DOCUMENTARY EVIDENCE

THE PROJECT REPORT SUBMITTED

FOR

THE FULFILLMENT OF COURSE B.A LL.B (H)

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

ACADEMIC SESSION
2019
SUPERVISED BY:- SUBMITTED BY:-

DR. MITA MOHINI DEEPTANGSHU KAR

FACULTY OF LAW OF EVIDENCE B.A. LL.B (H)

ROLL NO. 1723

 DECLARATION

I, Deeptangshu Kar, student of Chanakya National Law University, Patna hereby declare
that the project work entitled “DOCUMENTARY EVIDENCE” submitted to the
Chanakya National Law University, Patna is a record of an original work done by me
under the guidance of Dr. Mita Mohini, faculty of Law of Evidence, Chanakya National
Law University, Patna.

THANK YOU,
NAME: Deeptangshu Kar
COURSE: B.A., LL.B. (Hons.)
ROLL NO: 1723
SEMESTER – 4th
SESSION- 2017-2022

2
 ACKNOWLEDGEMENT

I would specially like to thank my guide, mentor, Dr. Mita Mohini, without whose
constant support and guidance this project would have been a distant reality.

This work is an outcome of an unparalleled infrastructural support that I have received

from Chanakya National Law University, Patna.
I owe my deepest gratitude to the library staff of the college.

It would never have been possible to complete this study without an untiring support
from my family, specially my parents.

This study bears testimony to the active encouragement and guidance of a host of friends
and well-wishers.

3
Table of Contents
DECLARATION.................................................................................................................2
ACKNOWLEDGEMENT...................................................................................................3
INTRODUCTION...............................................................................................................5
ORAL EVIDENCE..............................................................................................................7
DOCUMENTARY EVIDENCE........................................................................................11
EXPERT OPINION...........................................................................................................42
CONCLUSION..................................................................................................................45
BIBLIOGRAPHY..............................................................................................................46

4
 INTRODUCTION

NATURE AND FUNCTION OF THE LAW OF EVIDENCE

Every case that comes before a court of law has a fact story behind it facts out of which
cases arise keep happening in the ordinary course of life. There is a crowded road for
example people are moving, vehicle are moving. Everyone is running at unmitigated
speed suddenly two vehicles run against each other. One of them being loaded with
dynamite the accident produce an explosion with a shocking noise as a result of which a
noise in a near by hospital drops a child from hands injuring the child cases arising out of
the accident with flow into the courts.
In each case the nature and cause of the accident would be in
question. The facts which led up to the climax will have to reconstruct before the court.
So that judge is able consider the real happening. Only then he will be in position to
apply the appropriate law to the fact to arrived at a just solution about the right and
liabilities of the parties. Thus, whenever a judge is called upon to pronounce upon the
right and liabilities of parties arising out of fact certain information about the facts
involved in his mind as to what the real facts are facts must be proved in the first
instances and the only the matter is rife for application of relevant laws.
The practical reality is that the truth or merits of a case are worth
less unless they can be proved to be acceptance of the judge and there to enable him to
act on them. The means by which facts are proved are governed by the law of evidence.
The function of the law of evidence is lay down rules according to which the facts of case
can be proved or disproved before a court of law. The means which can be used to prove
a fact are all control by the rules and principles
laid down by the law of evidence. The law of evidence does not affect substantive right of
parties but only lays down the law for facilitating the rules of evidence for the purposes
of the guidance of the court. It is procedural law which provides inter alike how a fact is
to be proved.

5
 The evidence means any things by which any alleged
matter of facts is either establish or disproved. Any thing that makes the thing in question
evidence to the court evidence. Where the question is whether an explosion took place
before a fire occurred evidence can be both oral and documentary and electronic records
can be produced as evidence. Even in criminal matter also there can be evidence by
means of electronic records including video- conferencing.
The noise of the explosion and its flash are evidence of it.
Persons who can the flash or heard the noise can give evidence of the fact of the
explosion. If the happening of the fact is recorded on any thing apart from human
meaning, that record is also an evidence of happening thus, evidence can be defined as
any material which tends to persuade the court of the truth or probability of some fact
asserted before.

6
 ORAL EVIDENCE

Oral Evidence Section 59:- All facts, except the contents of documents or electronic
records contents of documents, may be proved by oral evidence.

Definition of oral evidence :- Sec 3

The meaning of expression
“oral evidence” is given along with the definition of the term “evidence” in Sec 3. this
first part of the provision which defines evidence deal with oral evidence it says :-
All the statements which the court permits or
requires to be made before it by witness in relation to the matter of four under inquiry,
such statements are called oral evidence.

Oral evidence is evidence which is confined to words spoken by the mouth.

Words of the Section:- This section is not very happily worded contents of documentary
may be proved by oral evidence under certain circumstances , that is to say when such
evidence of their content is admissible as secondary evidence.

Contents of document can not be proved by oral evidence :-

It is rule of evidence not one of technically but of substance
that, where written documents exist they shall be produced as being two best evidence of
their own contents.

What fact may be proved by oral evidence:- Oral evidence may suffice to prove
possession oral evidence of credible would be sufficient to prove a little by prescription.

Oral evidence weigh and value:- where oral evidence is conflicting and where
documentary evidence does not help on in coming to a decisive conclusion the duly

7
proper course is to see what are the admitted fact in case and what case the circumstance
deducible from the can be not doubt this can be the true method of arising a correct
conclusion.

SECTION 60._ Oral evidence must be direct

Oral evidence must, in all cases whatever, be direct; that is to say—
if it refers to a fact which could be seen, it must be the evidence of a witness who says he
saw it;
if it refers to a fact which could be heard, it must be the evidence of a witness who says
he heard it;
if it refers to a fact which could be perceived by any other sense or in any other manner, it
must be the evidence of a witness who says he perceived it by that sense or in that
manner;
if it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds:
Provided that the opinions 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 treatises 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.

PRINCIPLE:- The first degree of moral evidence and that which is most satisfactory to
the mind is afforded by our own sense, this being the direct evidence of the highest
nature. Where this can not be had as is generally the case in the proof of fact by oral
testimony.

8
Testimonial elements:- When a witness statement is offered as a basis of an evidence in
reference inference to the fact stated. Moreover in the function fulfilled by each these
three element or processes are to be found in general from the fundamental can not for
assigning to each its probative value. Thus the nation of perception that the external event
has is some way or other impressed itself on correspond to the witness, then should
adequately respected or correspond to the fact itself as it objectively existed or exist. The
strength of the inference depends on the probability of a fairly accurate on the part of
witness.

