This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides an in-depth analysis of the concept of best evidence rule under the Indian Evidence Act, 1872.
This article has been published by Diganth Raj Sehgal.
Originated from the doctrine of profert in curia which meant if a party could not present the original documents in written form before the concerned court of law, then he or she would have lost his or her rights that were created by the documents, the best evidence rule is also familiar by the name of “original document rule”. Justice Hardwicke’s decision, in the case of Ford v. Hopkins (1700) and Omychund v. Barker (1745) is a noteworthy one as he mentioned that “no evidence will be admissible unless it is the best evidence that nature will allow”. The best evidence rule originated because during the 16th-century copying of documents was carried out by the court clerks manually, keeping room for significant error in the item copied. In India, the best evidence rule is embodied in Sections 91 to 100 of the Indian Evidence Act, 1872 that aims towards deciding the genuineness of the documents presented in the court. This article provides a deep understanding of the concept of best evidence rule in light of the Indian Evidence Act, 1872, and precedent judgments delivered by the Indian and international courts.
Best evidence rule under the Indian Evidence Act, 1872
Sections 91 to 100 of the Indian Evidence Act, 1872 deal with the concept of the best evidence rule. Providing importance to documentary evidence over the oral ones, the provisions of the Evidence Act establish the fact that it is the documentary evidence that qualifies the ambit of the best evidence rule in the majority of the cases, leaving behind the oral evidence.
Exclusion of oral evidence by the documentary evidence
Chapter 6 of the Indian Evidence Act, 1872 provides provisions that concern the exclusion of oral evidence by that of the documentary ones. Encircling Sections 91 to 100, this chapter enforces the concept of best evidence rule in the Indian evidence law. Section 91 of the Indian Evidence Act, 1872 lays down the provision for evidence of terms of contracts, grants, and other dispositions of property reduced to the form of documents. The Delhi High Court in the well-known case of Chandrawati v. Lakhmi Chand (1988) upheld that Section 91 of the Act of 1872 incorporates the legal maxim that whatever is available in writing, must be proved by means of writing only. Taking this into account, the Hon’ble High Court rejected the admissibility of oral evidence in case of the contents of a partition deed as the same was not registered. The Allahabad High Court did not permit the presentation of oral evidence in order to prove the contents of a partition deed that was not registered. Observing that neither oral evidence nor the unregistered deed would be allowed as evidence before the Court, the Hon’ble High Court dismissed the oral evidence presented before it in the notable case of Ratan Lal v. Hari Shanker (1980).
The Supreme Court’s decision in the case of Taburi Sahai v. Jhunjhunwala (1967) clarified the ambit of Section 91 by observing that a document or a deed which cannot be described as a contract, grant, or disposition of a property will not be affected by the best evidence rule as established under the provision. In the present case where the issue was whether a deed of child adoption will be considered as a contract or not. The Apex Court held that the same will not be taken as a deed and therefore would not be bound by Section 91 and its underlying principle. The judgment delivered by the Apex Court, in the case of Bakhtawar Singh v. Gurdev Singh (1996) is interesting to note as the top Court observed that when both oral as well as documentary evidence, are admissible in the Court of law on the basis of their merits, the Court may go by the evidence which it thinks to be much more reliable, not necessarily documentary over oral evidence always.
The Supreme Court of India in the 2003 case of Roop Kumar v. Mohan Thedani observed that Section 91 of the Indian Evidence Act, 1872 prohibits proof of the contents of any writing in any other mode other than writing itself, embodying the best evidence rule declaring a doctrine of substantive law. The Court went further to observe that Section 91 and 92 of the Act though differ in material particulars, supplements each other to establish the best evidence rule.
Section 92 and its underlying principle
Section 92 of the Indian Evidence Act, 1872 is the provision dealing with the exclusion of evidence of oral agreement. It is said that Section 92 serves as a supplement for Section 91. The former provides that once any contract, grant, or disposition is proved by means of writing, then no evidence of oral agreement to contradict the contents of the writing already given, can be provided. Thus the principle that underlines Section 92 is that no oral evidence can be given in order to qualify the terms of the document already presented. The Supreme Court of India observed that Section 92 precludes only the parties and their representatives to provide oral evidence in support of the contents of the document thereby leaving it open for the third parties to give such evidence, in the case of Vishwa Nathan v. Abdul Wajid (1986).
The decision of the Calcutta High Court in the case of Nabin Chandra v. Shuna Mala (1932) is a notable one as the Hon’ble High Court dissented to the proposition that the consideration in the document presented could not be contradicted by proving that some other consideration was supposed to be passed. Thus one cannot blindly believe the intention behind the provided provision, instead of positive modifications to avoid the provision losing its meaning shall be resorted to depending on the merits of the case.
