HEARSAY EVIDENCE AND ITS ADMISSIBILITY UNDER THE INDIAN EVIDENCE ACT

This article is written by Khushboo Bharti of BALLB (Hons) of 2^nd Year of Institute of Law, Jiwaji University, Gwalior (M.P.), an intern under legal Vidhiya

Abstract

^[1]The ordinary definition of hearsay evidence which refers to out of court statements uttered in a trial with a view to proving the truth of the assertion made is one of the most problematic in legal practice owing to the fact that it is readily suspect and cannot be properly tested on cross examination. Hearsay evidence by consent of the Indian Evidence Act, 1872 is merely inadmissible which shows that the Indian law does not desire to accept the secondary form of evidence but only wishes to accept the primary form of evidence. This principle is provided for under section 60 of the Act under the rule that the evidence that is given orally should be real and should be based on what the person in evidence can personally see or hear. Nevertheless, the Act outlines several exceptions where the hearsay evidence can be allowed into the court. The exceptions of this rule narrated in Sections 32, 33, and 35 explain that despite being hearsay, some statements are reliable for justice. For instance, section 32 enables the inclusion of statements provided by a deceased individual or a person who cannot be located and such a statement regards the cause of death, matters of public concern or any other circumstances. The rationale is based on the fact that statements caused by circumstances, which guarantee their admissibility, may be essential for the cases’ proper consideration. Section 33 allows for the previous trial evidence in case the witness is not available to come and testify hence preventing loss of useful and valuable evidence. Section 35 relates to entries in publications required by law to be made under oath, and are therefore assumed to be accurate since they are made by officials. These exceptions apply to particular situations in order to meet the requirement of the direct proof with reference to the opportunities to obtain relevant information. As evidence given by a witness which is out of the reach of his/ her own direct knowledge or contains the information from another’s mind hearsay evidence has always been considered inadmissible in judicial proceeding somewhat handles a qualitative and diverse picture in the legal umbrella of India. The laws dealing with evidence procedures in the Indian courts are regulated by the Indian Evidence Act 1872 and this article is in an attempt to decipher the provisions regarding the hearsay evidence under this legislation. However, the following article attempts to discuss the principles of hearsay evidence under the Indian law and the exceptions to it, as well as their judicial treatment. In the light of practical advancements and real-life experiences of legal practitioners, legislative provisions facing problems in handling hearsay evidence are portrayed by way of discussing key cases.

Keywords^[2]

Hearsay evidence, Indian Evidence Act, admissibility of hearsay evidence, judicial and legislative interpretation, present legal position, exceptions, jurisprudence.

Introduction^[3]

Hearsay evidence can be defined specifically and generally where specifically it is defined as statement made by a third party and offered to prove the truth of what it asserts while broadly it means a statement made outside a court being used to prove the matter stated in it is true. However, depending on the Indian Evidence Act of 1872 hearsay evidence’s weakness as well as lack of opportunity for cross examination to the original utterance maker or maker of the statement, it is normally inadmissible. The rationale for excluding hearsay lies in a common focus on insisting that evidence presented in court has to be cross-examinable, and therefore maintaining the fidelity of the legal system. Nevertheless, hearsay definition is not very clear and often is related to other types of evidence, which is why its usage in the process of trial is both complex and arguable. According to Indian Evidence Act, there are rules regarding different situations in which some types of hearsay are regarded as allowed, if they meet specific conditions. This balance is quite complex with one seeking to exclude hearsay while at the same time making provisions for cases where they would be deemed necessary for the sake of justice.

As to the definition of hearsay evidence, this notion has been rather contentious and discussed in many legal systems all around the world. Thus, the Indian Evidence Act of 1872 has significant relevance in the Indian criminal as well as civil justice system to determine and control the allowable hearsay evidence. The Act is the one that lays down the rules of evidence to be followed in Indian courts and, in general, hearsay evidence is not admissible because of its lack of credibility and the difficulties encountered in cross-examination. However, understanding the complications and realities of legal procedures, which cannot usually be geared toward real-life scenarios, the Act offers several scenarios where the hearsay evidence can be allowed in the trial. In this introduction, basics of hearsay evidence shall be defined along with reasons that define why it is generally inadmissible along with statutory and judicial measures that permit its admittance in certain cases in Indian legal system. Hearsay evidence is the evidence which is offered extrajudicial in other words any statement which is made out of the court and then it is offered in the court in order to prove the fact. The fundamental rationale on the exclusion of the hearsay evidence has been concern of relevancy and reliability of the evidence offered in a trial. The main problem with hearsay is that it is not given by a live witness who can be subjected to cross-examination, which is one of the strategies by which the admissibility of the evidence is tested. Redirecting a witness enables the party that called that witness to make additional questions, which can develop further on the original line of questioning. Without this process, it becomes really hard to determine the truthfulness of the hearsay evidence that is being presented hence leading to it being a lesser form of evidence. Section 60 of Indian Evidence Act best spells out this principle with an adiuem, an obligation that oral evidence has to be direct. This means that a witness must need to depose the facts that he or she has seen or heard directly and not the writing or voice of any other person. This requirement makes sure that the evidence that is to be produced in court are original and can be taken through grilling by the cross examination. This is due to the idea that the Act of Parliament’s aim of excluding such evidence is to preserve the sanctity as well as the quality of the judicial system in the United Kingdom.

