INTRODUCTION

The Indian Evidence Act, 1872 is largely based on the English law of Evidence. The Act
does not claim to be exhaustive and is procedural law. The Act consolidates, defines
and amends the laws of evidence. It is a special law and hence, will not be affected by
any other enactment containing provisions on matter of evidence unless and until it is
expressly stated in such enactment or it has been repealed or annulled by another
statute. Parties cannot contract to exclude the provisions of the Act. Courts cannot
exclude relevant evidence made relevant under the Act. Similarly, evidence excluded by
the Act will be inadmissible even if essential to ascertain the truth.The object of every
judicial investigation is the enforcement of a right or liability that depends on certain
facts. The law of evidence can be called the system of rules whereby the questions of
fact in a particular case can be ascertained.

The term evidence has come from the Latin word “evident” which means “to
show clearly” or to prove. Evidence contains everything that is used to reveal
the truth or facts. In law the person on whom the burden of proof lies has to
produce the evidence before the court of law. It is also important that the
evidence which is produced before the court should be true.

Types of Evidence

The types of evidence are as follows:

 Direct evidence- It refers to the evidence directly about the real point
in the issue. It is the declaration of the observer as to key certainty to
be demonstrated. Example- The proof of an individual who says that he
saw the commission of the demonstration that comprises of affirmed
wrongdoing. The original document is also included in the  indirect
evidence. Direct evidence is generally clear and convincing. It is simply
the hypothetical verification when the truth of the matter is
 demonstrated by direct declaration or facts. Direct evidence also
means that the person has heard, seen, perceived, form opinion and
after that revealed the facts.
 Circumstantial evidence- “Proof does not mean hard mathematical
formula since it is impossible”. It was told by Justice Fletcher
Moulton in regard to circumstantial event. He also said that these
proofs are strong but sometimes it leaves a gap through which the
accused escapes.

                  click above
It was said by Justice Coleridge, that circumstantial evidence is like a
grassamer thread, light and visionary like air that easily vanishes with a
touch. If a witness gives evidence in a court that he saw a defendant while
firing a bullet to a a person and the person dies, then this is direct evidence. In
this case, the only that question arises is whether the person is telling the truth
or not. However if the witness while giving evidence says that he is only able to
recognize that he heard the shot, then arrived on the scenes after some time
and saw the gun in hands of the defendant with fumes coming out, the proof is
circumstantial as the circumstances may be different from what he perceived.
 Real evidence- Real evidence means any tangible object which is
presented before the court as proof. It means the evidence of any class
or object which can be treated as proof, persons are also included in
this. Real evidence may be a weapon found at a place where crime is
committed or any dispute arising in a contract. Any object, person or
material that is used at the time of proceeding in a court to make other
parties feel guilty or to make him liable is real evidence.
 Expert evidence- The law of evidence is drafted to make sure that,
the court only considers  the proof that allows them to reach a valid
conclusion. When an issue arises such as a medical issue, then the
court needs expert advice to settle it. The logical inquiries included are
assumed not to be within the knowledge of the court. The cases in
which scientists and specialists are involved, there the role of experts
cannot be argued.
 Hearsay evidence- This evidence is also called as indirect, derivative
or second- hand evidence. In this type of evidence, the witness tells
the court about what he had heard from somebody but has not seen
anything. Thus it can be said that the witness does not tell about the
circumstances with his knowledge but with the knowledge of other
person and what the other person told him. The court does not take
such type of proof seriously.
 Primary oral evidence- Oral evidence means that any announcement
which is made by an observer in the court, who has personally seen
the act, heard it and was present there. This evidence is also called
direct evidence contrary to hearsay. These types of evidences are
taken seriously by the court.
 Secondary evidence- The evidence which is given in the absence of
primary proof is called secondary evidence. Secondary evidence is the
evidence which is extracted from the original ones such as a photocopy
of an original document. At the point when the first archive has been
crushed or lost, and when the party has made a persistent scan for it
and depleted all sources and means accessible for its generation then
the optional proof is allowable.
 Oral evidence- When the proof is restricted to spoken words or by
gestures or motion then it is termed as oral evidence. Oral evidence,
when reliable, is adequate without narration or written proof to
demonstrate a reality or fact. Where a reality can be demonstrated by
oral proof, it isn’t essential that the announcement of the observer
ought to be oral. Accordingly, a speechless individual may give
evidence by signs or by composing. The reality can likewise be
demonstrated or shown by oral proof.
 Documentary evidence- Any evidence which is present as a
document before the court in order to demonstrate or show a
reality. The content of documentary evidence can be separated
into three sections:

1. How the subject matter of document can be demonstrated?

2. How the record is to be proved to be authentic? and
3. How far and in what instance oral evidence is excluded by
documentary evidence?