Both Section 91 and 92 recognize nine exceptions to the general rule that they lay down. These exceptions, therefore, allow oral evidence in concern with a document. The exceptions have been presented hereunder;
- Validity of documents (Section 92 proviso 1): Oral evidence of any fact which renders that the document presented is invalid, can be given.
- Matters on which document is silent (Section 92 proviso 2): If a written agreement is silent during the time of a price payment, then in such case oral agreement may be proved at that time.
- Condition precedent (Section 92 proviso 3): If there exists any separate oral agreement that constitutes conditions precedent to attaching the obligations under the document presented, then the same may be proved.
- Rescission or modification (Section 92 proviso 4): Any oral agreement that modifies or rescinds the document in question, maybe proved.
- Usages or customs (Section 92 proviso 5): Whenever incidents in a contract are attached to a particular type of custom or usage, the same may be proved by means of the oral agreement.
- Relation of language to facts (Section 92 proviso 6): Any fact may be proved by means of oral agreement which shows the manner in which the document language is associated with the existing facts.
- Appointment of a public officer (Section 91, exception 1): If the law states that appointment of a public officer is to be made by writing then such shall be carried out.
- Wills (Section 91, exception 2): Wills that are admitted to probate in India are to be proved by means of probate only.
- Extraneous facts (Section 91, explanation 1): Whenever a fact is referred to by the document presented which is in addition to the facts of the case, then oral evidence as to that fact is always allowed.
Ambiguous documents: Section 93 to 100
Section 93 to 100 of the Indian Evidence Act, 1872 lays down provisions for the ambiguous documents. The meaning of the term ambiguous documents is that the documents that are presented before the court are either not clear in their language or when the same is applied to the facts, it creates doubts. The Indian Evidence Act, 1872 recognizes two kinds of ambiguity namely;
- Patent ambiguity (Section 93 and 94); and
- Latent Ambiguity (Sections 95-97).
Section 98, 99, and 100 deal with evidence as to the meaning of illegible characters, who may give evidence of agreement to varying terms of the document, and saving of provisions of Indian Succession Act, 1925 in relation to wills respectively.
A patent ambiguity symbolizes a defect in the document that is apparent on the very face of the document which means that any person going through the document with ordinary intelligence can observe the defect. While Section 93 of the Act covers exclusion of evidence to explain or amend ambiguous documents, Section 94 of the Act deals with exclusion of evidence against application of documents to existing fact. The Supreme Court of India in the well-known case of Keshav Lal v. Lal Bhai Tea Mills Ltd (1958) observed that no extrinsic evidence can be provided to remove patent defects in a document. Instead, the Court may in cases of defect take the help of other documentary contents to fill such defects.
Any defect which is not apparent on the face of the document is considered a latent defect. While the document with latent defects will not showcase defects by a plain reading, it is only when the document is applied to the facts, the defect becomes visible. This is why the latent defect is also familiar with the name of the hidden defect. Sections 95 to 97 of the Indian Evidence Act, 1872 deal with latent ambiguity and lay down three principles of the same.
Section 95 of the Indian Evidence Act, 1872 talks about evidence to document unmeaning in reference to existing facts. Put simply, when the language of a concerned document is plain and clear but while applying the same to the existing facts, the outcome becomes meaningless, then in such cases, evidence can be given to adding meaning to the meaningless. Another kind of latent ambiguity is vested in Section 96 of the Act of 1872 which lays down the provision for evidence as to the application of language which can apply to one only of several persons. Section 97 of the Evidence Act, 1872 talks about evidence as to the application of language to one of two sets of facts to neither of which the whole correctly applies. This symbolizes that where the language of a document partially applies to one party and partly to the other, evidence can be presented to show on which facts the documents provided apply.
Other than these three situations where extrinsic evidence can be presented in concern with a document, Section 98 should also be referred to which deals with evidence as to the meaning of illegible characters. The Privy Council in the notable case of Canadian-General Electric W. v. Fatda Radio Ltd. (1930) observed that oral evidence is admissible for the purpose of providing an explanation to artistic words and symbols that are used in a document.
Let us have a look into some of the landmark decisions delivered by the Indian courts which explain the concept of the best evidence rule when applied in its true nature.
Mohan Lal Shamlal Soni v. Union Of India And Another (1991)
The Supreme Court of India in the notable case of Mohan Lal Shamlal Soni vs Union Of India And Another (1991) had observed that the cardinal rule in the law of evidence states that only the best available evidence should be brought before the court of law to prove a fact or the points in issue. The Apex Court in this case defined the best evidence rule to symbolize that “so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it.” The Court by this decision ensured that evidence that was to be obtained should have appeared to the Court essential to a just decision of the concerned case by getting at the truth of the matter by all lawful means thereby ensuring that the rival side does not take unfair advantage causing prejudice to the aggrieved party.
