This Article is written by Ritesha Das, Symbiosis Law School, Hyderabad. In this article, she has discussed the admissibility of oral and documentary evidence.
The legal definition of evidence is neither static nor universal. Medieval interpretation of evidence in the era of trials by ordeal would rather be unfamiliar to the contemporary sensibilities and there is no approach to evidence and facts that is accepted by all the legal frameworks of the modern world. As the saying goes, ‘A wise man puts his assurance in the evidence.’ Facts and evidences play a significant role in the judicial process. Like in the course of the trial, it is the testimony that determines whether or not the defendant is guilty. This evidence is broadly classified under two categories: Oral evidences and Documentary evidences. As the name suggests, the oral evidences involve the oral testimony of the witness whereas Documentary evidence refers to written documents or reports in written or recorded form created as testimony before the courts. Due to the surging malpractices, certain requirements have been defined during the submission of evidence before the court in order to preserve the justice to be offered to the perpetrator of the crime.
Over a period of time, the significance of the oral testimonies has been acknowledged in the Indian courts. The term ‘oral evidence’ simply means oral testimony of the witness after the undertaking of an oath. It has been introduced under the sphere of Section 3 of the Indian Evidence Act. It has been further elaborated under section 59 and 60 of the Indian Evidence Act. In order to foster the resolution of cases and to ensure that justice prevails, the courts have made a few modifications and made oral testimony an integral aspect of the criminal proceedings. Section 3 of the Indian Evidence Act explicitly states that oral evidence includes all the statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry.
The Courts in India are well acquainted with the fact that oral testimony is much less reliable than documentary evidence. But that can’t be a justification for the nullification or invalidation of the oral testimony. Courts in India are well acquainted with the fact that oral testimony is much less reliable than documentary evidence. But that this can in no way be a justification for the invalidation of oral testimony. In order to ensure that oral evidence is not abused or manipulated and does not obstruct the administration of justice, a range of requirements have been set out:
- Oral evidence must be aligned with the situation; it should be accurate and does not deviate through cross-examination.
- In the case that oral evidence corresponds to a fact that has been seen, they must be the witness has witnessed the incident. The evidence of the witness should not be centred on the perspective of any other intermediary.
- The court has the discretion to order the correct documentation supporting the oral testimony would have to be collected and submitted.
The Information Technology Act (2013) and the Criminal Law (Amendment) Act (2013) are the two recent laws in the Indian legal sphere which further expanded the orbit of evidence. The Information Technology Act, 2000 elaborated the concept ‘evidence’ by incorporating electronic records as testimony that must be presented to the court. Evidence under the Criminal Law (Amendment) Act, 2013 was a victory for the women victims as their character could no longer be challenged or questioned in the shield of evidence.
DEBATE ON THE ADMISSIBILITY OF ORAL EVIDENCE
The maxim of ‘Falsus In Omnibus’, meaning ‘False in one thing is false in everything’ highlights the credibility of an oral statement according to which it is a blend of both truth and lie. But every adage entails certain exceptions which aim to strengthen the rules rather than contradicting it. Such exceptions can be applicable in few different cases, because they should not really deviate from the intent of the main rule if other considerations are taken into account, thereby further stressing that the rule is what must be enforced in the majority of circumstances. Hence, the application of the above maxim was discarded as it questioned the reliability and credibility of every oral testimonial. The case of Ugar Ahir V. State of Bihar[i] ruled that this adage is neither a rational rule of law nor a rule of practise on the ground that it barely comes across a witness whose testimony does not contain an element of truth or, at any rate, inflated fabrication or embellishment. It is the responsibility of the court to scrupulously analyze the evidence and to extract the elements of truth. The entire evidence of a witness can’t be discarded unless its elements are intrinsically mixed up, is impossible to separate the chaffs from the grain.
