Oral and Documentary Evidence

This article titled ‘Oral and Documentary Evidence’ is written by Aritra Sarkar and explains the concept of Oral and Documentary Evidence including its kinds.

I. Introduction

Chapter 4 of the Indian Evidence Act, 1872 deals with oral evidence and chapter 5 deals with documentary evidence.

II. Oral evidence

Section 59 and 60 of the India Evidence Act mainly deals with oral evidence other than that there are many sections in the act that also deals with oral evidence such as section 22 and 22A deals with oral admissions and chapter 6 of the Indian evidence act which deals with the exclusion of oral by documentary evidence.

1. Section 59

Section 59 says that all facts except contents of documents and electronic documents may be proved by oral evidence. For producing evidence on contents of documents and electronic records proof must be according to chapter 5 of The Indian Evidence Act, 1872.

2. Section 60

However, the conditions in which oral evidence can be given is given in section 60 of the Indian Evidence Act, 1872. According to section 60 of the evidence act oral evidence should be direct that is to say that it should not be hearsay. Hearsay evidence is not acceptable in the Indian evidence law as a general rule.

However, it has exceptions to it. The important exception to evidence against hearsay is conferred by section 6 of the evidence act, which gives us the principle of Res Gestae. Confessions and admissions are some other cases where the hearsay is admissible.

Section 60 refers to 4 cases in which oral evidence is given they are seeing, hearing, perceiving, and forming an opinion. The section says that for oral evidence to be valid in these cases the evidence has to be given by the persons themselves who sees, hears, perceives or forms the opinion in question.

The first provision to section 60 is that the opinions of experts published in books out for sale can be proved by producing the book in the court if the author is unavailable or unable to give evidence himself or if it will be too expensive or it will delay the case too much to call the author as a witness for the case.

The second proviso to section 60 of the evidence act says that if while giving oral evidence a party refers to some material other than a document then the court can inspect and examine the material.

In case there is a concerned document then it has to be proved according to the rules given in chapter 5 of the Indian evidence act, 1872.

III. Documentary evidence

Documentary evidence is dealt with in sections 61 to 90A of the Indian Evidence Act, 1872. Sections 61 to 73A deal with the general rules for proving documentary evidence in various cases, sections 74 to 78 deal with public documents and sections 79 to 90-A deal with presumptions as to documents. Documents are referred to any kind of writing or digital record etc. that is permanent.

1. Section 61

Section 61 says that the contents of a document may be proved either by primary evidence or by secondary evidence.

Section 62 and 63 explains what is primary and secondary evidence respectively.

2. Section 62

Primary evidence, as given in section 62, is the original document that is produced in the court for its inspection.

Explanations to section 62 mention some special circumstances which are-

1. When a document is executed in parts. In such cases, each part is the primary evidence of the document.

If the document is executed in counterparts and each counterpart is executed by one or some of the parties then each counterpart is the primary evidence against the parties executing it.

The difference between the document being executed in parts means that all parties will sign each part and the meaning of the document being executed in counter-part means that each part of the document is signed by one or more individuals but not all of them.

Let’s take an example to see the difference between a document been executed in parts and a document is executed in counterparts is that, let’s assume that a document is executed in two parts between two parties than in the case of a “document being executed in parts” it means that both the parties sign both the parts of the documents and in case of document being executed in counterparts, it means that each part is signed by one party.

2. The second explanation says that where several documents are made by one uniform process such as printing, lithography or photography, each is the primary evidence for the contents of the rest.

While in cases where several documents are made in one single process from an original then they are regarded as the primary evidence for the rest of the copies but not of the original document.

