LAW OF EVIDENCE

TOPIC:
Critical analysis of Oral Evidence and Witness

SUBMITTED UNDER THE GUIDANCE OF :

ADV. Anirruddha Joshi

SUBMITTED BY:
Shrijita Gaddam (C010), B.B.A;L.L.B
SAP ID: 81022018011

DATE OF SUBMISSION:
16th March, 2021(10/03/2021)

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Table of Contents
Abstract:....................................................................................................................................3
Keywords:.................................................................................................................................3
Introduction:.............................................................................................................................3
Importance of Oral Evidence:.................................................................................................4
Oral Evidence must be direct:................................................................................................4
Hearsay – Exception to Oral Evidence.....................................................................................4
Witness Testimony:..................................................................................................................5
Eye Witness:.............................................................................................................................5
Expert Witness:........................................................................................................................6
Research Methodology:...........................................................................................................8
Conclusion:...............................................................................................................................8
BIBLIOGRAPHY....................................................................................................................8

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Abstract:
Evidence is a form of certain relevant and reliable facts or chain of events that take place which could
prove or abstain from proving any matter in a particular case. There are two kinds of Evidence as per
Evidence Act, 1872 – Oral Evidence and Documentary Evidence. Another form of Evidence which
has been recognised by law under IT Act, 2000 is the Electronic Evidence. Oral evidence is Producing
a witness of fact in the court. It is the verbal testimony of the witness which is the one of oldest forms
of evidence and is of utmost importance. This paper highlights the concept of Oral Evidence, its
importance, the role of witness and covers few other important concepts relating to this along with
some case laws.

Keywords:
Witness, Testimony, Identification, proof, Evidence, Corroboration

Introduction:
Oral Evidence is the evidence which is confined to the words spoken by mouth. Section 3(1) of the
Indian Evidence Act, 1872 defines Oral Evidence as “All statements which the court permits or
requires to be made before it, by witnesses in relation to the matter of fact under enquiry, such
statements are called Oral Evidence.” Oral Evidence, if worthy of credit, is sufficient to prove a fact
while a fact could be proved by oral evidence, it is not necessary that the statement of witness should
be oral. Any method of communicating thought which the circumstances of the case or the physical
condition of demand may, in the discretion of the Court, be employed. 1 According to Section 119 of
the Indian Evidence Act, 1872, a person who is unable to speak may give his/her evidence in any
manner which he can make it intelligible, as by writing or signs. These signs when made in open court
will be considered as the Oral Evidence. This means Oral evidence can include any statement made
by a person in signs or in a form of writing.
Witness:
Witness is defined as any person who has first-hand knowledge of a case. The statements by the
witness are submitted as evidence in the court which are to be under oath either orally or by
submitting a written testimony. They are a crucial part of a case as their testimony is the major proof
which helps in proving or disproving a particular case and helps the judge in reaching a conclusion.
Section 118 of the Act , “All persons shall be competent to testify unless the Court considers that they
are prevented from understanding the questions put to them, or from giving rational answers to those
questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of
the same kind.”

1
Batuk Lal, The Law of Evidence, 427 (Central Law Agency)

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Importance of Oral Evidence:
Evidence plays a very import ant role in a trial. The usage of oral evidence has been a subject to rapid
growth. It stimulates information and extracts what a person has witnessed in regards to the trial.
Given the growing importance of oral evidence, the Bombay High Court ruled that oral evidence can
also be used for the settlement of criminal cases. As long as it is ‘proof’, beyond reasonable doubt oral
evidence can certainly set the pace for the proceedings of a criminal trial.

Proof of Fact by Oral Evidence:

According to Section 59 of Indian Evidence Act, 1872, All the facts and circumstances by expressing
or speaking except the contents of documents or electronic records may be proved by oral evidence. It
is held that if any person has to be called for proving their documents, then that document becomes
oral and the documentary evidence here loses its significance.
It was held in Bhima Tima Dhotre v. The pioneer chemical co. 2 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 recognised 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

Oral Evidence must be direct:

Section 60 of the Indian Evidence Act, 1872 provides that Oral evidence needs to be direct. For it to
be admissible in the court, all the conditions under this section must be fulfilled, else it will not be
recognized as an Oral Evidence.
According to Section 60 of Indian Evidence Act, 1872, 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

