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EVIDENCE LAW
HEARSAY EVIDENCE
LAW 160101154
Hearsay Evidence
TABLE OF CONTENTS
Introduction ..........................................................................................................................3
Bibliography ......................................................................................................................18
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Hearsay Evidence
RESEARCH METHODOLOGY
Research Methodology
The project is basically based on the doctrinal method of research as no field work is done
on this topic.
To do an in depth analysis of the concept of Hearsay evidence and the general rule assigned
to that. The main objective of this project is to ascertain the meaning and credibility of
Hearsay evidence. It is to ascertain that how much credibility can be given to the use of
hearsay evidence in proving or disproving any fact in issue, inspite of the general rule of
its inadmissibility.
Sources of Data
The whole project is made with the use of secondary source. The following secondary
sources of data have been used in the project-
1. Books
2. Websites
Mode of Citation
The researcher has followed a uniform mode of citation throughout the course of this
research paper.
Type of Study
For this topic, the researcher has opted for Descriptive and Explanatory type of study as in
this topic, the researcher is providing the descriptions of the existing facts.
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Hearsay Evidence
INTRODUCTION
Evidence includes everything that is used to determine or demonstrate
the truth of an assertion. Giving or procuring evidence is the process of using those things
that are either (a) presumed to be true, or (b) which were proved by evidence, to
demonstrate an assertion’s truth. Admissible evidence is that which a court receives and
considers for the purposes of deciding a particular case.
In any judicial proceeding, to make any fact admissible before the court of law,
either in the favour of any pre established fact or to establish any fact or in against of any
pre established fact, or to establish any contrary fact, the fact which are to be admissible
must be relevant to become admissible before the court of law. Thus, it is necessary to
know which facts can be taken as relevant facts and which are not. Relevancy of any fact
can be ascertained by bringing it within the purview of Sections 5 to 55 of the Indian
Evidence Act, 1872.
Hearsay evidence can be defined as ‘an assertion other than one made by a
person while giving oral evidence in the proceedings’ which becomes ‘inadmissible as
evidence of any fact asserted’. The admissibility of this kind of Indirect evidence are
excluded by the virtue of Sec 60 of the Indian Evidence Act, but as the history of Hearsay
evidence lies to the era of Common law, its exclusion being one of its major principles, so
exception to these principle are also provided by the common law.
Under Indian Evidence Act too, there are many notable rules which act as an
exception to the general principle of exclusion of Hearsay Evidences. For ex, the law of
Res Gestae, law of Dying Declaration, etc., incorporated in Sec 6 and Sec 32 of the Act
perform as hearsay evidence and are taken to be relevant and thus are admissible before
the court.
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Hearsay Evidence
From the various definitions quoted above it is clear that the term ‘hearsay’ is
used with reference to that which is written as well as that which is spoken, and, in its legal
sense, it denotes that kind of evidence which does not derive its value solely from the credit
to be given to the witness himself, but rests also in part on the competency of some other
person. For example, when the witness says that he himself did not hear the defamatory
words but another person told him about it, the credit for hearing the statement does not go
1
Heydon, J.D. & Cross, R, 2004, Cross on Evidence, 7 th edition, LexisNexis Butterworths Sydney, ch 16.
2 4
Definition given by Murphy in American Federal Rule on Evidence 801.
3
Stephen’s Digest of Law of Evidence.
4
Taylor’s Evidence, P. 570.
Hearsay Evidence
to the witness but to somebody else. Similarly, when the witness says that he did not see
the occurrence himself but somebody told him the credit of seeing the occurrence does not
go to witness but it goes to somebody else.
In Lim Yam Yong v. Lam Choon & Co., The Hon’ble Bombay High Court
adjudged “Hearsay Evidence which ought to have been rejected as irrelevant does not
become admissible as against a party merely because his council fails to take objection
when the evidence is tendered.” So finally we can assert that Hearsay Evidence is that
evidence which the witness has neither personally seen or heard, nor has he perceived
through his senses and has come to know about it through some third person. When a piece
of evidence is such that there is no prima facie assurance of its credibility, it would be most
dangerous to act upon it. Hearsay evidence being evidence of that type has therefore, to be
excluded whether or not the case in which its use comes in for question is governed by the
Evidence Act.