For example, if several placards are made by copying from a single original placard then one of those copied placards is said to be the primary evidence for the contents of the rest of the copied placard but not for the original placard from which it was copied. [Illustration to section 62]

3. Section 63

This section deals with secondary evidence. It talks about 5 different things that are accepted as secondary evidence. They are-

1. Certified copy of documents
2. Copies are made by the original through a mechanical process. Here the mechanical process is important because it ensures the copies to be free from any kind of tampering or error to some extent. Earlier when the printing machine or the xerox machine was not invented then the copies used to be made by the court clerk manually, which led to a lot of errors and tampering. To avoid those issues and to ensure the accuracy of the copies mechanical process is included in this section.
3. Copies made from or compared with the original
4. Counterparts of the documents as against the parties who did not execute them. As we saw earlier in section 62 that when a document is executed in counterpart then each counterpart becomes the primary evidence against the persons executing them. In this section, it is said that for those people who did not execute a counter-part of a document, that counter-part will become secondary evidence for him.
5. Oral accounts of the contents of a document given by some person who has himself seen it.

4. Section 64

Section 64 says that documents must be proved by their primary evidence only. However, there are certain exceptions given in section 65 when documents can be proved by secondary evidence also.

5. Section 65

Section 65 gives us seven conditions in which a document can be proved by secondary evidence. They are-

1. When the original document or the primary evidence is not in the possession of the person who has to prove it. In this case, any secondary evidence of the contents of the document is admissible.
2. When the existence, condition and contents of the original have been proved to be admitted by the party against whom the document is supposed to be proved then the written admission is admissible.
3. When the original has been destroyed or lost or for some reason except for reasons of the party’s own default or neglect, can not do it in a reasonable time. In this case, too any secondary evidence of the contents of the document is admissible.
4. When by the virtue of nature of the original document it can not be easily movable then any secondary evidence of the contents of the document is admissible.
5. When the original is a public document within the meaning of section 74 then a certified copy of the document, but no other kind of secondary evidence, is admissible.
6. When the certified copy of the original document is permitted to be produced as evidence by this act or any other law present in India then a certified copy of the document, but no other kind of secondary evidence, is admissible.
7. 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 collection then, 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.

IV. Electronic records

1. Section 65A

Electronic records are considered documentary evidence. This section merely says that the contents of electronic records are to be proved in accordance with the provisions of Section 65B.

2. Section 65B

Subsection 1 of this section says that an electronic record that is printed on paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be a document.

Subsection 2 of this section gives us the conditions with regard to a computer output subsection 3 deals with cases where the concerned computer is more than one working together in succession, then, in that case, all the computers will be regarded as constituting a single computer.

Subsection 4 of this section gives us certain things and says that a certificate has to be issued mentioning those things in case evidence is to be given under this section.

Subsection 5 of this section says 3 things:

1. information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment
2. whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer-operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
3. a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

V. Video conferencing

Recording the statements of a witness through video conferencing has been allowed in criminal cases and there should not be any objection to use it in civil cases too. In the case of Amitabh Bagchi v. Ena Bagchi[1], the court allowed recording the statements of the husband through video conferencing, while maintaining the usual safeguards. In this case, the court said that there was no problem with using an electronic method for recording the statements of a witness. In the case of Bodala Murali Krishna v. Bodala Prathima[2], it is explicitly said that during recording evidence through video conferencing the usual safeguards has to be maintained.

VI. Electronic records

Electronic recordings mean “data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche.”[3] The evidence act says that electronic evidence falls under the category of documentary evidence[4].

Section 65A and 65B of the Indian evidence act deals with electronic evidence. Section 65A provides that electronic evidence will be admissible only if they have complied with the conditions that are given in section 65 B of the evidence act.

Section 65B provides that for electronic evidence to be admissible in court, without introducing the original, a certificate attesting to the conditions provided in section 65 should be given. The certificate has to be in consonance with section 65B(4) of the Indian evidence act.

This requirement of certification was copied from section 69 of the UK Police and Criminal Evidence Act, 1984(now repealed). However, in India, a certification is required only when there is an introduction of the secondary evidence in the form of electronic evidence while in the United Kingdom, certification is necessary for any kind of electronic recording.

The Supreme Court made some exceptions on section 65B in the case of State (NCT of Delhi) v. Navjot Sandhu[5] the accused was convicted under various provisions of IPC and POTA. One of the main pieces of evidence produced in the court against the accused was the call records of the accused’s phone. The court, in that case, said that Cellular phone records are secondary evidence since the primary evidence will be the records maintained by the telecom servers. However, the court said that although the provision for the requirement of certification under section 65B (4) is not complied with still it would not be a bar to produce the evidence which is otherwise admissible under sections 63 and 65 of the Indian evidence acts.

