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Module 5. Oral And Documentary Evidence 1

INTRODUCTION

Evidence is considered to be the backbone of the administration of justice.

Indian Evidence Act,1872 was introduced by the Britishers. The origin of the
concept of evidence can be traced back to the Ancient Hindu Period, for that
Hindu Dharma Shastra has to be referred. Before this point, the principles of
evidence were based upon the local and traditional legal systems of various
social groups residing in India.

SIR HENRY MAINE is named the Founding father of the act. This act is a path-
breaking judicial measure introduced in India which changed the entire system
of the Indian judiciary. There was a drastic change after the enactment of this
act because, before it, there was no codified rule or set up rules and regulations
for taking evidence. This act is predicated on the English law of Evidence. It is
not exhaustive in nature. The Indian Evidence Act is LEX FORI Law which suggests
the law of the place where the proceeding is being taken.

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.
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Importance of Oral Evidence
Every evidence plays an important role in the trials, oral evidence has been
growing in regards to usage; as earlier it was not considered to be as precise and
blunt as documentary but its need and importance has been constantly
subjected to rapid growth. Oral evidence is also equally important as it
stimulates a person and extracts what a person has seen or what he wants to
say in regards to the trial. Oral evidence is comparatively easier to refer. The
importance 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 – Proof of facts by Oral Evidence

All the facts and circumstances may be proved by oral evidence by expressing or
speaking except the contents of documents and electronic records. The contents
of documents and electronic records cannot be proved by oral evidence. It is
held that if any person has to be called for proving their documents then that
document becomes oral and documentary evidence loses its significance.

It was held In Bhima Tima Dhotre v. The pioneer chemical co. 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 would
mean that, in the ultimate analysis, all evidence must be oral and that oral
evidence would virtually be the only kind of evidence recognised by law. This
provision would clearly indicate that to prove the contents of a document by
means of oral evidence would be a violation of that section.”

Section 60 – Oral Evidence must be Direct

This is the cardinal principle of any evidence to be admissible in the court. If any
oral evidence needs to be admissible, all the conditions under Section 60 of the
Indian Evidence Act must be fulfilled. If anyone of the following conditions is not
fulfilled, then the evidence will fail to be pictured as an Oral Evidence. Oral
evidence and section 60 is a proportional equation. For acting out one, the other
needs to be fulfilled.

The main ingredients of the above section are ‘direct’ and ‘must’. Oral evidence
at any stage cannot be indirect, that is, hearsay. It is not second-hand evidence.
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There are four important principles of this section. Until and unless they are not
proved, the evidence would not come under the ambit of oral evidence.

1. If it refers to a fact which could be seen, it must be the

evidence of a witness who says he saw it: This clearly means
that only such evidence will be considered oral, whose testimony is
given by the person who actually saw the matter by their own eyes.
Example- If A saw that B pushed C off the terrace deliberately, only
this would tantamount to direct evidence.
2. If it refers to a fact which could be heard, it must be the
evidence of a witness who says he heard it: This refers to
evidence, in which the matter is heard by the person testifying so.
Example- If A overheard B and C’s conversation of planning to shoot
D, then A’s testimony would be considered.
3. If it refers to a fact which could be perceived by any other
sense or in any other manner, it must be the evidence of
a witness who says he perceived it by that sense or in that
manner: This means if a person perceives something by any
manner or his senses of the crime. For example, A perceives that B
is going to kill C, his wife, by noticing B’s behaviour, touch or
nervousness.
4. If it refers to an opinion or to the grounds on which that
opinion is held, it must be the evidence of the person who
holds that opinion on those grounds: It means in simpler
terms 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.

2. HEARSAY EVIDENCE

The term ‘Hearsay’ means heard of something from someone. This is an indirect
form of evidence and also a powerless one. It means some information about
the incident is passed on to someone who has not directly seen or heard of it.
This is not a direct source of information; thus, it is exempted from the category
of oral evidence as it only includes direct evidence.
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• Rationale behind the exclusion of Hearsay Evidence

From the above head now we know that Hearsay Evidence is second-hand
knowledge. But why is it excluded from oral evidence?

For oral evidence to be admissible it only accepts the rule of first-hand

knowledge. It only includes what is directly seen, heard and perceived by a
person. There is no room for second-hand knowledge. A conviction passed on
hearsay may be truly unjustified as there is no reliability as to whether the
person who has passed on the following information is credible enough or not.
For example: if A has received information through B that he saw C hitting D.
This will be hearsay because A himself has not administered the incident. For
this reason, Hearsay has been excluded from Oral Evidence.

• Statement to witnesses by persons not called

There may be some cases in which witnesses may not be called but their
testimony is accepted and not treated as hearsay. In certain cases, such
statements may be admissible. Opinions of experts which are embedded in
things which are maintained for sale like books of authors can be accepted as
oral evidence when the author of the book is dead, cannot be found, cannot
come to the court for some reason or the court thinks that calling such person
may be a delay of proceeding, so any such statements shall be admissible.