Musauddin Ahmed v. State of Assam (2009)
A bench of Justices Mukundakam Sharma, B.S. Chauhan of the Supreme Court of India while deciding the case of Musauddin Ahmed vs State Of Assam (2009) took a note of illustration (g) of Section 114 of the Indian Evidence Act, 1872 which states that “evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it”. The top Court viewed that it has always been the duty of the prosecution to lead the Court with the best evidence and to draw adverse inference whenever the best evidence is not produced before the Court of law. Therefore it can be said that the illustration clearly explains the legislature’s intention and behaves as a guiding tool for the courts. It has thus become a settled principle of law that if the prosecution fails to produce the best evidence before the court of law then the same would raise serious doubts on the prosecution’s case.
Tomaso Bruno & Anr v. State of U.P (2015)
A bench of Justices Anil R. Dave, Kurian Joseph, R. Banumathi of the Supreme Court of India delivered a relevant dictum while hearing the case of Tomaso Bruno & Anr vs State Of U.P (2015). Observing that CCTV footage was to be considered as the best piece of evidence in order to prove the presence of the accused at the crime scene and it was for the prosecution to produce such evidence. In cases of failure, serious doubts about the case of the prosecution could be welcomed. The arguments that were advanced by the prosecution, in this case, was that the onus to prove that the accused was not at the crime scene was on the accused in accordance with Section 106 of the Indian Evidence Act, 1872 which therefore placed the burden of proving a fact within the knowledge of a person upon such person. Duly acknowledging the same, the Apex Court held that in order to invoke Section 106 of the Act of 1872 against the accused to prove his alibi, the prosecution had to establish the presence of the accused first and since the witnesses themselves had made a reference to the CCTV footage in this present case, a failure to produce the same did raise serious doubts about the prosecution’s case.
Jitendra And Anr v. State Of M.P (2003)
The top court with a bench of Justices K.G. Balakrishnan, B.N. Srikrishna observed that the application of the best evidence rule holds immense relevance in cases based on seizures such as those under the Narcotic Drugs & Psychotropic Substances (NDPS) Act, 1985, in the 2003 case of Jitendra And Anr vs State Of M.P. The Apex Court held that whenever a case is based on seizure, the goods that are seized serve as the best evidence that is available to the prosecution to present before the Court of law. If the prosecution fails to do the same then in such circumstances, the prosecution’s case before the Magistrate becomes doubtful.
Digamber Vaishnav v. the State Of Chhattisgarh (2009)
A three-judge bench of the Hon’ble Supreme Court of India in a recent case of Digamber Vaishnav. vs The State Of Chhattisgarh (2009) observed that as there had been no attempt made in the present case from the prosecution’s end to examine the witnesses who were present at the incident’s scenario at the relevant time and were the first one to see the deceased persons, the best evidence had been withheld.
Shivu And Anr v. R.G. High Court Of Karnataka (2007)
In the 2007 case of Shivu And Anr vs R.G. High Court Of Karnataka, the Supreme Court of India based its judgment on the reliance of Wills’ Circumstantial Evidence by Sir Alfred Wills who had opined that the rule of best evidence applied as “a fortiori to circumstantial evidence’” as the circumstantial evidence has been “inherently inferior to direct and positive testimony”. The Apex Court noted that whenever the best evidence has shown its capability being adduced, the attempt to substitute a description of evidence not of the same degree of force necessarily has created a suspicion that it has been withheld from corrupt and sinister motives.
Mohd. Aman, Babu Khan And Another v. State Of Rajasthan (1997)
A bench of Justices M Mukharji and K Venkataswamy of the Supreme Court of India had disregarded evidence that was presented otherwise than in support of seizure and matching of fingerprints, in the case of Mohd. Aman, Babu Khan And Another vs State Of Rajasthan (1997). The Apex Court held that a crucial circumstance to the present case which the prosecution had failed to establish was that the articles which were seized for the purposes of fingerprints of the accused had not been distorted before reaching the forensic laboratory. The Court observed that production of the concerned seized article would have been the best evidence of proof of the seizure and examination for fingerprints and the non-production of the same became a missing link in the chain of evidence in the present case.
As we come to the end of this article, it is evident to mention that the best evidence rule plays a significant role in the functioning of the Indian Evidence Act, 1872. The rule has played a relevant character in framing the criminal law jurisprudence in India and globally as well. Not only has it helped the judges while deciding whether evidence will be admissible before it or not, but also has behaved as a check and balance for the court to determine whether an accused can be held guilty on the basis of the evidence produced or not. To state summarily, the best evidence rule is a catalyst for the evidence law in India and across the world.
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3534022#:~:text=The%20 best%20evidence%20rule%20is,its%20 origins%20in%20the%201800s.
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