General human trails affecting testimony: - But the individual witness testimony is
affected not merely by the condition inherent in there three elements of testimony, but
also by enabled to generalize. These generalize common to large of individual may at
time find him set.

Race:- In respect to the element of testimony perception, recollection and narration

professional any scientific observation have thus for contributed little knowledge that is
serviceable in estimating the influence of value upon testimony in judicial proceeding.

In this connection there are several more condition pertaining to general sense perception.
First of all there is that so called vicariousness of sense which Substitute. One sense for
another in representation. The vicariousness of visual sensation are the most humerous
and the most important. Any body who has been pushed or beaten and has felt the blow
will of other circumstance permit and the impulse be strong be strong enough be
convicted that he has been seen his assaulter and manner of the assault.

CASE:-
ASHOK KUMAR ROUT & ETC V/S STATE OF BIHAR

FACT:- Admissibility of oral evidence faction of statement and truth of statement of all
hearsay statement and truth of statement of all hearsay statement is not inadmissible.

9
 There is distinction between proving the faction of statement and
proving truth of statement. It is admissible if such evidence proposes to establish
only the faction of statement made by other person and not the truth of statement.
Guidance of informant only proposed to establish faction of
statement which was given to him by eye witness. Therefore, it is admissible and
it can not be rejected.

" Document"." Document" means any matter expressed or described upon any substance
by means of letters, figures or marks, or by more than one of those means, intended to be
used, or which may be used, for the purpose of recording that matter.
Illustrations:- A writing is a document: Words printed lithographed or photographed are
documents:
A map or plan is a document: An inscription on a metal plate or
stone is a document: A caricature is a document.
" Evidence."" Evidence" means and includes-- (1) all statements which the Court permits
or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence; (2) all documents produced for the inspection of
the Court; such documents are called documentary evidence." Proved." A fact is said to
be proved when, after considering the matters before it, the Court either believes it to
exist, or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists."
Disproved." A fact is said to be disproved when, after considering the matters before it,
the Court either believes that it does not exist, or considers its non- existence so probable
that a prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it does not exist." Not proved." A fact is said not to be proved when it is
neither proved nor disproved." India." [ India" means the territory of India excluding the
State of Jammu and Kashmir.]
Section 61._ Proof of contents of documents:-

The contents of documents may be proved either by primary or by secondary evidence.

10
 DOCUMENTARY EVIDENCE
The word ‘document’ has been defined in section 3 of the evidence act document means
any matter expressed or described upon any substance by means of letter, figures or
marks or by more than one of those means intended to be used or which may be used for
the purpose of recoding that matter.
The most common document with which we have to deal is a document which is
described by letters. Generally we have to deal with things written in some language like
Hindi, Urdu and English etc. Under the following sections we have to see as to when
there is a document the contents of which is material for the decision of case how those
contents are brought before the court. The subject of documentary evidence can be for
purpose of intelligible reading, divided into three parts:

1. How the contents of a document are to be proved ? (Sec 61 to 66)

2. How the document is to be proved to be genuine ? (Sec 67 to 90)
3. How far and in what cases the oral evidence is excluded by documentary
evidence ? (Sec 91 to 109)

The contents of documents must be proved either by primary or secondary evidence. It

means that there is no other method allowed by law for proving the contents of
documents. An ex-parte affidavit without affording an opportunity to be other party to
test the veracity of its contents by cross-examination, cannot be a proof of its contents.

SECTION 62._ Primary evidence:-

Primary evidence means the documents itself

produced for the inspection of the Court.

Explanation 1 - Where a document is executed in several parts, each part is primary

evidence of the document:

11
Where a document is executed in counterpart, each counterpart being executed by one or
some of the parties only, each counterpart is primary evidence as against the parties
executing it.

Explanation 2- Where a number of documents are all made by one uniform process, as in
the case of printing, lithography, or photography, each is primary evidence of the contents
of the rest; but, where they are all copies of a common original, they are not primary
evidence of the contents of the original.

Illustrations:-

A person is shown to have been in possession of a number of

placards, all printed at one time from one original. Any one of the placards is primary
evidence of the contents of any other, but no one of them is primary evidence of the
contents of the original.

SECTION 63._ Secondary evidence: –

Secondary evidence means and includes-

(1) Certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves ensure
the accuracy of the copy, and copies compared with such copies.

(3) Copies made from or compared with the original;

(4) Counterparts of documents as against the parties who did not execute them;

(5) Oral accounts of the contents of a documents given by some person who has himself
seen it

Illustration:-

12
(a) A photograph of an original is secondary evidence of its contents, though the two have
not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary
evidence of the contents of the letter, if it is shown that the copy made by the copying
machine was made from the original.

(c) A copy transcribed from a copy, but afterwards compared with the original, is
secondary evidence; but he copy not so compared is not secondary evidence of the
original, although the copy from which it was transcribed was compared with the
original.

(d) Neither an oral account of a copy compared with the original, nor an oral account of a
photograph or machine copy of the original, is secondary evidence of the original.

1. Certified copies under the provision given in the Evidence Act :-

Section 76 of the evidence act lays down that every public

officer having custody of a public document shall give to a person, on demand of, and on
payment of legal fee s, a copy of it (public document).

2. Copies made from the original by mechanical process:-

Acc to this clause,

(a) copies made from the original by mechanical process

(b) copies compared with such copies, are secondary evidence of original.

3. Copies made from or compared with the original:-

If a copy is prepared word to word from

the original it is secondary evidence of the original. In this case even a copy of a
document which is not a public document can be given in secondary evidence.

13
CASE:-

K. LAXMANAN V/S THEKKAYI PADMINI AND OTHERS1

FACT:- Onus of proving the will is on the pro-ponder. The Pro-ponder has to prove
the legality of execution and geniuses of the will by proving absence of suspicious
circumstances surrounding the testator capacity and the signature of the testator. When
there are suspicious circumstances regarding the execution of the will, the onus is also on
the pro-ponder to explain then to the satisfaction of the court and only when such
responsibility is discharged. The court would accept the will as genuine.

