Oral and Documentary Evidence under Bharatiya Sakshya Adhiniyam

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) is the newly enacted evidence law in India, replacing the Indian Evidence Act, 1872. It retains the fundamental principles of evidence law while incorporating necessary modifications to modernize legal provisions. The categorization of evidence remains primarily in Oral Evidence and Documentary Evidence.

Introduction

In the famous book Great Expectations, Charles Dickens wrote,

"Take nothing on its looks; take everything on evidence. There's no better rule."

From these lines, the author tries to say that instead of judging things or people or facts based on how they appear, one should rely on what is under the surface of the same by having a deeper understanding of facts and proof. Implying looks can be deceptive. The author implies that looks can be deceptive and that evidence should be taken into consideration rather than initial impressions when judging something or someone.

When it comes to matters where dispensing justice is important, when someone’s life or reputation is at stake, it becomes more important to judge based on evidence. There, come the laws related to the admission and evaluation of the evidence. In India, these matters are now governed by the Bharatiya Sakshya Adhiniyam, 2023, which has replaced the Indian Evidence Act, 1872.

Provisions under Bharatiya Sakshya Adhiniyam, 2023

Section 2(e) of the Act defines "evidence" by categorising it into two broad categories, namely oral and documentary.

(i) Oral Evidence: Any statement made by a witness in court about the facts being investigated, whether spoken in person or given electronically, is considered oral evidence.

(ii) Documentary Evidence: Any document, including electronic or digital records, that is presented to the court for review is considered documentary evidence.

Oral Evidence

Chapter IV lays down the framework for the oral evidence. Section 54 states that all facts, except the contents of documents, can be proved through oral evidence. Oral evidence, at the court's discretion, is sufficient without documentary evidence to prove a fact or the title. [P. Ram Reddy Etc v. Land Acquisition Officer Hyderabad, 1995 SCC (2) 305]

Section 55 emphasises that oral evidence must always be direct. For instance:

i) A person testifying for the fact that they have seen.

ii) Similar to clause (i), it applies to the facts which are heard.

iii) Facts noticed by other senses or in any other manner.

As per the section, for an opinion to be admissible, the law requires it to be backed by the testimony of the person making such a statement, along with providing proof for that. Apart from this, statements made by the experts can be taken as valid admission, provided that they are published or the person who made such statement is no longer capable of testing admission.

Furthermore, if oral evidence requires the presence of a material object (other than a document) to support the claim, the court has the discretion to order its inspection.

Hearsay Evidence

Although oral evidence is admissible, hearsay evidence is an exception to that. However, it has not been mentioned in the Adhiniyam because of its nature, which is quite unclear. Indian law follows the basic rule that hearsay is inadmissible unless it falls under recognised exceptions. One of the rulings of the Supreme Court, Kalyan Kumar Gogoi v. Ashutosh Agnihotri and Another, (2011) 2 SCC 532, has defined the scope and limitations of the hearsay evidence; the court held that hearsay refers to statements—oral or written—made by someone other than the witness giving evidence in court. As they are usually devoid of the witness's credibility and, hence, inadmissible. [State of Haryana v. Ram Chander, AIR 1976 P&H 381]

The exclusion of hearsay evidence is supported by several reasons such as:

a. One of the reasons for hearsay not being generally admissible is it takes away the binding nature of the admissions; hearsay doesn’t bind the person who makes such evidence as they do not qualify under section 55.

b. It does not include the first-hand experience of the person; it raises doubt about the possibility that the statement might depart from what was said or done, hence susceptible to inaccuracy

c. It can be manipulated because of rumours or undue influence.

Although the hearsay evidence is not admissible, there are certain exceptions when the same could be considered by the court as valid evidence provided that other evidence and material facts corroborate it. These include Res Gestae (Section 4), which pertains to statements forming part of the same transaction. [Sukhar v. State Uttar Pradesh, 1999 (4) Crimes 191]

The reasoning behind this is best explained in the case of Teper v. R.,1952 AC 480, wherein the court held that the idea behind admitting the hearsay evidence if it forms part of res gestae, is that the human utterance is both a fact and a means of communication. When words are closely linked to an action, the meaning of that action cannot be fully understood without the words. Detaching the words from the action would obscure the truth. For hearsay to be admissible, the words should either occur with the event or be strongly associated with it, making them an integral part of the action rather than just a reported statement.

Dying Declarations (Section 26(a)), involving statements made under the belief of impending death. [Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619]

Additionally, as per Section 20 of the BSA, oral statements about the contents of a document are not considered relevant unless the party seeking to prove them shows they are entitled to submit secondary evidence under the rules or when the authenticity of the document is in question.

Documentary Evidence

Chapter V of the Adhiniyam talks about the documentary evidence, where section 56 divides the documents into two categories.

i. Primary evidence: - As per section 57, a document is primary evidence when the document itself is presented before the court for inspection

ii. Secondary Evidence: - Section 58 of the Adhiniyam outlines what documents can be considered secondary evidence; it includes: -

i. Certified copies issued under law.

ii. Copies, produced through a mechanical process, which guarantees authenticity and accuracy, or copies which are compared with such copies.

iii. Copies which are created or compared with the original document.

iv. Counterparts of documents against parties who did not execute them.

v. Document’s oral accounts given by the person who has actually seen it

vi. Oral admissions

vii. Written admissions

viii. In the situation when the document is in a volume that the court cannot conveniently examine, then the testimony of someone skilled in examining documents is valid evidence.

