Rule of Hearsay and its Exceptions

Introduction:

Hearsay is made of two words, ‘hear’ and ‘say’, it is the type of testimony that is not based on private communication but it is what the witness has heard out of court it is like second-hand information. However according to Lord Reid, the rule of hearsay can not be defined with accuracy, it has a sense of ambiguity.[1]

Generally, it is defined as the statement/s given by the person who himself has not witness the situation but has heard about it from other people. [2]

Rule of Hearsay take into its ambit not only spoken words but also documents and body language.

Admissibility[3]

Since a hearsay statement is clubbed with inaccuracies, false information, untrue construction, therefore:

1. the person making such a statement is not responsible for it,
2. there may be a distraction from the sense by repetition of the statement, or
3. the person giving the testimony on the pretext of not having any responsibility may place a fraudulent statement despite knowing its nature.

due to the above-mentioned points, this form of evidence is not admissible to prove a fact.

Hearsay in the Indian Legal Context

Hearsay under the Indian Evidence Act

The Supreme Court of India in the case of, Kalyan Kumar Gogoi v. Ashutosh Agnihotri and others[4] stated that it is the kind of witness which do not depend wholly upon the credibility of the witness but also upon the credibility of some third person. It includes not only spoken evidence but also written and evidence by way of gesture.

Privy Council in the case of Rabindar Nath Thaakur v. Union of India & Others.[5], held that statement given by the person as the witness who himself has not witnessed the situation may or may not be hearsay. It is hearsay when the evidence is called to ascertain the truth of the statement given.

In the Indian Evidence Act the term, ‘hearsay’ is not mentioned to do away with the ambiguity and non-accuracy in the particular statute.[6] This form of evidence is not admissible under any Indian Statute, except as according to the exceptions mentioned in the Indian Evidence Act.

Exceptions to the Rule Against Hearsay Evidence[7]

Hearsay evidence is admissible in the court of law only if it is so provided in the statute or rules.

If the statement made in the evidence is hearsay it is applicable if it comes under the exception. According to the Federal Rules of Evidence (FRE), there are about thirty exceptions to the rule of hearsay.

It is upon the state to follow or not to follow the exceptions as provided by the Federal Rule of Evidence.

Most Common Hearsay Exceptions

1. Present Sense of Feeling– If the statement tells about the situation which occurs during or after the event then it falls under the exception.
2. Excited remark– Such a statement must be made under the excitement or stress of something. The statement should be closely related to the present tense.
3. Then Existing Mental, Emotional, or Physical Condition– A statement which is made to show emotion or state of mind and not the truth of the statement, such falls under the exceptions to the hearsay rule of evidence. For example, if the person says about heated arguments then only the fact that there was anger in mid should be taken into account.

Other Exceptions

In addition to the above common evidences there are some more:

• Medical:  If any statement is given to the medical professional for the purpose of treatment or diagnosis then it is admissible.
• Reputation: Statements made regarding the reputation of the person or family.
• Documents: Documents like business and government records fall under the exceptions.

Hearsay Exceptions if the Declarant is Unavailable to Testify in Court

Some exceptions are available to the general rule of admissibility of hearsay evidence only if the declarant is not present in the court of law. Situations when declarant is considered unavailable:

1. When according to the court declarant is not required to be present in the court,
2. When the declarant refuses to turn up in the court for giving testimony,
3. When declarant fails to turn up due to some unavoidable circumstances,
4. When the declarant is either dead or is mentally or physically unfit to attend the court, or
5. when declarant cannot be located.

If the declarant is unavailable then these kinds of evidence are admissible:

1. Previous testimony,
2. Statements given under belief of approaching death,
3. Statements made by the person against himself i.e. his own interest, or
4. Statements of describing his own or his family history.

Catchall Exception

The last exception is the “catchall” rule. The hearsay exception not included in any of the previous exception shall be still admitted if comes under the following:

1. It depicts a guarantee of truth in the statement.
2. It is to prove some material fact in the issue.
3. Such  admission is in the interest of justice.
4. The opposite party is going to include it in their evidence as mentioned in their list of evidence.

Exceptions to Hearsay under the Indian Evidence Act

In the case of Teper v. The Queen,[8] it has been noted that the fundamental rule is the rule against the acceptance of hearsay evidence.

Chapter IV of the Indian Evidence Act regulates the statements given orally and according to it, the oral evidence must be direct and certain in nature.[9] This makes it clear that the person making the statement in the court of law must have witnessed what he is describing.