ADMISSIBILITY OF TAPED EVIDENCE
The question of admissibility of evidence recorded in a tape had also emerged during the debate of the credibility of the oral evidences. This question was solved in the case of Pratap Singh v. State of Punjab in which the Supreme Court held that it can only be served as corroborative evidence (Indirect or supportive evidence) and is admissible only if the court is satisfied with the fact that it has not been tempered or dubbed. The term evidence shall equate to any assertion which the court can or can compel a witness to make before it in relation to the facts of the case under examination, that shall be referred to as oral evidence. The documents such as electronic records produced for scrutiny by the Court; such documentation shall be referred to as documentary proof or evidence. Accordingly, it is crystal clear from the above-mentioned provisions that the statute monitors the information stored on magnetic or electronic devices and considers it is a form of oral evidence which falls under the ambit of documentary evidence as per Section 3 of the Indian Evidence Act, which explicitly states that electronic records produced in the court fall under the sphere of documentary evidence.
The tape-recorded conversation can be quickly wiped away by subsequent recording, and the substitution could be superimposed. However, this aspect should have an influence on the weight to be added to the testimony and not on its admissibility. In the end, if there is a well-founded intuition in a particular case that there is no evidence that the recording of the tape has been tampered with, it would be a rational reason for the court calling for real insight to its evidentiary value. In the case of Ram Singh v. Col. Ram Singh[ii], the following criteria have been set out by the Apex Court for the admissibility of tape recording conversation:
- The voice of the speaker must be correctly recorded by the maker of the record or by those who know his voice. Where the maker has refuted the voice, very tight concrete evidence would be needed to decide whether or not it was actually the speech of the speaker.
- The authenticity of the tape record shall be decided by the maker of the record through acceptable evidences being direct or circumstantial.
- Any possibility of tempering or deleting a part of a tape-recorded statement must be ruled out; otherwise, the said statement may be declared out of context and therefore inadmissible.
- The assertion must be relevant in compliance with the rules of the Evidence Act.
- The registered cassette must be properly sealed and kept in secure or official custody.
- The voice of the speaker should be clearly audible and not obscured or distorted by other sounds or disruptions.
THE EXCEPTION OF HEARSAY RULE
Hearsay evidence can be described as ‘a statement except the one given by an individual during oral testimony in the proceedings,’ which is ‘inadmissible as evidence of any facts alleged. In simple words, hearsay evidence means the second-hand evidence which the witness had gathered from the medium or perspectives of an intermediary present in the concerned situation. A befitting example would be the evidence of a murder scene gathered by the witness by relying on the words of his neighbour. In the above case, the evidence of the witness is inadmissible unless he has witnessed the entire scene and has his own perception rather than relying on the statements of his neighbour. But if that neighbour witnessing the entire situation is presented as a witness, then his evidences will be admissible. The rationale of the inadmissibility of the evidence circulated by an intermediary can be applied as an interpretation of equity and justice being centred on the assumptions questioning the reliability and credibility of the information to be extracted through the evidence due to the fact of being circulated by an intermediary.
A BRIEF HISTORY OF ORIGIN OF THE HEARSAY EVIDENCES
The origin of the oral evidence rule can be traced during the period of 1500s, reflecting a minor deviation from the manner of justice as it was solely based on a jury, which clearly permitted and condoned the method of collecting evidence from knowledgeable people that had not been called to court; and hence oral evidence has first acknowledged the mechanism of bringing witnesses to court in a positive light. At the beginning of the 17th century, there was a digression in the style of the trial of the witness which no longer stemmed on the evidence of the individual testifying. It might be borne out of his own opinion or from the pieces of information assembled from the third parties, as in the case of judges, but on the true insight of the facts rather than relying on his own perceptions or what he may have gathered from others. Thus, in the 18th century, the concept of evidence was gradually acknowledged and implemented strictly in legal trials and second-hand witnesses, or the testimonies of persons, not centred on their own observation or interpretation of the truth required to be proven, became inadmissible in the court of law. The same standards of common law had also been adopted by the British and were incorporated into the Indian legal system and can be found in Section 60 of the Indian Evidence Act, 1872.
