'Oral evidence must in all cases be direct.' Discuss fully and illustrate your answer. Explain the reasons and the extent of the principle of exclusion of hearsay evidence under the Evidence Act.

Oral Evidence Must in All Cases Be Direct: The Rule Against Hearsay

Few principles in the Indian law of evidence are as fundamental, as universally applied, and as thoughtfully balanced as the requirement that oral evidence must in all cases be direct. This rule, embodied in Section 60 of the Indian Evidence Act, 1872 and now in Section 55 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), is the legislative expression of what scholars and judges across centuries have recognised as the cornerstone of the best evidence rule as applied to testimonial proof — that a court should hear from the person who saw, heard, or perceived, and not from the person who was merely told.

The Statutory Text and Its Architecture

Section 59 of the Indian Evidence Act (Section 54 of the BSA, 2023) opens the chapter on oral evidence by declaring that all facts, except the contents of documents, may be proved by oral evidence. This provision serves as the portal. Then Section 60 (Section 55 of the BSA) lays down the governing principle with deliberate emphasis: "Oral evidence must, in all cases whatever, be direct." The BSA, 2023 replaces the word "must" with "shall," thereby making the mandate even more conspicuously obligatory.

The section then specifies, with clinical precision, what "direct" means in each category of perceivable fact:

• If it refers to a fact which could be seen, the evidence must be of a witness who says he saw it.

• If it refers to a fact which could be heard, the evidence must be of a witness who says he heard it.

• If it refers to a fact perceived by any other sense — taste, touch, smell — the evidence must be of a witness who says he perceived it by that sense.

• If it refers to an opinion or its grounds, the evidence must be of the person who holds that opinion on those grounds.

The two provisos create carefully calibrated exceptions. The first proviso permits proof of an expert's opinion expressed in a published treatise by production of that treatise — but only if the author is dead, cannot be found, is incapable of giving evidence, or cannot be called without unreasonable delay or expense. The second proviso empowers the court to require production of a material thing referred to in oral evidence for its own inspection.

The Select Committee which drafted the Act explained the joint effect of the relevancy provisions and Section 60 in words of remarkable clarity: "their joint effect is that (1) the sayings and doings of third persons are, as a rule, irrelevant, so that no proof of them can be admitted; (2) in some excepted cases they are relevant; (3) every act done or word spoken which is 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."

What is Hearsay Evidence?

Hearsay evidence, though the phrase does not appear in the Indian Evidence Act or the BSA (Sir James Stephen considered it "inaccurate and vague"), is in constant judicial use. In its legal sense, it 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.

The principle can be illustrated simply. Suppose A sees B stab C. A tells D what he saw. In a subsequent trial, D appears as a witness. D's deposition that "A told me B stabbed C" is hearsay — because B stabbing C is a fact that could be seen, and D has not seen it. Only A's direct deposition in court satisfies the requirement of Section 60. As the New Zealand Evidence Act, 2006 defines it (and the definition captures the Indian position equally well), a hearsay statement is one that "was made by a person other than a witness and is offered in evidence to prove the truth of its contents."

The distinction between original evidence and hearsay was stated with authority by Lord Wilberforce in Ratten v R (1972 AC 378): "Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on testimonially, i.e., as establishing some fact narrated by the words." The Supreme Court of India in Awadh Bihari v State of MP (AIR 1958 SC 738) described direct evidence as "original evidence" and hearsay as "indirect or derivative evidence."

Why Hearsay is Excluded: The Rationale

The fundamental rationale for preferring direct evidence and excluding hearsay was expressed with memorable concision by Lord Normand in Teper v The Queen (1952 AC 480, at 486): "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."

The weaknesses are structural and multiple. First, when information passes from one person to another, it may get changed or distorted — intentionally or unwittingly. Second, while A can be prosecuted for perjury if he gives false evidence on oath, D cannot be held to account for the truth of what A told him — D can only swear that A said it, not that what A said was true. Third, the court loses the opportunity to observe the actual perceiver's demeanour — that revealing quality of testimony that trained judges use to assess credibility. Fourth, the hearsay declarant cannot be cross-examined, and cross-examination is, as Wigmore called it, "the greatest legal engine ever invented for the discovery of truth."

The Supreme Court of Canada, in its landmark judgment in R v Bradshaw (2017 SCC 35), captured the modern synthesis: "The truth-seeking process of a trial is predicated on the presentation of evidence in court. In court, witnesses give testimony under oath or solemn affirmation. The trier of fact directly observes the real evidence and hears the testimony. This process gives the trier of fact robust tools for testing the truthfulness of evidence and assessing its value." Hearsay, being an out-of-court statement, lacks all these safeguards.

Direct Evidence of Opinion

Section 60 extends the principle of directness to opinion evidence as well. If a witness is called to give an opinion — say, a doctor opining on the cause of death, or a handwriting expert opining on the authorship of a document — the rule requires that the person who actually holds that opinion must personally appear and depose. It is not enough for another expert to come to court and say, "Dr X told me his opinion was such-and-such." The opinion must be communicated directly by its holder.

