:
- Must:
- ✔ Awareness
- Maker must:
- Know that statement is against his interest
- Maker must:
4. Types of Interests Covered
- Pecuniary Interest
- Financial loss or liability
- Proprietary Interest
- Ownership or property rights
- Legal Liability
- Exposure to:
- Civil or criminal consequences
- Exposure to:
5. Illustration from Case LawIn Bhim Singh v Kan Singh:
- Deceased admitted:
- Property was purchased in another’s name
- Intended to make him real owner
- Statement was:
- ✔ Against proprietary interest
- ✔ Therefore relevant evidence
6. Correlation with Section 19 (Important Note)Section 19 (Self-Serving Statements)
- Generally:
- ❌ Not admissible in favour of maker
Exception via Section 26(c)
- If statement:
- Is against interest
- ✔ Admissible:
- In favour of:
- Maker
- Representative
- Third parties
- In favour of:
7. Evidentiary Value
- ✔ Treated as:
- Substantive evidence
- It carries:
- Inherent reliability
8. Key Legal Principle👉 A declaration against interest is admissible because it is unlikely that a person would falsely make a statement detrimental to himself.
9. Purpose of Section 26(c)
- Recognizes:
- Statements made under:
- Natural human conduct
- Statements made under:
- Provides:
- Reliable evidence when:
- Maker is unavailable
- Reliable evidence when:
10. Key Takeaways
- Section 26(c) deals with:
- Statements against interest
- Conditions:
- Personal knowledge
- Awareness of prejudice
- Value:
- ✔ Highly reliable
- ✔ Substantive evidence
One-Line Summary👉 Statements made by an unavailable person against his own pecuniary, proprietary, or legal interest are relevant and considered reliable evidence.
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KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Declaration in Course of Business (Section 26(b))
1. Basic Principle of Section 26(b)Under Section 26(b) of the Bharatiya Sakshya Adhiniyam, the law provides that:
Statements made by a person in the ordinary course of business or professional duty are relevant, when the maker is dead or cannot be called as a witness.
2. Underlying Principle👉 Statements made in the routine course of business are presumed to be reliable.
3. Scope of the Provision
4. Essential Conditions (Note Form)For admissibility under Section 26(b):
5. Evidentiary Value
6. Illustration from Case LawIn State v Rakesh Pal Singh:
7. Key Legal Principle👉 Statements made in the ordinary course of business by an unavailable person are admissible due to their inherent reliability.
8. Purpose of Section 26(b)
9. Key Takeaways
One-Line Summary👉 Statements made in the ordinary course of business by an unavailable person are relevant and admissible due to their reliability.
KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Declaration Against the Interest of the Maker (Section 26(c))
1. Basic Principle of Section 26(c)Under Section 26(c) of the Bharatiya Sakshya Adhiniyam**, the law provides that:
A statement made by a person who is dead or unavailable is relevant if it is against his own pecuniary, proprietary, or legal interest.
2. Underlying Principle👉 People do not normally make statements harmful to themselves unless they are true.
3. Essential Conditions (Note Form)
4. Case IllustrationIn Bhim Singh v Kan Singh:
5. Key Difference (Quick Note)AspectSection 26(b)Section 26(c)NatureBusiness statementStatement against interest
BasisRoutine reliabilitySelf-damaging truth
ValueSubstantive evidenceStrong substantive evidence
6. One-Line Summary👉 Business statements rely on routine accuracy, while statements against interest rely on human tendency not to speak against oneself unless true.
1. Basic Principle of Section 26(b)Under Section 26(b) of the Bharatiya Sakshya Adhiniyam, the law provides that:
Statements made by a person in the ordinary course of business or professional duty are relevant, when the maker is dead or cannot be called as a witness.
2. Underlying Principle👉 Statements made in the routine course of business are presumed to be reliable.
- Reason:
- Made:
- Regularly and systematically
- Without motive to misrepresent
- Made:
3. Scope of the Provision
- Applies to:
- Business records
- Professional reports
- Routine entries
- Medical records
- Account entries
- Official notes
4. Essential Conditions (Note Form)For admissibility under Section 26(b):
- ✔ Unavailability of Maker
- Person must be:
- Dead, or
- Cannot be found, or
- Otherwise unavailable
- Person must be:
- ✔ Course of Business
- Statement must be made:
- In ordinary course of business or duty
- Statement must be made:
- ✔ Duty to Make Statement
- Maker must:
- Be under a duty to make such statement
- Maker must:
5. Evidentiary Value
- ✔ Statements are:
- Relevant evidence
- ✔ May be:
- Substantive evidence
- Ordinary business entries under Section 28
6. Illustration from Case LawIn State v Rakesh Pal Singh:
- Injury report prepared by doctor
- Doctor unavailable (gone abroad)
- Report was:
- Made in course of duty
- Signed by doctor
- Injury report:
- Admissible under Section 26(b)
7. Key Legal Principle👉 Statements made in the ordinary course of business by an unavailable person are admissible due to their inherent reliability.
