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Oral & Documentary Evidence
CHAPTER-I
ORAL EVIDENCE
The facts judicially noticeable and facts admitted are need not to be proved. Oral and documentary evidence are not only media of proof. This chapter deals with the oral evidence only. It enacts two broad rules regard to oral evidence: firstly, that all facts except contents of documents may be proved by oral evidence, and secondly, that oral evidence in all cases must be direct and not hearsay. The meaning of expression “oral evidence” is given along with the definition of the term “evidence” in Section 3 of Indian evidence act as-: " Evidence " means and includes -: (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) [1][All documents including records produced for the inspection of the Court] such documents are called documentary evidence. Section 59 of the Indian evidence act reads as-: All facts, except the contents of documents, [or electronic records,] [2] may be proved by oral evidence. Principle : this section lays down that all facts may be proved by oral evidence, except the contents of a document. The section is rather loosely worded as it makes an unqualified statement as regards the exclusion of oral evidence to prove the contents of a document. The true position is that oral evidence can be led as evidence relating to documents under section 65. In general the evidence of a witness is given orally, and this means oral evidence. The expression oral evidence therefore includes the statement of witness before the court which the court either permits or requires them to make. The statement may be made by any method by which the witness is capable of making it. A witness who cannot speak may communicate of facts to the court by signs or by writings and in either case it will be regarded as oral evidence. Thus where a women was unable to speak because her throat was cut and she suggested the name
of her assailant by the signs of her hand that was held to be a verbal statement relevant as a dying declaration.[3] Where oral evidence is credible and cogent, medical evidence is to contrary is inconsequential. Only when medical evidence totally improbable oral evidence, adverse inference can be drawn.[4] Evidentiary value of the oral testimony of an eye-witness cannot be diluted by reason of non-production of any document in support of a claim contrary to the oral testimony.[5]
Difference between ‘Relevancy’ & ‘Admissibility’-: there are following three
differences between the relevancy and Admissibility -:
- The first deals with the probative value of specific facts,
- The second including artificial rules which do not profess to define probative value but yet aim at increasing or safeguarding it, and
- The third covering all those rules which rest on extrinsic policies irrespective of probative values.
EVIDENTIARY VALUE-: Oral evidence is a much less satisfactory medium of proof
than documentary proof. But justice can never be administered in the most important cases without resorting to it.[6] In all civilized systems of jurisprudence there is a presumption against perjury. The correct rule is to judge the oral evidence with reference to the conduct of the parties, and the presumptions and probabilities legitimately arising in the case.[7]Another test is to see whether the evidence is consistent with the common experience of mankind, with the usual course of nature and of human conduct, and with well-known principles of human action.
FALUS IN UNO FALUS OMNIBUS-: The maxim means false in one particular, false
in all. This principle is a somewhat dangerous maxim. There is always a fringe of embroidery to a story, however true in the main and so where the falsehood in merely an embroidery, that would not be enough to discredit the whole of the witness’s evidence; where , on the other hand the falsehood relates to a major or material point that is enough to discredit the witness.
