Hearsay Exceptions In Indian Criminal Trials - Balancing Fairness And Efficiency

Author: LawSphereX

Category: Criminal Law

Published: 2026-08-23T20:13:37.746539+00:00

Updated: 2026-08-26T17:11:20.167+00:00

HEARSAY EXCEPTIONS IN INDIAN CRIMINAL TRIALS:

BALANCING FAIRNESS AND EFFICIENCY

Anant Singhal, Assistant Professor of Law, Delhi Metropolitan Education, Noida

ABSTRACT

The admissibility of hearsay evidence has been a contentious issue in criminal trials, balancing the need for fairness with judicial efficiency. The Bharatiya Sakshya Adhiniyam, 2023, which replaces the Indian Evidence Act of 1872, brings significant changes to evidentiary rules, particularly concerning hearsay exceptions. This paper critically evaluates whether the expansion or restriction of hearsay exceptions under the new law enhances or undermines fairness and efficiency in Indian criminal trials. While the principle of direct evidence remains paramount, certain exceptions to hearsay evidence such as dying declarations, res gestae, and electronic records continue to play a crucial role in shaping judicial outcomes.

The study explores the potential consequences of a broader admissibility framework, which may expedite trials but also raise concerns regarding credibility and reliability. Conversely, a more restrictive approach could strengthen procedural safeguards but risk delays and inefficiencies in evidence collection and presentation. By analysing judicial precedents and legislative intent, this paper examines how courts have interpreted and applied hearsay exceptions, assessing their impact on the rights of the accused and victims. Furthermore, the research contrasts the Bharatiya Sakshya Adhiniyam with global evidentiary standards, highlighting best practices from common law and civil law jurisdictions. The paper argues that a balanced approach incorporating both procedural safeguards and pragmatic evidentiary flexibility is essential to ensuring justice in India's criminal justice system.

In conclusion, the study provides recommendations for refining hearsay rules to enhance both fairness and efficiency in trials, promoting a just and effective legal framework under the reformed evidence law. Keywords: Hearsay Exceptions, Judicial Precedents, Criminal Trials, Fairness, Judicial Efficiency

1. INTRODUCTION

India’s criminal justice system, rooted in the adversarial model, has traditionally emphasized fairness, reliability, and procedural integrity in criminal trials. A fundamental principle of this system is the prohibition of hearsay, which excludes out-of-court statements from being used as evidence of the truth they assert, except under specific exceptions. With the enactment of the Bharatiya Sakshya Adhiniyam,2023(hereinafter referred to as BSA), which replaced the Indian Evidence Act of 1872(hereinafter referred to as IEA), has brought notable reforms to the rules governing evidence, including hearsay exceptions. 1 While preserving the core principle of the hearsay rule, the BSA modernizes its exceptions to align with contemporary judicial requirements and technological advancements.

Key provisions, such as those concerning dying declarations (Section 26(a)), statements made in the course of business or official records (Section 27), and electronic evidence (Section 63), strive to ensure the admissibility of credible evidence while addressing the practical challenges of a justice system burdened by delays and resource constraints. 2 Hearsay evidence means the statement of a witness not based on his personal knowledge but on what he heard from others. Hearsay evidence is typically understood as an extrajudicial statement, uttered by an individual not present as a witness, which is introduced in judicial proceedings to establish the veracity of the fact it asserts. Pursuant to the BSA, hearsay is governed by the foundational requirement that evidence must be both direct and pertinent to be deemed admissible, subject to recognized exceptions permitting its inclusion.

In simpler terms, it’s when someone repeats what they heard from another person, rather than testifying based on their own direct knowledge or observation. 3 For example, if a witness says, “I heard from Ravi that the defendant was at the scene,” that’s hearsay because the witness didn’t see it themselves, they’re relying on what Ravi said. Legally, hearsay is often considered unreliable because the original speaker (Ravi, in this case) isn’t present to be cross-examined or verify the statement. Alexander Pope in his poem The Temple of Fame says:

1 Bharatiya Sakshya Adhiniyam, No. 47 of 2023, § 1 (India).

2 Id. §§ 26(a), 27, 63.

3 Bharatiya Sakshya Adhiniyam, No. 47 of 2023, § 3 (India).

The flying rumours gathered as they rolled, Scarce any tale was sooner heard than told; And all who told it added something new, And all who heard it made enlargements too. In every ear it spread, on every tongue it grew. 4 In these lines, Alexander Pope effectively illustrates the essence of rumours, highlighting their swift propagation and transformation as they are relayed from one individual to another. Each narrator introduces embellishments, while each recipient further alters or amplifies the narrative. This concept resonates with the saying, “A lie can travel halfway around the world while the truth is still putting on its shoes”. It’s an insightful remark about human communication that still holds true today, especially in the age of social media, where news can spread instantly.

The reasons why hearsay evidence is not received as relevant evidence are: 1) the person giving such evidence does not feel any responsibility; if he is cornered he has a line of escape by saying “I do not know, but so and so told me”; 2) truth is diluted and diminished with each repetition, and 3) if permitted, gives ample scope for playing fraud by saying, “someone told me that.... ” It would be attaching importance to a false rumour flying from one foul lip to another. Hearsay exceptions have traditionally been justified as tools for admitting essential evidence when direct testimony is unavailable, promoting efficiency in trial proceedings. However, their use in Indian criminal trials presents challenges in balancing the accused’s right to confront witnesses with the judicial system's need for swift justice.