8. Purpose of Section 26(b)
- Avoids:
- Failure of justice due to:
- Absence of witness
- Failure of justice due to:
- Recognizes:
- Practical importance of:
- Routine records
- Practical importance of:
9. Key Takeaways
- Section 26(b) deals with:
- Business/professional statements
- Conditions:
- Made in course of duty
- Maker unavailable
- Value:
- ✔ Reliable
- ✔ Substantive evidence
One-Line Summary👉 Statements made in the ordinary course of business by an unavailable person are relevant and admissible due to their reliability.
KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Declaration Against the Interest of the Maker (Section 26(c))
1. Basic Principle of Section 26(c)Under Section 26(c) of the Bharatiya Sakshya Adhiniyam**, the law provides that:
A statement made by a person who is dead or unavailable is relevant if it is against his own pecuniary, proprietary, or legal interest.
2. Underlying Principle👉 People do not normally make statements harmful to themselves unless they are true.
3. Essential Conditions (Note Form)
- ✔ Maker must be:
- Dead or unavailable
- ✔ Must have:
- Personal knowledge
- ✔ Statement must:
- Be against:
- Financial interest
- Property interest
- Legal liability
- Be against:
- ✔ Maker must:
- Be aware of its prejudicial nature
4. Case IllustrationIn Bhim Singh v Kan Singh:
- Deceased admitted:
- Property intended for another person
- Statement:
- Against proprietary interest
- Hence relevant
5. Key Difference (Quick Note)AspectSection 26(b)Section 26(c)NatureBusiness statementStatement against interest
BasisRoutine reliabilitySelf-damaging truth
ValueSubstantive evidenceStrong substantive evidence
6. One-Line Summary👉 Business statements rely on routine accuracy, while statements against interest rely on human tendency not to speak against oneself unless true.
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KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Cases in Which Statement of Relevant Fact by Person Who is Dead or Cannot Be Found, etc., is Relevant (Section 26)
1. Basic Principle of Section 26
Section 26 deals with situations where a statement made by a person becomes relevant even though that person cannot be produced before the court.
Normally, evidence must be direct and the maker of the statement should appear in court for examination and cross-examination. However, Section 26 creates an exception where the maker is:
2. Scope of Section 26
Section 26 is based on two principles:
(i) NecessityThe maker of the statement is unavailable, so the court allows the statement to avoid failure of justice.
(ii) ReliabilityCertain statements are considered naturally trustworthy because of the circumstances in which they were made.
3. Categories of Statements under Section 26
Section 26 recognizes the following types of statements:
(a) Dying DeclarationStatements relating to:
(b) Statements in Course of BusinessStatements made in the ordinary course of business or professional duty.
Examples:
(c) Statements Against Interest
Statements are relevant when they are against the maker’s:
(d) Statements as to Public Right or Custom
Statements expressing opinion about:
(e) Statements Relating to Relationship
Statements about relationship by:
(f) Statements in Wills, Deeds, Pedigrees, Tombstones, etc.
Statements relating to relationship between deceased persons are relevant when contained in:
(g) Statements in Documents Relating to Transactions
Statements contained in deeds, wills, or other documents relating to transactions under Section 11(a) are relevant.
(h) Statements by Several Persons Expressing Feelings
Statements made by a group of persons expressing common feelings or impressions are relevant when connected to the matter in issue.
A. Dying Declaration1. Meaning of Dying Declaration
A dying declaration is a statement made by a person about:
2. Rationale
The principle is expressed in the maxim:
“Nemo moriturus praesumitur mentiri”Meaning:
A person who is about to die is not presumed to lie.
The law assumes that a person facing death is unlikely to make a false statement. Since the victim may be the only direct witness, excluding such a statement may defeat justice.
3. Important Features
4. “Verbal” is Wider than “Oral”
A dying declaration need not always be spoken.
In Queen Empress v Abdullah, the deceased could not speak because her throat was cut. She answered questions through gestures. The court held that signs and gestures can amount to a verbal statement.
