 Now, today's topic is section 6 of the evidence act, the hearsay evidence. Now, this is a very vexed topic. In fact, this is Blackstone, one of the great thinkers and writers of law in England. He later became a judge. He said that the question of hearsay evidence exclusion is one of the most difficult questions which arises in the evidence law. So, when Blackstone says that we have to approach this hearsay evidence with some circumspection, when to allow it and not to allow it. Now, you see, so far as our evidence act is concerned, some sort of precision in the matter of hearsay evidence is brought in by just Stephen. Fitz James Stephen, who was the person who had drafted the evidence act and not just the evidence act, many other laws in India during the first law commission, because Stephen's commission, basically the contract act, the transfer of property act, the criminal procedure court, the civil procedure court, had all Stephen's hand in it. And you can see when you read the initial enactments, how precisely these sections are drafted. It is also based on a philosophy, which was his teacher's philosophy, Mills theory, which I'm not getting into these matters. Now, let me start by saying that the question of hearsay admissibility is well defined in Section 6 of the evidence act. Section 6 says, any fact, though not in issue, is so connected with the fact in issue. It is not enough that it is connected with the fact in issue. It is so connected with the fact in issue, so as to form part of the same transaction. So this transaction, forming part of this transaction is pretty important so far as Section 6 is concerned. So as to form part of the same transaction, whether it happened in the same time, different time, same place or different place. So we all say that so far as admissibility of evidence under Section 6 is concerned. There should be unity of time, proximity of place and continuity of action. But when you read this section very carefully, you will find out that not much emphasis is laid on time and place, proximity of time and place, but on the question of continuity of action or forming part of the same transaction. That is extremely important if it is not part of the same transaction. Let me tell you that the evidence act does not permit the reception of the evidence under Section 6 under the guise of the exception to the rule of hearsay. Now before I go into the real question of Section 6, see what are the matters which have to be proved in criminal or civil trial? It is very simple. As per the evidence act, it is only the fact in issue and facts relevant to the issue. Fact in issue you know what it is. Last time we had discussed about it. Fact relevant to the issue, Stephen says fact is relevant to another fact. When the existence of the former can be shown to be the cause or to be the effect or the existence of the other or renders the existence of the other highly probable or improbable. According to the common course of events. So Stephen says in such situation a fact can be said to be relevant. That is either it should be the cause or it should be the effect or it should probabilise the existence of the other or must render the existence of the other highly probable or improbable. According to the common course of events, not extraordinary events, common course of events. This is what Stephen has stated in this digest of the law of evidence. Now four classes of facts. See so far as our common life is concerned, there are four classes of facts. We would usually be regarded as falling within the definition of relevance. But these facts so far as we are concerned, it will be relevant, but nonetheless, these are excluded from the excluded by the law of evidence, except in certain cases, which are those facts. We will first, facts similar to but not specifically connected with each other. That is rest inter alias act of course, there are exceptions to this in the evidence side facts similar to but not specifically connected with each other are excluded by the evidence side. But in common course of events, we always feel obviously that this is receivable, this has the relevance, but so far as the evidence act is concerned, this is not admissible. Then the fact that a person not called as a witness has asserted the existence of any fact. This is what we commonly know always hearsay, the person has asserted a fact. He cannot be called as a witness, he does not appear as a witness. That is excluded. The third fact is opinion evidence. Obviously hearsay has exceptions which we will come to opinion evidence. I have certain opinion on certain matters, but that is not admissible except regarding expert opinions. Obviously, as I told you, this aspect also has exceptions in the evidence side, but generally evidence act frowns upon admission of these three facts. The fourth fact is character evidence. The fact that a person's character is such as to render conduct impugnable to him, probable or improbable. Now, suppose a man is known to be some character, then he would have done this act. That is not admissible in evidence. These are the four matters. Obviously for this also, character evidence also, there are exceptions in the evidence side. But in the digest of the law of evidence, Stephen has enumerated these four facts which are to be excluded. Now, every fact must be proved either by oral or documentary evidence. Now, we will come to the question of Section 6. First, we will consider the case of one English decision, which as I told you, under Section 6 of the evidence act, the fact to be admissible most importantly has to be part of the same transaction. It has to be part of the same transaction. In Beddingfield's case, R versus Beddingfield was one of the first cases which you will find that is an English decision where the question of admissibility of a statement by a witness was considered whether it was