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Report No. 69

VII. Section 32(3)

A. Introductory

12.104. to 12.107. Section 32(3)-Declarations against interest.-

Section 32(3) makes a statement relevant when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages. The basis of this clause is the principle that a statement asserting a fact distinctly against one's interest is unlikely to be deliberately false or needlessly incorrect, and carries its own sanction, even though the other usual sanctions of truth are wanting.

12.108. Declarations against interest in English law.-

While English law also recognises this principle, the clause in the Act is wider than the English law, inasmuch as it also incorporates a proposition which English Courts have refused to adopt, namely, the inclusion of statements which would have exposed the maker to a criminal prosecution or to a suit for damages. At common law, the rule on the subject is narrow, and dose not include statements which would have exposed the maker to a prosecution or penalty.

It was held in the Sussex Peerage case1 that a declaration by a deceased clergyman, concerning a marriage at which he had officiated-a marriage where the person celebrating would be liable to punishment under the Royal Marriage Act, 1772-was inadmissible as evidence of the marriage. Lord Brougham, who is otherwise known to have been an advocate of a liberal approach in the law of evidence, said, "The rule as understood now is that the only declarations of deceased persons receivable in evidence are those made against the proprietary or pecuniary interest of the maker."

1. Sussex Peerage case, (1844) 11 C1&Fin 85 (House of Lords).

12.109. Grounds of admissibility.-

The ground on which a statement made by a witness who is dead or otherwise not available, which would have exposed him to a criminal prosecution, is admitted, is that a man is not likely to accuse himself falsely of a crime. Of course, it is not possible to state that in every case the statement is more likely to be true then false. This is shown by the conduct of approvers in criminal cases, who while charging themselves with complicity in a crime, take care to ensure that the major blame is thrown on the other alleged co-participants. However, these are matters which can be taken into account by the court, in considering the weight to be given to the particular statement.

12.110. Admissible for all purposes.-

There is, of course, no restriction either in England or in India that the declaration is admissible only where it is against the maker's interest. If admissible, the declaration is admissible as evidence for all purposes.1 The principle underlying the clause is, as already, stated, the improbability of a statement against interest being false.

1. Taylor v. Witham, (1876) 3 Chancery Division 605.

Indian Evidence Act, 1872 Back

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