NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

HEARSAY EVIDENCE
Case Analysis of
Lejzor Teper vs. The Queen
1952 J.C. 480

Submitted to:- Submitted

by:-
Prof. Sanjay Yadav Sachin Nayak
2008 BA LLB-03

(VIII Trimester)
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TABLE OF CONTENTS

INTRODUCTION...........................................................................................................................2
WHAT IS HEARSAY EVIDENCE?..............................................................................................2
NATURE OF HEARSAY EVIDENCE...........................................................................................2
REASONS FOR EXCLUSION OF HEARSAY................................................................................4
EXCEPTIONS TO HEARSAY......................................................................................................4
LEJZOR TEJPER VS. THE QUEEN……………………………………………………… 5
FACTS OF THE CASE…………………………………………………………………………………5
DECISION OF TRIAL COURT…………………………………………………………………………5
APPEAL…………………………………………………………………………………………………6
DECISION……………………………………………………………………………………………….6
ADMISSONABILITY OF EVIDENCE…………………………………………………………………7
ADMISSIONABILITY FOR IDENTIFICATION………………………………………………………7
INTENTION OF PARTIES……………………………………………………………………………..8
SECTION 6 OF THE INDIAN EVIDENCE ACT....................................................................9
DOCTRINE OF RES GESTAE........................................................................................................9
INTRODUCTION.......................................................................................................................9
RES GESTAE AND HEARSAY.....................................................................................................10
WHEN ADMISSIBLE UNDER RES GESTAE..............................................................................11
MOTIVE AND INTENTION......................................................................................................11
CONCLUSIONS...........................................................................................................................13
BIBLIOGRAPHY.........................................................................................................................14
BOOKS REFERRED................................................................................................................14
WEBSITES REFERRED...........................................................................................................14

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INTRODUCTION
What is Hearsay Evidence?

Hearsay evidence is basically the information gathered by one person (person X) from
another person (person Y) concerning some event, condition, or thing of which person X had
no direct experience. When submitted as evidence, such statements are called hearsay
evidence. Hearsay is one of the largest and most complex areas of the law of evidence in
common-law jurisdictions. The default rule is that hearsay evidence is inadmissible. As a
legal term, "hearsay" can also have the narrower meaning of the use of such information as
evidence to prove the truth of what is asserted. Such use of "hearsay evidence" in court is
generally not allowed. This prohibition is called the hearsay rule.

For example, a witness says "Paul told me Jimmy was in town". Since the witness did not see
Jimmy in town, the statement would be hearsay evidence to the fact that Jimmy was in town,
and not admissible. However, it would be admissible as evidence that Paul said Jimmy was in
town, and on the issue of his knowledge of whether he was in town. There are a number of
significant exceptions to the hearsay rule.

Nature of Hearsay Evidence

The term hearsay is ambiguous and misleading as it is used in more than one scene. Stephen
says “sometimes it means whatever a person is heard to say; sometimes it means whatever a
person declared on information given by someone else; sometimes it is treated as nearly
synonymous with irrelevant”1.

In its more generally accepted since the term hearsay is used to indicate that evidence which
does not derive its value from the credit given to the witness himself, but which rests also on
the veracity and competence of some other person. It is thus used in contradiction to ‘direct
evidence’. It is derivative evidence.

Hearsay evidence is the statement of a witness not based on his personal knowledge but on
what he heard from others.2 If the evidence is that of a fact the happening of which could be

1
Stephen’s evidence, Introduction, p.4
2
Sakatar Singh v State of Haryana AIR 2004 S.C 2570
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heard, for example, the noise of an explosion, the evidence must be that of a person who
personally heard the happening of the fact.3

The evidence of a reporter that after filing the F.I.R at the instance of his companion, who
told by the people there, by naming the accused, that he assaulted the deceased and escaped,
was held to be irrelevant, being not an eye witness account.4

Thus all the cases the evidence has to be that of a person who himself witnessed the
happening of the fact of which he gives evidence in whatever way the fact was capable of
being witnessed. Such a witness is called an eye-witness or a witness of fact and the principle
is known as that of direct oral evidence or of the exclusion of hearsay evidence. A post
mortem report was produced by the record clerk of the hospital. The doctor who conducted
the post mortem was not produced. The court ruled that in such circumstances the report was
not provable. Only the original report stand not a copy of it is admissible.5

3
S.P.Subramanya v KSRT Corpn., AIR 1997 S.C 2076
4
State of U.P v Satish Chandra, 1985 supp, S.C.C 576
5
Vijender v State of Delhi, (1997) 6 SCC 171 (S.C).
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Reasons for Exclusion of Hearsay

Even though hearsay evidence is a kind of evidence, it is not admissible due to the following
reasons:

 The irresponsibility of the original declarant-

 The deprecation of truth in the process of repetition; and
 The opportunities for fraud its admission would open; to which are sometimes added
these grounds, viz.,
 The tendency of such evidence to protract legal inquires, and
 To encourage the substitution of weaker for stronger proof.

