'Hearsay evidence is not admissible.' Explain. What are the exceptions to this general rule? Explain the reason for exclusion of hearsay evidence. To what extent has the principle of exclusion of hearsay evidence been adopted in the Indian Evidence Act?

Hearsay Evidence is Not Admissible: The Rule, Its Rationale, and Its Exceptions

The proposition that "hearsay evidence is not admissible" is one of the most celebrated rules in the law of evidence, yet it is a rule that demands explanation before it demands application. It is, at its core, a rule of common sense — that a court of law ought to hear from the person who perceived a fact, not from the person who was merely told about it. And yet, absolute rules are invariably softened by necessity, and the Indian Evidence Act, 1872 — and its successor, the Bharatiya Sakshya Adhiniyam, 2023 (BSA) — have built into the very structure of the statute a series of carefully considered exceptions that temper the rule without destroying it.

What Hearsay Evidence Means

Though the phrase "hearsay evidence" does not appear anywhere in the Indian Evidence Act, 1872 or in the BSA, 2023, Sir James Stephen deliberately avoided it because he considered the term "inaccurate and vague," yet it remains in constant judicial use. In its legal sense, hearsay evidence denotes that kind of 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. Its weakness lies in the very fact that it is second-hand. When A tells the court what B saw, the court is relying on two layers of human transmission — the original perception of B, and A's faithful reproduction of it — without being able to test either by oath or cross-examination.

A concrete illustration will fix the idea. Suppose B witnesses X stabbing Y. B narrates what he saw to A. A comes to court and says "B told me that X stabbed Y." Now, X stabbing Y is a fact that could have been seen — and B could have been seen it. But A has not seen it. A can only take an oath that B told him so; he cannot take an oath about the stabbing itself. This is precisely the situation that Section 60 of the Indian Evidence Act (Section 55 of the BSA, 2023) guards against, by insisting that oral evidence must in all cases be direct.

The Rationale for Exclusion of Hearsay

The reasons for excluding hearsay evidence were stated with classical authority by Lord Normand in Teper v The Queen (1952 AC 480) in words that have been quoted with approval in India repeatedly: "The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost."

These observations capture the three cardinal reasons for the hearsay rule:

• It is not the best evidence. The law requires the most direct and reliable source to be placed before the court. The person who actually saw or heard is infinitely preferable to someone who was merely informed.

• It is not given under oath. The witness in court swears that he will speak the truth. But if he is merely repeating what someone else told him, his oath covers only the fact of being told — not the truth of what was told.

• It cannot be tested by cross-examination. Cross-examination is the great engine for the discovery of truth, the instrument by which falsehood is exposed and inconsistency revealed. Where the original declarant does not stand in the witness box, this instrument is rendered completely useless. The adverse party cannot probe what he cannot confront.

In addition to these three classical grounds, the learned commentators have identified further reasons: hearsay tends to protract trials by opening an endless chain of secondary sources; it is intrinsically weak in convincing the judicial mind; and it creates fertile ground for fraud, as unverifiable statements can easily be manufactured or distorted. Taken together, these infirmities justify the firm exclusionary rule that hearsay is not admissible.

To What Extent Has the Rule Been Adopted in India?

The Indian Evidence Act, 1872 has adopted the principle of the hearsay rule in full, but implemented it through an indirect structural mechanism rather than by an express, all-embracing prohibition. As the Select Committee, in its Report on the draft Bill, explained with admirable clarity, the joint effect of the relevancy provisions in Chapter II and Section 60 is threefold: first, the sayings and doings of third persons are, as a rule, irrelevant; second, in some excepted cases they are relevant; and third, every act or word relevant on any ground must, if proved by oral evidence, be proved by someone who saw it with his own eyes or heard it with his own ears. This tripartite operation of the Act represents a complete, logically coherent adoption of the hearsay rule in the Indian context, even without using the term.