admissible or not. Now, Beddingfield's case, this is what happened. The victim came out of the room. That is, the accused was charged with murder. The girl's name was Elisa Redd. She was living with her boyfriend and her boyfriend was the one who was charged with murder. Then the victim came out of the room clutching her throat and her throat was cut and she said, see what Harry has done to me. So the question was whether this statement by the victim is admissible or not. Now, Lord Pokemon, Chief Justice of England did not admit this evidence. He said that the transaction was over whatever happened and happened and then this cutting of the throat and the transaction was over. And this victim who came with the clutching her throat has stated what Harry has done is after the transaction. And therefore, since it was not part of the same transaction of cutting the throat, it is not admissible. Obviously, it is a very strange decision and it was wrongly criticized by many English judges and thinkers. Now, Thayer criticized that saying that, see, you cannot easily say when the transaction begins and when it ends. Of course, in this case, there was other evidence and ultimately the wedding field was convicted. He was tried and hanged for Mrs. Rudd's murder. But nonetheless, you should understand that the evidence was not admitted because it was something stated by the victim after it was all over, whatever it was, and after the act was completed. So, Lord Pokemon was emphatic that it could not be admitted. So, the question is whether how far he was correct in this matter. Professor Wigmore, who is one of the great thinkers of evidence law in England, did not agree with Lord Pokemon. He is the one who is generally credited with the first articulating the excited utterance exception. See, somebody who is speaking something spontaneously under excitement would be that itself, that excited utterance itself is a guarantee for truth. Because in such situations, there will be no chance of reflection and then making a statement. In this case also, there was no chance according to Wigmore for excluding this piece of evidence. Now, one thing is that though the victim died, it was not admitted as a dying declaration because she was not in the contemplation of death merely because of the injury. So, James Bradley here, he stressed the importance of timing of the hearsay statement and concluded that substantial contemporaneity between the event perceived and the declaration's description were sufficient to justify an exception to the hearsay rule. Now, substantial contemporaneity between the event that is the cutting of the throat perceived and the declaration's description of the act was sufficient according to Thayer to justify the hearsay rule. But later decisions you will understand shows that the later decisions would indicate that the courts were placing more reliance on the third aspects of Section 6, that is whether it is part of the same transaction or not. Now, in Subramanian versus public prosecutor, that is you may note down the decision, the citation, that is 1956 1 WLR 965. See, it says the admissibility of hearsay depends on the purpose for which the evidence is given. Ruby council says that hearsay is inadmissible when the object of the evidence is to establish the truth of what is contained in the state. I mean, in Weddingfield's case, that Harry had cut the throat. If you want to establish that, then as per the decision in Subramanian versus prosecutor, it would be inadmissible. When it is to establish the truth of what is contained in the statement, it would not be hearsay and is admissible. When it is proposed to establish by evidence, not the truth of the statement, but the fact that it was made immediately after the incident has happened. If the witness comes and says this, necessarily it would indicate that a statement of a fact was, a statement was made immediately after the incident. Now, this is what Subramanian versus, next versus Subramanian, 1956 1956 1 WLR decision says. Now, this statement has been approved by the Supreme Court in various decisions. One is Dantale Vijay Varadhan Rao's case, then the other is Ratan Singh's case. So, now we will go to the other historical matters under section 6. Now, see, in a year 1957 Supreme Court 2 level, Prashadhi versus State of UP, the statement was made by the accused. To one Shankar Lal that he had done away with the deceased and carried out his threat. The deceased body was found in a furnace. The Supreme Court said that Supreme Court admitted the evidence because soon after the deceased was found to be missing, the appellant had made a statement indicating that he had a hand in the disappearance by throwing the victim in a furnace. So, this evidence was admitted by the Supreme Court because of the proximity of time. This is one case in which proximity of time was considered and the Supreme Court admitted the evidence as an exception to the hearsay rule. Now, in Dantale Vijay Varadhan Rao's case, that was the State of UP, what happened was 23 persons had died in that incident. The passengers, the bus was set on fire and 23 passengers had died. Two seriously injured fellow passengers made a statement to the magistrate but they survived the incident. So, therefore that evidence was not admissible because they had survived under section 32 because it was not a dying declaration. Now, the interval between the recording of the statement and the incident was not proximate. There was appreciable difference in the interval and therefore Supreme Court, in Dantale Vijay Varadhan Rao's case, that is AAR 1996 Supreme Court 2791, they did not admit the evidence because there was no proximity of time because according to the Supreme Court, the witnesses had ample time for reflection. Though they were seriously injured fellow passengers, they did not die. But nonetheless, the statement