Exceptions to Hearsay

Following are the various exceptions to the Hearsay Rule:

 Res Gestae (S. 6)

 Admissions and Confessions
 Statement relevant under section.32
 Statements in Public Documents
 Evidence in Former Proceedings
 Statements of Experts in Treatises (s.60,proviso)

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LEJZOR TEPER VS. THE QUEEN

FACTS OF THE CASE:

This is an appeal by the appellant against the judgment of the trial court. The Facts of the
case are as follows.

The wife of Lejzor Teper carried on a business in Regent Street, Geroge Town, in which he
carried on the store of dry goods store. The fire caught fire on 0ctober 09, 1950. He was held
for the charge of maliciously and with intent to defraud setting fire to the shop, The evidence
in this regard was given by a police officer which was admitted for the purpose of
identification, and without objection.

The witness whose evidence was impugned was police constable Cato. He came about 2 a.m.
on October 9 and then went along the street named Camp Street towards Regent Street. He
heard a shout of fire, and then one of the engines passed, and after it a second fire engine,
both going along regent street. He stopped at the corner of Regent and Camp Street. His
evidence was : “There were crowds going east and west along regent street to and from the
fire.I heard a woman’s voice shouting ‘your place is burning and you are going away from
the fire‘ immediately then a black car which was proceeding along Regent street turned north
into Camp street ; in a car was a fair man resembling accused . I did not observed the number
of the car . I could not see the fire from where i was standing.” In cross examination he said
that he did not know who or where the woman was. She was not a witness at the trial. It was
common ground that the incident took place at a distance of more than a furlong from the site
of the fire and it happened not less than 26 minutes after the fire was started.

DECISION BY THE TRIAL COURT:

He was sentenced to 7 years penal servitude. It was proved that the shop was maliciously set
on fire. On the intent to defraud the Crown’s Case was that the appellant having insured the
building and stock for sums considerably above their real value, set fire to them with the
intention of claiming against the insurance companies.

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APPEAL:

The ground of appeal were that the hearsay and incompetent evidence was admitted for the
purpose of identifying the accused as the man who set the premises on fire, that the evidence
was in a high degree prejudicial to the appellant, and the other evidence against him was such
that no reasonable jury, properly directed, could have convicted him on it alone, or at least
that it was so flimsy and inconclusive that it must have been outweighed by the hearsay
evidence in the jury’s consideration of the evidence as a whole. The contentions of the crown
were that the impugned evidence was properly admitted as part of the res gestae, that even if
it was inadmissible the appellant suffered no real prejudice and that the other evidence was
amply sufficient to entitle a reasonable jury to convict.

DECISION:

It was held by the court that the words spoken by the woman did not form the part of the res
gestae and were therefore not expected from the fundamental rule against the excepted from
the fundamental rule against the admission of hearsay evidence. The evidence was wrongly
admitted, and there being no other evidence of identification which was of any value, and the
circumstantial evidence which alone the crown had to rely on to connect the appellant with
the commission of the crime being inconclusive for the purpose, the conviction was set
aside.

The court held that “ While it could not be said that there was no legal evidence to support a
verdict of guilty, nevertheless the admission of the police constable’s hearsay evidence was,
having regard to the weakness of the other evidence was having regard to the weakness of
other’s evidence, so prejudicial to the accused that it deprived him of the substance of a fair
trial and the protection of the law, and he had discharged the burden of establishing that there
had been a real miscarriage of justice.

To be admissible, it is essential that the words sought to be proved by hearsay evidence

should be, if not absolutely contemporaneous with the action or event, at least so clearly
associated with it in time, place and circumstances, that they are part of the thing being done,
and so an item or part of real evidence and not merely a reported statement. Hearsay evidence
for the purpose of identification should only be allowed if it satisfies the strictest test of close

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association with the time, place and circumstances, and in a criminal the event which the
words sought to be proved must be so connected as to form part of res-gestae is the
commission of the crime itself – here the setting the fire to the building.