This was powerfully affirmed by the Supreme Court of the United States in Bullcoming v New Mexico (564 U.S. 647, 2011), a case frequently cited in Indian scholarship. There, the prosecution sought to prove a blood-alcohol report through a surrogate analyst who had not himself conducted the test. The Supreme Court held this to be unconstitutional — "The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial." The same logic is embedded in the first proviso to Section 60 — a scientific treatise's opinion can substitute for the expert's viva voce evidence, but only when the expert is genuinely unavailable.

Illustrations of Direct vs. Hearsay

To understand the rule in operation, some illustrations are instructive:

Illustration 1: A witnesses a road accident in which B is injured by C's vehicle. A tells his friend E about it. At trial — A's evidence is direct; E's evidence that "A told me C hit B" is hearsay and inadmissible under Section 60.

Illustration 2: In Sharad Birdichand Sarda v State of Maharashtra (AIR 1984 SC 1622), witnesses deposed that they personally saw the deceased housewife's physical condition — bruises, injuries, evident distress. Their evidence of what they themselves observed was held to be direct. However, the evidence of a person who had never received any letter from the deceased, and who had only heard her tales of woe from others, was rightly rejected as hearsay.

Illustration 3: In Neeraj Dutta v State NCT of Delhi (AIR 2023 SC 330), the Supreme Court restated that "hearsay evidence is inadmissible to prove a fact which is deposed to on hearsay, but it does not necessarily preclude evidence as to a statement having been made upon which certain action was taken." The distinction is subtle but critical: a witness may say "I received a complaint from X about Y," not to prove that Y did what was alleged, but to explain what the witness himself then did in response. That evidence is admissible as original evidence of the witness's own conduct, not as hearsay proof of Y's conduct.

Exceptions to the Hearsay Rule Under the Indian Evidence Act

The Indian Evidence Act, while firmly excluding hearsay as a general rule, recognises several exceptions grounded in necessity and the inherent trustworthiness of the statements in question. The Act proceeds on the logic that where the best evidence — the direct testimony of the person who made the statement — is unavailable and may never become available, justice demands that something less be admitted rather than nothing at all.

1. Section 32 / Section 26 BSA — Statements by Persons Who Cannot Be Called as Witnesses

This is the most extensive and important exception. Under Section 32 (Section 26 of the BSA, 2023), written or verbal statements of relevant facts made by a person who is dead, cannot be found, has become incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense, are themselves relevant in eight specified circumstances:

(a) Dying Declarations — A statement made by a person as to the cause of his death or the circumstances of the transaction which resulted in his death is admissible, whether or not the declarant was at the time under expectation of death. This is the most celebrated of all hearsay exceptions. The rationale is as old as the Latin maxim nemo moriturus praesumitur mentiri — no man at the point of death is presumed to lie. The Supreme Court of India in Atbir v Govt. NCT of Delhi (2010 9 SCC 1) laid down the governing principles comprehensively: a dying declaration can be the sole basis of conviction if it inspires full confidence; corroboration is only a rule of prudence, not an absolute requirement; the declarant must have been in a fit state of mind; and the statement must be voluntary, untainted by tutoring or prompting. In Laxman v State of Maharashtra (2002 6 SCC 710), the Supreme Court held that a medical certificate of fitness, while desirable, is not mandatory — what is essential is that the person recording the statement was satisfied that the declarant was in a fit condition.

(b) Statements in the Course of Business — Entries made in books regularly kept in the ordinary course of business, acknowledgements of receipt, dates of letters — all these are admissible under clause (2) [clause (b) of BSA]. Illustrations (b) through (d) to Section 32 make this vivid: an entry in a deceased surgeon's diary stating that on a given day he delivered a child, is a relevant fact on the question of that child's birth date. A letter from a deceased merchant's firm stating that a ship sailed from Bombay on a given day is relevant to that fact.

(c) Statements Against Interest — A statement by a deceased person against his own pecuniary or proprietary interest, or one that would have exposed him to criminal prosecution, carries inherent guarantee of trustworthiness. A man is unlikely to make a statement harmful to himself unless it is true.

(d) Opinion as to Public Right or Custom — A statement by a deceased person giving his opinion as to the existence of a public right or custom, made before any controversy on the subject arose, is admissible.

(e) and (f) Statements as to Relationship — Statements relating to the existence of relationships by blood, marriage or adoption, when made by a person with special means of knowledge, before the dispute arose, are admissible.

(h) Statements by a Number of Persons — Illustration (n) to Section 32 is the example of composite hearsay — the remarks of a crowd of spectators about the libellous character of a caricature in a shop window are admissible.

