This article is written by Arya Mishra, student of Banasthali Vidyapith, Jaipur. The article explains about the types of evidence, exclusion of oral evidence by documentary evidence and exceptions to it.
The term evidence has come from the Latin word “evident” which means “to show clearly” or to prove. Evidence contains everything that is used to reveal the truth or facts. In law the person on whom the burden of proof lies has to produce the evidence before the court of law. It is also important that the evidence which is produced before the court should be true.
Types of Evidence
The types of evidence are as follows:
- Direct evidence- It refers to the evidence directly about the real point in the issue. It is the declaration of the observer as to key certainty to be demonstrated. Example- The proof of an individual who says that he saw the commission of the demonstration that comprises of affirmed wrongdoing. The original document is also included in the indirect evidence. Direct evidence is generally clear and convincing. It is simply the hypothetical verification when the truth of the matter is demonstrated by direct declaration or facts. Direct evidence also means that the person has heard, seen, perceived, form opinion and after that revealed the facts.
- Circumstantial evidence- “Proof does not mean hard mathematical formula since it is impossible”. It was told by Justice Fletcher Moulton in regard to circumstantial event. He also said that these proofs are strong but sometimes it leaves a gap through which the accused escapes.
It was said by Justice Coleridge, that circumstantial evidence is like a grassamer thread, light and visionary like air that easily vanishes with a touch. If a witness gives evidence in a court that he saw a defendant while firing a bullet to a a person and the person dies, then this is direct evidence. In this case, the only that question arises is whether the person is telling the truth or not. However if the witness while giving evidence says that he is only able to recognize that he heard the shot, then arrived on the scenes after some time and saw the gun in hands of the defendant with fumes coming out, the proof is circumstantial as the circumstances may be different from what he perceived.
- Real evidence- Real evidence means any tangible object which is presented before the court as proof. It means the evidence of any class or object which can be treated as proof, persons are also included in this. Real evidence may be a weapon found at a place where crime is committed or any dispute arising in a contract. Any object, person or material that is used at the time of proceeding in a court to make other parties feel guilty or to make him liable is real evidence.
- Expert evidence- The law of evidence is drafted to make sure that, the court only considers the proof that allows them to reach a valid conclusion. When an issue arises such as a medical issue, then the court needs expert advice to settle it. The logical inquiries included are assumed not to be within the knowledge of the court. The cases in which scientists and specialists are involved, there the role of experts cannot be argued.
- Hearsay evidence- This evidence is also called as indirect, derivative or second- hand evidence. In this type of evidence, the witness tells the court about what he had heard from somebody but has not seen anything. Thus it can be said that the witness does not tell about the circumstances with his knowledge but with the knowledge of other person and what the other person told him. The court does not take such type of proof seriously.
- Primary oral evidence- Oral evidence means that any announcement which is made by an observer in the court, who has personally seen the act, heard it and was present there. This evidence is also called direct evidence contrary to hearsay. These types of evidences are taken seriously by the court.
- Secondary evidence- The evidence which is given in the absence of primary proof is called secondary evidence. Secondary evidence is the evidence which is extracted from the original ones such as a photocopy of an original document. At the point when the first archive has been crushed or lost, and when the party has made a persistent scan for it and depleted all sources and means accessible for its generation then the optional proof is allowable.
- Oral evidence- When the proof is restricted to spoken words or by gestures or motion then it is termed as oral evidence. Oral evidence, when reliable, is adequate without narration or written proof to demonstrate a reality or fact. Where a reality can be demonstrated by oral proof, it isn’t essential that the announcement of the observer ought to be oral. Accordingly, a speechless individual may give evidence by signs or by composing. The reality can likewise be demonstrated or shown by oral proof.
- Documentary evidence- Any evidence which is present as a document before the court in order to demonstrate or show a reality. The content of documentary evidence can be separated into three sections:
- How the subject matter of document can be demonstrated?
- How the record is to be proved to be authentic? and
- How far and in what instance oral evidence is excluded by documentary evidence?
- Positive and negative evidence- By positive evidence the existence of reality can be proved and by negative evidence non-existence of reality can be proved. The people and the court should keep in mind that negative evidence does not act as a good evidence.
- Substantive and Non-substantive evidence- Substantive evidence are those evidences on which the court is dependent for the decision of a case. The non-substantive proof is which either strengthens or validates the substantive proof to increase its worthiness of belief or which disproves substantive evidence in order to impair the credibility of a person.
