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Published: Fri, 02 Feb 2018
Admissibility of Evidence Recorded
This research paper attempts to briefly trace the creation and progress of the exclusion rule of hearsay evidence in common law and subsequently the creation and application of exceptions to this rule. Thereafter, focusing on the Indian scenario, the paper deals with ‘statements made at previous proceedings’ given under Section 33 of the Indian Evidence Act, 1872 as one of the exceptions to the hearsay rule. Various components of the provision are then analysed. One of the ways in which this has been done is by analysing Section 33 as an exception to the definition of oral evidence provided under Section 3 read with Section 60 of the Indian Evidence Act. The researcher has attempted to justify this in a way by elaborating on the importance given to the right to cross-examination as well strict proof of the conditions that necessitates the application of this section. Further, an analogy to the components of res judicata has been made with respect to the proviso of the given section. It has been shown that the exercise of jurisdiction by courts as given under this section is not barred by the above mentioned doctrine. One of the limitations of this paper is that the issue regarding the identity of parties in the previous and the subsequent proceedings, and confusion regarding the usage of the word ‘representative’ as being with respect to the parties in the previous proceedings, has been excluded from the scope of this paper due to word constraints.
Rule Against Hearsay Evidence: Background and Exceptions
Hearsay evidence can be defined as ‘an assertion other than one made by a person while giving oral evidence in the proceedings’ which becomes ‘inadmissible as evidence of any fact asserted’.  For the aspect sought to be analysed in this paper, the appropriate definition of the ‘Hearsay Rule’ may be stated as: ‘that rule which prohibits the use of a person’s assertion, as equivalent to testimony to the fact asserted, unless the asserter is brought to testify in the court on the stand, where he may be probed and cross-examined as to the ground of his assertion and of his qualifications to make it’.  The history of the hearsay rule in common law can only be traced back to the 1500s, which marked the slight digression from the mode of trial which was entirely jury based which evidently permitted and condoned the practice of acquirement of information by the jury from informed persons not called into court, and first recognised the practice of producing witnesses in court in a positive light.  Early 17th century saw a shift to a mode of ‘trial by witnesses’ which no longer relied on knowledge of the person testifying, which may be borne out of his personal opinion or belief or from information gathered from third persons, as in the case of jurors, but on actual perception of a fact without any reliance placed on their own opinions or what they might have heard from others.  Thus, the rule of hearsay was eventually recognised and applied more and more strictly towards the 18th century in trials by court and testimonies at second hand or, testimonies by individuals not based on their own observation or perception of the fact sought to be proved, came to be considered increasingly inadmissible in a court of law.  The same principles of common law thus came to be introduced by the British and got inculcated into the Indian legal system and can be seen in Section 60 of the Indian Evidence Act, 1872.
In the opinion of the researcher general justification of the exclusionary hearsay rule with respect to oral evidence can be attributed to an understanding of fairness and justice which is based on the speculation regarding the credibility of the information being sought to be adduced through the evidence due to the fact that its being transmitted through an intermediary person and may be convoluted intentionally or even unintentionally, or as the case may be due to the lack of opportunity to cross-examine and question the individual who originally made this statement in order to check it’s veracity.
However, where there is a general rule of prohibition or exclusion, exceptions to it are bound to be created with time, but such exceptions should not be seen as being contradictory to the rule itself rather they further strengthen the purpose of the main rule by identifying only a few specific situations where these exceptions may be applied as they would not really deviate from the purpose of the main rule if certain factors are kept in mind, thus further highlighting that the rule is what is to be adhered to in the majority of circumstances.  These exceptions would serve the purpose of making such evidence admissible as was rendered hearsay by definition but was manifestly reliable with respect to the fact sought to be proved by it.  This addresses the lacuna clearly reflected in the case of Myers v DPP  where the central evidence had to be rejected on basis of the fact that it was hearsay evidence, irrespective of the fact that the judges repeatedly attested to the manifest credibility of the given evidence.
The exceptions to the hearsay rule were by no means created by the jurors in furtherance of some specific attempt to bridge the gap between reliable and credible evidence that should be made admissible or relevant and the exclusionary rule which seemed to prohibit this based on the blanket application effectuated by the hearsay rule, rather it was done in a piecemeal manner as such circumstances were brought before the courts in a multitude of cases.  Inadmissibility of such evidence could patently be against the interests of justice in such cases where the said evidence is necessary or indispensable to proving the fact in question.
In this context, the researcher would like to draw attention to the exception to the hearsay rule sought to be discussed in this paper that is of ‘statements made at previous proceedings’. The researcher in the subsequent sections of this paper attempts to analyse the components and justifiability of this exception in the Indian context through Section 33 of the Indian Evidence Act, 1872 (hereinafter, the ‘Act’). 