EXCLUSION OF HEARSAY EVIDENCES
The hearsay evidences are considered inadmissible under the court of law due to the following reasons:
- Hearsay evidences are free from cross-examination due to which the authenticity and reliability of the assertions can’t be tested.
- The chances of fabrication is higher due to the depreciation of truth. Moreover, these evidences don’t involve the undertaking of any personal liability or oath by the original declarant.
- The possibility of substitution of weaker for stronger evidence is higher.
- Being protected from legal investigations, hearsay evidences are generally weak and fabricated.
- EXCEPTIONS OF THIS RULE
- Res gestae: This maxim simply means ‘things done, including words spoken that form part of the same transaction.’ An individual’s assertion can be confirmed by another individual who acts as a witness if the assertion is part of the transaction in question.
- Admission and acknowledgement: An extra-judicial confession or an acknowledgement which is claimed to be proven by the evidence of a witness to whom such admission or acknowledgement is rendered is admissible as an exception.
- Statement under section 32 of the Indian Evidence Act: According to this section, the assertions made by a person who can’t be presented before the court due to their death or ailment or incapability to testify or resulting in excessive duration or delay in the judgment of the court, is admissible as an exception to this rule.
- Evidence presented in the prior proceeding: The evidence presented by the witness in the trials can be used as a testimony for the validity or establishment of the facts set out in any subsequent proceedings between the same parties, in case the witness has died or is unavailable for any reason.
- Statement in public documents: The statements in the public record such as Parliament’s Acts, official books and records may be proven by only producing the document or the record rather than producing the draftsman before the court.
Documentary evidence means any evidence introduced in the court in the form of documents or records, being distinct from the oral evidence. Documentary evidence is commonly intended to refer to texts on paper (such as invoices, contracts or wills), but the scope may extend to any medium through which data can be stored, such as photos or any medium that needs to be accessed by a mechanical device, such as tape recording or film or any printed form of digital evidence such as e-mails. The admissibility of the documentary evidence depends on the authenticity of the document laying the foundation of the evidence.
One of the key points to be noted while submitting any evidence in the court is that the submission can only be made in the form of primary or secondary evidences. The term primary evidence means the original document presented in the court for the verification or inspection. Being the main source of evidence, it can be submitted without prior notice. Secondary evidence simply means alternative evidence submitted with a prior notice, which is admissible by the court under certain conditions. In the case of Ram Prasad V. Raghunandan Prasad[iii], the court held that the evidences must be submitted either in the form of a primary document or in the form of secondary evidences or oral accounts of the contents. The cardinal rule is to submit the best evidence under the court of law. Primary evidence has been regarded as the best evidence, whereas the admissibility of secondary evidences is questionable unless the originality and authenticity are proved.
ADMISSIBILITY OF PRIMARY EVIDENCES
As per section 62, primary evidence refers to the original document itself submitted for the scrutiny of the court. It is evidence that the law asks first. If the original document is submitted for assessment by the court, it shall be referred to as primary evidence. For instance, R draws a bill of exchange of Rs 10000 against S. But on the due date of the payment, S denies the acceptance of such bill due to which R filed a suit of recovery of the amount. If R submits the original document to the court proving the execution of the bill of exchange specifying the borrowed amount, that document will fall under primary evidence.
If the document is fragmented or duplicated in various copies for the execution of any agreement, each party retaining the same copies of the document can submit it as primary evidence. For example, R and S enter a contract. The written contract between the parties will be fragmented into two documents so that both the parties can retain the written document. In this case, both the copy of the documents is considered as primary evidence. If the document is divided and enforced in counterparts, each counterpart will serve as the primary evidence against the parties enforcing the document. The agreement or the document will fall under the enforcement in counterparts only if each instrument is signed by one party and forwarded to the other. The document will be primary evidence against the party enforcing it out but will be secondary evidence against the other party who did not execute it.