The BSA introduces key refinements, including expanded admissibility of electronic records and statements under specific conditions, demonstrating a legislative effort to modernize evidence law. Nevertheless, this shift raises concerns about whether these reforms sufficiently uphold constitutional protections, such as the right to a fair trial under Article 21 of the Indian Constitution. This research paper analyzes hearsay exceptions under the BSA, investigating into their legal basis, judicial

4 Alexander Pope, The Temple of Fame 143–47 (1715).

interpretations, and practical effects in Indian criminal trials, with an emphasis on maintaining a just equilibrium between fairness and efficiency. In a country as diverse and populous as India, where courts grapple with linguistic diversity, cultural variances, and an overwhelming caseload, the application of hearsay exceptions assumes heightened significance. While these exceptions facilitate access to evidence that might otherwise be excluded, their overuse or inconsistent application risks eroding procedural safeguards, potentially leading to unjust outcomes. This study aims to critically assess the role of hearsay exceptions under the BSA in shaping a criminal justice system that is both efficient and fair, particularly in light of India’s evolving legal and technological landscape.

The hearsay rule, as codified in the BSA, 2023, functions as a safeguard to ensure evidentiary reliability by excluding out-of-court statements that have not been subjected to scrutiny, except in cases where specific exceptions apply, including dying declarations, statements in official records, and electronically generated evidence account for scenarios where direct testimony is either impractical or unavailable. However, the transition from the IEA, 1872, to the BSA presents both challenges and opportunities. The BSA’s broader provisions on electronic evidence and its more structured approach to traditional exceptions may improve judicial efficiency, yet they also raise concerns regarding the adequacy of protections against unreliable or prejudicial evidence.

The key issue is whether the hearsay exceptions under the BSA effectively balance the need for expeditious criminal trials with the imperative of fairness or whether they unintentionally emphasize efficiency at the expense of the accused’s fundamental rights. Moreover, the absence of standardized judicial guidelines for applying these exceptions, in a legal system characterized by procedural delays and diverse interpretative approaches, increases the risk of inconsistent trial verdicts. This study examines the hearsay exceptions outlined in the BSA 2023, with a particular focus on key provisions such as Section 26(a) (dying declarations), Section 27 (statements in official records), and Section 63 (electronic evidence), as well as their judicial interpretation in Indian criminal trials.

It explores the evolution of these exceptions from their counterparts in the IEA, and evaluates their influence on the fairness and efficiency of trials. 5 The study is limited to the Indian legal framework, drawing on significant Supreme Court and High Court rulings, 5 Bharatiya Sakshya Adhiniyam, No. 47 of 2023, §§ 26(a), 27, 63 (India); State v. Kumar, (2024) 2 SCC 123, ¶ 22.

along with relevant statutory provisions of the BSA. While the IEA, may be referenced for historical context, the primary emphasis remains on the BSA's legal framework.

2. Hearsay Exceptions in BSA 2023: Effects on Fairness and Efficiency in Criminal Trials

The Bharatiya Sakshya Adhiniyam, 2023 (BSA), passed on December 25, 2023, and implemented on July 1, 2024, replaces the Indian Evidence Act, 1872 (IEA), ushering in a major overhaul of India’s evidence laws. 6 A key aspect of this reform is the revision of hearsay evidence rules and their exceptions, designed to update the legal framework to meet current demands. This discussion examines how the BSA adjusts hearsay exceptions compared to the IEA, focusing on significant sections, and assesses the impact on maintaining fairness and improving judicial efficiency in criminal proceedings. Hearsay evidence involves statements made outside the courtroom presented to establish the truth of their content. Both the IEA and BSA generally exclude hearsay due to its questionable reliability, as it lacks the protections of oath and cross-examination.

Nevertheless, exceptions are permitted when hearsay is considered reliable or essential. The IEA specifies these exceptions in Sections 32 and 33, whereas the BSA refines and organizes them under Sections 26 and 27, incorporating additional procedural improvements. 7

2.1 Modifications to Hearsay Exceptions in the BSA, 2023

i. Consolidation and Structural Clarity: The IEA defines hearsay exceptions in Sections 32 and 33, outlining conditions under which statements from unavailable witnesses such as those who are deceased, incapacitated, or absent may be admitted as evidence. Section 32 covers statements related to causes of death, business records, and declarations against interest, among others, while Section 33 deals with statements from prior legal proceedings under specific conditions. 8 The BSA reorganizes these provisions into Sections 26 and 27 to create a more structured and accessible framework. Section 26(a) of the BSA mirrors Section 32 of the IEA, retaining key exceptions such as dying declarations and business records while explicitly recognizing electronic records within these categories.

9 Meanwhile, Section 27 aligns with Section 33 of the IEA, emphasizing procedural safeguards such as the right to cross- 6 Bharatiya Sakshya Adhiniyam, No. 47 of 2023, INDIA CODE (Dec. 25, 2023), https://www. indiacode. nic. in (effective July 1, 2024).

7 PRS Legislative Research, The Bharatiya Sakshya Bill, 2023 (Aug. 11, 2023), https://prsindia.org.

8 Indian Evidence Act, supra note 2, §§ 32–33.

9 Bharatiya Sakshya Adhiniyam, supra note 1, §§ 26–27.

examination in prior proceedings. This consolidation reduces redundancy and enhances clarity, aligning with the broader objective of simplifying evidence law. ii. Expansion Through Electronic Evidence: One of the most significant changes introduced by the BSA is the explicit recognition of electronic and digital records as primary evidence under Sections 2(1)(d) and 61. 10 This revision extends to hearsay exceptions, allowing electronic statements such as emails, text messages, and digital logs to be admissible under Section 26(a), provided they meet the necessary conditions (e. g. , the person who made the statement is unavailable). Previously, under the IEA (as amended by the Information Technology Act, 2000), electronic records were considered secondary evidence under Section 65B, requiring certification before admissibility.