However, some exceptions are allowed to it. The main exceptions are:

1. Res Gestae

As per the Black Law Dictionary, res gestae means things done. Under section 6 of the Indian Evidence Act, res gestae as facts which are not part of the facts in issue but are so connected with the facts in the issue that they form part of the same transactions despite their happenings. The Indian Evidence Act allow such a statement to be admissible, making it an exception to the rule of hearsay.

Furthermore, the Courts have also observed that; “the statement of law in section 6 of the Evidence Act is usually known as Res Gestae. The literal meaning of the word ’res’ is everything that may form an object of rights and includes an object, subject matter or status.”^[18] In this scenario, once the statement is made, it may be further proved during the legal proceedings by another person appearing as a witness wherein the aforesaid statement is a part of the same transaction.

The court in the case of Babulal Choukhani v. Western Indian Theatres Ltd. and others observed that when the witness reaches the place where the crime was committed after lightning to the sound of fire and saw wounded person, such fact was admissible under Section 6 of the Evidence Act as the act form same part of the transaction.

2. Admission and Confession

Admissions are defined under section 17 to section 23 and Confessions are defined under section 24 to section 30[10].

Admission is defined under section 17 of the Indian Evidence Act as the statements which gives any conclusion about the fact which forms the part of the issue, and which comes out by any person.

Confession is not defined in the Indian Evidence Act but it generally means the fact admitted by the person due to his guilt in the court.

3. Dying Declaration

The Supreme Court ruled in the case of  Muthu Kutty and others v. State of Tamil Nadu[11] that the dying declaration is the exception to the general rule against the admission of hearsay evidence. 

The deceased person before death is not in the situation to state in the court of law hence such statements are made an exception as to the general rule regarding the admissibility of the hearsay statement.

4. Evidence given in a previous Formal Proceedings

According to section  33 of the Evidence Act when a particular witness states the court of law regarding the truthfulness of any fact, then in the subsequent proceedings such statement will be admissible if the witness is not able to attend the court due to his death or some other reason.

Defenses Against Hearsay Evidence

If the court permitted the hearsay evidence under any of the exceptions, then the accountability of the person offering the statement may be attacked. This can be done by showing that the declarant has the reason to make a false statement and evidence can be given to prove it.

Conclusion

The rule of hearsay synchronize the drawing of evidential deductions. The Supreme Court mentioned in the case of State of Haryana v. Rattan Singh there is nothing against the hearsay evidences, such can be accepted if their credibility is proved.[12]

The hearsay evidence though inadmissible at times have differentiated image in the legal system around the globe. While admitting such evidences all related facts and circumstances having nexus with such statement shall be kept in mind.

Such evidence is admissible only if comes under the exceptions because the law requires the person making the statement to be accountable for them, but in the case of hearsay evidence person is not accountable and hence for protection of law such is inadmissible safe as by the exceptions.

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References:

[1] Aditi Singh, Rule of Hearsay Evidence under the Indian Evidence Act, (Sept 27,2020) https://lexforti.com/legal-news/rule-of-hearsay-under-indian-evidence-act/

[2] Dr. Caesar Roy,Hearsay Rule and Doctrine of Res Gestae — An Analytical study with reference to Indian Evidence Act, 1872, 4 JCIL 65, 66 (2018),(2018), https://www.studocu.com/in/document/university-of-lucknow/international-law/mandatory-assignments/hearsay-rule-and-doctrine-of-res-gestae-an-analytical-study-with-reference-to-indian-evidence-act/10130590/view

[3] Aditi Singh, Rule of Hearsay Evidence under the Indian Evidence Act, (Sept 27,2020), https://lexforti.com/legal-news/rule-of-hearsay-under-indian-evidence-act/

[4] Kalyan Kumar Gogoi v. Ashutosh Agnihotri and others, (2011) 2 SCC 532, (India).

[5] Rabindar Nath Thaakur v. Union of India & Others, (1998) 3 PLJR 495, (India).

[6] Subramaniam v. Public Prosecutor, (1956) 1 WLR 965, (India)

[7] Findlaw, Hearsay Evidence, (Feb 12,2019), https://criminal.findlaw.com/criminal-procedure/hearsay-evidence.html

[8] Teper v. The Queen, [1952] A.C. 980

[9] Indian Evidence Act, Section 60 (1872)

[10] Oral or documentary or contained in electronic form, Act 21 of 2001

[11] Muthu Kutty and others v. State of Tamil Nadu , (2005) 9 SCC 113, (India).

[12] State of Haryana v. Rattan Singh, (1977) 2 SCC 491, (India).