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Hearsay Evidence
Hearsay Evidence
Hearsay Evidence
A Project On
Hearsay evidence
ACKNOWLEDGEMENT
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Hearsay Evidence
TABLE OF CONTENTS
Research Methodology........................................................................................................ 3
Introduction..........................................................................................................................4
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 to the witness but to somebody else. Similarly, when the witness
1
Heydon, J.D. & Cross, R, 2004, Cross on Evidence, 7th edition, LexisNexis Butterworths Sydney, ch 16.
2
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.
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Hearsay Evidence
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.
7
Nanuram v. State, 2005 Cr. LJ 4586 (MP).
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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-
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.
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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
in which 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.
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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
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Hearsay Evidence
been assaulted by 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
Adrian Keane, ‘Modern Law of Evidence’ 8thed. Oxford at 350.
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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
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.
17
Vasa Chandrasekhar Raov. Ponna Satyanarayana, AIR 2000 SC 2138:(2000) 6 SCC 286: 2000 Cr LJ
3175.
18
,(1996) 6 SCC 241.
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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 accused. But then the question as to how much weight can be attached to
19
Tapinder Singh v. State of Punjab, (1971) 1 SCJ 751.
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Hearsay Evidence
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
Ram Bihari Yadav v. State of Bihar, AIR 1998 SC 1850: (1998) 4 SCC 517.
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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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