COURT ON ADMISSIONABILITY OF EVIDENCE:

The rule against the admission of hearsay evidence is fundamental. It is not thye best
evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose
words are spoken to by another witness cannot be tested by cross-examination, and the light
which is his demeanor would throw on his testimony is lost. Nevertheless, the rule admits of
certain carefully safeguarded and limited exceptions, one of which is that words may be
proved when they form part of the res gestae. The rules controlling these exceptions, one of
which is that words may be proved when they form part of the res getae.

The evidence cannot be taken as truth of the statement , but merely of the fact that the
statement was made. The prosecution made out no case ; they did not prove that the appellant
was on the spot at the time, and it was not suggested that he was under any financial
stringency – exactly the opposite was proved by the prosecution . Certainly there was a
deliberate setting on fire by somebody who used petrol , but that in itself is not sufficient. The
appellant was stocking his premises all the time, and that is the last thing he would do if he
intended to set fire to his store ; he said that to do so would be burning his living . None of
the elements of deliberate arson which one would expect to find here.

Its admission as part of res gestae is carrying the rule of the admission of the hearsay
evidence as part of the res gestae has ever been used in an endeavour to give evidence of
identity.

ADMISSIONABILITY FOR THE PURPOSE OF IDNETIFICATION:

The special danger of allowing hearsay evidence for the purpose of identification requires
that it shall only be allowed if it satisfies the strictest test of close association with the event
in time, place and circumstances. “identification is an act of the mind, and the primary
evidence of what was passing in the mind of a man is his own testimony, where it can be
obtained. It would be very dangerous to allow evidence to be given of a man’s words and

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actions, in order to show by this extrinsic evidence that be identified the prisoner, if he was
capable of being called as a witness and was not called to prove by direct evidence that he
had thus identified him”

There is yet another proposition which can be affirmed, that for identification purposes in a
criminal trial the event with which the words sought to be proved must be so connected as to
form part of the res gestae, is the commission of the crime itself, the throwing of the stone,
the striking of the blow, the setting fire to the building or whatever the criminal act may be.
The respondent’s counsel submitted that any relevant event or action may be accompanied by
words which may have to be proved in order to bring out its true significance. There is a
limited sense in which this is true, but it is not always true, and much depends on the use to
be made of the evidence.

COURT ON INTENTION OF APPELLANT:

Over-insurance of the stock or building by the appellant would, if proved, have been a most
material circumstance, and the Crown therefore made every effort to prove it. Their lordships
have carefully considered the evidence about the policies of insurance entered into by the
appellant, and they are satisfied that the Crown’s case on over-insurance completely broke
down. There was no attempt to obtain insurance wirhout the inspection of the subjects
insured by the companies agents, and there was concealment of previous policies when
further cover was negotiated. There was no evidence of irregular disposal of stock after
insurance was effected, and no evidence that the appellant have had any expectation of
recovering more than the value of stock for buildings destroyed. Furthermore, it was proved
that the appellant had purchased and received delivery of goods for stock up to the eve of the
fire, and that his dealings with the wholesalers had been honest and above board. It was
proved that he had in bank at the time of the fire a sum of about $12000. It was truly said that
evidence of over-insurance goes to motive and that is not necessary for the Crown to prove
the motive of a crime. But the failure to prove the motive in this case left the Crown with the
heavy onus of satisfying the jury that the appellant willfully destroyed his property without
any proved prospect of gain.

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SECTION 6 OF THE INDIAN EVIDENCE ACT

Section 6 of the Act states the following:

“Relevancy of facts forming part of same transaction- Facts which, though not in issue are
so connected with a fact in issue as to form part of the same transaction, are relevant,
whether they occurred at the same time and place or at different times and places.”

The principle pf the section is that whenever a ‘transaction’ such as a contract or a crime, is a
fact in issue, then evidence can be given of every fact which forms part of the same
transaction. The facts which surround the happening of an event are its res gestae. The
section is quite apparently based upon the English doctrine of res geaste though this word has
been avoided by the section. Every such act, omission or statement as throws some light upon
the nature of the transaction or reveals its true quality or character should be held as part of
the transaction and the evidence of it should be received. To state a fact or event in isolation
without reference to its antecedents in time, place or surrounding circumstances may render
the fact difficult or even impossible to comprehend. Other facts or circumstances may be so
closely connected with the fact in issue as to be in reality part and parcel of the same
transaction. A transaction can be truly understood only when all its integral parts are known
and not in isolation from each other.