Thus:
5. Mode of Making Dying Declaration
A dying declaration may be made:
6. Who May Record a Dying Declaration
A dying declaration may be recorded by:
In State of Jharkhand v Shailendra Kumar Rai, the Supreme Court held that a dying declaration does not become inadmissible merely because it was recorded by a police officer.
7. Form of Recording
There is no fixed legal form.
Preferably, it should be:
8. Evidentiary Value
A dying declaration is substantive evidence.
It may form the sole basis of conviction if the court is satisfied that it is:
9. Key Principles on Dying Declaration(i) Sole Basis of Conviction
In Khushal Rao v State of Bombay, the Supreme Court held that a reliable dying declaration can form the sole basis of conviction without corroboration.
(ii) If Victim SurvivesIf the maker survives, the statement is no longer a dying declaration. It may be used only for contradiction or corroboration.
(iii) Incomplete Dying DeclarationAn incomplete dying declaration may still be relied upon if it clearly identifies the accused and the cause of death.
(iv) Multiple Dying DeclarationsWhere there are several dying declarations, each must be examined independently. If inconsistencies are material, the court must act cautiously.
(v) VideographyVideography is a precautionary measure. Absence of videography does not automatically invalidate the dying declaration.
10. Multiple Dying Declarations – Note Form
When there are multiple dying declarations, the court should examine:
11. Interested Witnesses
Evidence of interested witnesses is not automatically rejected. However, it must be carefully scrutinized.
If reliable and credible, it can be accepted. If doubtful, corroboration may be required.
12. Key Takeaways
One-Line Summary👉 Section 26 allows statements of unavailable persons to be admitted in special cases, especially dying declarations, where necessity and reliability justify departure from the ordinary rule of direct evidence.
1. Basic Principle of Section 26
Section 26 deals with situations where a statement made by a person becomes relevant even though that person cannot be produced before the court.
Normally, evidence must be direct and the maker of the statement should appear in court for examination and cross-examination. However, Section 26 creates an exception where the maker is:
- Dead
- Cannot be found
- Incapable of giving evidence
- Unable to attend without unreasonable delay or expense
2. Scope of Section 26
Section 26 is based on two principles:
(i) NecessityThe maker of the statement is unavailable, so the court allows the statement to avoid failure of justice.
(ii) ReliabilityCertain statements are considered naturally trustworthy because of the circumstances in which they were made.
3. Categories of Statements under Section 26
Section 26 recognizes the following types of statements:
(a) Dying DeclarationStatements relating to:
- Cause of death, or
- Circumstances of the transaction resulting in death
(b) Statements in Course of BusinessStatements made in the ordinary course of business or professional duty.
Examples:
- Diary entries
- Business records
- Medical reports
- Acknowledgments of receipt
- Commercial documents
(c) Statements Against Interest
Statements are relevant when they are against the maker’s:
- Pecuniary interest
- Proprietary interest
- Civil liability
- Criminal liability
(d) Statements as to Public Right or Custom
Statements expressing opinion about:
- Public rights
- Customs
- Matters of general or public interest
(e) Statements Relating to Relationship
Statements about relationship by:
- Blood
- Marriage
- Adoption
(f) Statements in Wills, Deeds, Pedigrees, Tombstones, etc.
Statements relating to relationship between deceased persons are relevant when contained in:
- Wills
- Deeds
- Family pedigrees
- Tombstones
- Family portraits
(g) Statements in Documents Relating to Transactions
Statements contained in deeds, wills, or other documents relating to transactions under Section 11(a) are relevant.
(h) Statements by Several Persons Expressing Feelings
Statements made by a group of persons expressing common feelings or impressions are relevant when connected to the matter in issue.
A. Dying Declaration1. Meaning of Dying Declaration
A dying declaration is a statement made by a person about:
- The cause of his death, or
- The circumstances of the transaction resulting in his death
2. Rationale
The principle is expressed in the maxim:
“Nemo moriturus praesumitur mentiri”Meaning:
A person who is about to die is not presumed to lie.
The law assumes that a person facing death is unlikely to make a false statement. Since the victim may be the only direct witness, excluding such a statement may defeat justice.
3. Important Features
- It may be oral, written, or by signs/gestures
- It need not be made in expectation of death
- It may be used in civil or criminal proceedings
- It is an exception to hearsay evidence
- It can be the sole basis of conviction if reliable
4. “Verbal” is Wider than “Oral”
A dying declaration need not always be spoken.
In Queen Empress v Abdullah, the deceased could not speak because her throat was cut. She answered questions through gestures. The court held that signs and gestures can amount to a verbal statement.
