Evidence Law has governed the manner in which the criminal trial is conducted. It does so by regulating the kind of evidence that the court should be admitting, the nature of the said evidence and laid down the manner of appreciating the same. Evidence Law further lays down the rules of presumption the court must follow in terms of the different kinds of evidence and the weight that must be attached to them.
The importance of laying down these procedural rules cannot be understated. They provide a definite machinery of the acceptance of evidence in a criminal trial and ensure that an offence which mandates a heavy punitive punishment will be dealt out after careful and stringent appreciation. This stringency is the mantra of the Law of Evidence.
One of the manifestations of the same has been in the form of Oral Evidence and its appraisal as mandated by the Indian Evidence Act, 1872 [The 'Act']. Section 60 of the Act has laid down the strict rule that all evidence that can be seen, heard or perceived must be proven directly by the person who saw, heard or perceived the act in question. It also includes the fact that an opinion on a particular point must be proven by the subject who formed the opinion in question. [1]
The idea behind this provision is that the prosecution and consequent conviction of the accused must be on a reliable standard of proof. In order to ensure that there is no reasonable doubt in the guilt of the accused, it must be guaranteed that the best possible evidence is put up before the court. [2] This idea runs in Section 59 which provides that every fact except for details of a document or electronic record must be proven by oral evidence.
The only check on the provision of oral evidence is that it must be directly 'from the horse's mouth'. In other words, oral evidence about a certain fact must be from the person who directly had access to the fact in question. [3]
Having established this provision of the Act, in the course of this project, I will analyze the meaning and purpose of the provision. To supplement the same, I will look into various judgments of the Supreme Court to record the judicial take on this provision. Finally, I will go into the suggested amendments to Section 60 as recommended by the Law Commission of India.
Chapter I: Section 60-A Critical Analysis
It has been established that for direct evidence be deposed in court, the evidence must be given by the person who perceived the same using his senses. [4] The main purpose of admitting direct evidence is to ensure that the facts admitted are relevant to the fact in issue and establishes the same conclusively. An illustration of the same would be that if A saw B kill C and gave evidence with regard to the same. Section 60 provides implicitly that the person who perceived the event related to the fact in issue must be the person to depose before the court.
The word to be emphasised upon in Section 60 is 'Direct'. The use of this word is to imply as aforementioned that in order to give oral evidence about a fact in issue; the maximum probative value will arise from the person who perceived the event using their sense organs. [5] In other words, the evidence given must not be derivative and amount to hearsay. Thus, when a witness gives evidence based on what he hears from another person, such kind of evidence is precluded from the meaning of Section 60 and will be barred. [6]
The evidence that is given orally may be circumstantial in nature but it will still qualify as direct if it is relevant to the fact in issue. [7] This is tied to Section 6 for instance which talks of res gestae wherein acts of the same transaction will be relevant evidence. [8] In such a section, evidence of acts leading up to the crime may still be regarded as direct evidence. The fact in issue can be proven by relevant facts as well as collateral facts. Therefore, evidence which may not be on the factum probandum may still be regarded as direct in nature.