DOCTRINE OF RES GESTAE

Introduction

S. 5 of Indian Evidence Act lays down that evidence may be given of fact in issue and
relevant fact described under S. 6 to S.55. S.

The principal of law embodied in S.6 is usually known as the rule of res gestae. The rules
formulated in s. 6 is expounded and illustrated in S. 7, 8, 9 and14. Facts which may be
proved, as part of res gestae, must be facts other than those in issue but must be connected
with it. Though hearsay evidence is not admissible, but when it is res gestae it can be
admissible in a court of law and may be reliable evidence.

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Res gestae includes facts which form part of same transaction. So, it is pertinent to examine
what is a transaction, when does it start and when does it ends. If any fact fails to link itself
with the main transaction, it fails to be a res gestae and hence inadmissible.

Res gestae include elements that fall outside the modern hearsay definition altogether, such as
circumstantial evidence of state of mind, so-called “verbal acts,” verbal parts of acts, and
certain non-verbal conduct. Because excited utterances are connected closely in time to the
event and the excitement flows from the event, excited utterances were deemed part of the
action (the “things done”) and hence admissible despite the hearsay rule.6

In Babulal v W.I.T Ltd.7, it was observed that the statement of law in section 6 of the evidence
act is usually known as Res Gestae. The literal meaning of the word ‘res’ is “everything that
may form an object of rights and includes an object, subject matter or status”.8

Res Gestae has been described as a term of protean significance and that there have been
many definitions of the term. No evidential problem is as shrouded in doubt and confusion10
as is Res Gestae. The rule as to admissibility of evidence known as the Res Gestae rule has
been declared to be incapable of any precise definition and it has been applied to so many
different and unrelated situations that it has been said that the difficulty of formulating a
description of Res Gestae which will serve all circumstances seems insurmountable.11 It
would be little short of miraculous if one single doctrine of Res Gestae would suffice for
every situation.

RES GESTAE AND HEARSAY

Hearsay evidence means the statement of a person who has not seen the happening of the
transaction, but has heard of it from others. For example, a person who has himself witnessed
an accident can give an account of it to the court, but his wife, who heard of it from him
cannot give evidence of what her husband told her, her knowledge being hearsay. 9 But such
evidence can be given if it is part of the transaction. In R v Foster, the witness had only seen a

6
See Eleanor Swift, The Hearsay Rule at Work: Has it Been Abolished De Facto by Judicial
Decision?, 76 Minn. L. Rev. 473, 475 (1992)
7
1956 AIR CAL 105
8
Escorts Farms Ltd v Commisioner Kumaon Division 2004 AIR SC 1157
9
Pawan kumar v State of Haryana AIR 2003 SC 2987
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speeding vehicle, but not the accident. The injured person explained him the nature of the
accident. He was allowed to give evidence of what the deceased said although it was only a
derived knowledge, it being a part of res gestae. Thus, the doctrine of res gestae constitutes
an exception to the principle of hearsay.10

When admissible under Res Gestae

To answer that question the judge must first consider the circumstances in which the
particular statement was made, in order to satisfy him that the event was as unusual or
starting as to dominate the thoughts of the victim, so that his utterance was an instinctive
reaction to that event, thus giving no real opportunity for reasoned reflection. In such a
situation the judge would be entitled to conclude that the involvement or the.

Pressure of the event would exclude the possibility of concoction or distortion, providing that
the statement was made in conditions of approximate but not exact contemporaneity. In order
for the statement to be sufficiently ‘spontaneous’ it must be so closely associated with the
event which has excited the statement, that it can be fairly stated that the mind of the
declaring was still dominated by the event. Thus the judge must be satisfied that the event,
which provided the trigger mechanism for the statement, was still operative.

Quite apart fro the time factor, there may be special feature in case, which relate to the
possibility of concoction or distortion. As to the possibility of report on the facts narrated in
the statement if only the ordinary fallibility of human recollection is relied on, this goes to
weight to be attached to and not the admissibility of the statement and is therefore a matter of
jury.

