Exclusion of Hearsay Evidence

Bharatiya Sakshya Adhiniyam, 2023

TANMOY MUKHERJEE INSTITUTE OF JURIDICAL SCIENCE

Dr. Tanmoy Mukherjee

[Advocate]

 

 

Exclusion of Hearsay Evidence-

Tanmoy Mukherjee

     [Advocate]

1. Admissions and Confessions. (Sections 15-25 BSA) (Sec 17-31 IEA)-

Meaning: Statements made by party acknowledging facts against their own interest are admissible.

Reference Cases-

-Pakala Narayana Swami v. Emperor (AIR 1939) PC 47

Confession to wife admissible.

-State of U.P. v. Deoman Upadhaya (AIR 1960) SC 1125

Admission is substantive evidence.

-Aghnoo Nagesia v. State of Bihar (AIR 1966 SC 119)

Confession can be partly admissible.

 

2. Dying Declaration - Section 26(a), BSA (Sec. 32(1) IEA)

Meaning: Statement by a deceased person about cause or circumstances of death is admissible.

Rationale: Nemo moriturus praesumitur mentiri (a man will not meet his maker with a lie).

Reference Cases-

-Khushal Rao v. State of Bombay (AIR 1958) SC 22.

Dying declaration can be sole basis of conviction.

-P.V. Radhakrishna v. State of Karnataka (2003) 6 SCC 443

Dying declaration reliable if voluntary and truthful.

-Laxman v. State of Maharashtra (2002) 6 SCC 710

No requirement of medical certificate if court satisfied that victim was conscious.

3. Statements by Persons who cannot be Called as Witnesses - Section 26 BSA (other clauses) ,Section 32, IEA (other clauses)-

Includes statements made by:

Persons dead, missing, incapable of testifying.

Statements made in ordinary course of business, against interest, relating to family matters.

Reference Cases-

-Sharad Birdichand Sarda v. S.O. Maharashtra (1984) 4 SCC 116

Section 32 statements relevant when witness is unavailable.

Moti Singh v. State of U.P. (AIR 1964 SC 900)

Statements of dead person admissible to prove family pedigree.

4. Former Testimony - Section 27 BSA (Section 33, IEA)-

Meaning: Evidence given by a witness in earlier proceedings is admissible in later proceedings if:

A.Witness is dead/cannot be found.

B.Parties and issues substantially the same.

C.Opportunity for cross-examination was given.

Reference Cases-

-Tehsildar Singh v. State of U.P. (AIR 1959 SC 1012)

Depositions in earlier case admissible under Section 33.

-State of U.P. v. Ramesh Prasad Misra (1996) 10 SCC 360

Prior testimony relevant if conditions fulfilled.

5.Entries in Books of Account - Section 28 BSA/Sec. 34 IEA-

Meaning: Regular entries in books of account, including electronic records, are relevant though not alone sufficient.

Reference Cases-

-Chandradhar Goswami v. Guwahati Bank Ltd. (AIR 1967 SC 1058)

Entries need corroboration.

-Ishwar Dass Jain v. Soham lal (2000) 1 SCC 434

Business records admissible, but not conclusive.

6. Public Documents - Sec. 29, 74, 76 BSA (Sec. 35, 74, 77 IEA)-

Meaning: Entries in public or official records made in performance of official duty are admissible.

Reference Cases-

-State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684)

Genealogical tables in public records admissible

-Babulal v. Collector of Customs (AIR 1957 SC 887)

Public documents admissible even if hearsay.

7.Evidence as to Reputation/Custom - Sec. 42-44 BSA (Sec. 48-50 IEA)-

Meaning: Opinion or reputation regarding relation, family, customs, rights, or character admissible.

Reference Cases-

-Subramaniam v. Public Prosecutor (1956) 1 WLR 965

Distinguished between hearsay and relevance and of statements showing state of mind.

-Dolgobinda Paricha v. Nimai Charan Misra (AIR 1959 SC 914)

Opinion of persons about relationship admissible.

8. Expert Opinions - Sec. 39-45 BSA (Sec. 45-51 IEA)-

Meaning: Expert opinions (medical, handwriting, fingerprint, etc.) are admissible even when based on data from others.

Reference Cases-

-Ramesh Chandra Agrawal v. Regency Hospital (2009) 9 SCC 709

Expert opinion admissible even when based on recognized principles.

-State of H.P. v. Jai Lal (1999)7 SCC 280

Expert evidence advisory in nature but admissible.

9. Res Gestae - Section 4 BSA (Section 6 IEA)-

Meaning: Statements that are part of the same transaction and so closely connected with the fact in issue that they form part of it.

Admissible because they are spontaneous and contemporaneous.

Reference Cases-

-Ratten v. R (1971) 3 All ER 801

Phone call of victim "He will kill me" admissible as Res Gestae.

-Gentela Vijayavardhan Rao v. State of A.P. (1996) 6 SCC 241

Statements of passengers during a bus fire admissible.

-Sukhar v. State of U.P. (1999) 9 SCC 507

Immediate statements of eyewitnesses admissible.