APPRECIATION -: oral evidence should be approached with caution. The court must shift
the evidence, separate the grain from the chaff and accept what it finds to be true and reject the rest. The credibility of the witness should be decided on the following important points: (a) Whether the witness have the means of gaining correct information, (b) Whether they have any interest in concealing the truth, (c) Whether they agree in their testimony. Though a chance witness is not necessarily being a false witness, it proverbially rash to rely upon such evidence.[8] The real tests for
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. PRINCIPLE-: this section enacts the general English rule that hearsay is no evidence. It embodies the second important rule about oral evidence, viz., that it must in all cases be direct and not hearsay. The section sets out the scope of the expression ‘direct evidence’. It is true that hearsay evidence is excluded by this section. However, this is subject to well- recognized exceptions (e.g., sections 17 to 39). Stephen – “the word ‘hearsay’ is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else.” HEARSAY EVIDENCE AND ITS EXCLUSION-: the term hearsay is ambiguous and misleading as it is used in more than one scene. Stephen says “sometimes it means whatever a person is heard to say; sometimes it means whatever a person declared on information given by someone else; sometimes it is treated as nearly synonymous with irrelevant” , (Stephen’s evidence, introduction, p.4). In its more generally accepted since the term hearsay is used to indicate that evidence which does not derive its value from the credit given to the witness himself, but which rests also on the veracity and competence of some other person. It is thus used in contradiction to ‘direct evidence’. It is derivative evidence. REASONS FOR EXCLUSION OF HEARSAY -: (a) The irresponsibility of the original declerant; (b) The deprecation of truth in the process of repetition; and (c) The opportunities for fraud its admission would open; to which are sometimes added these grounds, viz., (d) The tendency of such evidence to protract legal inquires, and (e) To encourage the substitution of weaker for stronger proof. Hearsay evidence is the statement of a witness not based on his personal knowledge but on what he heard from others.[12]If the evidence is that of a fact the happening of which could be heard, for example, the noise of an explosion, the evidence must be that of a person who personally heard the happening of the fact.[13]the evidence of a reporter that after filing the F.I.R at the instance of his companion, who told by the people there, by naming the accused, that he assaulted the deceased and escaped, was held to be irrelevant, being not an eye witness account.[14]thus all the cases the evidence has to be that of a person who himself witnessed the happening of the fact
of which he gives evidence in whatever way the fact was capable of being witnessed. Such a witness is called an eye-witness or a witness of fact and the principle is known as that of direct oral evidence or of the exclusion of hearsay evidence. A post mortem report was produced by the record clerk of the hospital. The doctor who conducted the post mortem was not produced. The court ruled that in such circumstances the report was not provable. Only the original report stand not a copy of it is admissible.[15] R v. Gibson [16] The accused person was prosecuted for causing hurt by throwing a stone at prosecutor. So soon he was hit by the stone a woman who saw a man throwing the stone drew his attention towards a house and said: “ the person who threw the stone went in there .” Very soon thereafter he was caught and arrested in that house. But the above statement was held to be not relevant. The prosecutor himself had not seen any person throwing a stone at him and thereafter entering a particular house and, therefore, the statement was not hearsay.[17] EXCEPTIONS TO HEARSAY
Res Gestae [s.6]
Admissions and Confessions
Statement relevant under section.
Statements in Public Documents.
Evidence in Former Proceedings
Statements of Experts in Treatises[s.60,proviso]
CHAPTER-II DOCUMENTARY EVIDENCE MEANING- -: the expression “documentary evidence” as it is defined in section 3 , means: [18] [All documents including records produced for the inspection of the Court] such documents are called documentary evidence. The expression “document” is defined in section 3 as follows: " Document "- means any matter expressed or described upon any substance by means of letter, figures or makes, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. S.3 defines the term ‘evidence’ as meaning and including oral and documentary evidence. All evidence comes to the tribunal either as the statement of a witness or as the statement of a document, i.e., oral or documentary evidence. The present chapter deals with the documentary evidence, i.e., the mode of proof of contents of documents old documents either by primary or secondary evidence, the types of documents, viz., public and private documents of the presumptions as to the documents. Father we are going to deal with the 3 main aspects --: a) How documents are to be proved the manner of, b) What are the presumptions about the various kinds of documents, and c) When is oral evidence excluded by documentary evidence. It has been said that the word “document” as used in the law of evidence “should not be construed restrictively. Etymologically the word means something which shows or teaches and is evidential or informative in its character. Where the statement of parties containing the terms of a compromise were recorded by a court and duly signed, it was to be held to be a document.[19]with regard to recorded tape, it was said that there is “no reason in principle why the recording in recording in some permanent or semi-permanent manner of human voice(or other sounds) which are relevant to the issue to the determined, provided that it furnishes information, cannot be a document”.[20]In reception to the reception into evidence of models, maps, diagrams and photos, it is to observed
