Indian Evidence Act, 1872

ASSIGNMENT ON EVIDENCE AND EXAMINATION OF WITNESS
ASSIGNMENT SUBMITTED IN FULFILLMENT OF THE

REQUIREMENTS
OF PRATICAL ASSIGNMENT FOR INDIAN EVIDENCE ACT, 1872
FOR THE DEGREE OF
T.Y.LL.B
(THROUGH THE UNIVERSITY OF MUMBAI)
_______________
SUBMITTED BY
MS. KRUTI SHAH
(ROLL NO. 2223345)
_______________
SUBJECT TEACHER:
MRS. NEETA RAJANI
LALA LAJPATRAI COLLEGE OF LAW (LLC)

MUMBAI
FEBRUARY 2023
INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 Page |1
INDEX
Sr. No TOPIC PAGE

NO.
1. INTRODUCTION 3-4
2. ORAL EVIDENCE
 MEANING AND DEFINITION 5
 IMPORTANCE 6
 SECTION 59 AND 60 OF INDIAN EVIDENCE ACT 7-9
3. BEST EVIDENCE RULE 10 - 12
4. HEARSAY EVIDENCE 13
 EXCEPTIONS TO THE RULE OF HEARSAY EVIDENCE 14
5. DOCUMENTARY EVIDENCE 15 - 16
6. PRIMARY EVIDENCE AND SECONDARY EVIDENCE 17 - 19
7. SPECIAL PROVISION AS REGARDS ELECTRONIC RECORDS 20
8. PRESUMPTION AS TO DOCUMENT 21 - 23
9. PRESUMPTION AS REGARDS ELECTRONIC AGREEMENT, DIGITIAL 24 - 25

SIGNATURE CERTIFICATE AND ELECTRONIC MESSAGES
10. EXAMINATION OF WITNESS 26
11. RULES RELATING TO EXAMINATION OF CHIEF 27
12. RULES RELATING TO CROSS EXAMINATION 28 - 29
13. RULES RELATING TO CORROBORATION 30
14. RULES RELATING TO REFRESHING MEMORY 31
15. RULES AS TO PRODUCTION OF DOCUMENT 32
16. CONCLUSION 33
17. BIBLIOGRAPHY 34
INTROUDUCTION
 Evidence comprises anything that may be used to determine the truth of the assertion. The
production and presentation of evidence depend on establishing on whom the burden of proof
lays. The judge or the jury decides if the burden of proof has been fulfilled. After it has been
established who shall carry the burden of proof, the evidence is foremost gathered, collected and
then presented before the court to determine its admissibility.
 According to Sir Taylor: Law of Evidence which branches out of the Law of the procedure, “means
through argument to prove or disprove any matter of fact. The truth of which is submitted to
judicial investigation.”
 Section 3 of the Indian Evidence Act defines evidence as:

