Evidence

1. Hearsay Evidence and its Exceptions

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. 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. 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
Definition of Hearsay Evidence
Hearsay evidence is typically understood as a statement made by a person not called as a
witness, which is offered in court to prove the truth of the matter asserted in that statement. In
simpler terms, it involves the use of statements made by someone who is not testifying in
court to prove the facts stated in those statements.
Admissibility of Hearsay Evidence
The general rule under the Indian Evidence Act is that any evidence that is hearsay is not
admissible. Section 60 of the Indian Evidence Act specifically addresses this issue. It states
that oral evidence in the form of hearsay, i.e., a statement made by someone other than the
witness who is testifying, is not ordinarily admissible. The reason behind this rule is to ensure
that evidence presented in court is reliable, trustworthy, and subject to cross-examination.

Exceptions to the Hearsay Rule

While the Indian Evidence Act largely excludes any evidence that is hearsay in nature, it
recognizes certain exceptions where such evidence may be admitted. These exceptions are
based on the principle that hearsay evidence may be considered reliable in certain
circumstances. Some notable exceptions include:
Dying Declarations (Section 32): One of the most significant exceptions to the hearsay rule
in India is the admission of dying declarations. A statement made by a person who is about to
die, under the belief of impending death, is admissible as evidence. The rationale is that a
person in such a condition has no motive to lie.
Statement of a Person Who is Dead (Section 32): Statements made by a person who is dead
can be admitted if they relate to the cause of death or any of the circumstances of the
transaction that resulted in the person’s death.
 Statement Against Interest (Section 32): Statements made by a person against their own
interest are admissible. The idea is that people generally do not make statements that would
harm their interests unless they are true.
Statements in Documents (Section 32): Statements in documents such as wills, deeds, and
agreements are admissible as evidence if they are relevant to the matter in question. This is
known as the “doctrine of admission against interest.”
Statement in the Course of Business (Section 32): Statements made by a person in the
ordinary course of business, and in particular, in any book of account or other record, are
admissible.
Public Documents (Sections 74-75): Public documents, which are maintained by a public
officer or are admissible under law, are exceptions to the hearsay rule. These documents
include government records, official publications, and certified copies of public documents.
Res Gestae (Section 6): Statements that are part of the res gestae, meaning they are so closely
connected to a transaction that they form part of it, are admissible. The statements must be
made contemporaneously with the transaction and describe or explain it.
Sukhar v. State of Uttar Pradesh– In this case, the witness arrived at the scene of the crime
on hearing firing and saw the injured who conveyed the identity of the murder was admissible
under S. 6 since it was a part of the same transaction which was the act of shooting.

Admission and Confession

Admissions and Confessions are provided under S. 17 – 23 and S. 24 – 30

respectively. Admissions are statements that provide inference to any fact in an issue.
Confession isn’t defined under the IEA but the different provisions regarding confessions
are stated like cases where they are irrelevant.

—caused by inducement, threat, or promise;

—a police officer;

—confessions in police custody and others.

Courts at times allow admissions and confession to be evidence even if hearsay as the
fact that the witness would say something that is against his or her own interest gives
validity to the otherwise hearsay statement.
2. Primary and secondary evidence and when secondary evidence is admissible

Evidence can be broadly classified evidence into two categories:

1. Oral evidence; and

2. Documentary evidence.
As per the language of Section 3 of the Indian Evidence Act, 1872, “Evidence”
means and includes–

1. All statements which the court permits or requires to be made before it

by witnesses in relation to matters of fact under inquiry, such
statements are called Oral Evidence; and
2. All documents including electronic records produced for the inspection of
the Court, such documents are called Documentary Evidence.

Section 62. Primary evidence.

Primary evidence means the document itself produced for the inspection of the
Court.

Explanation 1. --Where a document is executed in several parts, each part is

primary evidence of the document.

Where a document is executed in counterpart, each counterpart being executed

by one or some of the parties only, each counterpart is primary evidence as
against the parties executing it.

Explanation 2. -- Where a number of documents are all made by one uniform

process, as in the case of printing, lithography or photography, each is primary
evidence of the contents of the rest; but, where they are all copies of a common
original, they are not primary evidence of the contents of the original.

