Oral Evidence: Detailed Notes

Author: Mr. Krishna Murari Yadav

Assistant Professor, LC-I, Faculty of Law, University of Delhi, Delhi.

Introduction:

Oral and Documentary evidence Section 3 “Evidence” – “Evidence” means and includes – (1) Oral Evidence – 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 evidence; (2) Documentary Evidence- all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.

CHAPTER IV.–– OF ORAL EVIDENCE

Chapter IV deals with oral evidence. There are two sections in this chapter namely sections 59 & 60.

Section 59 – Section 59 contents two principles –

  1. All facts, except the contents of documents or electronic records, may be proved by oral evidence.
  2. Oral evidence must be direct rather than hearsay evidence.

Sections 60 – Sections 60 deals what is direct. For example, in the case of seeing, hearing, perceiving and making opinions and grounds of opinion, the evidence must be given only by that person who has seen, heard, perceived or made the opinion. Section 60 contents one exception.

This exception is 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.

Section 59. Proof of facts by oral evidence – All facts, except the contents of documents or electronic records, may be proved by oral evidence.

Comment

According to section 3, there are two types of evidence namely „Oral Evidence‟ and „Documentary Evidence‟. Oral Evidence means all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry. „Oral‟ means by word of mouth. But according to section 119, „A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs, the evidence so given shall be deemed to be oral evidence‟. Section 119 is an extension of „Oral Evidence‟. It is a fiction of law.

Oral is different from the word „Verbal‟. In the case of Queen Empress v. Abdullah (27 February 1885), Hon’ble Chief Justice of Allahabad W C Petheram discussed the difference between Verbal and Oral, Verbal means by words. It is not necessary that the words should be spoken. If the term used in the section were oral, it might be that the statement must be confined to words spoken by the mouth. But the meaning of Verbal is something wider.

Verbal [Section 32(1)] Oral [Section 3, 59& 60
It is wider. It is narrower
Verbal includes words spoken by the mouth and sign also. Words were spoken by the mouth

Section 60. 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.

Comments

Remarks Facts Direct Evidence
Seen if it refers to a fact which could be seen it must be the evidence of a witness who says he saw it
Heard if it refers to a fact which could be heard it must be the evidence of a witness who says he heard it
Perceived if it refers to a fact which could be perceived it must be the evidence of a witness who says he perceived it
Opinion if it refers to an opinion or grounds it must be the evidence of the person
1 it must be the evidence of a witness who says he saw it Witness
2 it must be the evidence of a witness who says he heard it Witness
3 it must be the evidence of a witness who says he perceived it Witness
4 it must be the evidence of the person who holds that opinion on those grounds Person

Hearsay Evidence –

According to Taylor, “Hearsay is used to indicate that evidence which does not derive its value from the credit given to the witness himself, but which rests also on the veracity and competence of some other person”. It is used in contradiction to „Direct Evidence‟2.

Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr. (S.C., 18 January, 2011)

Hon‟ble Justice Panchal observed, “

  • Meaning of Hearsay -The term „hearsay‟ is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person.
  • Hearsay evidence‟ under IEA- The phrase „hearsay evidence‟ is not used in the Evidence Act because it is inaccurate and vague.
  • Hearsay in a different sense -The word „hearsay‟ is used in various senses. A. Sometimes it means whatever a person is heard to say.
    B. Sometimes it means whatever a person declares on the information given by someone else, and
    C. Sometimes it is treated as nearly synonymous with irrelevant.

The sayings and doings of the third person are, as a rule, irrelevant, so that no proof of them can be admitted. Every act done or spoken which is relevant on any ground must be proved by someone who saw it with his own eyes and heard it with his own ears”.

  • Reason of exclusion of Hearsay Evidence – Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in a regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross-examination.
  • Fundamental rule regarding „Hearsay Evidence‟ – It is a fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible. A statement, oral or written, made otherwise than a witness in giving evidence and a statement contained or recorded in any book, document or record whatever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated.
  • Reason of exclusion of Hearsay Evidence- The reasons why hearsay evidence is not received as relevant evidence are:

(a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility, i.e., every witness must give his testimony, under such circumstances, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying “I do not know, but so and so told me”,

(b) truth is diluted and diminished with each repetition and

(c) if permitted, gives ample scope for playing fraud by saying “someone told me that………..”.

It would be attaching importance to false rumour flying from one foul lip to another. Thus the statement of witnesses based on information received from others is inadmissible”.

According to section 59 „Oral Evidence‟ must be direct. Hearsay evidence is not direct evidence. So the rule is that „Hearsay Evidence‟ is not acceptable. There are certain exceptions to this rule.

There are following exceptions of this –

  • Res gestae
  • Conspiracy
  • Admission & Confession
  • Dying Declaration
  • Evidence in the former proceeding
  • Opinion published in treatises 7. Sections 32, 33, 34 & 353
  • Res gestae is an exception of „Hearsay Evidence‟

The rule is that hearsay evidence is not acceptable. Oral evidence must be direct. But Res gestae is the exception of „Hearsay Evidence‟.

Sukhar vs. State of U.P.4(1999)

In the case of, Sukhar vs. State of U.P., the Supreme Court said that Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible.

Javed Alam v. State of Chhattisgarh and Anr. (8 May, 2009)

Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible.

Bhairon Singh v. State of Madhya Pradesh (May 29, 2009)

Supreme Court observed, “The rule embodied in Section 6 is usually known as the rule of res gestae.

(2) Section 10 (Conspiracy)

State (N.C.T. Of Delhi) vs Navjot [email protected] Afsan Guru on 4 August 2005

Section 10 of Evidence act is based on the principle of agency operating between the parties to the conspiracy inter se and it is an exception to the rule against hearsay testimony. If the conditions laid down therein are satisfied, the act is done or statement made by one is admissible against the co-conspirators.

(3) Admission and confession are exceptions of „Hearsay Evidence‟

In Sahoo v. State of U.P.5 Supreme Court said that Admissions and confessions are exceptions to the hearsay rule

(4) Dying Declaration

Khushal Rao v. State of Bombay (25 September, 1957)

Section 32 has been made by the Legislature, advisedly, as a matter of sheer necessity -by way of an exception to the general rule that hearsay is no evidence and that evidence, which has not been tested by cross-examination, is not admissible. Here there is neither cross-examination nor oath.

Ram Bihari Yadav v. State of Bihar (1998)

Hon‟ble Justice Syed Shah Quadri said, “Though a dying declaration is an indirect evidence being a specie of hearsay, yet it is an exception to the rule against admissibility of hearsay evidence”.

Sharad Birdhichand Sarda v. State of Maharashtra (17 July, 1984)

Section 32 is an exception to the rule of hearsay

Sudhakar & Anr. v. State of Maharashtra (July 17, 2000)

Section 32 is an exception of the rule of hearsay

(5) Evidence in the former proceeding

Section 33- Relevancy of certain evidence for proving, in a subsequent proceeding, the truth of facts

therein stated.

(6) Opinion published in treatises

Opinion published in treaties maybe the exception of hearsay evidence if all the conditions are being fulfilled.

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

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