Author: Mrudula Mohan


Introduction

The court of law requires a number of evidence and witnesses presented before to prove most of the statements and accusations. Over 1.3 million population believes what is written in papers to be true and acts accordingly. In defamation cases, publication plays a vital role. The credibility of such documents in proving the guilty is a question of fact in other cases. The court follows the following steps or procedure before reaching a decision,

  1. Filing of Suit
  2. Take on file
  3. Appearance of accused
  4. Evidence
  5. Framing of charges
  6. For trail Examination of Pw1 to IO
  7. 313 CrPC Questioning the accused
  8. Arguments on both sides
  9. Judgement

Even tribunals are required to follow the principle of natural justice through are not required to follow the CPC or CrPC procedure strictly, to ensure the justice has been delivered in fair, reasonable and just manner.

The evidence exhibited to prove the allegation do follow a hierarchical order, primary evidence holding the highest position and hearsay evidence permitted only on qualifying strict conditions. For this purpose the Indian Evidence Act, 1897 has defined and differentiated an evidence into the following categories[1]:

  1. Primary and Secondary Evidence
  2. Oral and Documentary Evidence
  3. Presumptive Evidence
  4. Original and Hearsay Evidence
  5. Direct and Circumstantial Evidence
  6. Positive and Negative Evidence
  7. Real and Personal Evidence

Whether a newspaper report can be considered as a primary or secondary evidence?

A primary source of evidence includes historical and legal documents, experimental observations, and statistical data of any surveys, fieldwork, and pieces of creative writing, audio –video and Internet communications recordings, speeches, and art object, Interviews, blogs and newsgroups where an empirical study or experiments were conducted. Hence a newspaper report can be called as primary evidence if it is an original copy,  without any further interpretations i.e., news as it is and if the author of the report has reasonable proof to show that it was not copied and he has sensed the contend by himself. A specimen of a newspaper submitted will not regard another specimen of the same newspaper as a copy of the 1st paper submitted[2].

A secondary evidence, on the other hand, is admissible by the court if the primary evidence is not available. This due to the fact that a secondary evidence describes, analyse, interpret, and comment upon the primary sources. It is because of these external sources and the misleading effects on them which make in secondary or less good source of evidence. Thus a newspaper article, journal, magazines books etc., can only be considered as secondary evidence rather than as a primary evidence. Hence according to the analysis a newspaper article is secondary but the sources are primary.

Hearsay Evidence

The term `hearsay’ is used with reference to what is done or written and also to what is spoken and in its legal sense, it means those sort of evidence which does not get its value from the credit given to the witness himself, yet which rests on the veracity and ability of some other individual[3]. It implies whatever a man is heard or whatever a man proclaims on information given by another person and is irrelevant[4]. The sayings and doings of the third party is superfluous, so no confirmation can be conceded. Whereas each act done or spoken heard by somebody who saw or heard it with his own eyes and ears has to prove the same.  Nevertheless, a court may allow hearsay evidence only in certain circumstances or exceptions as in the cases of S.6 or S.32 of the Act.

S. 6: the rule of Res gestae: which means a transaction. Every fact is a part of other fact or all the facts are related to each other in some or the other way. This section implies that the facts which are so connected with the fact in issue they form part of same transaction and are called as relevant fact. Thus every hearsay evidences which form a part of the same transaction qualifies to be admissible in the court

32 implies that a written or verbal statement for being admissible must be given on behalf of a person[5]

  1. Who is dead
  2. Who cannot be found
  3. Who has become incapable of giving evidence
  4. Whose attendance cannot be procured without unreasonable delay or expenses
    • In case of the following circumstances:
      1. Dying declaration
      2. Declaration in course of business or duty
      3. Declaration against interest
      4. Declaration as to public and general rights
      5. Declaration as to pedigree

In spite of these exceptions to make a secondary evidence or hearsay evidence to be the best evidence or to be admissible in the court it has to satisfy the following rules:

  1. The statement must be related to the act which is in the fact in issue or relevant.
  2. A declaration must be substantially contemporaneous with the fact this mere narration of past is not relevant
  3. Declaration and act may be by same person or different person which includes victim, assailant or a bystander.
  4. Admissible to explain or corroborate or understand the significance of an act, declarations of the facts from the beginning and not merely a part of it. i.e., to know the truth of matters stated.

When all other statements are being admissible why is the secondary evidence though could be vital for determining the truth being the matter given so many regulations?

The reasons why hearsay evidence is not as relevant as primary evidence are because[6]:

  1. The individual giving such evidence does not feel any responsibility so as to whatever he is saying.
  2. The truth is weakened and diminished with every repetition
  3. If allowed, it gives adequate scope for fraudulent activities by the phrase “somebody let me know this or that ” It would be like deciding the future of a person on the basis of hypothesis given by some random astrologer, false gossip flying starting with one foul lip then to another could cause more harm than anticipated.

Hence because of these reasons, hearsay evidence are not admissible in the court with getting clear and justifiable reasons so as to its credibility. Moreover, expert advice though it is hearsay evidence is admissible as given under S.45.

