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ADMISSIBILITY OF ORAL EVIDENCE – INDIAN COURTS

INTRODUCTION

Evidence is defined Under sec 3 of the Indian Evidence Act which states that

“Evidence”. ––“Evidence” means and includes ––

(1) all statements which the Court permits or requires to be made before it by witnesses, about matters of fact under inquiry; such statements are called oral evidence;

(2) [all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence[1].

An oral hearing is generally for two purposes, in which one is for the presentation of the oral evidence and the other one is for the oral arguments.[2] In the case of Bexy Michael and Anrs and A.J. Michael[3], it was held that oral evidence is so important that they only could be the sole reason for the ground of conviction. According to the court, it does not matter if the evidence is oral or documented, what matters to them is that the evidence should be the better evidence which one could present for any case.  

ADMISSIBILITY OF INTERVIEWS AS AN EVIDENCE:

Oral sources such as speaking, any kind of gesture of motion, audio forms, recordings are considered equally important as that of written evidence[4]. Evidence which is in the form of interviews is also considered relevant under oral evidence. In the case of Jagjit Singh vs. the State of Haryana[5], it was held that interview which was taken by the Aaj Tak TV Channel or by other TV channels, would be admissible under relevant Evidence doesn’t matter if it’s not primary evidence but being the secondary evidence, this would be considered as the relevant oral evidence.[6]

In the case of State of Maharashtra vs. Dr.  Praful B. Desai[7], 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 EVIDENCE: –

The oral evidence is presented by any witness by taking an oath first and then stating his statement, then the court must evaluate that evidence and later record its conclusion properly and with equity. In the document type of evidence, the court cross-checks the documents and verifies them but in oral evidence which is not in any form of documents, how does the court identify whether the oral evidence is trustable or not? In that evidence, the Judge follows the principle of “ears and eyes” 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 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. Therefore, one must be focused while presenting the oral evidence. If according to the court it sounds like that wherein some cases oral evidence could refer to any material thing or any document then the court may ask for the production of such material thing or document to be presented before the court to be used in further proceedings[8].

Some of the exceptions of this section are: –

  1. Validity of the documents– This says that the validity of any documentary evidence is only when it is related to the case facts, or entitles any one party to any decree or passes any order related to the document. Here the validity of whether documents are valid for the case or not could be questioned to verify.
  2. When a document can’t prove much– In some cases where documents cannot be used as strong evidence, then in those cases oral evidence is given more preference over documentary cases. But the condition for oral evidence is that the oral evidence must be erratic with the pieces of evidence 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 Documents.
  3. Condition Precedent– This exception says that if besides the documents, oral evidence is 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 into consideration.
  4. 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 the 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.
  5. Relation of Language of facts– This exception says that if whatever documents are stated to be presented as evidence then on those only the oral evidence are also need to highlight upon them to disclose the whole meaning what the document needs to convey[9].

Though oral evidence is not that discretionary as documentary evidence but still it 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. For example, if a person has seen a crime happening, so in that case, no document would be much relevant than an eye victim who has come to give oral evidence in front of the 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.

In the Achutananada Baidya v. Prafulla Kumar Gyan[10] case, Mr. Battacharyya contended that being a witness, in this case, he says that though there had been discussion between both the parties he hasn’t 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. Therefore, oral evidence is the one which originated from the person knowledge of what he has perceived and witnessed from his own eyes but the hearsay is what he has learned from here or there then there is a chance that tat evidence is not original as it could be if he had accounted it.

With the increase, the need for oral evidence also increased beside the documentary evidence. 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 evidence could be used in any proceedings of the cases[11].  Under oral evidence, any statement unlike documents needs to be presented by the witness in front of the court by physically presenting there. Oral evidence does not just include any person speaking from the mouth, it could 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 valid oral evidence because 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 penned down his expert opinion on something in a book then either he 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.

CONCLUSION

Oral evidence is to be produced before the court in terms of either by Speaking or by doing some gestures by depicting anything. In the above piece, it has been highlighted that how the oral evidence is presented before the court as evidence in any case. Though documents are given more preference over the oral evidence is presented in a good manner, this evidence could be the sole ground for coming to any conclusion of any of the cases. 

These types of evidence have helped in solving many cases where documents could not have done much their oral evidence has helped to conclude 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.

Author(s) Name: Kajal Tanwar (OP Jindal Global University, Sonipat)

References:

[1] Section 3 of Indian Evidence Act, 1872

[2] Sukhbir Singh V M/S Hindustan Petroleum

[3] https://indiankanoon.org/doc/514416/

[4] Use and abuse of oral evidence https://sesasport.com/wp-content/uploads/Useandabuseoforalevidence.pdf

[5] ((2006) 11 SCC 1)

[6] Recent Trends in Recording and Admissibility of Evidence https://articlesonlaw.wordpress.com/2016/07/30/recent-trends-in-recording-and-admissibility-of-evidence/

[7] 2003 (2) ALT (Crl.) 118 (SC)

[8] Indian Evidence Act Section 60

https://www.latestlaws.com/bare-acts/central-acts-rules/indian-evidence-act-section-60-oral-evidence-must-be-direct/

[9] Gurubasappa And Ors. vs Gurulingappa on 24 July, 1961 AIR 1962 Kant 246

[10] AIR 1997 SC 2077

[11] Oral Evidence and its significance in a court of law https://medium.com/@abrise.legal/oral-evidence-and-its-significance-in-a-court-of-law-c7a5b639156b

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