Section 59 states that all the documents need to be proved by the primary evidence except for the circumstances as mentioned in Section 60 of the Adhiniyam which is: -

(a) When it appears that the original is in the possession of:

i) Adverse party,

ii) Someone beyond the court's jurisdiction or

iii) A person who is legally bound to produce it but failed to do so even after notice from the court.

(b) If the original documents’ s existence, condition, or contents are being admitted by the party in writing against whom it was presented.

(c) In a situation when the document is lost or destroyed, and the party intending to present such document cannot produce it within a reasonable time. Here, the precondition is that the party should not be at fault for the absence of such a document.

(d) In a situation when the original is not appropriate for movement.

(e) Original being a public document, as mentioned in section 74 of the act.

(f) When the original document’s certified copy is allowed to be presented before the court under the Act.

(g) When the original is too lengthy to be conveniently examined by the court.

Electronic Evidences

Section 60 of the Adhiniyam provides that electronic records can be presented as digital evidence having the same effectiveness as documentary evidence.

Section 63 deals with the admissibility of electronic evidence. It states that any information stored in an electronic record—whether printed on paper, saved in digital form, or stored on optical or magnetic media—can be considered valid evidence.

The section also mandates the certification of the information for the identification of the record, describing how it was created and confirming the device’s usage. If multiple devices are used together, they are treated as a single unit for evidentiary purposes.

Section 64 of the Bharatiya Sakshya Adhiniyam, 2023, explains when secondary evidence of a document can be used in court. If a party wishes to rely on secondary evidence, they must first notify the opposing party or their representative to produce the original. However, the court may waive this requirement in certain cases, such as when the document itself is a notice, when the opposing party knows it will be needed when the document was obtained fraudulently, or if the original is lost or beyond the court’s reach.

For the admissibility of the electronic evidence the Supreme Court in the case of Tomaso Bruno v. State of UP, (2015) 3 SCC (Cri) 54, held that computer-generated electronic records are admissible in a trial if they meet the requirements specified in Section 65B of the Evidence Act (Section 63 of BSA). According to Sub-section (1) of Section 65B, paper printouts of electronic records stored in optical or magnetic media produced by a computer are considered admissible documents, provided they meet the conditions outlined in Sub-section (2) of the same section. Secondary evidence of the document’s contents can also be presented under Section 65 of the Evidence Act.

Sections 65 to 73 focus on proving the authenticity of documents and signatures. Section 65 permits evidence to prove that a person signed or wrote a document. Section 66 deals with verifying electronic signatures, which must be proved through appropriate means in court.

Section 67 requires proof for documents that are legally required to be attested, while Section 68 provides for proving a document’s execution if no attesting witnesses are available.

Section 69 addresses documents where no attesting witnesses can be located or where the document was executed in the United Kingdom. In such cases, it must be shown that at least one attesting signature is genuine and that the signer’s signature is also authentic.

Section 71 applies to documents that are not required to be attested, stating they must still be proved as genuine in court. Section 72 allows the comparison of disputed handwriting, signatures, or seals with admitted samples. The court may also ask any person in court to produce writing or figures for comparison. The section further covers the comparison of finger impressions. Section 73 relates to the verification of digital signatures. It allows the court to require the person responsible for the digital signature to produce the Digital Signature Certificate or to direct others to use the public key from the certificate to confirm the signature’s authenticity.

Best Evidence Rule for Oral and Documentary Evidence

The law of evidence works on the best evidence rule, and chapter VI of the Adhiniyam signifies the same, where it excludes the oral evidence when there is an availability of documentary evidence, the Supreme Court, in the case of Smt. J. Yashoda v. Smt. K. Shobha Rani, 2007 (5) SCC 730, held that as long as parties have superior evidence, which is primarily primary documentary evidence, they shall not produce any evidence that is inferior to that.

Similarly, the Calcutta High Court, in its judgement, held that the oral testimony was not sufficient enough to rebut the probative value of the documentary evidence. [Minati Bhadra & Ors. v. Dilip Kr. Bhadra & Ors., S.A. 406 of 2016]

The Privy Council in the case of Ramdhandas Jhajharia v. Ramkisondas Dalmia and Others, 1947 BOMLR 49 244, held that in a case where oral testimony appears to be an unreliable and untrustworthy character, the most reasonable way for the court is to let the documents speak for themselves. In cases where the oral evidence is unreliable and contradictory, the court is bound to stick to the written evidence of the document.

Conclusion

Evidence — plays a really important role in the trial and further in the decision of the case; the Bharatiya Sakshya Adhiniyam, 2023 provides a structured approach to the acceptance and evaluation of oral and documentary evidence in legal proceedings. By adding electronic records as primary evidence and permitting oral testimonies through electronic means, the legislation has tried to match up the technological advancements.

Hence, it aims to enhance the efficiency of the justice delivery system, ensuring that justice is timely served. However, as technology is developing faster than ever, maintaining the integrity of electronic evidence becomes paramount. The judiciary also needs to keep evolving with time to bridge the gap between the letter of the law and the reality of the justice system.