 Positive and negative evidence- By positive evidence the existence

of reality can be proved and by negative evidence non-existence of
reality can be proved. The people and the court should keep in mind
that negative evidence does not act as a good evidence.
 Substantive and Non-substantive evidence- Substantive evidence
are those evidences on which the court is dependent for the decision of
a case. The non-substantive proof is which either strengthens or
validates the substantive proof to increase its worthiness of belief or
which disproves substantive evidence in order to impair the credibility
of a person.
 Prima facie and conclusive evidence- Prima facie evidence is
accepted valid at a first instance and demonstrates a fact in the
absence of contradictory evidence. Conclusive evidence is that
evidence which is not opposed by any other evidence. It is very strong
 that it can bear any other evidence. It is of such a nature that it
compels the person who finds the fact to come to a certain conclusion.
 Pre-appointed and casual evidence- The law prescribes this type of
evidence in advance which is necessary for the demonstration of
certain facts or for the formation of certain instruments. The evidence
which isn’t pre-appointed is called casual evidence. The casual
evidence grows naturally with the surrounding situations.
 Scientific evidence- Scientific proof is proof which serves to either
support or counters a logical hypothesis or speculation. Such proof is
required to be exact proof and translation as per logical strategy.
 Digital evidence- Digital evidence was recognized in Commissioner of
Customs, New Delhi v. M/s. C-Net Communication India Pvt. Ltd., AIR
2007 SC (Supp) 957.  In this case, the Supreme Court held that “digital
electronic” would mean that decoder is multiple outputs, input and
logical circuits that changes coded input into a coded output. It was
additionally held that a decoder is a gadget which does the opposite of
an encoder, fixing the encoding so that the first data can be recovered.
 Electronic evidence- This proof can likewise be as electronic record
delivered in court. The proof, even in criminal issues, can likewise be,
by method for electronic records. This would incorporate or comprise of
video conferencing.
 Tape record evidence- The tape itself acts as direct evidence, what
the person has said can be recorded and can be presented before the
court. Any previous statement made by a person can be tape-recorded
and if in the end, the person changes his statement before the court
then the tape-recorded statement can be presented before the court in
order to test the veracity of the witness. Tape recorded evidence is
more authentic than documentary evidence.

Difference between Oral and Documentary

Evidence
                  Oral evidence Documentary evidence

Documentary evidence means producing a

Oral evidence means and includes all
document before the court of law and
statements which are made by a
inspection is done by the court in order to
witness in the court.
know the facts.

It is a statement by a witness. It is a statement of documents.

In oral evidence, the witness tells

In documentary evidence, the facts are told
about the facts by speaking or with
and it is recorded in writing.
gestures.

Oral evidence is provided under

Documentary evidence is provided under
Section 59 and 60 of Indian Evidence
Section 61 to 66 of the Indian Evidence Act.
Act, 1872.

Primary evidence is considered as the evidence

which is given in several parts like duplicate
Section 59 of the evidence says that
copies or as counterpart like those which is
it considers all facts as oral evidence
signed by the parties or photocopy of the
except electronic evidence and
document whereas, Secondary evidence
documentary evidence. Section
contains certified copies, that have been made
60 says that oral evidence must be
by the same mechanical process and also
direct.
contain counterparts of the document against
the parties.

For example- any crime has been

committed by a Ram and there is a
person available at the movement For example- a photocopy of a document or
then whatever he heard, sees, photograph.
perceive, or forms an opinion all this
is considered as oral evidence.

Exclusion of Oral and Documentary

Evidence
One of the essential standards of the law of proof is that in all cases the best
proof ought to be given. Where the demonstration is exemplified in a record,
the record is the best proof of the reality. The maxim of law is “whatever is
recorded as a hard copy must be demonstrated in the form of hard copy only“.

Section 91 of the Evidence Act- Evidence in the form of contracts,

grants and other dispositions of property should be in the form of a
document. This Section applies similarly to cases in which the agreement,
stipends or disposition of property alluded are contained in one document or has
one record, and cases in which they are contained in a greater number of
reports that one.

If there are more than one original documents, then only one original needs to
be proved. The statement in any document of whatever facts are mentioned
under this Section, shall not prevent the admission of oral evidence as to the
same fact mentioned.

