Meaning of ‘Hearsay Evidence’
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.
The expression ‘Hearsay’ can be used in various senses According to Stephen, sometimes it means whatever a person is heard to say, sometimes it means whatever a person declares on information given by someone else.
The term ‘hearsay’ has not been defined in the Evidence Act. ‘Hearsay Evidence’ means derivative or second hand evidence.
Taylor defines hearsay evidence as “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.”
According to Best, hearsay evidence is “that which a witness is merely reporting not what he himself saw or heard, not what has come under the immediate observation of his own bodily sense but what he had learnt respecting the fact through the medium of a third person.”
According to Section 60, real evidence must, in all cases, be direct. It means only a direct evidence of a fact which can be preceived by senses can be given. Technically it may be said that hearsay evidence cannot be allowed to be given and thus are not admissible.
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.
Also Read History of Law of Evidence
Hearsay evidence has been applied in a wide sense to include-
(1) oral or written statements made by persons who are not parties and not called as witnesses; and
(2) statements contained in any book or document proof of which is not admissible on other grounds.
‘Hearsay Evidence’ The general rule.-The general rule is that hearsay evidence, that is,all statements oral or written, the probative force of which depends wholly or in part on the credit of an unexamined person, is inadmissible in evidence.
(i) A witness told the court that the officers, who were present on the spot, told him that one ‘J’ was driving the bus, was held to be not direct.(Jaddo Singh v. Malti Devi A.I.R. 1983. 87).
(ii) A police officer testified that he was informed by a person about the movement of a truck carrying liquor, the informant was not examined, held that the evidence was not admissible. (Bhugdamal Jangaram v. State of Gujarat, A.I.R. 1983 SC 906).
Exceptions.-Exceptions are to be found in Sections 17 to 39 wherein hearsay evidence can be given. Hearsay evidence is admissible in the following cases as a matter of expediency :
(1) In the case of dying declaration and of proof in the subsequent proceeding of the truth of facts stated therein on the ground of necessity and convenience, i.e., statements made under Section 32.
(2) In the case of admissions and confessions.
(3) In the case of certain statement made in the documents, private and public.
(4) Statement made under circumstances which in themselves afford a guarantee for their truth, as in books of account, public records, maps, Acts,notifications, etc.
(5) In matters of general or public interest.
Reasons for not admitting Hearsay as evidence:
The word ‘hearsay’ being rather vague and used in different senses it has not been used in the Indian Evidence Act. But Section 60 of the Act lays down the general principle underlying the rule. It says that “Oral evidence must, in all cases, be direct, that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be, the evidence of a witness who says he heard it”.
Hearsay evidence is not being the observation of a person’s own bodily senses but being what he was learnt respecting the fact through the medium of a third person is inadmissible in evidence as a general rule.
Grounds for non-admissibility of Hearsay evidence:
Hearsay evidence as a general rule, is not admitted in evidence for the following reasons-
(1) The irresponsibility of the original declarants for the evidence is not given on oath or under personal responsibility.
(2) It cannot be tested by cross examination.
(3) It supposes some better testimony and its reception encourages the substitution of weaker, for stronger proofs.
(4) Its tendency to protract legal investigation to an embarrassing and dangerous length.
(5) Its intrinsic weakness.
(6) Its incompetence to satisfy the mind as to the existence of the fact, for truth, depreciates in the process of repetition.
(7) The opportunities for fraud in its admission would open.
Of all the grounds mentioned above the most important ground for the exclusion of such evidence is the irresponsibility of the original declarants for the statements are unsworn and the matter is not before the court. Best emphasises this ground and observes that, “the foundation of the rule lies much deeper than want of opportunity to cross examine or delivery without sanction of an oath.
Instead of stating the maxim that law requires of all evidence to be given on oath, we should say that law requires of 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 falsehood which may be inflicted by any of the sanctions of truth.”
Hearsay Evidence When admissible and its exceptions
To the general rule that hearsay evidence is not admissible, there are certain exceptions each one of which is based on some justification.
The exception are mainly based on two considerations:
(1) A necessity for evidence, that is, in the cases wherein no better evidence can be had; and
(2) A circumstantial guarantee for trustworthiness.
The probability of the statement being true depends upon the safeguards which are mentioned in the eight clauses of Section 32.
If the general rule is observed strictly it may be impossible or it may cause unreasonable expenses or delay to procure attendance of a witness,who, if present before the court, could give direct evidence on the matter in question; and it may also be, that this witness has made a statement, either written or verbal, with reference to such matter under such circumstances that the truth of this statement may reasonably be presumed. In such case, Section 32 dispenses with direct oral evidence of the fact, the safeguard for truth being the circumstances in which the statement was made against the proprietary interest of the person making it.