CASE:-

PUNJAB & SIND BANK VS. KUNSHIV PROFILES CO. PVT LTD

Sections 61 & 62 read together show that the contents of a document must, primarily be
proved by production of the document itself for the inspection of the court. Original
document is the best and primary evidence.
Section 63(3) prescribes two alternatives for admissibility of a document as a secondary
evidence first it may be a copy made from original and secondary it must be a copy
compared with the originals. If either of these two requirements had been satisfied then
the documents would be a proper and valid secondary evidence. Secondary evidence of
the contents of the documents cannot be admitted without the non production of the
original being first accounted for in such manner as to bring it within one or the other
cases provided for in Section 65 of Evidence Act. In AIR 1933 Patna 468, it was held that
“Secondary evidence should not be allowed unless the circumstances are a sufficient
justification under the Evidence Act for reception of secondary in lien of primary
evidence.” In AIR 1954 SC 506, It was observed that, “A foundation must first be laid for
the reception of secondary evidence. Merely stating that a document could not be found
is not sufficient to permit the admission of secondary evidence.” It was held in AIR 1958
1
AIR 2009 S.C 951

14
AP 415 “DB” that. Section 65 permits that leading of secondary evidence only where the
original has been lost. It must be establish that the party has exhausted all the for it or
loss thereof proved, secondary evidence cannot be allowed.”

SECTION 64._ Proof of documents by primary evidence:-

Documents must be proved by primary evidence except in the cases hereinafter

mentioned.
Section 64 lays down the best evidence with reference to documentary evidence. It says
that the best evidence of the contents of the document is the document itself i.e., the
original document.

SECTION 65._ Cases in which secondary evidence relating to documents may be

given:-

Secondary evidence may be given of the existence, condition or contents of a document

in the following cases:

(a) When the original is shown or appears to be in the possession or power of the person
against whom the document is sought to be proved, or of any person out of reach of, or
not subject to, the process of the Court, or of any person legally bound to produce it, and
when, after the notice mentioned in Section 66, such person does not produce it;

(b) When the existence, condition or contents of the original have been proved to be
admitted in writing by the person against whom it is proved or by his representative in
interest;

(c) When the original has been destroyed or lost, or when the party offering evidence of
its contents cannot, for any other reason not arising from his own default or neglect,
produce it in reasonable time;

(d) When the original is of such a nature as not to be easily movable;

15
(e) When the original is a public document within the meaning of Section 74;

(f) When the original is a document of which a certified copy is permitted by this Act, or
by any other law in force in India to be given in evidence;

(g) When the originals consist of numerous accounts or other documents which cannot
conveniently be examined in Court, and the fact to be proved is the general result of the
whole collections.

In cases (a), (c) and (d), any secondary evidence of the contents of the documents is
admissible.

In case (b), the written admission is admissible.

In case (e) or (f), a certified copy of the document, but no other kind of secondary
evidence, is admissible.

In case (g), evidence may be given as to the general result of the documents by any
person who has examined them, and who is skilled in the examination of such
documents.

Cases in which secondary evidence of document may be given:-

Acc to Sec 65 the secondary evidence about the contents of a document is admissible
under the following circumstances:

Gurbaz Singh Alias Baja Singh vs Bhal Singh And Others

Learned counsel for the appellant contends that since Unregistered mortgage deed has
neither been produced nor a certified copy there of has been produced, thus, oral evidence
of contents of such mortgage can be led in terms of Section 65(c) of the Evidence Act. He
has relied upon Mst. Bibi Aisha and others vs. The Bihar Subai Sunni Majlis Avaqaf and
others, AIR 1969 SC 253. It is contended that sections 91 and 92 of the Evidence Act
exclude oral evidence of contents of the document when the document is available. But
when the document is being proved by secondary evidence, it can consistof oral evidence

16
of the contents of the document as well. Reliance is placed upon Jupudi Kesava Rao
vs.Pulavarthi Venkata Subbarao and others, AIR 1971 SC 1070 and Marwari Kumhar and
others vs. Bhagwanpuri Guru Ganeshpuri and another, (2000) 6 SCC 735 Under section
64, documents must be proved by primary evidence except in cases mentioned thereafter.
Section 65 allows secondary evidence to be given of the existence, condition or contents
of a document in circumstances specified in Clauses (a) to (g) thereof. Under Section 91
when the relevant portion of a contract or of a grant or of any other disposition of
property has been reduced to the form of a document, no evidence shall be given in proof
of the terms except the document itself or secondary evidence of its contents in cases in
which secondary evidence is admissible under the provisions here in before contained.

Case:- Gopal Krishna Kumar V. Puran Singh

The Document referring to payment by cheque, excuted by defenedant in favour of

plaintiff. The impugned document could be said to be said to be in possession of
defendant.

The plea of defendant that the said document was is in possession of income tax
department. Best evidence which was very foundation of said document was also in
possession of defendant. It was held by Punjab & Haryana High Court that grant of
permission to plaintiff to lead secondary evidence in respect of it was proper. It should
not be intrerfered with. However the permission should stand subject to the condition that
leave be granted to the plaintiff to summon witness from income tax department.

SURINDER KAUR VS. SARDAR MANGAL SINGH.

Present revision petition has been filed for setting aside orders dated 15th December 1997
and 5th May, 1998,
Where by petitioner’s application to lead secondary evidence under Section 65 of Indian
Evidence Act, 1872

17
(here in after referred to as ‘IE Act’) was dismissed and petitioner was directed to file
original documents
On a reading of aforesaid Sections, I am of the view that application for secondary
evidence on the ground of Sub - section (c) of Section 65 IE Act should be allowed only
when a court is absolutely sure that original documents have been destroyed or lost. In
my view, if courts were to adopt a liberal approach in allowing secondary evidence to be
led on the ground that original document has been lost or destroyed, then it would have
very serious adverse consequences for a person who may be in rightful possession of
original of such a document because as and when he were to subsequently produce such
an original document, the contrary refuse to take cognizance of the same on the ground
that some other court had prior in time given a finding that the said document had been
lost or destroyed

SECTION 66._Rules as to notice to produce:-

Secondary evidence of the contents of the documents referred to in section 65, clause (a),
shall not be given unless the party proposing to give such secondary evidence has
previously given to the party in whose possession or power the document is, 1*[or to his
attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is
prescribed by law, then such notice as the Court considers reasonable under the
circumstances of the case: Provided that such notice shall not be required in order to
render secondary evidence admissible in any of the following cases, or in any other case
in which the Court thinks fit to dispense with it:--

(1) When the document to be proved is itself a notice;

(2) When, from the nature of the case, the adverse party must know that he will be
required to produce it;

(3) When it appears or is proved that the adverse party has obtained possession of the
original by fraud or force;

18
(4) When the adverse party or his agent has the original in Court;

(5) When the adverse party or his agent has admitted the loss of the document;

(6) When the person in possession of the document is out of reach of, or not subject to,
the process of the Court

SECTION 67._ Proof of signature and handwriting of person alleged to have signed
or written document produced –

If a document is alleged to be signed or to have been written wholly or in part by any

person, the signature or the handwriting of so much of the document as is alleged to be in
that person's handwriting must be proved to be in his hand writing.