A bare reading of Section 63 of the IEA, 1872, secondary evidence means and
includes:

1. Certified copies under the provisions of Section 76 of the Indian

Evidence Act, 1872;
2. Copies of the original while ensuring accuracy in such copying, which is
to say that a copy which has been transcribed from the original is
considered as secondary evidence and is admissible in the court of law;
3. Copies produced from or compared with the original, which means that
the copy so produced must be compared with the original to be called
 as secondary evidence if not compared then it fails to be a secondary
evidence;
4. Counterparts of documents as against the party/parties who had not
executed them;
5. Oral accounts of the contents of a document given by the person who
has himself seen the document must be closely examined before relying
on it.
Section 65 of the Act enumerates the situations/circumstances wherein
secondary evidence is admissible in place of primary evidence. These are as
follows:

1. In case where the originals are in possession of :

1. a person against whom the said document is sought to proved;
or
2. a person who is not reachable; or
3. a person who is legally obligated to produce such document
but fails to produce the same even though a notice
under Section 66 of Evidence Act has been served upon him;
2. In case where the person against whom the said document was to be
proved, admits in writing the existence, condition or contents of the
original;
3. In the case where the original document has either been destroyed or
lost, or when the party that offers to produce evidence fails to do so
within a reasonable time, due to reasons others than their own neglect
or default;
4. In cases where the original/primary evidence is immovable, for
instance, it is a caricature or inscription (as defined under Section 3 of
Indian Evidence Act) then in such circumstances secondary evidence
can be admitted;
5. In case where the original document is a public document and falls
within the definition of Section 74, then certified copy of such
documents can be tendered;
6. In cases where the original document is of such nature that the
Evidence Act itself permits certified copy of the same;
7. In cases where numerous documents are to be produced which are not
convenient for the Court to examine; or the fact to be proved is the
general result of the entire set of documents.
In situations (1), (3), and (4), any secondary evidence proving the contents of
the document is admissible. Furthermore, in case (2), only written admission can
be tendered. In cases (5) and (6), only certified copies of the original document
are admissible as secondary evidence. Lastly, in case (7), evidence can be given
by any person who has examined all the documents, who is an expert in
examining such documents.
S.NO. PRIMARY EVIDENCE SECONDARY EVIDENCE

Section 62 of the Evidence Section 63 of the Evidence Act defines

1.
Act defines primary evidence. secondary evidence.

It is considered the best or

It is used in the absence of primary evidence
2. finest quality of evidence in a
and is considered as lower quality of evidence.
court of law.

The original document or

Any and/or all kinds of copies made of the
work that can be produced
original document/work as mentioned under
before the court of law for
3. Section 63, form part of the secondary
inspection can be considered
evidence.
primary evidence.

Primary evidence can be

Permission is to be sought from the court to
presented to the court
lead secondary evidence on the grounds of the
4. without serving any prior
unavailability or loss of original documents.
notice.

It has high evidentiary value

It has low evidentiary value in court as it is an
5. in the court as it is the main
alternative source of evidence.
source of evidence.

In case of loss of birth certificate, Copy of the

Birth Certificate issued by the
6.
MCD is primary evidence.
10th marksheet if it has Date of Birth is
admissible or any ID Proof i.e. Voter Card or
Aadhar Card are also admissible and are
secondary evidence of the birth certificate.

1. The Hon’ble Supreme Court in J. Yashoda v. Smt. K. Shobha Rani,

2007(2) R.C.R.(Civil) 840 : 2007(1) R.C.R.(Rent) 466 : 2007(2) held
that “it is a general rule that the Secondary evidence can be admitted
only in the absence of primary evidence. In a situation where the
original is found to be inadmissible as the party who files it to prove its
validity has failed to do so, then the said party cannot be allowed to
introduce any secondary evidence of its contents”
2. In the case of H. Siddiqui (dead) by LRs Vs. A. Ramalingam 2011 (4)
SCC 240, the Apex Court reiterated that “where the originals are not
produced then secondary evidence without providing a rational reason
 and factual foundation for laying such evidence is established, the court
cannot permit the party to adduce secondary evidence”.
3. The Hon’ble Apex Court in Chandra v. M. Thangamuthu (2010) 9 SCC
712 held that “the secondary evidence must be authenticated by
foundational evidence that the alleged copy is in fact a true copy of the
original. It should be emphasised that the exceptions to the rule
requiring primary evidence are designed to provide relief in a case
where a party is genuinely unable to produce the original through no
fault of that party.

