Introduction
Evidence is the lifeblood of any judicial proceeding. The aim of law is not merely settling disputes but to do so on a basis of reliable, admissible, and relevant information. In Indian legal practice, hearsay evidence is one species of evidence that often brings its admissibility into question. The general rule is that such hearsay is to be taken out of consideration, with some well-recognized exceptions, namely, that it is allowed.
This paper attempts to provide an exhaustive and original study of the meaning, rationale, and exceptions for hearsay evidence, with the backing of statutes, judicial pronouncements, and comparative perspectives.
Understanding Hearsay Evidence
Essentially, hearsay means second-hand information: a witness testifies to a fact based on what another person told him, rather than from his own knowledge or perception.
Under what is called Section 60 of the Indian Evidence Act, 1872, the oral evidence is required to be direct in nature, which means that the witness should testify concerning the facts which he has not seen, heard, or perceived himself. The hearsay rule thus maintains its reliability and fairness by requiring that parties be allowed to test the credibility of witnesses through cross-examination.
For example, if person A says, “Person B told me that the accident occurred at 5 p.m.,” this would be hearsay because A did not actually see the accident. The original speaker, B, is not present for cross-examination.
Rationale for Excluding Hearsay
The exclusion of hearsay is based on certain basic principles of justice.
1. Lack of Cross-Examination: The person who actually made the statement is not present in court to be questioned.
2. Risk of Inaccuracy: With each communicant that information passes through, the chance for distortion increases.
3. Possibility of Fabrication: When not immediately put to the test for truth, it is easier to make up stories or exaggerate.
The Supreme Court in State of Gujarat v. Ram Prakash P. Anand (1970) observed that hearsay.
Exceptions to Hearsay Evidence
Although the rule in general excludes hearsay, it is accepted by law that there are some cases where such evidence has to be admitted either due to the unavailability of direct evidence or where the circumstances ensure a degree of credibility. Such exceptions are specifically covered in the Indian Evidence Act and have been judicially moulded.
1. Dying Declarations (Section 32(1))
One of the most widely recognized exceptions, the rule of a dying declaration, is based on the maxim nemo moriturus praesumitur mentiri — no one dies with a lie on his lips.
A dying declaration is a statement by an individual about the cause or conditions of his death when he thinks that death is unavoidable. Statements such as these are permissible, although the declarant cannot be cross-examined.
Illustration: If a stabbing victim says before death, “X stabbed me with a knife,” the statement is admissible.
In Pakala Narayana Swami v. Emperor (AIR 1939 PC 47), the Privy Council made it clear that the statement should directly pertain to the cause of death or the circumstances thereof. Indian courts have adhered to this position uniformly, with the Supreme Court in Khushal Rao v. State of Bombay (AIR 1958 SC 22) upholding that a voluntary and truthful dying declaration can be the sole basis for conviction.
2. Declarations of Persons Who Cannot Be Summoned as Witnesses (Section 32(2–7))
The general provision extends to statements of persons who have since died, cannot be found, have become incapable of giving evidence, or are beyond India and cannot be produced before the court without unreasonable delay or expense.
These statements are admissible if they concern:
– Course of business or professional obligation,
– Family and wills,
– Public or general right or usage.
These sub-sections acknowledge the necessity, in fact, sometimes the individual with first-hand information is never able to appear personally as a witness, but their written statement will be reliable.
3. Entries Made in the Regular Course of Business (Section 34)
Data documented in books of account or public records within the ordinary conduct of business are admissible even in the absence of the author. The rationale is that these records are kept systematically and are less subject to fabrication in hindsight.
For instance, bank ledgers, audited accounts, and hospital admission records are regularly admitted to establish some facts without calling the author of each entry as a witness.
4. Public Records and Certified Copies (Sections 74 and 78)
Public records, like government notices, birth and death registers, and land revenue accounts, are evidence under these sections. Here, the correctness of the official act is presumed by law because public officers are expected to do their work adequately.
Therefore, a certified copy of a land record can be produced before the court without calling the original maker of the entry as a witness.
5. Res Gestae — Statements Forming Part of the Same Transaction (Section 6)
The principle of res gestae allows certain statements to be admitted even though they are technically hearsay, provided they were made contemporaneously with or immediately after the incident, leaving no time for fabrication.
For instance, someone who shouts “Help, I am being robbed!” in the act of robbery is part of the transaction and can be admitted.
In Gentela Vijayavardhan Rao v. State of Andhra Pradesh (1996), it was laid emphasis on by the Supreme Court that the statement should be such an integral part of the fact in question that it is part of the same incident.
6. Expert Opinions as Identified in Authoritative Works (Proviso to Section 60)
Where direct evidence of an expert is not present, statements in authoritative works can be used by other witnesses. For example, a medical doctor providing testimony can use a recognized medical textbook to substantiate his evidence.
The basis for this is that some works are accepted as dependable everywhere within a particular profession or discipline.
7. Admissions and Confessions (Sections 17–21, 24–30)
An admission is when someone acknowledges a fact that goes against their own interests in a case. A confession, on the other hand, is a specific type of admission in criminal law where the accused openly admits their guilt. Both of these are seen as exceptions to hearsay because they’re made voluntarily by the person, and the law assumes that people don’t make such statements lightly. However, according to Sections 24–26, confessions that are obtained through coercion, inducement, or those made to a police officer (with some exceptions) can’t be used in court.
Practical Implications
In Indian Trials, in criminal trials, exceptions to hearsay, like dying declarations and admissions, can be crucial, often making the difference between a conviction and an acquittal, especially when other witnesses become hostile or aren’t available. In civil trials, exceptions such as business records and public documents help speed things up by eliminating unnecessary formal proof when the document’s reliability is already established. With the rise of technology, electronic records have also been included in the hearsay exceptions framework through Sections 65A and 65B of the Evidence Act. Courts have started accepting emails, WhatsApp messages, and CCTV footage, provided they meet strict certification requirements, effectively bridging the gap between traditional evidence law and today’s communication methods.
Comparative Note with Other Jurisdictions
The Indian hearsay rule is rooted in English common law but is applied in a more restrictive manner.
– United Kingdom: The Criminal Justice Act 2003 expanded the admissibility of hearsay when witnesses are unavailable or when circumstances ensure reliability.
– United States: The Federal Rules of Evidence outline over 20 specific hearsay exceptions, including “present sense impressions” and “excited utterances,” which broadly align with res gestae.
While Indian law tends to be conservative, there’s a possibility that we might see broader statutory provisions in the future as courts adapt to the rapid pace of digital communication.
Conclusion:
Hearsay evidence holds a tricky spot in Indian law. It’s usually kept out because it’s seen as unreliable, but there are times when it can be accepted if the situation calls for it. There are exceptions like dying declarations, statements from people who can’t be present, business records, public documents, res gestae, expert writings, admissions, and confessions. These exceptions help ensure that justice isn’t hindered by strict rules.
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