Section 67 of the Indian Evidence Act 1872 provides inter alia that if a document is
alleged to be signed by any person the signature must be proved to be in his handwriting.
Sections 45 and 47 of the said Act prescribed the method in which such signature can be
proved. Under Section 45, the opinion of the handwriting experts is relevant while under
Section 47 the opinion of any person acquainted with the handwriting of the person who
is alleged to have signed the document is admissible.
The explanation to the section explains when a person can be said to be acquainted with
the handwriting of another person.

State Of U.P V/S Hari Mohan and others

Letter written by deceased to her father stating that she should be immediately taken
back from house of in- laws otherwise her in- laws and the husband would kill her.
Handwriting of deceased was proved by testimony of her brother. No effort was made by
the accused to get it compared with admitted handwriting of accused.

SECTION 67-A. Proof as to digital signature:-

19
 Except in the case of a secure digital signature, if the signature of any subscriber is
alleged to have been affixed to an electronic record the fact that such digital signature is
the digital signature of the subscriber must be proved.

Under this section therefore, all non-secure digital signatures need to be proved with the
person submitting such a document also ensuring at his cost and responsibility
verification of the digital signature as per Section 73A of the Indian Evidence Act which
requires "Some other person to apply the public key listed in the digital signature
certificate and verify the digital signature purported to have been affixed by that person".

SECTION 68._ Proof of execution of document required by law to be attested:

If a document is required by law to be attested, it shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its execution, if there
be an attesting witness alive, and subject to the process of the court and capable of giving
evidence :

Provided that it shall not be necessary to call an attesting witness in proof of the
execution of any document, not being a will, which has been registered in accordance
with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution
by the person by whom it purports to have been executed is specifically denied.

CASE:- V. Lakshminarayan V/S S.V Balasubramanian2

Fact:- Plaintiff and defendant are sons of deceased who had executed will first
defendant; one of sons of testator alleged that will is not genuine. Thought at testing
witness were not alive to be examined, identifying witness who was a known family
friend categorically stated that testator was in sound disposing state of mind. The other
sons and daughters of deceased had not disputes genuineness of will. Explanation given
2
AIR 2009(NOC)1062(MAD)

20
by plaintiff regarding difference dates of presentation and registration of will was
acceptable plaintiff is entitled to decree in testamentary suit.

JANKI NARAIN BHOIR V. NARAYAN NAM DEO KADAM3

One of the requirements of due execution of will is its attestation by two witnesses which
is mandatory. Section 68 of Evidence Act speaks of as to how the document required by
law to be attested shall not be used in evidence until one attesting witness has been called
for the purpose of proving execution: if there be attesting witness alive and subject to
process of court and capable of giving evidence and subject to process of court has be
necessarily examined before the document required by law to be attested can be used in
evidence.

SECTION 69._ Proof where no attesting witness found –

If no such attesting witness can be found, or if the document purports to have been
executed in the United Kingdom, it must be proved that the attestation of one attesting
witness at least is in his handwriting, and that the signature of the person executing the
document is in the hand writing of that person.

Scope:- section 69 gives the mode of proving a documents required by law to be attested,
When the attesting witnesses cannot be found. According to section 69 if all of the
attesting witnesses are dead, or if all or any of them, who is alive, is not capable of giving
evidence, or if the document purports to be executed in united kingdom, the court cannot
compel the production of the attesting witnesses.

SECTION 70._ Admission of execution by party to attested document –

The admission of a party to an attested document of its execution by himself shall be

3
AIR 2003 SC 759

21
sufficient proof of its execution as against him, though it be a document required by law
to be attested.

Scope:- This section lays down that if a document, required by law to be attested, is
produced in a proceeding and if the executant admits its execution, it shall be sufficient
proof of its execution against him. A files a suit against B for recovery of the plots in
dispute in his favour. A files the mortgage deed before the court, B admits the execution
of the mortgage deed. It shall be presumed against B that the mortgage was executed.

SECTION 71._ Proof when attesting witness denies the execution -

If the attesting witness denies or does not recollect the execution of the document its
execution may be proved by other evidence.

Principle._ Section 71 provides that witness denies or does not recollect the execution of
a document, its execution may be proved by any other evidence .very often it happens
that when a witness is called by party to a proceeding he colludes with the opposite part
y and deposes that he does not recollect anything about the deed. In such cases it
becomes difficult for the parties producing the deed to prove the document through him.
For such contingencies Section 71 makes a provision that in such cases document may be
proved by other evidence. This section is one of the exception to the rule laid down in
section 68 Section 71 applies only when an attesting witness is called and he fails prove
the document.

In Janaki Narain Bhoir V. Narayan Namdeo Ksdam,

It was held by supreme court that Section 71 of evidence act is the nature of safeguard to
possible to prove the execution of will by calling attestation witness.

SECTION 72._ Proof of document not required by law to be attested._

An attested document not required by law to be attested may b proved as if it was
unattested.

22
Principle._ The section lays down the procedure of proving a document which though
not requirement by law to be attested, If a document is not required by law to be attested
but the parties being overzealous for making the document legal had got it attested , it
may proved like a deed which is not required by law to be attested. A executes a sales-
deed in favour of B. he signs the deed and gets it attested by C and D. B files a suit
against A on the basis of this sale-deed for possession. A denied the execution of sale-
deed. B summons the scribes of the deed and then deposes that the deed was executed by
A and signed by him in presence of the witness. The deed will be taken to be proved. The
attestation is to be proved.

SECTION 73._ Comparison of signature, writing or seal with others admitted or

proved. - In order to ascertain whether a signature, writing or seal is that
of the person by whom it purports to have been written or made, any signature, writing or
seal admitted or proved to the satisfaction of the Court to have been written or made by
that person may be compared with the one which s to be proved, although that signature,
writing, or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the
purpose of enabling the Court to compare the words or figures so written with any words
or figures alleged to have been written by such person.

This section applies also with any necessary modifications, to finger-impressions.

CASE._ Velaga sivarame Krishna V. Velaga Veerabhadra Rao & Anr

Whenever a party disputes the signature on a particular document two remedies are open
to him either to request the court to compare the signature or to file an application to send
to document to the expert for comparisons. When the petitioner opted to file an
application expert, no prejudice will caused to either party.

23
Section 73 of the Indian Evidence Act provides that in order to ascertain. Whether a
writing is that of the person by whom it purports to have been written any writing
admitted or proved to the satisfaction of the court to have been written by that person
may be compared with the one which is to be proved, although that signature, writing has
not been produced or proved for any other purpose. Para 2 of the section provides that the
court may direct any person present in court to write in words or figures for the purpose
of enabling the court to compare words or figures alleged to have been written by such
person.

