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Oral and Documentary Evidence

Evidence is a very important element in any case. A piece of strong evidence has the power to influence the case and have a huge impact on the judgement. The origins of evidence as a concept in India can be traced back to the Ancient Hindu Period. Before the enactment of codified law in India, the principles of evidence were based upon the local and traditional legal systems of different social groups residing in India at that time. The term ‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ which means ‘to show clearly, to discover, to ascertain or to prove.’ Evidence means a certain, reliable and relevant set of facts that proves or abstains from proving any matter. It includes everything that is used to determine or demonstrate the truth.

The term “evidence” in its original sense signifies a state of obviousness, that is, simple or obvious. But it applies to things that tend to provide or produce evidence. In English law, the term “evidence” refers to what the witnesses in the court said and displayed. The parts of a legal case that are undisputed or not in controversy are known as the “facts of the case.” Beyond any facts (disputed ones), a judge or jury is tasked with being a trier of such facts. Evidence and rules are used to decide questions of fact that are disputed.

In the year 1872  Indian Evidence Act was introduced by the Britishers. Sir Henry Maine is named as the founding father of this Act. The Act was a path-breaking judicial measure that changed the entire system of the Indian judiciary.

In the Indian Evidence Act, 1872 the word “evidence” is used in different phrases, i.e. best evidence, direct evidence, circumstantial evidence, documentary evidence, substantive evidence, corroborative evidence, derivative evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, real evidence, primary evidence and secondary evidence.

In a Landmark case the Hon’ble Supreme Court in Kalyan Kumar Gogoi v. Ashutosh Agnihotri and Anr. [AIR 2011 SC 760], held that the word “evidence” is used in common parlance in three different senses: (a) as equivalent to relevant, (b) as equivalent to proof, and (c) as equivalent to the material, based on which Courts conclude the existence or non-existence of disputed facts.

However, oral and documentary evidence are the two main kinds of evidence.

Oral Evidence

Evidence that is restricted to spoken words, gestures or motion is known as Oral evidence. It is evidence that has been personally heard or seen by the witness. Oral evidence must always be direct or positive which means it goes straight to establish the main fact in the issue. Section 3 of Evidence Act 1872 defines evidence as “All statements which the court permits or requires to be made before it by witnesses, about matters of fact under inquiry, such statements are called as oral evidence”. The word oral indicates something spoken or expressed by mouth; so anything which is accepted in the court about the inquiry and expressed by any witnesses who are called in the trial is called oral evidence.

The importance of Oral evidence has been explained by the Bombay High Court in one of the cases that “if the oral evidence is proved beyond reasonable doubt it can also be enough for passing conviction”.

Section 59 and Section 60 deal with Oral evidence.

Section 59 Proof of facts by oral evidence

This section enacts that all facts except that of the contents of a document can be proved as oral evidence.  In a landmark case of Bhima Tima Dhotre v. The pioneer chemical co. It was held that “Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it means that, in the ultimate analysis, all evidence must be oral and oral evidence would virtually be the only kind of evidence recognised by law. This provision would indicate that to prove the contents of a document utilizing oral evidence would be a violation of this section.”

Section 60 Oral evidence must be direct

There are 4 main principles of this section to be satisfied.

It refers to a fact that is ‘Seen’ by the witness.

This deals with the directness of oral evidence. Oral evidence can only be given by such witnesses who have seen the crime/ issue themselves.

For example, A is present at the time B was murdered by C. A will be the witness and give oral evidence.

If it refers to a fact that is ‘heard’ by a witness.

Oral evidence can only be given by such a witness who has heard the crime/ issue themselves. For example, A has heard the conversation of C over the phone to kill B. A will be the witness and give oral Evidence.

If it refers to a fact which could be perceived by any other sense or in any other manner, by a witness.

Oral evidence can only be given by such a witness who has sensed the crime/ issue themselves. For Example, A finds the behaviour of B very odd around C who is B’s wife. Later C is found dead.

If it refers to an opinion or to the grounds on which that opinion is held by the witness.

It means that if a person has an opinion on an incident, it should be solely his opinion based on some grounds then only his testimony will be considered. For Example, If A thinks C is a wicked person and responsible for the incident, then C’s personal opinion shall be considered on those grounds.

Case law of Oral Evidence

Amar Singh v.s  Chhaju Singh and another

In this case, it was held that a relationship between section 50 and 60 of the Indian Evidence Act has been established which says that for proving evidence completely, two things shall be fulfilled firstly, there shall be a presence of relevant facts and those facts have been presented directly by the person who has either seen them, heard them, etc.

State v. Rajal Anand

It was held in this case that section 60 of the Indian Evidence Act only includes the word “direct” hence it excludes hearsay evidence. Any evidence given must be direct and the hearsay evidence doesn’t have any area under oral evidence since it’s not direct. But the doctrine of Res-gestae has been observed as an exception to this rule of hearsay and has explained that any person who has experienced any series of relevant facts, this testimony by him/her after the incident even if he has not seen the crime being committed will be accepted.