- Prima facie and conclusive evidence- Prima facie evidence is accepted valid at a first instance and demonstrates a fact in the absence of contradictory evidence. Conclusive evidence is that evidence which is not opposed by any other evidence. It is very strong that it can bear any other evidence. It is of such a nature that it compels the person who finds the fact to come to a certain conclusion.
- Pre-appointed and casual evidence- The law prescribes this type of evidence in advance which is necessary for the demonstration of certain facts or for the formation of certain instruments. The evidence which isn’t pre-appointed is called casual evidence. The casual evidence grows naturally with the surrounding situations.
- Scientific evidence- Scientific proof is proof which serves to either support or counters a logical hypothesis or speculation. Such proof is required to be exact proof and translation as per logical strategy.
- Digital evidence- Digital evidence was recognized in Commissioner of Customs, New Delhi v. M/s. C-Net Communication India Pvt. Ltd., AIR 2007 SC (Supp) 957. In this case, the Supreme Court held that “digital electronic” would mean that decoder is multiple outputs, input and logical circuits that changes coded input into a coded output. It was additionally held that a decoder is a gadget which does the opposite of an encoder, fixing the encoding so that the first data can be recovered.
- Electronic evidence- This proof can likewise be as electronic record delivered in court. The proof, even in criminal issues, can likewise be, by method for electronic records. This would incorporate or comprise of video conferencing.
- Tape record evidence- The tape itself acts as direct evidence, what the person has said can be recorded and can be presented before the court. Any previous statement made by a person can be tape-recorded and if in the end, the person changes his statement before the court then the tape-recorded statement can be presented before the court in order to test the veracity of the witness. Tape recorded evidence is more authentic than documentary evidence.
Difference between Oral and Documentary Evidence
|Oral evidence||Documentary evidence|
|Oral evidence means and includes all statements which are made by a witness in the court.||Documentary evidence means producing a document before the court of law and inspection is done by the court in order to know the facts.|
|It is a statement by a witness.||It is a statement of documents.|
|In oral evidence, the witness tells about the facts by speaking or with gestures.||In documentary evidence, the facts are told and it is recorded in writing.|
|Oral evidence is provided under Section 59 and 60 of Indian Evidence Act, 1872.||Documentary evidence is provided under Section 61 to 66 of the Indian Evidence Act.|
|Section 59 of the evidence says that it considers all facts as oral evidence except electronic evidence and documentary evidence. Section 60 says that oral evidence must be direct.||Primary evidence is considered as the evidence which is given in several parts like duplicate copies or as counterpart like those which is signed by the parties or photocopy of the document whereas, Secondary evidence contains certified copies, that have been made by the same mechanical process and also contain counterparts of the document against the parties.|
|For example- any crime has been committed by a Ram and there is a person available at the movement then whatever he heard, sees, perceive, or forms an opinion all this is considered as oral evidence.||For example- a photocopy of a document or photograph.|
Exclusion of Oral and Documentary Evidence
One of the essential standards of the law of proof is that in all cases the best proof ought to be given. Where the demonstration is exemplified in a record, the record is the best proof of the reality. The maxim of law is “whatever is recorded as a hard copy must be demonstrated in the form of hard copy only“.
Section 91 of the Evidence Act- Evidence in the form of contracts, grants and other dispositions of property should be in the form of a document. This Section applies similarly to cases in which the agreement, stipends or disposition of property alluded are contained in one document or has one record, and cases in which they are contained in a greater number of reports that one.
If there are more than one original documents, then only one original needs to be proved. The statement in any document of whatever facts are mentioned under this Section, shall not prevent the admission of oral evidence as to the same fact mentioned.
There are two exceptions mentioned under this rule:
- The general guidelines are that when some content of a document is to be proved in writing, the writing itself must be produced before the court and if it is not produced then secondary evidence should be given. Exception- when any public officer is appointed for writing and it is seen that a particular person has acted like such an officer then in such situations, the writing by which he has been appointed need not be proved. Example- Suresh appears as a witness before the court, to prove that he is a civil surgeon there is no need to show the appointment order. The surgeon only needs to show that he is working as a civil surgeon.
- To the general guidelines of content of writing there is one more exception mentioned under this- At the point when a probate (the copy of will which is required to be certified by the court) has got based on a will and subsequently question emerges about the presence of that will, the mere presence of the probate will demonstrate the presence of the will and the original will require not to be produced.
