CHANAKYA NATIONAL LAW UNIVERSITY
Hearsay evidence
SUBMITTED TO: - Mr. P. K. Pandey FACULTY: - Law of Evidence
Made By: Nidhi Navneet nd
2
th
year (4 sem)
ROLL No.570 B.A.LL.B. (Hons)
Hearsay Evidence
ACKNOWLEDGEMENT
I am
feeling highly
elated to
work on
the
case law
“
Hearsay
Evidence under the guidance of my faculty of Law of Evidence, Mr. P.K. Pandey . I ”
am very grateful to him for his exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have tried my best to pave the way for bringing more luminosity to this topic.
I also want to thank all of my friends, without whose cooperatio n this project was not possible. Apart from all these, I want to give special thanks to the librarian of my university who made every relevant materials regarding to my topic available to me at the time of my busy research work and gave me assistance. And at last I am very much obliged to the God who provided me the potential for the rigorous research work.
At finally yet importantly I would like to thank my parents for the financial support.
----------Thanking you Nidhi Navneet C.N.L.U.
1
Hearsay Evidence
TABLE OF CONTENTS
Research Methodology ........................................................................................................ 3 Introduction.......................................................................................................................... 4 Hearsay Evidence : Conceptual Analysis ............................................................................ 5 1.
Meaning and Definition ............................................................................................ 5
2.
General Rule Against Hearsay .................................................................................. 6
3.
History of Rule of Hearsay ....................................................................................... 7
Reasons for exclusion of hearsay evidence ......................................................................... 9 1. The Irresponsibility of the Original Declarant: ............................................................ 9 2. The depreciation of truth in the process of repetition: ...............................................10 3. The opportunities for fraud its admission would open: .............................................10 4.
The tendency of such evidence to protract legal enquiries: ....................................10
5.
Encourage the substitution of weaker evidence in place of stronger proof: ...........10
Exceptions to the General Rule against hearsay ................................................................12 Res-Gestae and Hearsay Evidence .................................................................................13 Dying Declartion and Hearsay Evidence .......................................................................15 Conclusion .........................................................................................................................17 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.
Aims & Objectives 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 project1. 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 i s 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. Any statement which is an hearsay statement, to be admissible as an evidence, its relevancy is to be considered. The general principle of common law underlies that an hearsay statement should not be used in the court of law as this kind of statement are not relevant and can not be solely relied upon. This principle of common rule is also inherited by the Indian Law in the Section 60 of Indian Evidence Act, which insists that all oral testimony that is to be admitted by the court must be direct. 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
HEARSAY EVIDENCE : CONCEPTUAL ANALYSIS Hearsay refers to testimony given in court by a person other than the one who perceived it. It is only the reported evidence of a witness which he has nor seen neither heard. Sometime it implies the saying of something which a person has heard others say. It is defined as „An assertion other than one made by a witness while testifying in the proceedings is inadmissible as evidence of any fact asserted‟1. Another definition set out in Murphy2 is that, “Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
1. Meaning and Definition The word „hearsay‟ is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else – Stephen. Hearsay evidence, which is called as derivative, second hand, and unoriginal evidence, etc., is the evidence of facts, which the witness has not learnt through his own bodily senses but learnt through the medium of anothers. The term “hearsay” was regarded by the writers as ambiguous and misleading as it is used in more than one senses. Stephen says, “Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declared on information given by someone else; sometimes it is treated as merely synonymous with irrelevant. 3 Taylor defines hearsay evidence to denote, “all the 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.”4 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
th
Heydon, J.D. & Cross, R, 2004, Cross on Evidence, 7 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 t o somebody else.
2. General Rule Against Hearsay As a general rule hearsay is inadmissible. And this draws from section 60 of the Evidence Act, which explicitly provides that oral evidence must be direct. The rule against hearsay is stated as follows: “A statement made by a person not called as a witness which is offered in evidence to prove the truth of the fact contained in the statement is hearsay and it is not admissible. If however the statement is offered in evidence, not to prove the truth of the facts contained in the statement but only to prove that the statement was in fact made it is not hearsay and it is admissible ” - Justice De Silva.