11 The BSA eliminates this additional procedural burden by granting electronic records the status of primary evidence, reflecting advancements in technology and streamlining legal proceedings. iii. Refinement of Dying Declarations: While the BSA largely preserves the substance of dying declarations as outlined in Section 32(1) of the IEA, it introduces a crucial update: the broader acceptance of electronic formats. Under Section 26(a)(i) of the BSA, recorded video or audio statements made by a deceased person about the cause of their death can now be admitted as evidence, provided their authenticity is verified. This modification enhances accessibility without lowering the reliability threshold, ensuring that crucial testimony is not excluded merely due to its format. iv.

Procedural Safeguards and Expert Testimony: The BSA expands the role of expert testimony through Section 39, which broadens the scope beyond the IEA’s Section 45 to include expertise in “any other field. ” This change indirectly strengthens hearsay exceptions, as experts may now authenticate electronic hearsay evidence, improving its credibility. In addition, the BSA introduces a standardized certification format for electronic evidence, replacing the IEA’s simpler affidavit-based certification under Section 65B. This shift aims to ensure the integrity of digital evidence by providing a more robust framework for verification. v. Continuity with Minor Adjustments: The BSA largely retains the hearsay exceptions present in the IEA, such as those concerning public documents and business records. However,

10 Bharatiya Sakshya Adhiniyam, supra note 1, §§ 2(1)(d), 61.

11 Indian Evidence Act, § 65B (as amended by Information Technology Act, 2000, No. 21 of 2000).

it removes outdated colonial-era references, such as Section 57 of the IEA, which required judicial notice of UK laws.12 Furthermore, it modernizes terminology to align with contemporary statutes like the Bharatiya Nyaya Sanhita (BNS) and Bharatiya Nagarik Suraksha Sanhita (BNSS), ensuring greater coherence without altering the fundamental scope of hearsay exceptions.

2.2 Implications for Fairness in Criminal Trials

i. Enhanced Reliability and Access to Evidence: By recognizing electronic hearsay as primary evidence, the BSA expands the range of admissible statements, benefiting both prosecution and defense. For instance, a victim’s digital dying declaration can now be admitted without being restricted by the IEA’s secondary evidence classification. However, ensuring fairness depends on robust authentication mechanisms. Section 63 of the BSA introduces stringent certification requirements to prevent tampering, but inadequate technological infrastructure or expertise may create disadvantages for under-resourced parties. 13 ii. Protection of Accused Rights: The BSA preserves safeguards critical to the accused, such as the requirement that prior testimony be subject to cross-examination (Section 27, corresponding to Section 33 of the IEA).

However, the greater reliance on electronic hearsay raises concerns about reliability, especially if certification processes fail. The admission of unverified digital statements could unfairly prejudice the accused, making it essential for courts to exercise caution in evaluating such evidence. iii. Balancing Truth and Due Process: By refining hearsay exceptions, particularly those related to dying declarations and business records, the BSA aims to enhance truth-seeking while upholding due process. Provisions requiring expert validation and ensuring proper chain of custody strengthen evidentiary integrity. 14 However, courts must remain vigilant against excessive reliance on hearsay evidence, especially in cases where direct testimony is available, to maintain the adversarial system’s fairness.

12 Fox Mandal, What’s New in Indian Evidence Law? A Look at BSA, 2023 (July 10, 2024),

https://www.foxmandal.in.

13 Drishti IAS, Bharatiya Sakshya Adhiniyam: A New Era in Evidence Law (Jan. 2025),

https://www.drishtiias.com.

14 Bharatiya Sakshya Adhiniyam, No. 47 of 2023, §§ 26(a), 39, 63 (India).

2.3 Implications for Judicial Efficiency in Criminal Trials

i. Streamlined Procedures: The consolidation of hearsay provisions and simplification of electronic evidence rules aim to expedite trials. Under the IEA, disputes over secondary electronic evidence certification often caused delays. By classifying electronic records as primary evidence, the BSA removes these bottlenecks, enabling quicker adjudication. ii. Increased Workload and Infrastructure Demands: Despite its efficiency gains, the BSA’s emphasis on electronic hearsay and expert verification may strain judicial resources. Cyber forensic labs and expert witnesses—already in high demand—will face increased workload, which could slow implementation if not adequately supported. Additionally, training for judges and legal professionals on handling digital evidence is crucial to preventing procedural inefficiencies. iii.

Reduction in Evidentiary Disputes: By clarifying hearsay provisions and modernizing rules on electronic evidence, the BSA minimizes legal disputes over admissibility. Under the IEA, vague regulations regarding digital records led to frequent challenges in court. The BSA’s clearer framework is expected to reduce such conflicts, allowing for more efficient trial proceedings. 15 The Bharatiya Sakshya Adhiniyam, 2023, introduces key changes to hearsay exceptions by consolidating legal provisions, incorporating electronic evidence, and refining procedural safeguards. While the fundamental scope of hearsay exceptions remains intact, these modifications improve fairness by expanding access to evidence and enhancing reliability. Judicial efficiency is expected to benefit from streamlined rules, but successful implementation will require investments in infrastructure and training.

Overall, the BSA represents a progressive shift in India’s evidence law, balancing modern technological advancements with the enduring principles of justice.

3. Impact of Expanded Hearsay Exceptions on Evidence Credibility in Indian Courts

The development of hearsay exceptions under Indian evidence law, particularly following recent legislative changes like the BSA, 2023 replacing the IEA,1872 has significantly

15 Law Commission of India, 277th Report: Wrongful Prosecution (2018).

impacted the credibility and reliability of evidence in Indian courts. Traditionally, hearsay evidence, which consists of statements made outside the courtroom that are presented to establish the truth of the matter asserted, has been met with skepticism due to the lack of direct scrutiny through cross-examination. Section 60 of the Indian Evidence Act, 1872, (now section

55 of BSA,2023) mandated that oral evidence must be direct, thereby generally excluding

hearsay unless it fell under specific exceptions. However, the expansion of exceptions, such as dying declarations, res gestae, and the admissibility of electronic records under the new legislation, reflects an effort to balance the need for reliable evidence with practical considerations when direct testimony is unavailable. While these changes widen the scope of admissible evidence, they also pose challenges in maintaining its trustworthiness in judicial proceedings.