 All the 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.
 All the documents, including electronic records produced for the inspection of the court; such
documents are called documentary evidence.
 The word ‘Evidence’ is derived from Latin term ‘evidens‘ or ‘evidere‘ which means to prove, to
ascertain, to make clear. According to Bentham evidence can be defined as any matter of fact, the
effect of which is to produce in a mind a persuasion, affirmative or disaffirmative, of existence of
some other fact. The fact sought to be proved is the principal fact and the fact which tends to
establish it, is evidentiary fact.
 Evidence signifies only the instruments by means of which relevant facts are brought before the
court. It is different from proof which is the effect of evidence. According to Phipson evidence is
a testimony whether oral, documentary or real which may be legally received in order to prove or
disprove some fact or dispute.
 Evidence is an important aspect of any case in a court of law because every allegation or demand
in court has to be supported by some evidence otherwise it will be considered baseless.
 According to English Law, the term ‘evidence’ can even mean the words spoken and things
exhibited by the court witnesses. However, it can also signify the facts proved to exist by those
words or things and is ultimately chosen as the conclusion over other facts that were not sufficient
enough to be proved. Also, evidence can be deduced to assert that a certain fact is relevant to the
matter that is under inquiry.
 However, in Indian law, evidence has been given a more definite meaning and is used only in its
first sense. Thus going by the act, it can be concluded to say that the word ‘evidence’ means only
those instruments through which suitable and appropriate facts are brought before the Court and
by the help of which the Court is convinced of these facts. Therefore, even matters other than the
statements of witnesses and documents provided for the inspection of the Court like any
confession or statement of any accused person in the course of a trial. According to Indian Law
‘Evidence’ means an instrument which is brought before the Court and with the help of which the
Court becomes convinced of the appropriate and suitable facts.
 As defined by Sir Blackstone, ‘Evidence’ means what illustrates, clarifies or learn the reality of
current realities or focuses on issue either on one side or the other.
 Also, it should be noted that statements given by parties when examined otherwise than as
witnesses, the demeanor of the witnesses, consequences of the local investigation or inspection,
and material objects other than documents such as weapons, tools, stolen property, etc., will not
be considered evidence according to the definition of evidence given under Indian law.
 Nonetheless, these matters are legitimately taken into consideration by the Court. The definition
of ‘evidence’ should be read together with the definition of ‘proved’ and the merged result of
these two definitions are considered for ascertaining a fact to be evident to the case. However,
these are not the only things courts take into consideration when forming their conclusions.
 A statement that is being recorded under Section 164 of the Act, is not considered evidence within
the purview of the Act. So even a confession given by an accused will not be considered evidence
in the ordinary sense of the term. Even the entire evidence produced or stated by hostile
witnesses are not excluded completely by the Court.
 The court of law has wide powers when it comes to recognizing the powers of the appellant in a
case. Court has full authority to review the whole evidence. It is within the powers of the court
through the entire evidence and relevant circumstances to reach its conclusion about the
conviction or innocence of the accused person.
ORAL EVIDENCE
 Oral Evidence is dealt with under Section 59 and 60 of the Evidence Act, 1872. Oral evidence is
defined under section 3 (under evidence head) which explains 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 as oral evidence.”
 The word ‘Oral’ itself describes its meaning as something spoken or expressed by mouth; so
anything which is accepted in the court in relation to the inquiry and expressed by any witnesses
who are called in the trial is termed as oral evidence. Oral Evidence also includes the statements
made by people in signs and writing forms (inclusive of people who cannot speak).
 ‘Oral Evidence’ meaning is “The evidence, which is confined to words spoken by mouth”. The
knowledge of the court by the statement of a witness qualified to speak on the point. The evidence
of witnesses in general is given orally, and this Means Oral Evidence.
 The evidence of witnesses in general is given orally, and this Means Oral Evidence. Therefore Oral
Evidence includes the statement of witnesses before the court which the Court either permits or
requires them to make. The statement may made by witnesses capable of making it. A witness
who can speak may communicate his knowledge of the fact to the court by signs or by writing and
it will be treated as oral evidence
 Consequently Oral Evidence contains the statement of witnesses before the court which the Court
either permits or wants them to make. A statement can be made by witnesses capable of making
it. A witness who can speak can communicate his information of the fact to the court by signs or
by writing and it will be considered as oral evidence. Sometimes a witness, who is not able to
speak, is allowed and considered as competent to give evidence in any matter which, he or she
can make it understandable. In Verbal Statements, includes signs & gestures.
 The case of Queen-Empress v. Abdullah elaborated the difference between Verbal and Oral. The
term ‘Verbal’ means by words; it is not necessary that the words should be spoken. if the term
used in the section is oral then it might be that that statement should be confined to words spoken
by mouth. The term verbal is a wider term than oral.
 It is a fact to the knowledge of the court by the statement of a witness qualified to speak on the
point. However a witness, who is unable to speak, is permitted and considered as competent to
give evidence in any matter which, he can make it intelligible. Verbal Statements includes signs
and gestures. A deaf may testify by signs or by writing. Oral evidence, if worthy of credit, is
sufficient without documentary evidence to prove a fact or title.
IMPORTANCE OF ORAL EVIDENCE
 Every evidence plays an important role in the trials, oral evidence has been growing in regards to
usage; as earlier it was not considered to be as precise and blunt as documentary but its need and
importance has been constantly subjected to rapid growth.
 Oral evidence is also equally important as it stimulates a person and extracts what a person has
seen or what he wants to say in regards to the trial. Oral evidence is comparatively easier to refer.
The importance has been explained by the Bombay High Court in one of the cases that if the oral
evidence is proved beyond reasonable doubt it can also be enough for passing conviction.
 In section 59 and 60 of the Indian evidence act, where written documents exist, they shall be
formed as being the best evidence of their contents and no oral evidence can be offered to prove
as to what is wrong in the document.
 While receiving oral evidence great care must be exercised. The Court must examine the evidence,
separate grain from the chaff, and accept only what it finds to be true and reject the rest. The real
test for accepting or rejecting the evidence is:
 How reliable the story is with itself;
 What extent it fits in with the rest of the evidence and the circumstances of the case;
 How much it stands the taste of cross-examination.
 Credibility of Oral Evidence: The credibility of the witness giving Oral Evidence could only be
doubted if the statement contracts to any previously given statement by the witness. But if the
statement is already recorded before the police, then with minor contradictions also it will be held
as reliable oral evidence.
 In the modern era, the importance of written evidence is considered as more reliable but the
origin of oral evidence has not completely demolished but beside the written evidence due to
advancement in technology, a craze for presentation of oral evidence and relying upon the oral
sources have also increased. Oral sources such as speaking, any kind of gesture of motion, audio-
forms and recordings are considered equally important as that of written evidence. Evidences
which are in the form of interviews are also considered as relevant under oral evidences.
SECTION 59 AND 60 OF INDIAN EVIDENCE ACT
A. Section 59: Proof of facts by Oral Evidence
 It is according to Section 59 of the Indian Evidence Act, that all facts and circumstances may
be proved by the Oral Evidence by expressing or speaking except the contents of documents
and electronic records. The contents of documents and electronic records cannot 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 documentary evidence loses its significance.
 Oral evidence doesn’t always mean words that are spoken by mouth, but other methods also
support this method. As if the witness is unable to speak he/she could also use signs to make
a statement. As there prevailed a principle that if there is an availability of the Documentary
evidence it shall be considered the best evidence prevailed for the particular case. Hence all
the facts except the documents or any other records could be proved by Oral evidence.
 The same was held in the case of Bhima Tima Dhotre vs. the Pioneer Chemical Co. 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.”
 That if the write has to be called in every case to give oral evidence of its contents then the
documentary evidence becomes meaningless. If that were the position it would mean that the
oral evidence would virtually be the only type of evidence recognized by law. Hence in the
ultimate analysis, all evidence must be oral. This provision prove that the contents of
document if proved by means of oral evidence would be a violation of that section.
 FALSUS IN UNO, FALSUS IN OMINIBUS: It means ‘false in one thing is false in everything’. The
oral testimony will the mixture of both truth and falsehood. This maxim is neither accepted
nor considered by any stretch of imagination as rule of law. The Supreme Court in Ugar Ahir v.
State of Bihar(1965), it was held that the maxim is neither sound rule of law or a rule of practice
for the reason that hardly one comes across a witness whose evidence does not contain a
grain of untruth at any rate exaggeration, embroidery or embellishment.
 The Oral Evidence also, should be approached with extreme caution. The courts, hence are
supposed to separate the grain from the chaff, implying that there needs to be a proper
segregation of the truth from the false, and that there needs to be a proper picking out of the
facts that are relevant to what is not relevant.
B. Section 60 – Oral Evidence must be Direct
 This is the cardinal principle of any evidence to be admissible in the court. If any oral evidence
needs to be admissible, all the conditions under Section 60 of the Indian Evidence Act must be
fulfilled. If anyone of the following conditions is not fulfilled, then the evidence will fail to be
pictured as an Oral Evidence. Oral evidence and section 60 is a proportional equation. For
acting out one, the other needs to be fulfilled.
 The base principle on which section 60 is placed is that the evidence which is taken into regards
must be direct. The word direct does not include any category of hearsay as its main element
is vested in the word “must”. Every statement under oral evidence must be direct.
 Oral Evidence must be direct in all cases. Indirect ways or hearsay is not considered a part of
direct oral evidence. The word “Direct” in all matters must mean that it is administered by any
person on their own i.e. through their personal knowledge and is not passed by any other
person (hearsay) which on the other hand will be inadmissible. This involves certain cases in
which the word “direct” is involved :-
1. It refers to a fact which could be seen, it must be the evidence of a witness who says he
saw it –
It refers to evidence which has been given by the person who has actually seen or observed
the matter by their own eye. This will be actuated as direct evidence. For example: if A saw
that B is hitting C. A will be an eyewitness to the crime scene and his testimony will be that
of direct evidence.
2. It refers to a fact which could be heard, it must be the evidence of a witness who says he
heard it –
It refers to evidence which has been given by the person who was present and has actually
heard the matter by themselves, this will come under direct evidence. For example: if A
overheard B’s conversation that stated; that he is going to kill C tomorrow under the
bridge, A’s testimony will be that of direct evidence.
3. It refers to a fact which could be perceived by any other senses or any other manner, it
must be the evidence of person who says he perceived it by that sense or manner –
Meaning such evidence that has been given by the person who has perceived it in any
other manner or by any other senses but it has been perceived by that person itself. For
example: through sense of smell or taste.
4. If it refers to an opinion or to grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds –
It means when a person holds any opinion on any matter or incident, only his testimony
on the ground of which his opinion is formed will be admissible in the court. For example
A thinks that B is not a good guy, so his testimony of that opinion will be termed under
direct evidence.
 Provided that the opinion of experts expressed in any treatise commonly offered for sale, and
the grounds on which such opinions are held may be proved by the production of such treatise
if the author is dead or cannot be found or has become incapable of giving evidence or cannot
be called as a witness without an amount of delay or expense which the Court regards as
unreasonable.
 Provided also that, if oral evidence refers to the existence or condition of any material thing
other than a document, the Court may, if it thinks fit, require the production of such material
thing for its inspection.
 For instance, in the landmark case of R v Gibson, the courts dismissed the evidence of the
plaintiff stating that the evidence is mere hearsay. In this case, the accused person was hence
prosecuted, for hurting the plaintiff by throwing a stone.
 As soon as the stone was thrown, a woman screams and directs the attention of the plaintiff
to the house, stating that the man who threw the stone ran to the house. Hence, such an
evidence was not counted in the court of law, since the plaintiff did not see the stone being
thrown through his own eyes.
 Therefore, it can be concluded that, hearsay evidence is the statement which is the evidence
of the witness, but is not based on his personal knowledge but on what he has procured from
others sources. Concept of hearsay, is based on the principle, that hearsay hence is no
evidence. It comes under the ambit of indirect evidence.
BEST EVIDENCE RULE
 Originated from the doctrine of profert in curia which meant if a party could not present the
original documents in written form before the concerned court of law, then he or she would have
lost his or her rights that were created by the documents, the best evidence rule is also familiar
by the name of “original document rule”. Justice Hardwicke’s decision, in the case of Ford v.
Hopkins (1700) and Omychund v. Barker (1745) is a noteworthy one as he mentioned that “no
evidence will be admissible unless it is the best evidence that nature will allow”.
 The best evidence rule originated because during the 16th-century copying of documents was
carried out by the court clerks manually, keeping room for significant error in the item copied. In
India, the best evidence rule is embodied in Sections 91 to 92 of the Indian Evidence Act, 1872
that aims towards deciding the genuineness of the documents presented in the court. This article
provides a deep understanding of the concept of best evidence rule in light of the Indian Evidence
Act, 1872, and precedent judgments delivered by the Indian and international courts.
 This undergirding principle of evidentiary law is called the Best Evidence Rule, also referred to as
the original writing rule. The foundation of the Best Evidence Rule is that the original writing,
recording or photograph is the ‘best’ way to prove the actual content of the evidence. This is
because requiring best evidence ensures that litigants provide evidence that will best facilitate a
court’s task of accurately resolving disputed issues of fact. Other evidence of the writing,
recording, or photograph will be admissible ONLY if the original document is not available.
 A photocopy is generally considered the same as the original unless there is a genuine concern
that the photocopy is not genuine. The original documents rule serves to exclude documents that
paraphrase or re-state the original.
 This presentation will address what the Best Evidence Rule applies to and how a party complies
with it. Additionally, we will discuss exceptions to the rule, as well as certain non-applicability of
the rule to specific evidentiary situations. Finally, we will look at a case study of electronically
stored information and its interconnection with the Best Evidence Rule.
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.
There are two exceptions to these provisions:
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;
INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 10

