Reasons advanced as to rejection of hearsay evidence are due to perceived dangers which results from nexus between witnesses’ testimony and the evidence the court is invited to accept. Such dangers arise from the probabilities of impaired perceptions, bad memory, ambiguity, and insincerity on the part of substitute witness. Reasons for inadmissibility of hearsay evidence coupled with diminished effectiveness of the conventional safeguards are:
1. The taking of oath by the witness before deposition.
2. The opportunity of cross-examination to probe the evidence.
3. The opportunity for the court to observe the demeanour of the witness while deposing in the court.
In addition hearsay evidence is not considered as the best evidence since it is feared that,
a) There are opportunities opened up for fraud through hearsay evidence.
b) That it results in the wastage of the courts’ time in listening to what may be gossip or rumours and
c) That there are chances of depreciation of truth in the process of repetition.
Many exceptions have also been made to the hearsay rule to mitigate its harshness and some of the exceptions are recognized by statute. In the Evidence Act 1950, the exceptions are contained under various provisions. Section 13 admits proof of a right or a custom in an indirect form on grounds of relevancy. Under Section 18-21, indirect admission by agents or by interested persons or by persons expressly referred to by the parties, are made relevant. Under Section 32, the statements of relevant facts, although hearsay, are admitted through substitute witnesses, if the original witness is dead or has been incapable of giving evidence, or cannot be found, or his attendance in the court cannot be procured without an amount of unreasonably expense or delay.
Section 33 shows that evidence adduced in earlier proceedings has been made admissible in subsequent proceedings without the need to call the witness in the court. Entries in the books of account in the course of business and the entries in the public records are made relevant under Section 34 and 35 respectively. The statements under maps, charts and plans are made relevant under Section 36. Under Section 37, the official records of public nature are made relevant. The difficulties in invoking these exceptions are resolved by applying the test of reasonability and common knowledge. Courts also found that the statutory exceptions are insufficient in certain situations to administer justice. In mitigating the rigour of the Hearsay Rule, in cases not covered under the statutory exceptions, the courts invoke their creative acumen and evolve what may be termed as judicial innovations in the form of exceptions.
Therefore, it can be concluded that the word hearsay is not a magic wand which can ensure non-admission of only unreliable and irrelevant evidence. Justice may be miscarried if relevant and reliable evidence is left out for being hearsay. Reliance shall have to be placed on the credibility or reliability in evaluating the evidence even when it is indirect.
PREPARED BY: KIRUBINI A/P G.SUBRAMANIAM A130056