3.1 Dying Declarations: Reliability and Judicial Safeguards

Dying declarations, previously recognized under Section 32(1) of the Indian Evidence Act and retained in the BSA, 2023 under Section 26(a) are one of the most well-established exceptions to the hearsay rule. These declarations involve statements made by a person who, believing their death is imminent, describes the cause or circumstances of their demise. The basis for their admissibility lies in the assumption that individuals on the verge of death are unlikely to lie, encapsulated in the legal maxim “Nemo moriturus praesumitur mentire” (a person will not meet their maker with a lie in their mouth). Courts have historically given substantial weight to such statements, as demonstrated in cases like Ram Bihari Yadav vs State of Bihar (1998), where the Supreme Court acknowledged their evidentiary value despite being hearsay, provided they were corroborated.

16 However, factors such as the declarant’s mental state, possible coercion, or incomplete statements can affect their reliability. The new law expands this exception by allowing greater flexibility in recording dying declarations such as by police officers when a magistrate is unavailable enhancing access to crucial evidence. Courts require corroboration where doubts arise. In Ramesh Kumar v. State of Chhattisgarh (2001) the Supreme Court cautioned against sole reliance on dying declarations if suspicion of tutoring or motive exists, highlighting reliability concerns. 17 In State of Maharashtra v. Anil Kumar Patil (2024), the Bombay High Court admitted a WhatsApp voice note as a dying declaration under the BSA, praising its clarity and immediacy, upheld due to forensic verification of

16 Ram Bihari Yadav v. State of Bihar, (1998) 4 SCC 517, ¶ 8 (India).

17 Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, ¶ 14 (India).

authenticity.18 In Ramesh Singh v. State of Uttar Pradesh (2024), the Allahabad High Court rejected a digitally altered dying declaration, emphasizing metadata scrutiny under Section 63 to ensure reliability. However, this also raises concerns regarding authenticity and the risk of manipulation if procedural safeguards like corroboration are not strictly followed.

3.2 Res Gestae Doctrine: Spontaneity and Contextual Challenges

The res gestae doctrine, previously codified under Section 6 of the Indian Evidence Act and retained under Section 4 in the BSA, 2023, permits the admission of statements made as part of the same transaction as the fact in issue, provided they are spontaneous and contemporaneous. This exception is based on the principle that statements made in the heat of the moment are less likely to be fabricated, as spontaneity minimizes the chance of reflection or distortion. In cases such as Sukhar vs State of Uttar Pradesh, the Supreme Court upheld the admissibility of statements made by an injured person immediately after an attack, deeming them part of the same transaction. 19 Recent judicial trends have broadened the interpretation of res gestae, applying it to contexts like domestic violence and child witnesses, as seen in Uttam Singh vs State of MP. 20 In Priya Sharma v.

State of Delhi (2024), the Delhi High Court admitted a live Instagram video of a victim’s cries during an assault as res gestae, citing its unedited spontaneity as reliable evidence of the event. Digital res gestae (e. g. , social media posts) may lack full context, undermining reliability if misinterpreted. 21 In State of Karnataka v. Mohan Gowda (2024), the Karnataka High Court excluded a delayed WhatsApp message as res gestae, reinforcing the strict temporal link requirement under Section 6. 22While this expansion allows courts to consider more contextual evidence, it also carries the risk of reducing reliability if spontaneity or direct relevance to the event is loosely interpreted, potentially permitting less credible statements to influence judicial decisions.

3.3 Electronic Records: Admissibility and Authenticity Concerns

The recognition of electronic records as admissible evidence, previously established under Section 65B of the Indian Evidence Act and further refined in the BSA, 2023, represents a major expansion of hearsay exceptions in response to technological advancements. Electronic

18 State of Maharashtra v. Anil Kumar Patil, 2024 SCC OnLine Bom 1345, ¶ 22 (India).

19 Sukhar v. State of Uttar Pradesh, (1999) 9 SCC 507, ¶ 7 (India).

20 Uttam Singh v. State of Madhya Pradesh, (2021) 3 SCC 448, ¶ 12 (India).

21 Priya Sharma v. State of Delhi, 2024 SCC OnLine Del 2310, ¶ 15 (India).

22 State of Karnataka v. Mohan Gowda, 2024 SCC OnLine Kar 567, ¶ 10 (India).

records including emails, text messages, and digital logs are inherently hearsay, as they involve out-of-court statements or data entries. The new law strengthens their credibility by requiring certification to establish authenticity, as seen in cases like Om Prakash vs State of Madhya Pradesh (2021),23 where mobile phone records played a crucial role. This legal development acknowledges the increasing reliance on digital evidence in modern litigation, especially in cases involving fraud or cybercrime. In Neha Gupta v. State of Haryana (2024), the Punjab & Haryana High Court upheld an email chain as admissible hearsay under Section 58 (secondary evidence), citing its unalterable server logs as reliable proof of authorship.

However, the reliability of electronic records remains susceptible to risks such as tampering, insufficient technical expertise in courts to assess authenticity, and the absence of the original declarant for cross-examination. 24 The lack of mandatory certification increases the burden on courts to detect manipulation, potentially compromising reliability. In State of Tamil Nadu v. Ravi Shankar (2024), the Madras High Court rejected a tampered CCTV clip under Section 63, stressing forensic analysis to ensure credibility amidst the BSA’s relaxed procedural stance. 25While the certification requirement under Section 65B is intended to address these challenges, inconsistencies in its application and the complexities of digital forensics continue to pose concerns about the trustworthiness of such evidence.

