This article has been written by Jatin Chaunwal from Faculty of Law, University of Delhi

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ORIGIN OF HEARSAY EVIDENCE

Wigmore attributed the establishment of the hearsay rule to the timeframe spanning from 1675 to 1690. However, the concept of Hearsay has been developing since the 1400s. In the 1500’s the focal point of the judges was to produce the person in the court.

Its primary purpose has been to bar “extrajudicial testimonial assertions” from being admitted as evidence if they’re presented to establish the truth of contained facts. The rationale behind rejecting such evidence was its lack of inherent credibility and the inability to subject it to cross-examination for scrutiny. Over time, courts have developed exceptions to this rule, allowing certain types of evidence to be considered trustworthy enough for admissibility despite being hearsay. These exceptions, rooted in common law, may vary across states but are generally familiar to legal practitioners and judges.

MEANING OF HEARSAY EVIDENCE

Hearsay refers to evidence that does not rely on the credibility of the witness but instead depends on the truthfulness and competency of another person. This form of evidence stands in contrast to direct evidence.

In the case of Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr., Hon’ble Justice Panchal articulated the concept of hearsay. He defined hearsay as incorporating both written and spoken statements, legally referring to evidence that doesn’t solely depend on the credibility of the witness but also relies, to some extent, on the reliability and competence of another individual.

Regarding hearsay evidence within the Indian Evidence Act (IEA), it’s noteworthy that the Act doesn’t explicitly employ the term ‘hearsay evidence’ due to its inherent inaccuracies and vagueness.

Furthermore, the term ‘hearsay’ is employed in various contexts:

Sometimes, it signifies any statement a person is heard uttering.
Sometimes, it denotes information declared by a person based on details provided by someone else.
At times, it is considered nearly synonymous with irrelevance. The actions and utterances of a third party are typically irrelevant, and therefore, no proof of them can be accepted. Any relevant action or speech must be substantiated by an eyewitness or someone who directly heard it.

Reason for Exclusion of Hearsay Evidence:

The exclusion of hearsay evidence is grounded in the principle that it is consistently preferable, in the pursuit of justice, to summon the individual whose statement is being relied upon to court. This allows for their examination in the usual manner, thereby exposing potential sources of inaccuracy or untrustworthiness through cross-examination.

A fundamental rule in Indian Law concerning hearsay evidence is its inadmissibility. Statements, whether oral or written, made by individuals not providing testimony as witnesses, and statements contained or recorded in any document or record whose proof is not accepted on other grounds, are deemed irrelevant for proving the truth of the matter stated.

Section 134 of the Indian Evidence Act states that: No particular number of witnesses shall in any case be required for the proof of any fact.

REASONS

(a) The person presenting such evidence lacks accountability. Legal requirements mandate that all evidence must be provided under personal responsibility. Every witness is obligated to testify under circumstances exposing them to the consequences of falsehood. When cornered, a person giving hearsay evidence can evade accountability by stating, “I do not know, but so and so told me.”

(b) Truth becomes diluted and compromised with each retelling.

(c) Allowing hearsay evidence provides ample opportunity for fraudulent claims by stating, “Someone told me that…” This could give undue weight to false rumors transmitted from one source to another. Therefore, statements from witnesses based on information received from others are deemed inadmissible.

EXCEPTIONS OF HEARSAY EVIDENCE
RES GESTAE
CONSPIRACY
ADMISSION
CONFESSION
DYING DECLARATION

RES GESTAE AS AN EXCEPTION OF HEARSAY EVIDENCE

MEANING OF RES GESTAE

Res Gestae is a Latin phrase that translates to “Things done.” In English, it signifies “Things said and done in the course of a transaction.” It encompasses events or circumstances directly related to the issue at hand, as well as other contemporaneous or closely associated events. Courts have historically utilized this term to admit hearsay evidence that would otherwise be inadmissible.