Hearsay Evidence being barred
Hearsay Evidence occupies a unique position in Evidence Law owing to its variable nature. Put simply, evidence that could be called 'hearsay' in one case may not qualify as 'hearsay' in another. It depends upon the use for which the evidence in question is adduced. [9] For instance, a dying declaration to a person X may qualify as direct evidence with respect to the declaration of the victim of the facts. On the other hand, X's deposition in court will be hearsay with respect to confirming that injury was caused to the victim by the accused. Clearly, dying declaration is an exception to the rule of Section 60 which provides the rule of direct perception for oral evidence. [10]
The implicit rule of the best evidence being produced in court as well the directness of the evidence being produced precludes the presentation of hearsay evidence before the court. In any case, hearsay evidence cannot be used to prosecute the accused; only substantive evidence can be used to do so. [11] To understand the reason and scope of this exclusion, it is important to discern the meaning of hearsay evidence. It is commonly defined as the statement of a person before the court asserting the facts and statement of another person not produced as a witness. It thus, amounts to secondary evidence of an oral statement. [12]
The application of this rule is such that secondary oral evidence is barred from being produced before the court as compared to secondary documentary evidence. This is so as a greater value is attached to the latter owing to the fact that secondary oral evidence has a greater chance of being misrepresented. [13]
Despite the fact that the word 'hearsay' has not been used expressly in the Act, it is seemingly barred by the provisions of Section 60. However, despite this implicit bar, the term 'hearsay' has not been used owing to the fact that numerous other provisions in the Act treat the same as substantive evidence. In other words, there are various exceptions to the exclusion of hearsay evidence from the definition of substantive evidence. This can be best seen in the part pertaining to admissions and confessions [§§ 24-31], evidence pertaining to a person who is unable to depose before the court owing to him being dead or unable to be called. [§32]
Apart from these exceptional circumstances, the court will not attach the same presumption to hearsay evidence in general. The courts will not grant this benefit to hearsay evidence as it relates to the statement of another person and has not been subjected to the procedural checks of cross-examination. Thus, hearsay evidence is not trustworthy. [14] Major reasons for its exclusion also include the fact that it can prolong litigation and add unfair corroborative weight to a fact in issue if the hearsay evidence is misconstrued by the court. Further, every repetition of a certain factual matrix has the tendency to depreciate the veracity of the statement. [15]
The position so far can be best summarized by stating that generally, evidence given of the statement of another is not direct evidence and therefore, irrelevant except in certain cases. The traditional rule is that in order to ensure admissibility of oral evidence, it must be evidence directly envisioned by the witness using his senses.
Scope of Section 60
The intention of the section is to ensure that any evidence that is presented by the prosecution is self-sufficient and can be taken by the court after minor appreciation as a substantive piece of evidence.
Section 60 however allows hearsay evidence to be produced when the evidence produced is aimed at verifying the factum of the statement being made but not the verifying the veracity of the statement. [16] In the former case thus, hearsay evidence shall be admissible. This proposition can be explained by citing illustrations such as if a person files an FIR and consequently dies, the person before whom the FIR is registered cannot depose as to the veracity of the statement but only that the statement in fact was made.
A major component of Section 60 is that pertaining to opinion evidence. Despite frowning upon hearsay evidence, it still allows for the opinions of persons based on the statements of others. What it bars expressly is that repetition of the same hearsay evidence.
Direct Evidence v. Circumstantial Evidence
Section 60 throws open a comparison between direct evidence and circumstantial evidence. Direct evidence can directly establish the veracity of the facts. On the other hand, circumstantial evidence requires inference to be drawn from the facts deposed. [17] Thus, it proves the factum probandum indirectly by way of inference.
Real/Material Evidence
The second proviso of Section 60 deals with Real or Demonstrative evidence. There are instances when the court demands to inspect the evidence in question for which a deposition is made. In case of each piece of evidence except of the documentary kind, the court can ask for the production of the material in question. [18]
It is the evidence which is presented in its material form before the court in place of a statement confirming its existence. There is no intervening statement by a witness under this proviso. On the contrary, the evidence here is presented in its material form so that it is perceived directly by the court.
This proviso is particularly useful as it allows for the submission of material evidence before the court. S.3 of the Act is not exhaustive in stating the kinds of evidence that the court can look into. It also allows secondary evidence regarding the existence and nature of a document on the grounds that it may be impracticable and impossible to present all forms documentary evidences before the court. Therefore, documentary evidence such as letters on a blackboard or scratched on a tree can be presented in court by way of Section 60. [19]
Chapter II: Law Commission Recommendations
The First Proviso of Section 60 deals with opinions of experts and the weight attached to it as evidence. It provides that the court must call the experts to court to place their opinion. In the eventuality that the expert is dead, unavailable or it will cause an unreasonable delay or cost to summon the witness, the court can do away with calling him. In the absence of these parameters, the court is mandatorily required to call the witness to court to record his opinion. [20]
The 185th Law Commission Report [21] looks into this provision and criticises it for the lack of discretion that is vested in the courts. The report states that greater discretion should be vested in the court to determine whether experts should be summoned or not. To ensure that there is no wastage of time or unnecessary delay in litigation, the court should not be mandated to call the expert. It would be more efficient for faster dispensation of justice to simply let the court decide if it is necessary in the interests of getting the proper picture of the opinion in question.