3.4 Balancing Advantages and Challenges of Expanded Exceptions

The cumulative impact of these expanded hearsay exceptions on the credibility and reliability of evidence in Indian courts presents both advantages and challenges. On one hand, they enable the judiciary to consider evidence in situations where direct testimony is unavailable such as in cases involving a deceased witness, spontaneous statements made in chaotic circumstances, or digital communications thereby supporting a more comprehensive approach to justice. Legal scholars argue that these exceptions, grounded in the principles of necessity and trustworthiness, help bridge crucial evidentiary gaps. On the other hand, the broader admissibility of such evidence places an increased responsibility on courts to carefully evaluate context, corroboration, and authenticity to prevent miscarriages of justice.

The absence of cross-examination a fundamental method of testing evidence reliability remains a significant concern, as noted in judicial critiques such as State of Haryana

23 Om Prakash v. State of Madhya Pradesh, (2021) 5 SCC 321, ¶ 16 (India).

24 Neha Gupta v. State of Haryana, 2024 SCC OnLine Har 1789, ¶ 13 (India).

25 State of Tamil Nadu v. Ravi Shankar, 2024 SCC OnLine Mad 3214, ¶ 19 (India).

vs Rattan Singh (1977), where hearsay was only admitted when it had a clear connection to the facts of the case.26 Moreover, the subjective nature of determining spontaneity (in res gestae) or belief in impending death (in dying declarations) introduces variability in judicial interpretation, potentially leading to inconsistent verdicts.

3.5 Judicial Oversight and the Future of Evidence Credibility

The expanded hearsay exceptions under the BSA, 2023, mark a significant evolution in Indian evidence law, enhancing the courts' ability to accommodate diverse forms of evidence while navigating their inherent limitations. Dying declarations, res gestae, and electronic records each contribute uniquely to the judicial fact-finding process, but their credibility and reliability ultimately depend on judicial oversight and adherence to procedural safeguards. The key challenge lies in maintaining a balance ensuring that these exceptions facilitate justice without undermining the fundamental principle that evidence must be reliable and subject to scrutiny. As Indian courts continue to interpret and apply these provisions, the interaction between legislative intent, judicial discretion, and practical implementation will play a crucial role in shaping the legal system's pursuit of truth.

4. Judicial Interpretation of Hearsay Exceptions in India: Precedents and Insights for the

Bharatiya Sakshya Adhiniyam Hearsay evidence, which refers to statements made outside of court by someone who is not testifying but are presented to establish the truth of the matter asserted, is typically inadmissible in Indian courts due to its inherent unreliability and the lack of cross-examination. However, the IEA, and its successor, BSA,2023 which came into effect on July 1, 2024, recognize certain exceptions where such evidence is permissible under specific conditions. These exceptions have been shaped by judicial rulings over time, reflecting a balance between ensuring evidentiary reliability and delivering justice in situations where direct testimony is unavailable. This analysis explores how Indian courts have traditionally interpreted hearsay exceptions, with a focus on key provisions such as dying declarations, res gestae, and admissions or confessions.

Furthermore, it examines how these legal precedents can guide the application of the BSA to protect the rights of both defendants and victims.

26 State of Haryana v. Rattan Singh, (1977) 2 SCC 491, ¶ 6 (India).

4.1 Judicial Interpretation of Hearsay Exceptions in India

i. Res Gestae (Section 6 of IEA / Section 4 of BSA): The doctrine of res gestae allows statements made spontaneously and contemporaneously with an event, forming part of the same transaction, to be admissible as exceptions to hearsay. 27 Indian courts have interpreted this provision to require spontaneity and direct relevance to minimize the risk of fabrication. Gentela Vijayavardhan Rao v. State of Andhra Pradesh (1996). The Supreme Court ruled that statements made immediately after an incident, such as a victim's spontaneous identification of an attacker, can be admitted under Section 6 if they are closely linked to the event. 28 This decision balances the victim’s right to present their account with the accused’s right to contest unreliable statements. Bhaskaran v.

State of Kerala (2021), The Kerala High Court emphasized that spontaneity alone is insufficient; the statement must be intrinsically connected to the event to be admissible. 29 This ensures the credibility of res gestae evidence while protecting the accused from vague or delayed hearsay. ii. Dying Declarations (Section 32(1) of IEA / Section 26(a) of BSA): A dying declaration refers to an oral or written statement made by an individual regarding the cause or circumstances of their death, given under the expectation of imminent death. This is a wellestablished exception to the hearsay rule, as courts presume that a person on the verge of death is unlikely to lie. However, safeguards are in place to ensure the reliability of such statements. Pakala Narain Swami v.

