Report No. 14

24. The Law of Evidence

1. Reform of the Law of Evidence-The hearsay rule.-

Our Questionnaire referred to the need for the reform and the modernization of the law of evidence with particular reference to the relaxation of the rules against the admission of what has been called 'hearsay' evidence, the admissibility of secondary evidence and cognate matters.

Meaning of hearsay.- What is commonly known as 'hearsay' is what the term conveys; something that is heard by a witness from a third party. It may be described as oral secondary evidence of an oral statement. The expression is, however, understood by some writers in a much wider sense and applied to what has been called 'unoriginal' evidence. "All evidence is either original or unoriginal. The original is that which a witness reports himself to have seen or heard through the medium of his own senses.

Unoriginal, also called derivative, transmitted, second-hand or hearsay, is, that which a witness is merely reporting not what he himself saw or heard, not what has come under the immediate observation of his own bodily senses, but what he has learnt respecting the fact through the medium of a third person".1 In its wider sense of unoriginal evidence it will include not only oral statements but written statements by persons not called as witnesses.

1. Best on Evidence, 9th Edn., sec. 27 cited in Law of Evidence Sarkar, 8th Edn., p. 23.

2. The position in England.-

In England where broadly speaking the admission of evidence is regulated by the English common law, exceptions have from time to time been made to the strict rule against the admission of hearsay evidence. These exceptions relate in the main to statements made by deceased persons.

3. Exceptions to the hearsay rule.-

In many cases the admission of hearsay evidence was hedged in with limitations and qualifications which created difficulties. For example, dying declarations of deceased persons were excluded from evidence if at the time of the declarations there was any prospect of their recovery, however slight. Statements and documents prepared by public officers in the course of their duties were admitted but such documents had to be available for public inspection. Though evidence of statements of deceased persons could be admitted subject to certain restrictions the law would not admit in evidence the statements of witnesses where the witnesses though alive were for good and sufficient reasons not available for giving evidence.

4. English Evidence Act, 1938.-

These and various other difficulties in regard to the admission of hearsay evidence gave rise to considerable criticism and eventually led to the enactment of the English Evidence Act of 1938. Leaving intact the exceptions to the rule of hearsay developed by the common law the Act has enacted some further exceptions. The legislation has however been criticised as not having gone far enough in relaxing the rule against hearsay.

5. Developments in the U.S.A.-

Attempts have also been made in the United States to mitigate the rigour of the application of the rule. Attention may be drawn in this connection to the American Model Code of Evidence compiled and published by the American Law Institute in 1942.

6. The position in India-satisfactory.-

The suggestions received by us in answer to the Questionnaire and the evidence given before us has not afforded much assistance to us.

Considering the provisions in regard to the admission of hearsay evidence in our Evidence Act such as section 32 of the Act, it appears to us that our Act contains provisions for the admission of hearsay evidence in several matters in which it became admissible in England only after the Act of 1938. Indeed in certain matters the provisions of the Act are wider and permit evidence to be given of matters which may not be admissible evidence in England even after the recent legislation. It is unnecessary to discuss the matter further in detail. We do not feel justified on the evidence before us in making any recommendations in this respect. The matter may call for further consideration at our hands at a later stage when the revision of the Evidence Act is undertaken by us and proper material is made available to us.

7. Secondary evidence.-

The admission of secondary evidence of documents is governed by the provisions of Chapter V of the Indian Evidence Act. The primary evidence is the document itself produced for the inspection of the Court. The law, however, enables secondary evidence of the document to be given in certain cases. The circumstances under which secondary evidence can be given of the existence, condition or contents of a document are stated in section 65 and section 66 of the Act. In so far as documents inter-parties are concerned, the rules relating to their proof by secondary evidence seem to be sufficiently wide and no suggestions have been made to us for their enlargement.

8. Proof of Public Documents.-

The position appears to be different however in regard to public documents. The law enables the proof of the contents of public documents to be made by the production of certified copies thereof. It has been justly said that delays in the disposal of cases are frequently caused by the need for the production of certified copies of public documents. But it is difficult to conceive of any manner other than the production of a certified copy by which the contents of public documents can be permitted to be proved.

If it were left open to parties to adduce other proof of such documents the Court would have to enter into conflicting evidence about their contents and assess its worth. This is obviously undesirable when the document is a public document, the contents of which can be proved beyond dispute by the production of a certified copy. This question may also receive the further attention of the Commission at the time of the revision of the Evidence Act.

9. Whether section 90 should be made applicable to certified copies of documents thirty years old.-

Under section 90 of the Evidence Act, when any document purporting or proved to be thirty years old is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting and in the case of a document executed or attested that it was duly executed and attested by the persons by whom it purports to be executed and attested. A question has been raised whether this presumption should be made applicable to certified copies of documents thirty years old.

What is urged is that if a certified copy is produced before the Court of a document which purports to be thirty years old, the presumption of genuineness should be extended to the original document itself although it is not produced. It is to be noted that what is produced in Court is a certified copy. All that Court can therefore rightly presume is that it is a true copy of the original document. But no inherent testimony is afforded by the certified copy as to the circumstances under which the original came into existence and whether the original itself possessed any feature which would have destroyed or affected its validity.

In order to enable the Court to draw the presumption mentioned in section 90, two requirements are necessary. The first is that the document should be thirty years old and the other is that it should be produced from custody which the Court considers proper. By what process of reasoning could the Court raise these presumptions in regard to the original document when all that is produced before it is a mere certified copy? It may be that the original of which a certified copy more than thirty years old is produced was a fabricated document. It does not therefore seem to us reasonable to extend these presumptions to the original when it is not before the Court.

A view was once taken1 that section 90 enables the presumptions mentioned above to be drawn in the case of the original on the production of a certified copy of a document more than 30 years old. That view is however no longer good law. 2

1. Subramanya Somayajulu v. Seethayya, 1923 ILR 46 Mad 92. Reversed on another point Subnonm Seethayya v. Subramanya Somayajulu, ILR 52 Mad 453 (PC).

2. Basant Singh v. Brij Raj Saran Singh, AIR 1935 PC 132.

10. Change undesirable.-

For these reasons we do not recommend the acceptance of the suggestion.

Summary of Recommendations.- What we recommend is that questions relating to the relaxation of the rule against hearsay evidence, the rule as to circumstances under which secondary evidence should be admissible, judicial notice and ancient documents may be examined by Commission when revising the Evidence Act.