Mst. SHABNAM v. Mohd. SHAF AIR 2004 Raj. 303

FACTS OF THE CASE:

The appellant/plaintiff Mst. Shabnam was married to Mohd. Shafiq on 02-11-1991. She was married by her father because she was a minor at the time of Nikah aged 14 years. She filed a suit for dissolution of marriage under Section 2(vii) of Dissolution of Muslim Marriages Act, 1939 on the ground that she was being married by her father before she attained the age of 15 years which was repudiated by her before attaining the age of eighteen years. She disclosed her date of birth as 15-3-1978. It was further averred that the marriage of the plaintiff was never consummated with the defendant.
The defendants denied that at the time of Nikah she (Shabnam) was 14 years i.e., on 2-11-1991. It was said that she was the age of 16 years (dated 15-3-1975) according to pro forma filled by Shahar Qazi Shri Abid Ali. But, thereafter the father of the plaintiff managed to change the date of birth by producing false affidavits before the District Education Officer. It was also contended that the marriage was consummated between them after Nikah and the defendants have filed for the restoration of conjugal rights before Bikaner Family Court.
This is the plaintiff’s appeal under Section 19 of the Family Courts Act against the judgment dated 27- 7-1996 whereby the Judge, Family Court, Jodhpur dismissed the appellant’s petition for dissolution of marriage.

ISSUES FRAMED:

1. Whether the marriage of the petitioner was solemnized before she attained 15 years of age and she repudiated the same before attaining her 18 years of age?
2. Whether the petitioner ever discharged her conjugal duties after her marriage?

RULE OF LAW:

• Section 2 of Dissolution of Muslim Marriage Act, 1939
• The Evidence Act, 1872

OBSERVATION:

Section 2 of the Dissolution of Muslim Marriage Act, 1939 provides the grounds of divorce of Muslim Marriages. Sub-section (vii) reads as follows:
“(vii) that she, having been given in marriage by her father or another guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated;”

In Muslim law, Marriage is considered as in the nature of the Contract. In the case of a minor, in Muslim law, married before attaining the age of puberty i.e., 15 years can always repudiate or ratify the contract made by her father during the minority after the attainment of puberty. The minor on attaining puberty may apply to the Court for dissolution of marriage on the ground as mentioned under Section 2 of the Act of 1939 but she has to establish that the marriage is not consummated. The Kerala High Court has held that even after there was any cohabitation before she had attained puberty, it would not affect her right to repudiate the marriage which right she gets only after attaining puberty. The cohabitation by a minor girl would not be sufficient to put an end to her right to repudiate the marriage after attaining puberty.
Further, the plaintiff produced many certificates regarding her date of birth (15-3-1978) i.e., secondary school certificate, date of the birth certificate issued by Municipal Council, marriage certificate, etc.
Defendant has produced as many as 50 documents. All the documents are nothing but certificates obtained from different schools to show the date of birth of the plaintiff.
The court observed that there is also no reason to disbelieve the birth certificate issued by the Municipal Council. The certificate issued by the Municipal Council with respect to the date of birth of a person is a public document under the provisions of Sections 35 and 77 of the Evidence Act. “A certificate of birth of a person is evidence and conclusive evidence of his age unless disproved by the evidence of the witness of the party denying the correctness of it.”
The opinion of the court was that Birth and Death certificate are statutory certificates and birth certificate issued by Municipal Council is presumed to be correct unless any contravention arises. As regards the issue of the consummation of the marriage, the court observed that the best witness available is the plaintiff herself. She has stated in terms that marriage was never consummated. Even if the version of the defendant that after the marriage on 2-11-1991, the plaintiff stayed with him and the marriage was consummated, is accepted the plaintiff’s date of birth being held to be 15-3- 1978, on that date she was a minor. She attained the age of puberty on 15-3-1993. There is no evidence worth the name to show that marriage was consummated after she attained the age of puberty. The court has the opinion that the consent to intercourse by a girl who had not attained puberty is not of any consequence.

JUDGEMENT:

The High Court confirms that the evidence produced on the record fully satisfies the essential ingredient of sub-section (vii) of Section 2 of Dissolution of Muslim Marriage Act, 1939. The Order of Family Court, Jodhpur set aside and marriage between plaintiff and defendant is dissolved.

