CONTENTS

1 Introduction 1

2 Importance of Oral Evidence 2

3 Section 59-Proof of Oral Evidence 2

4 Section 60-Oral Evidence must be Direct 3

4.1 Meaning of HEARSAY Evidence 5

4.2 Rationale behind the exclusion of Hearsay Evidence 5

4.3 Statement to witnesses by persons not called 6

4.4 Child Complainant’s Evidence by video-recording and 6

television link

4.5 Witnessing offence on visual display of video-recording 7

5 Section 33 as an Exception to Section 60 7

6 Difference Between Oral and Documentary Evidence 8

7 Case Laws on Oral Evidence 9

7.1 State v. Rajal Anand 9

7.2 Amar Singh v. Chhaju Singh And Anr. 9

7.3 Bhima Tima Dhotre v. The Pioneer Chemical Co. 10

8 Documentary Evidence 10

9 Primary and Secondary Evidence { 62 – 66 } 13

10 Conclusion 17

11 References 18

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Introduction

All of us know what importance evidence holds under any court proceedings.

Evidence is a certain reliable and relevant set of facts which proves or abstains

from proving any matter; there is a prescribed manner on which the cycle of

evidence works which has been divided into two main heads- Oral and

Documentary evidence by the Evidence Act 1872. In this article we will be dealing

with oral evidence, how is it made and everything which will make us understand

Oral Evidence.

Oral Evidence is dealt with under Section 59 and 60 of the Evidence Act, 1872.

Oral evidence is defined under section 3 (under evidence head) which explains

that “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.” The word ‘Oral’ itself describes its meaning as something

spoken or expressed by mouth; so anything which is accepted in the court in

relation to the inquiry and expressed by any witnesses who are called in the trial

is termed as oral evidence. Oral Evidence also includes the statements made by

people in signs and writing forms (inclusive of people who cannot speak).

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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

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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 base principle on which section 60 is placed is that the evidence which is

taken into regards must be direct. The word direct does not include any category

of hearsay as its main element is vested in the word “must”. Every statement

under oral evidence must be direct. Now let’s focus on some conditions which

need to be fulfilled to make oral evidence admissible;

● Direct oral evidence

Oral Evidence must be direct in all cases. Indirect ways or hearsay is not

considered a part of direct oral evidence. The word “Direct” in all matters must

mean that it is administered by any person on their own i.e through their personal

knowledge and is not passed by any other person (hearsay) which on the other

hand will be inadmissible. This involves certain cases in which the word “direct”

is involved: -

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 1. It refers to a fact which could be seen, it must be the evidence of a

witness who says he saw it –

It refers to evidence which has been given by the person who has actually seen

or observed the matter by their own eyes, This will be actuated as direct

evidence.For example: if A saw that B is hitting C. A will be an eyewitness to the

crime scene and his testimony will be that of direct evidence.

2. It refers to a fact which could be heard, it must be the evidence of a

witness who says he heard it –

It refers to evidence which has been given by the person who was present and

has actually heard the matter by themselves, this will come under direct evidence.

For example: if A overheard B’s conversation that stated; that he is going to kill

C tomorrow under the bridge, A’s testimony will be that of direct evidence.

3. It refers to a fact which could be perceived by any other senses or any

other manner, it must be the evidence of person who says he

perceived it by that sense or manner –

Meaning such evidence that has been given by the person who has perceived it

in any other manner or by any other senses but it has been perceived by that

person itself. For example: through sense of smell or taste.

4. If it refers to an opinion or to grounds on which that opinion is held, it

must be the evidence of the person who holds that opinion on those

grounds –

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It means when a person holds any opinion on any matter or incident, only his

testimony on the ground of which his opinion is formed will be admissible in the

court. For example A thinks that B is not a good guy, so his testimony of that

opinion will be termed under direct evidence.

● Meaning of Hearsay Evidence

All of us are aware of what hearsay is; hearsay is any information which is

received by any person from any other source. Hearsay means when a person

does not have a personal knowledge about a particular matter or incident and he

has been informed about that particular matter by any other person.

