Evidence adduced by a person other than the one who had actually perceived the facts of which evidence is given, is hearsay evidence. The Hearsay Rule is among the most debated and highly controversial rule of the law of evidence. The rule is not being directly laid under the Evidence Act 1950 but can be inferentially derived from the purport of certain of its provisions. Hearsay evidence is also described as out of court statement, for it is stated to be made outside the court to a person who in turn adduces it in the court.            

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.


12/13/2012 03:58:38 pm

Generally, I am in a positive response to the idea that any exception to the application of hearsay is used to ensure the relevant evidence from being left out. However, we should be attentive that there is indeed a foreseeable hidden danger on the application of hearsay evidence. As we knew, it is not the best tendered evidence and could not be cross examined. The purpose of we having the evidence tendered before the court is used to reflect the relevant fact either for the purpose of contradiction or corroboration the fact in issue. Any hearsay evidence that tendered before the court might not be effectively reliable as it would not be able to convince the judge on its existence. Even there is a principle where by hearsay evidence could only be admissible if the purpose of tendering the out of court assertion is to prove the fact it was made instead of proving its content. I am quite doubtful with those highlighted exception and principle. My reasoning by saying is because of the following proposition;

1) the purpose of tendering the hearsay evidence in proving the fact it was made could not effectively contribute to the fact assessment. Even the tendered hearsay evidence is not used for proving the content of the statement made, but we could not 100% sure that the hearsay statement was indeed ever made or established. Hereby, I opined that it is pointless for us to distinguish the purpose of tendering the hearsay evidence even in proving the fact it was made.

2) Hearsay evidence in my humble opinion is merely an assertion that could not be proved. It would be always clothed with uncertain cloud. We should be borne in mind that the purpose of we having law of evidence is not to create uncertainty during the trial. Instead of that, evidence used to help the PP in proving their case and it is never intended to prejudice the right of accused. If the hearsay evidence becomes admissible in the court of law (even limited in certain exceptional situation). It would definitely impede the right of accused being tried under clear genuine evidence. I would like to highlight that the test of purpose in determining the admissibility of hearsay evidence should not be a room for the court to admit the unproved fact. Otherwise, It would clearly against the aspiration of evidence law by importing the unproved fact in assessing the fact in issue. Hearsay evidence would not always free from fabrication even if the purpose of tendering is merely proving the fact was made.

12/13/2012 10:24:52 pm

Really appreciate the comments being made. In most circumstances we are being subjected to limitations in accepting the hearsay evidence as its always being clouded with the dangers that might arise out of it. However, justice must play the utmost importance as its the most pertinent aspect to be uphold in all circumstances. Therefore, to avoid miscarriage of justice, hereby i derive my opinions and belief that relevant and reliable evidence cannot just simply be left out for being hearsay.

angelina fernandez
12/15/2012 12:25:56 pm

hearsay evidence is one form evidence that is subjected to debate on its admissibility due to the fact that its not accorded the opportunity to be cross examined nonetheless dismissing it all together on the idea of upholding justice itself is a bit deluding thus it is pertinent to note the exceptions in which the court tends to admit such evidence. thus concluding the author had done a good job reading into the importance of the evidence and also bearing in mind the circumstances in which the evidence should not be admissible in court. as the rule of evidence itself reads its not about the truth but ultimately its about prove so dismissing this form of evidence all together would not be an objective way of evaluating this form of evidence.

12/15/2012 07:40:28 pm

Thank you very much. I absolutely agree with your comments. We should always remember that hearsay evidence is still evidence and it cannot be neglected just like that.


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