2. Will admitted to probate in India may be proved by the probate.
Section 92 of the 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.
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 (1): The facts which invalidates the document
 Proviso (2): Separate oral arguments
 Proviso (3): Separate oral arguments as a condition precedent
 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
 Proviso (6): Extrinsic evidence of surrounding circumstances
When does the Best Evidence Rule apply?
 The Best Evidence Rule only applies when the party offering evidence seeks to prove the content
of the writing, recording or photographic evidence. The Best Evidence Rule does NOT apply when
a party is simply trying to prove an event or fact that is memorialized in a writing, recording or
piece of photographic evidence.
 For example, a witness may testify that she provided payment to a party without entering a receipt
for the payment into evidence. In this scenario, the witness is not testifying to what the receipt
says, but is testifying to making payment. The witness has an alternate, independent basis to
prove payment which is through testimony that she made the payment. The fact that the payment
can also be proven by entering the receipt into evidence does not mean that the Best Evidence
Rule requires that the receipt be entered.
 However, when a party is attempting to prove payment does not recall the experience of making
the payment, but has a receipt and wants to testify as to what the receipt shows, the Best Evidence
Rule will apply since it’s the content of the receipt that is being offered. The “best evidence” of
what the receipt shows is the receipt itself and the original receipt (or a photocopy) should be
entered into evidence.

 The distinction shown in these examples is tricky to identify. Other common examples of matters
often proven through evidence other than the original writing, recording or photograph include a
person’s birth, a person’s age, a marital status or a person’s death. Even though each of these
facts can be shown through written evidence, such as a birth certificate, marriage license or death
certificate, they are also events or facts that can easily be established by testimony.
 Over time, the rule evolved to reflect the practical limitations placed on obtaining and producing
an original piece of evidence for a hearing to trial. Today, most information is stored electronically
so the original of an electronically stored piece of evidence includes any printout of that
information. If a litigant wishes to submit a series of emails in court, he could print out the email
chain and use the printout as an original for purposes of satisfying the rule.
 In addition to originals and printouts of electronically stored information, duplicates of written,

recorded or photographic evidence are admissible in court. Parties frequently submit photocopies
or scanned copies of documents during litigation without running into issues with the rule. This is
allowed UNLESS a genuine question is raised about the authenticity of the original, or the
circumstances make it unfair to admit the duplicates and the duplicate is challenged by an
opposing party.
 For example, a plaintiff may submit a copy of a lease agreement in a landlord-tenant dispute. But
if the opposing party claims that the duplicate version of the agreement that the plaintiff has
provided is fraudulent (and this claim is judged to have some basis or merit), the Best Evidence
Rule requires that the plaintiff produce the original lease agreement.
Exceptions to the Best Evidence Rule
Exceptions to the Best Evidence Rule exist. The original writing, recording or photographic evidence
is not required when:
1. All the originals are lost or destroyed and not by the party offering the evidence acting in bad faith;
2. The original cannot be obtained by any available judicial process;
3. The party who the original document would be offered against had control of the original, was
put on notice that the original would be a subject of proof at the trial or hearing, and fails to
produce it; or
4. The writing, recording or photograph is not closely related to a controlling issue in the case.
Once a party shows that one of these four exceptions is applicable, the content of the writing,
recording or photographic evidence can be shown through secondary evidence.

HEARSAY EVIDENCE
 Comprising two words, ‘hear’ and ‘say’, the term hearsay defines a testimony based not on direct
communications but what a witness may have heard others say over an out-of-court conversation.
It is a piece of second-hand information. As per the definition provided under Merriam-Webster
– Hearsay is: “Evidence-based not on a witness’s personal knowledge but on another’s statement
not made under oath.” In simple words, evidence that is given by a person who was heard from
another person is hearsay evidence.
 Hearsay evidence refers to a testimony that is provided by a witness and is not based on any
personal communication. It could be something that the witness overheard, or was told about
from a third party, making it second-hand information. It is a very weak form of evidence since it
is neither based on the experience of the witness nor their personal knowledge.
 Usually, hearsay evidence is not admissible before the courts, this is due to the fact that the person
who is providing such evidence bears no personal responsibility towards the factual accuracy of
the statement, and there is plenty of scope for the truth to get diluted in such a statement.
The court, in the case of Rabindra Nath Thakur v. UOI referred to the judgment in Subramaniam
v. Public Prosecutor and stated that “Evidence of a statement made to a witness by a person who
is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when
the object of the evidence is to establish the truth of what is contained in the statement. It is not
hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the
statement, but the fact that it was made.”
 The word hearsay itself gives a clue that something which is not directly heard. Hearsay evidence
means any information which a person gathers or collects from a person who has first-hand
knowledge of that fact or information. Therefore, we can conclude that it is second-hand
information. The general rule is that hearsay evidence is not admissible in a court of law. Section
60 of the Evidence Act states that oral evidence must be direct. The person must directly hear,
see, or sense the fact
 Reasons for Exclusion of Hearsay Evidence are as follows:

1. Hearsay Evidence cannot be tested by Cross-Examination.
2. It supposes some better evidence and encourages substitution of weaker for stronger
evidence.
3. Hearsay Evidence is intrinsically weak.
4. The evidence is not given on oath or under personal responsibility by the original declarant.
5. It has a Tendency to protect legal investigation.
6. As truth depreciates in the process of repetition, it is not reliable.
7. Its reception will increase opportunities for fabrication.

EXCEPTIONS TO THE RULE OF HEARSAY EVIDENCE
While direct evidence is always considered to be more reliable than hearsay evidence, there are some
exceptional circumstances in which the courts could allow hearsay evidence under the Indian
Evidence Act. The main circumstances in which hearsay evidence is admissible include Res Gestae,
Admissions and confessions, dying declarations, and evidence is given in prior hearings.
 Res Gestae: The principle of Res Gestae is covered under Section 6 of the Indian Evidence Act. It
states that “Facts which, though not in issue, are so connected with a fact in issue as to form part
of the same transaction, are relevant, whether they occurred at the same time and place or at
different times and places.” Thus, in order for a fact to be shown as a part of res gestae must be
linked to the facts in the issue but should not be the facts in the issue themselves.
 Dying Declaration: A dying declaration is defined under Section 32(1) of the Indian Evidence Act
as a statement made by a person as to the circumstances or the cause of their death, which
becomes relevant when the cause of death of the person is in question in the case. While a dying
declaration should normally be recorded by a magistrate, it was held by the Delhi High Court that
if the declaration could be corroborated and was clear then even if it were to be recorded by a
police officer it could still be placed before the court.
 Admissions and confessions: Admissions are covered between Sections 17 and 23 of the Indian
Evidence Act. Admission refers to when a person voluntarily acknowledges the existence of a fact
or a fact in issue, this statement could be made in either oral or documentary form. Confessions
on the other hand are covered between sections 24 and 30 of the Indian Evidence Act and refer
to a situation when a person admits to their guilt before a court of law. It is the direct admission
of the facts of a case and could be made in written form or orally. In the judgment of the Supreme
Court in the case State Of Maharashtra vs Kamal Ahmed Mohd. Vakil Ansari, it was held by the
court that “Admissions and confessions are exceptions to the “hearsay” rule. The Evidence Act
places them in the province of relevance, presumably on the ground, that they being declarations
against the interest of the person making them, they are in all probability true. The probative
value of an admission or a confession does not depend upon its communication to another.”
 Evidence Given in Former Proceedings: If the person to be called as a witness dies or due to some
other reason, is not able to appear before the court, then the statements given by such a person
in former or previous proceedings may be used as a piece of evidence for proving the truth in
subsequent proceedings. Even the entries in books of accounts and public registers like official
books are relevant statements that can be adduced before the court in matters of inquiry. Though
the person may not be alive, the statements he made previously in books or official registers are
admissible in court.
 Entries in public registers or record
 Statements of persons dead (dying declarations)