CASES REGARDING RES GESTAE AS AN EXCEPTION OF RES GESTAE
IN THE CASE OF SUKHAR VS. THE STATE OF U.P

The Supreme Court highlighted that Section 6 of the Evidence Act serves as an exception to the general rule regarding the admissibility of hearsay evidence. Conditions for the application of Section 6 were elucidated in Sukhar v. State of U.P. (1999) as follows:

(a) The hearsay evidence must be nearly contemporaneous with the acts in question.

(b) There should not exist an interval that allows for the possibility of fabrication.

Therefore, for such hearsay evidence to be admissible under the provisions of Section 6, the statements intended for admission as part of res gestae must have been made either contemporaneously with the acts or immediately thereafter.

IN THE CASE OF JAVED ALAM V. STATE OF CHHATTISGARH AND ANR.

The test for applying the rule of res gestae was articulated, emphasizing that for a statement to qualify, it must be spontaneous and an integral part of the same transaction, ruling out any possibility of concoction.

Comparing Sukhar v. State of U.P. and Javed Alam v. State of Chhattisgarh and Anr., two essential conditions for the application of Section 6 were established:

S.No.	Sukhar v. State of U.P.	Javed Alam v. State of Chhattisgarh and Anr.
1	Contemporaneous	Spontaneous
2	Fabrication	Concoction

Whose statement is relevant under Section 6 (Res Gestae), facts related to the accused,

victim, or
third persons (e.g., bystanders)
become relevant if they form part of the same transaction.
IN THE CASE OF RATTAN V., THE QUEEN (1971)

Moments before a woman was fatally shot, she made a frantic telephone call to the operator, urgently pleading for the police’s assistance. She managed to convey her address before the call abruptly ended. Within a brief span of five minutes, the police arrived at the scene and discovered the deceased woman.

Lord Wilberforce stated that the evidence from the telephone call would have been admissible as part of the Res Gestae. This was due to the close temporal and spatial connection between the statement and the shooting. Moreover, how the statement was made, as a call for police help, and the evident distress in the woman’s tone of voice, inherently demonstrated that the statement was compelled by the overwhelming pressure of the immediate events.

The court concluded that the telephone call and the words spoken therein constituted integral parts of the same transaction. Consequently, the husband’s argument claiming the fire as accidental was dismissed in light of this compelling evidence.

CONSPIRACY AS AN EXCEPTION OF HEARSAY EVIDENCE

SECTION – 10 OF THE INDIAN EVIDENCE ACT

“States that once conspiracy to commit an offense is proved. The act of one conspirator becomes the act of another. There should be reasonable ground to believe that two or more persons have conspired to commit an offense or an actionable wrong.”

The foundational premise lies in the agency principle operating among the involved parties within the conspiracy. It represents an exception to the general rule barring hearsay testimony. When the specified conditions are met, actions taken, or statements made by one party become admissible as evidence against the co-conspirators. Top of Form

ADMISSION AND CONFESSION AS AN EXCEPTION OF HEARSAY EVIDENCE

General rules governing admissions are outlined in Sections 18 to 23, while Sections 17,24 to 31 specifically address confessions. Section 17 of the Act precisely defines a confession as a relevant statement made by a witness, indicating its relevance to the case at hand.

ADMISSION

The term “admission” incorporates a voluntary statement affirming the truth of a fact, whether expressed orally, in written documents, or electronic form. Such a statement aims to draw inferences about the subject matter or material facts. Documentary evidence takes the form of letters, receipts, maps, bills, and similar records.

An admission may come from various sources:

a party involved in the lawsuit,
a predecessor-in-interest, an agent, or
any individual with a vested interest in the subject matter.

Regarded as the paramount evidence against the admitting party, an admission holds significant weight unless proven untrue or made under conditions that do not legally bind them. Therefore, clarity, certainty, precision, and following are essential elements.

Relevance to the subject matter is imperative.
Declarations involving self-incrimination constitute admissible admissions.
Admissions are restricted to individuals by Sections 18 to 20 of the Indian Evidence Act.