Section 92- Exclusion of evidence of an oral agreement.
If any contract, grants or disposition of property which is required by law to be in writing in form of document and if it has been proved according to Section 91, then for the purpose of varying it, contradicting it or subtracting it parties or their representative is not required to give oral evidence and it is not admissible. Two points are proved from this Section:
1-If any third party gives then it is admissible.
2-If any oral evidence is given which do not contradict the contract then it is admissible.
- Validity of document
If any contract or grant is made between the parties and fraud is done by other party or there is a mistake of fact, or mistake of law, or the party is not competent to contract then in such circumstances oral evidence can be given and it is admissible.
- Matters on which document is silent
Oral evidence can be given when the documents are silent but subject to these two conditions are there:
1- The oral evidence should not contradict the document. Illustration – A sells his horse to B and told about the price but the soundness of horse is not told but oral evidence can be given that horse is of sound mind because the document is silent here.
2- In allowing the proof of oral understanding the court is to have respect the level of the custom of the record. On the off chance that the report is formal, proof of oral understanding will not be permitted even on issues on which the record is silent.
- Separate oral agreement as condition precedent
In this situation, it is provided that if there is any condition precedent is constituted to the existing separate oral agreement to attaching of any obligations under a document , then it needs to be proved.
- Recession or modification
This provision permits the proof of oral agreement by which the document was either revoked or altered. When documents are executed then parties orally agree to treat it as canceled or alter some of its terms, such oral agreement is admissible.
- Usages or customs
If there is the existence of any particular usage or customs by which incidents are attached to a contract then it can be proved.
- Relation of language to facts
If any document is written then oral evidence can be given of such a document that what is mentioned in and in what circumstances it was mentioned and how to interpret it but it should not exclusively contradict the document.
Section 93- Exclusion of evidence to explain or amend an ambiguous document. If the language used in the document is defective or ambiguous, evidence cannot be given of facts which would show it’s meaning. Illustration- A agrees to sell his cow to B in writing for Rs. 1500 or Rs. 2000. Evidence cannot be given to show which price wast to be given.
Section 94- Exclusion of evidence against the application of document to existing facts. When the language used in the document is correct and when it applies correctly to the facts mentioned, evidence cannot be given that it is to be proved that it was not meant to apply on such facts.
Section 95- Evidence as to the document unmeaning in reference to existing facts. When language used in a document is plain in itself, however, is unmeaning in reference to existing facts, reality or situations, proof might be given to demonstrate that it was used in an unusual or different way.
Section 96- Evidence as to the application of the language which can apply to one of several persons. At the point when the facts are with the end goal that the language utilized may have been intended to apply to anyone, and couldn’t have been intended to apply to multiple, of a few people or things, proof might be given of certainties which shows the people or things, it was planned to apply to.
Section 97- Evidence as to the application of language to one of two sets of facts, to neither of which the whole correctly applies. When the language used is applied partially to other existing facts and partially to other existing facts but the whole does not apply to either of the facts mentioned. Evidence can be given to show that which of the two it was meant to apply.
Section 98- Evidence as to the meaning of illegible characters, etc. Proof might be given to demonstrate the significance of obscured or not ordinarily clear characters, of remote, out of date, specialized, and provincial expressions, of abbreviations and of words utilized in an exceptional sense.
Canadian-General Electric W. v. Fatda Radio Ltd held that for the explanation of artistic words and symbols used in the record oral evidence is admissible and can be used for that purpose.
Section 99- Who may give evidence of an agreement varying term of the document? The person who is not a party to a contract or their representative may give evidence of any fact which do not contradict with the documents.
The value of documentary evidence is more than oral evidence. The court mainly accepts documentary evidence but takes oral evidence into consideration. Briefly, we can say that there are two types of documents- oral and documentary evidence. In court, documentary evidence has more value. Court wants best evidence and documentary evidence is the best evidence and it consists of two parts primary evidence and secondary evidence. Primary evidence is the best evidence recognized by the court. In the absence of primary evidence, secondary evidence is given to the Court. On the other hand, oral evidence is evidence given by words and gestures and are not permanent it can be changed. Hence Section 91 and 92 exclude oral evidence by documentary evidence. Proof in the form of a document can be submitted instead of giving orally.