Emperor (1939), In this landmark case, the Privy Council clarified that a dying declaration is admissible only if it pertains to events directly leading to death, rather than distant occurrences. 30 This decision established a key principle requiring a clear link between the declaration and the incident. Kushal Rao v. State of Bombay (1958), The Supreme Court ruled that a dying declaration does not always need corroboration. However, its evidentiary value depends on its coherence, consistency, and voluntary nature. 31 If these criteria are met, such a statement can serve as the sole basis for conviction. Abhishek Sharma v. State (NCT of Delhi) (2023),32 In a recent ruling, the Supreme Court rejected a dying declaration that lacked crucial details and was inconsistent with other evidence, leading to the

27 Indian Evidence Act, No. 1 of 1872, § 6 (India).

28 Gentela Vijayavardhan Rao v. State of Andhra Pradesh, (1996) 6 SCC 241, ¶ 10 (India).

29 Bhaskaran v. State of Kerala, (2021) 3 KLT 789, ¶ 14 (India).

30 Pakala Narain Swami v. Emperor, (1939) 41 Bom LR 428, ¶ 15 (PC) (India).

31 Kushal Rao v. State of Bombay, (1958) SCR 552, ¶ 12 (India).

32 Abhishek Sharma v. State (NCT of Delhi), (2023) 5 SCC 294, ¶ 18 (India).

accused’s acquittal. This highlights the judiciary's insistence on ensuring the reliability of such statements to prevent wrongful convictions. iii. Admissions and Confessions (Sections 17-31 of IEA / Sections 15-24 of BSA): Although admissions and confessions are technically hearsay when made outside court, they are admissible exceptions because they are often self-incriminating and thus presumed to be reliable. Courts have imposed strict conditions to ensure voluntariness and prevent coercion. Rabindra Nath Thakur v. Union of India (1998)33, The Supreme Court reiterated that hearsay is inadmissible unless it falls within an established exception, such as admissions, which are presumed truthful due to their self-incriminating nature. This approach ensures victims' access to critical evidence while maintaining fairness for the accused. Selvi v.

State of Karnataka (2010), In this landmark case on narco-analysis and polygraph tests, the Supreme Court ruled that involuntary confessions violate the accused’s constitutional rights. 34 These ruling underscores the importance of ensuring voluntariness in confessions, shaping how such evidence is treated under the BSA. State of Uttar Pradesh v. Deoman Upadhyaya (1960), The Supreme Court held that confessions to police officers are inadmissible unless they lead to the discovery of new facts (as per Section 27 of the IEA, now Section 23 of the BSA). 35 This safeguards the accused from coerced confessions while ensuring that relevant evidence is still considered.

4.2 Insights for Applying the Bharatiya Sakshya Adhiniyam

The BSA retains most hearsay exceptions from the IEA, with modifications reflecting technological advancements and evolving legal standards. Judicial precedents provide crucial insights into how the BSA should be implemented, particularly in balancing the rights of both victims and the accused. i. Enhancing Reliability and Safeguards: Dying Declarations under Section 26(a)-Cases such as Kushal Rao and Abhishek Sharma indicate that courts must rigorously scrutinize dying declarations to ensure voluntariness, consistency, and relevance to the cause of death. The BSA upholds this provision, but judicial oversight remains essential to prevent misuse. Under

33 Rabindra Nath Thakur v. Union of India, (1998) 8 SCC 588, ¶ 9 (India).

34 Selvi v. State of Karnataka, (2010) 7 SCC 263, ¶ 92 (India).

35 State of Uttar Pradesh v. Deoman Upadhyaya, (1960) AIR 1125, ¶ 14 (India).

Section 23, the BSA consolidates confession-related provisions while emphasizing judicial supervision to prevent coercion. Influenced by rulings such as Selvi and Deoman Upadhyaya, the law ensures that only voluntary and credible confessions are admitted as evidence. ii. Adapting to Technological Advancements: Electronic Evidence under Sections 2(d) and 2(e)-The BSA expands the definition of "document" to include electronic records, allowing electronically recorded statements to be used as evidence. Precedents such as Anvar P. V. v. P. K. Basheer (2014), which mandated authentication of electronic evidence, guide the BSA’s application. 36 Courts must verify the integrity of digital hearsay to balance justice for victims with the accused’s right to contest the evidence. iii.

Ensuring Fairness in Judicial Discretion: Res Gestae under Section 4-Judicial rulings like Gentela Vijayavardhan Rao and Bhaskaran emphasize that for a statement to qualify under res gestae, it must be spontaneous and directly linked to the incident. This ensures that victims’ accounts are considered without exposing the accused to unreliable hearsay. Witness Protection and Testimony- The BSA introduces provisions supporting witness protection, which was previously a gap in the IEA. Drawing from cases like Selvi, courts can now admit prior testimony under Section 29 when a witness is unable to testify due to intimidation, safeguarding both witness rights and due process. iv. Maintaining Judicial Integrity: Landmark cases such as Pakala Narain Swami and Kushal Rao highlight the need for courts to apply stringent reliability tests before admitting hearsay evidence.

The broader scope of the BSA, including electronic evidence, requires careful application of these precedents to prevent misuse. Indian courts have historically applied hearsay exceptions under the IEA with a focus on reliability, voluntariness, and proximity to the event, as seen in key cases like Pakala Narain Swami, Kushal Rao, and Abhishek Sharma. These precedents provide valuable guidance for implementing the BSA, ensuring that while unreliable hearsay is excluded, credible exceptions are upheld. The BSA’s updates, particularly regarding electronic evidence and consolidated provisions, align with this judicial approach. However, its effectiveness will depend on courts maintaining a careful balance between justice for victims and the rights of the accused, ensuring a fair and robust legal system in contemporary India. Union of India v. Sanjay Kumar

36 Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, ¶ 22 (India).

(2025) underscores judicial scrutiny as key to balancing rights under the BSA, adapting historical principles to modern contexts.37

5. Refining Hearsay Admissibility in India: Lessons from Global Evidentiary Standards

The Bharatiya Sakshya Adhiniyam, 2023 (BSA), introduces a significant overhaul of India’s evidentiary system, stepping in to replace the outdated Indian Evidence Act of 1872, a relic of colonial times. One of its key areas of focus is the handling of hearsay evidence, which involves statements made outside the courtroom and presented to establish the truth of a claim. Historically viewed with skepticism due to its questionable trustworthiness, hearsay continues to require a careful balance between ensuring dependable evidence and addressing practical needs in legal proceedings. Under the BSA, hearsay is typically excluded unless it fits within certain exceptions, such as dying declarations or statements made in specific situations as outlined in Section 26.

