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Report No. 69

V. Question of Amendment Considered

7.187. Present language wide enough to cover statements.-

Having taken note of the above controversy, we have addressed ourselves to the question whether any amendment in the section is needed and, if so, on what lines. We have already expressed our opinion1 that on the present language of the section2, the fourth view is the most cogent. On the present language, we find it difficult to reconcile ourselves to the view that the section (as it now stands) excludes statements as to facts. In many other sections of the Act, "facts" are taken as including statements. In section 6, for example, illustration (a) makes this clear. Section 9, illustrations (d) and (e), may also be seen.

It is well-known that most of the reported decisions under section 6 (res gestae), have been concerned with statements spontaneously made in connection with a dramatic event. Same is the position as regards section 8, whereunder complaints are specifically relevant as facts influenced by conduct-vide illustrations (j) and (k) to that section. The position with reference to sections 7 and many other sections is not, in its essence, different. We may also add that section 11 begins with the words "Facts not otherwise relevant", and these words show beyond doubt that the section, as it now stands, is not controlled by any other section making certain facts relevant.

1. See para. 7.181, supra.

2. Para. 7.180, supra.

7.188. Judicial reluctance to admit statements.-

Nevertheless, we do not recognise judicial reluctance to allow section 11 to be used for proving statements. This reluctance shows that courts have considered it unwise to construe section 11 widely, and have, in the interests of justice, considered it essential to read some limitations therein, though such limitations do not flow from the literal text of the section. We are, therefore, of the view that the matter should be put beyond doubt, and that the section should, in its wording, be brought nearer to what has in practice been its interpretation by some of the most eminent of Indian Judges,1 by excluding statements from its ambit by an express provision.

1. Varadachariar, J. and Mookerjee, J.

7.189. Stephen's suggestion to exclude statements.-

Stephen seems to have anticipated the problem. We find1 that he suggested that the meaning of the section would have been more fully expressed, if words to the following effect had been added to it:-

"No statement shall be regarded as rendering the matter stated highly probable within the meaning of this section, unless it is declared to be a relevant fact under some other section of the Act.".

1. Stephen Introduction to the Evidence Act, pp. 160-161..

7.190. Need for amendment.-

We have, after careful consideration, come to the conclusion that statements should be excluded for the reasons already mentioned.1 The form in which the amendment should be couched, however, requires some consideration. If the form suggested by Stephen2 is adopted, the section would become somewhat otiose, because, if a statement is also relevant under some other section, there is no point in treating it as relevant under this section. We are, therefore, of the view that the amendment should be as suggested below.

1. Para. 7.188, supra.

2. Para. 7.189, supra.

7.191. Recommendation.-

Our recommendation is that section 11 should be amended by inserting an Exception on the following lines:

"Exception-Evidence shall not, by virtue of this section, be given of a statement, whether by a party or by any other person; but nothing in this Exception is to affect the relevance of a statement under any other section.".

Indian Evidence Act, 1872 Back

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