Section 33 can be construed as an exception to rule of hearsay as it renders such evidence as may have been ‘given by a witness in a judicial proceeding, or before any person authorised by law to take it’ relevant in a subsequent judicial proceedings or the same proceedings at a later stage even though the witness in question is not brought before the court. The circumstances in which this has been made possible are similar to those under Section 32 of the Act, and seem to attribute a degree of ‘necessity’ to the situation in which the exceptions may be applied where the witnesses cannot be present to give evidence.  The various components of this section are examined through the course of this paper.
Section 33 as an Exception to Section 60
‘Oral evidence’ has been defined under Section 3 of the Act.  The wording of this section clearly necessitates the statements to be made before the Court by the witnesses themselves either by virtue of permission of the court or when required by it.  Read with Section 60 of the Act, oral evidence that is evidence in the form of statements made by a witness, in order to be relevant in proving the truth of the statement, needs to be direct in all cases.  Both these sections are basically in accordance to the exclusionary rule of hearsay evidence as discussed earlier. Thus, what Section 33 purports to do seems to be inconsistent with the requirement of direct oral evidence as stipulated within the Act.
However as discussed earlier, this does not necessarily mean that this exception as provided under Section 33 of the Act is in disagreement with or contradicts the statutory requirement which mandates direct oral evidence, rather it provides for exceptions only in certain circumstances in which such evidence being made inadmissible on account of it being hearsay merely because the witnesses cannot be present due to unavoidable circumstances would result in the miscarriage of justice. However, as discussed in the later part of the paper, it is ascertained through a safeguard within the provision itself that the dangers relating to hearsay evidence, for instance, the question of its credibility and unexamined nature, have been dealt with before this exception has been laid out. Also, strict compliance with the circumstances provided under Section 33 is also required as has been explained ahead. These requisites may even be taken to imply that this admissibility is not because of an exception, rather is in adherence to the rule itself. 
The circumstances in which such indirect evidence is sought to be made admissible according to Section 33 of the Act are as follows: death of the witness; or if witness cannot be found; or is incapable of giving witness; or is kept out of the way by the adverse party; or if his presence cannot be obtained without an unreasonable amount of delay or expense. It is necessary for these circumstances to be proved conclusively after having taken reasonable care to ascertain that the situation is not otherwise.
For instance if the contention based on which the evidence is being made admissible under Section 33 is that the person cannot be found, repeated and suitable attempts should be made to trace him before this is accepted by the court.  The circumstances due to which the witness cannot be produced in front of the court also need to be sufficiently proven for the evidence to be admissible as held in the case of S. C. Mitter v. State.  In this case, the prosecution sought to use the evidence already recorded, in absence of the witness, later in the proceedings under the plea that Sripati had been taken seriously ill and so was incapable of giving evidence and also that his presence could not be secured without undue delay.
However, having made the above claims the prosecution did not do anything to prove the fact of Sripati being incapable of giving evidence on account of being taken seriously ill: the doctors appointed to examine the witness did not give evidence in case neither were the doctors, medical certificates from whom were produced in court, examined. The Public Prosecutor who was making statements pertaining to the witnesses’ illness was also not examined. It was held that it would not be enough if such a claim was not contested by the defence counsel and that the prosecution should have objectively proved the fact of Sripati’s illness and consequent unavailability. It was also held that the appellant had only got the partial right to cross-examine due to the circumstances and manner in which they had taken place. Thus, the evidence was held to be inadmissible due to non-application of Section 33 and the order of conviction of the appellant was set aside.
Thus, it can be seen that the circumstances enumerated under Section 33 need to be fully established through strict proof in order to adequately fulfil the requirement of necessity for such hearsay evidence to be made admissible through the application of the exception.  This, in the researcher of the opinion, serves the purpose of not trivialising the rule which excludes hearsay evidence by making it indispensable for it to be proven irrefutably that there would be no other way at all by which the pertinent statement could be made again by the witness in front of the court.
The safeguard mentioned earlier, which is contained in the second proviso of the section, gives the adverse party the right as well as opportunity to cross examine the witness during the proceedings in which the said statement was made by him or her and where this statement is being considered relevant to prove the truth of the statement of facts in later judicial proceedings where the witness cannot be present. 
It is important to note the usage of both ‘right’ and ‘opportunity’ while referring to cross-examination of the witness.  This has been unambiguously stated in the case of Mulkh Raj Sikha v. Delhi Administration  . In this case, the evidence given by one of the prosecuting witness in the committing court was sought to be made admissible in the Trial Court on account of his non-availability. The fact of his non-availability was amply established and several fruitless attempts to trace his whereabouts. However it was contended by the defence counsel that the evidence would still be inadmissible as the adverse party or the appellants did not have the right and opportunity to cross examine in the first proceeding. This was based on the fact that when the appellant who was represented by a counsel had declined to cross-examine the witness, the committing Magistrate had said that he would reserve the right to cross-examine in the Sessions Court, which the appellant had not been able to avail. However, merely because a right to cross-examine existed in the subsequent proceedings would not alter the fact that the appellant had the right, as per Sections 207 and 207A to cross-examine the witness in the previous proceedings when the statement had been made, as well as the opportunity to cross-examine which was not limited by any rights he had been given in the Sessions Court. Thus, the evidence made by the unavailable witness was held to be admissible and the appeal dismissed.