As oral evidence includes first-hand knowledge thus, Hearsay evidence is

excluded under the ambit of oral evidence because hearsay is not directly

obtained evidence.

● 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

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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.

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 ● 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.

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.

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Difference Between Oral and Documentary
Evidence
BASIS ORAL EVIDENCE DOCUMENTARY EVIDENCE

Oral evidence is the Documentary evidence, on the other

1. M
evidence given by hand, is the evidence which is
e
witnesses who are called in submitted in the court in written
a
the court in regards to the form including documents, papers
n
trial orally. etc.
i

2. Legally Oral evidence is mentioned Documentary evidence is dealt from

defined under section 59 and 60 of section 61 to 66 of the Indian

the Indian Evidence Act. Evidence Act.

3. Types Oral evidence should be Documentary evidence has direct

given direct form. documents and secondary

documents.

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 4. Forms Oral evidence can be given Documentary evidence must be

of through speaking, signs or given in writing.

submissio gestures

Case Laws on Oral Evidence

● State v. Rajal Anand

It was held under this case that section 60 of the Indian Evidence Act only includes

the word “direct” and excludes hearsay. Any evidence given must be direct and

the hearsay evidence does not hold any area under oral evidence as it is not

direct. But the doctrine of Res-gestae has been observed as an exception to the

rule of hearsay which explained that any person who has experienced any series

of relevant facts, his testimony after the incident even if he has not seen the

crime being committed will be accepted.

● Amar Singh v. Chhaju Singh And Anr.

A relationship between section 50 and 60 of Indian Evidence Act has been

established which says that for proving an evidence completely, two things shall

be fulfilled firstly, there shall be a presence of relevant facts and those facts have

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been presented directly by the person who has either seen them, heard them or

etc.

● Bhima Tima Dhotre v. The Pioneer Chemical

Co.

In this case, it was held that any fact can be proved by oral evidence instead of

the content of documents or electronic records. It is seen that if the person who

has presented the documentary record is called to prove the records,

documentary evidence loses all its significance and it will become oral evidence

which will be meaningless.

DOCUMENTARY EVIDENCE

MEANING--: the expression “documentary evidence” as it is defined in section 3,

means:

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.

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 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
“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.”

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R.M.Malkani v. State of Maharashtra
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 & Pratap Singh

v. State of Punjab
The
court accepted conversation of dialogue recorded on tape-recording
machine as admissible evidence.

Bhima Tima Dhotre vs The Pioneer

Chemical Co. on 23 June, 1967
After Mr. Poonawalla had examined all his
witnesses but before he closed his case, Mr. Poonawalla applied that the
post-card dated August 22, 1958, which had been marked X for identification,
be admitted in evidence as an exhibit, as the same has been duly proved by
the Evidence of plaintiff No. 2 who has deposed to its handwriting as well as
signature. In support of that application, Mr. Poonawalla has not relied upon
any authority, but has advanced the simple contention that once a document
is proved it must be admitted in evidence, and that once it is admitted in

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evidence he is entitled to rely on its contents. As the question is, however, of
considerable importance and occurs very frequently in the course of trials in
Courts, I am bound to consider all the authorities on the same.

