Oral evidence about documents inadmissible
Oral evidence as to the contents of documents is not relevant and hence cannot be produced in a court of law, as per Section 22 of the Indian Evidence Act, 1872 (IEA).
Oral evidence can be given if genuineness is in question
But oral evidence as to the contents is relevant if the party proposing to provide evidence is entitled to give secondary evidence as per the IEA or the genuineness of the document is in question.
Similarly, oral evidence as to the contents of electronic records is not relevant unless the genuineness of the electronic record produced is in question, as per Section 22A of the IEA.
The facts in the contents of documents or electronic documents cannot be proved by oral evidence, as per Section 59 of the IEA.
Contents should be proved by producing the documents
The contents of documents may be proved by providing primary or when permissible under the act by secondary evidence (Section 61 of the IEA).
The IEA says that document normally be proved by primary evidence (Section 64 of the IEA) except in cases where secondary evidence can be given under any law in force (Section 65 of the IEA).
The proper way to provide primary evidence is by producing the document itself for the inspection of the court, as per Section 62 of the IEA.
Five types of secondary evidence u/s 63
Section 65 of the IEA speaks about five categories of secondary evidence as detailed in Section 63 of the IEA.
They include certified copies given as described in the IEA, copies made from the original by mechanical processes, copies made from or compared with the original, counter parts of documents as against the parties who do not execute them, and oral accounts of the contents of a document given by a person who has seen it.
Foundation to be laid for producing secondary evidence
The secondary evidence relating to the contents of a document is inadmissible until the reasons for non-production of the original fall within one or more of the circumstances listed under Section 65 of the IEA.
The party who proposes to adduce secondary evidence is bound to explain the non-availability of the original. To admit a photocopy or such other secondary evidence, the party must lay the foundational evidence, by authenticating that the alleged secondary copy is a true copy of the original.
That means the party who proposes to produce a photostat copy of a document as secondary evidence must prove that the original has been destroyed or so and is incapable of producing the orginal.
Oral evidence of contents of documents u/s 64 & 65 IEA
Oral accounts of the contents of documents can be given as secondary evidence in the following four situations specified u/s 65 of IEA:
- Oral evidence can be given when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved, or a person out of reach of the court, or any person legally bound to produce does not produce it on notice, under Section 65(a) of the IEA.
- Oral accounts of contents can be given when the original has been destroyed or lost or the party offering evidence cannot produce it due to none of his fault (Section 65(c)).
- Oral accounts can be given when the original is of a nature that cannot be easily movable (Section 65(d)).
- Oral accounts of general result of contents can be given by the person who has examined them and skilled in the examination when the original consist of numerous documents which the court cannot examine and the fact to be proved is the general result of the contents (Section 65(g)).
Secondary evidence can be given u/s 91
When the terms of a contract, grant or any disposition of property have been reduced to writing or any matter is required by law to be reduced to writing, then the document itself or secondary evidence of the contents must be put in evidence (Section 91).
Secondary evidence includes oral accounts in contexts specified under Section 64 of the IEA.
Oral evidence can be given in five situations u/s 92
When a transaction has been reduced into writing is required by law or agreement by parties in a contract, grant, or disposition of property, no evidence in oral form shall be admitted for contradicting, varying, adding to, or subtracting from the terms, but there are 5 exceptions to this and they are as follows:
- when there is fraud, intimidation, illegality, mistake of law or fact
- when an oral agreement as condition precedent is proved
- when any subsequent oral agreement is proved
- when any usage or custom is annexed and
- when any fact which shows in what manner the language relates to the existing fact may be proved.
Nonverbal evidence is oral evidence
When a witness who is unable to communicate verbally may give his evidence in other manner such as by writing or by sign and that shall be treated as oral evidence (Section 119).
Conclusion
In short, tow kinds of evidence can be produced before a court : they are all statements which the court permits and all documents including electronic records produced before the court for its inspection.
Normally oral evidence cannot be provided to prove contents of documents but in specified situations oral evidence can be given in proving contents of documents.
References
- Indian Evidence Act, 1872
- Ratanlal & Dhirajlal : The Law of Evidence, 25th Gurgaon, Lexis Nexis, 2015