Thus, this also takes care of situations were an absconding party against whom the evidence is to be used had been given notice as well as sufficient time to prepare for the cross-examination of the witness does not actually cross-examine the witness, as the requirements of a ‘right’ and ‘opportunity’ to cross examine have been fulfilled.  Any possibility of misuse of the proviso by the adverse party by way of intentional waiver of the right to cross-examine, are also eliminated by this position of law.  It is interesting to note that the same principle applies to the circumstances where the adverse party keeps the witness away due to which he is incapable of giving evidence, that is, the adverse party would not be allowed to use his own wrong to his advantage. 
However, if there is any failure in the proper conduct of cross-examination in the previous proceedings, whether due to the death or illness of the witness soon after examination, or refusal of the witness to answer the questions of the adverse party or any circumstances leading to inadequate cross-examination, the courts have held that the evidence would be inadmissible.  It is important to discuss the significance unmistakably attached to the right of cross-examination, because this process is the all important process through which the credibility of the statement and hence its relevance gets established in a court of law or an authority authorised to take statements and thus the premises on which the exclusionary rule of hearsay is based, can said to be validly avoided. Also, in the opinion of the researcher when certain evidence has been accepted as being conclusive to the fact that it seeks to prove in a judicial proceeding, in situations where it becomes impossible to have the evidence re-admitted by the witness, deeming it to be inadmissible by fitting it within the narrow theoretical definition of hearsay evidence on the ground that it does not fulfil the requirements of Section 60 of the Act, would clearly be against the interests of justice as well as illogical.
Section 33 and the Doctrine of Res judicata
The Res judicata doctrine in the Indian Evidence Act has been enshrined in Section 40 of the Act.  The principle of res judicata in essence for both civil  and criminal  cases, states that once a matter in issue has been decided between two parties (or if a man has been acquitted or convicted in a particular case) it could not be agitated again between the same party or their representatives (could not be tried for an offence arising from the same facts). 
Section 33 envisages a situation in which the evidence given by a witness in previous proceedings would become relevant for proving the truth of the facts which it states in subsequent judicial proceedings or later stage of the same judicial proceeding. The first and third proviso then state that the proceedings should be between the same parties or their representative in interest and that the questions in issue should be substantially the same in both the proceedings.  A plain reading of the section seems to reflect that courts would be barred in trying the subsequent legal proceedings, mentioned in the section, by the doctrine of res judicata. Hence, a distinction needs to be made in order to avoid such error in interpretation. The requirement of ‘the questions in issue’ being substantially the same does not mean all the questions in issue need to be the same.  The purpose of this proviso is to ascertain that the parties should have had the right to examine and cross-examine with respect to the very point to prove the truth of which the evidence is being used in the subsequent proceedings, subject to the conditions of Section 33 being fulfilled.  Therefore, the scenario envisaged under Section 33 could be one where the evidence given by a witness in a previous proceeding might be relevant in proving a particular factum also in issue in the subsequent proceeding or separate suit where the cause of action might be different, which would thus not be hit by the doctrine of res judicata as the matter to be decided would most certainly be different, even though the parties might be the same essentially. An instance of such a case may be where a man has been charged with receiving bribe from certain rayats, who then give evidence for the prosecution. In subsequent prosecution of those rayats by the accused for conspiracy to bribe him, the same evidence by those rayats may be made admissible against them.  Another instance of such proceedings may be where the deposition of the complainant which has been admitted as evidence in support of the charges of criminal trespass into a particular and assault in a suit is used in another suit filed between the same parties to prove the question of possession of the same property. 
Thus, it can be seen that the wording of the provision though indicates otherwise, it may be concluded that the proceedings covered under Section 33 would not be barred by res judicata.
Although the rule against hearsay evidence is established and adhered to in most circumstances, there exist exceptions to it in order to deal with such situations where inadmissibility of such evidence would lead to the miscarriage of justice.
In the researcher’s opinion, Section 33 provides adequate grounds and justifications for its part as an exception, to the requirements of direct evidence in oral evidence as given in the Indian Evidence Act. Through strict imposition of its requirements of the right and opportunity of cross-examination being available to the adverse party, this exception satisfactorily avoids the pitfalls of hearsay evidence and removes all elements of unfairness and questions of lack of credibility. The method in which the evidence under Section 33 is acquired and accepted adds to its relevance.
This provision in no way seeks to discourage the production of witnesses before the court for giving evidence however in situations where it is strictly proven that the witness cannot be present, it seeks to do away with the handicap that would inevitably be present if the evidence were to be made inadmissible in circumstances where it would have a major role to play in proving the truth of facts pertinent to the case at hand.
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