The scheme is elegant: while common law systems carved out exceptions to a general prohibitory rule, the Indian Act achieves the same result by declaring facts relevant or irrelevant at the threshold itself. What is hearsay is, in general, irrelevant under Sections 5 to 55 of the Act, and whatever is relevant must then be proved in accordance with Section 60. The exceptions to the hearsay rule accordingly operate as pockets of relevance deliberately carved into the fabric of the Act.

The General Principle and the Exceptions

It is a recognised axiom that no principle of evidence law, however fundamental, can survive without exceptions dictated by the twin imperatives of necessity and trustworthiness. Hearsay, as a rule, is excluded; but when the original declarant is unavailable and the circumstances of the statement carry sufficient internal guarantees of reliability, the rule is relaxed. The Indian Act has built these relaxations not as grudging concessions but as principled exceptions, each grounded in a clear rationale.

Exception I: Statements by Persons Who Cannot Be Called as Witnesses — Section 32 (Section 26, BSA)

This is the most expansive and important exception to the hearsay rule in Indian law. Section 32 of the Indian Evidence Act (Section 26 of the BSA, 2023) makes the written or verbal statements of relevant facts made by persons who are dead, cannot be found, have become incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense themselves relevant facts — but only in eight specified circumstances. The rationale has always been dual: necessity, arising from the non-availability of the person as a witness, and circumstantial trustworthiness, a built-in guarantee of reliability arising from the circumstances in which the statement was made.

1. Dying Declarations — Clause (1) [Clause (a), BSA]

The most famous of these eight clauses is the first — the dying declaration. A statement made by a person as to the cause of his death, or as to the circumstances of the transaction which resulted in his death, is relevant in any proceeding in which the cause of his death comes into question. Crucially, unlike the common law position, the person need not have been under any expectation of death at the time of making the statement.

The philosophical justification is rooted in the Latin maxim Nemo moriturus praesumuntur mentiri — a dying man is not presumed to lie. As the foundational English case of R v Woodcock (1 Leach 500) put it, declarations in extremity are made "when the party is at the point of death and when every hope of this world is gone — when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth." The Supreme Court of India, in Laxman v State of Maharashtra (2002 6 SCC 710), adopted this philosophy and laid down the governing principles: a dying declaration can form the sole basis of conviction if it inspires the full confidence of the court; corroboration is a rule of prudence, not a rule of law; and the declarant must have been in a fit state of mind when making the statement.

This last question — fitness of the declarant — has generated substantial jurisprudence. The absence of a medical certificate is not fatal, but the person recording the declaration must be satisfied of the declarant's fitness. In Laxman, the Constitution Bench held that what is essentially required is that the person recording the statement must be satisfied that the injured person was in a fit state of mind; a medical certificate is only a rule of caution.

An interesting and closely debated question arose in the early case of Queen Empress v Abdullah (1885 ILR 7 All 385), where the victim, whose throat had been cut, could only answer questions by signs and gestures. The Allahabad High Court, by majority, held that such signs and gestures could constitute a "verbal statement" under Section 32, as the term "verbal" is wider than "oral." The Privy Council subsequently affirmed this view in Chandrasekhara Alisandiri v King (LR 1937 AC 220), and the Supreme Court in Laxman confirmed that "any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite." In the landmark Nirbhaya case of Mukesh v State for NCT of Delhi (2017 6 SCC 1), the dying declaration was recorded in part through non-verbal gestures by the victim, and the court accepted it as admissible.

2. Entries in the Ordinary Course of Business — Clause (2) [Clause (b), BSA]

When a statement has been made by the unavailable person in the ordinary course of business — especially entries in account books, memoranda prepared in the discharge of professional duty, or acknowledgements of receipt of money, goods, or property — it is relevant. The justification is that a record made routinely, not manufactured for an occasion, carries the hallmark of reliability that sporadic testimony lacks. As Illustration (b) to the section shows, an entry in the diary of a deceased surgeon recording the date and circumstances of a delivery is a relevant fact. Price v Lord Lorrington (1703 1 Smith's LC 277) established the foundational principle that delivery records habitually maintained are admissible after the maker's death. However, the entry must have been made by the person himself, and must reflect what was done in the ordinary course — not for a special or litigious purpose.

