Central University of South Bihar

School of Law and Governance

EVIDENCE LAW

Project topic:
DOCUMENTARY EVIDENCE- AN ANALYSIS

Under the supervision of –Dr. Deo Narayan Singh

Assistant professor
Central University of South Bihar

Submitted by -
Akash Kumar
B.A LL.B (2018-2023)
En.No. – CUSB1813125010 (Sem-06)
School of Law and Governance

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 ACKNOWLEDGEMENT

Writing a project after a research is never an easy task to perform. It is one of the most

significant academic challenges. Though this paper is presented by me yet there are various

other persons who remain in veil and gave all the possible support to complete this project.

This project is a result of hard work incorporated by immense dedication and moral support.

I, hereby, would like to first of all thank Dr. Deo Narayan Singh who gave me an

opportunity to work on this specified project. Due to his support only I successfully

completed this paper. Secondly I would like to add a vote of thanks to my friends who I

discussed the problem with and got to understand the right methodology to be adopted to

accomplish the task. Moreover, there have also been various other factors that helped me

complete this paper. I ask for sorry if there have been any mistakes in the paper. At the same

time I would also like to ask the same to those whose name has not been mentioned hereby in

the acknowledgement. But I wholeheartedly thank all those who have stood there for me

every time and supported me.

Last but not the least, I would like to express thank to my seniors who reviewed my paper for

rendering constructive and valuable suggestions and comments that have helped a lot in

improving the quality and content of this paper.

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 CONTENT

Serial No. Topic Page No.

1. Acknowledgement 2

2. Introduction 4-6

3. Modes of Proof 6-7

4. Primary Evidence 7

5. Secondary Evidence 7-8

6. Exclusion of Oral Evidence from 8-12

Documentary Evidence

7. Conclusion 13

8. Bibliography 14

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 INTRODUCTION

Evidence is the material on the basis of which the Court can decide the case. Such evidence
must be produced before the Court so that it can establish or disprove the point of contention
between the parties. The Law of evidence is a very crucial piece of legislation which helps
and guides the court in arriving at a conclusion with regard to the existence or non-existence
of facts. The rules of evidence are necessary to bring out the truth in every case and the Court
should stick to such rules. Basically, the rules of evidence are required to draw a line between
relevant and irrelevant facts. There will be great uncertainty with regard to relevant matters, if
the court started depending upon the discretion of the Judge in such matters in every case.

In contrast to the substantive laws, which deal with rights and liabilities, law of evidence is a
procedural law which provides rules with regard to introduction of evidence to support the
case and covers the fundamental principles of proof of facts, its type, quality and quantum etc
in a legal proceeding. The Law of evidence is said to be the law of the forum or the lex fori.

The concept of burden of proof is also essential in the law of evidence. The concept is
differently applied in civil and criminal cases. Burden of proof broadly means that whoever
wants the Court to give a judgment as to any right or liability which is dependent on certain
facts must prove existence of such facts. When a person is bound to prove certain existence of
facts, it is said that “the burden of proof lies on that person”.

For deciding a civil case, preponderance of probability is sufficient. Preponderance of

probability means existence of a greater weight of evidence which is valuable to determine
the offence and sufficient enough to incline a fair and impartial mind to one side of the issue.
The Judge generally takes into consideration that evidence which is persuasive and outweighs
the other side. On the other hand in a criminal case, the burden of proof is on the prosecution
which should be proven beyond reasonable doubt. The highest standard of proof which must
be met in a trial court is that of beyond reasonable doubt. This means that the judge has no
doubt of the defendant’s guilt.

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Section 3 of The Indian Evidence Act, 1872 defines oral evidence and documentary evidence.
The Act says that all those documents which are presented in the court for inspection are
documentary evidence.

Nature and Function of Law of Evidence

Every case that comes before a court of law has a fact story behind it facts out of which cases
arise keep happening in the ordinary course of life. There is a crowded road for example
people are moving, vehicle are moving. Everyone is running at unmitigated speed suddenly
two vehicles run against each other. One of them being loaded with dynamite the accident
produce an explosion with a shocking noise as a result of which a noise in a nearby hospital
drops a child from hands injuring the child cases arising out of the accident with flow into the
courts.