2. Section 33 / Section 27 BSA — Evidence in Previous Judicial Proceedings

The evidence given by a witness in a previous judicial proceeding is relevant and admissible in a subsequent proceeding if the witness is dead, cannot be found, is incapable of giving evidence, or has been kept out of the way by the adverse party. The conditions are that the proceedings were between the same parties, the adverse party had the right and opportunity to cross-examine, and the questions in issue were substantially the same. Though technically hearsay, it is admitted because the earlier testimony was given in a formal judicial setting with all the safeguards of oath, cross-examination, and judicial supervision.

3. Admissions and Confessions

If A tells C that he borrowed money from B, and C comes to court and deposes about what A said, the statement is technically hearsay — C has not seen the transaction. Yet law admits it as an admission under Sections 17–23, because a person is unlikely to make a statement against his own interest unless it is true. Similarly, confessions under Sections 24–30 are self-harming admissions of guilt and carry inherent indicia of reliability.

4. Entries in Public Records (Section 35)

Entries made in public records and registers by public servants in the discharge of their public duty are admissible under Section 35 without requiring the maker to be called as a witness. The presumption of regularity attached to official acts underpins this exception. The Calcutta High Court observed in Octanious Steel Co v Enlegram Tea Co (AIR 1980 Cal 83) that "the rule of hearsay may not stand in the way of proving public documents because once it is proved that the documents are official records or official correspondence, the court has to raise the presumption under section 114 of the Evidence Act."

5. Expert Opinion in Published Treatises (Proviso to Section 60)

As already discussed, the first proviso to Section 60 (Section 55 of the BSA) allows an expert's opinion in a published treatise to be proved by production of the treatise, where the expert is unavailable. This is a notable departure from the English Common Law rule, under which medical and other treatises were not admissible regardless of whether the author was alive or not.

The Best Evidence Rule and Oral Evidence

It is important to appreciate the connection between the rule of direct evidence and the broader best evidence rule. The Supreme Court in Mohan Lal v UOI (1991 Supp 1 SCC 271) stated: "It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue." Section 60, as applied to oral evidence, mandates preference for direct testimony over hearsay, precisely because direct testimony is the best form of oral evidence available when the perceiving person is alive and accessible. Section 64 does the same for documentary evidence, requiring primary evidence. Together, they constitute the twin pillars of the best evidence rule in Indian law.

Distinction Between Direct Evidence and Circumstantial Evidence

A word is warranted about the different uses of the word "direct" in evidence law, because confusion often arises. When Section 60 speaks of "direct" oral evidence, it refers to the mode of proving a fact — a witness who says "I saw" is giving direct evidence; a witness who says "I was told" is giving hearsay. This is the direct-hearsay distinction. The other meaning of "direct" appears in the direct-circumstantial distinction, which is about the kind of facts proved — direct evidence establishes the fact in issue itself (the eyewitness who saw the stabbing), while circumstantial evidence establishes surrounding facts from which the fact in issue may be inferred (the motive, the weapon, the flight). Both are admissible; there is no a priori preference between them. Sir James Stephen himself cautioned against confusing these two distinct uses of the same word.

The Newspaper Report and the FIR

Two specific applications of the hearsay rule deserve particular attention in the Indian context. Newspaper reports are hearsay and inadmissible to prove the truth of their contents. The Supreme Court in Laxmi Raj Shetty v State of Tamil Nadu (AIR 1988 SC 1274) held that a news item is at best secondary, second-hand evidence, and "cannot be said to prove itself." Similarly, in Satish Chandra v State of UP (AIR 1986 SC 313), the Court held that the fact that a witness went to a spot after filing an FIR and heard people talking the same things as were scripted in the FIR was not direct evidence, because the witness's account of what others said to him at the spot does not directly prove those facts.

The Evolving Position: Reliability Over Admissibility

It is worth acknowledging that the strict exclusionary rule against hearsay has faced sustained criticism in modern jurisprudence. Lord Reid in Myers v DPP (1965 AC 1001) described the rule as "absurdly technical." England abolished the hearsay bar in civil proceedings by the Civil Evidence Act, 1995 (Section 1: "evidence shall not be excluded on the ground that it is hearsay"), and considerably liberalised it in criminal proceedings through the Criminal Justice Act, 2003. Canada developed the "principled exception" permitting hearsay when the twin tests of necessity and threshold reliability are met, as articulated in R v Baldree (2013 SCC 35).

In India, however, the statutory framework of Section 60 / Section 55 remains firmly in place. The exceptions built into the Act — especially Section 32 — are themselves grounded in necessity and reliability. The Indian Evidence Act anticipates the principled approach by conditioning the admissibility of hearsay exceptions on circumstantial guarantees of trustworthiness — the solemnity of dying, the regularity of business records, the self-harming nature of admissions, and the formality of prior judicial proceedings. The difference is that India's exceptions are legislatively predetermined, while England and Canada allow judicial case-by-case discretion. Both systems ultimately converge on the same underlying philosophy: reliable, necessary evidence should reach the court; unreliable, derivative testimony should not.