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INTRODUCTION

Evidence in law can be described as a material fact presented before the court in order to support all the contentions and submissions made during a proceeding. Thus, the evidence is something that helps to prove the parties their alleged fact. In a court of law, a judge’s decision in a certain matter will always depend on the legitimate evidence presented in order to ascertain the truth.
Under the Indian Evidence Act, 1872, Sections 61 to 65 deals with the procedure to prove the contents of the documents. These contents of a document can be proved through primary evidence or by secondary evidence. Section 62 of the Act explains when the original document itself is presented in court it is called the primary evidence and section 63 explains if the original document in itself is not presented in the Court the party can provide secondary evidence by fulfilling the conditions under section 65 of the Act.

ELECTRONIC EVIDENCE UNDER INDIAN EVIDENCE ACT

With the increasing contribution of electronic devices in our lives, digital evidence can prove to be an essential part of verifying the truth in the given fact. After the formation of the Information Technology Act, 2000, Section 65A and 65B has been added in the Indian Evidence Act which laid down special provisions as to evidence relating to an electronic record. According to IT Act 2000, ‘electronic record’ means data, record, image, or sound stored, received, or sent in an electronic form. Section 65B of the Indian Evidence Act talks about the procedure regarding the admissibility of electronic records and sub-section 4 of Section 65B talks about the condition of obtaining a certificate before presenting such electronic records. These conditions had led to conflicting opinions among the judgments of the Apex Court.
Section 65B says- “Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.” But further, sub-section (4) of the same demands for a certificate if it is desired to give a statement of evidence by virtue of this section. Thus, the requirement of a certificate under section 65B arose a legal conundrum which was finally resolved by the Honorable Supreme Court in a landmark judgment of 3 Judge Bench comprising Justice R.F. Nariman, S. Ravindra Bhat and V. Ramasubramanian in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, 2020 SCC Online SC 571.

CERTIFICATE UNDER SECTION 65B IS A PRE-REQUISITE CONDITION

In the above-given case, the appellant filed an appeal, against the judgment of the High Court before the Apex Court. The High Court accepted an important piece of evidence depend upon the petitioners in challenging the election, which was a video recording on a CD (Compact Disc). However, this electronic evidence was produced without the submission of a certificate under Section 65B (4) of the Evidence Act. The Officers who produced the CD were unable to get the certificate even after their persistent efforts. Further, the High Court held that the testimonial evidence during the cross-examination of the Officer satisfies the requirement of Section65B (4) of the Act as the oral evidence. Thus, the appellant in a Special Leave Petition before the Supreme Court challenged the decision of the High Court on the grounds that the electronic record (CD) which was presented as important evidence was admitted without the certificate under Section 65B (4) of the Evidence Act and the oral evidence admitted in place of written certificate is in contravention with the Evidence Act. The Appellant cited the Supreme Court case of Anvar P.V. v. P.K. Basheer & Ors, 2014 10 SCC 473 which contradicts the judgment of the present case.
The respondent in its contention in the above case presented that the Officials who produced the CDs were unable to submit the certificate despite their appropriate efforts. The oral evidence of the witness which was reduced to writing and later signed by the witness suffices the need of Section 65B (4) of the Evidence Act. The Respondent cited the case of Shafhi Mohammad vs. State of Himachal Pradesh, 2018 2 SCC 801 which held that the impossibility or difficulty to produce a certificate shall not hinder the interest of justice. It also contended that the case of Anvar P.V v. P.K. Basheer is only applicable in the case where the party is in a position to procure the certificate.
The intervenors in the appeal also contended that Section65B of the Evidence Act does not specify the stage at which the certificate under Section 65B (4) of the Act must be produced, hence the same may be produced at any stage of the proceedings.

The main issues raised here were

1. Whether the requirement of a certificate as per Section 65B (4) is a pre-requisite before producing secondary evidence as a document/primary evidence?
2. At what stage of the proceedings the certificate can be produced before the court?

