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This article is written by Khushi Sharma, currently pursuing B.A.LLB (Hons) from IIMT and School of Law, IP University. This is an exhaustive article which deals with the oral evidence under the Indian Evidence Act,1872. 

Introduction

All of us know what importance evidence holds under any court proceedings. Evidence is a certain reliable and relevant set of facts which proves or abstains from proving any matter; there is a prescribed manner on which the cycle of evidence works which has been divided into two main heads- Oral and Documentary evidence by the Evidence Act 1872. In this article we will be dealing with oral evidence, how is it made and everything which will make us understand Oral Evidence.

Oral Evidence is dealt with under Section 59 and 60 of the Evidence Act, 1872. Oral evidence is defined under section 3 (under evidence head) which explains that “All statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called as oral evidence.” The word ‘Oral’ itself describes its meaning as something spoken or expressed by mouth; so anything which is accepted in the court in relation to the inquiry and expressed by any witnesses who are called in the trial is termed as oral evidence. Oral Evidence also includes the statements made by people in signs and writing forms (inclusive of people who cannot speak).     

Importance of Oral Evidence

Every evidence plays an important role in the trials, oral evidence has been growing in regards to usage; as earlier it was not considered to be as precise and blunt as documentary but its need and importance has been constantly subjected to rapid growth. Oral evidence is also equally important as it stimulates a person and extracts what a person has seen or what he wants to say in regards to the trial. Oral evidence is comparatively easier to refer. The importance has been explained by the Bombay High Court in one of the cases that if the oral evidence is proved beyond reasonable doubt it can also be enough for passing conviction.  

Section 59 – Proof of facts by Oral Evidence 

All the facts and circumstances may be proved by oral evidence by expressing or speaking except the contents of documents and electronic records. The contents of documents and electronic records cannot be proved by oral evidence. It is held that if any person has to be called for proving their documents then that document becomes oral and documentary evidence loses its significance.

It was held in 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. This provision would clearly indicate that to prove the contents of a document by means of oral evidence would be a violation of that section.”

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Section 60 – Oral Evidence must be Direct

This is the cardinal principle of any evidence to be admissible in the court. If any oral evidence needs to be admissible, all the conditions under Section 60 of the Indian Evidence Act must be fulfilled. If anyone of the following conditions is not fulfilled, then the evidence will fail to be pictured as an Oral Evidence. Oral evidence and section 60 is a proportional equation. For acting out one, the other needs to be fulfilled.

The base principle on which section 60 is placed is that the evidence which is taken into regards must be direct. The word direct does not include any category of hearsay as its main element is vested in the word “must”. Every statement under oral evidence must be direct. Now let’s focus on some conditions which need to be fulfilled to make oral evidence admissible;

  • Direct oral evidence

Oral Evidence must be direct in all cases. Indirect ways or hearsay is not considered a part of direct oral evidence. The word “Direct” in all matters must mean that it is administered by any person on their own i.e through their personal knowledge and is not passed by any other person (hearsay) which on the other hand will be inadmissible. This involves certain cases in which the word “direct” is involved :-

  1. It refers to a fact which could be seen, it must be the evidence of a witness who says he saw it –

It refers to evidence which has been given by the person who has actually seen or observed the matter by their own eyes, This will be actuated as direct evidence.For example: if A saw that B is hitting C. A will be an eyewitness to the crime scene and his testimony will be that of direct evidence.

  1. It refers to a fact which could be heard, it must be the evidence of a witness who says he heard it – 

It refers to evidence which has been given by the person who was present and has actually heard the matter by themselves, this will come under direct evidence.For example: if A overheard B’s conversation that stated; that he is going to kill C tomorrow under the bridge, A’s testimony will be that of direct evidence.

  1. It refers to a fact which could be perceived by any other senses or any other manner, it must be the evidence of person who says he perceived it by that sense or manner

Meaning such evidence that has been given by the person who has perceived it in any other manner or by any other senses but it has been perceived by that person itself. For example: through sense of smell or taste. 

  1. If it refers to an opinion or to grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds – 

It means when a person holds any opinion on any matter or incident, only his testimony on the ground of which his opinion is formed will be admissible in the court.For example A thinks that B is not a good guy, so his testimony of that opinion will be termed under direct evidence.  

  • Meaning of Hearsay Evidence 

All of us are aware  of what hearsay is; hearsay is any information which is received by any person from any other source. Hearsay means when a person does not have a personal knowledge about a particular matter or incident and he has been informed about that particular matter by any other person. 