IN NAGINDAS RAMDAS V DALPATRAMICHHARAM, The Supreme Court of India explained the effects of admission, saying that admissions are generally true and clear of any ambiguity, and they shall be considered as the best proof for proving any fact in issue or relevant fact by the admission of certain facts. On the other hand, informal admissions made during day-to-day activities just assist in bringing the facts to light, whether through an oral or written statement by either party.

CONFESSION

The definition and implication of the term “confession” are defined under Section 17 within the Act, as it lacks an individual definition. When an individual charged with a criminal offense makes a statement directly implying guilt, it constitutes a confession. Essentially, a confession is an admission by the accused. Considered a weaker form of evidence due to the presumption that individuals are unlikely to fabricate self-incriminating statements.

A confession signifies an admission made by the accused, acknowledging their involvement in the offense. It stands as compelling evidence against the individual who makes it and can also incriminate co-accused individuals involved in the crime.

IN THE CASE OF PALVINDER KAUR V. STATE OF PUNJAB, the Supreme Court upheld the Privy Council decision in Pakala Narayan Swami case, reinforcing their arguments based on two primary rationales. Firstly, the definition of a confession hinges on statements admitting guilt for an offense or encompassing all aspects constituting the offense. Secondly, a statement presenting a mixture of confessional elements leading to the acquittal of the individual making the statement cannot be categorized as a confession.

IN THE CASE OF NISHI KANT JHA V. STATE OF BIHAR, the Supreme Court emphasized the admissibility of selectively relying on portions of a confession made by the accused while disregarding others. Drawing from English law, the court ruled that when sufficient evidence exists to discount the exculpatory section of the confession, reliance on the inculpatory part is permissible.Top of Form

DYING DECLARATION AS AN EXCEPTION OF HEARSAY EVIDENCE

‘Nemo moriturus proesumitur mentiri’ means a man will not meet his maker with a lie in his mouth.

Section 32 of the Indian Evidence Act, 1872, deals with dying declaration it states that cases in which a statement of relevant facts by the person who is dead or cannot be found, etc. is relevant: Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases:

when it relates to the cause of death- When the statement is made by a person as to the cause of his death, or as to any of 1the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

A dying declaration becomes admissible as evidence when the individual making the statement has deceased, and their death becomes a subject of inquiry. If the declarant survives, the statement is not covered under Section 32(1) of the Evidence Act. This exception, involving dying declarations, stands against the general exclusionary rule of hearsay evidence. The burden of proving the dying declaration always rests with the prosecution. As such statements can serve as the sole basis for convicting an accused, courts are obliged to meticulously examine them.

For a dying declaration to hold weight, three crucial elements must be satisfied before the court.

The declarant must have been in imminent peril of death at the time of making the statement.
They should have been fully aware of the impending danger, and
Subsequently, the death of the declarant should have occurred.

IN THE LEADING CASE OF PAKALA NARAYANA SWAMY V. EMPEROR (AIR 1939 PRIVY COUNCIL), the phrase ‘circumstances of the transaction which resulted in his death’ was extensively expounded. In this instance, the deceased had informed his wife before departing that he intended to visit Pakala Narayana Swamy in Behrampur to demand repayment of a debt. Subsequently, the deceased’s dismembered body was discovered in a trunk. The issue scrutinized by the Privy Council centered on whether the statement made by the deceased to his wife fell within the scope of Section 32(1) of the Evidence Act.

The Privy Council determined that the statement made by the deceased to his wife, just before leaving for Behrampur, constituted a statement incorporates one of the circumstances leading to the man’s demise. Consequently, the expression ‘any of the circumstances of the transaction which resulted in his death’ was construed to hold a broader interpretation than ‘the cause of his death.’