Exceptions
There are two exceptions mentioned under this rule:

 The general guidelines are that when some content of a document is to

be proved in writing, the writing itself must be produced before the
court and if it is not produced then secondary evidence should be
given. Exception- when any public officer is appointed for writing and it
is seen that a particular person has acted like such an officer then in
such situations, the writing by which he has been appointed need not
be proved. Example- Suresh appears as a witness before the court, to
prove that he is a civil surgeon there is no need to show the
appointment order. The surgeon only needs to show that he is working
as a civil surgeon.
  To the general guidelines of content of writing there is one more
exception mentioned under this- At the point when a probate (the copy
of will which is required to be certified by the court) has got based on a
will and subsequently question emerges about the presence of that
will, the mere presence of the probate will demonstrate the presence of
the will and the original will require not to be produced.

Section 92- Exclusion of evidence of an oral agreement.

If any contract, grants or disposition of property which is required by law to be

in writing in form of document and if it has been  proved according to Section
91, then for the purpose of varying it, contradicting it or subtracting it parties or
their representative is not required to give oral evidence and it is not
admissible. Two points are proved from this Section:

1-If any third party gives then it is admissible.

2-If any oral evidence is given which do not contradict the contract then it is
admissible.

Exceptions
 Validity of document

If any contract or grant is made between the parties and fraud is done by other
party or there is a mistake of fact, or mistake of law, or the party is not
competent to contract then in such circumstances oral evidence can be given
and it is admissible.

 Matters on which document is silent

Oral evidence can be given when the documents are silent but subject to these
two conditions are there:
1- The oral evidence should not contradict the document. Illustration – A sells
his horse to B and told about the price but the soundness of horse is not told
but oral evidence can be given that horse is of sound mind because the
document is silent here.

2- In allowing the proof of oral understanding the court is to have respect the
level of the custom of the record. On the off chance that the report is formal,
proof of oral understanding will not be permitted even on issues on which the
record is silent.

 Separate oral agreement as condition precedent

In this situation, it is provided that if there is any condition precedent is

constituted to the existing separate oral agreement to attaching of any
obligations under a  document , then it needs to be proved.

 Recession or modification

This provision permits the proof of oral agreement by which the document was
either revoked or altered. When documents are executed then parties orally
agree to treat it as canceled or alter some of its terms, such oral agreement is
admissible.

 Usages or customs

If there is the existence of any particular usage or customs by which incidents

are attached to a contract then it can be proved.

 Relation of language to facts

If any document is written then oral evidence can be given of such a document
that what is mentioned in and in what circumstances it was mentioned and how
to interpret it but it should not exclusively contradict the document.
Section 93- Exclusion of evidence to explain or amend an ambiguous
document. If the language used in the document is defective or ambiguous,
evidence cannot be given of facts which would show it’s meaning. Illustration- A
agrees to sell his cow to B in writing for Rs. 1500 or Rs. 2000. Evidence cannot
be given to show which price wast to be given.

Section 94- Exclusion of evidence against the application of document

to existing facts. When the language used in the document is correct and
when it applies correctly to the facts mentioned, evidence cannot be given that
it is to be proved that it was not meant to apply on such facts.

Section 95- Evidence as to the document unmeaning in reference to

existing facts. When language used in a document is plain in itself, however,
is unmeaning in reference to existing facts, reality or situations, proof might be
given to demonstrate that it was used in an unusual or different way.

Section 96- Evidence as to the application of the language which can

apply to one of several persons. At the point when the facts are with the end
goal that the language utilized may have been intended to apply to anyone, and
couldn’t have been intended to apply to multiple, of a few people or things,
proof might be given of certainties which shows the people or things, it was
planned to apply to.

Section 97- Evidence as to the application of language to one of two

sets of facts, to neither of which the whole correctly applies. When the
language used is applied partially to other existing facts and partially to other
existing facts but the whole does not apply to either of the facts mentioned.
Evidence can be given to show that which of the two it was meant to apply.

Section 98- Evidence as to the meaning of illegible characters, etc. Proof

might be given to demonstrate the significance of obscured or not ordinarily
clear characters, of remote, out of date, specialized, and provincial expressions,
of abbreviations and of words utilized in an exceptional sense.
Canadian-General Electric W. v. Fatda Radio Ltd  held that for the explanation of
artistic words and symbols used in the record oral evidence is admissible and
can be used for that purpose.

Section 99- Who may give evidence of an agreement varying term of

the document? The person who is not a party to a contract or their
representative may give evidence of any fact which do not contradict with the
documents.

