Hearsay Evidence under the Bharatiya Sakshya Adhiniyam, 2023: Meaning, Why It Is Inadmissible, and the Statutory Exceptions

The Adhiniyam never uses the word hearsay. It gives effect to the rule by a single sentence in Section 55 requiring that oral evidence be direct in all cases, and it then creates a long series of exceptions scattered across the relevancy chapter. Understanding the rule is therefore a matter of understanding why second-hand assertions are distrusted, and of recognising the recurring feature that every exception shares: some circumstance supplying a substitute for the guarantee that cross-examination would otherwise provide.

1. Meaning

Hearsay is a statement made otherwise than by a person giving oral evidence in the proceeding, tendered as evidence of the truth of what it asserts. The essential feature is the purpose for which the statement is offered, not the fact that it was made out of court.

Section 55, BSA — Oral evidence to be direct

Oral evidence shall, in all cases whatever, be direct; that is to say —

if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;

if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

The section does not prohibit hearsay in terms. It requires that a witness speak only to what he himself perceived, and the exclusion of hearsay follows as a consequence. A witness who deposes that a third person told him something is not deposing to what he saw or heard happen; he is deposing to what he heard said, which proves only that the words were spoken.

2. Why Hearsay Is Excluded

Reason	Explanation
Not on oath	The maker of the statement did not swear to its truth, and is not exposed to the consequences of a false statement made on oath
No cross-examination	The single most important safeguard of the adversarial trial is unavailable. The maker's perception, memory, sincerity and accuracy of expression cannot be tested
Demeanour cannot be observed	The court cannot see the person whose assertion it is being asked to act upon
Truth is diluted at each remove	An account repeated at second, third or fourth hand loses accuracy at every stage, and the loss cannot be measured
Responsibility is diminished	The witness who repeats the statement does not vouch for its truth, and cannot be held to account for it
No opportunity to test the original perception	The maker may have been mistaken, or may not have been in a position to perceive what he asserted, and there is no way to find out
Risk of fabrication	A statement attributed to an absent person is easy to invent and difficult to disprove

📖 Teper v. R., [1952] AC 480 (PC)

Held: The rule against hearsay is one of the most characteristic and most fundamental rules of English criminal law. The reasons for it are that the truth of the statement cannot be tested by cross-examination, that the light which the maker's demeanour would throw on his testimony is lost, and that the truth is apt to be diluted and transformed in the process of repetition. The Court also emphasised the danger that a statement may be inaccurately reported by the witness who repeats it.

Ratio: The classical statement of the reasons underlying the exclusion, adopted by Indian courts.

3. The Boundary of the Rule

A statement made out of court is hearsay only where it is tendered to prove the truth of what it asserts. Where it is tendered to prove that the statement was made, or to explain conduct, or to show a state of mind, it is original evidence and the rule has no application.

📖 Subramaniam v. Public Prosecutor, (1956) 1 WLR 965 (PC)

Facts: The accused, charged with unlawful possession of ammunition, set up a defence of duress and sought to prove what terrorists had said to him. The trial court excluded the evidence as hearsay.

Held: Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made was relevant to the accused's state of mind, and the evidence ought to have been admitted.

Ratio: The classic formulation of the boundary of the hearsay rule, applied consistently by Indian courts.

Purpose for which the statement is tendered	Hearsay?	Provision
To prove the truth of what it asserts	Yes — excluded unless an exception applies	Section 55
To prove that the statement was made	No — original evidence	Relevant under the ordinary heads, most often Sections 4, 6 or 7
To explain the conduct of the person who heard it	No	Explanation 2 to Section 6(2) — a statement made to a person which affects his conduct
To show the state of mind of the person who heard it	No	Section 12
To show that a notice or demand was given	No — the operative fact is the giving of the notice	The ordinary heads of relevancy
Words which constitute the offence, such as an abusive or threatening utterance	No — they are the fact in issue itself	Section 3

⚠ Operative words are not hearsay at all

Where the words themselves have legal effect, they are the fact in issue and no question of hearsay arises. A contract, a defamatory statement, a threat, a demand for dowry, an offer and its acceptance are all proved by proving that the words were spoken or written. The witness who heard them deposes directly to what he heard, and Section 55 is satisfied.

4. The Two Provisos to Section 55

Proviso	What it permits	Rationale
Expert opinion in a treatise	The opinion of an expert expressed in a treatise commonly offered for sale, and the grounds on which it is held, may be proved by production of the treatise, if the author is dead, cannot be found, has become incapable of giving evidence, or cannot be called without an amount of delay or expense the court regards as unreasonable	A published treatise is written for the profession at large and carries the author's reputation. The conditions of unavailability mirror those in Section 26
Production of material things	If oral evidence refers to the existence or condition of any material thing other than a document, the court may require its production for inspection	The best evidence of a thing is the thing itself. This proviso is the route by which real evidence enters the record

5. The Statutory Exceptions

The Adhiniyam admits a great deal of second-hand material, but never at large. Each exception rests on a circumstance which supplies a substitute for the missing cross-examination — spontaneity, necessity, an interest against the maker, a routine that makes fabrication unlikely, or the solemnity of the occasion.