3. Law Relating to Confessions under Indian Evidence Act

According to Sir James Stephen “An admission made at any time by a person
charged with a crime stating or suggesting the inference that he committed a
crime”.

In Pakala Narayan Swami V. Emperor, Lord Atkin observed that “A

confession must either be admitted in the context of any offence or in relation
with any substantial facts which inaugurate the offence with criminal
proceedings. And an admission of serious wrongdoing, even conclusively
incriminating fact is not itself a confession”.

In, Palvinder Kaur V. State of Punjab the Supreme Court uplifted the Privy
Council decision in Pakala Narayan Swami case and substantiated their
arguments over two reasoning- Firstly, the definition of confession only comes to
exist when the statements conferring the admission that he is either guilty of any
offence or the admission is probating all the facts which constitute the offence.
Secondly, when the statement has different qualities and contains such a
mixture of confessional statements which conclude to the acquittal of the person
making the confession, then such statements cannot be considered as a
confession.

Confession by co-accused
The Supreme Court in the case of Pancho v. State of Haryana [7], held that the
confessions made by the co-accused do not have much evidentiary value and
they cannot be considered as a substantive piece of evidence. Therefore the
confession made by the co-accused can only be used to corroborate the
conclusion drawn out by other probative evidence.

Section 80 of the Indian Evidence Act give the evidentiary value to the judicial
confession and expresses that a confession made in the presence of magistrate
or in the court which is recorded by the magistrate as prescribed by the law then
such confession shall be presumed to be true and genuine confession and the
accused can be tried with the offence. Section 164 of CrPC empowers magistrate
to record confession so it is not necessary that which magistrate recorded the
confession unless he is restricted to record the confession. Hence, for raising the
presumption the identity of the accused must be clear and proved in the
confession to persecute him for the guilt of the offence he committed.

When is a confession irrelevant?

Sections 24, 25, 26 and relevant part of Section 27 of the Indian Evidence Act,
1872 deals with condition that when can confession be irrelevant.

Section 24 of the same Act describes different instances when a confession on

the basis of such instances becomes irrelevant. Section 24 of Indian Evidence Act
provides that a confession made by a person who is accused of some offence is
irrelevant if such confession comes out of any inducement, threat or promise and
such instances have proceeded from a person in authority like police, magistrate,
court etc., the other condition of this section is that inducement, threat or
promise should be in reference to charge of any offence and all such
inducements, threat or promise should give benefit of temporal nature.

For better understanding, we may divide the complete structure into 4 different
essentials that are:

 The confession must be out of inducement, threat or promise,

inducement, etc.
 Such confession should proceed from a person in authority.
 It should relate to the charge in question.
 It should have the benefit of temporal nature or disadvantage.
Thus, when these conditions are fulfilled then the confession becomes irrelevant.

Confession to Police, Police Custody and effect of police

presence
The essence of commission can be found in different statutes but Section 24 to
30 of Evidence Act and section 162 to 164 of CrPC specifically deals with a
confession.

Section 25 provides that “No statements made to a Police Officer shall be

considered as a confession for the purpose of proving that confession against
that person who is accused to the case”. The terms explained under Section 25
of this Act has vital importance which makes sure that any confession made by
the accused to the police officer under any circumstances until provided, is
totally not admissible as evidence in a court of law against the accused to prove
his guilt.

Section 26 prohibits the judicial bodies to prove the guilt of accused by his
confession which is made to police in police custody. Section 26 imposes a partial
ban on provisions stated in Section 25 that confession made to the police officer
in police custody may be admissible if the confession recorded in the immediate
presence of a magistrate.

Confession in further discovery of facts

Section 27 lift the concept of the relevance of information received from the
accused by irrelevant confess made to police or in police custody which may help
in further discovery of facts of the cases. Section 27 provides that whenever a
fact is forcefully discovered in the course of receiving information from accused
during a police investigation or in the police custody and whenever such
information leads to the discovery of other relevant facts they may be distinctly
be proved.

In Pandu Rang Kallu Patil v. State of Maharashtra, while deciding the case
stated that Section 27 of the Indian Evidence Act was enacted as to lift and to
remove the ban provided in section 25 and 26 of the Act in such a way that-
Section 25 and 26, absolutely bans the admission of any confession made to the
police or in police custody but the objects of Section 27 provides the admission
of statements made by an accused even to the Police Officer and the objective
explained by the Supreme Court was that such confession may help in further
discovery of facts which may help the court to prove other facts related to the
case.