The Supreme Court observed the conflicting views of the judgments delivered in Anvar’s case and Shafti Mohammad’s case and finally cleared the air in the present case. The Court answered the issues raised and held that it is mandatory to produce a certificate as per Section 65B (4) before producing secondary evidence as upheld in Anvar’s case. In absence of a certificate, the electronic evidence is inadmissible in Court. The Apex Court whilst reconsidering the Shafti Mohammad’s case overruled its judgment and referred to the following Latin maxim Generalia specialibus non derogant meaning, a special law will always prevail over the general law.
The Supreme Court also held that the certificate should be produced at the time of filing the document. However, if it could not be produced at that stage, it may be permitted to be produced later provided that such late production of the certificate should not prejudice the rights of the accused.

IMPORTANCE OF THE CERTIFICATE UNDER SECTION 65B OF EVIDENCE ACT

As per the judgment in the case of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, The Apex Court clarified certain points –
• The Court quietus the legal conundrum related to the requirement of a certificate to admit electronic evidence under the Indian Evidence Act, 1872 and held that it is condition precedent before admitting any electronic evidence.
• The Court overruled the judgment of the Shafti Mohammad case which said that production of a certificate can be set aside if there is impossibility or difficulty to produce the same and upheld the judgment given in the case of Anvar case.
• Electronic records may be called original or primary evidence if they are stored in the device itself and the copies made therefrom, of the said evidence will be called secondary evidence. Thus, the production of the certificate under Section 65B (4) is not necessary in the former case as the original record is itself produced. This can be done if the party by producing a laptop, tablet, or mobile phone can prove that the concerned device on which, the information is stored, is owned and operated by the party himself. However, the same cannot be done if the concerned device cannot be physically brought in the court for instance a computer, and therefore, to prove the contents of this device a certificate to prove its authenticity is necessary, under section 65B (1) read with Section 65B (4). The same is clarified in the judgment of the Anvar case which reads as- “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” may more appropriately be read without the words “under Section 62 of the Evidence Act”.
• In the case where it is difficult to obtain a document, the Court can, by various statutory provisions such as- Section 165 of the Act which empowers a judge to order the production of any document or records, in order to obtain proof of relevant facts or under Order XVI of the Civil Procedure Code, 1908 which deals with ‘Summoning and Attendance of witnesses’ or under sections 91 and 349 of the Code of Criminal Procedure,1973.
• Further, when the application of the certificate is already requested, to the concerned authority, but the authority does not comply with the request, the party may ask the Court to direct the said authority to produce the certificate. However, if the party has explored all the ways in the law of producing the evidence, but still unable to procure the certificate, the court may excuse the requirement.
• The Court also cleared out that section65B (1) clarifies that admissibility of electronic records must be proved by following the conditions mentioned under section 65B as it is a special provision and section 62 to 65 which deals with non-electronic records are irrelevant as a special law will always prevail over the general law.

CONCLUSION

Electronic records, in this digital time, is a reliable source of evidence, but at the same time, it is more prone to tampering, alteration, substitution, or elimination. Therefore, the Courts are adamant about the submission of a certificate under Section 65B in order to avoid failure of justice and to maintain legitimacy. Thus, the certificate submitted must accompany the electronic record when presented as evidence as upheld in the Arjun Panditrao Khotkar case and if these guidelines are implemented efficiently, they will improve the investigation and evidence proceedings.

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Kuldip Singh and Anr vs the State of Punjab

Facts:

Paramjit Kaur, wife of the appellant was found hanging at her in-law’s place. Kuldip Singh, who is the husband of the deceased along with his parents, was charged for the offense of dowry death and put under rigorous imprisonment for 10 years. The medical reports revealed that the death of the deceased was caused by the intake of aluminum phosphide. The complainant, Naranjan Das, father of the deceased, had filed an appeal for a criminal revision, aggrieved by the decision of which the respondents’ moved to the High Court seeking relief.

Issues:

Whether the accused are guilty of dowry death and if the criminal revision appeal of the respondent should be considered?