NEWSPAPER REPORTS offered in evidence as verification of the facts recited are out-of-court revelations and are most probably held to be unacceptable or irrelevant under the hearsay rule.’ However, in recent times, the Court of Appeals for the Fifth Circuit held that an exemption to this exclusionary behaviour only id such evidence being referred to is fundamental in nature and the conditions under which the declarations were made gives an assurance of its reliability or credibility. In United States, the Federal Business Records Act[7]permits the admission of a newspaper as it considers it as a “business record”. Apparently, this is the basis on which the trial judges would admit the newspaper.

CASE LAWS:

Dallas County v. Commercial Union Assur. Co[8],

Was the newspaper evidence properly admissible to justify the cause behind the collapsing of the construction?

In this case, a county in Alabama, following the collapse of clock tower on the Dalla County’s courthouse, sought to recover the loss through the insurance policy, though there was no injury as to any life the building sustained tremendous damages. It was proclaimed that the destruction was caused due to lighting and the insurer need not to pay the sum. In an appeal, the defendant claimed that lightning which was said to be the cause had not struck the courthouse and that the collapse was caused by the structural defect of the courthouse. In support of this statement, he submitted a newspaper article of Morning Times Selma along with state toxicologist report and residents justifications stating the same. The federal district judge admitted the document as “part of the records” overruling the objection of hearsay evidence. On Appeal the Court rejected the claim of the appellate and held that the law governing hearsay evidence is not less pellucid than the original when it comes to certifying the truth. Further, it was declared that it would apply the general principle of relevancy and materiality along with Rule 43(a) of Federal Rules of Civil Procedure to affirm the scope of admissibility of the reports.

The strongest objection to the admission of newspaper article as a piece of evidence was that it is a hearsay evidence and that it was neither a business nor any ancient record nor does it come under the exception of hearsay evidence. It was also argued that the opponent has no opportunity to cross-examine the original declarant.’ Therefore, the opponent cannot test its authenticity.” However, exceptions to the exclusionary hearsay rule have been recognized on the basis of the trustworthiness of the evidence [9]. The admission of such evidence is deemed “necessary” only when there is a death or unavailability of the primary evidence. Yet, only those hearsay evidence are admissible which put up a strong trustworthiness. For a hearsay evidence to be admissible, it must not be susceptible at susceptible circumstances and accuracy as to perception, memory and transaction is also considered. Whether a hearsay evidence should be admissible in courts or not solely depends upon the desecration of court. Thus according to English law, it can be said that admissibility or exception in hearsay rule is more of experimental rather than logical. Indeed, an analysis based on necessity and trustworthiness is preferable to justify the admissibility of evidence. The Court of Appeals in the Dallas County decision approved the admission of the newspaper in the light of the circumstances and other supporting evidence.

Cimapi v. City of Palo Alto[10]

This was a case of defamation filed against the police authorities and the government for the insults and sufferings bared by the Joseph Ciampi, plaintiff. In this case, the plaintiff was arrested related to 2008 incident and teaser gun was also used upon him. Many newspapers and channels reported the same. After which the criminal charges against him were dismissed by the court.  The plaintiff along few newspaper articles filed a suit for defamation to support the accusation on the defendant. The defendant on the other had denied the accusation of defamation on the ground that these articles lack authentication and also should be considered as a hearsay evidence. However, the same was rejected as the articles were the proof of publication of the defamation of the plaintiff and also held that in this particular case the newspaper article cannot be considered as a hearsay evidence as they are being exhibited as a proof of the publication irrespective of this the exhibit also prove that the defendants do not take any efforts in knowing the truth behind the same. For the purpose of supporting the claim the plaintiff also referred S. 401[11] and S.803which states that those piece of documents can be considered as an evidence which could be used for proving the existence of a fact that could determine the justifiability of the action.

Finally, the Court finds the articles sufficiently authenticated according to printed materials purporting to be newspapers or periodicals are self-authenticating[12]. Plaintiff submitted copies of newspapers, as well as printouts of internet publications. Generally, evidence will be admissible if “sufficient proof has been introduced so that a reasonable juror could find in favour of authenticity or identification.”[13] In considering internet print-outs, courts have considered the “distinctive characteristics” of the website for understanding the authenticity. Most of the articles submitted by Plaintiff contain sufficient indicia of authenticity, only the internet print-outs of the Daily News articles which do not contain a web address and lack other identifying characteristics, appear to be insufficiently authenticated. Hence only these 2 were held inadmissible.

[1] See, S.3 of Indian Evidence Act 1879, M. Monir 2017 11th Edition

[2]M.Monir, 10th edition

[3]http://www.legalblog.com

[4]Sir James Fitzjames Stephen

[5]M. Monir, law of evidence, 10th edition

[6]Kalyan Kumar Gogoi Vs. AshuthoshAgnihotri&Anr(2011) 2 SCC 532; AIR 2011 SC 760

[7] 1958 Amendment

[8]286 F.zd 388 (sth Cir. 596i).

[9]Wigmore theory

[10]2011 U.S. Dist. LEXIS 50245 (N.D. Cal. May 11, 2011):

[11]Federal Rule of Evidence

[12]S.902(6) FRE

[13]United States v. Tank, 2000, United States v. Black, 1985


About the Author: Mrudula is fourth-year law student at Amity Law School, Noida. 


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