in WIGMORE [21] “that for evidentiary purposes they are nothing except so far as they have a human being’s credit to support them. Then they become media of communication as a superior substitute for words.” R.M.Malkani v. State of Maharashtra [22] The accused, which an appealed to the Supreme Court against his conviction, was the coroner of Bombay. A doctor, who was running a nursing home, operated upon a patient who afterwards died. It, being a post-operation death, becomes the subject of post-mortem and inquest. The coroner persuaded the doctor to pay him a sum of money if he wanted the report to be favorable to him. The payment was arranged to be made through another doctor and the final meeting for this purpose was to be settled by telephone call from the house of another the doctor. The police commissioner was called with the tape- recording mechanism. This was connected to the doctor’s telephone and thus the most incriminating conversation was recorded in the presence of the police officer. The Bombay High Court held that the testimony of the two doctors required corroboration and that the tape amply corroborated it. The decision was upheld by the Supreme Court. N.Sri Rama Reddy v. V.V. Giri[23] & Pratap Singh v. State of Punjab[24] The court accepted conversation of dialogue recorded on tape-recording machine as admissible evidence. S.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. The best evidence rule is to produce the original and secondary evidence is not admissible unless the original is proved to be lost, etc, as required under section 65. Contents may be proved, i.e., in other words, there are no degrees of secondary evidence. In India the rule is the same as in England. The section means that there no other method allowed by law for providing the contents of a document except by the primary or the secondary evidence. [25]Where admissions were made in a written statement by the plaintiff’s predecessors-in- interest which was filed in several judicial proceedings regarding the rights in the suit property, a certified copy of the written statement was held to be admissible in proof of the settled rights to the property.[26]Where the document carried adhesive stamps which belonged to a period prior to six months from the date of purchase, the court said that such document could not be attached in evidence. it would have been admissible if it was not creative of any rights in favour of any
3. Where a document is executed in counterparts, each counterpart in primary evidence
against the party signing it.
- Where a number of documents are all made by one uniform process, for example, by printing, lithography or photography, each is primary evidence of the contents of the document.[31] PRICIPLE --: this section defines primary evidence as the document itself produced for the inspection of the court. Primary evidence is evidence which the law requires to be given first. The general rule requiring primary evidence to be given of the litigated documents is based on the best evidence rule. An original document is the first permanent record of a transaction. It is first-hand evidence and presumptively the most reliable. Besides, documents are often interlined or altered. Therefore it is desirable to have the original to see if alterations are part of the document or are made subsequently. There is probably no rule of evidence that is better known than this that secondary evidence of the contents of written document is, in general, not relevant. “The contents of every written paper are, according to the ordinary well-established rules of evidence, to be proved by the paper itself, and by that alone, if the paper be in existence. [32] Where the writer of a letter was not examined as a witness and no opportunity was given to the opposite party to cross-examine him, the letter was held by the Supreme Court to be not reliable evidence.[33]The truth of the contents of a document can, however, is also proved by any other evidence and not necessarily by the evidence of author of the document.[34] One specimen of a newspaper of a newspaper is not a copy of another specimen of the same newspaper of the same date. They are all originals, each being primary evidence of the contents rest under Explanation 2 to section 62.[35]
SECONDARY EVIDENCE
63. Secondary evidence means and includes……. _1. Certified copies given under the provisions hereinafter contained;
- Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies;
- Copies made from or compared with the original;
- 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. The most remarkable among the types of secondary evidence by the section is the oral or parol evidence of the contents of a document. Thus, it follows the oral evidence of the contents of a document can be given. There are two conditions of a relevancy of such evidence. Firstly, party offering oral evidence must be entitled to give secondary evidence of such document. The circumstances in which secondary evidence can be given are listed in section 65 should exist so as to enable, the party to give secondary evidence of a document in question. The second condition is that the oral account of the contents of a document must be that of a person who has himself seen it. Once these conditions are satisfied, the party can give oral evidence of the contents of the document even if he has attested copy in his possession. “The rule is, that if you cannot produce the original, you may give parol evidence of its contents if indeed the party giving such parol evidence appears to have better secondary evidence in his power, which he does not produce, that is a fact to go to the jury, from which they might sometime presume that the evidence kept back would be adverse to the party without holding it. But the law makes no distinction between one class of the secondary evidence and another.”[36] The evidence embodied
in a letter was held to be not reliable when the author of the letter was not produced and the
opposite party had no opportunity of cross-examining him.[37]Even where a person against whom an item of news appears in the press has not denied it, it would not constitute evidence against him. Facts contained in the report would have to be proved.[38] Call records of cellular phones are stored in huge servers, which cannot be easily moved and produced in courts. Hence, secondary evidence of such records should be allowable under sections 63 and 65. Whatever or not the requirements of section 65b (4) are satisfied. The nature of evidence to show that there has been no improper use of a computer and that it was functioning properly would vary from case to case. It would be very rarely necessary to call an expert. In normal cases it would be possible to discharge the burden of proving proper functioning by calling a witness who is familiar with the operation of the type of computer in question.[39]
- Giving primary evidence is general rule. 3. Giving secondary evidence is exception to the general rule.