2
Bhima Tima Dhotre v. The Pioneer Chemical CO. (1968)70 BOMLR 683

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Hearsay – Exception to Oral Evidence
Hearsay Evidence as a general rule is not accepted in the Indian Evidence Act. It is considered to be
irrelevant and vague. It is not admissible in nature. The term ‘hearsay evidence’ is used with reference
to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of
evidence which does not derive its value solely from the credit given to the witness himself, but which
rests also, in part, on the veracity and competence of some other person. 3 Hearsay evidence is a
rumour which can or cannot be proven. It cannot be considered as an Oral Evidence.
For Oral evidence to be admissible, it only accepts the rule of first-hand knowledge. A judgement
which is passed on hearsay may truly be unjustified as there would be no reliability as to whether the
person who has passed on the information is credible enough or not.
Oral Evidence only includes the facts which could directly be seen, heard and perceived by the
person. There is no room for second hand knowledge here like the Hearsay Evidence. Hence hearsay
is an exception to this.
Hearsay when corroborated with Substantive Evidence:
Hearsay evidence could be used as an Oral Evidence when it is corroborated with substantive
evidence. This was witnessed in the case of Mukhtiar Singh v. State of Punjab 4. In this case, the
witness stated that he saw the accused persons running towards the village carrying a weapon. He
chased two of them to a certain distance but he did not see the occurrence of the attack as it happened
when he chased the two accused persons but when he came immediately thereafter he learnt from
eyewitnesses that the accused persons attacked the deceased and informed the police. Although his
evidence is Hearsay, it was admissible for corroborating substantive evidence of the eyewitnesses as
evidence of such nature could be used to corroborate substantive evidence. 5

Witness Testimony:
A witness plays a very integral part of an Oral Evidence especially in Criminal Matters. Witness can
be classified into
1. Eye Witness
2. Expert Witness

Eye Witness:
A witness who gives testimony to facts seen by him is called an eye witness, an eye witness is a
person who saw the act, fact or transaction to which he testifies. An eye witness must be competent
(legally fit) and qualified to testify in court. A witness who was intoxicated or insane at the time the
event occurred will be prevented from testifying, regardless of whether he or she was the only
eyewitness to the occurrence. Identification of an accused in Court by an Eye witness is a serious

3
Kalyan Kumar Gogoi v. Ashutosh Agnihotri &Anr, 2007 (4) GLT 374
4
Mukhtiar Singh v. State of Punjab, AIR 2009 SC 1855
5
Pawan Kumar v. State of Haryana, (2003) 11 SCC 241

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matter and the chances of a false identification are very high. Where a case hangs on the evidence of a
single eye witness it may be enough to sustain the conviction given sterling testimony of a competent,
honest man although as a rule of prudence courts call for corroboration. “It is a platitude to say that
witnesses have to be weighed and not counted since quality matters more than quantity in human
affairs.
The quality of eyewitness statements is presumed to be true and impartial as they are made under an
oath and by a third party who has no connection with the either parties. Therefore, the importance of
the witnesses in a Criminal Justice System cannot be ignored.
The provision that qualifies an eyewitness statement as highly valuable evidence as well as
strengthens the status of such statements is Section 134 of the Indian Evidence Act, 1872. As per
Section 134, no particular numbers of witnesses are required to prove a fact. The Act gives
importance to the principle of quality than quantity. A conviction can also occur on the basis of the
testimony of a sole witness.
Evidentiary value of an Eye Witness
The evidentiary value of the eyewitness statement can be construed from the provision of Section 135
of the Indian Evidence Act, 1872. As per the Section, the order in which the witnesses are to be
produced shall be regulated by law and the practice. The section further provides that the witness must
be examined as per the civil and criminal procedure.
In the landmark decision of Vikas Kumar Roorkewal v. State of Uttarkhand & Ors,6, the Supreme
Court held that eyewitnesses’ plays an important role in the Criminal Justice System and every
legislative measure in connection of witnesses contributes to the fundamental principle of fair trial.
Similarly, in the case of Pratap Chauhan v. Ram Naik 7, it was held by the Hon’ble Supreme Court that
an eyewitness statement cannot be ignored on the ground of false implications before checking the
evidences with proper care and caution. The court further held that a testimony of eyewitness cannot
be discarded on the ground of minor variations.

In cases of murder, eye witnesses are the most reliable witnesses in the eye of law. The credibility and
the truthfulness of the eyewitness statement are not affected if the statement has led to the acquittal of
one accused and conviction of others as held in the case of Krishna Ram v. State of Rajasthan.8 The
Supreme Court in the case of Edward v. Inspector of Police 9 held that the statement of sole
eyewitness reliable evidence even if it differs from the medical reports. The testimony of the
eyewitness cannot be discarded on the ground of absence of motive.