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Hearsay Evidence
In the case, J. D. Jain v. Management v. State Bank of India5, the accused was
a cashier in the state bank of India. One Kaushal withdrew Rs. 500 from his saving bank
account. When he came to take back his passbook he noticed that Rs. 1500 have been
debited from his account. He orally complained in presence of many person that he
submitted a withdrawal form of Rs. 500 only to the accused and not of Rs. 1500. In Inquiry
the accused confessed that he had made Rs. 1500 for Rs. 500, the entries were found to be
altered. The fact that person had made on oral complaint that Rs. 1000 were wrongly
debited to his account was proved by other evidence as Kaushal was not examined. It was
held that the evidence was not hit by the rule of ‘hearsay’.
In Kashi Nath v. Emperor6, the accused was tried for the rape committed on a
child of three and half years. The evidence of the Father, mother and sister to whom the
child complained was sought to be proved against the accused, since the child was not
produced as a witness, she being not competent. The evidence of the statements and
conduct by the child given by the father, mother and sister was held to be inadmissible on
the ground of Hearsay. If the object of the evidence is to prove the truth of the hearsay
statements, it is inadmissible, but if it is intended to prove the fact that such a statement
was made, it is admissible.
In another case, where the statement of prosecution witness No. 5 was that the
wife of the deceased has disclosed that her husband has been assaulted by the accused
caanot be relied upon, since the wife of the deceased died before she was examined, and as
such statement amounts to hearsay evidence.7
Thus, from these case laws, it is clear that hearsay evidences are excluded from
being admitted in a case as a general rule of common law which is followed in India. The
reasons for its exclusion are dealt further in this project work. It is pertinent to mention
here that this general rule of exclusion of Hearsay evidence is nowhere mentioned and is
entirely based on the historical view related to this.
5
AIR 1982 SC 673.
6
AIR 1942 Cal. 214. 6
7
Nanuram v. State, 2005 Cr. LJ 4586 (MP).
Hearsay Evidence
The origins of the hearsay rule can be traced back to the 13th Century where the
need to exclude hearsay was first recognised in the trial of Sir. Walter Raleigh 9. He was
found guilty of high treason on the basis of a testimony that someone had overheard
someone else say they heard Raleigh would slit the Kings throat.10 The disgrace of this trial
and its wrongful conviction led to a fast and hard rule against hearsay in England.
As the hearsay rule developed, problems arising as a result of its strict nature
revealed themselves which spurred widespread criticism. Sir Rupert Cross is said to have
once remarked that “he was working for a day when the rules of Evidence would be
abolished”. Since the time he made this remark, there has been a considerable relaxation
of the evidential constraints over the admissibility, use and evaluation of a number of types
of evidence across the common law world.11
8
Available at: Admissibility of Evidence Recorded | Law Teacher http://www.lawteacher.net/common-
7
law/essays/admissibility-of-evidence-recorded-law-essays.php#ixzz2QkHd3qbG.
9
Law Reform Commission Consultation Paper “Hearsay in Civil and Criminal proceedings” 60
-2010 p11
10
www.DrTomO’Connor.com.
11
Jackson John D. Hearsay: the sacred cow that won’t be slaughtered? 2 International Journal of Evidence
& Proof 1998 p166.
Hearsay Evidence
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Hearsay Evidence
Phipson12 points out, “no single principle can be assigned as having operated
to exclude hearsay generally or from any ascertainable data”. ‘Hearsay evidence’, as thus
described, is uniformally held in competent to establish many specific fact which, in its
nature is susceptible to bring proved by witnesses who can speak from their own
knowledge. That this species of testimony supposes something better, which might be
adduced in the particular case, is not the sole ground of its exclusion. Its extrinsic weakness,
its incompetency to satisfy the mind as to the existence of the fact, and the frauds which
may be practiced under its cover, combined to support the rule that the hearsay evidence is
totally inadmissible.
12
Phipson’s Evidence, 11th Edition, P. 277.
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Hearsay Evidence
something more that the testimony of one witness is necessary, in order to result in
conviction.
The greatly increased expense and the vexation which the adverse party must
incur in order to rebut or explain it, the vast consumption of public time, thereby
occasioned, the multiplication of the collateral issue for decision by the jury and, the danger
of losing sight of the main question and of the justice of the case if this sort of proof were
admitted, are consideration of too grave a character to be overlooked by the court or the
legislature, while deciding whether the Hearsay evidence can be included as a valid
evidence against accused or not.