In the course of criminal proceedings before a magistrate the prosecution alleged that one
of the basic documents which was of vital importance to establish the case against the
accused was in the handwriting of the accused but it could not be compared by the
handwriting expert with any specimen writing of the accused because the latter avoided
to give any specimen writing and that in the interest of justice the court should direct him
to give his specimen writing. Exercising the court's power under s. 73 of the Evidence
Act the Magistrate directed the accused to give his specimen handwriting to have it
examined by a handwriting expert.

SECTION 73-A._Proof as to verification of digital signature._ In order to ascertain

whether a digital signature is that of the person by whom it purports to have been affixed,
the court may direct-

(a) that person or the controller or the certifying authority to produce the digital
signature certification;
(b) Any other person to apply the public key listed in the digital signature
certificate and verify the digital signature purported to have been affixed by
that person.”

Explanation._ For the purposes of this section “Controller” means the controller
appointed under sub-section (1) of section 17 of the Information technology Act,
2000.

24
Public Documents

SECTION 74._Public documents - The following documents are Public documents-

(1) Documents forming the acts, or records of the acts

(a) Of the sovereign authority,

(ii) Of Official bodies and the Tribunals, and

(iii) Of public officers, legislative, judicial and executive, of any part of India or of the
Commonwealth, or of a foreign country.

(2) Public records kept in any State of private documents.

CASE. The public Information Officer V/S A.P Information & Anr.
AIR 2009

Muntakhab is essentially document with list of names with number of fields held by
original granter or his successors. A certificate issued by competent authority recognizing
succession froms part of muntakhab and sometimes by itself is a muntakhab. When a
document recognizes successors on title and such decision is based on enquiry essentially
there is determination of right.

It is certain by not only between rivars staking claim to property mentioned in muntakhab
but declaration contained the operates against entire word in the sense it is judgment in
rem.

SECTION 75._ Private documents - All other documents are private.

Distinction Between Public Document and Private Document

25
 1. Public document is prepared by public Public servants in discharge of his public
duties.

1. Private documents are those documents which are prepared by a person for his
private right.

2. Public documents are available for inspection to public in public officer during
appointed time after payment of fixed fee.

2. Private documents are kept in custody of the person to whom it belongs and is not
available for general inspection to public.

3. The secondary copy of public document is to be admitted in judicial proceedings.

3. Before proving one of conditions laid down under section 65 the secondary
evidence of original.

4. As general rule the public document is proved by secondary evidence.

4. As general rule the private document is to proved by original primary evidence.

5. The court is bound to presume the genuinenss of public document from their duly
certified secondary copy.

6. No presumption is made about genuinenss of original document from secondary

evidence of private document except in some exceptional circumstances.

SECTION 76._ Certified copies of Public Documents - Every public officer having the
custody of a public document, which any person has a right to inspect, shall give that
person on demand a copy of it on payment of the legal fees therefore, together with a
certificate written at the foot of such copy that it is a true copy of such document or part
thereof, as the case may be, and such certificate shall be dated and subscribed by such
officers with his name and his official title, and shall be sealed whenever such officer is

26
authorized by law to make use of a seal, and such copies so certified shall be called
certified copies.

Explanation - Any officer who, by the ordinary course of official duty, is authorized to
deliver such copies, shall be deemed to have the custody of such documents or parts of
the public documents of which they purport to be copies.

SECTION 77._ Proof of documents by production of certified copies -

Such certified copies may be produced in proof of the contents of the public documents
or parts of the public documents of which they purport to be copies.

Scope._Section 77 lays down that when the contents of public documents are to be
proved before the court of law, the original need not be produced before the court. Instead
of a certified copy taken from the office according to section 76 may be produced before
the court and the court will accept it. The idea underlying this principle is that the record
of a court should not be taken away from its place of custody into courts. If public
records are summoned in courts it would make it impossible for the time being for others
to use records. Cases take years to be decided. Suppose a particular public document is
produced in one court in 1936 and the case linger on upto 1946.

CASE._ Geeta Marine Services pvt. Ltd & Anr. V/s State & Anr. 4

In trial for offence of dishonour of cheque where after filling of affidavit of examination-
in-chief and after recording formal examination-in-chief of the concerned witness an
objection war raised regarding proof of documents or insufficiency of proof, it has to be
death with immediately by the learned magistrate before proceeding with the recording of
cross examination.Only in a case where the said adjudication involes a decision on
complicated question. Which require a very detailed adjudication. It can be postponed till
the final hearing.

4
AIR 2009 (NOC) 951 [Bom]

27
SECTION 78._ Proof of other official documents:- The following public documents
may be proved as follows:-

(1) Acts, orders or notifications of the Central Government in any of its departments, or
of the Crown Representative or of any State Government or any department of any State
Government,--

by the records of the departments, certified by the heads of those departments

respectively, or by any document purporting to be printed by order of any such
Government or as the case may be, of the Crown Representative;

(2) the proceedings of the Legislatures,--

By the journals of those bodies respectively, or by published Acts o abstracts, or by

copies purporting to be printed by order of the Government concerned;

(3) proclamations, orders or regulations issued by Her Majesty or by the Privy Council.
Or by any department of Her Majesty’s Government,--

by copies or extracts contained in the London Gazette, or purporting to be printed by the

Queen’s printer;

(4) the acts of the Executive or the proceedings of the Legislature of a foreign country,--

by journals published by their authority, or commonly received in that country as such, or

by a copy certified under the seal of the country or sovereign, or by a recognition thereof
in some Central Act;

(5) the proceedings of a municipal body in a State,--

by a copy of such proceedings, certified by the legal keeper thereof, or by a printed book
purporting to be published by the authority of such body;

(6) Public documents of any other class in a foreign country,-

28
by the original , or by a copy certified by the legal keeper thereof, with a certificate under
the seal of a Notary Public, or of an India Consul or diplomatic agent that the copy is
duly certified by the officer having the legal custody of the original, and upon proof of
the character of the document according to the law of the foreign country.

SECTION 79._Presumption as to genuineness of certified copies.-

The Court shall presume to be genuine every document purporting to be a certificate,
certified copy or other document, which is by law declared to be admissible as evidence
of any particular fact and which purports to be duly certified by any officer of the Central
Government or of a State Government, or by any officer in the State of Jammu and
Kashmir who is duly authorised thereto by the Central Government:- Provided that such
document is substantially in the form and purports to be executed in the manner directed
by law in that behalf.

