Hearsay Evidence Under BSA

 

Introduction

The reliability and credibility of evidence play a key role in delivering justice. One important aspect of evidence law is how hearsay evidence is treated. The Bharatiya Sakshya Adhiniyam, 2023 (BSA), does not provide a direct definition of hearsay, leaving it open to interpretation. However, it is well established that hearsay evidence is generally inadmissible, except in certain situations where the law allows it to be considered.
Meaning

The BSA does not give a specific definition of hearsay evidence. According to Stephen, the term “hearsay” can be used in different ways—sometimes it refers to something a person says directly, and other times it refers to a statement based on what someone else has told them.

Simply put, hearsay is when a person talks about something they didn’t personally see or hear, but learned from someone else. For example, if someone says, “I heard from B that the defendant was at the scene,” this counts as hearsay. In this case, the person didn’t witness the event themselves; they are merely repeating what another person said.

General Rule

The general rule of hearsay evidence , that all the statement oral or written , the probative force of which depends wholly or in part on the credit of an unexamined person , is inadmissible in evidence .

Aghnoo Nagesia v. State of Bihar (1966):
 In this case, the accused had confessed to the police. However, Indian law clearly says that a confession made directly to a police officer cannot be used as evidence in court. The Supreme Court explained that this rule exists to protect people from pressure, coercion, or misuse of power by the police. Since there was no other strong or direct evidence against the accused, the Court set aside the conviction and sentence.

Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr. (2011):
 In this judgment, the Supreme Court made it clear that courts cannot rely on hearsay evidence to decide important facts. Hearsay means repeating what someone else said, without personal knowledge. The Court stressed that evidence must come from a person who takes responsibility for what they say and understands the consequences of their statement. Allowing hearsay evidence would weaken the justice system and could easily lead to fraud, manipulation, or false accusations.

Exceptions to the Rule Against Hearsay Evidence

Although hearsay evidence is generally inadmissible, the law recognizes certain exceptions.

These exceptions are based on two main principles:

1. Necessity - In some situations, no better evidence is available. The witness may be dead, missing, or cannot be produced without unreasonable delay or expense.

2. Trustworthiness - The statement may have been made under such circumstances that it appears reliable, such as being made against the person’s own interest.

Key Components

Inadmissibility of Hearsay Evidence mentioned under Section 55 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) makes it clear that evidence must be direct. This means that testimony should come from someone who personally saw, heard, or perceived a fact, or formed an opinion based on concrete grounds.

Hearsay evidence, being indirect and second-hand, is considered weak and unreliable for proving the existence of a fact. Its susceptibility to error or deception is the reason why the law generally excludes hearsay evidence from being admitted in court.

Exception

1.    Res Gestae (Section 4, BSA): Statements made so closely connected to an event that they form part of the same transaction can be admitted as evidence.

2.    Admissions and Confessions (Sections 15–25, BSA): Statements where a party admits a fact or confesses to an act are considered reliable and therefore admissible.

3.    Statements by Persons Who Are Dead or Unavailable (Section 26, BSA): If the person who made the statement has died or cannot be traced, their statements may still be accepted in court.

4.    Evidence from Previous Proceedings (Section 27, BSA): If a witness testified in an earlier case involving the same parties and is now unavailable, that previous statement may be used as evidence.

5.    Statements in Books of Accounts, Public Records, and Official Documents (Sections 28–32, BSA): Entries found in business accounts, government records, and other official documents can be admitted as evidence.

6.    Proviso to Section 55, BSA: Certain statements—otherwise considered hearsay—can still be admitted if they meet specific legal conditions, such as expert opinions or statements about reputation.

Why Hearsay Evidence Is Not Admitted

The term “hearsay” is not directly used in the Bharatiya Sakshya Adhiniyam because the word itself is vague and can have different meanings. However, Section 55 clearly lays down the principle behind the rule.

Section 55 says that oral evidence must always be direct. This means:

●      If a fact can be seen, the witness must say “I saw it.”

●      If a fact can be heard, the witness must say “I heard it.”

So, when a person gives evidence based on what someone else told them, and not on their own senses, such evidence is called hearsay and is generally inadmissible.

In simple terms, hearsay evidence is rejected because it is second-hand information, not first-hand knowledge.

Reasons/Grounds for Not Admitting Hearsay Evidence

Hearsay evidence is normally not allowed for the following reasons:

1. Lack of Responsibility of the Original Speaker

The person who originally made the statement is not present before the court, has not taken an oath, and is not legally responsible for the truth of the statement.

2. No Cross-Examination

Since the original declarant is absent, the court cannot test the truth of the statement through cross-examination.

3. Better Evidence Is Available

Hearsay assumes that stronger and better evidence exists. Allowing hearsay would encourage the use of weaker evidence instead of direct proof.

4. Delay and Complication in Trials

If hearsay is allowed, cases may become unnecessarily long and complicated, as courts may have to chase multiple sources of information.

5. Inherent Weakness

With each repetition, the accuracy of the statement decreases, making hearsay naturally unreliable.

6. Loss of Truth Through Repetition

Truth tends to fade or get distorted as it passes from one person to another.

7. Scope for Fraud

Allowing hearsay would create wide opportunities for false and fabricated evidence.

Note - The most important reason for excluding hearsay evidence is the absence of personal responsibility of the original declarant.

As Best rightly observed, the real foundation of this rule is not just the lack of oath or cross-examination, but the fact that every witness must give evidence under circumstances that make them personally answerable for falsehood. Evidence must be given in a way that exposes the witness to legal consequences if they lie.

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