Hearsay

What is Hearsay?

**Hearsay** is a statement made by a person who is not a witness in the current proceedings, offered as evidence to prove the truth of what that person said. In other words, it is secondhand information — when a witness tells the court what someone else told them, rather than what they personally saw, heard, or experienced.

In everyday terms, if Aman tells the court, "Bharat told me that he saw Chandan steal the phone," Aman's statement about what Bharat said is hearsay. The court cannot rely on this because Bharat — the person who actually claims to have seen the theft — is not present in court and cannot be cross-examined about the accuracy of his observation.

Legal Framework

While the Indian Evidence Act, 1872 does not use the term "hearsay" explicitly, the rule against hearsay is embodied in **Section 60** and related provisions. The corresponding provisions are found in the **Bharatiya Sakshya Adhiniyam (BSA), 2023**.

Key Legal Provisions

- **Section 60 of the Indian Evidence Act (Section 55 BSA):** "Oral evidence must, in all cases whatever, be direct." This means:

- If a fact could be seen, the witness must have seen it.

- If a fact could be heard, the witness must have heard it.

- If a fact could be perceived by any sense or in any other manner, the witness must have perceived it by that sense or in that manner.

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

This section is the foundation of the rule against hearsay in Indian law — it requires that evidence be **direct** and based on the personal knowledge of the witness.

Why Hearsay is Excluded

The exclusion of hearsay evidence rests on several fundamental principles:

1. **No opportunity for cross-examination:** The person who made the original statement is not available to be questioned about their credibility, perception, memory, or truthfulness.

2. **Risk of fabrication:** Secondhand statements are more susceptible to distortion, exaggeration, or outright fabrication.

3. **Unreliability of transmission:** Information may be altered, misunderstood, or taken out of context as it passes from one person to another.

4. **No oath:** The original declarant did not make the statement under oath or affirmation, which is a safeguard for truthfulness.

The Supreme Court in **Kalyan Kumar Gogoi v. Ashutosh Agnihotri (2011) 2 SCC 532** reaffirmed that hearsay evidence is inadmissible as it lacks the guarantee of truthfulness that comes from cross-examination.

Exceptions to the Hearsay Rule

While hearsay is generally inadmissible, the Indian Evidence Act recognises several important exceptions where out-of-court statements are considered sufficiently reliable to be admitted.

Dying Declaration (Section 32(1))

A statement made by a person who is dead (or cannot be found, or is incapable of giving evidence) as to the **cause of their death** or any circumstance leading to their death is admissible. This is the most well-known exception. The Supreme Court in **Laxman v. State of Maharashtra (2002) 6 SCC 710** held that a dying declaration can be the sole basis for conviction if it is reliable and consistent.

Statement Against Interest (Section 32(3))

A statement made by a deceased person that is **against their own pecuniary or proprietary interest** is admissible. The rationale is that a person is unlikely to make a false statement that harms their own interests.

Statement in Course of Business (Section 32(2))

A statement made by a deceased person **in the ordinary course of business** is admissible. For example, entries in account books made by a deceased clerk in the course of duty.

Res Gestae (Section 6)

Statements that are so closely connected with the relevant fact that they form **part of the same transaction** are admissible under Section 6. These are spontaneous statements made during or immediately after an event, before there is time to fabricate. The Supreme Court in **Sukhar v. State of U.P. (1999) 9 SCC 507** held that res gestae statements are admissible because they are spontaneous and contemporaneous.

Statements Regarding Public Rights (Section 32(4)-(8))

Statements relating to the existence of a public right or custom, pedigree, relationship, or the existence of a will are admissible in specific circumstances.

Confessions and Admissions (Sections 17-31)

Admissions and confessions made by parties or their agents are admissible, even though they are technically hearsay (out-of-court statements). They constitute an important exception because the maker is a party to the proceedings.

Evidence in Former Proceedings (Section 33)

Evidence given by a witness in a **judicial proceeding or before any person authorised to take evidence** is relevant if the witness is dead, cannot be found, is incapable of giving evidence, or if their attendance cannot be procured without unreasonable delay or expense — provided the adverse party had the right to cross-examine.

When Does This Term Matter?

During Evidence Recording

Understanding the hearsay rule is essential when evidence is being recorded. If a witness begins testifying about what someone else told them, the opposing counsel can object on the ground of hearsay, and the court should exclude such testimony (unless an exception applies).

Police Statements

Statements made to the police during investigation are a common form of hearsay. Under **Section 162 CrPC (Section 193 BNSS)**, statements made to the police during investigation are generally **not admissible** as evidence, except to contradict the witness. This is an important safeguard against police fabrication.

FIR as Evidence

The **First Information Report (FIR)** is not substantive evidence but can be used to corroborate or contradict the maker under Section 157 or Section 145 of the Evidence Act. However, the FIR of a person who dies is admissible as a dying declaration if it relates to the cause of death.

Practical Significance

- **Objections must be timely:** If hearsay evidence is admitted without objection, it may be considered by the court. Parties should object promptly when hearsay is offered.

- **Corroboration matters:** Even where exceptions apply, courts exercise caution and often look for corroboration before relying on hearsay evidence.

- **Electronic evidence:** With the growth of digital communication, questions of hearsay arise frequently regarding emails, messages, and social media posts. These are generally admissible as documentary evidence under Section 65B of the Evidence Act (Section 63 BSA), subject to certification requirements.

- **Circumstantial use:** Hearsay statements may sometimes be admitted not to prove the truth of their contents but for other purposes — for example, to prove that the statement was made, or to explain the listener's subsequent conduct.

Frequently Asked Questions

Is hearsay always inadmissible in Indian courts?

No. While the general rule is that hearsay is inadmissible, the Indian Evidence Act provides several exceptions — dying declarations (Section 32(1)), statements in the course of business (Section 32(2)), statements against interest (Section 32(3)), res gestae (Section 6), admissions and confessions (Sections 17-31), and evidence from former proceedings (Section 33).

What is the difference between hearsay and direct evidence?

**Direct evidence** is testimony based on the witness's own personal perception — what they saw, heard, or experienced firsthand. **Hearsay** is testimony about what someone else said, offered to prove the truth of that statement. Section 60 of the Evidence Act requires that oral evidence must be direct.

Can a conviction be based solely on a dying declaration, which is technically hearsay?

Yes. The Supreme Court has consistently held that a **dying declaration** can be the sole basis for conviction, without corroboration, if the court is satisfied that it is truthful and voluntary. The rationale is that a person on the verge of death has no reason to lie ("nemo moriturus praesumitur mentire" — a dying person is not presumed to lie).

Are statements made on social media considered hearsay?

It depends on the context. If a person testifies about a social media post made by someone else to prove the truth of its contents, it could be hearsay. However, social media posts are also documentary evidence and may be admissible under Section 65B of the Evidence Act if proper electronic evidence certification is provided. The admissibility depends on the purpose for which the evidence is offered.