10
Hearsay Evidence
The Rule of Best Evidence is a cardinal rule in the law of evidence which says
that the best available evidence should be brought before the court. The provisions of
sections 60, 64 and 91 are based on this rule. As per section 60, oral evidences must be
direct, that is to say if the fact to be proved is a fact which can be seen or which can be
heard, it must be proved by the evidence of a witness who says that he saw it, or he himself
heard it, etc. Section 64 lays down that documents must be proved by the primary evidence
except where secondary evidence is allowed by the Act. Section 9 lays down that when the
terms of a contract, grant or any other disposition of property have been reduced to the
form of writing, no proof of them can be given except the document itself, except the
secondary evidence when it was permissible by law.
The Apex Court in Kalyan Kumar Gogoi V Ashutosh Agnihotri, had provided
reasons why hearsay evidence is not received as relevant evidence are:
(1) The person giving such evidence does not feel any responsibility. The law
requires all evidence to be given under personal responsibility. i.e., every witness must give
his testimony, under such circumstances, as expose him to all the penalties of false hood.
(3) If permitted, gives ample scope for playing fraud by saying “someone told
me that...” It would be attaching importance to false rumour flying from one foul lip to
another. Thus statement of witnesses based on information received from others is
inadmissible.
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Hearsay Evidence
1. Res Gestae – statements made by persons who are not examined may be proved
through other persons who appear as witness and they amount to ‘original’ as
distinguished from ‘hearsay’ or derivative evidence, provided such statements
form part of the transaction in issue.
2. Admissions and Confessions – an extra judicial admission or a confession which
is sought to be proved through the testimony of a witness to whom such admission
or confession is made, is admissible as an exception.
3. Statements under Section 32 – statements made by the persons who cannot be
called as a witnesses because they are either dead, or cannot be found, or have
become incapable of giving evidence or their attendance cannot be procured
without an amount of unreasonable expense or delay in the opinion of the court,
are admissible as an exception to the hearsay rule.
4. Evidence given in the former proceedings – under section 33, a evidence given by
a witness in a formal judicial proceeding or before any person authorised by law
to take it, is relevant to prove the truth of the facts which it states in any subsequent
judicial proceeding or in later stage of the same judicial proceeding, provided the
witness is dead, etc. this is an exception to hearsay rule.
5. Statements in Public Documents – statements contained in public documents, such
as official or public books, registers or records, the Act of Parliament, foreign law
contained in book etc., can be proved by the production of the respective
documents and there is no necessity of producingthe person who drafted these
public documents.
But recital as to the contents of Public Documents would only amount to purely
hearsay evidence and not admissible in evidence unless the documents are produced
before the court. In a prosecution for murder, recital made in a map prepared by the
police indicating the place where the deceased is alleged to have been assaulted by
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Hearsay Evidence
the accused person was held to be hearsay evidence and therefore cannot be read as
evidence.13
6. Proviso I, Section 60 – this proviso to the general rule contained in the main
section is analogous to the exceptions made in section 32 of the Act must be read
with Section 45 of the Act.
7. Proviso II to Section 60 – according to the second proviso, the court may require
the production of any material thing for its inspection, if the oral evidence refers
to the existence of that material thing. Under section 165 of the Evidence Act a
judge may in order to discover or obtain proper proof of relevant facts, direct for
the production of any document or thing.
All these are exceptions to the general rule of exclusion of hearsay evidence to
be used as a valid evidence. Different legal systems have different sets of exceptions to the
common law rule against hearsay evidence. But every legal system essentially recognises
some of the basic exceptions like Res Gestae, Dying Declaration, etc. some of these
exceptions are elaborated here:
13
Girish Yadav v. State of M.P., 1996 CrLJ 2159 (SC).
14 13
Adrian Keane, ‘Modern Law of Evidence’ 8thed. Oxford at 350.
Hearsay Evidence
The five stage test is as follows; (1) Can the possibility of concoction or
distortion be disregarded. (2) If the event was so unusual or dramatic that it dominated the
thoughts of the victim causing aninstinctive reaction without the possibility of fabrication,
in conditions of approximate but notexact contemporaneity. (3) To be sufficiently
spontaneous that statement must be closely connected with the event causingit. (4) There
must be no special features making concoction or distortion likely. (5) There must be no
special features likely to result in error. eg. Intoxication.16
Section 6 of the Evidence Act is an exception to the aforesaid hearsay rule and
admits of certain carefully safeguarded and limited exceptions and makes the statement
admissible when such statements are proved to form a part of the res gestae, to form a
particular statement as a part of the same transaction or with the incident or soon thereafter,
so as to make it reasonably certain that the speaker is still under stress of excitement in
respect of the transaction in question.17
15
R.A Clark: Changing face of the rule against heasay in English law, Akron law review 1987-1988 at 71
16
R v. Andrews [1987] A.C. 281. 14
17
Vasa Chandrasekhar Raov. Ponna Satyanarayana, AIR 2000 SC 2138:(2000) 6 SCC 286: 2000 Cr LJ 3175.
