46. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.— Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:—
(1) When it relates to cause of death.— When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2) Or is made in course of business.— When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty? or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind ? or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.
(3) Or against interest of maker.— When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose or would have exposed him to a criminal prosecution or to a suit for damages.
(4) Or gives opinion as to public right or customs or matters of general interest.— When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence, of which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter has arisen.
(5) Or relates to existence of relationship.— When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before question in dispute was raised.
(6) Or is made in will or deed relating to family affairs.— When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made and when such statement was made before the question in dispute was raised.
(7) Or In document relating to transaction mentioned in Article 26, paragraph (a).— When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Article 26, paragraph (a).
(8) Or is made by several persons and expresses feelings relevant to matter in question.— When the statement was made by a number of parsons, and expressed feelings or impressions on their part relevant to the matter in question.
Illustrations
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(a) |
The question is, whether A was murdered by B; or A dies of Injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or |
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The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow. |
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Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration are relevant facts. |
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(b) |
The question is as to the date of A’s birth. |
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An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day, he attended A’s mother and delivered her of a son, is a relevant fact. |
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(c) |
The question is, whether A was in Peshawar on a given day. |
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A statement in the diary of a deceased solicitor, regularly kept in the course of business, that on a given day the solicitor attended A at a place mentioned, in Peshawar, for the purpose of conferring with him upon specified business, is a relevant fact. |
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(d) |
The question is, whether a ship sailed from Karachi harbour on a given day. |
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A letter written by a deceased member of a merchant’s firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Karachi harbour is a relevant fact. |
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(e) |
The question is, whether rent was paid to A for certain land. |
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A letter from A’s deceased agent to A saying that he had received the rent on A’s account and held it at A’s order, is a relevant fact. |
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(f) |
The question is, whether A and B were legally married. |
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The statement of a deceased clergyman that he married them under such circumstances, that the celebration would be a crime is relevant. |
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(g) |
The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant. |
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(h) |
The question is, what was the cause of the wreck of a ship. |
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A protest made by the Captain, whose attendance cannot be procured, is a relevant fact. |
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(i) |
The question is, whether a given road is a public way. |
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A statement by A, a deceased headman of the village, that the road was public, is a relevant fact. |
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(j) |
The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased banya in the ordinary course of his business, is a relevant fact. |
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(k) |
The question is, whether A, who is dead, was the father of B. |
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A statement by A that B was his son is a relevant fact. |
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(l) |
The question is, what was the date of the birth of A. |
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A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact. |
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(m) |
The question is, whether and when, A and B were married. |
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An entry in a memorandum-book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact. |
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(n) |
A sues B for a libel expressed in a painted caricature exposed in a shop window. |
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The question is as to the similarity of the caricature and its libellous character. The remarks on a crowd of spectators on these points may be proved. |