This Article on Rule of Hearsay Evidence under Indian Evidence Act is written by Aditi Singh | Army Institute of Law, Mohali | 27th September 2020
Introduction
One of the most significant facets of a legal proceeding is the availability and admissibility of evidence or proof. Herein, evidence is a “material item or assertion of fact[1]” which is admissible in the Court of Law so as to establish or verify the validity of any specific purported fact which might be under inquiry or examination before the same. Therefore, Evidence Law is the part of the juridical climate which mandates the directives and proper applications—regulating the proof of facts in a litigation process.
Since its inception (wherein little to no distinction was made between civil and criminal matters or between fact and law[2] with the burden of proof lying on the accused to prove otherwise) this law has massively evolved over the period of time in the legal systems around the world, focusing majorly on admissibility and adequacy of said evidence. The Indian Evidence Act, 1872 (hereinafter referred to as ‘the IEA’) is the statute, in force, in India which encompasses the rules and regulations for proper administration of evidence in Indian cases and legal procedures.
Types of Evidence
The IEA—comprises of III parts with XI chapters—and mentions several different types of evidences which are: oral, documentary[3], primary[4], secondary[5], judicial, non-judicial, direct, indirect (or circumstantial) and hearsay evidence.[6]
Herein, Oral Evidence is referred to in S. 60 of the IEA wherein these evidences are directly seen/heard by the witness in their testimony and not through a medium. Primary Evidence is the most preferred form of evidence and permissible whereas secondary evidence is used; when primary evidence isn’t available.
Judicial and Non-Judicial evidences comprise of confessions with the slight exception of the presence of a magistrate in the former and the latter relates to an out-of-court confession. Direct and Circumstantial evidence on the other hand determines the establishment of a fact; and, a form of indirect evidence which cannot be termed as a definitive proof but a basic idea, respectively. Finally, Hearsay is another form of proof under the IEA. It is the most infirm evidence and doesn’t involve the witness’s individual knowledge or experience.
Hearsay Evidence
Definition
Comprising of two words, ‘hear’ and ‘say’, this term defines a testimony based on no personal communications but what a witness may have heard others say over an out-of-court conversation like second hand information. Hearsay has always been considered as an inferior form of evidence when compared with direct testimony by witnesses.
Furthermore, according to Lord Reid, “It is difficult to make any general statement about the law of hearsay which is entirely accurate”. It goes to show that there has always been a sense of ambiguity when it comes to the specifications of this rule. In a general sense, hearsay evidence means the statement provided by a person who in the particular case hasn’t witnessed the original situation or its undertakings, rather has heard its circumstances or happenings from some other third person[7].
Admissibility
Since there’s a definite downside of inaccuracies, misinformation and fabrication present in the testimony provided by the person as,
(i) the person giving such evidence doesn’t hold any sense of responsibility,
(ii) there’s also the possibility of dilution of the truth with each repetition and,
(iii) there’s ample scope for playing fraud under the cover of being heard from another person[8];
therefore, the common rule in regards to this form of evidence is that it’s not admissible in proof of a fact which has been states by a third person. Regardless, it still harbours several exceptions.
Hearsay in the Indian Legal Context
Hearsay under the Indian Evidence Act
The Apex Court in the case of, Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr.[9], while elaborating on the concept of hearsay, observed that, “The term hearsay is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person.”
However, it has also been held by the Privy Council and then reiterated in the case of Rabindar Nath Thakur v. Union of India & Ors.[10], by the Patna High Court that, “Evidence of a statement made to a witness by a person who is not himself called as witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.”
Furthermore, it is pertinent to note here that it would constitute as admissible when the establishment of the fact isn’t proposed to be done by the mere truth of the statement but by the evidence and the fact that it was made[11]. Hence, the term, ‘hearsay’ is not mentioned anywhere in the IEA so as to escape ambiguity and inaccuracy in the particular statute[12]. And this particular form of evidence is inadmissible under the Indian Statute; except a few exceptions defined in the IEA.
Exceptions to Hearsay under the Indian Evidence Act
It has been observed that, “the rule against the admission of hearsay evidence is fundamental”[13]. Furthermore, the Indian Evidence Act, under chapter IV regulating oral evidence, stipulates, “Oral evidence must, in all cases, whatever, be direct”[14].
Therefore it’s clear that the person contrary to hearsay must have personally seen or heard the fact in question. However, this cannot by any stretch of imagination, be extended to mean that direct evidence of hearsay evidence would be admissible as a circumstance to establish a fact[15] however there are a few cases which are the exceptions to this rule and admissible in a Court of law.
The main exceptions are as follows:
Res Gestae;
Admission and Confession;
Dying Declaration and;
Evidence given in formal proceedings;
Res Gestae
The Black Law Dictionary defines res gestae as, “things done.” Under Evidence law, words and statements regarding res gestae are admissible under the hearsay exception[16]. The IEA, under S. 6 defines res gestae as connected with the facts in issue as, “facts which form part of the same transaction” irrespective of occurrence[17] wherein the word ‘transaction’can be interpreted in several ways.
Furthermore, the Courts have also observed that; “the statement of law in section 6 of the Evidence Act is usually known as Res Gestae. The literal meaning of the word ’res’ is everything that may form an object of rights and includes an object, subject matter or status.”[18] In this scenario, once the statement is made, it may be further proved during the legal proceedings by another person appearing as a witness wherein the aforesaid statement is a part of the same transaction.
