Introduction

Section 3 defines the term “evidence” as a meaning and including oral and documentary
evidence.

Section 59 refers to 'Proof of fact by oral evidence'. It reads as follows: All facts, except the
contents of documents, may be proved by oral evidence. This section lays down that where
written documents exist, they shall be produced as being the best evidence of their own contents
and no oral evidence can be adduced to prove as to what is wrong in the document.

Oral Evidence

Section 3 defines Oral evidence as any statements which the court authorizes or requires to be
made before it by witnesses, about matters of fact under inquiry.

Oral evidence is the evidence which is confined to words spoken by mouth. Oral evidence, if
worthy of credit, is sufficient without documentary evidence to prove a fact or title. Any method
of communicating thought which the circumstances of the case or the physical condition of the
witness demand may, in the discretion the Court, be employed. Thus, a deaf may testify by signs
or by writing. (Sec 119). - State of Rajasthan v. Darshan Singh (2012)

Classification of oral evidence:

1. Wholly reliable: reliable testimony of a single witness (rape victim) conviction can be
founded without corroboration
2. Wholly unreliable: unreliable testimony of single witness. Court has no option but to
acquit the accused- State of Raj v. Babu Meena.
3. Neither wholly reliable nor wholly unreliable.

Evidentiary Value of Oral Evidence -Oral evidence is a much less satisfactory medium of
proof than documentary proof. 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.
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.

SECTION 60

Oral evidence must, in all cases whatever, be direct; that is to say –

(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he
saw it;
(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says
he heard it;
(c) 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;
(d) 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.

Hearsay evidence

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.

Hearsay evidence is that evidence which comes indirectly that is to say which comes not from
the knowledge of the person who deposes it but through some other person. It is thus used in
contradiction to ‘direct evidence.’ It is derivate evidence.

Kalyan Kumar Gogoi v Ashutosh Agnihotri – Hearsay denotes that kind of evidence which
solely does not drive its value from the credit given to the witness itself but it rests in part of
competence of some other person.

Nachhatur Singh v State of Punjab- News item in T.V. or in newspapers are not admissible
being hearsay evidence.

Reasons for Exclusion of Hearsay

The rejection of hearsay is based on its relative untrustworthiness for judicial purposes owing to,

(i) the irresponsibility of the original declarant;

(ii) the depreciation of truth in the process of repetition; and
(iii) the opportunities for fraud its admission would open; to which are sometimes added
these grounds, viz.,
(iv) (iv) the tendency of such evidence to protract legal inquires, and
(v) to encourage the substitution of weaker for stronger proof.

Illustration
'A' is being tried for stealing B's Cycle. 'C' as witness says that he (C) heard ’D’ saying that 'D'
saw 'A' with B's Cycle. Such evidence given by 'C' is not admissible on the ground that
testimony of C is hearsay evidence.

Exceptions to the rule of hearsay (17 to 39)

(1) Res Gestae

Under Indian Evidence Act, 1872, section 6 is based on this doctrine.
Res-gestae means the things done or words spoken in the course of same transaction. A
transaction is a group of facts so connected together as to be referred to by a single legal
name, as a crime, a contract, a wrong or any other subject of inquiry which may be in issue.
Res-gestae allows hearsay evidence to be admissible before the courts so long as it forms a
part of the same transaction of the act and is contemporaneous with no time lag in which
fabrication could take place.

(2) Admissions, and confessions

Admissions are covered between Sections 17 and 23 of the Indian Evidence Act. Admission
refers to when a person voluntarily acknowledges the existence of a fact or a fact in issue,
this statement could be made in either oral or documentary form.

Confessions on the other hand are covered between sections 24 and 30 of the Indian
Evidence Act and refer to a situation when a person admits to their guilt before a court of
law. It is the direct admission of the facts of a case and could be made in written form or
orally.

In the judgment of the Supreme Court in the case State of Maharashtra vs Kamal Ahmed
Mohd. Vakil Ansari, it was held by the court that “Admissions and confessions are
exceptions to the “hearsay” rule. The Evidence Act places them in the province of relevance,
presumably on the ground, that they being declarations against the interest of the person
making them, they are in all probability true. The probative value of an admission or a
confession does not depend upon its communication to another.”

(3) Dying declaration (section 32)

 Section 32 of the Indian Evidence Act, 1872, deals with dying declaration which is based on
the maxim – “NEMO MORITRUS PROESUMITUR MENTICE” which means that a
person will not meet his maker without a lie in his mouth. Dying Declaration is permissible
on the principle of necessity as the person whose statement is offered is either dead or not
available and no better evidence can be had. The general principle on which this species of
evidence is admissible is that these are declaration made in extremity, when the party is at
the point of death, when every hope of this world is gone, when motive to falsehood is
silenced and the mind is induced by the most powerful consideration to speak the truth - R v
Woodcock

(4) Evidence given in former procedure

Section 33 of the Indian Evidence Act provides that he statements given by a witness in a
former proceeding can be used in subsequent proceedings of the same case if the witness is
dead or is not able to appear before the court.
(5) entries in books of account kept in the course of business (section 34); entries in
public registers or record (section 35); maps and charts, etc.
Section 35 of the Act talks about the relevancy of entries that were made in the public
records in the performance of a duty. [xxiii] Under this section, the statements made in
public documents can be brought before a court even if the person who made the statements
may not be alive.

Hearsay evidence to corroborate substantive evidence. -

In Mukhtiar Singh v. State of Punjab, which was a murder case, the witness stated that he saw
the accused persons running towards the village carrying weapon. He chased two of them to a
certain distance but he did not see the occurrence of attack as it happened when he chased two
accused persons but when he came immediately thereafter, he learnt from eye-witnesses that the
accused persons attacked the deceased and he informed the police, his evidence although hearsay
was admissible for corroborating substantive evidence of eye-witnesses as evidence of such
nature could be used to corroborate substantive evidence.