On methods of providing evidence: Oral & documentary

The Part II of the Indian Evidence Act, 1872 deals with different facets of oral and documentary methods of proving facts in a judicial proceeding. The precise purpose of this write up is to describe the contents of Part II of the act in an easy to read manner.

The Part I of the act describes the concepts of relevance and admissibility of a broad range of facts, in a judicial proceeding by means of evidence whereas the Part III describes various aspects of burden of proof and witness examination.  

When a fact is proved

A fact, being contested in a case before a court, is considered to be proved only when the judge tends to believe its existence. If the judge disbelieves its existence, it remains disproved. When the fact is either proved or disproved then it is considered to be not proved at all. In other words, the term not proved means neither proved nor disproved.

Whose responsibility is to provide evidence?

The existence of a fact should be proved in a court by the party who wants the court to believe that it exists.

However such proving of facts is unnecessary when:

• the fact is admitted, even in an implied manner, by the other party
• the court can take judicial notice of the fact
• there is some judicial presumption regarding the fact

Admitted facts need not be proved

Admitted facts need not be proved. The admission of facts is done by admitting it either in the written pleadings or orally during the hearing, by the parties.

An admission is a statement (either in oral form or documentary form) made by any party to a proceeding. It indicates an inference as to the admissibility of any fact in issue or a relevant fact in a case. Any admission is a substantive piece of evidence. But it is not a conclusive proof.

Judicially noticeable facts need no proof

No fact, which the court can take judicial notice of, need to be proved. Judicial notice is the cognizance the court itself can take on matters which are well established or publicly known, without any particular proof.  A thing which is repeatedly recognized by the court and formed part of the law of the land requires no specific proof.

Certain items which the court is bound to take judicial notice are listed in the act, under its Section 57, in an indicative manner. It is not an exhaustive list.

As per the Section, the laws or rules in force, the proceedings in the legislative bodies, names, functions & signs of public officers, the geographical distinction of territories, the specialized knowledge in history, art or science, the name & address of judicial functionaries, etc which can be taken notice of by the court itself, need not be proved by the parties. The court can use appropriate books or documents to take notice of them.

Manner of proving facts

Two important methods of proving facts are by oral evidence and documentary evidence. A third method is production of material objects such as knife, gun or iron rod used in a criminal action.

Oral evidence

Oral evidence can be used to prove any fact, except the contents of a document. The contents of a document need to be proved by producing the document itself.

The oral evidence adduced must be direct evidence from persons with firsthand knowledge of it. Hearsay evidence obtainable from persons with second hand knowledge must be excluded. Direct oral evidence means the evidence that is provided by the person who has seen it, heard it or perceived it though the senses, in a judicial proceeding.

If any oral statement refers to the existence or condition of a material object the court may require the production of the object itself.

Documentary evidence

Documentary evidence is the type of evidence in which a matter is expressed on any substance in the form of letters, figures or marks which constitutes some inference or meaning.

The contents of a document may be proved either by primary evidence or secondary evidence during the court proceedings. Admitting a document during a proceeding means admission of its contents but not the truth of its contents. The truth of the contents of a document needs to be established during the trial proceedings.

Primary evidence means the original document itself is produced before the court. When multiple copies of a document are brought out using a uniform printing process each copy of such a document is primary evidence in regard to the contents of each one. But a copy thus produced is not a primary evidence of the contents of the master copy of the document.

As far as possible, the contents of the document must be proved by primary evidence. But the act specifically permits proving of some other types of document by secondary evidence too.

Secondary evidence is any derivative proof such as copies, extracts etc of a primary document.  Secondary evidence includes:

• Certified copies of the document
• Copies made from the original
• Counter parts of documents
• Oral accounts of contents of documents by some persons who have seen it

A certified copy is a copy of the original document signed and certified as correct by the official who has the custody of the original. The contents of a document cannot be proved by secondary evidence unless there is reason for receiving it. If a piece of secondary evidence is admitted in a proceeding with no objection in the trial court, then any objection regarding its admissibility cannot be roused by that party in the appellate court. However, irrelevance of a piece of evidence already admitted at the trial, can be raised at the appellate stage

If any original document itself is inadmissible due to deficiencies like non-registration or insufficiency of stamping, then its copy cannot be admitted as secondary evidence. Existence of relevant primary evidence is a pre-requisite for admitting any piece of secondary evidence in regard to it. In other words, no secondary evidence relating to inadmissible primary evidence is admissible.

Secondary evidence cannot be admitted except on the ground mentioned in Section 65 of the act. The law does not make any distinction between the classes of secondary evidence in regard to validity.

Public and private documents

The documents are of two types - public documents and private documents.

A public document is a document generated by a public authority or public officer during the course of some public duties. It includes public records of private documents kept by any authority or body of the State.

A private document which is kept by a public officer is not a public document. But entries relating to private documents made in the records kept by the public office are public records.

The fact that a document is registered does not make it a public document. A registered sale deed is not a public document. Its execution, contents etc have to be proved in the ordinary manner.

Admission of any document amounts to admission of its contents, but not the truth of its contents. The truth needs to be proved separately.

Certified copies of documents

When a document is a public document and it can be inspected by a person then he is entitled to obtain a certified copy of it on paying a required fee. When the law prescribes that the terms and conditions of a contract, grant or other disposition of property have to be in written form, then written document alone can be given in evidence in regard to such execution. When a set of oral transactions has been reduced to writing the set of transactions itself will become a piece of documentary evidence. In such a case, no oral evidence can be admitted to contradict such transcripts.

Law presumes that every certified copy of public document is a genuine document.

Attesting witness must give evidence

When a document, except a Will, is registered it is not necessary to call an attesting witness unless there is denial of execution by the person who had executed it. In the case of a registered Will, the attesting witnesses need to be called for giving evidence.

When there is an allegation that a document is signed or has been written by a particular person, the person's sign or hand writing need to be proved.

If a document is to be attested as per law, such a document cannot be used as evidence unless one attesting witness has been called for.  The endorsement made by a Sub-Registrar before a court that the executants of the document had admitted the execution of the document while registering it before him amounts to attestation. If a document is attested, then the attesting witness must be called for testimony as to the validity of the signature in it.

Clearing the ambiguities in documents

In general, it is not possible to prove the contents of a document by external oral testimony. But if the intention expressed in a document is basically clear but leaves some confusion due to lack of specificity or ambiguous use of language, external oral testimony is admissible. If the ambiguity is patent, then the contents cannot be proved by oral testimony.

That means extrinsic oral evidence may be admitted to bring in clarity in a document which leaves some confusion due to equivocation - use of vague or ambiguous language. However when the language of a written instrument is perfectly plain, no construction is permissible to contradict the writing.

The author can also be reached at rajankila@hotmail.com