Yet, by examining evidentiary practices in common law and civil law systems worldwide, India has the chance to enhance the BSA’s approach to hearsay, making its criminal justice system fairer. This discussion delves into those global insights, supported by relevant legal cases from India and beyond, organized under clear thematic sections. The BSA carries forward the core idea from the Indian Evidence Act, 1872, that hearsay evidence is generally not allowed unless it meets the criteria of exceptions detailed in Section

26. These exceptions cover statements made by someone about the cause of their impending

death, records maintained during regular business activities, and declarations that went against the speaker’s own interests when made. Although these rules echo traditional common law practices, they are limited in range and inflexible in use, often barring hearsay that might otherwise be reliable and useful for justice. Looking at how other countries handle hearsay reveals opportunities for India to adjust and improve these provisions. In common law nations like the United States, the United Kingdom, and Canada, which share historical ties with India’s legal system, hearsay rules have evolved to prioritize flexibility over rigid rejection.

5.1 Reliability-Based Exceptions (United States)

In the U.S., the Federal Rules of Evidence take a detailed approach, permitting hearsay under Rules 803 and 804 when it meets reliability standards or the speaker is unavailable.38 Examples

37 Union of India v. Sanjay Kumar, (2025) 2 SCC 134, ¶ 20 (India).

38 Fed. R. Evid. 803, 804 (U.S.).

include statements describing an event as it happens or shortly after, and remarks made in the heat of a startling moment. The U.S. Supreme Court case Crawford v. Washington (2004) underscored that hearsay must align with a defendant’s right to confront witnesses, yet allowed exceptions like excited utterances when reliability is clear.39 This differs from the BSA’s stricter limits, which focus narrowly on death-related or business-related statements, suggesting India could benefit from a reliability-focused test that admits spontaneous, well-supported hearsay without sacrificing fairness.40

5.2 Residual Exception for Justice (Canada)

Canada offers another perspective with its principled exception, established in R v. Khan (1990), where the Supreme Court permitted hearsay if it was necessary such as when the speaker cannot testify and reliable based on context. This approach was refined in R v. B. (K.G.) (1993), allowing prior inconsistent statements as evidence if safeguards like video recordings ensured trustworthiness. 41This suggests the BSA could introduce a flexible exception, letting judges admit hearsay in the interest of justice when strict rules might exclude vital evidence, provided conditions like timing or corroboration are met.

5.3 Hearsay in Public Interest (United Kingdom)

Similarly, the UK’s Criminal Justice Act 2003 allows hearsay when it serves justice, as seen in R v. Horncastle (2009), where the Supreme Court accepted hearsay from a deceased witness if

it was demonstrably reliable.42 India could adopt a similar stance, permitting hearsay in rare cases like when a witness dies or is threatened while ensuring judicial oversight maintains equity.

5.4 Refining Hearsay Admissibility under the BSA

Drawing on these international examples, India can refine the BSA’s hearsay provisions to promote a more just criminal justice system. One option is to widen Section 26 to include exceptions like spontaneous or consistent prior statements, building on cases like Pakala Narain Swami v. Emperor (1939), where a dying declaration’s timing supported its use. A

39 Crawford v. Washington, 541 U.S. 36, 59 (2004).

40 Bharatiya Sakshya Adhiniyam, No. 47 of 2023, § 26 (India); cf. Fed. R. Evid. 803(2).

41 R v. Khan, [1990] 2 S.C.R. 531, ¶ 34 (Can.); R v. B. (K.G.), [1993] 1 S.C.R. 740, ¶ 45 (Can.).

42 Criminal Justice Act 2003, c. 44, § 116 (UK); R v. Horncastle, [2009] UKSC 14, ¶ 36 (UK).

formal reliability test considering context, timing, and supporting evidence could codify this approach. Another step could involve granting judge’s discretion, as in France and the UK, to admit hearsay when exclusion would harm justice, as seen in Abhishek Sharma v. State (2011), balanced by safeguards like cross-examination. Ensuring defendants’ rights, per Crawford v. Washington, would mean restricting hearsay in key incriminating situations unless the speaker is unavailable and the evidence is solid, aligning with Indian precedent like State of U. P. v. Deoman Upadhyaya (1960). Finally, adopting technology, such as blockchain for evidence verification, could modernize hearsay assessment under Section 63, reflecting civil law pragmatism and ensuring reliability in today’s digital era.

The BSA, 2023, presents India with a chance to align its hearsay rules with global standards, strengthening its criminal justice framework. Common law systems demonstrate the merits of reliability-based exceptions and judicial flexibility, as in R v. Khan and R v. Horncastle. By broadening exceptions, establishing a reliability standard, enhancing judicial authority, and using technology, India can improve hearsay admissibility under the BSA. Such changes would prevent the arbitrary exclusion of valuable evidence while protecting fairness, drawing on cases like Pakala Narain Swami and Crawford v. Washington to strike a balance between uncovering truth and delivering justice.

6. Balancing Fairness and Efficiency: Reforms in the Bharatiya Sakshya Adhiniyam, 2023

6.1 A New Era for India’s Criminal Justice System

The BSA, marks a pivotal overhaul of India’s evidence laws, replacing the outdated IEA, 1872. This legislation seeks to update the criminal justice system to meet today’s legal demands, especially those driven by technological advancements, while aiming to uphold fairness and expedite criminal trials. A key challenge for the BSA is finding the right equilibrium between protecting the rights of both the accused and victims through procedural safeguards and enabling courts to adapt to new and varied evidence types through evidentiary flexibility. The BSA tackles this through forward-looking provisions on electronic evidence, simplified court procedures, and a refined approach to traditional evidence rules, though its effectiveness relies heavily on careful execution and additional reforms.

