Hearsay Evidence vs Direct Evidence under the Bharatiya Sakshya Adhiniyam, 2023: The Distinction, the Test and the Exceptions

Section 55 requires oral evidence to be direct in all cases whatever, and everything that is not direct is hearsay. The rule sounds absolute and is not, because a very large body of material reaches Indian courts through exceptions, and a further body reaches them because it was never hearsay at all. Distinguishing the three categories — direct evidence, admissible hearsay, and material that is not hearsay because of the purpose for which it is offered — is the practical skill this topic requires.

1. The Provision

The Adhiniyam nowhere uses the word 'hearsay'. It approaches the matter from the positive side, requiring that a witness speak only to what he himself perceived, and the exclusion of second-hand accounts follows as a consequence rather than as a rule in its own terms.

2. The Two Categories

Direct evidence, in the sense Section 55 uses the term, is the evidence of a witness who perceived the fact he deposes to. He saw it, heard it, felt it, or holds the opinion he expresses. He is available to be asked how he came to perceive it and how well.

Hearsay is a statement made otherwise than by a witness deposing in the proceeding, tendered as evidence of the truth of what it asserts. The witness in the box did not perceive the fact; he perceived somebody saying it, and he asks the court to accept the assertion as true on the strength of the maker's word rather than his own.

3. Why Hearsay Is Excluded

Five reasons are given, and each identifies a safeguard that is missing.

• The maker was not on oath. He did not swear to the truth of what he said and was not exposed to the consequences of a false statement made on oath.
• He was not cross-examined. The principal test of truth the adversarial system possesses was never applied, and cannot now be applied, because he is not before the court.
• His demeanour cannot be observed. The court is asked to act on an assertion by a person it has never seen.
• Accuracy is diluted at each remove. An account passed from one person to another loses detail and acquires error, 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; he says only that it was said.

A sixth reason is sometimes added and is perhaps the most practical: hearsay is easy to fabricate and hard to disprove. An assertion attributed to an absent person can be invented at no cost, and the party against whom it is offered has no means of testing it.

4. The Test — What Is It Offered to Prove?

The single question that decides whether material is hearsay is not where the statement was made or by whom, but what it is offered to prove. The same words may be hearsay for one purpose and direct evidence for another in the same trial.

Applying the test is a matter of asking what step in the reasoning the evidence is meant to supply. If the argument is 'the witness heard X say that A struck B, therefore A struck B', the evidence is hearsay and excluded. If the argument is 'the witness heard X say that A struck B, therefore the accused was told of the incident and knew of it', the evidence is direct evidence of the utterance and the truth of what X said is beside the point.

5. When Words Are Not Hearsay At All

Several categories of material look like hearsay and are not, because the assertion is not being relied upon as true. It is worth having them collected, because objections are frequently taken to evidence that never needed an exception.

Operative words. 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, an abusive utterance constituting an offence — each is proved by proving that the words were spoken or written, and the witness who heard them deposes directly.

Words explaining conduct. Where a person's conduct is relevant and a statement made to him explains why he acted as he did, the statement is admitted under Explanation 2 to Section 6(2) — not for its truth, but to explain the conduct. A person who absconds after receiving a warning letter: the abscondence is conduct, the letter explains it, and whether the letter was true is immaterial.

Words showing a state of mind. Under Section 12, facts showing the existence of a state of mind are relevant. Where the question is whether a person had notice, or believed something, or acted in good faith, what was said to him is admitted to establish his state of mind rather than the truth of the assertion.

Words proving that notice was given. The giving of a notice, a demand or an intimation is an operative fact, and evidence that it was given is direct evidence of the giving.

Words identifying a person or thing. Under Section 7, facts establishing identity are relevant, and a statement identifying a person may be admitted for that purpose.

6. The Exceptions

Where a statement is offered for its truth, it is admissible only under an exception. The Adhiniyam contains a considerable number, and what they have in common is that each supplies some substitute for the cross-examination that never occurred.

The last entry belongs in a different category from the rest and is included because it is so often misunderstood. A former statement proved under Section 160 does not become evidence of the facts it asserts. It supports the credit of the witness who made it, and nothing more.

7. Hearsay in Documents

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

The distinction is between the document as an object and the statements within it. Proving a letter establishes that it exists, that it was written by the person alleged, and what it says. It does not establish that what it says is accurate. A letter by a third person describing an accident is hearsay as to how the accident happened, however impeccably the letter is proved.

The statements within a document become evidence of their truth only where a provision makes them so — Sections 26 to 32 being the principal group. This is why an entry in a register, a report by a person not called, or a recital in a deed is frequently admissible as a document and inadmissible as proof of the facts recited.

The same applies to electronic records. Proving a message under Sections 57, 61 and 63 establishes that the message exists and what it says. Whether the assertion in it is true is a separate question, and the assertion remains hearsay unless it falls within an exception — most commonly as an admission under Section 15, which expressly includes a statement 'contained in electronic form'.

8. Working Through an Objection

The seventh step is the one most often skipped. Admissibility under an exception does not put 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. The Comparison

10. The Position Stated Shortly

1. Section 55 requires oral evidence to be direct in all cases whatever, and the exclusion of hearsay follows from that requirement.
2. The test is the purpose. A statement is hearsay only where it is offered to prove the truth of what it asserts — Subramaniam.
3. Operative words are not hearsay at all, because the words themselves are the fact in issue.
4. Words explaining conduct or showing a state of mind are not hearsay, being admitted under Explanation 2 to Section 6(2) and Section 12 respectively.
5. Every exception supplies a substitute for cross-examination — spontaneity, agency, against-interest, necessity, routine or official duty.
6. Section 27 needs no substitute, because the evidence was given on oath with a right to cross-examine.
7. Documents are not exempt. Proving a document does not prove the truth of the statements in it, and the same applies to electronic records.
8. Admissibility is not weight. Hearsay received under an exception is still material that was never tested.

11. Related Topics and Provisions