Symbiosis Law School, Nagpur”
Symbiosis International University, Pune
BY BHUMI SHARMA
B.A L.L.B
21010421102
Abstract
- INTRODUCTION………………………………………………………………………
- Objectives
- Research Problem
- Hypothesis
- RESEARCH METHODOLOGY………………………………………………………
- REVIEW OF LITERATURE…………………………………………………………….
- HISTORICAL ORIGIN OF THE HEARSAY RULE
- HEARSAY EVIDENCE UNDER INDIAN EVIDENCE ACT, 1872………………….
- Definition of hearsay evidence
- Admissibility of Hearsay evidence
- HEARSAY EVIDENCE IN MODERN LEGAL SYSTEM…………………………
- Judicial interpretation of hearsay in modern legal system
- Analysis of case laws
- SUGGESTIONS……………………………………………………………………….
- CONCLUSION………………………………………………………………………….
The Role of Hearsay Evidence in Modern Legal Systems
A Comparative Study
ABSTRACT
The law of evidence is one of the most dynamic subject and in democratic countries it is generally based on certain principles, one of which is “Innocent until proven guilty” meaning thereby accused is to be considered innocent until it is proven that he has committed that particular crime. There are many kinds of evidence which are covered under Indian Evidence Act one such is Hearsay evidence which is considered most underrated one, here in this research paper we will examine Hearsay evidence in detail that how it is presented before the court and will also do comparative analysis with the help of statistical data to showcase how this evidence is taking shape in the modern legal system. Analyzing the modern Indian legal system with respect to hearsay evidence we will also glance into the position of this evidence in the International Criminal Court. After making all the submission to readers author will conclude this research project with her suggestions and inputs on the role of Hearsay evidence.
Keywords: Hearsay, Evidence, Court, Witness, Admission.
INTRODUCTION
Indian Evidence law mainly focuses on the establishment of the facts keeping aside the consequences of those facts. As we have an adversarial system, the evidence law becomes the most important branch of law; it helps the judiciary to reach out to the conclusion by separating and distinguishing the relevant facts from the irrelevant facts and come out with a most fair judgment.
Our modern evidence act is whole based on the three important principles which are:-
- Evidence incurred in the case must be solely related to the facts and facts in issue.
- In every circumstances the hearsay evidence, which is a kind of evidence is not to admitted.
- The evidence put forth in the particular case must be admitted and proved in the trail.
If we analyze the above points we could gather that HEARSAY EVIDENCE is not given much importance in our modern legal system, these are generally avoided. So know let us look what is hearsay evidence, basically hearsay evidence as the name suggests it is heard and said evidence in this a witness gives evidence or testimony in the court relying on what he heard or gathered from someone else, this is called hearsay. The problem which arises in this kind of evidence is that “if a person comes out to be a witness in a trail, he cannot testify relying on someone else’s statement”. The example to simply understand the hearsay evidence could be, “My brother told me that he saw accused committing the crime at 3am”. This is the hearsay statement and it is not considered conclusive evidence or primarily admitted in modern legal system but there are exceptions as well.
The law which relates to the hearsay evidence in the criminal proceeding is quiet complex in nature, it is basically any oral or written statement made by person who is not testifying in court to the person who is testifying in court. We will understand this law of hearsay evidence and exceptions which exist by comparing the ancient and modern legal system in relation to this law.
Objectives:
- To explain the hearsay evidence and its history.
- To analyse the problems with hearsay evidence in modern legal system with statistics.
Research Problem:
- What is the changes hearsay evidence had observed in modern legal system.
Hypothesis:
- The Modern law relating to admissibility of hearsay evidence in court is perfect no amendments are required.
RESEARCH METHODOLOGY
This is a doctrinal research. The researcher has referred books, research articles, unpublished thesis, case laws, case comments and e-sources as a part of secondary source of the writing of the project.
REVIEW OF LITERATURE
HISTORICAL ORIGIN OF THE HEARSAY RULE
This hearsay rule had originated from ancient times it means the statement which can be oral or written made by someone else (third party) and presented by the party testifying before the court. If we glance into the origin of this rule of hearsay it came into existence from 1400’s, but we could see the variation it brought from time to time. In 1500’s this rule was considered as a reliable source of evidence but later in 1700 it was no longer considered as reliable but as a corroborative evidence. These stances also changed from time and in modern time this rule of hearsay brings certain exception and exclusions when considered before the court in particular case.