DOCUMENTARY EVIDENCE
 Documentary evidence refers to that evidence which is in Tangible, physical form. It is different
from other kinds of evidence in many ways. Other kinds of evidence include oral evidence,
circumstantial evidence, hearsay evidence, etc. Generally, the credibility of the documentary
evidence is comparatively higher than other types of evidence.
 According to the Indian Evidence Act, concerning documentary evidence, the act requires that
generally the original should be produced because it is considered that copy of the document may
contain omission or mistakes of a deliberate or accidental nature. Documentary evidence is
defined in the act as all documents produced for the inspection of the court. The purpose of
producing documents is to rely upon the truth of the statement contained therein.
 The word document has been defined under section 3 of the Indian Evidence Act. Any document
which is given for the assessment of the court also it is pertinent to note that documentary
evidence is superior to oral pieces of evidence, especially in the area of trustworthiness. This
principle comes from the doctrine of vox Audita Perit, literra Scripta Manet which means spoken
words vanish whereas only the written words remain. This means when there is evidence in front
of the court, one is the oral evidence, and the other is the documentary evidence supremacy will
be given to the documentary Evidence.
 Documentary evidence holds precedence as compared to oral evidence, in terms of both

credibility and permanence. Documentary evidence is also called ‘dead proof.’ Due to the
improvement in technology and the coming up of legislation such as the IT Act, 2000, electronic
evidence has also been included within the purview of documentary evidence.
 Proof of content of documents (Section 61)

 Section 61 of the act provides that the contents of documents may be proved either by
primary or secondary evidence.
 Section 3 defines documentary evidence -“Documentary evidence means all documents

produced for the inspection of the court”. Documents are of two kinds: Public and private.
Section 74 gives a list of public documents. Rest all other documents are regarded as private
documents. The production of documents in courts is regulated by the Civil Procedure Code
and the Criminal Procedure Code.
 The contents of a document must be proved either by the production of the document which
is called primary evidence or by copies or oral accounts of the contents, which is called
secondary. It was held by the Supreme Court that where there is documentary evidence, the
oral evidence must not be given much weight.

 When a document is not required to be registered, it is admissible, even though unregistered.
An ex-parte affidavit without having to allow the other party to test the veracity of its
contents by cross-examination, cannot be a proof of its contents.
DIFFERENCE BETWEEN ORAL AND DOCUMENTARY EVIDENCE
Basis of Charge Oral Evidence Documentary Evidence

Meaning Oral evidence is the evidence Documentary evidence, on the
given by witnesses who are other hand, is the evidence which
called in the court in regards to is submitted in the court in written
the trial orally. form including documents, papers
etc.
Legally defined Oral evidence is mentioned Documentary evidence is dealt
under section 59 and 60 of the from section 61 to 66 of the Indian
Indian Evidence Act. Evidence Act.
Types Oral evidence should be given Documentary evidence has direct
direct form and it becomes documents and secondary
doubtful if the statement documents.
contradicts with the previous
statement.
Forms of submission Oral evidence can be given Documentary evidence must be
through speaking, signs or given in writing.
gestures
Statement It is the statement of a witness in It is a statement submitted
oral form. through the documents.

PRIMARY EVIDENCE AND SECONDARY EVIDENCE
A. Primary Evidence
 Primary evidence is considered the best quality of evidence and is referred to as the
documents produced before the court of law for inspection. Section 62 of the Indian Evidence
Act, 1872, explains primary evidence by stating that when a document is in various parts, each
part of the document forms a part of the primary evidence. But if the documents are merely
copies of a common original work, then they cannot be considered as primary evidence of the
original work. For instance, a movie script is written, and copies of it are handed over to all the
members of the cast, but the copies of the original movie script are not the primary evidence;
only the one whose copies were made is the primary evidence.
 If the document is in parts, then each part forms the primary evidence. The copies of a
common original do not form the part of primary evidence, where they are all made by one
uniform process. It is majorly produced before secondary evidence. In fact, secondary
evidence is presented in the absence of primary evidence. It is the best evidence that
absolutely establishes the proof of the fact alleged.
 Primary evidence, all the more ordinarily known as best evidence, is the best accessible
validation of the presence of an object since it is the genuine thing. It contrasts from secondary
evidence, which is a duplicate of, or substitute for, the original. If primary evidence is
accessible to a party, that individual should offer it as evidence. When, in any case, primary
evidence is inaccessible, for instance, through misfortune or obliteration through no issue of
the party, the individual in question may introduce a dependable substitute for it, when its
inaccessibility is sufficiently established.
 It relies on the notion of Best Evidence. As per the notion, the document must be produced in
front of the court in its original form, because then only the document is unmediated and
highly reliable. It is considered the most reliable copy because it is free from any tampering,
addition, or omission.
 Primary Evidence includes:
Original Document which is produced in

the court for inspection. For Example Contract
between two parties A and B. The actual
document containing the terms and conditions
of the contract bearing signatures of both the
parties will be primary evidence.
Document executed (signed) in several

parts, each such part. For example: In property agreements, each page of the document is
signed, then each such page will be considered as primary evidence.

Document executed in duplicates, each duplicate as against those who execute (sign) it. In
cases when the contract or deed is printed in multiple copies so that all the parties can get a
separate copy. It can be used as primary evidence against the party signing the document.
Number of documents are prepared by the same mechanical process like painting, printing
photography, etc, each is considered as the primary evidence of the contents of the rest. For
example, Copies of partnership deed prepared to provide each partner containing the same
content.
B. Secondary Evidence
 Secondary evidence, as the name suggests, is the evidence that is used in the absence of any
primary evidence and is defined under Section 63 of the Indian Evidence Act, 1872.
 According to Section 63, secondary evidence is considered to be an inferior type of evidence.
It implies, that even after producing secondary evidence one needs to produce primary
evidence in order to fill in the gaps. Such evidence can be presented in the absence of the
primary evidence, however, the notice of the same is to be given. However, if the secondary
evidence is accepted without any objection within a reasonable time then the parties do not
have the right to argue that the point was proved with the help of secondary evidence and not
primary evidence.
 Secondary Evidence is also proof of facts like primary evidence but is comparatively less
important in nature.
 These are provided in certain cases when the primary evidence is not present or cannot be
produced before the Court in certain circumstances. This means that Secondary Evidence is
the evidence presented as an alternative to the primary evidence, as stated in Section 65 of
the Indian Evidences Act, 1872.
 Secondary Evidence includes:
Certified copies of the original
document. Section 76 of the Indian
Evidences Act, 1872 states that if the
public document is under the custody of a
government official, then such
document should be provided on
demand after the payment of the
stipulated fees, to the person concerned.
Once the copy is prepared from the
original, the officer must specify at the
bottom of the copy that – It is the true copy and add date in it.

Copies made out of the original document, using a mechanical process. Document in whose
preparation a uniform mechanical process is used. Here, the term mechanical process means
printing, photocopy, or lithography confirming the correctness of the copy and copies
examined in contrast with such copies. Further, under this clause, only those copies of
secondary evidence are permissible which are certified if it is found certain that the original is
possessed by another person.
Copies created from or compared with the original documents. When a copy of the original
document is created using the exact words from the original.
Duplicates of the document, against the parties not executing (signing) it. There are a
number of situations in which contracts and deeds are printed in counterparts or say
duplicates so that each party can have a separate copy of it. So, in such a case, the party not
signing the document can use it against the one signing it, as secondary evidence.
Oral description of the document’s contents provided by a person who has seen it himself or
taken a read of such document.
Circumstances where Secondary Evidence relating to documents, is admissible:

Section 65 of the Act enumerates the situations/circumstances wherein secondary evidence is
admissible in place of primary evidence. These are as follows:
1. In case where the originals are in possession of:
 a person against whom the said document is sought to proved; or
 a person who is not reachable; or
 a person who is legally obligated to produce such document but fails to produce the same
even though a notice under Section 66 of Evidence Act has been served upon him;
2. In case where the person against whom the said document was to be proved, admits in writing
the existence, condition or contents of the original;
3. In the case where the original document has either been destroyed or lost, or when the party
that offers to produce evidence fails to do so within a reasonable time, due to reasons others
than their own neglect or default;
4. In cases where the original/primary evidence is immovable, for instance, it is a caricature or
inscription (as defined under Section 3 of Indian Evidence Act) then in such circumstances
secondary evidence can be admitted;
5. In case where the original document is a public document and falls within the definition of
Section 74, then certified copy of such documents can be tendered;
6. In cases where the original document is of such nature that the Evidence Act itself permits
certified copy of the same;
7. In cases where numerous documents are to be produced which are not convenient for the
Court to examine; or the fact to be proved is the general result of the entire set of documents.