• Child Complainant’s Evidence by video-recording and television link

Oral Evidence also includes the child’s complainant evidence by video recording
and television link, so if there is any evidence which is presented through video
recording they are admissible under oral evidence as long as they are not
tampered with.

• Witnessing offence on visual display of video-recording

If there is a video which displays an offence being committed it may be

admissible if it ensures that it is not tampered by any means. This may also be
included under oral evidence.
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Section 33 as an Exception to Section 60
Section 33 of Indian Evidence Act, 1872 basically gives us a structure of
exception to section 60, it has certain exceptions against rule of hearsay which
we will see below:

1. Res-gestae( derived from a Latin word meaning something deliberately

undertaken or done)– For example, if A sees B passing by him on a bike
and after that he sees that B has been injured but A has not
administered the accident on his own, when A goes to B; B says that C
has hit him by truck, such statement though hearsay may be
admissible.
2. Admission or confession- For example, A coming out of the court tells
B his guilt of committing murder of C, though hearsay but statement
shall be accepted as evidence.
3. By any reason the person cannot come to the court if he is dead, cannot
be found, is incapable of coming to court; every such information which
has been passed to the other person and that person giving the
testimony in the court shall be held admissible.

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.
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Documentary Evidence
The provisions related to the documentary evidence are provided
under Chapter-V of the Indian Evidence Act, 1872. Section 3 of the Act defines
the term “document”. Any matter which is expressed or described on any
substance by means of letters, figures or remarks or by more than one means
and which can be used for recording the matter is considered as a “document”.

Generally, the most common document which we have to deal with is described
by letters. The documents are written in any language of communication such
as Hindi, English, Urdu etc.

The documents produced before the court as evidence are the documentary
evidence and there must primary or secondary evidence to prove the contents
of the documents. Primary evidence has been defined under section 62 of the
Indian Evidence Act and it means the original document when itself produced
before the court for the inspection.

The secondary evidence has been defined under section 63 of the Act. The
secondary evidence is the certified copy of the evidence or copy of original
documents. Secondary evidence also includes the oral accounts given by a
person about the contents of the document who has himself seen it.

As per section 3 of the Indian Evidence Act, [10]‘all documents produced for the
inspection of the court; such documents are called documentary evidence.’

Section 3 of evidence provides that documentary evidence means all documents

including electronic records produced for the inspection of the court.
Documents are of two kinds:

1. Public Documents (section74);

2. Private Documents (section 75).

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
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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: Proof of Contents of Documents

Section 61 of the Indian Evidence Act states that the contents of documents may
be proved either:

1. by primary evidence, i.e. by producing the document itself (Section

62) or
2. by secondary evidence (Section 63).
A document which is proved to be genuine and satisfies the requirements of law
should only be relied upon. [12]“A man may lie but a document will never lie.”

Section 62: Primary Evidence

Section 62: Primary evidence: means the document itself produced for the
inspection of the court. Example- A person is found to be in possession of a
number of maps, all printed at one time from one original. Any one of the maps
is primary evidence of the contents of any other but no one of them is primary
evidence of the contents of the original map.
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Importance of Primary Evidence
The Indian Evidence Act, 1872, considers primary evidence to be of utmost
importance and gives it a higher status as compared to other evidence. Section
64 of the Act mandates the presentation of primary evidence for proving the
contents of the document.

The reason behind this is that the court considers primary evidence to be more
trustworthy and reliable. However, Section 65 of the Act provides some
exemptions for presenting secondary evidence in certain restricted cases. In
cases where Section 65 does not provide an exemption, primary evidence must
be presented.

Illustration

A person is shown to have been in possession of a number of

placards, all printed at one time from one original. Any one of the placards is
primary evidence of the contents of any other, but no one of them is primary
evidence of the contents of the original.

Primary Evidence is original document which is presented to the

Court. Primary Evidence is the best Evidence in all circumstances, No notice is
required before giving primary evidence, in case of Secondary evidence notice
is required. The value of Primary evidence is highest.

Section 63: Secondary Evidence

Section 63: Secondary evidence: means and includes:

1. Certified copies.
2. Copies made from the original by a mechanical process, ensuring
the accuracy of the copy.
3. Copies made from and compared with the original.
4. Oral accounts of the contents of a document given by some person
who has seen it.

Illustrations

a) A photograph of an original is secondary evidence of its contents, though

the two have not been compared, if it is proved that the thing photographed
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was the original.

b) A copy compared with a copy of a letter made by copying machine is

secondary evidence of the contents of the letter, if it is shown that the copy
made by the copying machine was made from the original.

c) A copy transcribed from a copy, but afterwards compared with the original,
is secondary evidence, but the copy not so compared is not secondary
evidence of the original, although the copy from which it was transcribed was
compared with the original.

d) Neither an oral account of a copy compared with the original, nor an oral
account of a photo graph or machine copy of the original, is secondary
evidence of the original.

Secondary Document is the document which is not original

document. Giving Secondary Evidence is exception to the general rule. Notice
is required to be given before giving secondary evidence. The value of
Secondary evidence is not as that of Primary Evidence

Section 64: Proof of Documents by Primary Evidence

This Section outlines the best evidence rule for documentary evidence in the
Indian Evidence Act, stating that the best evidence of the contents of the
document is the original document itself. The contents of the document must
be proved by producing the original in court. Section 65 acts as an exception to
this rule.