As we all know in the earlier times criminal trial use to take place through jury system, in those days testimonies used to be collected from witnesses in a fortnight and then presented before the court during the trial. This practice was considered as hearsay as in these testimonies used to be collected from people and then presented in relation to facts of the case, and witnesses might or might not be present to sustain the allegation. The problem with this rule arose when jury found no likelihood of truthfulness and cross examination also failed to establish the truthfulness of these hearsay statements and also this type of evidence made certain confusions in Federal court, so as to deal with this problem certain exception were laid down when it comes to considering this type of hearsay evidence in court. These common law exceptions were different in different nations but the sole purpose was the same.
Hearsay rule was first codified and enacted with exception in “Mas- sachusetts Hearsay Statute of 1898” in this statute it was laid down that if any declaration is made by the deceased person in good faith to the person is testifying or declaring in the court, it shall not come under the exception on the ground that it was a hearsay statement, it shall be considered as a corroborative evidence at the satisfaction of the court. Later around 1939 in the American Law Institute it was proposed that hearsay statements can only be admitted in the case when the person declaring has the first hand knowledge of the information in relation to facts made by the person who is unavailable to testify in court.
Now we could analyze that the rule of hearsay had developed with time, if we talk about the Indian Evidence Act it clearly provides that the hearsay statement would be admissible if it directly relates to a fact of the case, statements made by any person in oral or written form who intent to establish a fact, this rule is laid down with certain exceptions. We should also focus on the fact that Hearsay evidence in modern legal system is not given much importance if we compare with other forms of evidence.
HEARSAY EVIDENCE UNDER INDIAN EVIDENCE ACT, 1872
- Definition of hearsay evidence
Hearsay evidence is basically a statement which can be oral or written made by a person who is not called as a witness in court, so in a lay man language this type of evidence involves the use of statement made by someone who is not testifying in court by the person who is testifying in court to prove the facts in relation to a particular case.
- Admissibility of Hearsay evidence
Under Indian Evidence Act, hearsay evidence is regarded as weak evidence and generally it is not admissible until and unless it falls within the ambit of exceptions provided by the evidence act, so there are some important exceptions provided by the act are as follows:-
- Dying declaration: As per section 32(1) of IEA Dying declaration is a statement made by a person who is dead, unavailable. Statement are made admissible in the court if they are made under the belief of death and are much related to establish the cause of death or the circumstances of person’s death. This statement can be hearsay statement but can be admissible in court as corroborative evidence.
- The concept of Res Gestae: Statement made as a part of same transaction in the case is admissible even though it is hearsay statement under section 6 of the Indian evidence act. Section 6 of IEA creates an exception to the general rule of inadmissibility of hearsay evidence until hearsay forms the part of same transaction. This exception was upheld the case of “Bhaskaran v. State of Kerela”, “the court held in this case that the courts held that “While no doubt the spontaneity of the statement is the guarantee of the truth, the reasons for its admissibility under Section 6 is that it is a part of the transaction and not merely because it is spontaneous. The statement is relevant only if it is that of a person who has seen the actual occurrence and who uttered it simultaneously with the incident or so soon thereafter as to make it reasonably certain that the speaker is still under the stress of the excitement caused by his having seen the incident”.
- Expert opinion: As per sec 45 of IEA in certain cases expert opinion is regarded as one of the most important evidence this can be admissible in court even though hearsay if opinion is formed by expert who is of the same field.
- Admission and confession by other party: Indian Evidence Act covers the concept of admissions from section 17 to 23, in simple terms if we understand the admission means when a person voluntarily accepts and acknowledges the existence of a fact or a fact in issue either in oral or a written form. On the other hand confessions are covered between section 24 to 30 in the IEA which refers to a situation when a person accepts his guilt before a court, it is basically direct admission of the facts involved in the case, which could be in any form oral or written.
This exception was well discussed by the Supreme Court in the case “State of Maharashtra vs. Kamal Ahmad Mohd. Vakil Ansari” In this case it was held by the SC that the “Admissions and confessions are exception to the hearsay rule as they are declarations against the interest of the person making them, they are considered true.
- Previous hearings statements: As per section 33 of IEA “Evidence given by a witness in a judicial proceeding or before any person authorized by law to take evidence will be relevant for in the subsequent proceeding in the same case, meaning thereby if at later stage witness is not found, dead or any delay happened these statement can be used. Therefore this creates an exception to the hearsay rule.
HEARSAY EVIDENCE IN MODERN LEGAL SYSTEM
Supreme Court time and again came up with certain important judgments and established the hearsay evidence in contemporary legal system, In case of KALYAN KUMAR GOGOI V. ASHUTOSH AGNIHOTRI & ANR., the apex court in this case elaborated the concept of hearsay evidence and stated that “the meaning of hearsay itself suggest the evidence which is written or spoken but is coming for someone other than the witness and based on the veracity and competence of that person”. In contrast to this judgment the Patna High Court’s Privy Council in RABINDAR NATH THAKUR V. UNION OF INDIA & ORS. held that as hearsay evidence is a kind of indirect evidence and the witness may or may not be hearsay. It is inadmissible when the sole purpose of evidence is to establish the truth of what is contained in the statement”.
