Section 26 of the Bharatiya Sakshya Adhiniyam, 2023

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

Updated: 12 September 2026

Section 26 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with statements made by persons who cannot be called as witnesses because they are dead, cannot be found, have become incapable of giving evidence, or cannot be produced without unreasonable delay or expense. The provision identifies specific situations in which such statements themselves become relevant facts.

Important: The Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024. Section 26 is part of the BSA, not the Bharatiya Nagarik Suraksha Sanhita.

Meaning and scope of Section 26 BSA

The section operates as an exception to the normal rule that evidence should ordinarily be given by a witness who appears before the Court and can be tested in accordance with law. It permits specified statements of an unavailable person to be treated as relevant when the statutory conditions are satisfied.

One of the most important categories is a statement concerning the cause of a person's death or the circumstances of the transaction resulting in death. Such a statement may be relevant whether or not the maker expected death at the time of making it and irrespective of the nature of the proceeding in which the cause of death is in question.

Statutory text of Section 26

26. 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, namely:-

  1. 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. when the statement was made by such person in the ordinary course of business, including entries or memoranda made in books kept in the ordinary course of business or discharge of professional duty, acknowledgements of receipt of money, goods, securities or property, documents used in commerce, or the date of a letter or other document usually dated, written or signed by that person;
  3. 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 that person to criminal prosecution or a suit for damages;
  4. when the statement gives the opinion of such person as to the existence of a public right, custom, or matter of public or general interest of which that person would likely have been aware, and the statement was made before any controversy arose;
  5. when the statement relates to the existence of a relationship by blood, marriage or adoption between persons and the maker had special means of knowledge, provided the statement was made before the question in dispute was raised;
  6. when the statement relates to the existence of a relationship by blood, marriage or adoption between deceased persons and is made in a will, deed, family pedigree, tombstone, family portrait or other customary family record before the question in dispute was raised;
  7. when the statement is contained in a deed, will or other document relating to a transaction specified in clause (a) of section 11;
  8. when the statement was made by a number of persons and expressed feelings or impressions relevant to the matter in question.

Key categories of relevant statements

  • Statements concerning cause of death or circumstances of the transaction resulting in death.
  • Statements made in the ordinary course of business or professional duty.
  • Statements against the maker's pecuniary, proprietary or legal interest.
  • Statements regarding public rights, customs or matters of general interest.
  • Statements concerning family relationships by blood, marriage or adoption.
  • Statements contained in family records, wills, deeds and similar documents.
  • Statements in documents relating to transactions covered by Section 11(a).
  • Collective expressions of feelings or impressions relevant to the matter in issue.

Illustrations under Section 26

The statutory illustrations explain the breadth of the provision. They include statements by a deceased person regarding the cause of death; entries in the diary of a deceased medical professional or solicitor made in the ordinary course of business; business letters about shipment or payment of rent; statements relating to marriage or parentage; declarations concerning a public road; market-price statements made in the ordinary course of business; and remarks by a crowd where their impressions are relevant.

Practical evidentiary point

Before a statement can be admitted under Section 26 on the basis that its maker is unavailable, the foundational fact showing that unavailability must itself be established where required. Section 141 of the BSA illustrates this principle by stating that where a statement is sought to be proved on the ground that its maker is dead, the death must first be proved by the party proposing to rely on the statement.

Related provisions

Section 26 should be read with the surrounding provisions on admissions, confessions and statements by persons who cannot be called as witnesses. The next provision, Section 27 BSA, deals with the relevancy of evidence given by a witness in an earlier judicial proceeding when that witness later becomes unavailable, subject to statutory conditions.

Official resources

For the authoritative text and commencement notification, refer to the official India Code and Ministry of Home Affairs resources listed in the sidebar.