Documentary evidence

 Section 3 of the Indian Evidence Act defines documentary evidence – All documents presented before the court for inspection, to demonstrate or show a reality are called documentary evidence. This definition also includes electronic records produced before the court. Chapter 5 of the Indian Evidence Act deals with documentary evidence. Section 61 to 90A falls under this chapter. Sections 61 to 73A deals with the general rules for proving documentary evidence in various cases, specifically Sections 61-66 of the Act, which gives answers to the questions that how the contents of a document are to be proved. The content of documentary evidence can be separated into three sections that are:

  • How can the subject matter of a document be demonstrated?
  • How the record is to be proved to be authentic?
  • How far and in what instance oral evidence is excluded by documentary evidence?

Sections 74 to 78 deals with public documents and Section 79 to 90-A deals with presumptions as to documents.

There is an ancient Roman proverb that is “Vox Audita Perit, Littera Scripta Manet” which means that Spoken Word will Vanish, but the Written Word Remains. Hence the law of evidence recognises the superiority and credibility of documentary evidence as against oral evidence. There are two kinds of documentary evidence:

Public Documents (Section 74)

A public document is a reproduction of an entry contained in some kind of public register, book or record relating to relevant facts or a certified copy issued by an authority. Documents such as a  birth certificate, marriage certificate, a bill of a public water utility, an FIR filed before the police station etc are some examples of public documents.

Private Documents (Section 75)

Documents like letters, agreements, emails, etc. which are exchanged between contesting parties to a litigation are private documents.

Courts generally lean in favour of accepting public documents more readily than private documents as the presumption is that the risk of tampering with public documents is far less. Additionally, public documents have genesis to some reliable source that can be traced back to for verification if necessary.

Section 61 provides that the contents in documentary evidence can be proved by

a) Primary Evidence (Section 62)

These are the “original documents” that are produced in the court for inspection. There are 2 special circumstances explained under this section:

  • When a document is executed in parts. In such cases, each part is the primary evidence of the document.
  • Where several documents are made by one uniform process such as printing, lithography or photography, each is the primary evidence for the contents of the rest.

b) Secondary Evidence (Section 63)

Section 63 of the Act provides Secondary Evidence.

Secondary evidence means and includes:

  • Certified copies.
  • Copies made from the original using a mechanical process while ensuring the accuracy of the copy.
  • Copies made from and compared with the original.
  • Oral accounts of the contents of a document given by some person who has seen it.

When the contents of a document are to be verified by oral evidence then such document becomes secondary evidence.

Meaning, Role and Functions of Public Prosecutor

With the advancement of technology there came up new devices and modes by which evidence could be collected. One of these forms was electronic recordings. But since the Act was enacted in the year 1872, these new developments were not a part of its definition for evidence. Hence after an amendment to the same, these new forms of evidence were made admissible in the court.

Section 65 A and B

Section 65 A and B provide the rules about the admissibility of Electronic records.

Section 65 A -This section merely provides that the contents of electronic records are admissible in the court of law and are to be proved following the provisions of Section 65B.

Section 65 B – This section provides the various conditions to be fulfilled for an Electronic record to become admissible.

With this amendment, electronic records became admissible as evidence in criminal cases. But their use was still not permitted in civil cases until the case of Amitabh Bagchi v. Ena Bagchi where the court allowed recording the statements of the husband through video conferencing while maintaining the usual safeguards. In this case, the court said that there was no problem with using an electronic method for recording the statements of a witness. In the case of Bodala Murali Krishna v. Bodala Prathima the court explicitly held that during recording evidence through video conferencing the usual safeguards has to be maintained.

Case law of Section 65

In a landmark case of State (NCT of Delhi) v. Navjot Sindhu the accused was convicted under various provisions of IPC and POTA. One of the main pieces of evidence produced in the court against the accused was the call records of the accused’s phone. The court, in this case, said that Cellular phone records are secondary evidence since the primary evidence will be the records maintained by the telecom servers. However, the court said that although the provision for the requirement of certification under section 65B (4) is not complied with still it would not be a bar to produce the evidence which is otherwise admissible under section 63 and 65 of the Indian Evidence Act.

This case became the precedent and due to this in many cases, certification was not done.  At last in the case of Anvar P.V. v. P.K. Basheer the court made certification compulsory stating that section 65B is a special provision and thus it has to be complied with.

Difference Between Oral And Documentary Evidence

The distinction between oral and documentary evidence can be known on the following bases:

Definition

Oral Evidence means the statements which are given by a witness before the court, this includes all statements which the Court requires, or permits, to be made before it, by witnesses concerning matters of fact under inquiry.

Documentary evidence means “when a document is produced before the court then such document is considered as documentary evidence”.

Scope

The oral evidence is discussed under section 59 and section 60 of the Indian Evidence Act.