In each case the nature and cause of the accident would be in question. The facts which led up
to the climax will have to reconstruct before the court. So that judge is able consider the real
happening. Only then he will be in position to apply the appropriate law to the fact to arrived
at a just solution about the right and liabilities of the parties. Thus, whenever a judge is called
upon to pronounce upon the right and liabilities of parties arising out of fact certain
information about the facts involved in his mind as to what the real facts are facts must be
proved in the first instances and the only the matter is rife for application of relevant laws.
The practical reality is that the truth or merits of a case are worth less unless they can be
proved to be acceptance of the judge and there to enable him to act on them. The means by
which facts are proved are governed by the law of evidence.

The function of the law of evidence is lay down rules according to which the facts of case can
be proved or disproved before a court of law. The means which can be used to prove a fact
are all control by the rules and principles laid down by the law of evidence. The law of
evidence does not affect substantive right of parties but only lays down the law for facilitating
the rules of evidence for the purposes of the guidance of the court. It is procedural law which
provides inter alike how a fact is to be proved.

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The evidence means any things by which any alleged matter of facts is either establish or
disproved. Anything that makes the thing in question evidence to the court evidence. Where
the question is whether an explosion took place before a fire occurred evidence can be both
oral and documentary and electronic records can be produced as evidence. Even in criminal
matter also there can be evidence by means of electronic records including video-
conferencing.
Modes of Proof
1. Oral Evidence
2. Documentary Evidence
Document - Means any matter expressed or described upon any substance by means of letter,
figures or makes, or by more than one of those means, intended to be used, or which may be
used, for the purpose of recording that matter.
‘Evidence’ as meaning and including oral and documentary evidence. All evidence comes to
the tribunal either as the statement of a witness or as the statement of a document,i.e., oral or
documentary evidence. The present chapter deals with the documentary evidence, i.e., the
mode of proof of contents of documents old documents either by primary or secondary
evidence.
It has been said that the word “document” as used in the law of evidence “should not be
construed restrictively. Etymologically the word means something which shows or teaches
and is evidential or informative in its character. Where the statement of parties containing the
terms of a compromise were recorded by a court and duly signed, it was to be held to be a
document with regard to recorded tape, it was said that there is “no reason in principle why
the recording in recording in some permanent or semi-permanent manner of human voice (or
other sounds) which are relevant to the issue to the determined, provided that it furnishes
information, cannot be a document”.
In case of R.M.Malkani v. State of Maharashtra1
The accused, which an appealed to the Supreme Court against his conviction, was the coroner
of Bombay. A doctor, who was running a nursing home, operated upon a patient who
afterwards died. It, being a post-operation death, becomes the subject of post-mortem and
inquest. The coroner persuaded the doctor to pay him a sum of money if he wanted the report
to be favorable to him. The payment was arranged to be made through another doctor and the

1
AIR 1989 SC 299

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final meeting for this purpose was to be settled by telephone call from the house of another
the doctor. The police commissioner was called with the tape-recording mechanism. This was
connected to the doctor’s telephone and thus the most incriminating conversation was
recorded in the presence of the police officer.
The Bombay High Court held that the testimony of the two doctors required corroboration
and that the tape amply corroborated it. The decision was upheld by the Supreme Court.

SECTION (62) Primary evidence

Primary evidence means the documents itself produced for the inspection of the Court.
Explanation 1-Where a document is executed in several parts, each part is primary evidence
of the document: Where a document is executed in counterpart, each counterpart being
executed by one or some of the parties only, each counterpart is primary evidence as against
the parties executing it.
Explanation 2- Where a number of documents are all made by one uniform process, as in the
case of printing, lithography, or photography, each is primary evidence of the contents of the
rest; but, where they are all copies of a common original, they are not primary evidence of the
contents of the original.
Illustrations:- A person is shown to have been in possession of a number of placards, all
printed at one time from one original. Any one of the placards is primary evidence of the
contents of any other, but no one of them is primary evidence of the contents of the original.

SECTION (63) Secondary evidence

Secondary evidence means and includes:-

(1) Certified copies given under the provisions hereinafter contained.
(2) Copies made from the 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 documents given by some person who has himself seen
it.

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Illustration
(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 he 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.
In case of K.LAXMANAN Vs THE KKAYI PADMINI AND OTHERS
Fact:- Onus of proving the will is on the pro-ponder. The Pro-ponder has to prove the legality
of execution and geniuses of the will by proving absence of suspicious circumstances
surrounding the testator capacity and the signature of the testator. When there are suspicious
circumstances regarding the execution of the will, the onus is also on the pro-ponder to
explain then to the satisfaction of the court and only when such responsibility is discharged.
The court would accept the will as genuine.