Hearsay and the Indian Evidence Act

^[4]Unlike the Common Law countries, the Indian Evidence Act does not define hearsay but excludes it through other sections especially section 60 of the act which states that all evidence must be direct evidence. That is why any oral evidence that is placed before the court has to be given by a person who directly witnessed or apprehended the event or fact in issue. The reason is that direct evidence can be scrutinized and cross examined in a court hence making it credible. Some of the circumstances under the Act where the hearsay rule is excluded are under sections 32, 33, and 35 among others. These exceptions admit times where hearsay might have enough credibility, to be allowed at the court. For example, Section 32 provides for the reception of statements made by the deceased or persons who cannot be found which, if made, were in respect of the circumstances of the death, against the pecuniary or proprietary interest of the deceased or in the case of slander, where the slander concerned a relevant matter mentioned in the section. The exceptions in question stem from the assumption that some hearsay is reliable, and is crucial to rendering justice.

Judicial Interpretation of Hearsay Evidence

^[5]The hearsay rule and its exceptions have been implemented extensively in India and judicial decisions have shaped the evolution of this rule. Some important leading decisions that impacted the area of hearsay evidence include how to approach or consider hearsay while preserving the efficiency of the legal procedures. For instance, in the case of Teper v. R, the arguments of the Privy Council hinged on two principles: there is danger of the introduction of un-testimonial evidence in form of hearsay which may lead to the prejudicing of the position of the court. In this regard, it was the Indian Supreme Court decision in Kalyan Kumar Gogoi v. Ashutosh Agnihotri where the court concentrated on announcing more situations that should be considered as the hearsay rule exception for circumstances where such exclusion will bias the evidence in the trial. The interpretation of the hearsay rule that the court gives tends to be practical, meaning that the court understands that, occasionally, mechanics of justice may be hampered by strict rule.

Exceptions to the Hearsays Rule^[6]

Several exceptions to the hearsay rule have been carved under the Indian Evidence Act though each of them has its explanation and terms. For instance, Section 32 allows out of court statements of dead or otherwise ^[7]unavailable similar to that of the two litigants under discussion herein, if such statements were in relation to circumstances like the cause of death or any issues of public concern. This exception is based on the belief a statement negligently made is reliable on the grounds that the nature of the occasion in connection to which the statement became hearsay makes it credible. Section 33 also provides for the cases that evidence belongs to previous judicial proceedings and the witness giving such evidence is unavailable now. This provision makes it possible not to lose significant testimonies simply due to the impossibility of the witness’s participation, always assuming that the opposing party had a chance to question the witness during the previous hearings. Another source of significant exception is provided in Section 35 of COCA with relation to entries made in public records by servants in the course of their duties. Such entries are considered to be fairly reliable owing to the fact that the records are often official and the public servant has a responsibility to keep proper records.

Difficulties and Controversies^[8]

Though there is rule against hearsay and there is provision for the hearsay exceptions in the United States and other countries across the world, the process is not without some difficulties. A powerful criticism arising from it is that they can be used to open the door and therefore allow dubious hearsay evidence into the court. Criminal justice cases are critical areas of worry in this regard because errors cost a lot in case of sending an innocent person to jail. Furthermore, the exceptions also deserve to be controlled through an active exercise of the judges’ jurisdiction to admit only trustworthy hearsay evidence. This puts a large amount of pressure on the judges as they are the ones that need to evaluate the situation and reliability of the hearsay statement. This makes the assessment questionnaire quite subjective and leads to the inconsistencies in judicial decisions making the whole process quite complex. Comparing the Indian Approach with Other Jurisdictions In becoming familiar with hearsay evidence generally, it is effective to evaluate how Indian approach compares with other countries’ approach and laws. For example, the Federal Rules of Evidence lay down the specifics of hearsay and its exceptions in the United States of America. The Federal Rules of Evidence have largely similar list of exceptions to the Indian Evidence Act under Rule 803, Rule 804 deals with the hearsay exceptions when the declarant is unavailable. The approach used in the United States leans more to a logical-legal particularized system whereby the exceptions are categorized and defined in a way that offers the courts clearer directions. This is quite different from the Indian structure in which they rely so much in the interpretation of the law and in the discretions of the judiciary. Similarly, comparing these frameworks, one can draw conclusions on Indians potentialities for the reform of the hearsay law issues, for making this issue more clear and consistent.

