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KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Difference Between Section 26(b) and Section 28
1. Core Distinction👉 The key difference lies in:
2. Section 26(b) – Statements of Persons Who Cannot Be Called as Witnesses
3. Section 28 – Entries in Books of Account
4. Key Differences (Note Form)(i) Availability of Maker
(ii) Nature of Evidence
(iii) Sufficiency
(iv) Requirement of Corroboration
5. Reason for the Difference
6. Key Principle👉 Entries made by unavailable persons (Section 26(b)) may be relied upon independently, whereas business account entries (Section 28) require corroboration due to possibility of self-interest.
One-Line Summary👉 Entries under Section 26(b) can be sufficient evidence due to unavailability of the maker, while entries under Section 28 are only corroborative and cannot alone establish liability.
1. Core Distinction👉 The key difference lies in:
- Availability of the maker of the entry, and
- Evidentiary value of the entry
2. Section 26(b) – Statements of Persons Who Cannot Be Called as Witnesses
- Applies when:
- The person who made the entry is:
- Dead, or
- Cannot be found, or
- Incapable of giving evidence
- The person who made the entry is:
- ✔ Entries are:
- Substantive evidence
- ✔ Can be:
- Sufficient by themselves
- No strict need for corroboration
- Maker is not available for examination
3. Section 28 – Entries in Books of Account
- Applies when:
- Entries are made in books of account regularly kept in business
- ✔ Entries are:
- Relevant evidence
- ❌ Not sufficient alone:
- Require corroboration
- Charge a person with liability
4. Key Differences (Note Form)(i) Availability of Maker
- Section 26(b):
- Maker is not available
- Section 28:
- Maker may be available as witness
(ii) Nature of Evidence
- Section 26(b):
- Substantive evidence
- Section 28:
- Corroborative evidence only
(iii) Sufficiency
- Section 26(b):
- ✔ Can be sufficient on its own
- Section 28:
- ❌ Not sufficient alone
(iv) Requirement of Corroboration
- Section 26(b):
- ❌ Not mandatory
- Section 28:
- ✔ Mandatory
5. Reason for the Difference
- Under Section 26(b):
- Law relaxes rules because:
- Witness is unavailable
- Law relaxes rules because:
- Under Section 28:
- Law is stricter because:
- Entries may be:
- Self-serving
- Made by interested party
- Entries may be:
- Law is stricter because:
6. Key Principle👉 Entries made by unavailable persons (Section 26(b)) may be relied upon independently, whereas business account entries (Section 28) require corroboration due to possibility of self-interest.
One-Line Summary👉 Entries under Section 26(b) can be sufficient evidence due to unavailability of the maker, while entries under Section 28 are only corroborative and cannot alone establish liability.
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