3. Statements Against Interest — Clause (3) [Clause (c), BSA]

When a statement is against the pecuniary or proprietary interest of the person making it, or would expose him to criminal prosecution or a suit for damages, it is relevant. The logic is borrowed directly from the law of admissions: a person is very unlikely to speak against his own financial, proprietary, or legal interest unless what he says is true. Self-interest is ordinarily a powerful incentive for self-preservation; a statement that cuts against it carries the built-in weight of sincerity. Illustrations (e) and (f) to Section 32 bring this to life — a deceased agent's letter acknowledging receipt of rent on behalf of his principal, and a deceased clergyman's statement that he had performed a marriage under circumstances that amounted to a crime, are both relevant.

4. Opinion as to Public Right, Custom, or Matter of General Interest — Clause (4) [Clause (d), BSA]

Rights and customs of a public or general character are often of ancient and obscure origin, incapable of proof by direct evidence. When a deceased person who would have been likely to be aware of the existence of such a right or custom expresses an opinion about it, and the statement is made ante litem motam — before any controversy on the subject arose — it is relevant. The requirement of ante litem motam is crucial: it ensures the statement was not coloured by the bias of self-interest in pending litigation. Illustration (i) is instructive — a statement by a deceased headman of a village that a given road was a public way is relevant.

5. Statements as to Relationship — Clauses (5) and (6) [Clauses (e) and (f), BSA]

Before DNA technology, questions of descent, parentage, and family relationship could only be proved by traditional evidence. Clause (5) makes the statement of a deceased person relevant to prove a relationship by blood, marriage, or adoption, provided the maker had special means of knowledge of that relationship and made the statement before the question in dispute arose. Clause (6) extends this to statements in wills, deeds, family pedigrees, tombstones, and family portraits — documents that are presumed to be prepared without motive to deceive — even without the requirement of special means of knowledge. The Supreme Court in State of Bihar v Radha Krishna Singh (AIR 1983 SC 684) cautioned that the courts must be slow to rely purely on the oral account of genealogy given by interested witnesses, as they may draw from imagination rather than special knowledge.

6. Statements in Documents Relating to Transactions Mentioned in Section 13 — Clause (7) [Clause (g), BSA]

When the statement is contained in a deed, will, or other document relating to transactions from which rights or customs were created, claimed, modified, recognised, or denied — as mentioned in Section 13(a) — it is relevant. Unlike clause (5), this clause does not allow oral statements; it is confined to documentary evidence and covers even private customs and rights.

7. Composite Hearsay — Clause (8) [Clause (h), BSA]

When a statement is made by a number of persons and expresses feelings or impressions on their part relevant to the matter in question, those statements are relevant. This provision deals with what is sometimes called composite hearsay or group reactions. The famous Beauty and the Beast case of Du Bost v Beresford (2 Camp 512) provided the inspiration for Illustration (n): the remarks of a crowd of spectators about the libelous character of a publicly displayed caricature are relevant.

Exception II: Evidence in Previous Judicial Proceedings — Section 33 (Section 27, BSA)

Section 33 deals with the admissibility of evidence given by a witness in a prior judicial proceeding in a later proceeding. If the witness is dead, cannot be found, is incapable of giving evidence, is kept out of the way by the adverse party, or cannot be produced without unreasonable delay or expense, his previous deposition may be used — but only subject to three strict conditions: the proceedings must have been between the same parties or their representatives in interest; the adverse party in the first proceeding must have had the right and opportunity to cross-examine; and the questions in issue must have been substantially the same.

As the Privy Council in Chainchal Singh v King Emperor (1945 72 IA 270) observed, it is an elementary right of an accused person or civil litigant that a witness who testifies against him should do so before the very court trying the case, which can observe his demeanour. Section 33 provides for the exceptional case only — and the conditions it imposes are strict precisely because the Court and the parties lose that opportunity. When compared to Section 32, Section 33 represents only a minor exception to the hearsay rule, because the earlier deposition was recorded in a judicial proceeding, under oath, subject to cross-examination — the very safeguards that hearsay ordinarily lacks.

