Vol. 12 · pages 621–625

600 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES § Oral Evidence : 1. The rule of best Evidence requires that if the evidence is oral then it must be direct. 2. This rule is embodied in section 60 of the Evidence Act. 3. What is meant by Direct Evidence ? 4. The answer that is commonly given is that oral evidence must not be hearsay evidence. This leads to the consideration of hearsay evidence. The rule excluding Hearsay is subject to three main classes of Exceptions: (i) Admissions and Confessions : Statements made in the presence of the party. (ii) Statements made by persons since deceased, (iii) Statements made in public Documents. § What is hearsay evidence : 1. Hearsay evidence has been defined in many different ways : (i) All 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. (ii) The statement as to the existence or non-existence of a fact which is being enquired into, made otherwise than by a witness whilst under examination in Court can be used as evidence. 2. Hearsay evidence is evidence reported by witnesses of statements made by non-witnesses. § Why hearsay evidence is excluded ? 1. When A sworn in Court, details something which he did not see with his own eyes immediately but which he heard from B mediately he is not giving expression to the evidence of his own bodily senses, but is the medium merely of communicating that which save third unsworn person has said he saw. He is bringing evidence to birth, obstetricante manu, with the hand of a midwife; and is a mere channel or conduct pipe for communicating the information of a party not before the Court. A may most correctly and truthfully

601LAW OF EVIDENCE report what has been related to him, but it is never the less apparent that the real truth of the original statement cannot under such circumstances be tested. The originator of the report is not subjected to an oath or to Cross Examination Non Constat but he may have spoken idly or jocularly ; and he would be unwilling to repeat on oath what he had not hesitated to narrate in ordinary conversation. Non constat that he might not have wilfully fabricated a story or been the dupe of some one still farther hid behind the scences or that though perfectly veracious as to intention, he might have been the victim of his faulty impressions or unreten-tative memory ; and so have utterly broken down, if only exposed to the test of Cross Examination. Therefore the law determines that such evidence shall not be receivable; that if it is important to the party calling A, to establish the facts which A has heard from B, B himself shall be produced, make his own statement in Court, be subjected to the two tests of oath and Cross Examination and the scarcely less terrible detector of inaccurate or fallacious evidence, the observation to which a Judge, experienced in forensix practice, and skilled in the knowledge of human nature, subjects the demeanour, the department, the manner, of every witness who comes before him. § Does the rule of Exclusion apply to all Hearsay Evidence ? 1. Hearsay is the statement of a person who is not a witness in the Court and which is sought to be tendered as evidence through another person who comes as a witness. 2. The question is, does the rule of exclusion apply to all statements of a person who is not a witness in Court. 3. To understand this question it is necessary to realise that a statement when tendered in evidence wears two different aspects. A statement is a fact and it is also the statement of a fact. Illus— When A gives Evidence that B said this or that (i) taken as a fact the question is did say so or did he Not (ii) taken as a statement of a fact the question is Is what said false or true.

602 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 4. The Evidence of a statement by a person who is not a witness may be given for two purposes : (i) To prove that such a statement was made. (ii) To prove that a statement made is a true statement. In its former aspect it is merely a fact in issue. In its latter aspect it is an assertion to prove the truth of the matter stated. 5. Whether a statement by a non-witness sought to be tendered in evidence and the admissibility is in question is tendered merely as a fact in issue or relevant fact and is tendered as an assertion to prove the truth of the matter, depends upon the purpose for which it is tendered. The test is the purpose. 6. The Rule of Exclusion of hearsay is stated in a narrow sense as well as in a wider sense. In its narrower sense, it is confined to unsworn statements used to prove the truth of the facts stated. In its wider sense, it is used to include all statements by unsworn witnesses for whatever purposes tendered i.e. including statements used merely as facts. The Rule adopted in the Evidence Act. 1. The Indian Evidence Act does not recognise the rule that “no statement as to the existence or non-existence of a fact which is being enquired into, made otherwise than by a witness whilst under examination in Court can be used as evidence” — Markby. 2. Under the Indian Evidence Act statements by non-witnesses are admissible where the making of the statements not its accuracy is the material point. 3. Therefore (i) Statements which are parts of the res gestee, whether as actually constituting a fact in issue or accompanying it (ss 5, 8), (ii) Statements amounting to acts of ownership, as leases, licenses and grants (Sec. 13), (iii) Statements which corroborate or contradict the testimony of witness (ss. 155, 157, 158) are admissible even though they are statements by non-witness.

603LAW OF EVIDENCE 4. The rule of the exclusion of hearsay applies only to statements made by non-witnesses which are used to prove the truth of the facts stated. 4. What are the exceptions to the rule ? 1. Under the rule of evidence contained in the Evidence Act a statement made by a non-witness to prove the truth of the facts stated therein is inadmissible. 2. There are exceptions to this rule. § Exceptions contained in Section 32. 1. When a person is dead or cannot be found or has become incapable of giving evidence or whose attendance cannot be procured without delay or expense, statements written or verbal made by such persons may be proved if the statements fall under any one of the 8 categories mentioned in Section 32. (i) When it relates to the cause of his death (a) (ii) When it is made in the course of business. Illus (b) (j) (iii) When it is against the pecuniary or proprietory interest of the maker or which if true would have exposed him to criminal prosecution or suit for damages. Illus (e) (f) (iv) When the statement gives his opinion as to public right or custom or matters of general interest provided such opinion was given before controversy had arisen. (Illus) (i) (v) When it relates to the existence of relationship by blood, marriage or adoption and the person had special knowledge and was made before controversy. (vi) When it relates to the existence of relationship between persons deceased and is made in any will or deed relating to family affairs, in a family pedigree, upon any tombstone, family portrait etc., and is made before controversy. (vii) When it is contained in any deed, will or other document which relates to any transactions as is mentioned in Sec. 13, clause (a). (viii) When it is made by a number of persons expressing feelings or impressions. Illus. V.

604 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES § Exceptions contained in Section 33. 1. When a person is dead, or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without unreasonable delay on expense then the Evidence given by such a person as a witness in a former judicial proceeding or before any person authorised by law to take it, can be tendered in a subsequent judicial proceedings or in a later stage of the same judicial proceedings to prove the truth of the facts which it states. PROVIDED (i) That the proceeding was between the same parties or their representative in interest (ii) That the adverse party in the first proceeding had the right and opportunity to cross examine (iii) That the questions in issue were substantially the same in the first as in the second proceeding, (Further portion not forthcoming—ed.) 35 § Entries in any book, register or record 1. Conditions of admissibility. (i) Two classes of entries are contemplated by the section, (a) By public servants and (b) by persons other than public servants. If it is by a public servant then it must be in the discharge of his official duty. If it is by persons who are not public servants then the duty to make the entry must have been specially enjoined by the law. The former is as a matter of course. The latter is as a matter of special direction. (ii) The book, register or record must be either public or an official one. Official does not mean maintained for the use of the office. It means maintained by the State as distinguished from anything maintained by a private individual. Public means for the use of the public. Public does not mean open to every one. It means open to every one having a concern to it. 18 Cal. 584.