​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –
What Matters May Be Proved in Connection with a Proved Statement Relevant under Sections 26 or 27 (Section 161)


Case Scenario
In a murder trial, the prosecution relies on a dying declaration made by the victim, which is admissible under Section 26 of the Bharatiya Sakshya Adhiniyam. The person who made the statement is no longer alive and therefore cannot be cross-examined. The defence argues that since the maker of the statement is unavailable, no further evidence should be allowed regarding the truthfulness or credibility of that statement.
The court must now decide: Can facts be proved to support or contradict such a statement, even though the maker is not before the court?
Section 161 of the Bharatiya Sakshya Adhiniyam, 2023 provides the answer.


Section 161 – Matters That May Be Proved in Connection with Statements under Sections 26 or 27
Statutory Rule (Paraphrased in Simple English)
Whenever a statement that is relevant under Section 26 or Section 27 is proved, then:

• All facts may be proved which:
  • Contradict the statement, or
  • Corroborate the statement, or
  • Impeach (discredit) the credibility of the maker, or
  • Confirm the credibility of the maker

And these matters may be proved in the same manner as they could have been proved:

• If the person who made the statement had been called as a witness, and
• Had denied the truth of those matters during cross-examination.

Meaning and Purpose of Section 161
Section 161 ensures that:

• Statements admitted under Sections 26 or 27 are not treated as unquestionable truth
• The opposing party is given a fair opportunity to:
  • Challenge their correctness, and
  • Test their reliability

The provision places such statements on the same footing as oral testimony, even when the maker is unavailable.


Application Where the Maker of the Statement Is Unavailable
When the maker of the statement:

• Cannot be found, or
• Is dead (e.g., dying declaration),

and the statement is proved as relevant under Section 26 or 27, then:

• Evidence may still be given:
  • To confirm the statement, or
  • To contradict it
• Evidence may also be given:
  • To support or impeach the credibility of the person who made it

This is done to the same extent as if:

• The person were alive,
• Had appeared before the court, and
• Had been cross-examined.

Rationale Behind Section 161
The rationale is based on fair trial and natural justice:

• Normally, credibility of a witness is tested by cross-examination
• When the maker of a statement is not available, cross-examination is impossible
• Section 161 compensates for this by allowing:
  • Independent evidence to test truthfulness
  • Safeguards against false or unreliable statements

Thus, the law ensures:
The same safeguards for veracity as if the maker were personally before the court.


Nature of Evidence Permitted under Section 161
Under this section, evidence may be led to:

• Contradict the statement
• Corroborate the statement
• Impeach the credit (character, reliability, trustworthiness) of the maker
• Confirm the credit of the maker

This includes:

• Prior inconsistent statements
• Circumstances affecting credibility
• Conduct of the maker
• Independent corroborative facts

Relationship with Sections 26 and 27

• Section 26 / 27: Make certain statements relevant and admissible
• Section 161: Regulates how such statements may be tested for truth

Section 161 does not create relevance, but provides procedural fairness after relevance is established.


Connection with Refreshing Memory (Sections 162–164)
Sections 162 to 164 deal with refreshing memory of witnesses through writings.
Illustrative Case: State of Andhra Pradesh v. Cheemalapati Ganeshwara Rao
Facts (Simplified)

• Accused were charged with conspiracy, breach of trust, falsification of accounts
• An approver gave evidence
• He refreshed his memory by referring to account books maintained by him
• Absence of entries in certain books was relied upon against the accused

Held
The court held:

• Section 162 expressly permits a witness to refresh memory:
  • By writings made by himself, or
  • By writings made by others and read by him soon after
• The witness need not wait until he is “in difficulty”
• He may refer to documents generally to ensure accuracy

Thus, objections to refreshing memory in such a manner were rejected.


Critical Analysis of Section 161
Strengths

1. Ensures fairness despite absence of cross-examination
2. Prevents blind reliance on dying declarations or similar statements
3. Maintains balance between admissibility and credibility
4. Protects rights of the accused
5. Upholds principles of natural justice

Limitations

1. Depends heavily on quality of surrounding evidence
2. Risk of over-reliance on circumstantial corroboration
3. Requires careful judicial evaluation

10 Illustrative Case Scenarios

1. Dying declaration contradicted by medical evidence
2. Dying declaration corroborated by eyewitness testimony
3. Prior conduct impeaches credibility of declarant
4. Statement supported by surrounding circumstances
5. Inconsistent prior statement proved
6. Motive shown to affect reliability
7. Character evidence affecting credibility
8. Absence of corroboration weakens statement
9. Independent evidence confirms truth
10. Court treats statement like testimony of unavailable witness

Conclusion
Section 161 of the Bharatiya Sakshya Adhiniyam, 2023 plays a crucial role in ensuring fairness when statements admissible under Sections 26 or 27 are relied upon. It allows courts to admit evidence that either supports or challenges such statements, thereby providing safeguards equivalent to cross-examination.
By placing these statements on par with live testimony for the purpose of testing truth and credibility, Section 161 strengthens the justice delivery system and ensures that admissibility does not become unquestioned acceptance.