ORAL EVIDENCE

Evidence refers to a reliable and relevant collection of information that either proves
or fails to prove a particular matter. The Bhartiya Sakshya Adhiniyam, 2023 divides
the cycle of evidence into two categories: Oral and Documentary Evidence.

Sections 54 and 55 of the Bharatiya Sakshya Adhiniyam,2023(BSA) describes how

oral evidence should be dealt in a court. By understanding these sections helps to know
that the evidence presented before the court is both relevant and reliable.

What is Oral Evidence?

Oral evidence means the testimony from witnesses who describe what they have seen,
heard or perceived from their senses. Oral evidence is completely based upon personal
observations and experiences of a person.

Oral Evidence made by the witnesses means statements allowed or mandated by the
court, regarding factual matters under investigation. Sections 54 and 55 of BSA states
the provision of Oral evidence and their use in Court.

Provisions of Oral Evidence

1. Section – 54:

This section states that all facts, except the contents of documents, can be proven
through oral evidence.

2. Section – 55:

This section establishes the Principle of Best Evidence, requiring that Oral Evidence
should always be first-hand or direct. It also enforces the rule against hearsay
evidence, emphasizing that only direct oral testimony is admissible for proving
facts. This means that:

 If a fact was seen, the evidence must come from a witness who says they saw it

 If a fact was heard, the evidence must come from a witness who says they heard
it

 If a fact was perceived by any other sense or in any other manner, the evidence
must come from a witness who says they perceived it by that sense or in that
manner

 If an opinion is being given, or the grounds for that opinion, the evidence must
come from the person who holds that opinion on those grounds

Ground for Admitting Direct Evidence

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The rationale for admitting direct evidence and excluding hearsay lies in the need to
trust statements made by individuals who aren’t subject to court examination.

Hearsay, being unverified, diminishes in credibility due to the potential for

inaccuracies, misunderstandings, or incomplete perceptions in the original declaration.

Exceptions

Expert Opinions: If an opinion of an expert is important for the case but the expert is
unavailable to testify, it allows the court to consider expert opinion to be proved
through their published works or theses.

Material Things: If oral evidence concerns the existence or condition of a physical

object (other than a document evidence), the court may require the actual object to be
presented for inspection. This shows that the evidence is directly examined rather than
just described.

Examples

A witness describes an accident he saw. His testimony about the accident will be taken
as oral evidence. He must have actually seen the accident to provide valid evidence.

A witness who says he heard a conversation must have actually heard it. They cannot
make a testimony on what someone else told them about the conversation.

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DOCUMENTARY EVIDENCE

Under Bharatiya Sakshya Adhiniyam,2023(BSA) proving the contents of documents

in an accurate way is very important. Different types of evidence can be used to prove
the documentary evidence, like primary and secondary evidence. Here it is explained
the concepts of primary and secondary evidence, the rules for proving documents, and
electronic records.

What is Proof of Documents?

Proof of documents means the process in which the authenticity and contents of a
document is presented before court. This can be done by giving primary or secondary
evidence.

Sections 56 to 93 of the Bharatiya Sakshya Adhiniyam,2023(BSA) states the provision

of how document evidence should be dealt in a court.

Key Provisions of Documentary Evidence

1. Section-56: Contents of documents

2. Section-57: Primary evidence
3. Section-58: Secondary evidence
4. Section-59: Proof of Documents
5. Section-60: Admissibility of Secondary evidence
6. Section-61 to 63: Electronic Records
7. Section-64: Rules for Notice to produce
8. Section-65 to 72: Proof of Signature and Handwriting
9. Section-73: Verification of Digital Signature

1. Section-56: Contents of documents

Section 56 of the Bharatiya Sakshya Adhiniyam, 2023 states that the contents of
documents can be proved by primary or secondary evidence.

2. Section-57: Primary evidence

Section 57 of BSA defines Primary Evidence as the original documents presented

in court for inspection. This is said to be the most reliable and trusted evidence,
giving the highest certainty regarding the relevant fact.

The original document must be presented unless it is executed in counterparts,

where counterpart can serve as primary evidence.

For documents produced by processes like printing, lithography or photography,

each copy is primary evidence of the rest copies, but not of the original.

Electronic and digital records are said to be primary evidence if they are stored
properly and produced from proper custody.

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 For e.g. an original rental agreement given in court for proving a tenant’s lease is
called as Primary Evidence.

3. Section-58: Secondary evidence

Section 58 of BSA provides a comprehensive list of acceptable forms of Secondary

Evidence, such as Certified copies, Copies made by mechanical process, Copies
made from or compared with original, Counter parts of document, Oral accounts.

For e.g. A certified copy of a birth certificate is produced before the court when the
original is lost is called as Secondary Evidence.

4. Section-59: Proof of Documents

This Section states that documents must be proven by primary evidence, except in
certain cases

5. Section-60: Admissibility of Secondary evidence

This section states the admissibility of Secondary Evidence under following

conditions:

 Where the original is in possession of another party or person legally bound to

produce it.
 Where there is an admission to the existence or contents of the original.
 Original destroyed or lost
 Original not easily movable
 Public document
 Certified copy
 Original consisting of numerous accounts

6. Section-61 to 63: Electronic Records

This Sections establish precise regulations concerning the acceptance of Electronic

Evidence. Section 62 permits the use of electronic record content as evidence,
provided that the conditions given under Section 63 of BSA are met.

Electronic records are treated similar to physical documents if they meet up with
certain conditions, like being produced by a functioning computer or
communication device and properly stored.

A certificate with the electronic record is given to confirm its authenticity and how
it was produced.

For e.g. a printout of an email is given where the original email is not accessible is
called as Electronic Record.

7. Section-64: Rules for Notice to produce

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 Before giving secondary evidence, the party must give notice to the party having
the original document to produce it, unless exceptions apply.

8. Section-65 to 72: Proof of Signature and Handwriting

When a document is signed or written by someone, the signature or handwriting

of that person must be proved.

Section 72 of BSA states that the court has the authority to instruct anyone present
in the courtroom to write specific words or figures. This comparison helps the court
to evaluate the similarity between the written content and any alleged written
content by that individual. This section also applies to fingerprint impressions.

9. Section-73: Verification of Digital Signature

Digital Signature Certificate or use of public key verification is required by the court
to verify a digital signature.

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