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. The evidence of a statement made to a person who himself is not called as a witness may or may not be hearsay. It is „hearsay‟ and inadmissible when the object of evidence to establish the truth of what is contend in the statement by examining some other person. It is not „hearsay‟ and it is admissible when it is proposed to established by the evidence, not the truth of the statement but the fact that the statement was made. The fact that the statement was made is quite different from the fact that the statement was made. The fact that statement was made, apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other person in whose presence the statement was made.
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Hearsay Evidence In the case, J. D. Jain v. Management v. State Bank of India 5, 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. Emperor 6, 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.
3. History of Rule of Hearsay The history of the hearsay rule in common law can only be traced back to the 1500s, which marked the slight digression from the mode of trial which was entirely jury 5
AIR 1982 SC 673. AIR 1942 Cal. 214. 7 Nanuram v. State, 2005 Cr. LJ 4586 (MP). 6
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Hearsay Evidence based which evidently permitted and condoned the practice of acquirement of information by the jury from informed persons not called into court, and first recognised the practice of producing witnesses in court in a positive light. Early 17th century saw a shift to a mode of „trial by witnesses‟ which no longer relied on knowledge of the person testifying, which may be borne out of his personal opinion or belief or from information gathered from third persons, as in the case of jurors, but on actual perception of a fact without any reliance placed on their own opinions or what they might have heard from others. Thus, the rule of hearsay was eventually recognised and applied more and more strictly towards the 18th century in trials by court and testimonies at second hand or, testimonies by individuals not based on their own observation or perception of the fact sought to be proved, came to be considered increasingly inadmissible in a court of law. The same principles of common law thus came to be introduced by the British and got inculcated into the Indian legal system and can be seen in Section 60 of the Indian Evidence Act, 1872. 8 The origins of the hearsay rule can be traced back to the 13 th 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/commonlaw/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. Jackson John D. Hearsay: the sacred cow that won‟t be slaughtered? 2 International Journal of Evidence & Proof 1998 p166. 11
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Hearsay Evidence REASONS FOR EXCLUSION OF 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. The
hearsay
evidence
is
discarded
on
the
basis
of
its
relative
untrustworthiness for judicial purpose on account of:
1. The Irresponsibility of the Original Declarant: The principle of this rule is, that such evidence requires credit to be given to statement made by person who is not subjected to ordinary test enjoined by the law for ascertaining the correctness and completeness of his testimony, namely, that oral testimony should be delivered in the presence of the court or a magistrate, under the moral and legal sanctions of an oath, and where the moral and intellectual character, the motive and the demeanour of the witness can be examined, and his capacity and opportunity for observation, and his memory, can be tested by cross-examination. Such evidence, moreover as to oral declarations is very legible to be fallacious and its value is therefore greatly lessened by the probability that the declaration was imperfectly heard, or was misunderstood, or is not accurately remembered or has been perverted. Wigmore is of the view that it is the fact that the adverse party has had no opportunity to crossexamine the maker of an extra-judicial statement that is the real basis of the exclusion of hearsay. Every witness is required by law to depose evidence under personal responsibility. In case of irect evidence the penal provisions for perjury will have a detterent effect on the witness and makes him to speak truth. But, in this, the person communicating such evidence are not exposed to the danger of a prosecution for perjury,
12
Phipson‟s Evidence, 11 th 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.
2. The depreciation of truth in the process of repetition: When someone reports a fact to someone else and that someone else testifies about the fact in court, the passing of the information through an extra person creates a greater possibility of distortion. This distortion may be intentional or inadvertent. Also, in the process of repetition of the statement of the original declarant, there is every likelihood of omissions and commissions of the facts. These errors of omissions and commissions result in the depreciation of the truth of the facts and likely to prejudice the legal proceedings.
3. The opportunities for fraud its admission would open: Admissions of hearsay evidence would open the way for playing fraud by the witness, since the original declarant who is the source of information is not available to give evidence.
4. The tendency of such evidence to protract legal enquiries: Public policy demands that justice must be expeditious. By allowing hearsay evidence the court may have to waste its time in listening to the idle gossip and thereby the legal proceedings are unduly protracted. 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 t he Hearsay evidence can be included as a valid evidence against accused or not.