The Court shall also presume that any officer by whom any such document purports to be
signed or certified held when he signed it, the official character which he claims in such
paper.

CASE._ Mohamed bhai rasul bhai Malik V/S Amir Bhai Rahim Bahi Malik

It was held by Gujarat high court that a certified copy of judgment was missing and the
date of pronouncement was not mentioned in the document. The document was
inadmissible in evidence being incomplete.

SECTION80._ Presumption as to documents produced as records of evidence -

Whenever any document is produced before any Court, purporting to be a record or
memorandum of the evidence, or of any part of the evidence, given by a witness in a
judicial proceeding or before any officer authorized by law to take such evidence or to be
statement or confession by any prisoner or accused person taken in accordance with law,
and purporting to be signed by any Judge or Magistrate, or by any such officer as
aforesaid, the Court shall presume_

29
That the document is genuine; that any statements as to the circumstances under which it
was taken, purporting to be made by the person signing it, are true, and that such
evidence, statement or confession was duly taken.

SECTION81._ Presumption as to Gazettes, newspapers, private Acts of Parliament

and other documents - The Court shall presume the genuineness of every document
purporting to be the London Gazette, or any official Gazette or the Government Gazette
of any colony, dependency or possession of the British Crown, or to be a newspaper or
journal, or to be a copy of private Act of Parliament of the United Kingdom printed by
the Queen's Printer and of every document purporting to be a document directed by any
law to be kept by any person, if such document is kept substantially in the form required
by law and is produced from proper custody.

SECTION 81-A._ Presumption as to gazettes in electronic forms._

The court shall presume the genuineness of every electronic record purporting to be the
official Gazette, or purporting to be electronic record directed by law to be kept by any
person, if such electronic record

SECTION82._ Presumption as to document admissible in England without proof of

seal or signature - When any document is produced before any Court, purporting
to be a document which, by the law in force for the time being in England or Ireland,
would be admissible in proof of any particular in any Court of Justice in England or
Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial
or official character claimed by the person by whom it purports to be signed, the Court
shall presume that such seal, stamp or signature is genuine and that the person signing it
held at the time when he signed it, the judicial or official character which he claims;

and the document shall be admissible for the same purpose for which it would be
admissible in England or Ireland.

30
SECTION 83._ Presumption as to Maps or Plans made by authority of Government
-The Court shall presume that maps or plans purporting to be made by the authority of the
Central Government or any State Government were so made, and are accurate, but maps
or plans made for the purposes of any cause must be proved to be accurate.

SECTION 84._ Presumption as to collections of laws and reports of decisions -

The Court shall presume the genuineness of every book purporting to be printed and
published under the authority of the Government of any country, and to contain any of the
laws of that country;

and of every book purporting to contain reports of decisions of the Courts of such
country.

SECTION85._ Presumption as to powers-of-attorney .- The Court shall presume that

every document purporting to be a power-of- attorney, and to have been executed before,
and authenticated by, a notary public, or any Court, Judge, Magistrate, Indian Consul or
Vice- Consul, or representative of the Central Government, was so executed and
authenticated.

SECTION 85.A_Presumption as to electronic agreements._ The Court shall presume

that every electronic record purporting to be an agreement containing the digital
signatures of the parties.

SECTION 85.B_Presumption as to electronic records and digital signature._

(1) In any proceeding 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-

31
 (a) the secure digital 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 digital

signature, nothing in this section shall create any presumpting relating
to authenticity and integrity of the electronic record or any digital
signature.

SECTION85-C._Presumption as to digital signature certificates._

The court shall presume, unless contrary is proved that the information listed in a digital
signature certificate is correct, except for information specified as subscriber information
which has not been verified, if the certificate was accepted by the subscriber.

SECTION86._Presumption as to certified copies of foreign judicial records. -

The Courts may presume that any document purporting to be a certified copy of any
judicial record of any country and not forming part of India or of Her Majesty’s
dominions is genuine and accurate, if the document purports to be certified in any manner
which is certified by any representative of the Central Government in or for such country
to be the manner commonly in use in that country for the certification of copies of
judicial records.

An Officer who, with respect to any territory or place not forming part of India or Her
Majesty’s dominions, is a Political Agent therefore, as defined in section 3, clause (43), of
the General Clause Act, 1897, shall, for the purposes of this section, be deemed to be a
representative of the Central Government in and for the country comprising that territory
of place.

SECTION 87._ Presumption as to books, maps and charts.- The Courts may presume
that any book to which it may refer for information on matters of public or general
interest, and that any published map or chart, the statements of which are relevant facts
and which is produced for its inspection, was written and published by the person and at
the time and place, by whom or at which it purports to have been written or published.

32
SECTION 88._ Presumption as to Telegraphic Messages -

The Court may presume that a message, forwarded from a telegraph office to the person
to whom such message purports to be addressed, corresponds with a message delivered
for transmission at the office from which the massage purports to be sent, but the Court
shall not make any presumption as to the person by whom such massage was delivered
for transmission.

SECTION 89._ Presumption as to due execution etc., of documents not produced –

The Court shall presume that every document, called for and not produced after notice to
produce, was attested, stamped and executed in the manner required by law.

SECTION 90._Presumption as to documents thirty years old – Where any

document, purporting or proved to be thirty years old is produced from any custody
which the Court in the particular case considers proper, the Court may presume that the
signature and every other part of such document, which purports to be in the hand writing
of any particular person, is in that person's hand writing, and in the case of document
executed or attested, that it was duly executed and attested by the persons by whom it
purports to be executed and attested.

Explanation - Documents are said to be in proper custody if they are in the place in which
and under the care of the person with whom, they would naturally be; but no custody is
improper if it is proved to have had a legitimate origin or if the circumstances of the
particular case are such as to render such an origin probable.

This explanation applies also to Section 81.

Illustrations:-

(a) A has been in possession of landed property for a long time. He produces from his
custody deeds relating to the land showing his titles to it. The custody is proper.

33
(b) A produces deeds relating to landed property of which he is the mortgagee. The
mortgagor is in possession. The custody id proper.

(c) A, connection of B, produces deeds relating to lands in B's possession, which were
deposited with him by B for safe custody. The custody is proper.

STATE AMENDMENT U.P.

The following amendments have been made by the U.P. Civil Laws Amendment
Act,1954, and the same are applicable to U.P. only -

(1) The existing section shall be re-numbered as Section 90(1) and

(a) For the words "thirty years" the words "twenty years" shall be substituted, and

(b) The following shall be inserted there after as a new sub-section (2);

(2) "Where any such document as is referred to in sub-section (1) was registered in
accordance with the law relating to registration of documents and a duly certified copy
there of is produced, the Court may presume that the signature and every to her part of
such document which purports to be in the hand writing of any particular person, is in
that person's hand writing, and in the case of a document executed or attested, that it was
duly executed and by the person by whom it purports to have been executed or attested"

(3) After Section 90, add the following as new Section 90-A.

