This article has been written by Peuli Chakraborty from Amex Law College, The University of Burdwan

Table of Contents

Introduction

Evidence is the most important thing, whenever it comes to substantiate anything, in the court of law. A piece of evidence is way too much exigent, during a trial, in the court.

The concept of evidence has been further classified into 2 categories, such as – Oral Evidence and Documentary Evidence, under the Indian Evidence Act, 1872. In this article, I will be elaborating regarding the scope of Oral Evidence.

Oral Evidence is dealt with under Section 59 and 60 of the Evidence Act, 1872. Oral evidence is defined under section 3 (under evidence head) which explains that “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 as oral evidence.” Oral Evidence means the evidence, which has been spoken or uttered out of the mouth of a person. It also indicates the statements that are delivered by the persons, who cannot speak nor can hear ( i.e either dumb or deaf), by the way of writing or signing.

What exactly is oral evidence?

Oral Evidence refers to a statement, that has been spoken or uttered out of mouth ( by a witness), in the event of an ongoing trial, in the court of law.

Oral Evidence is dealt under sec 59 and 60 of the Indian Evidence Act. It is defined under sec 3 of the Evidence Act, 1872. It denotes, “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 as oral evidence.”

It must be included, that people who are dumb or voiceless ( i.e cannot speak) and deliver oral evidences, via signs and writting forms, those shall also be computed.

Section 59 – Proof of facts by Oral Evidence

All the facts and all may be get substantiated by Oral Evidence. However, the Documentary or Electronic Evidence cannot be delivered through mouth ( i.e in the form of Oral Evidence).

Bhima Tima Dhotre v. The pioneer chemical co.

“Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis, all evidence must be oral and that oral evidence would virtually be the only kind of evidence recognised by law. This provision would clearly indicate that to prove the contents of a document by means of oral evidence would be a violation of that section.”

The above mentioned interpretation was held in this case.

Oral Evidence, must, in all cases be direct

Section 60 interprets that, any kind of Oral Evidence is supposed to be direct in nature, the conditions, specified under this sec, if not fulfilled, then such piece of evidence, shall not be considered to be an Oral Evidence.

The conditions, as mentioned down below, are required to be fulfilled, to constitute an Oral Evidence –

• It refers to a fact which could be seen, it must be the evidence of a witness who says he saw it

It means the evidence, given by the person, who indeed witnessed the matter on his own eyes. This type of evidence is considered to be a direct and spontaneous evidence.

Illustration – X came across that Y was abusing Z. X is now going to be the eye witness of such incident and hence may deliver his oral evidence, on this fact, in the Court of Law.

• It refers to a fact, which could be heard, it must be the evidence of a witness, who says he heard it

If the witness informs that he actually heard the incident, whichever took place, shall be a proper witness of delivering a direct evidence.

Illustration – If H conveys that he actualy heard G to inform D, that he is going to murder F tomorrow, then the evidence given by H shall be relevant and admissible, as this shall be a direct evidence.

• It refers to a fact which could be perceived by any other senses or any other manner, it must be the evidence of person who says he perceived it by that sense or manner,

If the witness declares that he actually perceived it in any other manner or any other senses, then it’s a direct evidence.

Illustration – any kind of smell or taste.

• If it refers to an opinion or to grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

It implies an opinion or grounds on which the opinion is held and it must have been stated by the person, who himself opined the statement.

It means when a person possesses an opinion on any matter, in that case, his testimony, on the grounds, on which he formed such opinion, shall be admissible, as a direct evidence.

Illustration – M thinks that N isn’t of a good character and is a hypocrite, then the opinion of M, shall be a direct evidence, in the Court of Law.

Wherefore, it’s translucent, seeing the above mentioned elaboration, that any kind of Oral Evidence must be direct. Direct indicates that the incident, must have been witnessed by the person on his own and it is not passed or uttered by another person. Section 60 of the Indian Evidence Act clearly states that all the oral evidences must be direct. Any kind of Oral Evidence, that shall be taken into consideration by the Court, is supposed to be Direct in nature. This is the general rule. Any kind of Hearsay or Indirect way of evidence, shall not be entertained by Court. The word “ must ” has been inserted thereunder ( i.e under sec 60 ), which denotes that no hearsay or indirect evidence shall be embraced by the Court.

Originally, any kind of hearsay evidence ( i.e an indirect evidence, passed by someone else) shall not be entertained and shall be inadmissible.

Meaning of Hearsay Evidence

It refers to an information, that has been obtained by another source. Basically, when a person is not well aware of a particular incident, like whether such thing actually took place or not and he obtains the information, via any other person, then that is a hearsay evidence.

