To meet the ends of justice and to rely on the testimony given by the concerned party, evidence
is presented before the Hon'ble Court. The term 'evidence' is classified into various types
depending on the relationship with the subject matter and the kind of evidence brought into the
courtroom. Hearsay evidence can be understood as a type of evidence that is given by someone
who is not appearing as the witness in the court, but his statements are recorded in order to
support the relevancy of the facts.1
However, it is generally not allowed in the ordinary proceedings of the court as:
Cross-examination: The person who presented the hearsay evidence
is not directly related to the matter; therefore, statements do not hold the
value of a witness. Therefore, it cannot be cross-questioned.
Accuracy of the Evidence: In such cases, it is difficult to
assess the accuracy of such statements as these statements are not made by
the person who has observed the act.
The Person's demeanour: In ordinary proceedings, the judge observes the demeanour
of the person making the statement to certify the reliability of his statements. However,
in such matters, it is impossible to assess the reliability by observing the speaker's
demeanour.
Section 602 also rules that "Oral evidence must, in all cases, whatever, be direct." It can be
inferred by the section that whenever oral evidence has to be given, it must be direct and should
be given by the person who has seen or heard it or can perceive it in any other sense. It strictly
prohibits the court from admitting hearsay evidence as it is not direct, and the person making
such statements has not witnessed the act himself.
However, there have been circumstances where the hearsay evidence has been relied on in
order to deliver a judgment. Statutory provisions such as Section 32 3allow the hearsay
evidence to be admitted in cases where the victim or the witness is dead, Section 64
, i.e., 'Res Gestae' allows the court to rely on the statements made by a person who is
contemporaneously connected or related with the concerned act or transaction.
Analysis:
Before understanding which statutory provisions provide an exception to the rule of hearsay,
we must understand what statements can be made by the declarant and which one is an
exception.
Broadly, there can be three classifications to the statements made by the
declarant: 5
Statements that cannot be testified: The declarant may declare facts that he believes to be hearsay; however, he cannot testify because he is not the witness. For instance, the declarant may declare that the accused had told him about the details of the stolen goods; however, he cannot prove this fact until the accused testifies to it.
Statements that may prima facie resemble hearsay: In multiple situations, statements can be made out of the courtroom and brought in as evidence; however, they do not find any relevance to the subject matter. For example, the declarant may claim that he had the assertion of the crime because of the resignation filed by the accused before the commission of the act.
Statements that hold evidentiary value: There can be circumstances where it is proven that there is no reasonable doubt in the statements made by the declarant and hence can be admitted in the court of law.
For Example, if the declarant proves his presence at the time of the victim's
death and
conveys the dying declaration, his statements will be admitted to the court of
law.
Exceptions to the Rule of Hearsay Evidence
There can be circumstances where the court may admit the hearsay evidence;
however, it is worth mentioning that it is always less reliable than direct
evidence.
There are mainly four exceptions to this rule:
Res Geste – This exception is given u/s 66 and it covers the facts that are not concerned with the subject matter but occurred during the same time and, hence, are relevant to the court proceedings.
In the case of Pratap Singh vs State of Madhya Pradesh, it was held that under this section, two essentials must be fulfilled for the admissibility of hearsay evidence:
That the fact must be contemporaneous.
There should be no time lag in which the fabrication should take place.?
Dying Declaration – This refers to statements where a person, at the time of their death, has made declarations to any other party regarding the cause of their death or any circumstances which have led to their demise.
It is based on the principle of "Nemo moriturns proesumitur mentiri", meaning that no one is presumed to lie at their death.
In the case of Palka Narayana Swami v Emperor, the Privy Council had to decide whether the term "circumstances of the transaction which resulted in his death" would also cover statements made before the time of death. The court held that such statements are a part of the circumstances of the transaction that led to his demise.
In order to convict the accused, the court must apply its judicial mind to evaluate the entire evidence. If the court feels this evidence is either based on prompting or a product of imagination, this declaration must not be accepted as evidence.