There can be no doubt that a statement contained in a document

may also be hearsay evidence, as when the writer says in a letter, "X told
me that Y had died". Such a statement not being within the knowledge of the
writer himself and being based on what he heard from somebody else, would
be written hearsay. The contents of a document, duly proved, are received
in evidence as statements made by the writer. What somebody else told the
writer does not, however, become his statement merely because he
reproduces it in the document and cannot be said to be the "contents" of the
document in which his statements are recorded. The passage from Halsbury,
3rd edn., Vol. 15, para. 533 at p. 294, cited in the Division Bench judgment
in the case of In the matter of Mr. D. and Mr. S., if properly construed, in my
opinion, lays down nothing more than that proposition, In fact, it states that
the contents of counsel's opinion would be admissible for the purpose of
proving what the opinion was, but would not be admissible to prove the truth
of any statement of fact made by counsel in his opinion, which would be a
matter which he has only heard from somebody else. Statements in a
document are admissible to the same extent to which they would be
admissible if the writer had made those statements from the witness-box-no
less and no more. Legal propositions, such as that proof of a document does
not amount to proof of "the truth" or "the correctness" of its contents, or that
proof of a document is no "guarantee of the truth or correctness" of its
contents, are, in my opinion, entirely out of place in regard to the question of
admissibility of documentary evidence. The question that arises at that stage
is only this: "On execution being proved, can the document be used for the
purpose of proving its contents?" The answer must be: "Yes, to the same
extent as oral evidence to that effect". The object of proving a document is,
no doubt, to prove the truth or correctness of those contents, but whether it
amounts to proof of "the truth" of the contents of the document is purely a
question of probative value and not of admissibility. There is no guarantee of
the truth of the contents of a document merely by reason of the proof of that
document, but neither would there be any guarantee of the truth of oral
evidence merely by reason of the fact that the deponent has stated the same
on oath, and has subjected himself to cross-examination. In my opinion, the
view taken by Bhagwati J. in Madholal Sindhu's case as well as by the
Division Bench in the case of In the matter of Mr. D. and Mr. S., is contrary
to the plain language of Section 59 and 61 of the Evidence Act which in terms

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refer to "the contents" of documents, and is in violation of the fundamental
rule of evidence that lies at the root of Section 59 and 91 of the said Act that
the contents of a document cannot be proved by oral evidence. Being bound
by the decision of the Division Bench in the case of In the matter of Mr. D.
and Mr. S., I must, however, follow the same and decline to admit the
postcard marked "X" (for identification) in 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. 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. 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 party and merely recorded something. An unregistered family
settlement deed was held to admissible strictly for collateral purposes only.

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The subject of documentary evidence can be divided into three parts:

1. How the contents of a document are to be proved? {61-66}

2. How the document is to be proved to be genuine? {67-90}

3. How far and in what cases the oral evidence is executed by documentary
evidence? {91-109}

PRIMARY AND SECONDARY EVIDENCE {62-

66}

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 counterparts, 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.

The expression “primary evidence” of a

document is defined in section 62. The following four are included in the
expression “primary evidence”:

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 1. The original document itself produced for the inspection of the court.
2. Where a document is executed in several parts, each part is primary
evidence of the document.
3. Where a document is executed in counterparts, each counterpart in
primary evidence against the party signing it.
4. 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.

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.

SECONDARY EVIDENCE

63. 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.

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 The most remarkable among the types of secondary evidence by
the section is the oral or parole 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.”

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. 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.

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.

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Conclusion
Oral evidence has lesser value than documentary evidence. Court is bound
to accept the documentary evidence. But oral evidence may take in
consideration. It is also needing some corroboration. In briefly submitted that
two types of evidence are given by the parties either oral and documentary
evidence. In court of law the value of documentary evidence is higher than
documentary evidence. Because the law always requires the best evidence
oral evidence is a evidence is a evidence which is confined to the words
expression verbal or oral. On another evidence are of side documentary two
types. Primary evidences are more reliable and best evidence consider by
court of law. In the absence of primary evidence, secondary evidence is that
which the witnesses were given on the basis of his own perspective.
Whereas primary evidence is the original document which is presented to
the court of law for its inspection. Direct evidence is the best evidence to be
prove of fact to be proved. But primary evidence in certain cases is the best
evidence in all cases.

There documentary evidence excludes and exempts the oral evidence and
prevails over the oral evidence while submitting the evidence in as witnesses
in court of law. The person giving direct evidence available for cross
examination for testing its veracity. Hence, that document is written which is
a documentary evidence. Sections 91 and 92 exempt oral evidence by
documentary evidence. Oral proof cannot be substituted in the place of
written documents where the written document exists in evidence of certain
transactions of offence referred to in Section 91 as written testimony, more
certain and more reliable than oral evidence

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References
● www.indiankanoon.org

● www.legalcrystal.com

● www.youtube.com

● www.lawteacher.net

● www.lawyerservices.in

● www.the-laws.com

● www.Advocatekhoj.com

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