Thus:
- Oral = spoken by mouth
- Verbal = words, signs, gestures, or any clear communication
5. Mode of Making Dying Declaration
A dying declaration may be made:
- Orally
- In writing
- By gestures
- By nods
- By signs
- Through any definite communication
6. Who May Record a Dying Declaration
A dying declaration may be recorded by:
- Magistrate
- Doctor
- Police officer
- Any person present
In State of Jharkhand v Shailendra Kumar Rai, the Supreme Court held that a dying declaration does not become inadmissible merely because it was recorded by a police officer.
7. Form of Recording
There is no fixed legal form.
Preferably, it should be:
- In question-and-answer form
- In the exact words of the maker
- In the language of the maker
- Recorded after ensuring mental fitness
8. Evidentiary Value
A dying declaration is substantive evidence.
It may form the sole basis of conviction if the court is satisfied that it is:
- Voluntary
- Truthful
- Consistent
- Free from tutoring
- Made by a person in fit mental condition
9. Key Principles on Dying Declaration(i) Sole Basis of Conviction
In Khushal Rao v State of Bombay, the Supreme Court held that a reliable dying declaration can form the sole basis of conviction without corroboration.
(ii) If Victim SurvivesIf the maker survives, the statement is no longer a dying declaration. It may be used only for contradiction or corroboration.
(iii) Incomplete Dying DeclarationAn incomplete dying declaration may still be relied upon if it clearly identifies the accused and the cause of death.
(iv) Multiple Dying DeclarationsWhere there are several dying declarations, each must be examined independently. If inconsistencies are material, the court must act cautiously.
(v) VideographyVideography is a precautionary measure. Absence of videography does not automatically invalidate the dying declaration.
10. Multiple Dying Declarations – Note Form
When there are multiple dying declarations, the court should examine:
- Whether each statement was voluntary
- Whether the maker was mentally fit
- Whether inconsistencies are material
- Whether statements are supported by medical evidence
- Whether one statement is more reliable than another
- Whether the declaration recorded by Magistrate appears trustworthy
11. Interested Witnesses
Evidence of interested witnesses is not automatically rejected. However, it must be carefully scrutinized.
If reliable and credible, it can be accepted. If doubtful, corroboration may be required.
12. Key Takeaways
- Section 26 is an exception to the rule against hearsay
- It applies when the maker is unavailable
- Dying declaration is the most important category under this section
- A dying declaration may be oral, written, or by gestures
- It can form the sole basis of conviction if reliable
- Courts must examine voluntariness, truthfulness, fitness, and absence of tutoring
One-Line Summary👉 Section 26 allows statements of unavailable persons to be admitted in special cases, especially dying declarations, where necessity and reliability justify departure from the ordinary rule of direct evidence.
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KembaraXtra – Legal Terms – Leader
A leader in legal practice refers to a Queen’s Counsel (now often called King’s Counsel) or, more generally, the senior barrister representing a party in court when two or more counsel are instructed. The leader is responsible for presenting the main arguments and strategy in the case.
In complex or high-value litigation, it is common for a legal team to include both a leader and one or more junior barristers. The leader typically handles the most significant aspects of advocacy, such as opening submissions and cross-examining key witnesses, while juniors assist with preparation and supporting arguments.
A leader in legal practice refers to a Queen’s Counsel (now often called King’s Counsel) or, more generally, the senior barrister representing a party in court when two or more counsel are instructed. The leader is responsible for presenting the main arguments and strategy in the case.
In complex or high-value litigation, it is common for a legal team to include both a leader and one or more junior barristers. The leader typically handles the most significant aspects of advocacy, such as opening submissions and cross-examining key witnesses, while juniors assist with preparation and supporting arguments.
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KembaraXtra – Legal Terms – Leasehold Valuation Tribunal
A leasehold valuation tribunal was a specialist body established to resolve disputes between landlords and leaseholders, particularly concerning service charges, lease extensions, and the purchase of freeholds. It also had the authority to appoint new managers where existing management arrangements were unsatisfactory.
Introduced in 1997, these tribunals provided a more accessible and less formal forum than courts for resolving leasehold disputes. Their functions have since been transferred to the First-tier Tribunal (Property Chamber), which now handles such matters within the modern tribunal system.
A leasehold valuation tribunal was a specialist body established to resolve disputes between landlords and leaseholders, particularly concerning service charges, lease extensions, and the purchase of freeholds. It also had the authority to appoint new managers where existing management arrangements were unsatisfactory.