For instance, where the witness arrived at the scene of the crime on hearing firing; and saw the injured who conveyed the assailant’s identity therein was admissible under S. 6 since it was a part of the same transaction which in the instant case was the act of shooting[19].
Herein, it is noteworthy that res gestae as defined in S. 6 is further expounded and illustrated in sections 7, 8, 9 and 14 of the Act and hence should be read with them simultaneously[20]. This sections scope lies in its ambiguity.
Admission and Confession
Admissions and Confessions are defined under S. 17 – 23 and S. 24 – 30 respectively. Admission is a statement[21]which provides inference to any fact in issue or relevant fact[22].
Confession on the other had is the admittance by a person of their own guilt in a court of law. Unlike Admission, confession isn’t defines under the IEA. The provisions pertaining to the same i.e. from S. 24 – 30, define the different provisions regarding confessions like cases where they are irrelevant—caused by inducement, threat, or promise; or a police officer—confessions in police custody and others.
Herein when there’s an admission of liability or confession of guilt extra-judicially or out of court, the testimony may be proved though the person to whom such statement was made.
Dying Declaration
In the case of, Muthu Kutty and Anr. v. State by Inspector of Police, T.N.[23] the Apex Court held that, “The law regarding dying declaration is that it is an exception to the general rule against hearsay evidence elaborated in section 60 of the Evidence Act.”
There are some situations where people can’t be called to the court as a witness. These statements are mostly of deceased persons[24] given to any other person when it relates to cause of death. The circumstances in which such other person (to whom the declaration has been made) appears before court as a witness testifying as to what he heard, in such special circumstances hearsay may be declared as relevant.
Evidence given in formal proceedings
S. 33 of the IEA provides for the usage of statements given by a particular witness in former proceedings as evidence of the truth of the facts stated further, in subsequent proceedings in the same case, wherein the said victim has died or is unable to appear before court.
Other than the aforementioned there are some other specific exceptions to the rule of hearsay. S. 35 defines, “relevancy of entry in public record made in performance of duty”. Herein statements in public documents are relevant statements and though the person may not be alive their previously made ones, are admissible in Court. Furthermore, entries in books of accounts under S. 34 as well as opinions of experts provided under S. 45 – 51 are admissible as well.
Conclusion
The rule of hearsay regulates the drawing of evidential inferences[25]. The Apex Court in the case of State of Haryana v. Rattan Singh[26] held that, “there is no allergy to hearsay evidence in such enquiry provided it has reasonable nexus and credibility”. Even though the rule of hearsay is simple enough, it’s still a complicated at best once when it comes to legal processes.
And although not completely admissible or inadmissible mostly anywhere, it holds differentiated specifications in the legal systems around the world. It should be of prime importance that when deciding on these matters the courts need to take into consideration all the circumstances and facts specific to them.
Conclusively, since the law requires every piece of evidence to be given under person responsibility[27] i.e. a sense of accountability which would dismiss any chance of falsifying statements without liability, therefore such statements are inadmissible with the exception of special circumstances.
[1] Heinrich Nagel & Jerry Norton, Evidence, Encyclopaedia Britannica (Oct. 27, 2011), https://www.britannica.com/topic/evidence-law.
[2] Id.
[3] Indian Evidence Act § 3 (1872).
[4] Ibid § 62
[5] Id. § 63
[6] Shivam Singh, Different Kinds of Evidences & Witnesses Under the Indian Evidence Act, Legal Era (July 30, 2020, 6:38 AM), https://www.legaleraonline.com/articles/different-kinds-of-evidences-witnesses-under-the-indian-evidence-act.
[7] Dr. Caesar Roy, Hearsay Rule and Doctrine of Res Gestae — An Analytical study with reference to Indian Evidence Act, 1872, 4 JCIL 65, 66 (2018).
[8] Vepa P. Sarathi, Law of Evidence 18-19 (Abhinandan Malik ed., Eastern Book Company 2017) (1961).
[9] (2011) 2 SCC 532.
[10] (1998) 3 PLJR 495.
[11] Subramaniam v. Public Prosecutor, (1956) 1 WLR 965.
[12]The Legal Blog Team, Hearsay Evidence: The Law, The Legal Blog (Jan. 23, 2011, 11:09 PM), http://www.legalblog.in/2011/01/hearsay-evidence-law.html.
[13] Teper v. The Queen, [1952] A.C. 980.
[14] Indian Evidence Act § 60 (1872).
[15] Surender v. State, ILR (2009) VI DELHI 549.
[16] Bryan A. Garner, Black’s Law Dictionary 1335 (8th ed. 2008).
[17] Indian Evidence Act § 6 (1872).
[18] Babulal Choukhani v. Western Indian Theatres Ltd. & Ors., AIR 1957 Cal. 709.
[19] Sukhar v. State of Uttar Pradesh, AIR 1999 SC 3883.
[20] Id, at 7.
[21] “Oral or documentary or contained in electronic form”, Act 21 of 2001.
[22] Indian Evidence Act § 17 (1872).
[23] (2005) 9 SCC 113.
[24] Indian Evidence Act § 32(1) (1872).
[25] H. L. Ho, A Theory of Hearsay, 19 OJLS 403, 419 (1999).
[26] (1977) 2 SCC 491.
[27] Kalyan Kumar Gogoi, (2011) 2 SCC 532, Id.
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