Brief Analysis of the Indian Evidence Act concerning Hearsay Evidence together with Pleading and Essential Case Laws

1. Another decision mounted by the Privy Council is the case of Teper v. R at^[9] the Appellate Committee that delivered the judgement in 1952 in AC 480 Excluding hearsay evidence is based on this principle . In this case through the judgments of the court it also noted this reason of hearsay evidence that to allow such evidence would be extremely encourage the presentation of uncorroborated and often misleading statements. The court observed that it should be a fundamental principle that every piece of evidence admitted in a trial should be capable of cross examination having regard to the danger of hearsay in compromising the credibility of the evidence and the process of trial. This case is normally used to remind people that the only situations where hearsay evidence is acceptable are those that have been excepted for in the law.

2.Kalyan Kumar Gogoi v. Ashutosh Agnihotri (2011) 2 SCC 532. In this case the Supreme Court of India was^[10] immense as it recognized that in order to avoid a wrong being committed hearsay rule should not be rigidly followed. According to the court, hearsay evidence is regarded as inadmissible; however, certain situations should not allow exclusion of such evidence as this will lead to the ordeal of a miscarriage of justice. The court used a realistic approach in applying the hearsay rule given the fact that a literal application would sometimes prove to be a hindrance in the dispensation of justice.

 3. Dying declaration falls under Section 32 of the Indian Evidence Act 1872 This particular case was of State of Haryana v. Ram Singh 2002 2 SCC 426^[11] .The Supreme Court confirmed this as a rule of evidence wherein a dying declaration came to be regarded as outside of the hearsay rule where the statement was made by a person who was either on the point of death and the statement was made when the declarant was in this state and therefore could not be expected to be lying. In this regard, the court stated that the credibility of a dying declaration turns on the circumstances under which the statement was made and its corroboration.

4. Subramaniam v. Public Prosecutor (1956) 1 WLR 965^[12] is a Privy Council case, which is frequently cited in Indian law concerning the hearsay rule. Thus, the case made a clear difference issue between hearsay evidence performed as a fact to support the tendentitious statement and the one which was employed to demonstrate that the given statement was made at all. The court made the ruling on the grounds that where the statements are irrelevant to the facts in the proceedings but offered to show that they were made they cannot be termed hearsay and thus could be admitted.

5. Pakala Narayana Swami v. Emperor (1939) PC 47.^[13]In this regard, the Privy Council went further explaining the provision of Section 32 holding that it means the statement could be oral as well and that statement made becomes vouched for when the statement made is in relation to the cause of the death of the declarant. This case helped explain that the concept of hearsay is to be given a wider meaning when contravening the provision of Section 32 of the law to allow relevant and reliable statements to be admitted despite being hearsay.

6. Laxmi v. Om Prakash (2001) 6 SCC 118^[14] .In this case, it became necessary to determine whether a person under the threat of death could make admissible statement. Thus, the Supreme Court stated that information given by a person with respect to the cause of the death is highly trustworthy and, therefore, should be allowed as a piece of evidence. The court underlined that such statements are reliable as they are made in the situations when the declarant is hardly capable of distorting the truth.

 7. Pl vs: Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116^[15] In this case, the Supreme Court elaborated the Pro law dealing with dying declaration. The accomplishment of the dying declarations was categorically defined by the court with regard to the admissibility and reliability of the testimony by the deceased, which conveyed that the dying declaration must be made voluntarily and must raise full confidence. The court again affirmed that the principle of corroboration is not mandatory to support the testimony of an identification witness, nonetheless, it urged that where it’s attainable, corroborative evidences should be sought.

8. Bhagwan Singh v. State of Haryana (1976) 1 SCC 389^[16] .The Supreme Court in the above case has stressed the operation of the judicial discretion which operates in the case of allowing hearsay evidence on the anvil of the exceptions. The court further emphasized that every matter must be considered in the light of its special features and the general admissibility of the evidence offered.

9. [34] Ratnavel Chettiar v S Ranganathan Chettiar AIR 1972 SC 1222^[17] .This case gets its importance from the discussion made on the applicability of Section 35 of Indian Evidence Act regarding admission of entries in public records. The Supreme Court ruled that the entries made by the public servants under the operation of their duties are considered accurate and credible and hence can be received as the evidence though they being the hearsay.

