ORAL EVIDENCE
INTRODUCTION
Evidence forms an integral part of the justice delivery system. It is with the help of the evidence
that the alleged facts are proved in a court of law and the right decision is taken. Whenever a
case is presented before the court, it has to go through a lot of facts and information given by the
contesting parties. A court of law is expected to examine the truth of those facts and deliver
justice. This is where the role of ‘evidence’ comes into the picture.
Evidence is that support provided to the facts presented that prove the genuineness of those facts.
It is all about giving proof of something before the court. There is a whole cycle under which the
evidence works in a Court of Law. It has been further divided into two main types i.e., Oral and
Documentary evidence under the Evidence Act 1872.
All the statements which were made by the witness which the court permits relating to the
matters of fact is known as Oral Evidence and all the documents including electronic record as
evidence for the courts is known as Documentary Evidence.
MEANING OF ORAL EVIDENCE
Oral Evidence is dealt in the Indian Evidence Act, 1872 under the Section 59 and 60.
Under Section 3(1) of the Indian Evidence Act it is stated that “All statements which the court
permits or requires to be made before it by a witness, in relation to matters of fact under inquiry,
such statements are called as oral evidence”. If we look closely, the word oral in itself describes
its meaning as something spoken or expressed by mouth. Hence anything which is spoken or
expressed by mouth of a witness who is called for the trial in the Court is referred to as oral
evidence.
But the term ‘Oral’ is different from the term ‘Verbal’ as in case Queen-Empress Vs Abdullah.
The difference between Verbal and Oral was elaborated. The term verbal means by words and
yet it is not necessary that the words should be spoken. Hence if in the section term oral is used it
means the statement should be spoken by mouth. Verbal cannot be related to oral as verbal is a
wider term.
PROOF OF FACTS BY ORAL EVIDENCE
Section 59 of the Indian Evidence Act, 1872 speaks about, “Proof of facts by oral evidence”.
Section 59 says that all facts except contents of documents and electronic documents may be
proved by oral evidence. For producing evidence on contents of documents and electronic
records proof must be according to Chapter 5 of The Indian Evidence Act, 1872.
All statements, which the court permits or requires to be made before it by witnesses in relation
to the matters of fact under inquiry, are called ‘oral evidence’. In general, the evidence of
witnesses is given orally, and this means oral evidence.A witness who cannot speak may
communicate his knowledge of the facts by signs or by writing and in either case it will be
regarded as oral evidence.
Oral evidence must be direct
Section 60 of the Indian Evidence Act, 1872 speaks about, “Proof of facts by oral evidence”.
According to Section 60 of the evidence act oral evidence should be direct. This means that a
witness can tell the court of only a fact of which he has the first-hand knowledge (eye-witness) in
the sense that he perceived the fact by any of the five senses. If the statement was not made in his
presence or hearing and he subsequently came to know of it through some other source, he
cannot appear as a witness, for his knowledge is a derived knowledge and is nothing but a
“hearsay evidence” which is considered not relevant.
CONDITIONS FOR ORAL EVIDENCE
This section gives the conditions in which oral evidence can be given. Section 60 refers to 4
cases in which oral evidence is given they are seeing, hearing, perceiving, and forming an
opinion. The section says that for oral evidence to be valid in these cases the evidence has to be
given by the persons themselves who sees, hears, perceives or forms the opinion in question.
i.
It refers to a fact which could be seen, it must be the evidence of a witness who says he
saw it –
It refers to evidence which has been given by the person who has actually seen or
observed the matter by their own eyes, this will be actuated as direct evidence.
For example: if A saw that B is hitting C. A will be an eyewitness to the crime scene and
his testimony will be that of direct evidence.
ii.
It refers to a fact which could be heard, it must be the evidence of a witness who says he
heard it –
It refers to evidence which has been given by the person who was present and has
actually heard the matter by themselves, this will come under direct evidence.
For example: if A overheard B’s conversation that stated; that he is going to kill C
tomorrow under the bridge, A’s testimony will be that of direct evidence.
iii.
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 –
Meaning such evidence that has been given by the person who has perceived it in any
other manner or by any other senses but it has been perceived by that person itself.
