Liberalisation of Hearsay Doctrine

"Hearsay is an out-of-court statement offered to prove the matter asserted or the truth of the matter asserted."

A statement of a person who has not seen the happening of the transaction but has heard of it from others, is a hearsay evidence.

It is an established principle known even to laymen that hearsay evidence is ordinarily inadmissible in a court of law. Originally there was no rule against hearsay evidence prior to the 16th century. It was only when witnesses started coming into court to testify publicly, that the rule against hearsay emerged. At the start, hearsay statements were easily allowed by courts as confirmatory evidence. It was only by the 18th century that the rule as we know it today started to take form of a doctrine.This principle even finds a place in the U.S. Constitution, which propounds that in criminal cases the defendant is entitled to be “confronted with the witnesses against him”.

But, with time, much of hearsay has in fact become admissible especially in civil cases. Various exceptions and precedents have paved the way for reasonably reliable statements falling in the hearsay category to become admissible. The development of the doctrine has never been concluded because of new exceptions which the courts go on formulating and establishing with the help of precedents. These exceptions are as accepted as the rule itself. Necessity and reliability have been the two major factors for the formulation of exceptions to the hearsay rule. Following the rule against hearsay strictly would lead to miscarriage of justice in certain cases hence, the liberalisation of the rule by way of exceptions to it is necessary.

Res gestae

According to Black Law Dictionary, res gestae means “things done.” The events at issue or other events contemporaneous with them. Under evidence law, words and statements about the incident in question are usually admissible under a hearsay exception, such as present sense impression or excited utterance.

The principle of res gestae is an exception to the rule of hearsay. The rationale behind this is the spontaneity and immediacy of such statement i.e. the statement should be made immediately after the acts constituting the offence and in contemporaneity with such acts. An important aspect to be noted is that such fact or statement should be attributable to the same transaction. An interval, howsoever slight, between the act and statement would not be a part of res gestae as a presumption of fabrication would set in.

The rule of res gestae first appeared in the year 1693 in Thompson v. Trevanion, where it was held that declarations accompanying an act are receivable in explanation thereof. In the case of Ambrose v. Clendon in 1736, declarations were held to be admissible if in line with the facts recorded. In Hoare v. Allen this term was revived once again. But it was only with the case of Aveson v. Lord Kinnaird in 1805 that the actual development of this doctrine started, and this exception was firmly established.

In the well-known and shocking decision of R v. Bedingfield, the principle of res gestae and exception to the hearsay rule was discussed. In the instant case, a girl was living with her boyfriend until the relationship turned sour. The boyfriend allegedly cut her throat. Even with a cut throat she managed to run out of the room where she had been injured and shortly before she died said, “Oh dear Aunt, see what Harry (Bedingfield) has done to me”. Lord Justice Cockburn held that the statement was not admissible, since it was something stated by her after it was all over. It was held to be separate from the transaction, as it was said after the transaction was over, the transaction being the cutting of the throat. This decision accurately illustrates the former principle used to define the res gestae exception, which often resulted in unjust consequences. Actually the decision of Bedingfield case was too strict. Later on, this decision was overruled in the case of Ratten v. R where under common law, the doctrine of res gestae was defined in liberal and wider terms.

The principle laid down in Bedingfield was such that the act along with being in spontaneity should also have happened before the actual incident whereas, in Ratten’s case, this has not been made a necessity for the admission of hearsay. Rather, it is enough for the statement or the act to be a relevant fact should have happened in reasonable proximity to the actual incident, be it before or after it. This is so that there can be no presumption of any reflection or fabrication by the declarant. As time passes between the incident and the declaration there increases the possibility of application of mind and hence the element of personal bias and moulding of facts according to own view, which cannot be acceptable. Hence, for a statement to come under the exception cannot be in the nature of a mere declaration on narration of a past event.

Indian Evidence Act, 1872

Section 5 of the Indian Evidence Act, 1872 provides that evidence may be given of either fact in issue or relevant facts and of no others. Section 3 gives clarity as to what would come under the ambit of “relevant”. It says that one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in sections 6 to 55 of the Act. Nowhere in the Evidence Act has the term res gestae been mentioned but Section 6 is viewed under the light of res gestae. The provision under section 6 is known as the rule of res gestae in common terms.

The Indian Evidence Act was enacted before the infamous ruling of the Bedingfield case. Thereby, it provides for the hearsay rule in its traditional and formalistic way. Section 6 talks of “facts in issue” which should be “part of the same transaction”. In order to determine whether or not relevancy is established, reasonability standards are applied and it is not necessary for the connected facts to occur at the same time and place. Generally, relevance is attributed by courts to facts taking place as a part of same transaction which reflects the early interpretation of res gestae exception. The Act clarifies that the term ‘fact’ shall include statements.

Relevancy has been provided for in section 6 to 11 and Sir James Stephen says that sections 6 to 11 “are by far the most important and original part of the Act as they affirm positively whatfacts may be proved, whereas the English law assumes this to be known, and merely declares negatively that certain facts shall not be proved.” The text of section 6 does not imply strict contemporaneity or direct association in case of time and place. In fact, upon giving a reading to the illustrations provided with the section it becomes clear that a liberal approach is to be taken when applying it to a set of facts. All that the section requires is that the events be so reasonably connected as to form part of the same transaction which is not based on proximity of time, proximity of place or even continuity of action.

Judicial Interpretations

In Gentela Vijayavardhan Rao and Anr. v. State of Andhra Pradesh, there was some appreciable interval between the acts of incendiarism indulged in by the miscreants and the judicial magistrate recording statements of the victim. That interval, therefore, blocks the statement from acquiring legitimacy under section 6 of the Evidence Act. Any interval, however slight it may be, enough to facilitate fabrication would prevent the statement from falling under the ambit of Res gestae.

The Supreme Court in Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr., has examined and explained the law relating to the appreciation of hearsay evidence. “The term ‘hearsay’ is used with reference to what is done or written as well as to what is spoken and 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 sayings and doings of third person are, as a rule irrelevant because, no proof of them can be admitted. Here comes the rule of appreciation of hearsay evidence. Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross- examination.”

In Rattan Singh v. State of H.P., the accused intruded into the courtyard of the victim’s house at night and inflicted gun-shot injury on her. She was able to identify him. She stated before her death that the accused was standing with a gun before her. She explained the time and space proximity between her and the assailant. The statement was held to be a part of the transaction and relevant as such under section 6.

Again, the Supreme Court in Sukhar v. State of Uttar Pradesh, held that statement of witness that on hearing sound of firing he went to the scene of occurrence and found the injured lying on the ground and he told him as to who had fired the shot is admissible under section 6, being part of same transaction i.e. act of shooting by accused.

Conclusion

Liberalisation of the hearsay doctrine is a developing phenomenon which is much needed to ensure that no wrongdoer goes scot-free as a result of lack of evidence. Such development would also lead to swift justice. There is a need for developing detailed rules, regulations and precedents on the matter so that, further exceptions may also be developed. There is a need for such detailed rules as with time newer species of cases are coming in such as ones that relate to privacy issues, cyber law, other laws emerging out of the spread and evolution of the internet to various fields, etc.

To facilitate the expansion of the doctrine in a reasonable manner there is a need to create distinction in the types of hearsay evidence that are declared and recorded. Primary and secondary declarations need to be identified and reasonable importance may be attached to such statements. Certain evidence may only be used as a tool to create a presumption while others maybe corroborative and similarly other categories maybe formulated. This way even in cases where getting satisfactory evidence is not possible, such declarations would help in concluding a case in a proper manner.

By: Navin Kumar Jaggi & Aditi Mishra