Evidence is defined Under sec 3 of the Indian Evidence Act which states that
´┐Ż means and includes:
- 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 oral
- [all documents including electronic records produced for the inspection
of the Court;]
such documents are called documentary evidence.
According to Section 3, evidence could be defined as that anything which a court
permits in order to record by the witness with the related matters to the fact
in issue. Evidence could be said anything that is basically used to revel the
truth behind the mystery of any criminal or civil case. Generally, in a case,
evidences are presented by the party on whom burden of proof lies. Evidence
could be of testimony, documentary, oral and physical evidence types. Evidences
are basically accepted only when that is consider as relevant to the case facts.
Here in this research paper our main focus will be on the Oral evidence only and
how they are admissible in the court.
Section 22 and 22A deals mainly about the oral evidences where it says that if
in a case an oral evidence is presented than that oral evidence has to be
attached with the documents. For instance, if a child says in a court that he is
minor then, in order to give a valid proof, he has to be present with the
related documents in front of the court to prove that in actual he is Minor.
Section 59 of the Evidence act says that all facts except contents of documents
and electronic documents may be proved by oral evidence.
Section 60 of the Indian Evidence Act, 1872 says about that Oral evidence is
something which is spoken by mouth, heard, perceived and formed by an opinion by
any witness to be taken as any evidence for any case. In this something related
to documents is not mentioned but something related to the case is being
presented in the orally form. The statements then recorded are also called as
Oral Evidence. Later on, not only this section but other section was also
amended in order to include the Electronic Evidence as same as that in the IT
Act. Section 17 of this act was also amended to include fact in issue statement
in oral, documentary evidences. Also, section 22-A was also amended to include
oral evidences with the content of electronic evidences as well.
Oral hearing is generally for two purposes, in which one is for the presentation
of the oral evidences and the other one is for the oral arguments. In the case
of Bexy Michael and Anrs and A.J. Michael it was held that oral evidence are so
important that they only could be the sole reason for the ground of conviction.
The statement of the High Court states that they have no hesitation to agree
that the courts cannot be pedantic and utopian in the matter of appreciation of
oral evidences and it is prudent to act upon the oral evidence presented by the
prosecution. According to the court it does not matter if the evidence is oral
or document, what matters to them is that the evidence should be the better
evidence which one could present for any case.
Basic Difference Between Oral And Documentary Evidence
Some of the difference which could be depicted between oral and documentary
type of evidence are:
- Oral statement is something defined under Section 59 and 60 of the
Evidence Act which is in oral form whereas documentary evidence is defined
under Section 61 to Section 66 of the Evidence act is something which is
related or submitted to the court in the form of documents.
- Oral evidence is something which is in the form of speech, motion,
gestures, recordings etc. whereas documentary evidence is in the form of
writing, documents, letters, symbols.
- Oral evidence is most reliable for any case only if that is directly
given by any witness whereas documentary evidence content has to be
supported by the primary as well as secondary evidences for the inspection
of the further case.
Admissibility Of Interviews As An Evidence:
In the modern era, the importance of written evidence is considered as more
reliable but the origin of oral evidence has not completely demolished but
beside the written evidence due to advancement in technology, a craze for
presentation of oral evidence and relying upon the oral sources have also
increased. Oral sources such as speaking, any kind of gesture of motion,
audio-forms, recordings are considered equally important as that of written
evidence. Evidences which are in the form of interviews are also considered as
relevant under oral evidences.
In the case of Jagjit Singh vs. State of Haryana
it was held that interview which was taken by the Aaj Tak TV Channel or by other
TV channels, would be admissible under a relevant Evidence doesn't matter if it's not a primary evidence but being the secondary evidence, this would be
considered as the relevant oral evidence.
In the case of State of Maharashtra vs. Dr. Praful B. Desa
i, it was held while
interpreting sec 273 of Criminal Procedure code through the technology
advancement perspective that if any evidence is being recorded through the video
conferencing then considering that is a relevant fact in issues oral evidence
then, that evidence would be legally accepted evidence for the case.
