Exceptions to the Rule of Hearsay Evidence in India

Ashwin Pandey is a third-year student pursuing his BA. LLB from the West Bengal National University of Juridical Sciences, Kolkata.

Introduction

Section 3 of the Indian Evidence Act defines evidence as to all such statements that are permitted by the court or are required to be made before it by a witness in relation to a matter that is being inquired upon. These are known as oral evidence.[i] Apart from this, evidence also refers to documents that include electronic records, and these are termed documentary evidence.[ii]

Oral evidence is looked at in greater detail under Section 60 of the Indian Evidence Act which states that the oral evidence that is produced needs to be direct, that is to say, “If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds”[iii]

As we can see, as per this section there is no scope for the courts to accept hearsay evidence.

What is Hearsay Evidence?

Hearsay evidence refers to a testimony that is provided by a witness and is not based on any personal communication. It could be something that the witness overheard, or was told about from a third party, making it second-hand information.[iv] It is a very weak form of evidence since it is neither based on the experience of the witness nor their personal knowledge.

Usually, hearsay evidence is not admissible before the courts, this is due to the fact that the person who is providing such evidence bears no personal responsibility towards the factual accuracy of the statement, and there is plenty of scope for the truth to get diluted in such a statement.[v] The court, in the case of Rabindra Nath Thakur v. UOI referred to the judgment in Subramaniam v. Public Prosecutor and stated that “Evidence of a statement made to a witness by a person who is not himself called as a 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. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”[vi][vii]

So, while as a general rule, the courts do not rely on hearsay evidence, there are some exceptions.

Exceptions to the Rule of Hearsay Evidence

While direct evidence is always considered to be more reliable than hearsay evidence, there are some exceptional circumstances in which the courts could allow hearsay evidence under the Indian Evidence Act.

The main circumstances in which hearsay evidence is admissible include Res Gestae, Admissions and confessions, dying declarations, and evidence is given in prior hearings. Each of these exceptions will be looked at in this section.

Res Gestae

The principle of Res Gestae is covered under Section 6 of the Indian Evidence Act. It states that “Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.”[viii] Thus, in order for a fact to be shown as a part of res gestae must be linked to the facts in the issue but should not be the facts in the issue themselves.

Section 6 creates an exception to the general rules of evidence since it allows hearsay evidence to be admissible before the courts so long as it forms a part of the same transaction of the act and is contemporaneous with no time lag in which fabrication could take place.[ix]

The same was also upheld in the case of Pratap Singh[x] when the court referred to the judgment in the case of Chhotka V. State[xi] and reiterated the view that “the requirement of Sec. 6 is that the statement must have been made contemporaneously with the act or immediately after it and not at such an interval of time as to make it a narrative of past events or to allow time for fabrication.”

Further, in the case of Bhaskaran v. State of Kerala, the courts held that “While no doubt the spontaneity of the statement is the guarantee of the truth, the reasons for its admissibility under Section 6 is that it is a part of the transaction and not merely because it is spontaneous. The statement is relevant only if it is that of a person who has seen the actual occurrence and who uttered it simultaneously with the incident or so soon thereafter as to make it reasonably certain that the speaker is still under the stress of the excitement caused by his having seen the incident.”[xii]

Some other illustrations of what may be brought under the ambit of Section 6 include:

- Hearing the cry of an injured person

- Hearing the cry of a witness who saw a murder happen

- Hearing a person cry for help[xiii]

Dying Declaration

A dying declaration is defined under Section 32(1) of the Indian Evidence Act as a statement made by a person as to the circumstances or the cause of their death, which becomes relevant when the cause of death of the person is in question in the case.[xiv]

While a dying declaration should normally be recorded by a magistrate, it was held by the Delhi High Court that if the declaration could be corroborated and was clear then even if it were to be recorded by a police officer it could still be placed before the court.[xv]

A dying declaration represents a situation where a person cannot be called into court to testify as a witness, in these situations, the statements made by the deceased person to another party can be produced before the court. The dying declaration has thus been held to be an exception to the rule of hearsay evidence.[xvi]

Admissions and confessions

Admissions are covered between Sections 17 and 23 of the Indian Evidence Act.[xvii] Admission refers to when a person voluntarily acknowledges the existence of a fact or a fact in issue, this statement could be made in either oral or documentary form.[xviii]