- No notice is required before giving primary evidence 4. Notice is required to be given before giving secondary evidence.
- The value of primary evidence is highest. 5. The value of secondary evidence is not as that of primary evidence.
PROOF OF DOCUMENTS BY PRIMARY EVIDENCE
S. 64 of the evidence act deals with this and it reads as -: Documents must be proved by primary evidence except in the cases hereinafter mentioned. This section embodies one of the underlying principles which is that a document must be proved by its primary evidence. The meaning of the expression “primary evidence” has been explained in sec.62. But lest technical considerations should defeat substantial justice, the following section, namely, sec 65, embodies situations which would sanctify secondary evidence. It has been held in several decisions that objections, if any, as to the mode of proving a document should be at trial stage itself. If no objections taken at the stage, subsequently at the stage of appeal, it would be too late and would not be allowed.[40]Where, however, a copy of the insurance policy and not the original document was produced before the tribunal, the other party making no objection then, an objection before the appellate court was allowed so as to exclude the evidence.[41]
CASES IN WHICH SECONDARY EVIDENCE RELATING
TO DOCUMENTS MAY BE GIVEN
S. 65 deal with these kinds of cases and reads as-: 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 , or 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 ; (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 collections. In cases (a), (c) and (d), any secondary evidence of the contents of the documents 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. Where the document is inadmissible in evidence, the acquiescence of the other party at the time of marking of the document could be no bar to raising an objection in the appellant forum for the first time. But, if the objection relates to the mode of proof it cannot be allowed to be raised for the first time at the appellate stage.[42]Circumstances for admission of secondary evidence must be made out. Without taking steps for production of original or laying foundation for secondary evidence, production of certified copies by itself was not allowable in evidence.[43]
Whereas in the cases of proof of will and Where all that the executor of a pronote said that he was very old, infirm and could not understand the nature of the document, but offered no evidence in support of his allegation, the Allahabad High Court held that this did not amount to a specific denial of execution. There was no necessarily of
calling an attesting witness.[50] Where, in the case of a “will” the only attesting witness
surviving and summoned was able to prove nothing, the will was held to be not proved. [51] Similarly, where the legal heir of the executants of a denied execution and the opposite party did not produce the attesting witness for the fear that he may not favour the, the requirements of the section were held to be not satisfied.[52]The legal requirement is complied with when one attesting witness is produced. Neither it is necessary to produce the other witness even if available, nor is there any obligation to explain why the other witness has not been produced.[53]What is to be done if no attesting witness is available? Section 69 provides the answer…….. S.69 deals with the Proof where no attesting witness found any lays down that “ If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.” If no attesting witness is available or if the document is executed in the United Kingdom, two things should be proved-: a) It should be proved that the signature of the person executing the document is in his handwriting, and b) That the signature of at least one attesting witness is in his handwriting. Where all the attesting witnesses of a will were dead the court allowed the will to be proved in the manner of any other document.[54]Where the part to an attested document has admitted that he executed the document that is sufficient proof of the execution even if the document is required by law to be attested. This is laid down in section 70****. Section 70 deal with the admission of execution by party to attested document and say that The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested. If the attesting witness denies or does not remember the execution of the document, its execution should be proved by other evidence. Where the attestor was an illiterate person and he attested by putting hi thumb impression and though it was a conveyance by his predecessor-in-interest, he was not bound by the document unless it could be shown that the document was read out to him and he understood it.[55] The Calcutta and the Allahabad high court have held that the word ‘admission’ relates only to the admission of a party in the course of the trial of a suit, and not to the attestation of a document by the admission of the