Exclusion of Oral Evidence from documentary evidence

Under section 91 and 92 of The Evidence act of India dealt with exclusion of oral evidence by
the documentary evidence section 91 reads as: In terms of a contract, or of a grant, or of any
other nature of property, have been reduced to the form of a document, and in all cases in
which any matter is required by law to be reduced to the form of a document, no evidence
shall be given in proof of the terms of such contract, grant or other nature of property, or of
such matter, except the document itself, or secondary evidence of its contents in cases in
which secondary evidence is admissible under the provisions hereinbefore contained.
Exception 1 – When a public authority is required by law to be appointed in written, and
when it is showed any person has acted as public officer, he need not be proved by his
writings by which he is appointed.
Exception 2 – Wills admitted to probate in India may be proved by the probate.

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The document is the best evidence to prove any fact or related facts. These fact should be
proved either by the primary or secondary evidence of the document. The section prohibit the
proof of the contents of a written document otherwise than by the written itself. Even a third
party, who is seeking to prove a written contract, can prove it only by producing the writing.
In this respect section 91 and 92 addition to each other. They are both based on the “best
evidentiary rule” though they differ in some material particulars also.
In the case of Taburi Sahai v. Jhunjhunwala2
The Supreme Court held that a deed of a adoption of child is not a valid contract within the
meaning of section 91 and therefore , the fact of adoption can be proved by any evidence
apart from the deed further the principles of exclusion of all other evidence applies only to the
terms happens to be mentioned in a contract, the same can be proved by any other evidence
thean by producing the document. Where both the oral evidence and documentary evidence
are admissible non their own merits. There is nothing any special provision in the act
requiring that the documentary evidence should prevail over the oral evidence.
In the case of Hira devi vs Official assignee of Bombay3
Where it is held that the final position therefore is that is the term of any transfer reduced to
writings are in dispute between a stranger to a document and party to his representatives.

Section 92 of The Indian Evidence act

When the term of any such contract, grant or other nature of property, or any matter required
by law to be substituted to the form of a document have been proved according to the final
section, no evidence of any oral agreement or statement shall be admitted, as between the
parties to any such instrument or their legal representatives in interest, for the purpose of
contradicting, varying adding to, or subtracting from, its term:
Provision 1- Any fact may be proved which would not validate any document, or which
would entitled any person to any decree or order relating thereto, such as fraud, coercion,
illegality, want for due execution, want of capacity in any contracting party, want or failure of
consideration, or a mistake in law or in fact.
Provision 2- The existence of any individual oral agreements to matter on which a document
is silent, and which consistent with its terms, may be proved. In considering whether; or not
his provision applied, the Court shall have regard to the degree of formality of the document.

2
AIR 1976 SC106
3
AIR 1958SC 448

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Provision 3- The presence of any unique oral ascension, constituting, a condition point of
reference to the connection of any commitment bound under any such other contract, concede
or nature of property, might be demonstrated.
Provision 4- The existence of any oral agreement, constituting, a condition precedent to the
attaching of any obligation under any such contract, grant or nature of property, may be
proved, except in cases in which such contract, grant or nature of property, is by law required
to be in writing, or has been registered according to the law in force for the time being as to
the registering of documents.
Provision 5- Any usage or custom by which incidents not expressly mentioned in any contract
are usually added to contracts of that description of evidence may be proved.
Provision 6- Any fact may be proved which shows in what manner the language of a
document is related to existing facts. Section 92 of evidence act excluded evidence of any oral
agreement or statement in written, when in the term of a contract, grant or nature of property
or any matter required by law to be in writing have been proved under Section 91 for the
purpose of contradicting, varying, adding to or subtracting from its term of contract. The
principle of evidence act lays down that when the terms of any such document have been
proved by the primary or secondary evidence of the document, no evidence of any oral
agreement or statement shall be. It was held that purpose of oral evidence is admissible to
show that the document executed was never intended to operate4. It was held that the consent
decree or order did not cover all the dispute between the parties and also some vagueness
remained evidence could be given of such matters section 92 of evidence act not been
attracted5.
Exception
1) Validity of document (proviso-1) the first proviso to S.92 says that evidence can be given
of any fact which would invalidate the document in question or which would entitle a party to
any decree or order relating to the document. The validity of a document may be questioned,
for example, on ground that it was obtained by fraud, intimidation or illegality, or that the
document was not duly executed, or that one of the parties was incompetent to contract, or
that there was a mistake of fact or of law or that there was no consideration or consideration
had failed.
2) Matters on which document is silent (proviso-2) evidence can be given of an oral
agreement on a matter on which the document is silent. Such evidence is allowed subject to
4
Gangabai vs chhahubai [AIR 1982 SC 20]
5
Hittlamani vs Prayya gurulingayya poojari [AIR 2008 SC 241]