of these two injured persons were not immediately after the did not have sufficient proximity with the incident. Now, I had mentioned about Subramaniam v. Prosecutor. That is also a very interesting case. In that case, in Federation of Malaya, security forces were operating against terrorists. The Subramaniam was caught. He was tried and convicted for unlawful possession of arms. That was at the time a capital offense in the Federation of Malaya. His defense, in fact, was that he had acted under pressure duress. So, he sought to give evidence of threats made to him by terrorists. And his contention was that he possessed the arms. You kept the arms with them because the terrorists had threatened him. But this was ruled as inadmissible by the trial. He then filed an appeal against a conviction to the Pravee Council, which was actually allowed on the ground. That if the threats were made to him and he believed them, he excluded evidence when directly to support his defense of duress. So, the Pravee Council said that the evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the objective of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to be established by evidence, not the truth of the statement, but the fact that it was made. The fact that it was made quite apart from its truth is frequently relevant in considering mental state and conduct thereafter of the witness or some other person in whose presence these statements were made. Now look at this case. The terrorist obviously were not witnesses. But then the evidences at trial was that he was threatened by terrorists and that is why he kept the ammunition. So, the Pravee Council in Public Prosecutor v. Subnavarni admitted the evidence. Now this is one of the most cited judgments as to what constitutes hearsay. You can see the Supreme Court of India in Balram Prasad's case, that is Balram Prasad v. state of Bihar, quoted with approval the dictum contained in Balram Prasad, I mean in prosecutor v. Subnavarni. Now this is what we generally call present sense impressions. Present sense impressions are hearsay statements describing or explaining an event or the condition made while or immediately after the declarant perceived it. Now this is the present sense impression which he had. You know hearsay statement is always uttered contemporaneously with the observation or immediately thereafter. Such a statement would be free from concerns of failed memory or reflection and then stating something which is not exactly true. Now this is another important case is Richard Gillies case where that is reported in AIR 1939 PC 146. There it was a sexual offenses against women, statements were made to third parties. It was held in certain circumstances, it is admissible. Now one important case is Ratan v. Queen, that is where implied assertions come into play. In that case, Mr. Ratan was tried and convicted for committing murder of his wife. According to Ratan, he was cleaning his gun and the missile and the gun went off and the bullet hit his wife. And that is how she happened to die and there was no premeditated assault on his wife. In that case they were telephone records. According to Ratan, he had made a call to the police and asked the police to come to his house. He had also made a call to the hospital authorities to fetch his wife. You know those days, that is during the 60s, late 60s, we did not have mobile phones or you had to call the telephone operator in an exchange and then the telephone operator, you know, connects into the hospital or police, whatever it is. So the telephone operator was examined. The telephone operator's evidence was that one woman called her, she was highly excited. She said fetch the police. So that was an excited utterance by a person that woman was the victim. So the telephone operator's testimony was believed and it was an excited utterance by the victim. Victim said that get me the police and the implied, there is an implied assertion in that that she is under a threat. And based on the testimony of the telephone operator, the testimony of the victim, the statement of the victim which was otherwise, in other words, hearsay was admitted and the TV council held that the telephone operator's repetition of the words used by the caller did not infringe the hearsay room and that any event would be admissible by virtue of the doctrine of resistive because it forms part of the same transaction. During that, immediately after the telephone call was made, she sustained the injury and she died. Now, this was approved in R versus Kerala and by the House of Lords. Now Ratan's case is reported in 1971, three all-England reports, 801. Now, people who are in Kerala will be aware, familiar with Govinda Swami's case. Govinda Swami had murdered, was accused of murder of a young girl. He assaulted her in a moving train and the victim is said to have jumped out of the train or rather pushed out of the train by Govinda Swami and the impact she fell down and Govinda Swami is said to have raped her and in the process she died. So, there was no direct evidence in this case. The evidence was DNA sample recovered from her flaws. The High Court had convicted Govinda Swami for murder and rape but in appeal, the Supreme Court did not, because there was no evidence, direct evidence for murder, they convicted Govinda Swami only on the charge of rape. Now in that case, there was a DNA evidence, that was what was crucial because Govinda Swami's DNA was found in the dress worn by the victim. But the other evidences of two witnesses, who were travelling in the next compartment, they heard some crime in the compartment just in front of their compartment. The girl was crying for help and one person was presumably assaulting her. These two passengers wanted to pull the chain but they did not pull the chain according to them because one person had told them he was peeping out of the main