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Oral and Documentary Evidence

Oral Evidence

There are two methods of proving a fact; one is by producing witnesses of fact (oral evidence), and the other, by producing a document, which records the fact, in question (documentary evidence).

Section 59 and 60 of the India Evidence Act mainly deals with oral evidence other than that there are many sections in the act that also deals with oral evidence such as Section 22 and 22-A deals with oral admissions and Chapter 6 of the Indian evidence act which deals with the exclusion of oral by documentary evidence.

Proof of facts by oral evidence

Section 59 of the Indian Evidence Act, 1872 speaks about, “Proof of facts by oral evidence”. Section 59 says that all facts except contents of documents and electronic documents may be proved by oral evidence. For producing evidence on contents of documents and electronic records proof must be according to Chapter 5 of The Indian Evidence Act, 1872.

All statements, which the court permits or requires to be made before it by witnesses in relation to the matters of fact under inquiry, are called ‘oral evidence’. In general, the evidence of witnesses is given orally, and this means oral evidence. A witness who cannot speak may communicate his knowledge of the facts by signs or by writing and in either case it will be regarded as oral evidence.

Oral evidence must be direct

Section 60 of the Indian Evidence Act, 1872 speaks about, “Proof of facts by oral evidence”. According to Section 60 of the evidence act oral evidence should be direct. This means that a witness can tell the court of only a fact of which he has the first hand knowledge (eye-witness) in the sense that he perceived the fact by any of the five senses. If the statement was not made in his presence or hearing and he subsequently came to know of it through some other source, he cannot appear as a witness, for his knowledge is a derived knowledge and is nothing but a “hearsay evidence” which is considered not relevant.

This section gives the conditions in which oral evidence can be given. Section 60 refers to 4 cases in which oral evidence is given they are seeing, hearing, perceiving, and forming an opinion. The section says that for oral evidence to be valid in these cases the evidence has to be given by the persons themselves who sees, hears, perceives or forms the opinion in question.

The first provision to Section 60 is that the opinions of experts published in books out for sale can be proved by producing the book in the court if the author is unavailable or unable to give evidence himself or if it will be too expensive or it will delay the case too much to call the author as witness for the case.

The second proviso to Section 60 of the evidence act says that if while giving oral evidence a party refers to some material other than a document then the court can inspect and examine the material.

If there is a concerned document then it has to be proved according to the rules given in Chapter 5 of the Indian Evidence Act, 1872.

Hearsay Evidence

The word ‘hearsay’ mean whatever a person is heard to say (rumour or gossip) or whatever a person declares on information given by someone else, or it may be synonymous with irrelevant A statement, oral or written, by a person not called as a witness (or statements made out of court) comes under the general rule of hearsay. Sec. 60 of Evidence Act is directed against avoiding or excluding hearsay evidence.

The test to distinguish between direct evidence and hearsay evidence is: It is direct evidence if the court, to act upon it, has to rely only upon the witness, whereas it is hearsay if it has to rely not only upon the witness, but some other person also. Thus, if X is charged with Y’s murder, and if Z, in his evidence, states that “I saw X stabbing Y with a knife”, it would a direct evidence. Instances of hearsay evidence would be the evidence of A that “Z told me that he had seen X stabbing Y” or that “Z wrote a letter to me stating that he had seen X stabbing Y” or that “I read in the newspaper that X had murdered Y”.

It may be noted that hearsay evidence is not admissible even if not objected to, or even if consented to. The court has no discretion in this matter, except in certain exceptional cases. The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination. It is second-hand evidence; the person giving such evidence does not have any sense of responsibility.

Exception of Hearsay Rule

The courts have modified the rigid rule as to direct evidence by a number of exceptions;

  1. Res gestae (Section 6) — A statement made by a person who is not a witness becomes relevant and admissible if the statement is part of the transaction in question.
  2. Admissions and confessions (Section 17-31) - An admission of liability or confession of guilt which takes place outside the court through the testimony of a witness to whom the admission or the confession was made. Such a witness is not a witness of fact.
  3. Statements relevant under Section 32 — These are mostly the statements of deceased person (dying declarations) or persons who are not available as witnesses.
  4. Entries in books of account kept in the course of business (Section 34); Entries in public registers (Section 35).
  5. Statements of experts in treatises — See first proviso to Section 60.
  6. Sometimes, a slanderous statement made by a third person and heard by the witness will be relevant, not regarding the truth of the contents of the statements, but regarding the fact of the statement being made.