SPECIAL PROVISION AS REGARDS ELECTRONIC RECORDS
 Electronic record means "data, record or data generated, image or sound stored, received or sent
in an electronic form or micro film or computer generated micro fiche." Electronic records
produced for the inspection of the Court are called "documentary evidence."
 Under Section 65B(1), any information contained in an electronic record, which has been stored,
recorded or copied as a computer output, shall also be deemed as a ‘document’ – and shall be
admissible as evidence without further proof or production of the originals, if the conditions
mentioned are satisfied. Section 65B (2) lays down the criteria that must be satisfied for the
information to be categorized as a ‘computer output.’
 Admissibility of electronic records mentioned as per Section 65B of Indian Evidence Act specifies
that the printed any information of electronic records on a paper, or created a copy of that record
on any optical or magnetic media shall also be deemed to be secondary evidence document if it
satisfies the conditions mentioned under section 65B and original source of that information i.e.
electronic device shall also be admissible without any further proof in any proceeding of the court
of law.
 The conditions shall be as follows:

 Computer output containing the information was produced by a computer that was regularly
used to store or process such information by a person having lawful control over the use of a
computer.
 Such information was regularly fed in such a computer during the ordinary course of activities.
 The computer should be operating properly during the period for which the information is
sought. Even if the computer was not operating during such a period then the defect was not
as such to affect the electronic record or the accuracy of its contents.
 The information contained in the electronic record reproduced or is derived from such
information fed into the computer in the ordinary course of the said activity.
 Any kind of storage or copying or making counterpart of the information required for the
production in the court of law as electronic evidence should be free from any kind of distortion
or manual edit or manipulation, it must be the authentic and trustworthy information, which
may get admitted as evidence in the court of law.
 A certificate is required by virtue of section 65-B if the statement is to be given, then following is
be duly regarded:
 Identifying the electronic record containing the statement and describing how it was
produced.
 Giving such particular of any device involved in the production of that electronic record as may
be appropriate for showing that the electronic record was produced by a computer.
 Dealing with any of the matters to which the condition as provided above.

PRESUMPTION AS TO DOCUMENT
Section 79 to Section 90 of the Indian Evidence Act provides various presumptions as to the
documents. There are certain presumptions regarding the documentary evidence in this act.
According to the Indian Evidence Act, the presumption is of two types. There are certain cases in
which the Court “shall presume” and in certain cases, it “may presume”. The terms are defined in
Section 4 of the IEA. According to this Section,
 “May presume” means whenever it is mentioned by this Act that the Court may presume a fact,
it may either consider such fact as proved, unless and until it is disproved or may call for proof of
it.
 “Shall presume” means whenever it is mentioned in this Act that the Court shall presume a fact,
it shall consider such fact as proved, unless and until it is disproved.
Section 79: Presumption as to the Genuineness of Certified Copies-

The certified copies are the copies of public documents that are provided by the authorized officer
when it is necessary for inspection. Section 79 of the Indian Evidence Act provides the presumption
as to the genuineness of these certified copies. According to this Section, the court presumes the
certified copy to be genuine when it comes with a valid certificate. The court also presumes that the
officer who has signed the documents holds the official character of the designation mentioned in the
certificate. The certified copy of the public document must contain a certificate which is provided by
the authorized officer that has to mention that it is the true copy of the document and the officer has
to sign the certificate with their name and they also have to mention the date and designation. The
certificate should also be sealed whenever it is necessary by the authorized officer.
Section 80: Presumption as to Documents produced as Records of Evidence-

Section 80 of the Indian Evidence Act provides the various presumptions regarding the documents
which are provided as evidence. The Court presumes that the documents which are produced for
inspection are genuine. The court also presumes that any statements as to the circumstances under
which it was taken, considered to be made by the person signing it, are true and that such evidence,
statement or confession was duly taken by following all the procedures. The documents provided for
inspection can be a record or memorandum of the evidence that is provided by a witness during the
judicial proceeding before the officer authorized by law to take evidence or it can be a statement or
confession that is provided by any prisoner or person who is accused, which taken in accordance with
the law and the confession must be signed by the magistrate or any other officer authorized by law.
Section 81: Presumption as to Gazettes, Newspapers, Private Acts of the Parliament and other
Documents-
Section 81 of the Indian Evidence Act deals with the presumption regarding Gazettes, newspapers,
private Acts of the Parliament. The court presumes the following documents to be genuine, according
to this Section:

 The document professed to be the London Gazette, or any Official Gazette, or the Government
Gazette of any colony;
 The documents which are a dependency of possession of the British Crown;
 Newspaper or journal;
 Copy of a private Act of Parliament of the United Kingdom which is printed by the Queen’s
Printer.
The documents must be kept in the substantial form mentioned in the law and also it must be
produced from proper custody. The Court also presumes the Official gazettes kept in the electronic
form is genuine if it is kept in the substantial form mentioned in the law.
Section 83: Presumption as to Maps and Plans made by Government authorities-

The maps and plans are also a recognized type of documentary evidence. Section 83 of the Indian
Evidence Act provides the various presumptions regarding maps and plans made by the authorities of
the government. According to this Section, the maps and plans are presumed to be genuine and
accurate if it is made by the authority of the Central or State government.
Section 84: Presumption as to a Collection of Laws and Reports-

Section 84 of the Indian Evidence Act provides various presumptions regarding the laws and reports.
According to this Section, the court presumes every book which contains laws and reports of the
decisions of the Courts of the country to be genuine if the book is printed or published by the authority
of the government.
Section 85: Presumption as to the Power-of-Attorney-

Section 85 of the Evidence Act provides various presumptions regarding the power of attorney.
According to this Section, the court shall presume that every document that is considered to be the
power of attorney, and that is executed before the authorized officer or Notary Public or any court or
before any Magistrate is executed and authenticated.
Section 87: Presumption as to Books, Maps and Charts-

Section 87 of the Indian Evidence Act provides various presumptions regarding the books, maps and
charts. The Court presumes that any book which contains any information which contains matters of
public or general interest, or any published chart that are in relation with the case or any statements
that contain relevant facts which are produced for inspection is written and published by the person
mentioned in the book. The court also presumes that the time and place of publication which is
mentioned in the book or chart to be true.
Section 88: Presumption as to Telegraphic Messages-

Section 88 provides various presumptions regarding the telegraphic messages. According to the
Section, the court presumes “that telegraphic messages to be that a message, which is forwarded

from a telegraph office to the person to whom such message which claims to be addressed, is in
relation with a message that is delivered for transmission at the office from which the message
purports to be sent”. The Section also mentions that the Court does not make any presumption
regarding the person by whom such a message was delivered for transmission. The Section is not of
any use now as the telegraph services have been stopped by the Indian Government.
Section 88A: Presumption as to Electronic Messages-

This is a very important Section as a lot of information are transferred in the electronic form in the
modern days. Section 88A of the Indian Evidence Act provides various presumptions regarding
electronic messages. According to this Section, the Court presumes that an electronic message, which
is forwarded by the originator by means of an electronic mail server to the addressee to whom the
message claims to be addressed corresponds with the message as fed into his computer for
transmission.
Section 89: Presumption as to due Execution of Documents not produced-

Section 89 of the Indian Evidence Act provides various presumptions regarding the due execution of
documents not produced. The Court presumes that every document that is called for inspection and
the documents are not produced even after the notice period, it is presumed that the documents are
attested, stamped and executed in the manner which is prescribed by law.
Section 90: Presumption as to Documents Thirty year’s old-

Section 90 of the Indian Evidence Act deals with the presumption as to documents that are thirty
years old. The Court presumes that any document which is produced for investigation is from proper
custody and the signature corresponds to the signature of the person whose custody the document
was in. The Court also presumes that any handwriting in the document is the handwriting of the
person who has the custody of the document. It is also presumed by the Court that in case if the
document attested or executed, that it was duly executed and attested by the persons by whom it
professes to be executed and attested. The term proper custody means that the document is with the
care of the person and in a place where it would naturally be.
Section 90A: Presumption as to the Electronic Record of Five year’s old-

Section 90A of the Indian Evidence Act provides the various presumptions regarding electronic
records of five years old. According to this Section, the Court presumes that when any electronic
record that is above five years old and it is procured from the proper custody for investigation. It is
presumed that the digital signature corresponds to the particular person whose custody the record is
or the signature belongs to the person who has authorized it. The term proper custody means that
the electronic record is with the care of the person and in a place where it would naturally be. It is
also mentioned in the Section that no custody is improper if it is proved that the custody is of
legitimate origin in the particular case to render such origin possible.

