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.
LAW OF EVIDENCE
The word ‘Evidence’ has its origin in the Latin word ‘evidence which means to show particularly, to clarify to view or sight.
Sir Blackstone, ‘Evidence’ means what illustrates, clarifies or learns the reality of current realities or focuses in the issue either on one side or the other.
As per Sir Taylor, the Law of Evidence implies through contention to demonstrate or discredit any self-evident actuality. The reality of which is submitted to legal examination.
Statutory Interpretation – [1]“Evidence” means and includes— CITATION
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.
[2]“The word evidence in connection with Law, all valid meanings, includes all except agreement which proves, disprove any fact or matter whose truthfulness is presented for Judicial Investigation. At this stage, it will be proper to keep in mind that where a party and the other party don’t get the opportunity to cross-examine his statements to ascertain the truth then in such a condition this party’s statement is not Evidence.”
We will be looking at two types of evidence in this article.
- Oral evidence.
- Documentary evidence.
1. ORAL EVIDENCE
Section 59 and 60 of the Indian Evidence Act deals with oral evidence. It has been defined under section 3 of the act as “All statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called as oral evidence.”[3]. The term oral is itself explanatory that includes anything spoken or expressed by mouth.
[4]Section 59 – Proof of facts by oral evidence. —”All facts, except the 1[contents of documents or electronic records], may be proved by oral evidence.”
This includes persons who are unable to speak also. Evidence given by them in writing or through signs, they come under the ambit of oral evidence.[5] “Section 59 of the said Act enacts that all facts, except the “contents” of documents, may be proved by oral evidence. 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.”
[6]Section 60 – “Oral evidence must be direct. —Oral evidence must, in all cases whatever, be direct.”
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. 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.
- 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.
- 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.
- 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.
- 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.
EXCEPTION TO HEARSAY EVIDENCE
[7]“I, therefore, conclude that in such matters of pedigrees of relationship, the witness need not in all cases confine his testimony to his own conduct as expressive of his own opinion and that he can retail hearsay within the admissible limits as long as it carries the prescribed guarantees of truth.”
1. [8]Section 6: Res gestate: The statement of a person may be proved through another person who appears as a witness if the statement is a part of the same transaction. For example, A is accused of the murder of B by shooting him. Whatever was said or done by A or B or the by-standers at the scene, or so shortly before or after it as to form part of the transaction, is completely relevant.
2. Admissibility: The statement in public documents such as the Acts of the Parliament, official books and registers can be proved by the production of the documents and it is not necessary to produce before the court the draftsman of the documents.
3. [9]Section33: Evidence given in the former proceedings – It is provided that evidence is given by a witness in the proceeding can be used as evidence of the truth of the facts stated in any subsequent proceeding between the same parties, provided that the witness has died or is, for some other reasons, not available.
4. Section 60: Statement of experts in treaties proviso opinions are proved by the production of such treaties if the author is dead or cannot be found or became incapable of giving evidence.
3. DOCUMENTARY EVIDENCE
Chapter 5 of the Indian Evidence Act deals with documentary evidence. Section 61 to 90A fall under this chapter whereas section 61-66 of the act gives answers to the questions that how the contents of a document are to be proved. Vox Audita Perit, Littera Scripta Manet is an Ancient roman proverb. The Which means the Spoken Word Vanishes, the Written Word Remains. The law of evidence recognizes the superior credibility of the documentary evidence as against of oral evidence.
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:
- Public Documents (section74);
- Private Documents (section 75).
[11]Section 61 of the Indian Evidence Act states that the contents of documents may be proved either:
- by primary evidence, i.e. by producing the document itself (Section 62) or
- 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.”
[13]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.
[14]“Section 61 of Evidence Act lays down that contents of any document may be proved by primary evidence and section 62 of Evidence Act provides that primary evidence means the document itself produced in court for inspection.”
[15]Section 63: Secondary evidence: means and includes:
- Certified copies.
- Copies made from the original by a mechanical process, 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.
[16]Section 65: It contains cases in which secondary evidence relating to documents may be given which ranges from clauses (a-g). Whereas section 64 says documents are to be clearly proved by primary evidence only except for the clauses mentioned in section 65.
DIFFERENCE BETWEEN ORAL EVIDENCE AND DOCUMENTARY EVIDENCE
| BASIS | ORAL EVIDENCE | DOCUMENTARY EVIDENCE |
| MEANING | It is given by the witnesses in the court orally that is by mouth. | Documentary evidence that is written evidence is submitted in the court in form of hard papers, documents. |
| DEFINITION | It is given in section 3 of the act. | It is given in section 3 of the act. |
| SCOPE | It is included in section 59 and 60. | Written evidence ranges from section 61-66 of the act. |
| FORM | It has to be given in direct form although few exceptions are there. | It is proved through primary and secondary evidences. |
| SUBMISSION | It is submitted orally, signs or by gestures. | This is submitted in writing also includes electronic form. |
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.
[1] Section 3 THE INDIAN EVIDENCE ACT, 1872.
[2] Sivrajbhan v. Harchandgir, AIR 1954 SC 564
[3] Section 3 THE INDIAN EVIDENCE ACT, 1872.
[4] Section 59, THE INDIAN EVIDENCE ACT, 1872.
[5] Bhima Tima Dhotre vs The Pioneer Chemical Co., (1968) 70 BOMLR 683
[6] Section 60, THE INDIAN EVIDENCE ACT, 1872.
[7] Amar Singh vs Chhaju Singh, AIR 1973 P H 213
[8] Section 6, THE INDIAN EVIDENCE ACT, 1872.
[9] Section 33, THE INDIAN EVIDENCE ACT, 1872.
[10] Section 3 THE INDIAN EVIDENCE ACT, 1872.
[11] Section 61, THE INDIAN EVIDENCE ACT, 1872.
[12] Afzauddin Ansari v. State of West Bengal, 1997.
[13] Section 62, THE INDIAN EVIDENCE ACT, 1872.
[14] K.K. Vijayachandran v. The Superintendent of Police,2006.
[15] Section 63, THE INDIAN EVIDENCE ACT, 1872.
[16] Section 65, THE INDIAN EVIDENCE ACT, 1872.
This article is authored by Khusboo Kharbanda, 4th Year BA.LL.B Student at Sinhgad Law College, Savitribai Phule Pune University.