6
Vikas Kumar Roorkewal v. State of Uttarkhand & Ors; 2011 2 SCC 178
7
Pratap Chauhan v. Ram Naik; 2001 AIR 164 SC
8
Krishna Ram v. State of Rajasthan; AIR 1993 SC 2374
9
Edward v. Inspector of Police;2003 AIR 660 SC

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Expert Witness:
Expert Witness is any person who has the professional, educational or judicial expertise on the matter
beyond any average individual, and the court can rely on its testimony to declare a verdict. The court
cannot form an opinion without the help of a person who has special skills or experience with regards
to a particular matter, especially in criminal cases.
The experts are considered as witnesses although they do not have first-hand knowledge about the
case. The court requires these experts to give an opinion regarding the case to help the court in having
a wider perspective to give justice or come to a reasonable conclusion. The rationale behind the same
is that it is not practical to expect the Judges to have adequate knowledge about few matters as
mentioned above.
Expert Evidence is defined under Section45 of the Indian Evidence Act, 1872 as “when the Court has
to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting  [or
finger impressions], the opinions upon that point of persons specially skilled in such foreign law,
science or art, [or in questions as to identity of handwriting [or finger impressions] are relevant facts.
Such persons are called experts.”
All these experts when they give their testimony in the court about the matters they specialize related
to the case orally, then it is considered as Oral Evidence.
If an expert is giving an opinion, it is considered as a relevant fact for the case. An expert has devoted
his time in learning a special branch of expertise and thus is specially skilled in the subject. It can
include:
- Superior knowledge, and
- Practical experience
The court of law, before admitting any of the opinion made by an expert, needs to ensure that the
person is an expert under the law. If it is found that the person is not an expert, his opinion is
discarded by the court. For checking that the witness is an expert, he must be examined and cross-
examined10. A person becomes an expert by Practice, Observation, or Experience
In the case of Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors.11 The court stated that the
first and foremost requirement for expert evidence to be admissible is that it is necessary to hear the
expert evidence. The test is that the matter is outside the knowledge and experience of the layman.
Evidentiary value of an Expert Witness
The data given by the expert are relevant and admissible. If any oral evidence contradicts the data/
report; it will not make the data evidence obsolete. But, as per section 46, in case any fact is in
contradiction to the opinion of the expert, that fact becomes relevant. If the opinion of the expert is
relevant, the contradictory fact becomes relevant even though it was not relevant as such. The value of

10
Balakrishna Das Agarwal v. Radha Devi, AIR 2989 ALL 133
11
Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors; (2009) INSC 1569

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expert opinion depends upon the facts on which he is based and the competency of such expert in
forming a reliable opinion.
If a judge relies upon the opinion of the expert only and not on the facts and the testimony of ordinary
witnesses to give judgement then is the weakness of the case. This is because even if a person is an
expert in his field, he cannot be termed as a direct witness and cannot give a statement on the facts of
the case. He is just giving an opinion as per the evidences given to him and cannot draw a conclusion
regarding the guilt of the accused in all the cases.
The evidence given by the expert is just an opinion and is not a fact-based testimony and thus are
given slight value. This is the reason that eye-witnesses or other factual witnesses are given a priority
over the expert’s opinion. This is because opinion evidence cannot supersede substantive evidence.
No expert can claim that he could be absolutely sure that his opinion was correct, expert depends to a
great extent upon the materials put before him and the nature of the question put to him.

Research Methodology:
The research is based on secondary data. This is a doctrinal study. The researcher has also
utilised commentaries, books, treaties, articles, notes comments and other writings to
incorporate the various views of multitude of jurists, with the intention of presenting a
holistic view.

Conclusion:
I would conclude this research paper by saying that oral evidence, with its increasing approach can be
appropriate for passing judgement if proved beyond a reasonable doubt. It adds a lot of weightage in
proving or disproving a particular case. In the earlier times, when compared to Documentary
Evidence, it was seen to be weak evidence but its need has been growing in modern times. The role of
Witness is thoroughly analysed and in my opinion incidents and facts can be better understood
through oral ways as the person who has administered the incident itself can explain it in a clearer
way rather than documentary form of evidence and as Oral evidence involves the concept of first-
hand knowledge, the witnesses are bound to tell the truth as put under oath and here the evidence has
no scope of being fabricated.

BIBLIOGRAPHY
1. Khushi Sharma, Oral Evidence Under the Evidence Act, 1872, IPLEADERS,
https://blog.ipleaders.in/oral-evidence-indian-evidence-act1872/amp/

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2. Anjali Dhingra, Expert Evidence Under the Indian Evidence Act, 1872, IPLEADERS,
https://blog.ipleaders.in/expert-witnesses-under-the-indian-evidence-act-1872/amp/

3. Batuk Lal, The Law of Evidence, 427 (Central Law Agency)

4. Krishna Murali Yadav, Oral Evidence, Indian Legal Solution, March.29,2020,

https://indianlegalsolution.com/oral-evidence-detailed-notes/

5. Oral Evidence and its significance in a court of Law, Abrise Legal, Nov.14, 2017,
https://abrise-legal.medium.com/oral-evidence-and-its-significance-in-a-court-of-law-
c7a5b639156b