Unit III - Oral and Documentry Evidence.pptx

Law of Evidence

1. Oral and Documentary Evidence Oral Evidence – Introduction : The word “evidence” is used in the Indian Evidence Act, 1872 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 The Hon’ble Supreme Court in Kalyan Kumar Gogoi v. Ashutosh Agnihotri and Anr . [AIR 2011 SC 760], has held that “The word “evidence” is used in common parlance in three different senses: as equivalent to relevant, as equivalent to proof, and as equivalent to the material, on the basis of which Courts come to a conclusion about the existence or non-existence of disputed facts

2. Oral Evidence: Section 59 – Proof of facts by oral evidence. —All facts, except the contents of documents or electronic records, may be proved 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.” According to the Indian Evidence Act (Sec. 3) ‘Evidence’ means and includes all statements made before the courts by witnesses, and all documents including electronic records produced in the Court. The ‘ Best Evidence Rule ’ is laid down, in-particular, in Sec. 60 and 61 of the Evidence Act (oral evidence must be direct; and contents of documents are to be proved either by primary or by secondary evidence).

3. Section 60 – Oral evidence must be direct. —Oral evidence must, in all cases whatever, be direct; that is to say –– if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; 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; 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: Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

4. Case Law Of Oral Evidence Amar Singh v. 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.

5.  Oral evidence Documentary evidence Oral evidence means and includes all statements which are made by a witness in the court. Documentary evidence means producing a document before the court of law and inspection is done by the court in order to know the facts. It is a statement by a witness. It is a statement of documents. In oral evidence, the witness tells about the facts by speaking or with gestures. In documentary evidence, the facts are told and it is recorded in writing. Oral evidence is provided under Section 59 and 60 of Indian Evidence Act, 1872. Documentary evidence is provided under Section 61 to 66 of the Indian Evidence Act. If committed a crime - at the movement whatever heard, sees, perceive, or forms an opinion all this is considered as oral evidence. For example- a photocopy of a document or photograph.

6. EXCLUSION OF ORAL EVIDENCE FROM DOCUMENTARY EVIDENCE: Section 91 of Indian Evidence Act: When the terms of a contract, grant or any other property disposal are reduced to the form of documents, and in all cases, the law requires the reduction of anything except the document itself or in the case of secondary evidence In addition to the secondary evidence, for any form of contract, gift or other property or the provisions of such matters, no evidence shall be provided as evidence in the form of this document is acceptable according to the provisions contained above. Exception 1.- When the law requires the appointment of a public official in writing and shows that any particular person has already served as the public official, there is no need to prove the appointment in writing. Exception 2- Wills admitted to probate in India] may be proved by the probate.

7. EXCLUSION OF ORAL EVIDENCE FROM DOCUMENTARY EVIDENCE: Section 92 of the Indian Evidence Act: when any such contract, gift or other property clause is proved according to the last section, or any matter required by law to be simplified in the form of a document, The parties or their interested representatives shall accept any verbal agreement or statement of evidence in order to check conflict with the terms of the term, increase or decrease: This section excludes any evidence of oral agreement or statement, when the contract, the terms of granting or disposing of property, or any matter required by law in writing has been proved in accordance with the provisions of Section 91 to conflict with, change, When supplementing, it may be subtracted from its terms. The principle stipulates that when the terms of any such document have been proved by the primary or secondary evidence of the document, no oral agreement or statement of evidence shall be accepted.

8. Exceptions of Exclusion of evidence of oral agreement. Validity of document Matters on which document is silent (When document can't prove much) Separate oral agreement as condition precedent (Condition Precedent) Recession or modification Usages or customs Relation of language to facts Documentary Evidence Section 61 – Proof of contents of documents- -: The contents of document may be proved either by primary or secondary evidence. (Law of best evidence requires the best evidence must be given in proof of the facts in issue or the other relevant facts. Primary evidence is the best evidence.)