PRESUMPTION AS REGARDS ELECTRONIC AGREEMENT, DIGITIAL
SIGNATURE CERTIFICATE AND ELECTRONIC MESSAGES
Section 85A: Presumption as to electronic agreements-

This section specifically talks about the presumptions of the courts in India with regards to electronic
agreements and says that the courts shall presume that every available electronic recording which
has an electronic signature affixed to it shall be considered to have a valid evidentiary value under the
Indian Evidence Act and in the eyes of the courts in India. Though there are a few restrictions on such
presumptions which shall be discussed in the following sections. The Court shall presume that every
electronic record purporting to be an agreement containing the electronic signature of the parties
was so concluded by affixing the electronic signature of the parties.
Section 85B: Presumption as to electronic records and electronic signatures-

This section tells us that the court shall presume that the e-contract or documents which are being
presented in front of the court have not been tampered with i.e. they are presented in their original
form without anyone making any alterations in it, in case it has been proved that such records have
been tampered with. The secure status of such information shall be required to be maintained until a
specific time. The section also tells us that once a digital signature is affixed to an agreement available
online, such shall be presumed by the courts to be an acceptance of such agreements.
1. In any proceedings involving a secure electronic record, the Court shall presume unless contrary
is proved, that the secure electronic record has not been altered since the specific point of time
to which the secure status relates.
2. In any proceedings, involving secure digital signature, the Court shall presume unless the
contrary is proved that --
a. the secure electronic signature is affixed by subscriber with the intention of signing or
approving the electronic record;
b. except in the case of a secure electronic record or a secure electronic signature, nothing in
this section shall cerate any presumption, relating to authenticity and integrity of the
electronic record or any electronic signature.
Section 85C: Presumption as to Electronic Signature Certificates-

This section tells us that if a digital signature is affixed to a particular document then the court shall
presume that such document is true and correct. The Court shall presume, unless contrary is proved,
that the information listed in an Electronic Signature Certificate is correct, except for information
specified as subscriber information which has not been verified, if the certificate was accepted by the
subscriber.
Section 88A: Presumption as to electronic messages-

The very purpose of this section is to define the terms ‘addressee’ and ‘originator concerning an e-
contract. It mainly talks about the power of the court with regards to presumption of the addressee

of an electronic communication. The section says that the courts shall presume the ‘addressee’ to be
a person to such electronic communication has been directed by the ‘originator’. Though, as per this
section, the court does not have any power with regards to the presumption of who the ‘originator’
of the thread of electronic communication is. The Court may presume that an electronic message,
forwarded by the originator through an electronic mail server to the addressee to whom the message
purports to be addressed corresponds with the message as fed into his computer for transmission;
but the Court shall not make any presumption as to the person by whom such message was sent.

EXAMINATION OF WITNESS
Examination of a witness is asking the witness questions regarding relevant facts in the case and
recording the statements of witnesses as evidence. There are three parts to the examination of a
witness and Section 138 of the Evidence Act states that the witness must be examined in the following
order:
 First, the party that called the witness examines him, this process is called examination-in-chief as
mentioned under Section 137 of the Indian Evidence Act.
 After the completion of the examination-in-chief, if the opposite party wants to, they can take
over the witness and cross-question him about his previous answers. The opposite party may ask
him any question regarding all the relevant facts and not merely the facts discussed during the
examination-in-chief. This process has been described in Section 137 of the act as cross-
examination.
 If the party that called the witness sees the need to examine the witness again after cross-
examination, they may examine the witness one more time. This has been laid down as re-
examination in Section 137 of the Indian Evidence Act, 1872.
The examination of a witness must be done specifically in the sequence mentioned under Section 138.
Examination of witness plays a key role in the presentation of the evidence in a court of law regardless
of the character of the case i.e. civil or criminal. Admissibility of evidence is also a crucial aspect which
is decided by the judicial officers only. The testimony of a witness is recorded in the form of question
and answer. Witness is not permitted to deliver a speech to the court but is meant only to answer the
question. The testimony of the witness is only confined to the facts relevant to the issue. Such process
of recording the evidence is termed the examination of a witness.
RIGHTS OF THE WITNESSES There should be certain standards of safety that need to be given to the
witness by the state who comes forward to testify and it is the responsibility of the state to provide
adequate protection to the witness. The various Law Commission Reports and the Witness Protection
Scheme have identified certain rights that a witness possesses:
 Right to information of the status of the investigation and prosecution of the crime;
 Right to protection from harm and intimidation;
 Right to secure waiting place while at court proceedings;
 Right to submit evidence without revealing identity;
Section 135: Order of production and examination of witnesses-

The order in which witnesses are produced and examined shall be regulated by the law and practice
for the time being relating to civil and criminal procedure respectively, and, in the absence of any such
law, by the discretion of the Court.

RULES RELATING TO EXAMINATION OF CHIEF
The Examination of a witness by a party who calls him shall be called his examination in Chief.
Examination in Chief is the first examination after the witness has been sworn or affirmed. It is a
province of a party by whom the witness is called to examine him in chief for the purpose of eliciting
from the witness all the material facts within his knowledge which tend to prove the party’s case.
Examination in Chief is also known as Direct Examination.
When a witness appears in court, he is administered an oath or affirmation. His name and address are
recorded. The party calling the witness then has the authority to question him in order to induce all
material facts within his knowledge that tend to prove his (the party calling the witness) case. This is
known as examination-in-chief.
Section 137: Examination-in-chief-

The examination of witness by the party who calls him shall be called his examination-in-chief.
 Cross-examination. -- The examination of a witness by the adverse party shall be called his cross-
examination.
 Re-examination. -- The examination of a witness, subsequent to the cross-examination by the
party who called him, shall be called his re-examination.
Purpose of Examination-in-chief:
There are multiple objectives to examination in chief. The more significant are as follows:
I. Major Objectives
a) the evidence must be admissible;
b) the witness needs to present as persuasive and credible;
c) each and every element of the offence must be proven beyond a reasonable doubt through
the witnesses oral evidence and exhibits.
II. Minor Objectives

In addition, you are also trying to achieve the following slightly less essential, but still important,
objectives:
1. present a logical, complete and coherent theory of the offence;
2. present each witness in the best possible light;
3. use the evidence of one witness to support another so that a seamless cloth may be woven
of the proven fact;
4. fill in gaps in the evidence and attempt to explain any inconsistencies;
5. shut down potential cross-examination thereby limiting the exposure of witnesses;
6. allow the defence as little room to move as possible by minimizing the possibilities of a
defence being supported through cross-examination of witnesses.