Analysis Of Oral Evidences:
The oral evidences are presented by any witness by taking an oath first and then
stating his statement, then it's the duty of the court to evaluate that
evidence and later record its conclusion properly and with the equity. In the
document type of evidences, the court cross-checks the documents and verify them
but in oral evidences which is not in any form of documents, how does the court
identify whether the oral evidence is trustable or not?
In those evidences, the
Judge follows the principle of ears and eyes
´┐Ż which is that while the
witness is in front of the court giving his statement then at that time it is
the duty of the Judge to examine him properly by very closely observing that the
person giving is not under any coercion and undue influence.
The judge also has
to notice his hand movement, whether he hesitates or not, perspires or is
looking around very frequently and also the most important is that whether he is
constantly not changing his statement. All these things are necessary to be
observed clearly by the judge in order to reach any conclusion for the case.
Exclusion Of Oral Evidence By Documentary Evidence
Though in today's time many other alternate things have been discovered upon
research that not only make the presentation of evidence successful before the
court but on the other side could also mislead or unfairly persuade them by
making them so complex that the idea behind presenting that evidence could be
demolished completely. Therefore, one must be very concentrated while presenting
the oral evidences.
If according to the court it sounds like that where in some
case oral evidences could refer to any material thing or any document than court
may ask for the production of such material thing or document to be presented
before the court to be used in further proceedings.
Evidence of terms of contracts, grants and other dispositions of
property reduced to form of document. When the terms of a contract, or of
a grant, or of any other disposition of property, have been reduced to the form
of a document, and in all cases in which any matter is required by law to be
reduced to the form of a document, no evidence shall be given in proof of the
terms of such contract, grant or other disposition of property, or of such
matter, except the document itself, or secondary evidence of its contents in
cases in which secondary evidence is admissible under the provisions here in
When a public officer is required by law to be appointed in writing,
and when it is shown that any particular person has acted as such officer, the
writing by which he is appointed need not be proved.
Wills admitted to probate in India may be proved by the probate.
Section 92. Exclusion of evidence of oral agreement:
When the terms of any such contract, grant or other disposition of property, or
any matter required by law to be reduced to the form of a document, have been
proved according to the last section, no evidence of any oral agreement or
statement shall be admitted, as between the parties to any such instrument or
their representatives in interest, for the purpose of contradicting, varying,
adding to, or subtracting from.
The difference between Section 91 and Section 92 of the evidence act is that 91
is about the written document and section 92 is about the oral form of
evidence. The guideline sets out that when the conditions of any such report
have been demonstrated by the essential or optional proof of the archive, no
proof of any oral arrangement or explanation will be conceded.
Some of the exception of this section are:
Validity of the documents: This says that validity of any document evidence is only when it is related
to the case facts, or entitle any one party to any decree or pass any order
related to the document. Here the validity whether documents are valid for
the case or not could be questioned in order to verify.
When document can't prove much: In some cases where documents cannot be
used as a strong evidence, then in those cases oral evidence are given more
preferences over documentary cases. But the condition for oral evidences are
that the oral evidences must be erratic with the evidences which are presented
in the documents and the other one is that it should be of the range of
documents, in the other sense it should be of the degree of formality as that of
Condition Precedent: This exception says that if beside the documents, oral
evidences are attached then that must also be proved as the document will be,
later on it can't be contended that oral evidence can't be taken in
Recession or Modification: Resending or Modifying any document is when the
document is either completely kept aside or is dropped, so in those situations
if the agreement of all contracts is done in the terms of written contract then
in those cases any kind of oral proof or oral evidence won't work if any
modification is done in the terms and condition of the contract.
Relation of Language of facts: This exception says that if whatever documents
are stated to be presented as an evidence then on those only the oral evidence
are also need to highlight upon them in order to disclose the whole meaning what
the document need to convey.
Though oral evidences are not that discretionary than documentary evidences but
still they cannot be invalidated or ignored if they do not fluctuate during the
whole proceeding time and become consistent as what they were at their origin.