Documentary Evidence

Documentary evidence means all documents produced for the inspection of the court. Documents are denominated as “dead proof”, as distinguished from witnesses who are said to be “living proofs”. Documentary evidence is superior to oral evidence in permanence, and in many respects, in trustworthiness. Documentary evidence is dealt in Section 61 to 90-A of the Indian Evidence Act, 1872. Section 61 to 73A deals with the general rules for proving documentary evidence in various cases, Section 74 to 78 deals with public documents and Sections 79 to 90-A deals with presumptions as to documents. Documents are referred to any kind of writing or digital record etc. that is permanent.

Proof of contents of documents

Section 61 of the Indian Evidence Act, 1872 speaks about, “Proof of contents of documents”. Section 61 gives the answer to the question that how the contents of the document may be proved. This section says that the contents of a document may be proved either by primary evidence (Section 62) or by secondary evidence (Section 63).

Primary Evidence

Section 62 of the Indian Evidence Act, 1872, defines the term “Primary evidence”. Primary evidence is the best or highest evidence, or in other words, it is the kind of proof which, in the eyes of the law, affords the greatest certainty of the fact in question. Primary evidence of a transaction, evidenced by writing, is the original document itself, which should be produced in original to prove the terms of the contract, if it exists and is obtainable. Section 64 says that documents must be proved by its primary evidence only. However, there are certain exceptions given in Section 65 when documents can be proved by secondary evidence also.

Primary evidence is the original document that is produced in the court for its inspection. Explanations to Section 62 mention some special circumstances which are:

  1. When a document is executed in parts. In such cases, each part is the primary evidence of the document.
    If the document is executed in counterparts and each counterpart is executed by one or some of the parties then each counterpart is the primary evidence against the parties executing it. The difference between the documents being executed in parts means that all parties will sign each part and the meaning of the document being executed in counter-part means that each part of the document is signed by one or more individual but not all of them.
    Let’s take an example to see the difference between a document been executed in parts and a document is executed in counterparts is that, let’s assume that a document is executed in two parts between two parties than in the case of a “document being executed in parts” it means that both the parties sign both the parts of the documents and in case of document being executed in counterparts, it means that each part is signed by one party.
  2. The second explanation says that 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.
    While in cases where several documents are made in one single process from an original then they are regarded as the primary evidence for the rest of the copies but not of the original document. For example, if several placards are made by copying from a single original placard then one of those copied placards is said to be the primary evidence for the contents of the rest of the copied placard but not for the original placard from which it was copied.

Secondary Evidence

Section 63 of the Indian Evidence Act, 1872, defines the term “Secondary evidence”. This section deals with secondary evidence. It talks about 5 different things that accepted as secondary evidence. They are:

  1. Certified copy of documents.
  2. Copies made by the original through a mechanical process. Here the mechanical process is important because it ensures the copies to be free from any kind of tampering or error to some extent. Earlier when the printing machine or the xerox machine was not invented then the copies used to be made by the court clerk manually, which led to a lot of errors and tampering. To avoid those issues and to ensure the accuracy of the copies mechanical process is included in this section. Generally speaking, “copy of a copy” is not admissible as secondary evidence but the copies prepared by a mechanical process and copies of a copy compared with the original are secondary evidence.
  3. Copies made from or compared with the original.
  4. Counter parts of the documents as against the parties who did not execute them. Similar, as in Section 62 when a document is executed in counterpart then each counterpart becomes the primary evidence against the persons executing them. In this section it is said that for those people who did not execute a counter-part of a document, that counter-part will become secondary evidence for him. Thus, a “patta” will be a secondary document against the lessee (tenant), as he did not execute it; and “qabuliat” will be a secondary document against die landlord, as he did not execute it.
  5. Oral accounts of the contents of a document given by some person who has himself seen it (i.e. read the document).

