The rule of Hearsay has its root from primeval times. Hearsay means the statements or assertions made by the information received from the third person. It may be present before the court; however it is not reliable every time. There are certain exceptions to it and that statements may be admissible before the court only in the exceptional cases. Generally, the hearsay statements are deemed as the out-of-court statement, which means the statement which was taken outside the court and not upon the oath and that’s the reason that it becomes irrelevant. An out-of-court statement creates uncertainty and it becomes impossible to pass any verdict against anyone, on the basis of hearsay assertions.
As per the Harvard Law Review, ‘the concept of Hearsay was at the stage of nascent from 1400’s. Then it varies from centuries to centuries. In 1500’s, the centre of attention of the juries was became the production of the person in the court, and they found the statements made upon the oath, reliable. Earlier it was the non-accepted concept, but later nearly 1700’s it became admissible as the corroborative evidence, but not as the sole evidence. In that meantime, the ambit of exclusion and exemption of it, was propounded. It was then propounded that, the out-of-court statements does not give the opportunity of probe through the mode of cross examination to the counsel of the opposite party and this was a one of the reason for the exclusion of this rule’.
In Indian legal system, this concept was firstly introduced in the Indian Evidence Act, 1872. However, it is not defined anywhere, but there are some provisions and precedents by which we are now able to understand this concept. At present this rule carries lower mass and generally it is not allowed in the courts to influence the verdict, as it seems as the weaker evidence and the assertions made under this rule has deficiency of trustworthiness. It is believed that the hearsay statements are fabricated and tailored stories which are made up with the different mentality.
Section 60 of the Indian Evidence Act clearly excludes this rule. Hearsay is all about hear and then say, that means the assertions or statements made by the information that has been received from someone else, whereas Section 60, stated that only direct evidence shall be entertained by the court. Section 60 talks about the oral evidence. It provides that, the oral evidence discovered through sighting, hearing, touching, smelling, or through whatever means, it must be direct, i.e., the witness himself saw or heard the happening of offence or otherwise received by his own presence on the spot. It encompasses direct evidence, while the hearsay evidence is indirect evidence.
Court does not allow and also disregard the hearsay evidence because the judges are unable to see and understand the demeanor of that person who actually made that statement. Hearsay statement depreciates and the veracity encompasses in that statements also going to the end, due to the unknown number of repetition.
Vinod Kumar Bhutani v. State Thr. CBI, 2013:“In this case, it was held that the facts become relevant when the person who states the assertion had seen it or heard it with his own sense, and it becomes tantamount to irrelevant if he got that information from someone else or from the third party. Court observed that the assertor takes no responsibility of the statement made by him, he can easily escape from his responsibility by saying that someone had told him this or that.”
As we have discussed before about the exclusion of hearsay rule from the judicial system, now we will see the reasons that why this rule seems not suitable as the evidence? So the reasons of exclusion of hearsay rule are:
- Firstly, it cannot be tested or probe through cross examination by defense counsel.
- Secondly, these statements are out-of-court statements, that is, these are not taken upon the oath. Oath plays the expedient role in the trials as it carries the veracity of statements.
- Thirdly, it becomes impossible for the courts to rely upon the things or evidences, whose main source is unknown. Sometimes it is even daunting to the person who is giving the hearsay statement to tell about the origin of that particular statement, so how the justice will be provide on the basis of that statement.
- Fourthly, the hearsay evidence is believed to be the weak and indirect evidence, while, the Evidence Act deals with the direct evidences and it supports the best evidence, probability as the sole evidence is count as nothing there.
- Fifthly, the out-of-court statements may be the rumors to defame or to harass someone, or the rumors spread with the motive to trap someone in the court cases, or it can be the tittle-tattle.
The exceptions of hearsay rule are:
- Res Gestae: This doctrine relates with the Section 6 of the Indian Evidence Act. It provides that, the facts which are not in issue but they are so connected with the issue so as it forms the same transaction, then that facts shall become relevant. Here, the fact means the things which the person himself perceives by sighting or otherwise by his own sense. And relevant fact relates to section 5 to 55 of Indian Evidence Act, which means the facts that are related to the subject matter. The fact that forms a part of same transaction. So the conclusion made here is that the hearsay statement may be admissible and reliable if it forms in the same transaction.
- Admission and Confession: Admission and Confession, both of them are comprises in the exceptions of the hearsay rule of evidence. Admission given under Section 17 of Indian Evidence Act and Confession related provisions portrayed under Section 24 to Section 30 of Indian Evidence Act. Section 17 defines the admission as the statement, whether in oral, in document or in an electronic form, which demonstrate the inferences to the relevant facts. So the statements or say the admission of liability which put forward the inference to the relevant facts may be admissible in courts.
Though the confession is not defined anywhere in the evidence act, but there are some provisions present in the evidence act which displays the concept of confession. Extra judicial confession or Admission may be use as corroborative evidence.
- Dying Declaration: Section 32 of Indian Evidence Act, had defined the rule of dying declaration. It says that if a victim or any person who is near to the death and he or she is unable to attend the court and cannot mark his physical presence in the court, then he or she can make his statement to any person and that person to whom the hearsay statement was made, may present the hearsay statement before the court as the witness. Dying declaration is admissible in courts and it may be the oral and written statement or may be declare through the gesture also, it was held in the known case that is Queen vs. Abdullah.
- Evidence given by witness in former proceeding (Section 33): If the witness has been died or unable to present before the court, then his previously given statements or evidences provided in the last proceedings shall be implied in further proceedings.
Hearsay rule is very general thing in each crime. Sometimes it plays the pivotal role as it may give the direction to the inquiry, and it gets easier sometimes to find the blind letter accused, hidden behind the veil. But, it is obviously cannot be the reliable evidence as it may be the concocted story to irritate someone and it is also taken without the oath in the form of out of court statement. So it is appreciated that courts do not allows it to influence the judgment.
Author(s) Name: Pooja Katre (Renaissance Law College, D.A.V.V. University, Indore)