door of the compartment. He said then the girl has jumped. So, the girl fell and therefore they said they did not pull the chain. So, the person who was standing in front of the door who said that the girl has jumped was not examined. He was not raised up by the prosecution. But the statement of the other two persons were admitted because the statement was contemporaneous with the transaction. That is pushing the girl out of the compartment. So, in Govinda Swami's case, the testimony of the two middle-aged men who were in the compartment were admitted in evidence. This decision is reported in 2016, volume 16, SCC 304. Now, these are the main decisions on the question of hearsay evidence by our Supreme Court. The most important decisions are Vijay Varadhan Rao's case which was a state of Andhra Pradesh which is reported in 2016, AAR 2016 Supreme Court 5378. That was the case where the evidence was recorded by the witnesses. Now, the principle of resjusting is an exception to the rule of hearsay which I had read out initially from Stephen's commentary on the Indian Evidence Act. Now, there is one another interesting aspect. Nowadays, computer records are produced in courts. So, the question will be regarding hearsay and non-hearsay of computer records because whatever comes in the computer record, there can be a criticism. See, you have no direct knowledge of what is appearing in your computer where it is sent to you by somebody and therefore, so far as that is concerned, it is not admissible by virtue of section 6 even though that may be relevant under section 65B admissible under section 65B and relevant under other provisions of the evidence act. Now, we have to examine this question. See, records stored in the computer are three categories. One is non-hearsay. The second is hearsay. And then third is records which may include both hearsay and non-hearsay. Now, what are non-hearsay records in the computer? That is a process that does not involve a human assertion. That is a non-hearsay record. For instance, telephone-told records. No human intervention is necessary. It is recorded in the computer as it is. Then you will have, suppose some accuse makes a call and there is a cell tower information. The cell tower information will relate the, tell about the position of the accused or the place from where the accused or anyone made the call. Cell tower information. This is a non-hearsay because it does not involve human assertion. Email header information. Now it was sent from a particular IP address. Then email header information. These are informations which does not involve human assertions. Then electronic banking records. Nowadays you send all your money. Transactions are either through Google Pay or through Money Transfer. Those electronic banking records do not actually require, it is already stored. Once you make a record, it is stored in the computer. And therefore there is no human intervention so far as the materials found in the computer records of the bank are concerned. Then global GPS data. Now GPS data. At a particular point of time, we use this in Kerala very much because there is a Paddy and the Wetland Act in Kerala. I mean conservation of Paddy and Wetland Act. Where prior to 2008, the Act came into force in 2008. Now, if the conversion of a Paddy field or Wetland is done prior to 2008, the Act may not have been. How do you find out? You get the global positioning system. GPS data from Kesara or the Google Earth's data. And then compare what was the extent, what was the position prior to 2008. So these things can't be said to be hearsay. Then login records from ISP or Internet News Group. Login records again do not require human intervention. Now, a personal letter that may be hearsay record. Then it should be part of the same transaction. Then it will be admissible like a memo. A memo sent. Bookkeeping record. Records of business transactions inputted by people. These are all hearsay records. So for this to be admissible, it should come within the four corners of section 6. Now there will be mixed hearsay and non-hersay records. That is the combination of the first two categories. Email containing both content and header information. This content would not be hearsay. But header information will not be hearsay. File containing both written text and file creation. Last written and last access dates. Chatroom logs and all that. Then spreadsheets with figures. These all require just type of a person in a computer. So this again should come within the ambit of section 6. Now this is so far as computer information is concerned. Now there are, this matter has not been looked into by our Supreme Court. But there are American decisions on the point. Now for this to be admissible, you see, witness must have first-hand knowledge of the relevant facts. Such as what the data is and how it was obtained from the computer. Whether and how the witness business relies upon the data. Whether it is part of the same transaction. Does he know about the transaction? These are all matters which have to be looked into. Now so far as computer records are concerned. I think now in the future years to come. This will be more relevant because in a case where I, which I was trying when I was sessions at Manjari. You can see, you see, there were these call logs as well as cell tower information, the position of the place where the accused made calls and all that. This came in evidence. So the question was whether after compliance with section 65B of the Evidence Act, whether once it is admitted, whether it is relevant or not, whether it is hearsay or non-hearsay. Then so far as cell tower information is concerned, it is not hearsay. It does not involve human intervention. Likewise, a call from cell phone has gone to one of the co-accused. That telephone call records, you know, that does not have any human intervention. Similarly, in