RULES RELATING TO CROSS EXAMINATION
 After finishing the examination in chief, cross-examination will start. In the cross-examination
defendant lawyer asks the cross-question which was asked by the prosecutor. Defendant lawyer
may ask the questions which are related to the facts and the defendant can also ask the leading
question in the cross-examination which were not allowed in the examination in chief.
 Cross examination is very important in the examination of witnesses, due to the cross-examination
many facts get clear because in the cross-examination defendant analyse all the statements of the
witnesses then asks cross question related to the statement which was given by the witnesses in
the examination in chief. The Defendant can also ask the question which was not related to the
examination in chief but related to the facts of evidence.
 Cross-examination can make or destroy a case. It is the keystone to a successful trial. Because of
the dramatic possibilities inherent in cross-examination, it has become the favourite courtroom
device to be exploited by the cinema and television.
 Section 139: Cross-examination of person called to produce a document - A person summoned

to produce a document does not become a witness by the mere fact that he produces it and
cannot be cross-examined unless and until he is called as a witness.
 The examination of witness by the adverse party shall be called his Cross-Examination. In law,
cross-examination is the interrogation of a witness called by one’s opponent. The purpose of
cross-examination is not simply to attack an adversary, but to strengthen your own case. Every
party has a right to cross-examine a witness produced by his antagonist, in order to test whether
the witness has the knowledge of the things he testifies and if, is found that the witness had the
means and ability to ascertain the facts about which he testifies, then his memory, his motives,
everything may be scrutinized by the cross-examination.
 In cross-examination a great latitude is allowed in the mode of putting questions, and the counsel
may put leading questions. The object of cross-examination is to check the credibility of the
witness. It is one of the principle tests which the law has devised for the ascertainment of the
truth, and it is certainly one of the most efficacious.
 By this means the situation of the witness, with respect to the parties and the subject of litigation,
his interest, his motives, his inclinations and his prejudice, his means of obtaining a correct and
certain knowledge of the facts to which he testifies the manner in which he has used those means,
his powers of discerning the facts in the first instance, and of his capacity in retaining and
describing them, are fully investigated and ascertained.

Object
The object of the cross examination is to test the truth of statement made by witness, to see how far
is memory is reliable or what powers of observation possesses whether he is partial or impartial, etc.
In short it is an attempt to break down a witness or to show that his statement cannot be relied upon.
The object and scope of cross-examination is twofold to weaken qualify or destroy the case of the
opponent; and to establish the party's own case by means of his opponents witnesses. With this view
the witness may be asked not only as facts in issue or directly relevant thereto, but all question
1. tending to test his means of knowledge,
2. tending to expose the error, of omission, contradictions and improbabilities in the testimony or
3. tending to impeach his credit.
Cross-main examination’s purpose was to examine the accuracy, authenticity, and value of the
evidence presented in chief, to shift the facts already stated by the witness, to identify and expose
differences, and to produce suppressed evidence to substantiate the cross-examining party’s case.
Principles of Cross-Examination
 Scriptural basis for cross-examination:- The method of eliciting truth by the method of cross-
examination is as old as human nature. Cross-examination is commonly esteemed the severest
test of an advocate’s skill and perhaps it demands beyond any other of his duties the exercise of
ingenuity. There is a great difficulty in conducting cross-examination with creditable skill. It is
undoubtedly a great intellectual effort: it is the direct conflict of mind with mind; it demands not
merely much knowledge of the human mind, its faculties and their modus operandi to be learned
only by reading, reflection and observation but much experience of a man and his motives derived
from intercourse with various classes and many persons and above all by that practical experience
in the art of dealing with witnesses which is worth more than all other knowledge, which will
materially assist but without which no amount of study will suffice to accomplish an advocate.
 Rules for the conduct of cross-examination:- These principles are well understood by barristers
who have attained any degree of proficiency in the art, and can best be explained as follows: To
cross-examine is to test in a court of law the evidence of an opposing witness. This is done by
means of questions and in accordance with the following working rules:
o “Come to the point as soon as possible”
o “Do not argue with a witness”
o “Do not ask question unless there is a good reason for it”
o “Except in cases where your position is so bad that nothing can injure it, and something may
improve it, do not splash about and do not ask a question without being fairly certain that the
answer will be favourable to you”
o “If a witness is manifestly lying, leave him entirely alone. Keep calm”

RULES RELATING TO CORROBORATION
 Corroborating evidence (or corroboration) is evidence that tends to support a proposition that is
already supported by some initial evidence, therefore confirming the proposition. For example,
W, a witness, testifies that she saw X drive his automobile into a green car. Meanwhile, Y, another
witness, testifies that when he examined X’s car, later that day, he noticed green paint on its
fender. There can also be corroborating evidence related to a certain source, such as what makes
an author think a certain way due to the evidence that was supplied by witnesses.
 Sometimes merely asking the most relevant fact may not be enough to obtain all the necessary
facts from a witness. Some questions that do not seem very much connected to the relevant fact
can be asked if they help corroborate such fact.
 Previous statements given by the witness can also be used to corroborate the later testimony
regarding the same fact as prescribed under Section 157 of the Act.
 The prior statements do not need to be given to the Court, it can be any conversation regarding
the facts of the case.
 In the case of Rameshwar v. State of Rajasthan, a young girl had been raped and she had told her
mother about it. Later that statement of the girl given to her mother was corroborated with her
other statements in order to establish the case.
 It is stated in Section 158 of the act that any statement which is relevant under Section 32 or 33
and has been proved, all matters have to be proved in order to confirm or negate it, or for
impeaching or crediting the person that made such statement, to the extent as if that person had
been called as a witness.
Section 156: Questions tending to corroborate evidence of relevant fact, admissible-

When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be
questioned as to any other circumstances which he observed at or near to the time or place at which
such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would
corroborate the testimony of the witness as to the relevant fat which he testifies.
Illustration-
A, an accomplice, gives an account of robbery in which he took part. He describes various incidents
unconnected with the robbery which occurred on his way to and from the place where it was
committed. Independent evidence of these facts may be given in order to corroborate his evidence
as to the robbery itself.
Section 157: Former statements of witness may be proved to corroborate later testimony as to same
fact-
In order to corroborate the testimony of a witness, any former statement made by such witness
relating to the same fact, at about the time when the fact took place, or before any authority legally
competent to investigate the fact, may be proved.

RULES RELATING TO REFRESHING MEMORY
Meaning of “Refreshing memory”:

“When a witness’s statement is offered as the basis of an evidential reference to the truth of his
statement, it is plain that at least three distinct elements are present, or put it another way, these
three processes, in the absence of any one of which we cannot conceive of testimony. First, the
witness must know something; to this element may be given the generic term ‘observation.’ Secondly,
the witness must have a recollection of these impressions, the result of this observation this must be
termed ‘recollection.’ Thirdly, he must communicate this recollection to the tribunal, that is, there
must be communication, or narration or relation.”— WIGMORE.
Section 159: Refreshing memory-

It says that while under examination, specifically concerning the question put to the witness, he may
refer to any of the written document which comes under either of the three categories:
1) A witness may refer to any document which is written by himself:

 at the time of the transaction concerning which is questioned to him. or
 to the writing which he made soon after afterword, that the court finds it to be likely that the
transaction was at the time when he wrote such document is fresh in his memory.
2) A witness may refer to any document which is written by any other person but must be read by
the witness within the time so that when he reads it, he recalls the same.
3) An expert witness may refresh his memory by giving reference to the professional treatises.
Provided: Wherever a witness refreshes his memory by referring to any written document, then he
must, with the prior permission of the court, also refer to a copy of such document, i.e. secondary
evidence. Further, provided that such copy of the document can be produced only when the court is
satisfied that there is sufficient and reasonable reason for the non-production of the original
document.
Section 160: Testimony to Facts Stated in Document Mentioned in Section 159-

It says that the witness’s memory is not refreshed, and although he has no specific recollections, he
guarantees that the document contains a true record of facts. Here the document itself is presented,
and it is evidence. Under section 160 of the Indian Evidence Act, it is not at all necessary that when a
witness, while looking at a written document, should have an independent or specific recollection of
the matters stated because this might happen that exact facts might have slipped from his memory.
Still, if he recognises the writing or signature and feels sure that the content of the document was
correctly recorded, he may testify to the facts that are referred to in the document.

RULES AS TO PRODUCTION OF DOCUMENT
Section 162: Production of documents-

A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court,
notwithstanding any objection which there may be to its production or to its admissibility. The validity
of any such objection shall be decided on by the Court.
The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other
evidence to enable it to determine on its admissibility.
Translation of documents. -- If for such a purpose it is necessary to cause any document to be

translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the
document is to be given in evidence and, if the interpreter disobeys such direction, he shall be held
to have committed an offence under section 166 of the Indian Penal Code (45 of 1860).
Section 163: Giving, as evidence, of document called for and produced on notice-
When a party calls for a document which he has given the other party notice to produce, and such
document is produced and inspected by the party calling for its production, he is bound to give it as
evidence if the party producing it requires him to do so.
Section 164: Using, as evidence, of document production of which was refused on notice-
When a party refuses to produce a document which he has had notice to produce, he cannot
afterwards use the document as evidence without the consent of the other party or the order of the
Court.
Illustration
A sues B on an agreement and gives B notice to produce it. At the trial A calls for the document and B
refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document
itself to contradict the secondary evidence given by A, or in order to show that the agreement is not
stamped. He cannot do so.

