Bombay HC: Under which circumstances, disclosure made by the child victim though hearsay is admissible as per S 6 of the Indian Evidence Act?

14. The evidence of PW 2 and PW 7 as regards the disclosure made by the child victim though hearsay is admissible in view of the provisions of section 6 of the Indian Evidence Act which recognizes and embodies the rule of res gestae, which is explained by the Hon'ble Apex Court in Gentela Vijayvardhan Rao v. State of Andhra Pradesh reported in MANU/SC/0719/1996 : AIR 1996 SC 2791 thus:

"15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" speaking, in exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae ............... "

Section 6 is an exception to the rule of evidence that hearsay evidence is not admissible. The statement must relate to the fact in issue or relevant thereto and must be substantially contemporaneous with the fact. Such statement though not evidence of the truth of the matters stated are of corroborative value. In Sukhar ..vs.. State of Uttar Pradesh reported in MANU/SC/0626/1999 : (1999) 9 SCC 507 the Hon'ble Apex Court observes that section 6 is an exception to the general rule of inadmissibility of hearsay evidence provided such evidence is almost contemporaneous with the fact/s excluding the possibility of fabrication. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue, as to the form part of the same transaction, that it becomes relevant by itself.

The evidence of PW 2 - Pushpa and PW 7 - Priya that the child victim narrated the incident to them is therefore admissible in view of the provisions of section 6 of the Indian Evidence Act.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Appeal 316 of 2018

Decided On: 01.07.2019

Manish Vs. The State of Maharashtra

Hon'ble Judges/Coram:

R.B. Deo, J.

Citation: 2019 SCC ONLINE BOM 1154, MANU/MH/1619/2019

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Hearsay Evidence under the Indian Evidence Act: Concept, Exceptions, and Examples

 Introduction to Hearsay Evidence

Hearsay evidence refers to information that a person gathers or collects from someone else who has first-hand knowledge of that fact or information, making it second-hand information. According to the Indian Evidence Act, 1872, hearsay evidence is generally not considered valid evidence and is inadmissible in courts.

The fundamental principle underlying this rule is that oral evidence must be direct, as mandated by Section 60 of the Indian Evidence Act. This section requires that if evidence refers to a fact that could be seen, heard, or perceived by any other sense, it must be the evidence of a witness who says they directly saw, heard, or perceived it.

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Whether the court can hold that the accused caused the death of the victim by accident by relying on his statement made immediately after the incident as res gestae?

 We will also examine the effect of such statements assuming that the same were really made. These statements were allegedly made immediately after the incident. The statements do have a connection with the incident. The statements were allegedly made spontaneously. Therefore, the Courts have treated the statements as relevant by invoking the doctrine of res gestae incorporated in Section 6 of the Indian Evidence Act. We have held that the theory of the prosecution that the Appellant fired intentionally has not been established. The Appellant was instructed by PW-12 to go to the deceased and to prevent him from continuing the use of the telephone. Therefore, he went near the deceased. It is the reaction or the action of the deceased which resulted in the SAF getting entangled with the chain attached to the Appellant's belt; which led to the accidental fire from SAF. Therefore, the Accused spontaneously reacted by telling PW- 12 what she has got done from him. While implementing the direction issued by PW-12, the accidental fire took place and that is how the Appellant became responsible for the death. It is in this context that the reaction of the Appellant has to be understood. By those words, he has blamed the PW-12. The statement attributed to PW-12 means that she would support the Appellant before the Court by telling the truth. If the theory of accidental firing is accepted, the interpretation of the aforesaid statements as made by us becomes a possible interpretation which is consistent with normal human conduct.

{Para 17}

18. Section 6 of the Evidence Act and illustration (a) below Section 6 read thus:

6. Relevancy of facts forming part of same transaction.--Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations

(a) A is Accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.

PW-5 and PW-13 have attributed the aforesaid statements mentioned in paragraph 16 above to the Appellant and PW-12 Shashi Bala which were immediately made after the incident of firing. The alleged statements are certainly connected with the fact in issue, namely, the alleged act of the Appellant of killing the deceased. Therefore, assuming that the statements attributed to the Appellant and PW-12 were in fact made, the conduct of the Appellant of making the said statement becomes relevant in view of Section 6. Section 5 of the Evidence Act provides that evidence may be given in a proceeding of the existence or non-existence of every fact in issue and of such other facts which are declared to be relevant under the provisions of Chapter II of the Evidence Act, 1872. Section 6 is applicable to facts which are not in issue. Such facts become relevant only when the same satisfy the tests laid down in Section 6. Hence, the statement of an Accused to which Section 6 is applicable cannot be treated as a confession of guilt. The statement becomes relevant which can be read in evidence as it shows the conduct of the Appellant immediately after the incident. In any case, in the facts of the case, we have held that the version of the two witnesses who have deposed about the Appellant making such statement does not inspire confidence.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2390 of 2010

Decided On: 17.07.2023

 Arvind Kumar  Vs.  State of NCT, Delhi

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Rajesh Bindal, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: MANU/SC/0772/2023.

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Complete study material on Evidence law

Oral & Documentary Evidence

CHAPTER-I

ORAL EVIDENCE

The facts judicially noticeable and facts admitted are need not to be proved. Oral and documentary evidence are not only media of proof. This chapter deals with the oral evidence only. It enacts two broad rules regard to oral evidence: firstly, that all facts except contents of documents may be proved by oral evidence, and secondly, that oral evidence in all cases must be direct and not hearsay.

The meaning of expression “oral evidence” is given along with the definition of the term “evidence” in Section 3 of Indian evidence act as-: “Evidence” means and includes -:

(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence.

(2) [1][All documents including records produced for the inspection of the Court] such documents are called documentary evidence.

Section 59 of the Indian evidence act reads as-: All facts, except the contents of documents, [or electronic records,][2]may be proved by oral evidence.

Principle: this section lays down that all facts may be proved by oral evidence, except the contents of a document. The section is rather loosely worded as it makes an unqualified statement as regards the exclusion of oral evidence to prove the contents of a document. The true position is that oral evidence can be led as evidence relating to documents under section 65.

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