5. Encourage the substitution of weaker evidence in place of stronger proof: When the
best evi dence ru l e requires
all oral evidence to be direct, any
admission of hearsay evidence encourags for the substitution of weaker evidence in the of stronger proof
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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. (2) Truth is diluted and diminished with each repetition, and (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 EXCEPTIONS TO THE GENERAL RULE AGAINST HEARSAY A number of exceptions have been recognised to facilitate for the admission of hearsay evidence. These exceptions have been imported into the Indian Evidence Act as a rule of necessity. The following are the exceptions to the rule that hearsay evidence is no 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 hears ay 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. Proviso I declares that the opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinion are held can be proved by the production of such treatise without calling that expert, provided the author is not available as witness for the reasons analogous to section 32.
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:
Res-Gestae and Hearsay Evidence The res gestae exception provides that a statement is admissible if it accompanies and explains an act. The justification given for the reception of such evidence is the light that it shines upon the act or event in issue. In its absence, the transaction in question may not be fully or truly understood and may even appear meaningless.14 If the court were to dismiss Evidence which is so clearly relevant to the case, it would lead to substantial injustice that would undermine the primary function of the legal system. On its merits, the res gestae exception gives discretion to Judges to decide whether such Evidence shall be admitted. The fact that each case can be decided on a subjective basis is something which should be commended.
13 14
Girish Yadav v. State of M.P., 1996 CrLJ 2159 (SC). Adrian Keane, „Modern Law of Evidence‟ 8thed. Oxford at 350 .
13
Hearsay Evidence In reference to case law, R v. Andrews , was an important English decision on the res gestae principle. It showed a more liberal approach by the courts to the admissibility of hearsay Evidence. 15. In Andrew‟s case two men entered M‟s flat and attacked him with knives and property was stolen. Two police officers arrived shortly after and M informed them that O and the defendant were responsible. M. died two months later as a result of his injuries. The defendant and O were charged with aggravated burglary and the murder of M. The deceased‟s statement was admitted as coming within the res gestae exception. In coming to his decision, Lord Ackner established and applied a five stage objective test for the admission of such 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 Section 6 of the Evidence Act is an exception to the aforesaid hearsay rule and admits of certain carefully safeguarded and limited exceptions and makes the statement admissible when such statements are proved to form a part of the res gestae, to form a particular statement as a part of the same transaction or with the incident or soon thereafter, so as to make it reasonably certain that the speaker is still under stress of excitement in respect of the transaction in question. 17 The Supreme Court in Gentela Vijavavardhan Rao v. State of Andhra Pradesh18, considering the law embodied in section 6 of the Evidence Act held thus: "The principle of law embodied in section 6 of the Evidence Act is usually known as the rule of res gestaerecognised in English law. The essence of the doctrine is that a fact, which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. This rule is roughly speaking an
15
R.A Clark: Changing face of the rule against heasay in English law, Akron law review 1987 -1988 at 71 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. 16
14
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."
Dying Declartion and Hearsay Evidence A dying declaration is a statement made by a dying person as to the cause of his death or as to any circumstances of the transaction that resulted in his death. It is evidence under Section 32 (1) of Indian Evidence Act,1872. This section is an exception to the general rule that hearsay evidence is no evidence. The dying declaration is a statement by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant under section 32(1) of the Evidence Act in a case in which the cause of that person's death comes into question. It is true that a dying declaration is not a deposition in Court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination by way of an exception to the general rule against the admissibility of Hearsay Evidence on the principal of necessity. The Supreme Court held that in the present case the statement of the prosecutrix does not directly state any fact regarding the cause of her death and at the most it could be stretched to say referring to the circumstances of the transaction resulting in her death.19 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 of Hearsay 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 Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. Oral or written testimony about an out-of-court statement attributed to someone other than the testifying person is said to be the hearsay evidence. Such evidence is generally inadmissible because the person to whom the statement is attributed cannot be crossexamined to ascertain its factual basis. This is the general rule of non admissibility of hearsay evidence in court as to either prove or disprove any fact. 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-andrule-against-hearsay/
http://www.legalindia.in/different-kinds-of-evidences-witnesses-under-the-indianevidence-act
http://www.lawteacher.net/common-law/essays/admissibility-of-evidencerecorded-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.
Sarathi, Vepa P., Evidence Law, 2002, Eastern Book Company.
Monir, M., The law of Evidence, 201, Universal‟s publishing Co.
Krishnamachari, Law of Evidence, 2012, S. Gogia and Company.
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