Manali Chotalia
Evidence plays a very crucial role in criminal cases where this can lead to either conviction of a person or its acquittal.
Evidence in simple terms means ‘proof’. It includes anything which can be seen, read or experienced which makes one to believe whether something is true or not.
Under the Indian Evidence Act, ‘evidence’ is of two types –
Oral evidence and Documentary/written evidence.
Section 3 of the Indian Evidence Act, 1872 defines Evidence as –
“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) all documents including electronic records produced for the inspection of the court, Such documents are called documentary evidence.”
Oral evidences are such evidences which are spoken by mouth and are confirmed.
Whereas, a Documentary evidence includes everything which is written including electronic records.
Vox Audita Perit, Littera Scripta Manet – The words spoken vanishes, but the written words remain.
Section 3 of the Indian Evidence Act, 1872 defines Document as –
“Document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.”
Illustrations –
A writing is a document; Words printed, lithographed or photographed are documents; A map or plan is a document; An inscription on a metal plate or stone is a document; A caricature is a document.
So when a document which is authentic produced before the court, it is called as documentary evidence. Unlike the oral evidence, the statement in the documentary evidence is written. It can be words, letters, signs, figures, etc.
In Murarka Properties Private Limited v Bihari Lal Murarka, 1978, the Supreme court held that when there is a documentary evidence available, the oral evidence will not be given much weightage.
Similarly in Afzauddin Ansari v State of West Bengal, 1997, it was held that a person might lie but a document will never.
Documents are of two types –
Public document – Section 74 states that the following documents are public documents – (1) “documents forming the acts or records of the acts – (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, or of a foreign country;
(2) public records kept of private documents.”
Private documents – According to Section 75 “All other documents are private.”
Chapter V of documentary evidence states that the contents of such documents provided must be proved by either Primary evidence or Secondary evidence.
The Primary document (Section 62) is proved by producing the document itself being the original document. In case a document is executed/carried out in several parts, each such part is the primary evidence of the document. However, when a document is executed in counterpart, each of it should be executed by the one or more parties involved.
But when a no. of documents are made by a uniform process, for example, printing then such documents will be covered under primary document, however, when there are copies made from the original documents, then it will not be primary evidence of the contents of the original one.
For example, when a partnership deed is signed, the partners concerned sign the documents regarding it. Such document will be primary evidence but when certain copies are made of that original document, then it will not be considered as contents of the original.
Secondary evidence – According to Section 63, means and includes –
(1) certified copies given under the provisions hereinafter contained; (2) copies made from original by mechanical processes which in themselves ensure 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.
In Prithi Chand v State oh H. P.1889, a carbon copy was made by a uniform process of certificates of a doctor which were given in the performance of professional duty. This carbon copy of the certificate was held to be primary evidence as per Section 62.
Where a certified copy of a registered document is provided then, the original copy will not become secondary evidence. In the absence of the original deed the certified registered copy will be admitted as secondary evidence. This was held in Kalyan Singh v Chhoti AIR 1990 SC 396.
Many contracts, grants are made orally which can be affected by reducing the terms of the contract. If such are made into documents it makes best evidence. However, if the original is lost or is not in a condition to disclose the contents then secondary evidence can be produced.
A notice has to be provided before giving secondary evidence. But there are certain cases where notice shall not be required –
Where a document itself is a notice, when the opposite party accepts that the original document has been lost, also when the possession of the document is not in the reach of that person who possess the original document.
Electronic evidence is the information stored digitally. Here, the question arose whether tape recording is a document or not. Certain guidelines have been given by the court regarding admissibility of such tape recordings in Ram Singh v Cornel Ram Singh 1986 SC, it was stated that such recordings would be admissible only when the voice of the person concerned is identified, words and matters under inquiry produced in the recordings are related and no alteration should have been done in the content.
Every document produced must be attested by law because without attestation it cannot be produced as evidence. This is provided u/s 68 of the evidence act.
Ancient documents as Section 90 states are documents which are presumed to be thirty years old. The court assumes that signature on the document and every other part of such document is related to the person who has signed it, when produced from the custody. However, no such presumption is given for the certified copy, therefore, the document must be original.
Thus, Chapter V of the Indian Evidence Act deals with the oral and documentary evidences. And it can be concluded that documentary evidence or the word written remains which is not with spoken words.