Oral Evidence is a direct evidence, within the ambit of the Indian Evidence Act, 1872, however, a Hearsay Evidence shall not considered to be a direct evidence within the scope of this Act, as it is delivered by someone else.

Let’s understand the above mentioned elaboration, through an example –

X files a suit against Y, alleging Y, that he ( Y) has trespassed the house of X.

In this case, the witnesses, who attend the trial, are supposed to say that they witnessed Y to commit trespass and not supposed to mention that they heard this incident from somewhere and they’re not the actual eye witnesses.

The Exceptions to sec 60 of the Indian Evidence Act, 1872 –

Let’s have a glace at the exceptions to section 60 –

The exceptions to section 60 is section 33, which elaborates a few exceptions, where the Rule of Hearsay is reckonable. Those exceptions have been enumerated down below –

1) Doctrine of Res – Gestae – Suppose A sees B, passing through him, by a bike, and immediately after that A gets to know that B met with an accident. A visits the spot and comes across that B has been injured. B eventually let’s A know that C hit him, by truck. This kind of statement may be admissible, even though it is a hearsay evidence.

Res Gestae is basically a latin term, which means things done. This is basically an exception to the hearsay evidence ( hearsay evidence, which is not admissible generally, before the court ). It is a voluntary declaration by a person, immediately after an event. This Doctrine has been codified under sec 6 of the Indian Evidence Act, 1872.

2) Admission or confession– A coming out of the court tells B his guilt of committing murder of C, though hearsay but statement shall be accepted as evidence.

3) The doctrine of Dying Declaration – The dying declaration is, in fact, the statement of a person, who can neither be called witness nor can be examined, before a court of law. Therefore, a statement, delivered by that person, shall definitely be admissible and relevant as well.

Here the person or the declarant declares a statement, that is related to his contiguous death. It must be inserted that the doctrine of Dying Declaration has been elucidated under sec 32 of the Indian Evidence Act.

4) Evidence Given in Former Proceedings – If a person, who’s a witness dies or due to some other reason, cannot attend the court proceeding, then the piece of evidence, as uttered by that person, during the former proceeding, may be used as a piece of evidence for proving the truth in subsequent proceedings. If a person, who’s a witness dies or due to some other reason, cannot attend the court proceeding, then the piece of evidence, as uttered by that person, during the former proceeding, may be used as a piece of evidence for proving the truth in subsequent proceedings.

5) Opinion Published in Treaties – Opinion, published in Treaties, may also be an exception to sec 60.

Subramaniam v/s The Public Prosecuter

There was no proof or evidence regarding the confinement and that is why the appellant had been convicted and it could not be believed whether the statement made by terrorist to the appellant is true or false.

This case introduced another exception to the Rule of Hearsay.

Relevant Judicial Interpretations

1) Bhairon Singh v/s State of Madhya Pradesh

It was observed by the Supreme Court, that the hearsay evidence becomes admissible under sec 6 of the Indian Evidence Act. Therefore, the general rule is that, any kind of Oral Evidence must be direct and hearsay evidence shall be inadmissible.

2) State v/s Rajal Anand

This one of the renowned cases. It was held that, sec 60 only includes the word “ direct ” and excludes any “ hearsay ” evidence. Any oral evidence, produced before the must be direct. Hearsay evidence shall not be permitted. However, the exception to the Hearsay evidence would be the doctrine of Res Gestae, that implies that any person who has experienced any series of relevant facts, his testimony after the incident even if he has not seen the crime being committed will be accepted.

3) Amal Singh v/s Chaaju Singh and anr.

In order to prove an Oral Evidence, two conditions are to be fulfilled at first. Firstly, there must be the existence of relevant facts, and lastly, the person, who produces the facts, must have witnessed that incident ( i.e, he is supposed to be an eye – witness of that particular incident).

Importance of Oral Evidence

Every evidence is significant, in my opinion. It may be Circumstantial, Documentary, Electronic, as well as Oral. However, the importance of Oral Evidence wasn’t in existence earlier but it has been increasing. In case of a oral evidence, a person speaks out and it is conveyed that what exactly that person came across or saw or heard or perceived or opined.

The importance has been explained by the Bombay High Court in one of the cases, that if the oral evidence is proved beyond reasonable doubt, it can also be enough for passing conviction.

Conclusion

Oral Evidence, was quite frail in nature, which wasn’t really utilised properly, earlier. However, due to the introduction of numerous Judicial Interpretations, it’s significance has been enhancing, since then.

Moreover, Oral evidence is something, that should be considered to be one of the relevant evidence, because, it’s way more effortless to produce and deliver before the court, by the witnesses, as compared to documentary evidence.

But it has to prove beyond doubt. even though subjectivity is relevant in the oral evidence. it is the suitable method for proving a fact where documentary evidence is not used for situations that need some explanations.