Principles Concerning ORAL Evidence PDF

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PRINCIPLES CONCERNING ORAL EVIDENCE (Section 59 and 60) Evidence may be classified into oral and documentary evidence. There are two methods of proving a fact. One is by producing witness of fact, which are called oral evidence and other by producing the document which records the fact in question and is called documentary evidence. Section 59 and 60 of the Evidence Act provides the provisions relating to oral evidence. Section 59 provides for proof of facts by oral evidence and Section 60 says the oral evidence must be direct i.e. hearsay evidence is no evidence. Oral Evidence has been defined under Section 3(1) of the Indian Evidence Act as the statements which are required to be made before the court by the witnesses in relation to matters of the fact under the inquiry. The term “oral evidence” means the words spoken by mouth. But section 119 provides that a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs, the evidence so given shall be deemed to be oral evidence. Section 119 is an extension of oral evidence. Queen-Empress v. Abdullah elaborated the difference between Verbal and Oral. The term ‘Verbal’ means by words; it is not necessary that the words should be spoken. if the term used in the section is oral then it might be that that statement should be confined to words spoken by mouth. The term verbal is a wider term than oral.

1. PROOF OF FACT BY ORAL EVIDENCE [SECTION-59] According to Section 59 of the Indian Evidence Act, all facts, except for the contents of the documents or electronic records may be proved by the Oral Evidence. Under this Section, if in any matter there is any written documents, then, in that case, there can be no oral evidence made to prove the said document wrong. FALSUS IN UNO, FALSUS IN OMINIBUS: It means ‘false in one thing is false in everything’. The oral testimony will the mixture of both truth and falsehood. This maxim is neither accepted nor considered by any stretch of imagination as rule of law. The Supreme Court in Ugar Ahir v. State of Bihar(1965), it was held that the maxim is neither sound rule of law or a rule of practice for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth ot any rate exaggeration, embroidery or embellishment. As it was held in the case of 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.

2. ORAL EVIDENCE MUST BE DIRECT [SECTION 60] Section 60 of the Act lays down that the Oral Evidence must be direct, enacts the general English rule that hearsay is no evidence. In other words, this means that if the evidence is about any fact which has been heard, seen, perceived by any other senses or about an opinion. Then according to this section Oral Evidence will be valid only when such evidence has been given by the person who himself heard, saw, perceived or formed an opinion. But such evidence could be used to corroborate substantive evidence. CREDIBILITY OF THE ORAL EVIDENCE The credibility of the oral evidence of the witness will be doubted if the statement is in contradiction to any previously given statement by him/her. But where the statement is merely an elaboration of the statement recorded before the police with minor contradictions, then it will be held as reliable oral evidence. HEARSAY- EXCEPTION TO ORAL EVIDENCE Hearsay Evidence as a general rule is not accepted in the Indian Evidence Act. It is considered to be irrelevant and vague. The term ‘hearsay evidence’ has been defined in the case of Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr (2011) and is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. Hearsay evidence which is called derivative, second hand and unoriginal evidence etc. is the evidence of facts, which the witness has not learnt through his own bodily sense but learnt through the medium of others. The reasons for exclusion of hearsay evidence are: 1. It cannot be tested by cross examination. 2. It encourages substitution of weaker for stronger evidence. 3. It is intrinsically weak. 4. The evidence is not given on oath or under personal responsibility by the original declarant. 5. It has tendency to protect legal investigation. 6. As truth depreciates in the process repetition, it is not reliable. 7. Its reception will increase opportunities for fabrication. In Vinod Kumar Bhutani vs State Thr. Cbi (2013), it is one of the cardinal rules of the law of evidence that “in determining the admissibility of evidence the production of the best evidence should be exact. Exceptions to hearsay rule A number of exceptions have been recognized to facilitate for the admission of hearsay evidence. These exceptions have been imported into the evidence as a rule of necessity.

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Res gestae Admission and Confession (Section 17-23 and Section 24-30) Statement under section 32 Evidence given in the former proceedings (Section 33) Statement in public document (Section 35), the statement in public document such as the Acts of the Parliament, official books and registers can be proved by the production of the documents and it is not necessary to produce before the court the draftsman of the document. 6. Proviso 1 to Section 60 i.e Expert opinion (Section 45-51), the opinion of experts expressed in any treaties commonly offered for sale and the grounds on which such opinions are held can be proved by t he production of such treaties without calling that expert, provided the author is not available as witness for reasons analogous in Section 32. 7. Proviso II to Section 60, the court may require the production of any material things for its inspection, if the oral evidence refers to the existence of the material things. Secondary evidence of the contents of written document is permitted under this proviso when production of original is impracticable.

DIRECT EVIDENCE

HEARSAY EVIDENCE

Under this the evidence is given by the witness on the basis of his own perception, for instance eye witness.

Hearsay evidence is which has been derived from whatever has been narrated or seen by some other person.

Direct evidence is considered as the best form of oral evidence of the fact to be proved.

Hearsay evidence is a form of secondary evidence and is accepted by Courts in exceptional cases only.

The liability of veracity of direct evidence is on the person who is giving he evidence.

In case of hearsay evidence, the person giving the evidence does not take the responsibility of its veracity.

The source of direct evidence is the person who is present in Court and giving evidence.

In case of hearsay evidence, the person giving the evidence is not the original source of evidence given by him.

PRINCIPLES CONCERNING DOCUMENTARY EVIDENCE The term document has been defined under Section 3 of the Indian Evidence Act. The document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means intended to be used, or which may be used, for the purpose of recording that matter. A writing, printing, lithograph, photograph, map, a plan, an inscription on a metal plate or a stone, a plaque, a caricature etc. Section 61 provides that the contents of document can be proved either - (i) by primary evidence, i.e. by producing the document itself (Section 62) or (ii) by secondary evidence (Section 63), when primary evidence is not available secondary evidence may be permitted by the court to prove the contents of document. There is no other method of proving the contents of document. “The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence. The contents of document without formal proof cannot be taken as evidence....