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IN THE CASE OF KHUSHAL RAO V. STATE OF BOMBAY (25 SEPTEMBER, 1957), Section 32 was established by the Legislature with deliberation, recognizing it as a necessary exception to the general principle that hearsay lacks evidentiary value and that untested evidence, without cross-examination or oath, is inadmissible. In this context, dying declarations lack cross-examination or affirmation.

Similarly, in the case of RAM BIHARI YADAV V. STATE OF BIHAR (1998), the Honorable Justice Syed Shah Quadri elucidated that while a dying declaration qualifies as indirect evidence and falls within the realm of hearsay, it operates as an exception to the rule against the admissibility of hearsay evidence.

HEARSAY EVIDENCE UNDER ENGLISH LAW

In English law, the admissibility of hearsay evidence is delineated in the Criminal Justice Act 2003, specifically within sections 114-136. Generally, hearsay evidence is deemed inadmissible in criminal proceedings unless certain conditions are met. These exceptions include statutory provisions allowing its admissibility, preservation of its admissibility by a common law rule as outlined in section 118 CJA, agreement among all parties involved in the proceedings, or a determination by the court that its admission serves the interests of justice (as per section 114(1) CJA 2003).

THE CASE OF R V HORNCASTLE 2010 clarified that there isn’t an absolute principle declaring a conviction solely or predominantly based on hearsay evidence as unfair. This determination was made considering the counterbalancing measures integrated within the hearsay framework outlined in the Criminal Justice Act. These measures are designed to ensure that the trial remains fair despite the presence of hearsay evidence.

Under the Criminal Procedure Rules, when applying to admit hearsay evidence in specific circumstances outlined in the Criminal Justice Act 2003, written notice must be provided to both the opposing party and the court. These instances include:

In situations deemed to be in the interests of justice (as per section 114(1)(d) CJA 2003).
When a witness is unavailable (as outlined in section 116 CJA 2003).
In cases where the evidence is contained within a statement prepared for criminal proceedings (as per section 117(1)(c) CJA).
When dealing with multiple hearsay evidence (under section 121 CJA 2003).

Additionally, courts possess explicit authority under section 126 of the Criminal Justice Act 2003 to exclude hearsay evidence. Furthermore, they retain the power, as stipulated in section 125 CJA 2003, to terminate a case if the presented hearsay evidence is deemed unconvincing.

CONCLUSION

In conclusion, the concept of hearsay evidence has evolved significantly in legal systems worldwide, aiming to ensure fairness and reliability in trials. Originating from the need to verify testimonial assertions and protect against unreliable evidence, the hearsay rule initially aimed to exclude statements lacking credibility or accountability. Over time, exceptions to this rule emerged, permitting certain types of hearsay evidence under specific circumstances.

Under Indian law, the exclusion of hearsay evidence is fundamental, guided by the Indian Evidence Act. Sections such as 134 emphasize that the number of witnesses needed for proof of a fact is not fixed, while stringent criteria, including contemporaneity and absence of fabrication, apply to exceptions like the Res Gestae.

Various exceptions to the hearsay rule have been recognized under Indian law, such as Res Gestae, Conspiracy, Admissions, Confessions, and Dying Declarations. Each exception has distinct criteria for admissibility, aiming to ensure reliability and relevance while safeguarding against the dangers posed by hearsay evidence.

English law, particularly outlined in the Criminal Justice Act 2003, similarly establishes stringent guidelines for the admissibility of hearsay evidence. The Act permits certain exceptions, including cases in the interests of justice or instances where witnesses are unavailable, or when dealing with multiple hearsay evidence. Courts maintain discretionary powers to exclude or terminate cases based on the credibility of presented hearsay evidence.

Overall, while hearsay evidence continues to be a complex area within legal frameworks, the aim across jurisdictions is to strike a balance between fair trial rights and ensuring the reliability and credibility of evidence. The evolution of exceptions to the hearsay rule reflects ongoing efforts within legal systems to adapt to the complexities of modern litigation while upholding the integrity of justice.