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two conditions; firstly, the oral agreement should not be inconsistent with the terms stated in
the document. The terms which are expressly stated in the document cannot be allowed to be
contracted by any oral agreement. Such evidence is allowed to be proved only on matters on
which the document is silent. Secondly, in permitting the evidence of oral agreement the court
is to have regard of the degree of formality of the document. If the document is extremely
formal, evidence of an oral
agreement shall not be allowed even on matters on which the document is silent. A written
agreement, for example, is silent as to the time of payment of the price. If there is any oral
agreement as to the time of payment of the same may be proved.
3) Condition precedent (proviso-3) the third proviso provides that the existence of any
separate oral agreement constituting condition precedent to the attaching of any obligation
under the document may be proved. Where the parties to a promissory note payable on
demand, orally agreed that payment would not be demanded for five years, the Supreme
Court allowed the oral agreement to be proved.
If the party liable under a document has already stated making payments under it, he cannot
afterwards set up the defense of an oral condition precedent to liability. In a mortgagor’s suit
for rejection it was held that oral evidence could be admitted to show that the document was
not intended to be acted upon, that it was a sham document and that it was executed only as a
collateral security. Facts, however, showed no evidence to that effect.
4) Recession or modification (proviso -4) to rescind a document means to set it aside and to
modify means to drop some of it as cancelled or to modify some of its terms; such oral
agreement may be proved. This is, however, subject to one qualification stated in the proviso
itself, namely, where the contract is one is required by law to be in writing, or where it has
been registered according to the law relating to registration of documents, then proof cannot
be given of any oral agreement by which it was agreed either to resigned the document or to
modify its terms.
5) Usages and customs (proviso-5) the proviso, therefore, provide that the existence of any
usage or a custom by which incidents are attached to a particular type of contract can be
proved. But this is subject to the condition that the usage or custom of which proof is offered
should not be against the express terms of the document. The usage should not be repugnant
to or inconsistent with the document, for otherwise it would nullify the document. Where
goods sold are to be carried by the railways, but the contract does not mention as to who is to

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arrange for wagons, evidence may be offered that by the custom of the trade seller had to
arrange for wagons.
6) Relation of language of facts (proviso-6) every contract intended to apply to certain facts.
The facts upon which the document is to operate are sometimes set out in the contract itself
and sometimes not. Where, for example, a person transfers the whole of his property, but
doesn’t describe or state where his property is. In such cases the property to which the
document relates can be proved by oral evidence. Similarly,where a written contract says that
it subject to the “usual clause”, the usage prevalent in a particular trade may be proved by oral
evidence. Oral evidence is also receivable to throw light upon the nature of a document. The
section does not fetter the power of the court to arrive at the true meaning of a document as
disclosed by all the relevant surrounding circumstances.

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 CONCLUSION
Document evidence has more value than the oral evidence. Court is bound to accept the
documentary evidence. But oral evidence may take in consideration. It also need to some
corroboration. In brief it is submitted that two types of evidence are given by the parties oral
and documentary evidence.

In courts the value of oral evidence is less than documentary evidence. Because the law
always requires the best evidence oral evidence is a evidence is a evidence which is confined
to the words spoken by the mouth. On another side documentary evidence are of two types.
Primary evidence is more reliable and best evidence consider by court. In the absence of
primary evidence, secondary evidence is that which the witnesses are giving on the basis of
his own perception. Where as primary evidence is the original document which is presented
to the court for its inspection.

Direct evidence is best oral evidence of fact to be proved. But primary evidence is the best
evidence in all circumstances. There is also exclusion of oral evidence by document evidence
document also of two kinds ambiguous and non ambiguous. The person giving direct
evidence available for cross examination for testing its veracity. No notice is requiring before
giving primary evidence.

The source of direct evidence is the person who present in the court and giving evidence but
on the opposite side value of primary evidence is the highest value. From the above
discussion primary evidence has more than oral evidence.

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 BIBLOGRAPHY

BOOKS/JOURNELS

1. The Law of Evidence by Mr.Batuk Lal

2. The Principle of law of Evidence by Dr Avtar Singh

3. The Law of Evidence by Mr.Rattan Lal & Dhiraj Lal

4. Basu’s Law of Evidence by Mr. P.M Bakshi

WEBSITES

1. www.legalaffairs.gov.in

2. www.indiankanoon.org

3. www.legalservicesindia.com

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