10. The evidence from the previous judicial proceeding is considered under Section 33 and in the case of Prem Chand v. Union of India (1981) 2 SCC 447^[18], the court made its findings on the same subject. The Supreme Court affirmed the use of prior statements by the witness in trial if the witness is physically unable to attend trial and become a cross-examination by the party that had an opportunity for cross-examination in the earlier trial. This ruling helped to stick to the admissibility of crucial evidence while adhering to fairness in the course of a trial.

Conclusion^[19]

Hearsay evidence and its admissibility under Indian Evidence Act are set under the consistent principles, exceptions and judicial appreciation. Thus, there is the general rule of excluding hearsay statements for the sake of preserving the admissible evidence of the judicial procedure, however, a number of exceptions acknowledge the situation when strictness should be reduced. The Indian courts, therefore, have had the primary responsibility to fashion out these rules primarily to meet the requirements of business while keeping the door open to reliable evidence freely accessible. As for the treatment of hearsay evidence under the Indian Evidence Act of 1872, it is still a rather delicate topic that has its justified rationale behind its application while taking into consideration the peculiarities of common legal practices. The basic rule of hearsay has long been that such evidence is inadmissible because it is clearly unreliable – it has been given at one remove so as to be impossible to cross examine. ’ But the Indian Evidence Act realizes that rigidity is sometimes undesirable and there are several situations in which hearsay evidence is permissible in the higher cause of justice. Hearsay evidence in its common usage contains statements made outside the trial processes which are tendered for the truth of the averment. Thus, the main problem of hearsay is that being inadmissible for cross-examination, its credibility cannot be reviewed by the court. This principle is reflected in Section 60 of Indian Evidence Act which in essence states that the oral evidence must be direct. This requirement also ensures that the evidence given in court is first-hand and not a second-hand hearsay account hence enhancing the efficiency of cross-examinations hence fairness in the judicial system. However, the Act outlines several ways that hearsay is allowed because very often it is the only vital and accurate proof that is sufficient for fair trial. There is a list of circumstances under which hearsay evidence is allowed in New Zealand as provided for in Section 32, 33, and 35 of the Act. For instance, Section 32 concerns with declarations of a person who has died or cannot be examined, insofar as the declaration concerns the circumstances of the death of the person or other circumstance specified. This exception has the basis on the fact that the statements made under such circumstances are presumed to be reliable enough hence can be produced in court. Section 33 is very useful in allowing evidence which has been given in former judicial proceedings to be received if the witness is out of reach of the court, so that important testimony is not deprived of its chance to be used. Section 35 deals with entries in registers of public offices made by public officer in the discharge of his duty and being more reliable because they are official records.

References

1. Admissibility of Hearsay Evidence in India https://thelegalquorum.com/admissibility-of-hearsay-evidence-in-india/#:~:text=The%20fundamental%20principle%20of%20the,of%20hearsay%20evidence%20is%20questionable.visited on 26/07/2024
2. Hearsay Evidence under Indian Evidence Act, 1872: Definition, Admissibility, Exceptions https://lawctopus.com/clatalogue/clat-pg/hearsay-evidence-definition-admissibility-exceptions/ visited on 26/07/2024
3. What Is Hearsay Evidence Under the Indian Evidence Act and Its Exceptions https://www.writinglaw.com/hearsay-evidence/visited on 26/07/2024
4. Hearsay Evidence And Its Exception, Comparative Analysis With Other Legal Systems https://www.legalserviceindia.com/legal/article-15695-hearsay-evidence-and-its-exception-comparative-analysis-with-other-legal-systems.html#google_vignette visited on 26/07/2024
5. The Rule Against Hearsay Chapter 1 the Present Law https://www.lawreform.ie/_fileupload/consultation%20papers/wpHearsay.html visited on 26/07/2024
6. Kalyan Kumar Gogoi V. Ashutosh Agnihotri And Anr. (2011) SC 760 https://www.pahujalawacademy.com/kalyan-kumar-gogoi-v-ashutosh-agnihotri-and-anr-2011-sc-760 visited on 26/07/2024
7. State Of Haryana v. Ram Singh And Ors. Punjab & Haryana High Court https://www.casemine.com/judgement/in/56098f54e4b014971138eefb visited on 26/07/2024
8. Subramaniam v. Public Prosecutor Judicial Committee of the Privy Council
   1 W.L.R. 965 (1956) https://www.quimbee.com/cases/subramaniam-v-public-prosecutor visited on 26/07/2024
9. Pakala Narayana Swami v King Emperor, [1939] 1 MLJ 59 https://lawbhoomi.com/pakala-narayana-swami-v-king-emperor/#:~:text=Pakala%20Narayana%20Swami%20v%20Emperor,the%20High%20Court%20of%20Pana. visited on 26/07/2024
10. Laxmi v Om Prakash https://indiankanoon.org/doc/1600445/#:~:text=The%20law%20is%20well%20settled,form%20the%20basis%20of%20conviction.
11. Indian kanoon Pl vs: Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 https://indiankanoon.org/doc/1505859/ visited on 26/07/2024
12. Bhagwan Singh v. State of Haryana (1976) 1 SCC 389 https://indiankanoon.org/doc/1027045/ visited on 26/07/2024
13. Ratnavel Chettiar v S Ranganathan Chettiar AIR 1972 SC 1222 https://indiankanoon.org/doc/1468438/ visited on 26/07/2024
14. Prem Chand v. Union of India (1981) 2 SCC 447 https://indiankanoon.org/doc/840202/ visited on 26/07/2024
15. The Role of Hearsay in Evidence Act: Exploring its Impact on Legal Hearings https://juriscentre.com/2024/02/14/the-role-of-hearsay-in-evidence-act-exploring-its-impact-on-legal-hearings/ visited on 26/07/2024