The provisions of the documentary evidence have been discussed under section 61 to section 66 of the Indian Evidence Act.

Form

The oral evidence is required to be direct and it becomes doubtful if the statement contradicts the previous statement.

Documentary evidence requires that the contents of the documentary evidence need to be supported by primary or secondary evidence.

Submission

Oral Evidence is the statement of a witness in oral form. Oral Evidence is stated through voice, speech or symbols for its recording before the court.

Documentary Evidence is a statement submitted through the documents and is composed of words, signs, letters, figures and remarks and submitted before the court.

Importance

Documents are denominated as dead proof, this is distinguished from witnesses who are said to be living proofs. Documentary evidence is considered superior to oral evidence in aspects such as permanence, trustworthiness etc.

There are many ways of trying the genuineness of documentary evidence than there can be of oral evidence. In many cases, the existence of documentary evidence excludes the production of oral evidence.

Exclusion of Oral Evidence from Documentary evidence

In India, the “Best Evidence Rule” has been regarded as a fundamental principle on which evidence law depends, although it is not specifically mentioned anywhere it’s the basis of section 91 and 92 of the Indian Evidence Act 1872.

Section 91

The provision of S 91 states that when evidence is reduced to a document, then no evidence is required to be given for proof of those matters except the document itself. Here documents such as contract, or of a grant, or any other disposition of property, and in all cases in which any matter is required by law to be reduced to the form of a document.

There are two exceptions to these provisions:

(1) When a public officer is required by law to be appointed in writing; and any officer has acted as such, the writing need not be proved;

(2) Will admitted to probate in India may be proved by the probate.

Tulsi v. Chandrika Prasad [AIR 2006 SC 3359]

In this case, Section 91 of the Evidence Act mainly says that we should produce the original document for proving the contents of the same but it does not prohibit the parties to adduce some evidence in case the deed is capable of being construed differently for proving the way they understood.

Section 92

The provision of S 92 states that “When the terms of any such contract, grant, etc required by law to be reduced to a document have been proved accordingly as per section 91, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, to contradict, vary, adding to, or subtracting such instrument.

There are six provisos to this Section, namely:

Proviso (1): The facts which invalidate the document.

Proviso (2): Separate oral arguments.

Proviso (3): Separate oral arguments as a condition precedent.

Proviso (4): Distinct oral agreements made subsequently to renew or modify the contract.

Proviso (5): Any usage or customs by which incidents not mentioned in any contract are usually annexed to the contract.

Proviso (6): Extrinsic evidence of surrounding circumstances.

Important Caselaw

Bhawanbhai Premabhai v. Bai Vahali [AIR 1955 Bombay 320]

The Court held that Section 91 and 92 supplement each other. The judgment further went on to hold that one necessary pre-requisite for the application of Sections 91 and 92 is the presence of a contract between the two transacting parties and when this is absent, the provisions lose significance.

The evidence law of India regards the “Best Evidence Rule” as a principle guiding the Indian Evidence Act 1872. By Best Evidence Rule we mean that the secondary evidence won’t be applicable when primary evidence exists. An essential component of the evidence law is that the best proof or the best evidence ought to be given importance in all cases. Where the demonstration of proof is shown by way of a record, this record is the best evidence of the reality. Oral evidence has less value than that of documentary evidence because oral evidence requires corroboration for its acceptance.

Documentary evidence outweighs oral testimony

Shri Partap Singh v Shiv Ram

In a recent judgment, the Supreme Court held that revenue recorded entries have statutory presumption attached to them, and oral evidence, on the contrary, will not be sufficient, since witnesses may lie but documents do not.

While allowing the appeal in this case the Supreme Court held that the defendant had failed to rebut the presumption of truth based on reliable, trustworthy and cogent documentary evidence to prove the relationship of a tenant, and it would not be proper to rely on the oral evidence, as its credibility in comparison to documentary evidence is much weaker.

Conclusion

Oral evidence, with its increasing approach, can be appropriate for passing judgement if proved beyond a reasonable doubt. It is seen to be weak evidence but its need has been growing in modern times. Incidents and facts can be better understood through oral ways as the person who has administered the incident itself can explain it in a more clear way rather than the documentary form of evidence. Despite this, documentary evidence has more value and courts are bound to accept the documentary evidence more. Yet oral evidence has its consideration. It needed corroboration. In brief, it can be submitted that two types of evidence are given by the parties: oral and documentary evidence. In courts, the value of oral evidence is less than documentary evidence. Because the law always requires “Best Evidence Rule” as a principle guiding the India Evidence Act 1872.

On the other side, documentary evidence is of two types. Primary evidence is more reliable and the best evidence considered by the court. In the absence of primary evidence, secondary evidence is that which the witnesses are giving based on their own perception. Direct evidence is the best type of oral evidence since it can be proved. The person giving direct evidence is available for cross-examination for testing its veracity. But primary evidence is the best evidence in all circumstances.

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