Because of this decision in many cases certification was not done citing State (NCT of Delhi) v. Navjot Sandhu. At last in the case of Anvar P.V. v. P.K. Basheer the court made certification compulsory saying that section 65B is a special provision and thus it has to be complied with.

In the case of Anvar P.V. v. P.K. Basheer[6] obscene songs on religion were played at an election centre those songs were recorded by the public and then copied in the computers and then from the computer they were copied in the CDs. These CDs were produced in court without any form of certification.

A Three-Judge bench of the Supreme Court decided in this case that secondary evidence is required to be compulsorily accompanied by a certificate as under section 65B of the Indian Evidence Act thus overruling the judgement of State (NCT of Delhi) v. Navjot Sandhu case.

1. Section 67

Section 67 says that when it is alleged that a document has been signed or written wholly or partly by an individual then the handwriting of that individual for that part has to be proved.

In Narbada Devi Gupta v. Birendra Kumar Jaiswal[7] it was observed that the production and marking of the document was not enough since the execution of the document has to be proved. However, in the case of admission by the signatories in this regard then it is not required to be proved.

It is mandatory under this section that the handwriting is proved only by examining the person concerned in case the person is well and alive. In case it is not done then it would attract section 114(g) of the Indian evidence act.

2. Section 67A

This section is the same as section 67, the only difference is that it deals with an electronic signature. It says that when any electronic signature of any person is to be affixed with any electronic recording then the concerned electronic signature has to be proved to belong to that of the person concerned.

3. Section 68

It states that if it is required by law that a document is to be attested, then that attested document shall not be proved in the court without the presence of at least one of the attesting witnesses.

It provides that when the document is not a will then attesting witnesses are not required when the document is registered according to the provisions of the Indian registration act, 1908 unless it is specifically denied by the person by whom it purports to have been executed.

In the case of H. Venkatachala v. B.N. Thimmajamma[8] a person took a very active part in the execution of a will and there were huge bequests in the will granted to his sons but there was no proof that the testatrix had approved of its contents. The supreme court held that no valid proof of execution of the will was given.

In this case, the Supreme court laid down the method of proof of wills. The supreme court says that in case of wills it is just a document and the parties concerned are trying to prove a document so they must refer to section 67 and section 68 of the Indian Evidence Act, 1872.

Under section 67 the signature in the document needs to be proved. In that case, the parties may refer to sections 45 and 47 of the act i.e. the opinion of experts and the opinion persons acquainted to the handwriting of the concerned person needs to be taken.

Section 68 deals with the proof of execution of the documents required by law to be attested and in that case one of the attesting witnesses is needed to be produced in the court. In the case of wills, it is required by law that two attesting witness needs to be present. All these are needed to be proved by the party who relies on the document in the court of law.

For the purpose of this section, it is not required that the attesting witness will have to know the contents of the will but it is mandatory the testator should have put his signature of thumb impression in the presence of the witness. This was observed in the case of Bahadur Singh v. Puran Singh[9].

All the procedure has to be observed when the validity or existence of the documents has been denied but the denial must be done by the person who has a right over the document. Thus, in the case of R. Jayapaul v. Pappayee Ammal[10] it was held that the denial of a will by the son of the second wife who has no rights of succession over it is not effective.

One of the two attesting witnesses can be examined even when the other one is available but the one examined must prove that he as well as the other person as also attested as per section 63(e) of the Indian Succession Act. If he fails to do so then the other person has to be called.

4. Section 71

Normally section 68 has to be followed but in case it is not possible to follow section 68 then section 71 has to be followed. This section says that when the attesting witness denies or forgets the execution of the document it may be proved by other evidence.

Therefore, if the witness that was examined was not able to prove its contents and the other attesting witness though available was not called then the will was held to be not proved. The prove has to be done in accordance with section 68 of the evidence act section 71 will come into play only when it can not be proved in any by through section 68. So, In the case of C.G. Raveendran v. CG Gopi[11], one of the witnesses turned hostile and the other witness though available was not called for so it was held that here the help of section 71 can not be taken.