When Secondary Evidence may be given

Section 65 of the Indian Evidence Act, 1872 speaks about, “Cases in which secondary evidence relating to documents may be given”. Section 65 gives us 7 conditions in which a document can be proved by secondary evidence. They are:

  1. When the original document or the primary evidence is not in the possession of the person who has to prove it. In this case, any secondary evidence of the contents of the document is admissible.
  2. When the existence, condition and contents of the original have been proved to be admitted by the party against whom the document is supposed to be proved then the written admission is admissible.
  3. When the original has been destroyed or lost or for some reason except for reasons of the party’s own default or neglect, cannot do it in a reasonable time. In this case too any secondary evidence of the contents of the document is admissible.
  4. When by the virtue of nature of the original document it cannot be easily movable then any secondary evidence of the contents of the document is admissible.
  5. When the original is a public document within the meaning of Section 74 then a certified copy of the document, but no other kind of secondary evidence, is admissible.
  6. When the certified copy of the original document is permitted to be produced as evidence by this act or any other law present in India then a certified copy of the document, but no other kind of secondary evidence, is admissible.
  7. When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection then, evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

No Application to Produce Secondary Evidence

Dhanpat v. Sheo Ram (Deceased) through L.R., Appeal No.1960/2020

On 19th March 2020, Hon’ble Supreme Court held that there is no need to file an application seeking permission to produce secondary evidence. The secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.

The case was a civil appeal, in which the validity of a Will was under dispute. In a partition suit, the defendants had produced a Will, to deny the claim of the plaintiffs for share in the ancestral property. The certified copy of the registered Will was produced during the trial, on the ground that the original was lost.

On the challenge raised by the appellants in the Supreme Court regarding the production of secondary evidence, the bench a bench comprising Justices L Nageswara Rao and Hemant Gupta observed that-

There is no cross-examination of any of the witnesses of the defendants in respect of loss of original Will. Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. The plaintiff had admitted the execution of the Will though it was alleged to be the result of fraud and misrepresentation. The execution of the Will was not disputed by the plaintiff but only proof of the Will was the subject matter in the suit. Therefore, once the evidence of the defendants is that the original Will was lost and the certified copy is produced, the defendants have made out sufficient ground for leading of secondary evidence. There is no requirement that an application is required to be filed in terms of Section 65© of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.”

Rules as to Notice to Produce

Section 66 of the Indian Evidence Act, 1872 speaks about, “Rules as to notice to produce”. This section says that a notice (to produce a document) must be given before secondary evidence can be received under Section 65 (a). The notice is to be given to the party who has possession of the original document, or to his attorney or pleader. Notice should be given in a manner as is prescribed by law, and if there is no law on die point, such notice should be given as the court considers reasonable under the circumstances of the case.

Provided that such notice shall not be required in the following cases, or in any other case in which the court thinks fit to dispense with it:

  1. When the document to be proved is itself a notice.
  2. When, from die nature of the case, the adverse party (i.e. party in possession of document) must know that he will be required to produce it.
  3. When it appears or is proved that the adverse party has obtained possession of the original by fraud or force.
  4. When the adverse party or his agent already has the original in court.
  5. When the adverse party or his agent has admitted that the original has been lost.
  6. When the person in possession of the document is out of reach of, or not subject to, the process of the court (viz. a foreign ambassador).

A question arises: when the opposite party fails to produce the original when demanded and the court has accordingly admitted secondary evidence, can the party in possession subsequently produce the original of his own choice, 'the answer is “No”. Section 164 clearly lays down that “where a party has required to another to produce a document and he has refused to do so, he can’t afterwards use the document as evidence unless he obtains the other party’s consent or the court’s order”.

The requirement of notice under Section 66 is to be strictly complied with. The other party cannot be restrained from producing the original where the notice to produce has not been given, nor can secondary evidence be given in such case.

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  • Adv. Abhishek Gupta (Natraj Legal Solutions)
  • Delhi High Court
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