another case which I had tried, an appeal which I had heard, which was email, I mean, online fraud, siphoning of money. There again, the electronic banking records, email header informations, these were all admitted in evidence. But then the question will arise when the evidence contains both hearsay and non-hearsay. And then when non-hearsay comes in, it should be, it should come within the four corners of section 6. This is what we have to understand when we look into this. Actually, this is a very vast topic. But you see for the one hour, this is obviously not enough. So I tried to compress this into the one hour talk. So I hope it's almost done because there's only one section. Naveen Kumar says, during the examination of a PWN code, following take place, PWN chief says, X incident took place at Y place. PW says in cross, I was not present and it didn't happen before me. But B told me about it, but doesn't say when. What is the effect of this? Whether the evidence is entirely faced or is admissible under the risk? I have not really understood the question. Now, what is happening is that witness says that he was not present. Yeah. All right. Then he says that B told him about the incident. Yeah. Obviously, this hearsay. Let me check it on the YouTube whether any question has come. People have only placed that the this is one of the topic which was quite ignored and we have taken it up. In fact, that's so. Lot of people actually don't understand the nitty-gritty of the hearsay evidence. What is most important is section six. See, it should be connected with the fact in issue. It should be so connected to the fact in issue so as to form part of the same transaction. It's not necessary that it happened at the same time, same place. Or different things are different. That is not very important, but it should be part of the same transaction. What does that is what the same transaction is very important. And see, Stephen says Stephen has also defined transaction transaction a crime and act. I mean mortgage. These are all transactions. So the evidence should be part of the same transaction. I think somebody has asked some question. Please explain about email evidence. What does that mean? I think some questions. Probably discussing only please explain the email evidence so you can watch the two sessions on the electronic evidence. We have done by you've run the run car as well as one more speaker. I'm only saying regarding the in the context of section six, email evidence. The header is not part of. It is not hearsay. It is non hearsay. But then the content that I human intervention comes in. Then it may be hearsay. What I so again, you would have to look into Subramanian versus prosecutor. The fact that an email was sent with this information. That is the purpose it is admissible. But truth of the matter stated there and it may not be. So if we have to summit up in the end in like we did it in 45 minutes, if you have to summit up in two minutes, how do you summit up of the hearsay? Eventually, because I remember and I often speak that in one of the speakers they said that the biggest challenge for any speaker is to make more and more crispier and shorter. So what is the path and substance of section six according to you in two minutes take away. Now, the most important thing is that they all see everywhere the evidence should be direct. If you want to say something, you have to come to the come before the court and say that because that is what is contained in section article six. I mean six amendment to the American Constitution. Walter Rayleigh's trial, you all remember Walter Rayleigh said that come to my face and depose. Now one copham was the co-conspirator and there was a hearsay evidence by a third party. There was no direct evidence against him. He was convicted and hanged tortured and hanged. But then that was that the way in which the trial was done. There was a lot of consternation among the legal luminaries of those times and the public at large. That is why this exclusion against hearsay rule came. Because if you want to say something, you have to, how do you test the veracity of something which has been said by somebody who is not before court? We cannot cross examine him. So that is one of the reasons why this rule came into effect. Whatever is being said should be said in the court and the adversary, any adverse witness, the party should ever write to cross examine. That is the part of six amendment to the American Constitution. Our Constitution also has these kind of safeguards. Now section six very clearly says that if something which is not part of fact in issue or relevant fact cannot be admitted. But if a fact, how does it become relevant? It becomes relevant when it is connected with the fact in issue. It should be so connected with the fact in issue. So as to form part of the same transaction, it should be part of the same transaction. Now when the transaction begins and when it ends, you can't say, but it should be part of the same transaction. For instance, siphoning of a lot of money from a bank account, it may go on for a year or two. But then all entries made would be part of the same transaction. It may not have happened at the same time or same place. So that is why the section says that whether it happened at the same time, same place. But it should be part of the same transaction. This is what we have to remember so far as section six is concerned. My view in the end of the conclusion shows it all. And thank you Mr. BG Rinpoche. Since we took out the session immediately, it was taking time. And we all know that BG Rinpoche is an advocate practicing in the Kerala High Court, as well as he's the former secretary of the Kerala State as well as the former district and session judge. He has been sharing knowledge on the channel of Beyond Law CLC. 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