6.2 Elevating Electronic Evidence for Efficiency and Fairness

A standout feature of the BSA is its recognition of electronic and digital records as primary

evidence, a departure from the Indian Evidence Act’s treatment of them as secondary evidence needing extensive validation. In an era dominated by digital interactions such as emails, texts, and data on devices like smartphones this change allows such evidence to be admitted with fewer obstacles, speeding up trials by cutting unnecessary authentication steps. To safeguard fairness, the BSA requires a certificate under Section 63(4)(c) to confirm the authenticity and integrity of digital records, reducing the risk of manipulation. However, the absence of clear rules for maintaining a chain of custody during investigations could jeopardize fairness if tampered evidence affects the accused’s rights.

A proposed solution, inspired by the Karnataka High Court’s 2021 recommendations, is to mandate forensic oversight in collecting and preserving electronic evidence, bolstering reliability without slowing down proceedings. 43

6.3 Balancing Confessions and Accomplice Testimony

The BSA retains provisions from its predecessor that permit the use of facts uncovered through statements made by an accused in custody, a practice valued for its ability to reveal truth but criticized for risking coercion. While this ensures courts retain flexibility to pursue leads, it raises fairness concerns over the voluntariness of custodial confessions. A potential reform requiring audio or video recordings of interrogations and judicial review of voluntariness could maintain this flexibility while protecting against abuse, supporting fair trial principles. Similarly, the BSA allows accomplice testimony with corroboration, preserving adaptability, but stricter standards for what qualifies as corroboration could prevent unfair convictions based on shaky witness accounts, enhancing justice.

6.4 Streamlining Secondary Evidence and Expert Input

To boost trial efficiency, the BSA widens the scope of secondary evidence like oral admissions and expert opinions on documents allowing courts to move forward when primary evidence is missing, a boon in complex cases where evidence might be lost. Yet, without defined criteria for evaluating secondary evidence reliability, there’s a danger of admitting flawed or biased material, threatening fairness. A judicial checklist assessing factors like source trustworthiness and consistency could ensure flexibility doesn’t undermine justice. Furthermore, by classifying examiners of electronic evidence as experts under Section 79A of the Information Technology

43 State of Karnataka v. Ravi Kumar, (2021) 3 KLJ 456, ¶ 22 (India).

Act, the BSA leverages technical know-how to save time, though requiring training and certification for these examiners would prevent inconsistent or prejudiced conclusions.44

6.5 Addressing Modern Challenges with a Focus on Fairness

The BSA’s emphasis on adapting to cybercrime and digital forensics highlights its proactive stance, ensuring courts can efficiently manage cases tied to digital trails, which are increasingly vital in trials.45 However, the lack of robust witness protection measures a key fairness component in serious cases could discourage vulnerable witnesses from testifying against influential offenders. Incorporating a comprehensive witness protection plan, as proposed in Section 398 of the Bharatiya Nagarik Suraksha Sanhita, 2023,46 into the BSA would promote truthful testimony without fear, aligning its efficiency gains with equitable outcomes.

7. Conclusion & Suggestions

The BSA, marks a significant shift in updating India’s criminal justice framework by refining the regulations surrounding hearsay evidence. Superseding the Indian Evidence Act of 1872, the BSA retains the core principle of excluding hearsay while carving out specific exceptions like dying declarations (Section 26(a)), official documents (Section 27), and electronic records (Section 63) to reflect technological progress and judicial demands. These changes improve the availability of reliable evidence, expedite trial proceedings, and tackle practical issues within a system burdened by delays and complexity.

Yet, the broader allowance for hearsay, especially electronic evidence, sparks concern over its dependability, authenticity, and the possible weakening of critical procedural protections, such as cross-examination, which are essential for upholding fairness under Article 21 of the Indian Constitution. Court rulings highlight the importance of strict evaluation to preserve evidence quality, though uneven application and insufficient infrastructure threaten consistent fairness. While the BSA boosts efficiency and flexibility, its effectiveness depends on harmonizing these advancements with the accused’s core rights and the overarching goal of justice. 44 Information Technology Act, No. 21 of 2000, § 79A (India); Bharatiya Sakshya Adhiniyam, No. 47 of 2023, §

39 (India).

45 Bharatiya Sakshya Adhiniyam, No. 47 of 2023, § 63 (India).

46 Bharatiya Nagarik Suraksha Sanhita, No. 46 of 2023, § 398 (India).

Suggestions i. Reinforce Reliability Measures: Establish a formal test for hearsay exceptions, inspired by U. S. and Canadian precedents (e. g. , Crawford v. Washington, R v. Khan), evaluating context, immediacy, and supporting evidence to ensure only credible material is accepted. ii. Improve Judicial Guidance: Develop uniform guidelines for judges handling hearsay exceptions, drawing from the UK’s Criminal Justice Act 2003, to reduce inconsistent rulings and protect equity across India’s varied judicial landscape. iii. Strengthen Digital Evidence Protections: Require forensic supervision and clear chainof-custody rules for electronic records under Section 63, paired with training for judges and specialists, to guard against manipulation and maintain trust in a digital age. iv.

Add Witness Safety Provisions: Embed strong witness protection mechanisms, as outlined in the Bharatiya Nagarik Suraksha Sanhita, 2023, into the BSA to promote dependable testimony and ensure fair trials, particularly in high-stakes cases. v. Utilize Advanced Technology: Implement cutting-edge solutions like blockchain for evidence validation, following global civil law examples (e. g. , Germany), to boost the efficiency and reliability of hearsay evidence under the BSA.