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^[1] Admissibility of Hearsay Evidence in India https://thelegalquorum.com/admissibility-of-hearsay-evidence-in-india/#:~:text=The%20fundamental%20principle%20of%20the,of%20hearsay%20evidence%20is%20questionable.visited on 26/07/2024

^[2] Hearsay Evidence under Indian Evidence Act, 1872: Definition, Admissibility, Exceptions https://lawctopus.com/clatalogue/clat-pg/hearsay-evidence-definition-admissibility-exceptions/ visited on 26/07/2024

^[3] Ibid

^[4] What Is Hearsay Evidence Under the Indian Evidence Act and Its Exceptions https://www.writinglaw.com/hearsay-evidence/ visited on 26/07/2024

^[5] Hearsay Evidence And Its Exception, Comparative Analysis With Other Legal Systems https://www.legalserviceindia.com/legal/article-15695-hearsay-evidence-and-its-exception-comparative-analysis-with-other-legal-systems.html#google_vignette visited on 26/07/2024

^[6] Supra Note 2

^[7] Supra Note 4

^[8] Supra Note 2

^[9] The Rule Against Hearsay Chapter 1 the Present Law https://www.lawreform.ie/_fileupload/consultation%20papers/wpHearsay.htm visited on 26/07/2024

^[10] Kalyan Kumar Gogoi V. Ashutosh Agnihotri And Anr. (2011) SC 760

https://www.pahujalawacademy.com/kalyan-kumar-gogoi-v-ashutosh-agnihotri-and-anr-2011-sc-760 visited on 26/07/2024

^[11] State Of Haryana v. Ram Singh And Ors. Punjab & Haryana High Court https://www.casemine.com/judgement/in/56098f54e4b014971138eefb visited on 26/07/2024

^[12] Subramaniam v. Public Prosecutor Judicial Committee of the Privy Council 1 W.L.R. 965 (1956) https://www.quimbee.com/cases/subramaniam-v-public-prosecutor visited on 26/07/2024

^[13] Pakala Narayana Swami v King Emperor, [1939] 1 MLJ 59https://lawbhoomi.com/pakala-narayana-swami-v-king-emperor/#:~:text=Pakala%20Narayana%20Swami%20v%20Emperor,the%20High%20Court%20of%20Pana. visited on 26/07/2024

^[14] Laxmi v Om Prakash https://indiankanoon.org/doc/1600445/#:~:text=The%20law%20is%20well%20settled,form%20the%20basis%20of%20conviction.

^[15] Indian Kanoon Pl vs. Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 https://indiankanoon.org/doc/1505859/ visited on 26/07/2024

^[16] Bhagwan Singh v. State of Haryana (1976) 1 SCC 389 https://indiankanoon.org/doc/1027045/ visited on 26/07/2024

^[17] Ratnavel Chettiar v S Ranganathan Chettiar AIR 1972 SC 1222 https://indiankanoon.org/doc/1468438/visited on 26/07/2024

^[18] Prem Chand v. Union of India (1981) 2 SCC 447 https://indiankanoon.org/doc/840202/ visited on 26/07/2024

^[19]The Role of Hearsay in Evidence Act: Exploring its Impact on Legal Hearings https://juriscentre.com/2024/02/14/the-role-of-hearsay-in-evidence-act-exploring-its-impact-on-legal-hearings/ visited on 26/07/2024

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