Motive and Intention

A person’s statement that he intends to do something in the future is not admissible as

evidence that he did that thing. What someone says, where his intention is in issue, is very
different matter to investigating what someone says he is going to do in order to decide
whether he carried out his stated intention. In Wainwright Case 11, a girl left home telling her

10
Kashmira Singh v State AIR 1965 J&K 37, where the evidence of by-stander as to a defamatory
statement was allowed.
11
1875 13 Cox CC 171
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mother that she was going to visit Wainwright. In Thomson case 12, a girl said that she
intended to perform an abortion on herself. Both statements were held to be inadmissible
because the declarant’s intention was not directly relevant. The issue was, respectively,
whether there was a meeting with Wainwright and whether the pregnant girl performed the
abortion herself. The statement of intention may or may not been carried out, in either event
they did not accompany and define the fact in issue. 13 But in Buckley case14, it was held that
the statement made by the police officer that he is going to meet Buckley in course of his
duty is admissible as there is a likelihood that a police officer who says he has to meet
someone in course of his duty will do just that, whereas the intentions asserted by the girls in
the above mention case may or may not have been carried out.

Evidence may be given of the statements which accompany conduct in order to define the
motive behind that conduct. Statements which are not contemporaneous with an act cannot
define the motive with which it was done because the declarant may change his mind
between the declaration and the act. Sec. 8 deals with the relevancy of motive, preparation
and conduct.

It lays down that (1) a fact which shows or constitutes a motive for any fact in issue or
relevant fact is relevant; (2) a fact which constitute or shows preparation for any fact in issue
or relevant fact is relevant; (3) previous or subsequent conduct of any party or of any agent to
any party to any suit or proceeding, in reference to such suit or proceedings, or in reference to
any fact in issue or relevant fact, are relevant provided such conduct influences or is
influenced by any fact in issue or relevant fact.

In determining the fact whether a man charged with an offence, committed it or not, it is
important to know whether previous to the act he made certain preparations to do the act.
Again, the conduct, antecedent or subsequent, of the person committing an offence or of a
person against whom an offence has been committed, may be helpful in deciding as to
whether a man has committed an offence.

12
1912 3 KB 19
13
Rosmund Reay, Textbook Evidence, 3rd ed, 2001, p.137
14
1873 13 Cox CC 293
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CONCLUSIONS

Usually evidence is brought under res gestae when it can not be brought under any other
section of Indian evidence act. The intention of law makers was to avoid injustice, where
cases are dismissed due to lack of evidence. If any statement is not admissible under sec. 6 it
can be admissible under sec.157 as corroborative evidence.

Court has always minded that this doctrine should never be expanded to an unlimited
extends. That is why Indian courts have always considered the test of “continuity of the
transaction”. Any statement which was made after a long time gap and which was not a
reaction to the event is not admissible under sec.6 of the evidence act. But courts have
permitted certain statement which was spoken after a long time gap from the occurrence of
the transaction, because there was sufficient proof that the victim was still under the stress of
excitement and so whatever was said was as a reaction to the event.

The strength of sec. 6 lies in its vagueness. The word transaction used in this section is not
distinct. It varies from case to case. Each case in criminal law should be judged according to
its own merit. When it is proved that the evidence forms part of the same transaction it is
admissible under sec. 6 but whether it is reliable or not depends on the discretion of the
Judge.

Also, It is for the court to see that dying declaration inspires full confidence as the maker of
the dying declaration is not available for cross examination. Court should satisfy that there
was no possibility of tutoring or prompting. Certificate of the doctor should mention that
victim was in a fit state of mind. Magistrate recording his own satisfaction about the fit
mental condition of the declarant was not a acceptable especially if the doctor was available.
Dying declaration should be recorded by the executive magistrate and police officer to record
the dying declaration only if condition of the deceased was so precarious that no other
alternative was left. Dying declaration may be in the form of questions and answers and
answers being written in the words of the person making the declaration. But court cannot be
too technical.

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BIBLIOGRAPHY

Books Referred

 Phipson on Evidence, Sweet & Maxwell Publication, edition II 2000.

 Joya Rao S.V., Law of Evidence, Sir John Woodroffe, Syed Amir Alis Volume 1,

edition 16, 2004.

 Bakshi P.M., Law of Evidence, 6th Edition, 1998 I.L.H.

 Sarkar, Law of Evidence, 19th Edition, Ashoka Law House, 1999.

 Ratan Lal & Dhiraj Lal, Law of Evidence 19th Edition Wadhwa Publisher,2005.

 Singh Avtar, “Principles of the Law of Evidence”,17 th Edn., Central Law

Publications,2009.

Websites Referred

 www.indlaw.com

 www.manupatra.com

 www.lexis-nexis.com

 www.jstor.com

 www.legalservicesindia.com

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