Legal provisions:

● Section 304B, IPC – Dowry Death
● Section 498A, IPC -Husband or relative of husband of a woman subjecting her to cruelty
● Section 313, CrPc -Causing miscarriage without woman’s consent
● Section 113B, The Indian Evidence Act,1872 -Presumption as to dowry death

Appellant’s Contention:

It was contented by the appellant that his wife was going through depression and submitted that he had earlier demanded Rs.1,000/- and Rs.5,000/- when he was leaving for abroad, but he had returned all at once. After returning from abroad he never approached his father-in-law for money. The deceased was never subjected to any cruelty or maltreatment by him or his parents; he claimed to have cordial relations with the family of the deceased. The Trial court had overlooked the circumstances and provisions arising in dowry death.

Respondent’s Contention:

The complainant stated that his daughter had complained of the mistreatment by her in-laws on account of getting an insufficient dowry, which is enough to prove that her in-laws and her husband are responsible for the incident.

Observations of the court:

It was observed by the court that a case that had been filed around 2 years before the marriage seems to be coinciding with the present case and therefore, this case is being treated under dowry death. However, there was no harassment or cruelty soon before the passing of the deceased. It is the duty of the investigator to draw observations impartially; he should have carefully examined the statement proposed by Naranjan Das. There is also no evidence to prove that the accused had instigated her to take such steps. All the ingredients do not lie in this case.

Judgment:

The court was of the view that a suicide case was simply illustrated as dowry death. It is important to know that the death of a wife within 7 years of marriage doesn’t always amount to dowry death, it can occur due to other reasons as well. Hence, the accused are acquitted.

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JAGMAIL SINGH V. KARAMJIT SINGH

INTRODUCTION:

The above case is an appeal made to the Hon’ble Supreme Court against the judgment of the High Court of Punjab and Haryana. The case revolves around a Will dated 24/01/1989. The appellants preferred a suit for declaration that they were the real owners of a piece of land which has been transferred in favor of one Baldev Singh and Shamsher Singh on the basis of a forged Will made by them dated 20/03/1988. During the pendency of the aforesaid suit, an application under Section 65/66 of the Evidence Act was moved by the appellants seeking permission to prove a copy of Will dated 24/01/1989 by way of secondary evidence. The aforesaid application was allowed by the Trial Court, the respondents thus made an appeal in the High Court, and the High Court after due proceedings dismissed the application. Not satisfied with the judgment of the High Court, the appellants filed a revision petition in the High Court under the ambit of Article 227 of the Indian Constitution but finding no merit in the same, the High Court again upheld the decision that the pre-requisite condition for admission of secondary evidence, i.e. the existence of Will remained unestablished and hence they gave the judgment in favor of the respondents.

ISSUE:

Should the appellants be allowed to admit secondary evidence for proving their case in the absence of the primary evidence i.e. the original will?

JUDGEMENT:

The appellants contended that there is a provision under Section 65 of the Indian Evidence Act, 1872 which provides the grounds on the basis of which the secondary evidence can be produced before the Court of Law and by further serving a notice to the concerned party under Section 66 of the Indian Evidence Act, 1872 the party still not produces the primary evidence the party concerned is entitled to prove their case using the secondary evidence. Since in the present case both the conditions of Section 65 and 66 of the Indian Evidence Act are met, the High Court is at fault in giving a particular judgment, and hence the appeal is finally made to the Hon’ble Supreme Court.
The Supreme Court while deciding the matter took into consideration the witnesses through which it can be established that there existed the necessary foundations on the basis of which the appellants have a right to give secondary evidence and not giving them this opportunity is a fault on the part of the High Court. The Supreme Court was of the opinion that the High Court committed a grave error of law without properly evaluating the evidence and holding that the pre-requisite condition i.e., the existence of Will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence.
Thus, the Court came to the final conclusion that the appellants would be entitled to lead secondary evidence in respect of the Will in question. But, at the same time, the mere admission of secondary evidence doesn’t attest to its authenticity, truthfulness, or genuineness and hence it will have to be established during the course of the trial in accordance with the law.

CONCLUSION:

This case pertains to the grounds on which the secondary evidence can be permitted in the Court of Law in the absence of the primary evidence. The provisions for which are provided under Section 65 of the Indian Evidence Act, 1872. Section 65 of the Act establishes the fact that secondary evidence may be given with regard to existence, condition, or the contents of a document when the original evidence is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished. If a particular party is able to prove the reason for non-presenting of primary evidence on any of the grounds under Section 65 and fulfills the procedural requirements under Section 66 of the Indian Evidence Act, the party can submit the secondary evidence in the Court of Law, the same is the situation in the present case and hence the appellants were permitted to produce secondary evidence.