If all the documents are printed in the same standardized or uniform process, each one of them will be regarded as the primary evidence of the content of the others. The copies of the common original cannot be regarded as primary evidence of the content of the original. In the case of Jeevanantham V. State through inspector of police[iv], the school certificate prepared on the basis of admission is the only secondary evidence and, as such, the school certificate prepared on the basis of the admission form cannot be acknowledged in evidence as primary evidence but only as secondary evidence in the absence of proof that the primary evidence has been lost.
If a number of documents are all made by one uniform process, as in the case of printing, each is primary evidence of the content of the rest. If they are all copies of a common original they are not primary evidence of the contents of the original. In the case of Jeevanantham V. State through inspector of police, the school certificate prepared on the basis of admission is the only secondary evidence and as such the school certificate prepared on the basis of admission form cannot be admitted in evidence as primary evidence but only as secondary evidence in the absence of the proof that the primary evidence was lost.
ADMISSIBILITY OF SECONDARY EVIDENCE
Secondary evidence means alternative evidence submitted with prior notice, the admissibility of which is subjected to certain conditions. Secondary evidences are defined under Section 63 of the Indian Evidence Act, according to which ‘secondary evidence means and includes: (1) Certified copies (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies; (3) Copies made from or compared with the original; (4) Counterparts of documents as against the parties who did not execute them; (5) Oral accounts of the contents of a document given by some person who has himself seen it.[v]’
This section is detailed with respect to the forms of supplementary proof admissible under the Act. It is evident from the phrase “means and includes in this section” that the five clauses relating to secondary evidence are comprehensive. However, being alternative evidence, secondary evidences are not mechanically admissible unless an adequate justification for the non-submission of the original report or document is given.
The authenticity of the authorized copies shall be presumed in compliance with s 79, but that of the other copies must be established. This testimony can be provided by bringing a witness to acknowledge that he has compared the copy submitted in court with the original one. The certified versions of money lender licenses are admissible in court.
The types of secondary evidences include: Certified copies, copies prepared by a mechanical process, Counter foils, Photographs, Xerox copy, Photostat copy, Carbon copy, Types copy, Summary on a civil subject for the workshop, Tape records, Copies made from or compared with the original copy, Counterparts, Oral accounts, Registration copy, Unprobated will, Age certificate, Voters list and Newspaper report.
MODES OF CERTIFYING A DOCUMENT
The facts and details of private records or documents are verified either by primary or secondary evidence in the light of Sections 61 to 66, the authenticity is identified by the incorporation of evidence in accordance with Sections 67 to 73, or the validity of their contents is generally determined by independent, direct or circumstantial evidence. An accurate published document will only be acknowledged at the final hearing of the proceedings. It’s up to the party to justify a statement that they decide to rely on it. The authenticity or accuracy of the contents of the document must be proven by oral testimony and the details of the document must be determined through the introduction of primary or secondary testimony.
A document is generally considered to be proved and certified under the following three conditions:
- Proper execution and interpretation of the document, i.e. the writing or signature of the writer, if any, is shown.
- Scrutinizing the contents of the document.
- Establishing the authenticity of the contents of the document.
The Evidence Act differentiates between the ‘Private document’ and the ‘Public Document’ and the above-mentioned requirements for the verification of the document do not extend to the ‘Public Document’ due to certain grounds of special rules and presumptions set down by statute.
Execution and interpretation of the document
The verification of the signature or writing of the document is executed to light up the authenticity and genuineness of the document. The party submitting the document as evidence must have the handwriting or signature of the writer, verified by the writer himself under Section 67 of the Act or by any other party familiar with the handwriting in question under Section 47 of the Act. In addition, the signatory can himself acknowledge that he has signed or executed a document which dispenses with the evidence of that document under Section 58 of the Act. In addition, according to Section 73 of the Act, the court itself is empowered to evaluate the handwriting or signature in issue with the accepted ones approved by the court. Under other cases, as set out in Sections 79 to 90(A) of the Evidence Act, the court is allowed to assume that the signature of the author and the evidence itself is authentic. Thus, according to Section 79, the court can assume that authorized copies are genuine. A signed document or handwriting is often referred to as pure ‘formal testimony of a document’ because the testimony of the document does not inevitably contribute to authentication of the content of the document.