9. 62. Primary evidence. –– Primary evidence means the document itself produced for the inspection of the Court. Explanation 1. ––Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2. –– Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original. 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.

10. 63. Secondary evidence. –– Secondary evidence means and includes –– (1) certified copies given under the provisions hereinafter contained; (2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a document given by some person who has himself 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 was the original. (b) A copy compared with a copy of a letter made by a 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 photograph or machine-copy of the original, is secondary evidence of the original.

11. 64. Proof of documents by primary evidence. –– Documents must be proved by primary evidence except in the cases hereinafter mentioned. 65. Cases in which secondary evidence relating to documents may be given.–– Secondary evidence may be given of the existence, condition or contents of a document in the following cases: –– (a) when the original is shown or appears to be in the possession or power –– of the person against whom the document is sought to be proved, of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74;

12. (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; (g) 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. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), 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. 65A. Special provisions as to evidence relating to electronic record. –– The contents of electronic records may be proved in accordance with the provisions of section 65B.

13. 66. Rules as to notice to produce.— Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of 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 the nature of the case, the adverse party 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 has the original in Court; (5) when the adverse party or his agent has admitted the loss of the document; (6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

14. Primary evidence  Secondary evidence  It is defined under Section 62 of the Indian Evidence Act.  It is defined under Section 63 of the Indian Evidence Act.  It consists of the original document that is presented in the court for inspection.  It consists of documents other than the original like the copy or others, as enlisted in Section 63.  It is considered the best form of evidence.  It is not the best form of evidence and is usually presented in exceptional circumstances such as, the absence of primary evidence. Presenting primary evidence is the general rule to prove a particular fact.  Presenting secondary evidence is the exception to the general rule.  No notice is required to be served before the presentation of primary evidence. A notice must be served before presenting secondary evidence.  It is the main source of evidence. It is the alternate source of evidence. 

15. Key differences between Primary Evidence and Secondary Evidence Primary evidence is original and firsthand, while secondary evidence is derived from primary sources. Primary evidence is typically more reliable than secondary evidence. Primary evidence is often used in legal proceedings, while secondary evidence may be used to supplement or support primary evidence. Examples of primary evidence include eyewitness testimony, original documents, and physical objects, while examples of secondary evidence include books, articles, and hearsay. Primary evidence is usually collected at the time of an event or shortly thereafter, while secondary evidence may be collected much later. Primary evidence is usually collected by the person or organization directly involved in an event, while secondary evidence is often collected by a third party. The authenticity of primary evidence can usually be verified, while the authenticity of secondary evidence may be more difficult to determine. The chain of custody is usually more easily traced for primary evidence than for secondary evidence. The weight of primary evidence is generally greater than that of secondary evidence.

16. Judicial Pronouncements on Primary and Secondary Evidence Over the years, various judicial pronouncements have provided clarity on the significance of primary evidence and the admissibility of secondary evidence in its absence. In the case of J. Yashoda v. Smt. K. Shobha Rani (2007), the Hon’ble Supreme Court held that secondary evidence can only be admitted when primary evidence is unavailable. If the party fails to establish the validity of the original document, they cannot introduce secondary evidence regarding its contents. Similarly, in H. Siddiqui (dead) by LRs Vs. A. Ramalingam (2011), the Apex Court reiterated that without providing a rational reason and factual foundation for the non-production of the originals, the court cannot allow the introduction of secondary evidence. In Rakesh Mohindra v. Anita Beri and Ors . (2016), the Supreme Court stated that before presenting secondary evidence, it is necessary to establish the plausible reason for the non-production of primary evidence. Secondary evidence can only be accepted if it is proven that the original documents are lost, destroyed or deliberately withheld by the opposing party. Furthermore, in Chandra v. M. Thangamuthu (2010), the Hon’ble Apex Court emphasised that the secondary evidence must be authenticated by foundational evidence, proving that the alleged copy is a true replica of the original .