Oral and Documentary Evidence

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Evidence refers to a reliable and relevant collection of information that either proves or fails to prove a particular matter. The Evidence Act of 1872 divides the cycle of evidence into two categories: Oral and Documentary Evidence.

What is Oral Evidence?

Oral Evidence pertains to spoken words, gestures or movements that a witness has personally observed or heard. It must directly establish the key fact under consideration. According to Section 3 of the Evidence Act, “Oral Evidence” is any statement that the court authorises or requires witnesses to make about matters of fact that are under inquiry. During a trial, anything admitted in court and expressed by any witness is considered oral evidence.

Oral and Documentary Evidence

Section 59 of the Evidence Act allows all facts and events, except for the contents of documents and electronic recordings, to be demonstrated through oral evidence. It is impossible to prove the contents of documents and electronic recordings through spoken testimony.

Section 60 – Oral Evidence Must Be Direct

Section 60 of the Indian Evidence Act lays down the fundamental rule for the acceptance of evidence in court. It must be direct and meet all requirements under this section for oral evidence to be admitted. The term “direct” is the primary constituent of this section and it excludes all forms of hearsay evidence. Every witness providing oral testimony must fulfill the requirement of directness.

Case Law Of Oral Evidence

Amar Singh v.s  Chhaju Singh and another

In the case of Amar Singh v. Chhaju Singh and Another, the court established a relationship between Section 50 and 60 of the Indian Evidence Act. It stated that for evidence to be considered complete, two conditions must be met: relevant facts must be present and they must be presented directly by a witness who has seen or heard them.

State v. Rajal Anand

In the case of State v. Rajal Anand, the court held that Section 60 of the Indian Evidence Act only includes the term “direct,” which excludes hearsay evidence. However, the doctrine of Res-gestae serves as an exception to this rule of hearsay. It explains that a person who has experienced a series of relevant facts can testify, even if they did not see the crime being committed and their testimony will be accepted.

What is Documentary Evidence?

Documentary evidence refers to any material or electronic document presented before the court to prove or establish a fact. It is covered under Chapter 5 of the Indian Evidence Act, comprising Sections 61 through 90A. The Act outlines broad standards for proving documentary evidence in various circumstances, particularly Sections 61 to 66, which provide solutions on how to prove the contents of a document.

Types of Documentary Evidence

There are two categories of documentary evidence: public and private documents. 

Public Documents (Section 74 of Evidence Act)

Public documents, covered under Section 74 of the Evidence Act, are certified copies provided by an authority or reproductions of entries found in public registers, books or records related to pertinent facts, such as birth and marriage certificates, FIRs filed with the police and water utility bills.

Private Documents (Section 75 of Evidence Act)

Private documents, covered under Section 75 of the Evidence Act, include correspondence between opposing parties to a lawsuit, such as letters, agreements, emails, etc.

Courts tend to accept public documents more readily than private documents since they are less likely to be tampered with. Additionally, it is possible to trace the origin of public documents to a trustworthy source for validation if needed.

Primary Evidence

According to Section 62 of the Indian Evidence Act of 1872, primary evidence is the type of evidence that provides the greatest certainty about the fact in question and is also known as the best or highest evidence. The original document itself, if available, should be produced in its original form to verify the terms of a transaction that is evidenced in writing. Section 64 stipulates that documents must only be proven by their primary evidence. However, Section 65 allows supporting evidence to be used in certain situations.

The primary evidence is the original document presented to the court for review. Section 62 Explanations mention the following unique situations –

  • In cases where a document is carried out in sections, every component of the document serves as its primary proof.
  • When a document is signed in counterparts, each counterpart serves as the primary evidence against those parties who have signed it.

According to the second interpretation of Section 62, each document produced through a single consistent method serves as the primary source of proof for the information included in the others. However, the primary evidence for the rest of the copies is used when numerous documents are produced from an original in the same process.

Secondary Evidence

As per Section 63 of the Indian Evidence Act of 1872, secondary evidence is defined as evidence other than primary evidence. This section lists five different items that are recognised as secondary evidence, including –

  • Certified copies of the papers
  • Mechanically produced copies or copies produced from the original or compared to it.
  • Documents that were countersigned by people who did not sign them.
  • Oral descriptions of a document’s contents made by someone who has actually seen it (i.e. read the document).

Mechanically produced copies and copies of copies that have been compared to the original are admissible as secondary evidence. However, a “copy of a copy” is generally not admissible as secondary evidence.

Cases on Documentary Evidence

Amitabh Bagchi v. Ena Bagchi

In this case, the court allowed the recording the statements of the husband through video conferencing while maintaining the usual safeguards. The court stated that using an electronic method for recording witness statements is acceptable. In Bodala Murali Krishna v. Bodala Prathima, the court held that the usual safeguards must be maintained while recording evidence through video conferencing.

State (NCT of Delhi) v. Navjot Sindhu

The accused was convicted under various provisions of IPC and POTA and the main evidence produced in court was the call records of the accused’s phone. The court stated that cellular phone records are secondary evidence and the primary evidence will be the records maintained by the telecom servers. However, even though the certification requirement under section 65B (4) was not complied with, the court allowed the evidence to be produced under sections 63 and 65 of the Indian Evidence Act.

Anvar P.V. v. P.K. Basheer

The court made certification compulsory in this case, stating that section 65B is a special provision that must be complied with. This decision was a departure from the previous trend, where certification was not always done.

Difference Between Oral and Documentary Evidence

The difference between oral and documentary evidence can be established based on the following criteria:

Definition

Oral evidence refers to the testimony given by a witness in court regarding matters of fact under inquiry.

Documentary evidence is evidence submitted to the court in the form of a document.

Scope

Oral evidence is governed by sections 59 and 60 of the Indian Evidence Act.

Documentary evidence is governed by sections 61 to 66 of the Indian Evidence Act.

Form

Oral evidence must be direct and consistent with any previous statements made.

Documentary evidence must be supported by primary or secondary evidence.

Submission

Oral evidence is presented through voice, speech or symbols and recorded in court.

Documentary evidence is presented through documents containing words, signs, letters, figures and remarks.

Importance

Documentary evidence is considered more reliable and trustworthy than oral evidence due to its permanence and the ability to verify its authenticity.

In many cases, the existence of documentary evidence excludes the need for oral evidence. However oral evidence may still be required in some circumstances.

Conclusion

Oral and documentary evidence are both important forms of evidence in legal proceedings. While oral evidence is based on the statements of witnesses made orally in court, documentary evidence relies on written records or physical objects. Both forms of evidence have their own unique characteristics, advantages and limitations. 

Oral evidence can be more subjective and prone to error, while documentary evidence can be more reliable and permanent. However, the admissibility and weight of evidence are determined by the court based on the facts of each case and the rules of evidence. 


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