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Short Notes.

Hearsay Evidence

Hearsay means information gathered by the first person from a second person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence.  For example, when A says that A heard from B that C killed D, A's statement is a hearsay and this kind of evidence is usually not admissible due to Section 60, which says that oral evidence must be direct. I.e.If it  refers to  a fact which could be seen, it must be the evidence of a witness who says he saw it or if it  refers to a fact which could be heard, it must be the evidence of a witness who says he heard it and so on. Hearsay evidence means the statement of a witness not based on his personal knowledge but on what he heard from others. The reasons for excluding such evidence are two -  There is no way to know what the person who said the thing actually meant because he is not produced before the court. He might as well be misunderstood, and second, the opposite party does not have any chance to cross question the original author of the statement.

Exceptions to hearsay rule -

1. Res Gestae (S. 6)
2. Admissions and Confessions (S. 17)
3. Statements relevant under S. 32  (Cases  in which  statement of  relevant fact by person who is dead or  cannot be  found, etc.,  is relevant)
4. Statements in public documents.
5. Evidence in former proceedings (S. 33 - Relevancy of  certain evidence  for proving, in subsequent proceeding, the truth of facts therein stated.)
6. Statement of Experts in treaties (S. 60)
7. Miscellaneous - Can the court extend these exceptions or create new ones? Lord Hershell expressed himself against the desirability of extending the exceptions.

Opinion of third person
In general, the opinions of third parties are irrelevant. They form part of res inter alios acta. Ordinarily, the court is not interested in anyone's opinions but only in facts. A witness must be a witness of a fact and not of an opinion. Beliefs of a witness are irrelevant. However, there are exceptions. These exceptions are given from Section 45 to 51. Opinion of experts, Opinion about handwriting, Opinion as to existence of a right or custom, Opinion as to usages, tenets, etc, Opinion as to relationship
Ground of opinion is also relevant.

1. Opinion of experts - Section 45 - When the  Court has to form an opinion upon a  point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons  specially skilled  in such  foreign law,  science or  art, or in  questions  as  to  identity  of  handwriting, or  finger impressions are relevant facts.

(a) The  questions is,  whether the  death of  A  was  caused  by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The  question is,  whether A,  at the time of doing a certain act, was,  by reason  of unsoundness of mind, incapable of knowing the nature of  the act,  or that  he was  doing what  was either  wrong or contrary to law.
The opinions  of experts  upon the  question whether the symptoms exhibited by  A commonly  show unsoundness  of mind,  and whether such unsoundness of  mind usually  renders persons incapable of knowing the nature of  the acts  which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document  is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.

46. Facts  bearing upon opinions of experts.-Facts, not otherwise
relevant, are  relevant if  they support  or are inconsistent with the
opinions of experts, when such opinions are relevant.


     (a) The question is, whether A was poisoned by a certain poison.

     The fact  that other  persons, who  were poisoned by that poison,
exhibited certain  symptoms which  experts affirm  or deny  to be  the
symptoms of that poison, is relevant.

     (b) The  question is,  whether an  obstruction to  a  harbour  is
caused by a certain sea-wall.

     The  fact   that  other  harbours  similarly  situated  in  other
respects, but  where  there  were  no  such  sea-walls,  began  to  be
obstructed at about the same time, is relevant.


Opinion as to handwriting, when relevant.

     47. Opinion as to hand-writing, when relevant.-When the Court has
to form  an opinion  as to the person by whom any document was written
or signed,  the opinion  of any person acquainted with the handwriting
of the  person by  whom it is supposed to be written or signed that it
was or was not written or signed by that person, is a relevant fact.

     Explanation.--A  person   is  said  to  be  acquainted  with  the
handwriting of  another person  when he has seen that person write, or
when he has received documents purporting to be written by that person
in answer  to documents  written by himself or under his authority and
addressed to that person, or when, in the ordinary course of business,
documents purporting to be written by that person have been habitually
submitted to him.



     The question  is, whether a given letter is in the handwriting of
A, a merchant in London.

     B is a merchant in Calcutta, who has written letters addressed to
A and  received letters  purporting to  be written  by him.  C, is B's
clerk, whose  duty it was to examine and file B's correspondence. D is
B's broker,  to whom  B habitually submitted the letters purporting to
be written by A for the purpose of advising with him thereon.

     The opinions  of B, C and D on the question whether the letter is
in the  handwriting of  A are relevant, though neither B, C nor D ever
saw A write.


Opinion as to existence of right or custom, when relevant.

     48. Opinion as to  existence of  right or custom, when relevant.-
When  the  Court has  to form  an opinion  as to  the existence of any
general  custom  or right, the opinions, as to the existence  of  such
custom  or  right,  of  persons who would be likely  to  know  of  its
existence if it existed, are relevant.

     Explanation.--The expression  "general custom  or right" includes
customs or rights common to any considerable class of persons.


     The right  of the  villagers of  a particular  village to use the
water of  a particular  well is  a general right within the meaning of
this section.


Opinion as to usages, tenets, etc., when relevant.

     49. Opinion  as to  usages, tenets, etc., when relevant.-When the
Court has to form an opinion as to--

          the usages and tenets of any body of men or family,

          the  constitution   and  government   of  any  religious  or
               charitable foundation, or

          the meaning  of words  or terms used in particular districts
               or by particular classes of people,

the opinions of persons having special means of knowledge thereon, are
relevant facts.


Opinion on relationship, when relevant.

     50. Opinion on relationship, when relevant.-When the Court has to
form an  opinion as  to the relationship of one person to another, the
opinion,  expressed   by  conduct,   as  to   the  existence  of  such
relationship, of  any person  who,  as  a  member  of  the  family  or
otherwise, has  special means  of  knowledge  on  the  subject,  is  a
relevant fact:

     Provided that  such opinion  shall not  be sufficient  to prove a
marriage in  proceedings under the Indian Divorce Act (4 of 1869),  or
in prosecutions  under sections  494, 495, 497 or  498   of the Indian
Penal Code (45 of 1860).



     (a) The question is, whether A and B, were married.

     The fact  that they  were usually  received and  treated by their
friends as husband and wife, is relevant.

     (b) The  question is,  whether A was the legitimate son of B. The
fact that  A was  always treated  as such by members of the family, is


Grounds of opinion, when relevant.

     51. Grounds  of opinion,  when relevant.-Whenever  the opinion of
any living  person is  relevant, the  grounds on which such opinion is
based are also relevant.


     An expert may give an account of experiments performed by him for
the purpose of forming his opinion.