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The word "evidence" is used in the Indian Evidence Act, 1872 (hereinafter referred
to as 'Act') in different phrases, i.e. best evidence, direct evidence, circumstantial
evidence, documentary evidence, substantive evidence, corroborative evidence,
derivative evidence, hearsay evidence, indirect evidence, oral evidence, original
evidence, presumptive evidence, real evidence, primary evidence and secondary
evidence. The Hon'ble Supreme Court in Kaylan Kumar Gogoi v. Ashutosh
Agnihotri and Anr. [AIR 2011 SC 760], has held that "The word "evidence" is
used in common parlance in three different senses: (a) as equivalent to relevant,
(b) as equivalent to proof, and (c) as equivalent to the material, on the basis of
which Courts come to a conclusion about the existence or non-existence of
disputed facts." "
However, oral and documentary evidence are the two main kinds of evidence. Oral
evidence includes direct evidence and also substantive and corroborative evidence,
whereas, documentary evidence only includes substantive and corroborative
evidence. Therefore, appreciation of evidence in suits, more specifically deals with
oral and documentary evidence.
Section 59 and 60 of the Act deals with oral evidence. Oral evidence of a witness is
generally admissible evidence if he has direct and personal knowledge of the fact
deposed by him. It is apropos, here to refer 'section 3' of the Act, which says that
"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". Whereas, in the case of documentary evidence, the Act classifies
documents into two types: one is a 'public document' in terms of Section 74 of the
Act, and the other are certified copies as contained in Section 77 of the Act.
Now the question arises how oral evidences are excluded by documentary
evidence.
In India, the best evidence rule has been regarded as a fundamental principle upon
which the law of evidence depends, although it is not particularly mentioned
anywhere but is the basis of section 91 and 92 of the Indian Evidence Act 1872.
Section 91 of the Act lays down the provision that when evidence related to
contracts or grants or other depositions of the property is reduced as a document,
then no evidence is required to be given for proof of those matters except the
document itself.
(1) When a public officer is required by law to be appointed in writing; and any
officer has acted as such, the writing need not be proved;
Section 91 of the evidence act mainly says that we should produce the original
document for proving the contents of the same but however, it does not prohibit the
parties to adduce some evidence in case the deed is capable of being construed
differently for proving the way they understood [Tulsi v. Chandrika Prasad AIR
2006 SC 3359].
On the other hand, Section 92 further excludes the evidence of oral agreements. It
is relevant to note that after the document has been produced to prove its terms
under Section 91, the provisions of Section 92 is triggered for the purpose of
excluding evidence of any oral agreement or statement, for the purpose of
contradicting, varying, adding to or subtracting from its terms. There are six
provisos to this Section, viz:
Proviso (4): Distinct oral agreements made subsequently to renew or modify the
contract
Proviso (5): Any usage or customs by which incidents not mentioned in any
contract are usually annexed to contract
i. to admit inferior evidence when the law requires superior would amount to
nullifying the law,
ii. when parties have deliberately put their agreement into writing, it is
conclusively presumed, between themselves and their privies, that they intended
the writing to form final statement of their intentions and one which should be
placed beyond the reach of future controversy, faith and treacherous memory.
As can be seen from the above discussion when the terms of the contract,
deposition of a property or any matter required to be in writing under the law, is
proved by the document, then the oral evidence is not required to contradict it.
After a document has been produced to prove its terms under Section 91, the
provisions of Section 92 come and exclude evidence of any oral agreement or
statement for the purpose of contradicting, varying, adding or subtraction from its
terms.
The Evidence Act further comes down on oral evidence as compared to
documentary Evidence. Section 93 deals with exclusion of evidence to explain or
amend ambiguous document; Section 94 deals with the exclusion of evidence
against application of document of existing facts; Section 95 deals with the
evidence as to report unmeaning in reference to existing certainties i.e. when
language used in a document is plain in itself, but is meaningless in reference to
existing facts, evidence may be given to show that it was used in a peculiar sense.
Section 96 deals with evidence as to application of language which can apply to
one only of several persons; Section 97 deals with evidence as to application of
language to one of two sets of facts, to neither of which the whole correctly applies
and Section 99 deals with the proposition that persons who are not parties to a
document, or their representatives in interest, may give evidence of any facts
tending to show a contemporaneous agreement varying the terms of the document.
By Best Evidence Rule we mean that the secondary evidence won't be applicable if
the primary evidence exists. An essential component of the law of evidence is that
in all cases it is the best proof or the best evidence which ought to be given. Where
the demonstration of proof is shown by way of a record, the record is the best
evidence of the reality. Oral evidence has lesser value than documentary evidence,
as oral evidence requires corroboration for its acceptance. It also needs some
corroborative evidence which is taken into consideration on the basis of the quality
of the evidence that is placed before the Court and not on the quality of process of
arriving at a decision. As such oral proof cannot be substituted in the place of
written documents where the written document exists in evidence of certain
transactions, as written testimony. Such evidence is more certain and more reliable
than oral evidence.