For example: through sense of smell or taste.
iv.
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 means when a person holds any opinion on any matter or incident, only his testimony
on the ground of which his opinion is formed will be admissible in the court.
For example, A thinks that B is not a good guy, so his testimony of that opinion will be
termed under direct evidence.
v.
Experts books:
The first provision to Section 60 is that the opinions of experts published in books out for
sale can be proved by producing the book in the court if the author is unavailable or
unable to give evidence himself or if it will be too expensive or it will delay the case too
much to call the author as witness for the case.
vi.
The second proviso to Section 60 of the evidence act says that if while giving oral
evidence a party refers to some material other than a document, then the court can inspect
and examine the material. If there is a concerned document then it has to be proved
according to the rules given in Chapter 5 of the Indian Evidence Act, 1872.
vii.
Child Complainant’s Evidence by video-recording and television link
Oral Evidence also includes the child’s complainant evidence by video recording and
television link, so if there is any evidence which is presented through video recording
they are admissible under oral evidence as long as they are not tampered with.
viii.
Witnessing offence on visual display of video-recording
If there is a video which displays an offence being committed it may be admissible if it
ensures that it is not tampered by any means. This may also be included under oral
evidence.
HEARSAY EVIDENCE
This section excludes hearsay evidence. The word ‘hearsay’ mean whatever a person has heard
(rumor or gossip) or whatever a person declares on information given by someone else, or it may
be synonymous with irrelevant. It means the statement if a witness not based on hi personal
knowledge but on what heard from others.
TEST TO DISTINGUISH BETWEEN DIRECT EVIDENCE AND HEARSAY
EVIDENCE
It is direct evidence if the court, to act upon it, has to rely only upon the witness, whereas it is
hearsay if it has to rely not only upon the witness, but some other person also.
Thus, if X is charged with Y’s murder, and if Z, in his evidence, states that “I saw X stabbing Y
with a knife”, it would be direct evidence.
Instances of hearsay evidence would be the evidence of A that “Z told me that he had seen X
stabbing Y” or that “Z wrote a letter to me stating that he had seen X stabbing Y” or that “I read
in the newspaper that X had murdered Y”.
EXCEPTION OF HEARSAY RULE
It may be noted that hearsay evidence is not admissible even if not objected to,or even if
consented to. The court has no discretion in this matter, except in certain exceptional cases. The
rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is
not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by
another witness cannot be tested by cross-examination. It is second-hand evidence; the person
giving such evidence does not have any sense of responsibility. The courts have modified the
rigid rule as to direct evidence by a number of exceptions:
i. Res gestae (Section 6)
A statement made by a person who is not a witness becomes relevant and admissible if
the statement is part of the transaction in question.
ii.
Admissions and confessions (Section 17-31) - An admission of liability or confession of
guilt which takes place outside the court through the testimony of a witness to whom the
admission or the confession was made. Such a witness is not a witness of fact.
For example, A coming out of the court tells B his guilt of committing murder of C,
though hearsay but statement shall be accepted as evidence.
iii.
Statements relevant under Section 32 — These are mostly the statements of deceased
person (dying declarations) or persons who are not available as witnesses.
iv.
Entries in books of account kept in the course of business (Section 34);
v.
Entries in public registers (Section 35).
vi.
Statements of experts in treatises —
The first provision to Section 60 is that the opinions of experts published in books out for
sale can be proved by producing the book in the court if the author is unavailable or
unable to give evidence himself or if it will be too expensive or it will delay the case too
much to call the author as witness for the case.
vii.
Sometimes, a slanderous statement made by a third person and heard by the witness will
be relevant, not regarding the truth of the contents of the statements, but regarding the
fact of the statement being made.
CASE LAWS ON ORAL EVIDENCE
State v. Rajal Anand
It was held under this case that section 60 of the Indian Evidence Act only includes the word
“direct” and excludes hearsay. Any evidence given must be direct and the hearsay evidence does
not hold any area under oral evidence as it is not direct. But the doctrine of Res-gestae has been
observed as an exception to the rule of hearsay which explained 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.
Bhima Tima Dhotre v. The Pioneer Chemical Co.
It was held that “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 recognized 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.”