The 69th Law Commission Report has gone into the same analysis and looked at the English system for inspiration regarding the same. The English system in divided into fast-track and multi-track courts and in the former, summoning experts is not allowed as it unnecessarily spikes the time and costs incurred in litigation. This change was brought about by way of reforms in the Civil Procedure Rules based on Law Commissions. [22] Such reform was sought to be emulated in the Indian legal system as well by the 69th Law Commission Report in India. This view has been supported by the 185th Law Commission Report. [23]
However, it has been careful to ensure that the rights of the opposition have not been infringed by not summoning the expert whose opinion goes against the opposition. In other words, the fact that the expert is not called in person to depose has no bearing on the right of the opposition to cross-examine the opposition. If the court merely takes the opinion in writing, the opposition will still have the right to cross-examine the expert. The point of this proposal is to save time in litigation by doing away with summoning the expert and unnecessarily wasting money. [24]
The proposal sought to include a new proviso to deal with the changes made. It included a reference to government experts as well. The 69th Law Commission Report dealt with this proviso by providing that the expert must be an employee of the "government or of a local authority or of a university or other institution engaged in research" and must give the opinion in the course of his employment. Coupled with this, it makes the expert susceptible to cross-examination even if he is not called to court to depose in person and his opinion is instead, taken in documentary form. [25]
This proposal has been mooted by the 185th Law Commission Report albeit with certain modifications. It reasons that the entire purpose of the change must be to bring about greater discretionary power for the courts. Therefore, its proposal has redrafted the proposal in such a way that the required credentials of the experts, conditions for giving a binding opinion and the safeguards for the opposition have been retained. However, the provisions have been reframed such that an additional line is added to the effect "the opinion of the expert expressed in writing, and the grounds on which such opinion is held, may be proved without calling the expert as a witness, unless the Court otherwise directs[...]. [26] "
It has vested this discretionary power in the court subject to the right of either party seeking the right to cross-examine the expert.
I feel that the provisions of the Law Commission Report add to a well-discerned lacuna in the Act. Currently, Section 60 states that the court must call the expert whose opinion has been deposed except in the circumstances that he is dead, cannot be found or it would involve huge inconvenience in summoning him. However, there might be cases when the exceptional cases have no application such as a situation where the court might not see any merit in calling for an oral deposition by the expert. The mandatory tone of the legislation will force the hand of the court to issue summons and extend the time and cost of litigation when it is not even required.
The proposal thus, is a welcome one and would surely go a long way to curb the spiralling time and cost of litigation in the criminal justice system.
Chapter III: Landmark Judgments
In the aforesaid section, I have discussed how the 185th Law Commission has sought to bring about greater discretion for the court in summoning experts for their direct opinion. I stated that the Law Commission wanted to do away with the mandatory rule of summoning experts as it unnecessarily made the litigation procedure lengthy. Thus, it has sought to lay down a procedure within which it is up to the court to decide when to issue summons. However, despite the lacuna in the legislation, the courts have crafted a careful argument to allow it to escape the mandatory provisions.
In the matter of Gurcharan Singh v. State of Punjab [27] , the trial dealt with the offence of murder of a person using a lethal weapon. The Supreme Court went into the question of whether an expert witness was required to give his opinion on ballistics mandatorily. However, the court decided that there was no such rigid rule. On the contrary, if there is direct, unimpeachable direct evidence as to the commission of the offence, consistent with the injuries then expert opinion is not required. A similar view had been held in Vineet Kumar Chauhan v. State of U.P [28] wherein it was held that the opinions of experts was required if the direct evidence on record could not establish conclusively, the crime committed.