SECTION 90_A.-Presumption as to electronic records five years old._ Where any

electronic record, purporting or proved to be five year old, is produced from any custody
which the court in the particular case consider proper, the court may presume that digital
signature which purports to be the digital signature of any particular person was so
affixed by him or any person authorised by him in this behalf.

SECTION 91._ Evidence of terms of contracts, grant and other dispositions of

property reduced to form of document - When the terms of a contract, or of a grant,

34
or of any other disposition of property have been reduced to the form of a document, and
in all cases in which any matter is required by law to be reduced to the form of a
document, no evidence shall be given in proof of the terms of such contract, grant or
other disposition of property, or of such matter, except the document itself, or secondary
evidence of its contents in cases in which secondary evidence is admissible under the
provisions herein before contained.

Exception 1. - When a public officer is required by law to be appointed in writing, and

when it is shown that any particular person had acted as such officer, the writing by
which he is appointed need not be proved.

Exception 2. - Wills admitted to probate in India may be proved by the probate.

Explanation 1. - This section applies equally to cases in which the contracts, grants or
dispositions of property referred to are contained in one document, and to cases in which
they are contained in more documents than one.

Explanation 2. -Where there are more originals than one, one original only need be
proved.

Explanation 3. -The statement, in any document whatever of a fact other than the facts
referred to in this section shall not preclude the admission of oral evidence as to the same
fact.

Illustrations

(a) If a contract be contained in several letter, all the letters in which it is contained must
be proved.

(b) If a contract is contained I a bill of exchange, the bill of exchange must be proved.

(c) If a bill of exchange is drawn in a set of three, one only need be proved.

35
(d) A contracts, in writing with B, for the delivery of indigo upon certain terms. The
contract mentioned the fact that B had paid A the price of other in contracted for verbally
on another occasion.

Oral evidence is offered that no payment was made for the other indigo. The evidence is
admissible.

(e) A gives B a receipt for money paid by B.

Oral evidence is offered of the payment.

The evidence is admissible.

SECTION 92._ Exclusion of evidence or oral agreement -

When the terms of any such contract, grant or other disposition of property, or any matter
required by law to be reduced to the form of a document have been proved according to
the last section, no evidence of any oral agreement or statement shall be admitted, as
between the parties to any such instrument or their representatives in interest, for the
purpose of contradicting, varying adding to, or subtracting from, its term:

Proviso (1) - Any fact may be proved which would invalidate any document, or which
would entitle any person to any decree or order relating thereto, such as fraud,
intimidation, illegality, want for due execution, want of capacity in any contracting party,
want or failure of consideration, or a mistake in fact or law.

Proviso (2) - The existence of any separate oral agreements to matter on which a
document is silent, and which is not inconsistent with its terms, may be proved. In
considering whether; r not his proviso applies, the Court shall have regard to the degree
of formality of the document.

Proviso (3) - The existence of any separate oral agreement, constituting, a condition
precedent to the attaching of any obligation under any such contract, grant or disposition
of property, may be proved.

36
Proviso (4) - The existence of any separate oral agreement, constituting, a condition
precedent to the attaching of any obligation under any such contract, grant or disposition
of property, may be proved, except in cases in which such contract, grant or disposition of
property, is by law required to be in writing, or has been registered according to the law
in force for the time being as to the registration of documents.

Proviso (5) - Any usage or custom by which incidents not expressly mentioned in any
contract are usually annexed to contracts of that description, may be proved.

Provided that the annexing of such incident would not be repugnant to, or inconsistent
with, the express terms of the contract.

Proviso (6) - Any fact may be proved which shows in what manner the language of a
document is related to existing facts.

Illustrations

(a) A Policy of insurance is effected on goods "In ships from Calcutta to London".

The goods are shipped in a particular ship which is lost. The fact that the particular ship
was orally excepted from the policy, cannot be proved.

(b) A agrees absolutely in writing to pay B Rs.1,000 on the first March,1873. The fact
that, at the same time an oral agreement was made that the money should not be paid till
the 31st March, cannot be proved.

(c) An estate called "The Rampur Tea Estate" is sold by a deed which contains a map of
the property sold. The fact that land not included in the map had always been regarded as
part of the estate and was meant to pass by the deed, cannot be proved.

(d) A enters into a written contract with B to work certain mines, the property of B, upon
certain terms. A was induced to do so by a misrepresentation of B's as to their value. This
fact may be proved.

37
(e) A institutes a suit against B for the specific performance of a contract, and also prays
that the contract may be reformed as to one of its provisions, as that provision was
inserted in it by mistake. A may prove that such a mistake was made as would by law
entitle him to have the contract reformed.

(f) A orders, goods of B by a letter in which nothing is said as to the time of payment and
accepts the goods on delivery. B sues A for the price. A may show that the goods were
supplied on credit for a term still unexplored.

(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words
"Bought of A horse for Rs.500". B may prove the verbal warranty.

(h) A hires lodgings of B, and gives B a card on which is written - "Rooms, Rs.200 a
month". A may prove a verbal agreement that these terms were to include partial board.

A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an

attorney is made between them. It is silent on the subject of board. A may not prove that
the board was included in the terms verbally.

(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the
receipt and does not send the money. In a suit for the amount A may prove this.

(j) A and B make a contract in writing to take effect upon the happening of a certain
contingency. The writing s left with B, who sues A upon it. A may show the
circumstances under which it was delivered.

SECTION 93._Exclusion of evidence to explain or amend ambiguous document -

When language used in a document is, on its face, ambiguous of defective, evidence may
not be given of facts which would show its meaning or supply its defect.

Illustrations

(a) A agrees, in writing, to sell a horse to B for Rs.1,000 or Rs.1,500.

38
Evidence cannot be given to show which price was to be given.

(b) A deed contains blanks. Evidence cannot be given of facts which would not show how
they were meant to be filled.

SECTION 94._Exclusion of evidence against application of document of existing

facts:-

When language used in a document is plain in itself, and when it applies accurately to
existing facts, evidence may not be given to show that it was not meant to apply to such
facts.

Illustrations

A sells to B, by deed "my estate at Rampur containing 100 bighas" . A has an estate at
Rampur containing 100 bighas. Evidence may not be given of the fact that the estate
meant to be sold was one situated at a different place and of a different size.