Conclusion
The value of documentary evidence is more than oral evidence. The court
mainly accepts documentary evidence but takes oral evidence into
consideration. Briefly, we can say that there are two types of documents- oral
and documentary evidence. In court, documentary evidence has more value.
Court wants best evidence and documentary evidence is the best evidence and
it consists of two parts primary evidence and secondary evidence. Primary
evidence is the best evidence recognized by the court. In the absence of
primary evidence, secondary evidence is given to the Court. On the other hand,
oral evidence is evidence given by words and gestures and are not permanent it
can be changed. Hence Section 91 and 92 exclude oral evidence by
documentary evidence. Proof in the form of a document can be submitted
instead of giving orally.

Section 60 in The Indian Evidence Act, 1872

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.

Section 59 in The Indian Evidence Act, 1872

59. Proof of facts by oral evidence.—All facts, except the 1[contents of

documents or electronic records], may be proved by oral evidence.—All
facts, except the 1[contents of documents or electronic records], may be
proved by oral evidence."

 Evidence may be given of facts in issue and relevant facts.—Evidence may be given in any
suit or proceedings of the existence or non-existence of every fact in issue and of such other
facts as are hereinafter declared to be relevant, and of no others. Explanation.—This section
shall not enable any person to give evidence of a fact which he is disentitled to prove by any
provision of the law for the time being in force relating to Civil Procedure1..—This section
shall not enable any person to give evidence of a fact which he is disentitled to prove by any
provision of the law for the time being in force relating to Civil Procedure

“Evidence” .— “ Evidence” means and includes—

(1) 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) 6 [all documents including electronic records produced for the inspection of the Court],
such documents are called documentary evidence. “Proved” .—A fact is said to be proved
when, after considering the matters before it, the Court either believes it to exist, or considers
its existence so probable that a prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it exists. “Disproved”. — A fact is said to be disproved
when, after considering the matters before it, the Court either believes that it does not exist,
or considers its non-existence so probable that a prudent man ought, under the circumstances
of the particular case, to act upon the supposition that it does not exist. “ Not proved”. — A
fact is said not to be proved when it is neither proved nor disproved. 7 [“ India ”. —“ India ”
means the territory of India excluding the State of Jammu and Kashmir .] 8 [the expressions
“Certifying Authority”, 9 [electronic signature], 9 [Electronic Signature Certificate],
“electronic form”, “electronic records”, “information”, “secure electronic record”, “secure
digital signature” and “subscriber” shall have the meanings respectively assigned to them in
the Information Technology Act,

Secondary evidence.—Secondary evidence means and includes—

(1) Certified copies given under the provisions hereinafter contained1;1;"
(2) Copies made from the original by mechanical processes which in themselves insure the
accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen
it. Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have
not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary
evidence of the contents of the letter, if it is shown that the copy made by the copying
machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary
evidence; but the copy not so compared is not secondary evidence of the original, although
the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a
photograph or machine-copy of the original, is secondary evidence of the original.
COMMENTS Admissibility Application moved for permission to lead secondary evidence
based on ground of loss of document. Presence of document proved from the facts pleaded -
Allowing secondary evidence not illegal; Sobha Rani v. Ravikumar, AIR 1999 P&H 21.
Tape-recorded statements are admissible in evidence; K.S. Mohan v. Sandhya Mohan, AIR
1993 Mad 59. Certified copies of money lender’s licences are admissible in evidence; K.
Shivalingaiah v. B.V. Chandrashekara Gowda, AIR 1993 Kant 29.
64. Proof of documents by primary evidence.—Documents must be proved by primary
evidence except in the cases hereinafter mentioned.
65. Cases in which secondary evidence relating to documents may be given.—Secondary
evidence may be given of the existence, condition, or contents of a document in the
following cases:—
(a) When the original is shown or appears to be in the possession or power— of the person
against whom the document is sought to be proved, or of any person out of reach of, or not
subject to, the process of the Court, or of any person legally bound to produce it, and when,
after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted
in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its
contents cannot, for any other reason not arising from his own default or neglect, produce it
in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by
any other law in force in 1[India] to be given in evidence2; 1[India] to be given in
evidence2;"
(g) when the originals consists of numerous accounts or other documents which cannot
conveniently be examined in Court, and the fact to be proved is the general result of the
whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the
document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a
certified copy of the document, but no other kind of secondary evidence, is admissible. In
case (g), evidence may be given as to the general result of the documents by any person who
has examined them, and who is skilled in the examination of such documents.