18
,(1996) 6 SCC 241.
Hearsay Evidence
exception to the general rule that Hearsay Evidence is not admissible. The rationale in
making certain statement or fact admissible under section 6 of the Evidence Act is on
account of the spontaneity and immediacy of such statement or fact in relation to the fact
in issue. But it is necessary that such fact or statement must be a part of the same
transaction. In other words, such statement must have been made contemporaneous with
the acts, which constitute the offence, or at least immediately thereafter. But if there was
an interval, however slight it may be, which was sufficient enough for fabrication then the
statement is not part of res gestae."
The Supreme Court observed that a dying declaration made by a person who is
dead 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 his death comes in question is relevant
under section 32 of the Evidence Act and is admissible in evidence. Though dying
declaration is indirect evidence being a piece of hearsay, yet it is an exception to the rule
against admissibility ofHearsay Evidence. Indeed it is substantive evidence and like any
other substantive evidence requires no corroboration for forming basis of conviction of an
19
Tapinder Singh v. State of Punjab, (1971) 1 SCJ 751.
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Hearsay Evidence
accused. But then the question as to how much weight can be attached to dying declaration
is question of fact and has to be determined on the facts of each case. In the instant case
there is circumstantial evidence which corroborates the dying declaration viz. The
statement of the witnesses that they found the victim in her room where the smell of
kerosene was present, the statement of the doctor who conducted the post mortem after
four days of the accident that he noticed the smell of kerosene from the scalp of the
deceased, the statement of witnesses stating that the appellant delayed the opening of lock
on one pretext or the other and the statement of the appellant that she died of an accident
while igniting, the oven and that he had put water on her was belied from the evidence on
record as no sign of water was found in the kitchen and that the ash in the oven was found
intact. These facts the court observed lend assurance to the truth of the declaration of the
deceased.20
20
16
Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850: (1998) 4 SCC 517 .
Hearsay Evidence
CONCLUSION
The reason behind non admissibility is that the rule against hearsay has its basis
in the principle of orality according to which truth is best ascertained by the unrehearsed
answers on oath or affirmation of witnesses who have actually perceived the relevant
events and who are then subjected to cross-examination in the presence of the courts. A
hearsay statement is by definition not made before the court and, if the maker does not
testify, he cannot be cross-examined nor can his demeanour be observed or his credibility
tested. Where the hearsay statement narrated is oral, there is a chance that it may be altered
in the telling. Where it is made formally there is the danger that it will be tailored to the
requirements of the party making it. A further reason sometimes given for the rule against
hearsay is the possibility that a jury, where there is one, will be confused by a proliferation
of evidence of little value.
The hearsay rule has been part of the common law justice system for several
centuries. In its pure common law form is a far reaching rule with a severe constraining
effect on what evidence is admissible. The common law has developed some exceptions to
the rule against hearsay. These exceptions have become insufficient for the administration
of justice in the modernizing world. There have been many statutory exceptions which have
further eroded the rule against hearsay evidence.
Under Indian Evidence Act, there are many recognized exceptions of the
general rule against Hearsay evidence. The major ones are Rules of Res Gestae underlined
under Sec 6 of the Act and the rules of Dying Declaration underlined under Sec 32 of the
Act.
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Hearsay Evidence
BIBLIOGRAPHY
Referred Sites:
http://www.legalblog.in/2011/01/hearsay-evidence-law.html
http://www.ockadvocates.com/2013/02/admissibility-of-hearsay-evidence-and-
rule-against-hearsay/
http://www.legalindia.in/different-kinds-of-evidences-witnesses-under-the-indian-
evidence-act
http://www.lawteacher.net/common-law/essays/admissibility-of-evidence-
recorded-law-essays.php
Referred Books
Ratanlal & Dhirajlal, The Law of Evidence, 23rd enlarged edition, Reprint 2011,
Lexis Nexis Butterworths Wadhwa, Nagpur.
Sarkar, Sudipto, Law of Evidence, 16th Edition, Vol. 1, 2007, Wadhwa Nagpur.
Lal, Batuk, Law of Evidence, 19th Edition, 2013, Central Law Agency,
Allahabad.
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