Introduced in 1997, these tribunals provided a more accessible and less formal forum than courts for resolving leasehold disputes. Their functions have since been transferred to the First-tier Tribunal (Property Chamber), which now handles such matters within the modern tribunal system.
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KembaraXtra – Legal Terms – Leave of the Court
Leave of the court refers to permission granted by a court to take a particular procedural step. In many situations, parties cannot act freely without obtaining such permission, especially where rules are designed to control proceedings and prevent abuse of process.
For example, a party may need leave to amend pleadings, introduce new evidence, or initiate certain types of proceedings. The requirement ensures that court processes remain fair, efficient, and consistent with procedural rules.
Leave of the court refers to permission granted by a court to take a particular procedural step. In many situations, parties cannot act freely without obtaining such permission, especially where rules are designed to control proceedings and prevent abuse of process.
For example, a party may need leave to amend pleadings, introduce new evidence, or initiate certain types of proceedings. The requirement ensures that court processes remain fair, efficient, and consistent with procedural rules.
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KembaraXtra – Legal Terms – Leave to Appeal
Leave to appeal is the permission required to challenge a decision of a court in a higher court. Not all decisions can be appealed automatically; in many cases, the party must first convince the court that there is a valid legal basis for the appeal.
This requirement helps prevent the appellate system from being overwhelmed with weak or unmeritorious cases. Leave is typically granted where the appeal raises an arguable point of law or where there is a real prospect of success.
Leave to appeal is the permission required to challenge a decision of a court in a higher court. Not all decisions can be appealed automatically; in many cases, the party must first convince the court that there is a valid legal basis for the appeal.
This requirement helps prevent the appellate system from being overwhelmed with weak or unmeritorious cases. Leave is typically granted where the appeal raises an arguable point of law or where there is a real prospect of success.
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KembaraXtra – Legal Terms – Legal Aid
Legal aid is a system through which individuals who cannot afford legal representation receive financial assistance from public funds. Originally established under the Legal Aid Act 1988, it has undergone significant reforms to control costs and target resources toward those most in need.
Today, legal aid is administered by the Legal Aid Agency and is subject to strict eligibility criteria, including means testing and merit assessment. Major reforms under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 significantly reduced the scope of civil legal aid, limiting it mainly to serious matters such as domestic violence or cases involving fundamental rights.
Legal aid is a system through which individuals who cannot afford legal representation receive financial assistance from public funds. Originally established under the Legal Aid Act 1988, it has undergone significant reforms to control costs and target resources toward those most in need.
Today, legal aid is administered by the Legal Aid Agency and is subject to strict eligibility criteria, including means testing and merit assessment. Major reforms under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 significantly reduced the scope of civil legal aid, limiting it mainly to serious matters such as domestic violence or cases involving fundamental rights.
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KembaraXtra – Legal Terms – Legal Estate
A legal estate is a recognized form of ownership or interest in land under the Law of Property Act 1925. The Act limits legal estates to two types: fee simple absolute in possession (freehold ownership) and a term of years absolute (leasehold ownership).
All other interests in land, such as life interests or entailed interests, exist only in equity. This distinction is important because legal estates generally have stronger enforceability and bind third parties more effectively than equitable interests.
A legal estate is a recognized form of ownership or interest in land under the Law of Property Act 1925. The Act limits legal estates to two types: fee simple absolute in possession (freehold ownership) and a term of years absolute (leasehold ownership).
All other interests in land, such as life interests or entailed interests, exist only in equity. This distinction is important because legal estates generally have stronger enforceability and bind third parties more effectively than equitable interests.
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KembaraXtra – Legal Terms – Legal Ombudsman
The Legal Ombudsman is an independent body that investigates complaints about legal service providers in England and Wales. It was established under the Legal Services Act 2007 and began operating in 2010.
Unlike earlier complaint bodies, it is designed as a lay organization, meaning it is not controlled by lawyers. Its role is limited to issues of service quality—such as delays or poor communication—rather than the correctness of legal advice itself. It provides a free and accessible avenue for resolving disputes between clients and legal professionals.
The Legal Ombudsman is an independent body that investigates complaints about legal service providers in England and Wales. It was established under the Legal Services Act 2007 and began operating in 2010.
Unlike earlier complaint bodies, it is designed as a lay organization, meaning it is not controlled by lawyers. Its role is limited to issues of service quality—such as delays or poor communication—rather than the correctness of legal advice itself. It provides a free and accessible avenue for resolving disputes between clients and legal professionals.