Evidence is important in any case as it helps in validating judgment. As per the Act, evidence is of 2 types: oral and documentary evidence. These are further divided into subcategories one of which is Hearsay evidence. Verbal and written statements are forms in which hearsay evidence is presented at hearings and trials to prove facts at issue in a case. Courts are required to exclude certain statements from evidence (subject to section 60 of IEA 1872) when they were made by parties not present to testify at the trial or hearing. These statements are referred to as “hearsay.” Hence it can be said that in comparison to all other types of evidence, hearsay is the inferior one and its admissibility depends upon the circumstances of each case, and the discretion of the court.
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Comprising two words, ‘hear’ and ‘say’, the term hearsay defines a testimony based not on direct communications but what a witness may have heard others say over an out-of-court conversation. It is a piece of second-hand information. As per the definition provided under Merriam-Webster – Hearsay is: “Evidence-based not on a witness’s personal knowledge but on another’s statement not made under oath.”
In simple words, evidence that is given by a person who was heard from another person is hearsay evidence.
Janvi said to Rimsha: “Jasmine was driving a black truck at the time of the accident.” Janvi’s a statement to Rimsha would be evidence that Jasmine was driving a black truck at the time of the accident. It will be hearsay if Rimsha testified to that statement to prove Jasmine was driving a black truck. But if Janvi is able to testify in the court at a later time that she has seen Jasmine driving the black truck, then Rimsha’s statement won’t be hearsay.
The Apex Court in the case of, Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr while elaborating on the concept of hearsay, observed that “The term hearsay is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person.”
Double hearsay is a hearsay statement that contains another hearsay statement itself. In a court, both layers of hearsay must be found separately admissible.
Exclusion of Hearsay evidence:- The fundamental principle of the law of evidence is: Hearsay Evidence must not be admitted. Since it is also known as derivative or unoriginal evidence, it is regarded as ambiguous and misleading. Thus its admissibility is questionable.
Reasons for Exclusion of Hearsay Evidence:-
1) Hearsay Evidence cannot be tested by Cross-Examination.
2) It supposes some better evidence and encourages substitution of weaker for stronger evidence.
3) The evidence is not given on oath or under personal responsibility but by the original declarant.
4) It has a tendency to protect the legal investigation.
5) As truth depreciates in the process of repetition, it is not reliable.
6) Its reception increases opportunities for fabrication.
Even though the admissibility of hearsay evidence is questionable and it is excluded as a general rule, but there are still exceptions to this rule.
Exceptions for Hearsay Evidence
The Evidence Act, under S. 6 defines res gestae as “facts which form part of the same transaction” irrespective of its occurrence.
In this scenario, when a statement is made in court, it may be further proved during the legal proceedings by another person appearing as a witness provided the aforesaid statement is a part of the same transaction.
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 eg.
—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.
Section 32 of the Indian Evidence Act talks about the statement of a person who cannot be called as a witness in court. Although it’s a law that a dying declaration is to be recorded by the magistrate but this may not be possible in all cases. Hence the court allows the testimony of the police, doctor and any other person present with the deceased before he/she took its last breath. However, it has to be supported by the corroboration of facts.
Evidence provided informal proceedings
Evidence given by a witness in one sitting of a case proceeding can be stated in any subsequent proceedings between the same parties, if the witness has died or is, for some reason, not available. This is applicable for the entries in books of accounts and public registers that can be produced before the court. Though the person may or may not be alive, the statements he made previously in books or registers are admissible in court.
Hearsay evidence in other countries
England and Wales
Hearsay evidence is admissible in civil proceedings but it becomes admissible in criminal proceedings only if it falls within 3 situations.
In Hong Kong, Section 46 of the Evidence Ordinance provides that evidence shall not be excluded on the ground that it is hearsay in civil proceedings unless:
- the party against whom the evidence is to be adduced objects to the admission of the evidence;
- the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.
Hearsay evidence is a type of evidence that is not directly recognised by Courts. Its admissibility in a case will depend on circumstantial facts.