party executing it. In other words, it has no relation to any admission of execution made before an attesting witness without reference to any suit or proceeding.[56] Now the question here is that what if attesting witness denies the execution. Section 71 deals with the same and says that if the attesting witness denies or does not recollect the execution of the document its execution may be proved by other evidence. If a document not requires by the law to be attested has in fact been attested, its execution may be proved as if it were not an attested document. In a case before Madras High Court,[57] the question related to the validity of a will alleged to have been made and signed by a lady before her death. Of the attesting witnesses only one was alive and he denied having attested any such will. There were two other witnesses only one was alive and he denied having attested any such will. There were two witnesses only. One of them was the registrar who did remember the woman executrix. The other witness was able to identify the signature of her head father who was one of the attesting witnesses. In these circumstances the court held that the execution the execution of the will could not be said to have been duly proved. Section 63 of the succession act, 1925 requires a will to be attested by the two or more witnesses. A combined reading of sec.68 of the Evidence Act and S.63 of the succession Act would, therefore, suggested that at least one attesting witness should be examined and he should speak not only of the testator’s signature but also that the other the other witnesses signed the will in his presence. Where this is not done, the will cannot be said to have been proved.[58] A ‘will’ which have not been proved in accordance with the requirements of S.68 cannot be used even for some relationship or for the existence or absence of some other rights in the property.[59] Where the attesting witness of a will was not produced for the fear that he might go against the claimant’s interest, the Allahabad High Court held that it could not be said that the witness had denied knowledge so as to attract provisions of section 71.[60]The section is attracted when the attesting witness, who is available, denies attestation. Other evidence then becomes permissible. The scribe testified as to the scribing of the ‘will’ by him and attestation by two witnesses. This statement was held to be coming under S.71. A subsequent “will” executed by the testator made specific mention of the execution of “will” in question. The execution of the will by the other evidence was taken to be proved.[61] In the case of a will the burden lies upon its propounder to prove its genuineness, the deceased testator being no longer available to speak to its genuineness. Accordingly when the evidence produced by him was contradicting his claim and there was also inconsistency in the opinion of the handwriting expert, the will was held to be not proved.[62] Section 72 deals with the proof of the document not required by law to be attested. Where no attestation is necessary the section declares in simple terms that where a
Rejection by the court of the evidence of a handwriting expert on the ground that the expert had no qualifications was held to be not proper. Once becomes an expert in this field by training, experience and constant observation and not by any formal qualification. It is not a developed science and there are no regular courses of study. The expert here was retired personnel from forensic science laboratory. The circumstantial evidence supported the expert opinion was also based upon cogent reasons.[72] CHAPTER- IV PUBLIC & PRIVATE DOCUMENTS S.74 deals with the public documents which reads as -: The following documents are Public documents-
1. Documents forming the acts or records of the acts a) Of the sovereign authority, b) Of Official bodies and Tribunals, and c) Of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country.
2. Public records kept in any State of private documents.
Two kinds of public documents:
1. Documents forming the acts or records of the act of the sovereign authority,
namely, the parliament and the legislative assemblies, or of the official bodies
and tribunals, and of public officers, legislative, judicial and executive, of any
pert of India or of the commonwealth, or of a foreign country, are public
documents.[73]
2. Private documents which are registered in the public offices also become
public documents.
A private document, such as, for example, an application for a
licence , which is filed in government office and is produced there from does
not become a public document so as to dispense with the necessity of proof by
primary evidence.[74] A post-mortem report is not public document so as to
amount to proof of identity of the deed without producing the doctor in
evidence.[75]
A private waqf deed which is recorded in the office of the sub-registrar is a public document.[76] This should be compared with a decision of the Gauhati high court where it was held that a private sale deed registered under the Indian Registration Act is not a public document and, therefore, a certified copy is not admissible in evidence under S. 77 of the evidence act. Explaining the meaning of public records the court said-: “Public records are those records which a government unit is required by law to keep or which it is necessary to keep in discharge of duties imposed by law.”[77] The court overruled its own earlier decision[78]and followed the Privy Council decision in Gopal Das v. Thakurji , [79]where their Lordships held that the d original receipt executed by any individual and registered under the Indian Registration Act is not “a public record of public document”, within the meaning of S.74(2) As the original gas to be returned to the party under S.61(2) Of the Registration Act. Entries made by a police officer in the site inspection map and site memo have been held to be public document. [80] A record of consideration of employees for promotion purposes was submitted before the Supreme Court by a public sector undertaking. The record was 13-19 years old. It was held that the record was sufficiently old to rule out the objection that it was a manufactured one and not the original.[81] An order sanctioning prosecution of an officer has been held to be a public document.[82] Section 75 of the Act deals with the Private Documents and lay down that all other documents are private