Exception III: Admissions — Sections 17–23 (Sections 15–21, BSA)

An admission is a statement, oral or documentary, which suggests an inference as to any fact in issue or relevant fact, and which is made by one of the parties to the proceeding or their authorised agents. When A tells C that he borrowed money from B, and C deposes in court about what A told him — technically, that is hearsay, because A's borrowing from B is something that could have been seen. Yet the law permits it because it is a self-harming admission. It is very unlikely that anyone would admit to having borrowed money unless it is true. This self-harming quality serves as a substitute for the safeguards of oath and cross-examination.

Exception IV: Confessions — Sections 24–30 (Sections 22–24, BSA)

A confession is an admission of guilt. When A tells C that he murdered B, and C testifies to that in court, it is technically hearsay — C has not witnessed the murder. But the law permits confessions to be proved because they, like admissions, are self-harming statements. No person, ordinarily, would admit to having committed an offence unless it is true. The Supreme Court in State v Nalini (1999 5 SCC 253) clarified that while a confession is substantive evidence against its maker, it can only be used as corroborative material against a co-accused under Section 30 — not as substantive evidence.

Exception V: Res Gestae — Section 6 (Section 4, BSA)

Section 6 of the Indian Evidence Act (Section 4 of the BSA) renders relevant facts which are so connected with facts in issue that they form part of the same transaction. This is the celebrated doctrine of res gestae — the things done or said as part of the very transaction being investigated. A spontaneous exclamation made at the time of the act, or a statement so closely related in time and context to the principal fact as to be virtually inseparable from it, may be proved by a bystander who heard it. This is not hearsay in the true sense — the statement is relevant, not for its truth as such, but because its utterance itself forms part of the transaction. In Rattan v R (1972 AC 378), the Privy Council drew the crucial distinction: words spoken are facts, and if the speaking itself is relevant — not what was meant by the words — there is no hearsay involved at all.

Exception VI: Entries in Books of Account and Public Records — Sections 34–36 (Sections 28–30, BSA)

Entries in books of account (including electronic records) regularly kept in the course of business are relevant, even though those entries alone are not sufficient to charge liability. The maker need not be dead. Similarly, entries in public and official records made by a public servant in the discharge of public duty are relevant under Section 35 (Section 29, BSA). Statements in gazettes, Acts of Parliament, and government notifications are also admissible as exceptions to the hearsay rule, because public documents carry a presumption of regularity and authenticity under Section 114.

The Safeguard of Section 158

The Evidence Act is also sensible enough to acknowledge that admitting hearsay under Section 32 or Section 33 creates a real imbalance — the adverse party has had no opportunity to cross-examine. To remedy this, Section 158 provides that whenever a statement relevant under Section 32 or 33 is proved, all matters that might have been proved if the person had been called as a witness — whether to contradict or corroborate the statement, or to impeach or confirm the credibility of the maker — may still be proved. It is, in effect, a post-hoc substitute for the cross-examination that was never possible. In Rajasthan v Teja Ram (AIR 1999 SC 1776), the Supreme Court held that resort can be had to Section 155 to impeach the credit of the declarant by reference to internal contradictions in the dying declaration itself.

The Extent of Adoption: A Balanced Assessment

The Indian Evidence Act has adopted the principle of exclusion of hearsay evidence comprehensively, but has married that principle with a rich system of necessary exceptions. Taken as a whole, the position under Indian law may be summarised thus: hearsay is excluded because it lacks the three essential qualities of admissible evidence — it is not the best evidence, it is not given under oath, and it cannot be cross-examined. But where necessity demands and trustworthiness is supplied by the circumstances — whether by the solemnity of death, the habitualness of a business record, the self-harming character of an admission, or the rigour of a prior judicial proceeding — the exclusionary rule yields. The Act does not abandon the hearsay rule; it disciplines it. That discipline is what has made the Indian law of evidence, in this respect, more principled and more coherent than many of its common law counterparts.