Exception	Provision	The substitute guarantee
*Res gestae* — facts forming part of the same transaction	Section 4	Spontaneity. The statement was made under the immediate pressure of the event, leaving no opportunity for concoction
Statements explaining conduct	Explanation 2 to Section 6(2)	The statement is not received for its truth, but to explain why the person acted as he did
Things said by a conspirator	Section 8	Agency. Conspirators are treated as agents of one another in pursuit of the common design
Admissions and confessions	Sections 15 to 24	Against interest. A person does not ordinarily make a statement damaging to himself unless it is true
Statements by persons who cannot be called — including dying declarations	Section 26	Necessity, together with a circumstance peculiar to each clause. The maker is dead, cannot be found, or cannot be produced
Evidence given in a former proceeding	Section 27	The evidence was given on oath and the adverse party had the right and opportunity to cross-examine
Entries in books of account	Section 28	Routine. Entries kept in the ordinary course of business are made without reference to any dispute
Entries in public records	Section 29	Made by a public servant in the discharge of official duty
Statements in maps, charts and plans	Section 30	Prepared for general use and offered for public sale, or made under the authority of Government
Statements in Acts and notifications	Section 31	Official promulgation
Statements as to public rights and customs, and matters of general interest	Sections 26 and 32	Made before any controversy arose, and by persons with means of knowledge
Opinion of experts and of persons with special means of knowledge	Sections 39 to 45	Special skill or knowledge, and the availability of the expert for cross-examination where he is called
Corroboration by a former statement	Section 160	Not received for its truth, but to support the credit of a witness who has deposed

6. The Three Recurring Justifications

Justification	How it operates	Principal examples
Necessity	The maker is unavailable, so the choice is between second-hand evidence and no evidence at all. The court prefers imperfect material to a failure of justice	Section 26 — persons dead, not found, incapable of giving evidence, or not procurable without unreasonable delay or expense; the first proviso to Section 55
Reliability	Some circumstance attending the making of the statement supplies a guarantee of its truth	Spontaneity under Section 4; against-interest under Sections 15 to 24; routine under Sections 28 and 29
The statement is not offered for its truth	The rule simply does not apply, because the assertion is not being relied upon as true	Explanation 2 to Section 6(2); Section 12; Section 160

⚠ Necessity alone is never enough

That a witness is dead or unavailable does not by itself make his statement admissible. Section 26 requires both unavailability and that the statement fall within one of its lettered clauses — a statement as to the cause of death, one made in the ordinary course of business, one against the maker's interest, and so on. A statement by a deceased person about a matter outside those clauses remains hearsay and is excluded. Necessity opens the gate; the clause determines whether the statement may pass through it.

7. Hearsay and Documentary Evidence

The hearsay rule is often thought of as confined to oral testimony because Section 55 speaks of oral evidence. It is not. A document is a collection of out-of-court assertions, and proving the document does not prove the truth of what it says.

Question	Position
Does proving a document prove its contents are true?	No. Proof of a document establishes what it says and that it was executed by the person alleged. Its truth must be established separately
When do the contents become evidence of their truth?	Where a provision makes the statement relevant — Sections 26 to 32 on statements by persons who cannot be called, entries in books of account and public records, and statements in maps and notifications
A letter written by a third person describing an event	Hearsay, unless the writer is called, or the letter falls within Sections 26 to 32
An entry in a register kept in the ordinary course of business	Relevant under Section 28, subject to the qualification that such an entry alone is not sufficient to charge any person with liability
A medical report	The opinion is relevant under Section 39, but the expert must ordinarily be called; the report is not evidence of its contents merely by production
An electronic record containing a third party's assertion	The record must be proved under Sections 57, 61 and 63, and the assertion within it remains hearsay unless a provision makes it relevant

8. The Rule in Operation

Step	Question	If the answer is yes
1	Is the material a statement made otherwise than by a witness deposing in the proceeding?	The hearsay question arises. Otherwise Section 55 is satisfied
2	Is it tendered to prove the truth of what it asserts?	It is hearsay. If not, it is original evidence and admissible on the ordinary heads
3	Does it fall within a statutory exception?	It is relevant, subject to the conditions of that exception
4	Are the conditions of the exception satisfied — unavailability, spontaneity, routine, or whatever the provision requires?	It may be proved
5	Has the prescribed mode of proof been followed?	It may be received. Documents under Sections 56 to 60, electronic records under Sections 57, 61 and 63
6	What weight does it carry?	Assessed with the caution appropriate to material that has not been cross-examined

The sixth step is easily overlooked. Admissibility under an exception does not place hearsay on the same footing as tested testimony. The court receives it because the alternative is worse, and it weighs it knowing that the maker was never questioned.

9. Related Topics and Provisions

Topic or provision	Connection
Statements by Persons Dead or Unavailable — Section 26	The largest single exception, resting on necessity
Dying Declaration — Section 26	The best known clause of that exception
Doctrine of Res Gestae — Section 4	The exception resting on spontaneity
Kinds of Evidence	Hearsay and original evidence within the wider classification
Admission — Meaning, Definition and Essentials	The exception resting on statements against interest
Sections 27 to 32, BSA	Former proceedings, books of account, public records, maps and notifications
Section 39, BSA	Expert opinion, and the treatise proviso to Section 55
Section 160, BSA	Former statements used to corroborate, which are not received for their truth