Section 65: Cases in Which Secondary Evidence Relating to

Documents May Be Given
Before presenting secondary evidence, the conditions stated in this Section
must be fulfilled and the non-production of the original must be accounted for
in a way that brings it under one of the conditions provided. This Section is
meant to protect the rights of those who are unable to present primary evidence
due to circumstances beyond their control.
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Sec 66-Notice to Produce a Documentary Evidence in Indian Evidence
Act
Section 66 of the Indian Evidence Act requires a notice to produce when the
possession of the original document is with some other party. This notice must
be given to the person’s attorney or pleader and failure to do so restricts the
presentation of the original document. Section 164 of the Indian Evidence Act
states that if a party refuses to produce a document, they cannot produce it later
without the other party’s consent.

Documents That Need to be Attested

Sections 67 to 73A deal with the documents that need to be attested, meaning
that they must be proved genuine in court. Attestation serves as evidence or
proof for something.

Sec 68-Proof of Attested Documents

Section 68 of the Indian Evidence Act deals with the proof of documents that
require attestation. It states that such documents cannot be accepted as
evidence in the court unless they have been attested in the presence of at least
one attesting witness, as required by law.

However, there is an exception to this rule. In cases where a will has been
registered under the Indian Registration Act of 1908, the attesting witness need
not be present in court unless the executor denies executing the will or if there
is evidence of false or tampered execution.

The execution of a document involves two steps – a signature of the person and
their full consent to all the contents of the document. The term “artist” is not
defined in the Indian Evidence Act, but it is defined in the Transfer of Property
Act under Section 3 as a person who has seen the other person executing the
document.

Sec 69-When Attestor is Absent

Section 69 deals with cases where the attestor is absent. It states that in
situations where the document was executed in the United Kingdom or when a
new witness is available, it must be proved that the signature and handwriting
of the executor and the attesting witness match.
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Section 70 – Admission by Party to Attested Document
Section 70 deals with a situation where a party admits to having executed the
attested document, even if it was required to be attested following the law.
Admission under Section 70 is not the same as admission under Section 22. If a
person admits to executing a sale deed and to have signed the document but
denies the presence of any witnesses, the attesting witnesses must be called
under Section 68 to prove the bond.

Section 71 – Proof when Attesting Witness Denies or Forgets

Section 71 deals with situations where the attesting witness denies or forgets
having executed a document. In such cases, the document can be proved by
other evidence.

Section 72 – Proof of Unattested Documents

Section 72 states that even if a document is attested when it does not require
attestation, it can still be proved as unattested. To prove an attested document,
it is necessary to prove that it is attested and that the signature matches.
However, to prove an unattested document, only execution needs to be proved.

Section 73 – Proof of Signature, Writing or Seal

Section 73 states that when there is a question about proving a signature,
writing or seal of a particular person, it may be proved with the help of any
written matter, signature, writing or seal of that particular person which has
already been admitted or proved in the court to be valid. The court may also
direct a person to write certain words or figures to compare such a signature,
writing or seal under the Section. The court has discretionary power in this
matter.

Relevant Case Laws on Documentary Evidence in Indian Evidence Act

K.S. Mohan v. Sandhya Mohan AIR 1993 Mad 59
In this case, the Madras High Court held that a tape-recorded statement can be
admissible as secondary evidence if the accuracy of the recording is proved by
the maker of the record and the possibility of tampering with the record is ruled
out.

Kripa Shankar v. Gurudas AIR 1995 SC 2152

The Supreme Court of India dismissed an appeal in this case and ruled that an
ex-parte affidavit cannot be considered documentary evidence without
affording an opportunity to the other party to cross-examine the deponent.
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[Link]. Oral Evidence Documentary Evidence

When a document is produced

Oral evidence means the
before the court then such
1. statements which are given by a
document is considered as
witness before the court.
documentary evidence.

It is the statement of a witness in It is a statement submitted

2.
oral form. through the documents.

In the oral evidence are stated The documents are composed of

through voice, speech or words, signs, letters, figures and
3.
symbols for its recording before remarks and submitted before the
the court. court.

The provisions related to the

The oral evidence is discussed documentary evidence has been
4. under section 59 and section 60 discussed under section
of the Indian Evidence Act. 61 to section 66 of the Indian
Evidence Act.

The oral evidence is required to

be direct and it becomes The contents of the documentary
5. doubtful if the statement evidence need to be supported by
contradicts with the previous primary or secondary evidence.
statement.

CONCLUSION

Both oral and documentary evidence are strong sources of evidence. But the
power of each ranges from case to case and to various circumstances. Definitely,
documentary evidence, which is a form of written evidence can be considered
to be stronger and more reliable in comparison to oral evidence. But the courts
take into account both of these as sometimes documentary evidence may not
be available to prove a fact. Thus, both of these are equally important and the
interpretation of these has paved a way for a better form of justice.