- Scrutinizing the contents of the document
The content of a document will normally be verified by the key evidence.’ However, if the party is not in a position to provide the primary evidence, then according to the grounds set out in Section 65 of the Act, the party is able to provide secondary evidence to support the substance of the text. The presentation of the Content as evidence is not equivalent to the authenticity of the contents. The distinction was drawn in the case of Om Prakash Berlia v. Unit Trust of India,[vi] where it was stated that the term ‘content of the document’ under the Evidence Act would signify only ‘what the document states and not the validity of what the document states,’ and that the meaning of the content of the document cannot be established merely by the submission of the document. For example, a letter is submitted as being written by ‘A’, comprising of a statement involving ‘B’ paying a sum of money to ‘C’ in his presence. If the ‘contents’ of the letter are proven, then it can be said that the letter was written by A. But that doesn’t mean B has paid that sum to C. Therefore, the ‘truthfulness and authenticity of a document’s contents’ must be proven precisely.
- Establishing the authenticity
Section 67 of the Indian Evidence Act stipulates that personal knowledge must prove the truthfulness of the contents. The witness who was appointed by the party deciding to rely on a document must usually have personal knowledge of the document. Such witness, in other words, should be the author of the document. This is evidence under the purview of oral evidence laid down in Section 59 of the Indian Evidence Act. However, in the case of Bhima Tima Dhotre v. Pioneer Chemical Co[vii]., the court noted that in order to verify the document, it was not essential to call the author of the document because documentary evidence would be futile if the author had to be called in every case. It can, therefore, be said that the facts of the contents of the document must be established either by the author or by ‘the person who knows and comprehends the contents,’ i.e. the person who has personal knowledge of the document.
Oral admission is regarded as a testimony against the individual making the false argument which may not be binding in reality. Admissions duly verified are admissible testimony immaterial of the fact that the party making the statement stood in the Witness Box. In addition, admission is the best substantial evidence that an opposing party will rely on it. The value of admission of the evidence by the government is only significant and not absolute unless the party to which it is rendered has behaved and thereby altered its detriment. While oral testimony is of lesser significance than written evidence, it may be taken into account by the court with some corroboration. In a short statement, all oral and written testimony is presented by the parties. In the court of justice, the importance of documentary testimony is significantly higher than that of oral evidence. Because the statute also demands the best evidence, and oral testimony is evidence, which is information that is constrained to written or oral phrases. There are two angles of documentary evidence. Primary evidence is more credible and the correct testimony to be found by the court of law. In the absence of primary testimony, secondary testimony is submitted, indicating that the witnesses were provided on the basis of their own perspective, whereas under primary evidence, the original document is sent to the court of law for review. Direct testimony is the best key to show that it has been established. The documentary evidence eliminates and exempts oral testimony and prevails above oral evidence when presenting evidence as witnesses to the court of law. The party submitting the evidence is eligible for cross-examination to test its authenticity. Oral evidence can’t be replaced for documented evidence if there is a written record of the testimony of such crime events referred to under Section 91 as a written deposition, which is more probable and more accurate than oral evidence.
[i] Ugar Ahir V. State of Bihar, AIR 1965 SC 277
[ii] Ram Singh V. Col Ram Singh, 1985 SCR Supl. (2) 399
[iii] Ram Prasad V. Raghunandan Prasad (1885) ILR 7 All 738
[iv] S. Jeevanantham vs State through Inspector Of Police, 2004
[v] S. 63, The Indian Evidence Act, 1872s
[vi] Om Prakash Berlia v. Unit Trust of India, AIR 1983 Bom 1
[vii] Bhima Tima Dhotre v. Pioneer Chemical Co., (1968) 70 BOMLR 683
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