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V. Kalyanaswamy (D) by Lrs. and Anrs. Vs L. Bakthavatsalam (2020)

Abstract

On 17th July 2020, the Supreme Court passed a judgment for a family dispute that rose in 1955. The SC dismissed all the appeals against the judgment given by the Madras High court in 2007. It also stated that the coparcener has no right to execute a will with respect to Joint Family Property prior to the Hindu Succession Act. The court held that the Will dated 10-05-1955 executed by Late Mr. Rangaswami Naidu was lawful and valid.

Facts of the Case

In this case, Late R. Venkituswamy had two sons, Late Lakshmaiah Naidu and Late Ragaswami Naidu. Rangaswami was married to R. Krishnammal but they didn’t have any children, however, Lakshmaiah had four sons. Both the brothers constituted a Joint Hindu family business. But due to an illness, Rangaswami executed a will in which he bequeathed his share in the Joint Hindu Family property and self- acquired properties in favor of this wife R.Krishnammal. The dispute arose when Rangaswamy’s widow filed a case claiming the title of the aforesaid share of properties and recovery of mesne profits from the defendants (sons of Laksmaiah) who were in possession of the property. The Magistrate under section 145 of the Criminal Code of Procedure gave possession to the defendants. Later a series of cases were filed, which resulted in a compromise decree in 1958. However, the dispute resurfaced when R.Alagiriswamy Naidu and V. Kalyanaswamy filed a suit against the compromise decree challenging the validity of the will on the grounds that the will was executed under coercion, undue influence, and fraud by the Respondent. He also challenged that any will executed by a coparcener of his undivided interest in the Joint Hindu Family Property is illegal and invalid.

Judgment

The Trial Court faced a predicament regarding the authenticity of the will made by Rangaswamy Naidu. Although the trial court held that the will was invalid and unlawful the First appellate Court found it to be authentic. Later when an appeal was filed in the Supreme Court it disagreed with the decision made by the High Court regarding the validity of the will but agreed with the verdict of the High court to be the endmost conclusion based on other aspects of the case. Hence the SC pronounced the judgment dismissing all the appeals.

Rationale of the court

The Court decided the following observation about the validity of the will made by the testator herein the issue of the case:
• The will was an unprivileged will under Sec.63 of the Indian Succession Act 1925. Sec 63 deals with proving a document by a way of secondary evidence.
• In order to test the authenticity of the will one of the attested witnesses named in the will have to prove that the will has been duly executed by the testator in presence of at least two witnesses and that the other witnesses had also attested to the will (Sec.68 of Evidence Act 1872)
• Se 69 of Evidence Act has to be applied if the witnesses mentioned in the will have died, have become insane, etc. Sec71 provides that if a witness doesn’t recollect the execution of the will then some other evidenced has to be used.
• In this particular case the Appellants failed to prove that there was coercion, undue influence, or fraud.

Case Analysis

• The court decided on basis of these provisions that the testator had clearly mentioned in his will all the required details of the properties that would be bequeathed to his wife and the manner in which she has to use and dispose off the properties. Further, as the Hindu Succession Act,1956 was not enacted, Hindus were allowed to leave his joint family property along with his self acquired property to another person. Therefore the apex court dismissed all the appeals made by the Appellants.
• The decision made by the court was justifiable and fair. Appellants didn’t have any proper evidence for the claims they made regarding the validity of the testamentary document i.e the will made by Late Rangaswamy. It was held that the effect of the death of Rangaswami Naidu being before the Hindu Succession Act came into force to be that it would deprive persons of rights available in respect of a Hindu who dies intestate after the Act came into force.

Conclusion

This case has proven to be a landmark case regarding a coparcener’s right to execute the will and regarding a women’s right over her husband’s testamentary. The case has come to a halt after 65 long years by dismissing all the appeals of the claims made by the appellants against the decision of the Madras High Court.

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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 (8^th 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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