​KembaraXtra-Indian Evidence Law - Bharatiya Sakshya Adhiniyam 2023-Oral Evidence to Be Direct and the Rule Against Hearsay (Section 55 – Bharatiya Sakshya Adhiniyam, 2023)

Meaning and Scope of Section 55
Section 55 of the Bharatiya Sakshya Adhiniyam, 2023 lays down a fundamental rule of evidence: oral evidence must, in all cases, be direct. The provision leaves little scope for ambiguity and clearly excludes indirect or hearsay testimony, except in limited and well-recognised situations.
According to this section, oral evidence is considered direct when it satisfies the following conditions:

1. Facts capable of being seen
   If the fact to be proved is something that could be seen, the evidence must come from a witness who personally saw it.
2. Facts capable of being heard
   If the fact relates to something that could be heard, the testimony must be of a person who actually heard it.
3. Facts perceived by other senses or manners
   Where the fact could be perceived through senses such as smell, taste, or touch, the witness must depose that he perceived it through that particular sense or manner.
4. Opinions and grounds of opinion
   When evidence relates to an opinion or the grounds on which an opinion is formed, only the person holding that opinion can give such evidence.

Thus, personal knowledge and direct perception are the essence of admissible oral evidence under this section.

Direct Evidence – Note Form
Direct evidence refers to testimony given by a witness based on his own personal observation or perception. The witness speaks from firsthand knowledge and not on the basis of information received from others.

• Admissibility of direct evidence is the general rule.
• It is regarded as the best form of oral evidence.
• The responsibility for the truthfulness and accuracy of the statement lies entirely on the witness giving such evidence.
• Direct evidence is given on oath and is always subject to cross-examination.
• It is admissible in all cases, provided it satisfies the conditions of Section 55.
• Its admissibility rests on the principle that it represents the best available evidence.

Illustration:
If A sees B assaulting C, A’s testimony about the incident is direct evidence.

Hearsay Evidence – Note Form
Hearsay evidence is evidence which does not originate from the personal knowledge of the witness, but is derived from what another person has said or done.

• Admissibility of hearsay evidence is an exception, not the rule.
• It does not form part of the best oral evidence.
• The person giving hearsay evidence does not assume responsibility for the truth of the statement.
• Such evidence is usually not given on oath and is not subject to cross-examination of the original source.
• It is admissible only in limited and exceptional cases, such as admissions, confessions, dying declarations, etc.
• Its admissibility is based on necessity rather than reliability.

Hearsay evidence is generally excluded because it depends partly on the credibility and competence of a third person, who is not before the court.

Justification for Excluding Hearsay Evidence
Hearsay evidence is excluded for several important reasons:

1. The original maker of the statement is not available for cross-examination, which weakens the reliability of the evidence.
2. The witness giving hearsay does not feel the same degree of legal responsibility, as he can easily shift blame by claiming reliance on another person.
3. Truth tends to become distorted with repetition, increasing the risk of error or fabrication.
4. Allowing hearsay would encourage reliance on rumours and second-hand information, undermining the justice system.

Exceptions to the Rule Against Hearsay
Despite the general exclusion, hearsay evidence is admissible in certain well-established exceptions, including:

• Res gestae
• Statements made in furtherance of a conspiracy
• Admissions and confessions
• Dying declarations
• Evidence given in former judicial proceedings
• Expert opinions expressed in published treatises
• Entries in books of accounts kept in the ordinary course of business
• Public records, registers, maps, and charts

These exceptions are recognised because necessity or reliability outweighs the rule of exclusion.

Expert Opinion Through Treatises (First Proviso to Section 55)
Section 55 permits the use of expert opinions contained in published treatises when the author:

• is dead, or
• cannot be found, or
• is incapable of giving evidence, or
• cannot be called without unreasonable delay or expense.

Such treatises must be commonly offered for sale, and their use requires caution, as not every published opinion is automatically authoritative.

Material Objects and Court Inspection (Second Proviso to Section 55)
When oral evidence refers to the existence or condition of a material object (other than a document), the court may require the production of that object for inspection, if it considers such inspection necessary.

Hearsay Evidence for Corroboration
Although hearsay evidence is generally inadmissible, it may be used to corroborate substantive evidence. Where primary evidence is already available, hearsay may support or strengthen it, provided it does not become the sole basis of conviction.

Conclusion
This chapter emphasises two cardinal principles governing oral evidence:

1. All facts, except the contents of documents or electronic records, may be proved by oral evidence (Section 54).
2. Oral evidence must be direct and not hearsay (Section 55).

Together, these provisions reinforce the Best Evidence Rule, ensuring that courts rely on evidence derived from personal knowledge and direct perception, thereby promoting fairness, accuracy, and reliability in judicial proceedings.