Another important aspect of this evidence is the medical fitness of the declarant at the time of narrating the incident. The court generally prefers a medical certification but has also held that it is not a
sine qua non for accepting a dying declaration, as stated in
Laxman v State of Maharashtra.
The judge's obligation is to assess the evidence while maintaining a balance between the rights of the accused and statutory provisions to uphold the integrity of the criminal justice system.
Admissions and Confessions – Under section 1712, 'Admission' refers to a situation where a person acknowledges a fact either orally or in writing, holding probative value. 'Confession' is when the accused admits their guilt.
It is important to note that "All confessions are admissions, but not all admissions are confessions."
In Nagindas Ramdas, the court held that admissions are considered the best proof for proving any fact in issue as they are generally free from ambiguity.
Admissions and confessions are presumed to be true as they go against the declarant's interest. This principle was upheld in
State of Maharashtra Vs Kamal Ahmed Mohd Vakil Ansari.
Statements made in previous hearings – This exception, given u/s 33, allows the court to take cognizance of a witness's testimony from prior proceedings if the court is satisfied that:
The presence of the witness is unreasonable.
The witness is dead or has a reasonable ground for not attending the court proceeding.
In the case of Rama Reddi,The court had to decide whether the testimony given by
witness S in the prior proceeding would be applicable in the subsequent proceedings as
the witness was already dead, and it was the mere defense of R as the fact in issue was
to decide whether R had maliciously prosecuted A in the prior case.
The court held that "Although the Act, in using the word 'questions' in the plural, seems
to imply that it is essential that all the questions shall be same in both proceedings to
render the evidence admissible that is not the intention of the law".
Hence this came became a leading case to decide whether the process established u/s 33 would
be applicable for a different case. However, in the case of "Bal Gangadhar Tilak v Shriniwas
Pandit" 17 it was held that an evidence can only be imported from another proceeding if they
satisfy the conditions mention u/s 33.
Conclusion
Hearsay, in simple words, can be understood as evidence that is based on information received
by another. It is not a reliable source of evidence as the person who makes such statements
does not testify as a witness in the proceedings, and his statements are only based on the
information he may have received from the witness. It is also difficult to assess the matter's
relevance as cross-examining such evidence is not possible. Generally, courts do not admit
such evidence as inaccurate, and convicting or acquitting someone who does not deserve it
would eventually lead to mockery of the judicial process established by the country's
lawmakers.
However, there can be circumstances where the witness cannot attend the court proceedings,
such as his death or other reasonable grounds. In such cases, courts have no choice but to rely
on such evidence, if present, in order to meet the ends of justice; however, it is worth noting
that the courts need to apply their judicial mind and only consider such evidence if the
statements made by a person who is contemporaneously connected or related with the
concerned act or transaction. These evidences are not necessarily the ones that prove the guilt
of the accused; however, they can be the linkages to the reasonable nexus.
There are four main types of hearsay evidence: Res Geste, dying declarations, admissions and
confessions, and statements made in previous hearings. As with any other evidence, the court
must verify its source and whether the fact claimed by such evidence is accurate. Nonetheless,
they must prove their objective without leaving room for doubt, and if they are satisfied, they
can help the court to meet the ends of justice.
Bibliography: Table of Cases:
Bal Gangadhar Tilak v. Shriniwas Pandit (1915) ILR 39 Bom 441
Laxman v. State of Maharashtra AIR 2002 SC 2973
Nagindas Ramdas v. Dalpatram Ichhram 1974 AIR 471
Pakala Narayana Swami v. Emperor AIR 1939 PC 47
Pratap Singh v. State of Madhya Pradesh AIR 2005 SC 3090
Rama Reddi AIR 1962 SC 1824
State of Maharashtra v. Kamal Ahmed Mohd Vakil Ansari 2013 12 SCC 17
State of U.P. v. Krishnagopal AIR 1988 SC 2154
Table of Legislation:
Indian Evidence Act, 1872
Secondary Sources:
Chandershekar AV, 'Dying Declarations: Its Applicability in Criminal Cases'
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