As oral evidence includes first-hand knowledge thus, Hearsay evidence is excluded under the ambit of oral evidence because hearsay is not directly obtained evidence.

  • Rationale behind the exclusion of Hearsay Evidence

From the above head now we know that Hearsay Evidence is second-hand knowledge. But why is it excluded from oral evidence?

For oral evidence to be admissible it only accepts the rule of first-hand knowledge. It only includes what is directly seen, heard and perceived by a person. There is no room for second-hand knowledge. A conviction passed on hearsay may be truly unjustified as there is no reliability as to whether the person who has passed on the following information is credible enough or not. For example: if A has received information through B that he saw C hitting D. This will be hearsay because A himself has not administered the incident. For this reason, Hearsay has been excluded from Oral Evidence. 

  • Statement to witnesses by persons not called

There may be some cases in which witnesses may not be called but their testimony is accepted and not treated as hearsay. In certain cases, such statements may be admissible. Opinions of experts which are embedded in things which are maintained for sale like books of authors can be accepted as oral evidence when the author of the book is dead, cannot be found, cannot come to the court for some reason or the court thinks that calling such person may be a delay of proceeding, so any such statements shall be admissible. 

  • Child Complainant’s Evidence by video-recording and television link

Oral Evidence also includes the child’s complainant evidence by video recording and television link, so if there is any evidence which is presented through video recording they are admissible under oral evidence as long as they are not tampered with. 

  • Witnessing offence on visual display of video-recording

If there is a video which displays an offence being committed it may be admissible if it ensures that it is not tampered by any means. This may also be included under oral evidence. 

Section 33 as an Exception to Section 60

Section 33 of Indian Evidence Act, 1872 basically gives us a structure of exception to section 60, it has certain exceptions against rule of hearsay which we will see below: 

  1. Res-gestae( derived from a Latin word meaning something deliberately undertaken or done)For example, if A sees B passing by him on a bike and after that he sees that B has been injured but A has not administered the accident on his own, when A goes to B;  B says that C has hit him by truck, such statement though hearsay may be admissible.  
  2. Admission or confession- For example, A coming out of the court tells B his guilt of committing murder of C, though hearsay but statement shall be accepted as evidence. 
  3. By any reason the person cannot come to the court if he is dead, cannot be found, is incapable of coming to court; every such information which has been passed to the other person and that person giving the testimony in the court shall be held admissible.  

Difference Between Oral and Documentary Evidence

BASIS

ORAL EVIDENCE 

DOCUMENTARY EVIDENCE

  1. Meaning 

Oral evidence is the evidence given by witnesses who are called in the court in regards to the trial orally. 

Documentary evidence, on the other hand, is the evidence which is submitted in the court in written form including documents, papers etc. 

2. Legally defined

Oral evidence is mentioned under section 59 and 60 of the Indian Evidence Act. 

Documentary evidence is dealt from section 61 to 66 of the Indian Evidence Act.    

3. Types 

Oral evidence should be given direct form.

Documentary evidence has direct documents and secondary documents. 

4. Forms of submission

Oral evidence can be given through speaking, signs or gestures 

Documentary evidence must be given in writing.

 

Case Laws on Oral Evidence

It was held under this case that section 60 of the Indian Evidence Act only includes the word “direct” and excludes hearsay. Any evidence given must be direct and the hearsay evidence does not hold any area under oral evidence as it is not direct. But the doctrine of Res-gestae has been observed as an exception to the rule of hearsay which explained that any person who has experienced any series of relevant facts, his testimony after the incident even if he has not seen the crime being committed will be accepted. 

A relationship between section 50 and 60 of Indian Evidence Act has been established which says that for proving an evidence completely, two things shall be fulfilled firstly, there shall be a presence of relevant facts and those facts have been presented directly by the person who has either seen them, heard them or etc. 

  • Bhima Tima Dhotre v. The Pioneer Chemical Co.

In this case, it was held that any fact can be proved by oral evidence instead of the content of documents or electronic records. It is seen that if the person who has presented the documentary record is called to prove the records, documentary evidence loses all its significance and it will become oral evidence which will be meaningless.  

Conclusion

On concluding the article, oral evidence, with its increasing approach can be appropriate for passing judgement if proved beyond a reasonable doubt. Earlier it was seen to be weak evidence but its need has been growing in modern times. In my opinion incidents and facts can be better understood through oral ways as the person who has administered the incident itself can explain it in a more clear way rather than documentary form of evidence.

References


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