- Intersection between expert opinion and hearsay evidence”
In the admissibility of hearsay evidence there is a rule which IEA lays down that ‘the facts of the case which lays down the expert’s opinion shall be admissible by the court’. These facts are made admissible because this comes under the ambit of personal knowledge and comes under the category of real evidence which can be proved by other witness. This is not a blanket rule it is challenged when experts opinion is solely based upon the facts which are stated in documents or in witness testimony in court, so this rule will apply to expert and witness both. However there is a distinction which is seen in common law between ‘Information and knowledge’ in case of experts opinion, which he has acquired from different sources without having any knowledge of Fact in issue involved in case. Additionally information is of many types one such is professional information which expert gain in the course of his profession and as a result thsese kind of information can overlap with hearsay evidence making it a admissible one.
- Analysis of case laws
The information which is acquired Professionally comes under the ambit of hearsay as experts have reliance over them therefore hearsay rule is relaxed over them and is considered true in the court of law, this was made out in the case of ANITA DAMU V. PUBLIC PROSECUTOR. In modern legal system it becomes difficult for a party to justify the expert’s professional information which it is producing before the court. But as we analyzed above that expert’s opinion or professionally acquired information is an exception to the rule of hearsay, similar assertion was made in EXPORTERS PTY LTD V. ELDONWALL where the court held that the expert opinion is one of the most important in the case but it should come out of experts field of competence.
The Apex court in its recent judgment held that under the Indian Evidence Act ‘a newspaper report comes under the ambit of Hearsay evidence and it cannot be treated as a primary evidence but as a secondary evidence. Tahsildar Singh & Anr. V. State of Uttar Pradesh (2019). This case involved the admissibility of statements made by co-conspirators in a criminal conspiracy. Holding: The Supreme Court of India held that statements made by co-conspirators are admissible under Section 10 of the Indian Evidence Act, 1872, if they are made during the course and in furtherance of the conspiracy. The Court emphasized the need to evaluate the context and reliability of such statements.
Statistical Data with regard to Hearsay
Court respond in case of Hearsay within Hearsay
SATISFACTION RATE, FAIRNESS, ACCURACY
SUGGESTION & CONCLUSION
The hearsay evidence has seen some changes from time to time as this rule of hearsay draws many evidential references . The hon’ble supreme court in the case of STATE OF HARYANA V. RATTAN SINGH held that, “there is no allergy to hearsay evidence in such enquiry provided it has reasonable nexus and credibility”. Although the rule of hearsay seem simple but it is complicated and neither completely admissible nor inadmissible. It should be of prime importance while dealing with these matters the courts need to take into consideration all the circumstances and facts specific to them. Conclusively, since the Indian law requires every piece of evidence to be given under person responsibility i.e. a sense of accountability which would dismiss any chance of falsifying statements without liability, therefore such statements are inadmissible with the exception of special circumstances.
The treatment of hearsay evidence within modern legal systems remains a complex and evolving issue. Historically rooted in the need to ensure the reliability of evidence and the right to cross-examination, the hearsay rule has faced increasing challenges with the advent of digital communication and technological advancements. This research has explored the inherent problems with hearsay, the rationale behind its general inadmissibility, and the recognized exceptions that provide flexibility within the legal framework. To ensure hearsay evidence contributes constructively to the pursuit of justice, several strategic recommendations have been proposed. Enhancing the reliability standards and contextual evaluation of hearsay evidence is crucial, especially in the digital age. Expanding and clarifying exceptions to accommodate new forms of communication, alongside a flexible admissibility framework, can address the dynamic nature of evidence presentation. Moreover, promoting cross-examination alternatives and leveraging technology to support the evaluation of hearsay evidence can mitigate the traditional concerns about its use. Training and education for judges and legal practitioners, along with transparent judicial processes and legislative updates, are vital in adapting the hearsay rules to contemporary needs. In conclusion, while the hearsay rule is essential for maintaining the integrity of the judicial process, its application must evolve to keep pace with societal and technological changes. By implementing the proposed recommendations, the legal system can better balance the need for reliable evidence with the rights of the parties involved, thereby enhancing the fairness and effectiveness of legal proceedings. This dynamic approach ensures that hearsay evidence, when properly managed, can be a valuable component of the modern justice system.