Secondly, an oral evidence could not be a hearsay evidence, in the sense that it
has to be in actual seen or have been perceived by the person giving the oral
For example, if a person has actually seen a crime happening, so in
that case no document would be much relevant than an eye victim who have come to
give oral evidence in front of court, then that person should give his statement
on what he has seen about the crime happening and should not say on mere what he
has heard from other people present at the crime scene. If he says anything on
hearsay information then in those situation oral evidences would not be
considered as reliable.
There is a reason given in Halsbury's Law of England for rejection of hearsay
evidence, that reads:
´┐Żthe irregularity of
original declaring, the depreciation of truth in the process of repetition, the
opportunities for fraud, which, its admission would offer and waste of time
involved in listening to the idle rumor´┐Ż.
In the Achutananada Baidya v.
Prafullya Kumar Gyan case
, Mr. Battacharyya contended that being a witness in
this case, he says that though there had been discussion between both the
parties but he haven't actually heard what were they discussing upon. So, the
court held that no reliance can be placed on the disposition of the witness
examined by the applicants to prove the existence of the oral agreement.
witness has just merely heard the conversation and has come to know about the
oral agreement discussion. Therefore, oral evidences are the one which
originated from the person knowledge of what he has perceived and witness from
his own eyes but the hearsay is what he has learned it from here or there then
there is a chance that, that evidence is not original as it could be if he had
actually accounted it.
There are many circumstance in which court founds out the oral evidences to be
more relevant as compare to any other form of evidence, then in those
circumstances, that evidence need to be submitted along with written documents
or their proof has to be attached with some other documents in order to make
them stronger by setting a pace on the proceedings. With the increase in the
time, the need for oral evidences have also increased beside the documentary
It has not only become important in civil proceedings but also plays
an important role in the criminal proceedings as well, as it covers even the
small-small details of any evidence to get closure in that case. Seeing this
much importance, in the Bombay High Court, it was ruled that oral evidences
could be used in any proceedings of the cases. Under an oral evidence, any
statement unlike documents need to be presented by the witness in front of the
court by physically presenting there.
Oral evidence not just include any person
speaking from the mouth, it could also include motion and gestures as well. For
instance, there is a person who has been a victim of murder done by cutting this
throat, though anyhow he survived but could speak properly then any action of
hand or movement towards any person would amount to a valid oral evidence
because an oral evidence cannot be ignored on the ground of non-production of
the medical evidence.
In any case if the witness is not able to be present before the court then in
those circumstances things related to the proof he is going to give could be
presented. For example, if an author has pen down his expert opinion on
something in a book then either he himself can come and say the same in front of
the court or if he is unavailable or for him it would be too expensive to come
then under section 60 first provision, that book on his behalf could be used as
a witness for the case.
The oral evidence which is submitted must be direct as per section 60 of the
act. Those evidences which are not direct and are hearsay are not admitted under
the act. In the case of Bakhshish Ram and Another v State of Punjab
, in this
case the learned counsel Mr. Satinder Singh Gulati said, that when the wife of
deceased Bikkar Ram gave her statement, then that statement seemed very vague
and ambiguous. In the first part of her statement it was clearly highlighted
that she did not had any knowledge but have heard that from her daughter because
her statement where she admitted that she heard has been extracted and now
conviction could not be based on this evidence.
Oral evidences are to be produced before the court in terms of either by
Speaking or by doing some gestures by depicting anything. In the above Research
Paper, it has been highlighted that how the oral evidences are presented before
the court as an evidence in any case. Though documents are given more preference
over the oral evidences but if presented in a good manner, these evidences could
be the sole ground for coming to any conclusion of any of the case.
Section 60 of the evidence act, defines the oral evidence as anything in oral
form is called as the oral evidence and this could include gestures, movements
of hands, speak from Mouth and the interviews which are face to face or in the
recording format could also be used as an oral evidence.
These types of evidence have really helped in solving many cases where documents
could not have done much their oral evidences have helped to come to the
conclusion easily but here the judge who is deciding the case has to be very
careful while observing the person who is giving the oral evidence before the
court. The judge has to see whether that person is reasonably acting which is
that he should not hesitates and should not change his statement so frequently,
Apart from that these evidences are perfectly fine as an evidence.
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