This project has delineated the various exceptions in the Act to Section 60 that mandates that all oral evidence must be direct and cannot be hearsay by implication. One of the major exceptions has come from Section 32 which deals with statement of relevant facts by persons who are dead, unavailable, etc. to be admissible.
The case of P.V. Radhakrishna v. State of Karnataka [29] affirmed that Section 32 is an exception to Section 60. This case specifically dealt with the question of dying declaration and the reason why it would not be barred admission as hearsay evidence. The court reasoned that in a dying declaration there is no scope of cross-examination of the maker as in other evidence. Further, there is a presumption in the veracity of the statement as it is assumed that a dying person would not lie about the cause of injury. In the interests of justice thus, dying declaration is admitted from the mouth from a third party despite the bar under Section 60.
The case of Sunder Lal v. State of Rajasthan [30] extended the scope of this judgment as it reiterated the provisions of Section 60 and affirmed that Section 32, especially dying declaration was an exception to the rule of submission of direct oral evidence. It used this point of law to favour the dying declaration made in the said case wherein death was caused by using gandasi and lathi. Here, the effect of the direct evidence was so over-arching and complete that there lay no need for corroboration from an expert.
This was reiterated in Vikas v. State of Maharasthra [31] which dealt with a dowry death in which the wife of the accused was harassed repeatedly by the in-laws and her husband for dowry. After a quarrel, the victim was burnt alive by her in-laws and was saved by the neighbours and taken to the hospital where she succumbed to her injuries. Before that she gave a dying declaration, the weight of which is the crux in this case. The court established that hearsay evidence can be admissible in circumstances which give a sense of reliability. A case of dying declaration is a special circumstance that generally inspires confidence in the veracity of the statement despite not being first-hand.
The matter of Sukhar v. State of U.P. [32] provided another exception to admissibility of hearsay evidence when it is qualified by being part of the main transaction in question. That is, it satisfies the principle of res gestae as provided in S.6, Act. In this case, there was enmity between the nephew and the uncle due to a land dispute. One day, the nephew shot the uncle while he passing through a field. Hearing his scream, a passerby rushed to the spot and saw the uncle falling and the nephew running away. The passerby's evidence was held to qualify under S.60 as it was contemporaneous with the acts without any interval.
In case of a conflict between direct evidence and expert evidence, the courts have held that greater value is attached to direct evidence. This is so as expert evidence may generally be inconsistent and leave room for more than one interpretation. On the other hand, if the direct evidence is trustworthy and reliable, it will always be attached a greater value. [33]
Conclusion
The Indian Evidence Act stands guard over the criminal justice system ensuring that when the time comes to check the guilt of an accused, it must be conducted fairly and on the surest terms. One way of ensuring this is by providing for the submission of direct evidence when it is in oral form. By doing so, one would preclude hearsay evidence which is shaky ground to prosecute anyone. Simply put, to establish prosecution concretely, the court has welcomed the admission of evidence which is directly perceived by the senses of the witness.
I have shown in the course of the project that the mandatory nature of Section 60 which demands that oral evidence must be direct applies rigidly except in certain cases which are exceptions to the rule and are given by the Act itself. These exceptions are enshrined in the sections 17-39 which deal with admissions and confessions and other statements made by persons in special circumstances. Thus, Section 60 is a standard rule to be followed except in the aforementioned circumstances.
Finally, this project dealt with the proposals of the 185th and 69th Law Commission Reports which suggested that a proviso must be added that vests discretion in the courts to decide whether experts need be called to depose in person as per the first proviso of Section 60. Despite the benefit that is sought by the Report, I have established from judicial practice how the courts have crafted other ways to get out of mandatorily calling an expert by relying on binding direct evidence. Thus, saving time and costs involved in litigation.
By relying on Section 60, the courts have ensured that the process of appreciation of evidence allows only the best evidence to be put before the court. This section would ensure that the evidence submitted establishes the guilt or innocence beyond reasonable doubt.