SECTION 95._Evidence as to document unmeaning in reference to existing facts:-

When language used in a document is plain in itself, but is unmeaning in reference to

existing facts, evidence may be given to show that it was used in a peculiar sense.

A sells to B, by deed "my house in Calcutta."

A had not house in Calcutta, but it appears that he had a house at Howrah, of which B had
been in possession since the execution of the deed.

These facts may be proved to show that the deed related to the house at Howrah.

SECTION 96._ Evidence as to application of languages which can apply to one only
of several persons - When the facts are such that the language used might have been
meant to apply to any one, and could not have been meant to apply to more than one of
several persons or things evidence may be given of facts which show of those persons or
things it was intended to apply to.

39
Illustrations

(a) A agrees to sell to B, for Rs.1,000 "my white horse". A has two white horse. Evidence
may be given of facts which show which of them was meant.

(b) A agrees to accompany B to Hyderabad. Evidence may be given of facts showing

whether Hyderabad in the Deccan or Hyderabad in the Deccan or Hyderabad in Sind was
meant.

SECTION 97._ Evidence as to application of language to one of two sets of facts to

neither of which the whole correctly applies - When the language used applies partly to
one set of existing facts and, partly to another set of existing facts, but the whole of it
does not apply correctly to either, evidence may be given to show to which of the two it
was meant to apply.

Illustration

A agrees to sell to B "my land to X in the occupation of Y." A has land at X, but not in
occupation of Y, and he has land in the occupation of Y, but it is not at X. Evidence may
be given of facts showing which he meant to sell.

SECTION 98._ Evidence as to meaning of illegible character, etc. - Evidence may be

given to show the meaning of illegible or not commonly intelligible character, of foreign,
obsolete, technical, local or provincial expressions, of abbreviations and of words used in
a peculiar sense.

Illustration

A, a sculptor, agrees to sell to B, "all my moods" A has both models and modeling tools.
Evidence may be given to show which he meant to sell.

SECTION 99._ Who may give evidence of agreement varying terms of document -
Person who are not parties to document, or their representatives in interest may give

40
evidence of any fact tending to show a contemporaneous agreement varying the terms of
the document.

Illustration

A and B make a contract in writing that B shall sell certain cotton, to be paid for on
delivery. At the same time they made an oral agreement that "three months" credit shall
be given to A. This could not be shown as between A and B, but it might be shown by C
if it affected by his interests.

SECTION100._ Saving of provisions of India Succession Act relating to Wills. -

Nothing in this Chapter contained shall be taken to affect any of the provisions of the
Succession Act (X of 1965) as to the construction to Wills.

41
 EXPERT OPINION

EVIDENCE:- Evidence has been defined in the Indian evidence act as follows
‘Evidence’ means & includes.

1. All Statement which the court permits or requires to be made before it by witness
in reation to matters of fact under inquiry such statement are called oral evidence.
2. All documents produced for the inspection of the court’s such documents are
called ‘Documentary evidence’

Thus all facts which are the subject matter of inquiry and are neither admitted nor are
subject to judicial notice must be proved by way of evidence.

Evidence as defined by the evidence act includes:-

1. Oral Evidence
2. Documentary Evidence

Oral Evidence:- All Facts except contents of documents may be proved by oral
evidence which must in all cases be direct. Direct means the evidence of the person
who perceived the facts to which the deposes.

Oral evidence means statements which the court permits or requires

to be made before it by witness in relation to matters of fact under inquiry. But if a
witness is unable to speak, he may give his evidence in any manner in which he can
make it intelligible as by writing on by signs, but such writing must be written and the
signs made in open court. Evidence so given shall be deemed to be oral evidence.
(Sec.119 of Indian evidence act)

Thus, the two broad rules regarding oral evidence are:-

42
(1) All facts except the contents of document may be proved by evidence.
(2) Oral evidence must in all cases be direct.

Documentary Evidence:- Documentary evidence means and includes all documents

produced for the inspection of the court.

A document has been defined in the Indian evidence act

as meaning any matter expressed or describes upon in any substance by means of
letter, figure on marks or by more than one of those means intended to be used or
which may be used for the purpose of recording that matter. Documents produced for
the inspection of the court are called documentary evidence.

Sec 60:- of the evidence act says that the contents of a document must be proved
either by primary evidence or by secondary evidence.

Primary evidence means the document itself produces for the inspection of the court.
The general rule of requiring primary evidence of producing document is commonly
based on the best evidence principle.

Secondary evidence is generally in the form of compared copied, certified copies or

copies made by such mechanical process as in them ensure accuracy. Sec 63of the
evidence act defines the kind of secondary evidence permitted by the act.

Exclusion of oral evidence by documentary evidence. Though act facts except the
contents of document may be proved by oral evidence but the best evidence rule
generally excludes oral evidence where documentary evidence existed, as
documentary evidence is principle is found in sec 91 to 92 of the Indian evidence act,
which make documentary evidence of exclusive evidence of certain matter and
conclusive of other.

Sec 91:- Excludes the oral evidence3 of certain matter which are:-

(1) Required by law to be reduced in the form of a document.

43
(2) As the terms of all contracts, grants are disposition of property where such term
have been reduced to writing by the own sweet will of the parties to such
contract, grant or disposition of property.

Sec 92:-of the Indian evidence act makes oral evidence inadmissible to contradict
very add or subtract from the terms of a contract grant or disposition of property or
any matter required by law to be reduced to the form of a documents. However may
be given to prove the facts as mentioned in the provision (1 to 6) of the sec 92.

44
 CONCLUSION
Document evidence has more value than the oral evidence. Court is bound to accept the
documentary evidence. But oral evidence may take in consideration. It also need to some
corroboration. In brief it is submitted that two types of evidence are given by the parties
oral and documentary evidence.

In courts the value of oral evidence is less than documentary

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

Direct evidence is best oral evidence of fact to be proved. But

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

The source of direct evidence is the person who present in the

court and giving evidence but on the opposite side value of primary evidence is the
highest value. From the above discussion primary evidence has more than oral evidence.

45
 BIBLIOGRAPHY

For research work I have used no. of reference books and various law journals. Those are
as follows:-

BOOK REFERRED:-

1. The Law of Evidence ………._____Mr.Batuk Lal

2. The Principle of law of Evidence..__Dr Avtar Singh

3. The Law of Evidence………._____Mr.Rattan Lal & Dhiraj Lal

4. Basu’s Law of Evidence……_____Mr. P.M Bakshi

LAW JOURUALS REFFERED:-

1. Supreme Court Cases

2. Criminal Law Journal

3. All India Reporters

4. Supreme Court Cases Weekly

46