In this article, we shall discuss about oral evidence and its evidentiary value.
Evidence and its Kinds:
According to Section 3 of the Evidence Act 1872, evidence means and includes:
- All such statements which the court allows or needs to be presented before it by the witnesses in connection to matters of fact under inquiry. These statements are termed as oral evidence.
- All such documents including any electronics record, presented before the court for inspection. These documents are termed as documentary evidence.
According to the definition given in the Indian Evidence Act, evidence can be divided into two categories:
- Oral Evidence;
- Documentary Evidence.
It should be noted that evidence can be both oral and documentary and also, electronic records can be presented in the court as evidence, which means that even in criminal cases, evidence can be presented by way of electronic records. This shall include video-conferencing.
Oral and documentary evidence can be divided into two categories:
- Direct or primary;
- Indirect or hearsay or secondary.
There is also a category of real or material evidence, which is supplied by material objects for inspection of the Court such as a stolen good or the weapon of offense.
Oral Evidence:
Primary oral evidence is the evidence that has been personally heard or seen or gathered by the senses of a witness. It is called direct evidence as defined by Section 60 of the Indian Evidence Act.
Section 59 IEA:
Proof of Facts by Oral Evidence:
All facts, except the contents of documents or electronic records, may be proved by oral evidence.
It is basic rule of evidence that where written documents exist, they shall be produced as being the best evidence of their own contents. Oral evidence includes all statements which the court, permits or requires to be made before it by witnesses in relation to matters of fact under inquiry. All facts except the contents of documents may be proved by oral evidence. Contents of documents may be proved by oral evidence under certain circumstances i.e, When evidence of their contents is admissible as secondary evidence.
Section 60 IEA:
Oral Evidence Must be Direct:
Oral evidence must, in all cases whatever, be direct; that is to say—
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
In Vinod Kumar Bhutani v. State Thr. CBI on 28 May, 2013 the Court observed “in determining the admissibility of evidence the production of the best evidence should be exact” Sections 60, 64 and 91 are founded on this rule. Since witness is called an ‘eye-witness’ or ‘a witness of fact’ who has the first-hand knowledge in the sense that he perceived the fact by any of his five sources.”
The cardinal principle is that the best evidence must be given before the court. If any person is before court as a witness, should make statement about the facts of which he is having personal knowledge and experience. According Section 60 of the Act, oral evidence must be direct or positive.
The word “must” in the section indicates the exclusion of indirect evidences including “hearsay” or derivative evidence. Where a witness gives evidence that he received information from other person and that person does not say about it, such evidence would be inadmissible being hearsay evidence.
The section, provides four methods for proving oral evidence. The evidence must be of that person who himself witnessed the happening of facts to whom he testifies.
First proviso provides for production of treatise containing expert’s opinion offered for sale, if the author of the treatise is dead or cannot found etc. (Section 32). The treatise required to be admissible must be offered for sale and the burden of proving the particular treatise is on the person who desires to give such treatise in evidence. The opinion by a living authority in a treatise as to usages and tenets of a body of men or family is not admissible under this section. Similarly, opinion of experts as expressed in treatises of person who is dead can be treated as evidence in proper case. But, using of such treatise as evidence should be made with caution when the Supreme Court explained that “every article published or a book written cannot ipso facto be regarded as conclusive or worthy of acceptance.
Second proviso requires the production of material thing (Section 45) for inspection if oral evidence refers to the existence on condition of any material thing. Secondary evidence of the contents of written document is permitted under this proviso when production of original is impracticable
Oral evidence must be consistent within itself in the sense that there are no self-contradictions and it has to be corroborate by other evidence.
Hearsay Evidence:
Hearsay evidence is that evidence which is not based upon personal vision or hearing, but based on the learning of the news through the medium of a third person: For e.g. If A sees the commission of the murder and given evidence in a court, then it is direct evidence and it is valid. If A says something to B and if B comes and given evidence in a court, then it is hearsay evidence. Hearsay evidence is not admissible.
Exception to Hearsay Rule:
There are number of exceptions to the rule of hearsay. These include:
- admission and confession section 17, 30.,
- statement of persons who are dead section 32 or cannot be found etc.,
- res gestae i.e. section 6.
- evidence in former proceedings section 33,
- entries in books of account, statement in public document, maps and charts, reputation, expert opinion and statement of experts in treaties (Proviso to Section 60).
It is therefore, said that under certain circumstances the hearsay evidence is held admissible, particularly when it “relates to the question of the credibility of witness.” The evidence of witness who heard the calling her name when her father was assaulting her mother is admissible.