CONCLUSION
 Oral evidences are to be produced before the court in terms of either by Speaking or by doing
some gestures by depicting anything. In the above Research Paper, it has been highlighted that
how the oral evidences are presented before the court as an evidence in any case. Though
documents are given more preference over the oral evidences but if presented in a good manner,
these evidences could be the sole ground for coming to any conclusion of any of the case. Section
60 of the evidence act, defines the oral evidence as anything in oral form is called as the oral
evidence and this could include gestures, movements of hands, speak from Mouth and the
interviews which are face to face or in the recording format could also be used as an oral evidence.
 These types of evidence have really helped in solving many cases where documents could not
have done much their oral evidences have helped to come to the conclusion easily but here the
judge who is deciding the case has to be very careful while observing the person who is giving the
oral evidence before the court. The judge has to see whether that person is reasonably acting
which is that he should not hesitates and should not change his statement so frequently, Apart
from that these evidences are perfectly fine as an evidence.
 The importance of documentary evidence is more than oral evidence. The court mainly accepts
documentary evidence but also considers oral evidence. Thus, we can say that there are two types
of documents- oral and documentary evidence. In court, documentary evidence has more value.
The Court wants the best evidence and documentary evidence is the best evidence and it contains
two parts primary evidence and secondary evidence.
 Where Primary evidence is the best evidence recognized by the court. In the lack of primary
evidence, secondary evidence is given to the Court. On the other side, oral evidence is evidence
given by words sign and gestures and it is not permanent and it also can be changed. Therefore
Section 91 and 92 exclude oral evidence by documentary evidence. Proof in the form of a
document can be submitted in the place of giving orally.
 Oral evidence, with its increasing approach, can be appropriate for passing judgement if proved
beyond a reasonable doubt. It is seen to be weak evidence but its need has been growing in
modern times. Incidents and facts can be better understood through oral ways as the person who
has administered the incident itself can explain it in a more clear way rather than the documentary
form of evidence.
 On the other side, documentary evidence is of two types. Primary evidence is more reliable and
the best evidence considered by the court. In the absence of primary evidence, secondary
evidence is that which the witnesses are giving based on their own perception. Direct evidence is
the best type of oral evidence since it can be proved.

BIBLIOGRAPHY
WEBSITES:
 https://www.writinglaw.com/evidence-and-types-of-evidence/
 https://samarthagrawalbooks.com/2021/08/11/evidence-meaning-and-scope/
 https://blog.ipleaders.in/oral-evidence-indian-evidence-act1872/
 https://lawlex.org/lex-pedia/significance-of-oral-evidence-under-indian-evidence-act-
1872/21257
 https://indianlegalsolution.com/oral-evidence/
 https://www.legalserviceindia.com/legal/article-6241-the-presentation-of-oral-evidence-during-
trial-an-analysis-of-the-procedure-of-admissibility-before-indian-
courts.html#:~:text=Oral%20evidence%20is%20most%20reliable,inspection%20of%20the%20fur
ther%20case.
 https://www.mondaq.com/india/court-procedure/924124/best-evidence-rule-cardinal-
principle-of-indian-evidence-act
 https://lawshelf.com/shortvideoscontentview/best-evidence-original-documents-rule
 https://lawbhoomi.com/oral-evidence-under-the-indian-evidence-act/
 https://ylcube.com/c/blogs/exceptions-rule-hearsay-evidence-
india/#:~:text=Hearsay%20evidence%20refers%20to%20a,making%20it%20second%2Dhand%20
information
 https://www.srdlawnotes.com/2016/12/hearsay-evidence-is-no-evidence.html
 https://blog.ipleaders.in/all-you-need-to-know-about-section-3-of-the-indian-evidence-act-
1872/
 https://legalstudymaterial.com/hearsay-evidence-under-indian-evidence-
act/#Reasons_for_Exclusion_of_Hearsay_Evidence
 https://legalstudymaterial.com/oral-and-documentary-evidence/
 https://www.writinglaw.com/hearsay-evidence/
 https://indianlegalsolution.com/10551-2/
 https://blog.ipleaders.in/primary-and-secondary-evidence/#What_is_primary_evidence
https://www.legalserviceindia.com/legal/article-5124-exploring-the-concept-of-primary-and-
secondary-evidence.html
 https://keydifferences.com/difference-between-primary-evidence-and-secondary-
evidence.html
 https://blog.ipleaders.in/admissibility-evidentiary-value-electronic-records/
 https://indianlegalsolution.com/10551-2/
 https://www.taxmanagementindia.com/visitor/detail_article.asp?ArticleID=8803
 https://blog.ipleaders.in/presumption-as-to-electronic-agreements-under-the-indian-evidence-
act-1872/

Indian Evidence Act, 1872

Uploaded by

Copyright:

Available Formats

Indian Evidence Act, 1872

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Indian Evidence Act, 1872

Uploaded by

Copyright:

Available Formats

ASSIGNMENT ON EVIDENCE AND EXAMINATION OF WITNESS

ASSIGNMENT SUBMITTED IN FULFILLMENT OF THE

LALA LAJPATRAI COLLEGE OF LAW (LLC)

Sr. No TOPIC PAGE

6. PRIMARY EVIDENCE AND SECONDARY EVIDENCE 17 - 19

7. SPECIAL PROVISION AS REGARDS ELECTRONIC RECORDS 20

9. PRESUMPTION AS REGARDS ELECTRONIC AGREEMENT, DIGITIAL 24 - 25

11. RULES RELATING TO EXAMINATION OF CHIEF 27

12. RULES RELATING TO CROSS EXAMINATION 28 - 29

13. RULES RELATING TO CORROBORATION 30

14. RULES RELATING TO REFRESHING MEMORY 31

15. RULES AS TO PRODUCTION OF DOCUMENT 32

 Section 3 of the Indian Evidence Act defines evidence as:

A. Section 59: Proof of facts by Oral Evidence

There are two exceptions to these provisions:

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 10

There are six provisos to this Section, viz.:

When does the Best Evidence Rule apply?

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 11

 In addition to originals and printouts of electronically stored information, duplicates of written,

Exceptions to the Best Evidence Rule

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 12

 Reasons for Exclusion of Hearsay Evidence are as follows:

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 13

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 14

 Documentary evidence holds precedence as compared to oral evidence, in terms of both

 Proof of content of documents (Section 61)

 Section 3 defines documentary evidence -“Documentary evidence means all documents

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 15

DIFFERENCE BETWEEN ORAL AND DOCUMENTARY EVIDENCE

Basis of Charge Oral Evidence Documentary Evidence

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 16

Original Document which is produced in

Document executed (signed) in several

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 17

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 18

Circumstances where Secondary Evidence relating to documents, is admissible:

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 19

 The conditions shall be as follows:

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 20

Section 79: Presumption as to the Genuineness of Certified Copies-

Section 80: Presumption as to Documents produced as Records of Evidence-

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 21

Section 83: Presumption as to Maps and Plans made by Government authorities-

Section 84: Presumption as to a Collection of Laws and Reports-

Section 85: Presumption as to the Power-of-Attorney-

Section 87: Presumption as to Books, Maps and Charts-

Section 88: Presumption as to Telegraphic Messages-

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 22

Section 88A: Presumption as to Electronic Messages-

Section 89: Presumption as to due Execution of Documents not produced-

Section 90: Presumption as to Documents Thirty year’s old-

Section 90A: Presumption as to the Electronic Record of Five year’s old-

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 23

Section 85A: Presumption as to electronic agreements-

Section 85B: Presumption as to electronic records and electronic signatures-

Section 85C: Presumption as to Electronic Signature Certificates-

Section 88A: Presumption as to electronic messages-

INDIAN EVIDENCE ACT | KRUTI SHAH T.Y.LL.B | ROLL NO. 2223345 P a g e | 24