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:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
Section 60 lays down few conditions to be fulfilled before oral evidence is made admissible. According to this section oral evidence must be direct or positive. This simply means that the witness tells the court of facts of which he has personal knowledge and experience. The word “must” in the section indicates the exclusion of indirect evidences including “hearsay” or derivative evidence. The cardinal principle is that the best evidence must be given before the court.
Guideline for proving oral evidence:
Section 60 lays down that oral evidence must in all cases be direct. “The word ‘direct’ to this section is used as opposed to mediate or derivatives or what is technically called hearsay.” Where a witness gives evidence that he received information from other person and that person does not say about it, such evidence would be inadmissible being hearsay evidence. If evidence is not based on personal knowledge but on what has been heard from other as hearsay evidence it is inadmissible. The section has specifically mentioned what is direct evidence. It is meant to say that:
1. If the evidence is to be given about fact which could be seen, it must be the evidence of a witness who must say that he himself saw it;
2. If the evidence is to be given about fact which could be heard, it must be the evidence of witness who must say that he heard it;
3. If the evidence is to be given about fact which could be perceived by any other sense or by in any other manner if witness produced must say that he perceived it senses or in that manner;
4. If the evident is to be given about an opinion or as to the ground on which opinion is to be held, the witness must say that he holds that opinion on those ground.
The section, therefore, provides four methods for proving oral evidence. The evidence must be of that person who himself witnessed the happening of facts to whom he testifies. This must be left to the parties but in weighing the evidence the court can take note of the fact that the best available witness has not been given, and can draw an adverse inference. In a murder case neither oral report was made to the investigating officer by the informant nor written report said to have been sent to the police, it was not admissible evidence as being hit by rule against hearsay. However, fact of encroachment in the absence of documentary evidence can be proved by oral evidence.
It is one of the cardinal rules of the law of evidence that “in determining the admissibility of evidence the production of the best evidence should be exacted.” Sections 60, 64 and 91 are founded on this rule. Since witness is called an ‘eye-witness’ or ‘a witness of fact’ who has the first hand knowledge in the sense that he perceived the fact by any of his five sources.”
Section 60 cannot be invoked on ground that oral direction given by the authority to register case against accused under TADA amounted to prior approval in view of Section 60 of the Evidence Act where he did not state that he had given any such direction.
Two proviso to Section 60 provide exception to the general rule that oral evidence must always be direct. These exceptions are technically known as “hearsay evidence.” Hearsay, therefore, strictly speaking is secondary evidence of any oral statement.
Hearsay evidence “denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person.” The evidence is such that the witness has no personal knowledge about the fact in question, rather it is derivative based on the second-hand knowledge, “Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else; sometimes it is treated as nearly synonymous with ‘irrelevant’ ’’—STEPHEN.
In every case the credit goes to someone else. It is that kind of evidence which comes indirectly. An informant is alleged to have given information to the D.S.P. that the accused will be following the truck which carried the prohibited liquor, when this informant is not examined the evidence of D.S.P. received by him is not admissible. Where it is alleged that the boy was adopted on the date of his birth, the oral evidence of the boy in proof of adoption is hearsay. In a murder case the evidence of witness who came to the scene of occurrence immediately after the occurrence though he did not see the accused persons attacking the deceased but he learnt about the same from eye-witness.
He sent information to the police. It was held that his evidence about such information though was hearsay but corroborated by substantive evidence of eye-witness and therefore was admissible. Thus, it comes not from the knowledge of person who deposes it, but through some other person.
Exclusion of hearsay evidence:
Hearsay evidence is excluded owing to its infirmity as compared with it original source. It is always desirable in the interest of justice to get a person whose statement can be relied upon. When the father of a kidnapped boy gave evidence that his son was kidnapped by a named kidnapper in a car whose registration member was given, but the witness in evidence only stated that the boy was kidnapped but nothing about the kidnapper or the vehicle, the evidence of the father was only hearsay except to the extent that it was corroborated about the kidnapping under section 157.
The site map prepared by the investigating officer could be hearsay unless the person who is alleged to have furnished the information is examined as witness. The witness told the court that the officers who were present in the spot, told him that one T was driving the bus, held to be not direct.
In hearsay evidence the deposition given by the witness is a statement of information given to him by some other person. “It is totally irrelevant to be admissible and any possible source of inaccuracy and untrustworthiness can be best brought to light and exposed by the test of cross-examination.” Its admission tends to prolong trials unduly and open the door for practicing frauds. “The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination and the light which his demeanour would throw upon his testimony is lost.” The circumstances that accused gave wrong information to the informant that deceased died due to poisoning which was contrary to medical evidence and indicated assault on victim was not admissible in evidence being hit by rule against hearsay.
Exception to hearsay rule:
There are number of exceptions to the rule of hearsay. All exceptions have been imported in the Evidence Act. Primarily, the exceptions are to be found in Sections 17 to 39 of the Act as well as in Proviso to Section 60. These include admission, confession, statement of persons who are dead, or cannot be found etc., entries in books of account, statement in public document, maps and charts, reputation, expert opinion and statement of experts in treaties (Proviso to Section 60). The exception is also extended to the rule of res gestae (Section 6).
It is therefore, said that under certain circumstances the hearsay evidence is held admissible, particularly when it “relates to the question of the credibility of witness.” The evidence of witness who heard the calling her name when her father was assaulting her mother is admissible.
First proviso provides for production of treatise containing expert’s opinion offered for sale, if the author of the treatise is dead or cannot found etc. (Section 32). The treatise required to be admissible must be offered for sale and the burden of proving the particular treatise is on the person who desires to give such treatise in evidence. The opinion by a living authority in a treatise as to usages and tenets of a body of men or family is not admissible under this section. Similarly, opinion of experts as expressed in treatises of person who is dead can be treated as evidence in proper case. But, using of such treatise as evidence should be made with caution when the Supreme Court explained that “every article published or a book written cannot ipso facto be regarded as conclusive or worthy of acceptance.
Second proviso requires the production of material thing (Section 45) for inspection if oral evidence refers to the existence on condition of any material thing. Secondary evidence of the contents of written document is permitted under this proviso when production of original is impracticable.