Confessions on the other hand are covered between sections 24 and 30 of the Indian Evidence Act and refer to a situation when a person admits to their guilt before a court of law.[xix] It is the direct admission of the facts of a case and could be made in written form or orally.[xx]

In the judgment of the Supreme Court in the case State Of Maharashtra vs Kamal Ahmed Mohd. Vakil Ansari, it was held by the court that “Admissions and confessions are exceptions to the “hearsay” rule. The Evidence Act places them in the province of relevance, presumably on the ground, that they being declarations against the interest of the person making them, they are in all probability true. The probative value of an admission or a confession does not depend upon its communication to another.”[xxi]

Statements made in previous hearings

Section 33 of the Indian Evidence Act states that “Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable”[xxii]

Thus, the statement given by a witness in a former proceeding can be used in subsequent proceedings of the same case if the witness is dead or is not able to appear before the court.

Furthermore, Section 35 of the Act talks about the relevancy of entries that were made in the public records in the performance of a duty.[xxiii] Under this section, the statements made in public documents can be brought before a court even if the person who made the statements may not be alive.

Conclusion

The main point of any evidence given before a court in a case is to allow the court to pass the most accurate judgment possible and ensure that justice is served. While hearsay evidence is admittedly not the strongest form of evidence, if it nonetheless possesses a reasonable nexus and credibility[xxiv] then it can still be used by the courts and it still does have some value.

REFERENCES

[i] The Indian Evidence Act, No. 1 of 1872, §3.

[ii] Tewari, S., 2021. What is evidence and different kind of evidences under Indian Evidence Act - iPleaders. [online] iPleaders. Available at: <https://blog.ipleaders.in/central-conceptions-law-evidence/> [Accessed 22 December 2021].

[iii] The Indian Evidence Act, No. 1 of 1872, §60.

[iv] Singh, A., 2021. Rule of Hearsay under Indian Evidence Act - LexForti Legal Journal. [online] LexForti. Available at: <https://lexforti.com/legal-news/rule-of-hearsay-under-indian-evidence-act/#Definition> [Accessed 22 December 2021].

[v] Bhatt, S., 2021. Admissibility of Hearsay Evidence under the Indian Evidence Act, 1872 - Lawblog4u. [online] Lawblog4u. Available at: <https://lawblog4u.in/admissibility-of-hearsay-evidence-under-the-indian-evidence-act-1872/> [Accessed 22 December 2021].

[vi] Rabindra Nath Thakur v. Union of India, 1998 SCC OnLine Pat 580

[vii] Subramaniam v. Public Prosecutor, (1956) 1 WLR 965.

[viii] The Indian Evidence Act, No. 1 of 1872, §6.

[ix] Bhatt, supra note v.

[x] Pratapsingh v. State of Madhya Pradesh, 1970 SCC OnLine MP 67

[xi] Chhotka v. State, 1958 SCC OnLine Cal 4

[xii] Bhaskaran vs State Of Kerala 1985 CriLJ 1711.

[xiii] Rai, D., 2021. Doctrine of Res Gestae and Section 6 of the Indian Evidence Act. [online] iPleaders. Available at: <https://blog.ipleaders.in/doctrine-of-res-gestae/> [Accessed 25 December 2021].

[xiv] The Indian Evidence Act, No. 1 of 1872, §32(1).

[xv] Ram Singh vs State (Delhi Admn.) 1995 CriLJ 3838

[xvi] Muthu Kutty and Anr. v. State by Inspector of Police, T.N. (2005) 9 SCC 113.

[xvii] Mali, S., 2021. Confessions under the Indian Evidence Act - iPleaders. [online] iPleaders. Available at: <https://blog.ipleaders.in/confessions-under-the-indian-evidence-act/#Meaning_of_Admission> [Accessed 25 December 2021].

[xviii] The Indian Evidence Act, No. 1 of 1872, §3.

[xix] Singh, supra note iv.

[xx] Mali, supra note xvii.

[xxi] State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari, (2013) 12 SCC 17

[xxii] The Indian Evidence Act, No. 1 of 1872, §33.

[xxiii] The Indian Evidence Act, No. 1 of 1872, §35.

[xxiv] State of Haryana v. Rattan Singh (1977) 2 SCC 491.

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