The scribe and the Registrar can not give witnesses as required by law[12]. But in the case of Ram Lal v. Mohinder Singh[13], one of the attesting witnesses was disabled from speaking and the other witness was won over by the opposite party, in that case, the testimony of the scribe was taken.

5. Section 73

This section simply says that any signature, writing or seal that has to be proved may be compared with any other signature, writing or seal that has been proved to the satisfaction of the court to have been written by the concerned person. It also says that the court can ask any person to write any words or figures for the prose of comparing it with the concerned document.

In the case of State of Haryana v. Jagbir Singh[14], it was held that this section does not give any power to the court to ask any person to give his specimen signature for comparison.

In the case of O. Bharathan v. K. Sudhakaran[15], it was held that in the absence of any admitted signatures the court should not in itself compare a disputed signature without the assistance of an expert.

When handwriting experts are available to the court it is better that the court does not compare the handwriting on its own without taking their help. This was observed in the case of Ajit Savant Majagvai v. State of Karnataka[16].

In the case of B. Raghuvir Acharya v. CBI[17] it was held that when a person claims that he is acquainted with the handwriting of the accused author but he was not able to produce the document in the court by which he claims to be familiar with the accused’s handwriting then the court held that in that case the accused cant be convicted.

In the case of M. Narayananma v. Lakshmidevi[18] the plaintiff produced thirty years old registered document. The court held that since there was no sign of discrepancy in the signature on the document and the defendant produced no evidence to show that the signature on the document was not genuine then the benefit of section 90 will be given to the plaintiff.

In the case of K.S. Satyanarayana v. V.R. Narayana Rao[19] the court held that when the defendant denies his signature on various exhibited documents then the trial court has the power to compare the signature under section 73.

VII. Public documents

1. Section 74

This section talks about Public documents. This section states 2 types of documents that can be considered as public documents. They are-

1. Documents forming the acts, or records of the acts –– (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) 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.

2. Section 76

This section says that when any document is in the custody of a public officer which any person has the right to inspect, then the public officer has to give a copy of that document, on-demand, to that person. Any such copy should contain a certificate at its foot saying that it’s a genuine copy of the original document. Such certificate shall also contain the date and name or his official title or where he can use his official seal, his official seal.

It also provides that under this section an officer who is authorized to deliver the copy shall be deemed to have been in his custody.

3. Section 77

This section states that the certificates given in section 76 are to be used to prove the contents of the public documents or part of public documents of which they are purported to be parts.

The fact of marriage can be proved by producing the marriage registration certificate. It was observed in Seema v. Ashwani Kumar[20]. A certified copy of the Hindu marriage register was a public document and also enjoy the benefit of presumption under section 114(e)[21].

4. Section 78

In this section, a list of other public documents and the way to prove them is given.

VIII. Private documents

Section 75 talks about private documents. It states that all other documents other than what is mentioned in section 74 are private documents.

Edited by- Akriti

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References

[1] AIR 2005 Cal 11

[2] AIR 2007AP 43

[3] The Information Technology Act 2000, s 2(1)(t)

[4] Indian Evidence Act 1872, s 3

[5] State (NCT of Delhi) v Navjot Sandhu (2005) 11 SCC 600

[6] Anvar P V P K Basheer (2014) 10 SCC 473

[7] (2003) 8 SCC 745

[8] AIR 1959 SC 443

[9] AIR 2012 Raj 74

[10] AIR 2004 Mad 6

[11] AIR 2015 Ker 250

[12] Robert D’Mello v Henry D’Mello

[13] AIR 2005 P&H 551

[14] 2004 SCC (Cri) 126

[15] 1996 (2) SCC 704

[16] 1997 SCC (Cri) 992

[17] (2014) 14 SCC 693

[18] AIR 2015 NOC 680 (Kar)

[19] (1999) 6 SCC 104

[20] (2006) 2 SCC 578

[21] V.D. Grahalakshmi v T. Prashant

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