Oral evidence under section 59 of Indian Evidence Act

Oral Evidence:

Chapter IV deals with oral evidence. There are two sections in this chapter namely sections 59 & 60.

Primary oral evidence is the evidence that has been personally heard or seen or gathered by the senses of a witness. It is called direct evidence as defined by Section 60 of the Indian Evidence Act. 

Oral is different from the word „Verbal‟. 

In the case of Queen Empress v. Abdullah (27 February 1885), Hon’ble Chief Justice of Allahabad  discussed the difference between Verbal and Oral, Verbal means by words. It is not necessary that the words should be spoken. If the term used in the section were oral, it might be that the statement must be confined to words spoken by the mouth. But the meaning of Verbal is something wider.

Section 59 Indian Evidence Act:

Proof of Facts by Oral Evidence:

All facts, except the contents of documents or electronic records, may be proved by oral evidence.

Section 59 contents two principles –

1. All facts, except the contents of documents or electronic records, may be proved by oral evidence.
2. Oral evidence must be direct rather than hearsay evidence.

It is basic rule of evidence that where written documents exist, they shall be produced as being the best evidence of their own contents. Oral evidence includes all statements which the court, permits or requires to be made before it by witnesses in relation to matters of fact under inquiry. All facts except the contents of documents may be proved by oral evidence. Contents of documents may be proved by oral evidence under certain circumstances i.e, When evidence of their contents is admissible as secondary evidence.

Section 60 IEA:

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.

In Vinod Kumar Bhutani v. State Thr. CBI on 28 May, 2013 the Court observed “in determining the admissibility of evidence the production of the best evidence should be exact” Sections 60, 64 and 91 are founded on this rule. Since witness is called an ‘eye-witness’ or ‘a witness of fact’ who has the first-hand knowledge in the sense that he perceived the fact by any of his five sources.”

The cardinal principle is that the best evidence must be given before the court. If any person is before court as a witness, should make statement about the facts of which he is having personal knowledge and experience.  According Section 60 of the Act, oral evidence must be direct or positive.

The word “must” in the section indicates the exclusion of indirect evidences including “hearsay” or derivative evidence. Where a witness gives evidence that he received information from other person and that person does not say about it, such evidence would be inadmissible being hearsay evidence.

The section, provides four methods for proving oral evidence. The evidence must be of that person who himself witnessed the happening of facts to whom he testifies.

First proviso provides for production of treatise containing expert’s opinion offered for sale, if the author of the treatise is dead or cannot found etc. (Section 32). The treatise required to be admissible must be offered for sale and the burden of proving the particular treatise is on the person who desires to give such treatise in evidence. The opinion by a living authority in a treatise as to usages and tenets of a body of men or family is not admissible under this section. Similarly, opinion of experts as expressed in treatises of person who is dead can be treated as evidence in proper case. But, using of such treatise as evidence should be made with caution when the Supreme Court explained that “every article published or a book written cannot ipso facto be regarded as conclusive or worthy of acceptance.

Second proviso requires the production of material thing (Section 45) for inspection if oral evidence refers to the existence on condition of any material thing. Secondary evidence of the contents of written document is permitted under this proviso when production of original is impracticable

Oral evidence must be consistent within itself in the sense that there are no self-contradictions and it has to be corroborate by other evidence.

Hearsay Evidence:

Hearsay evidence is that evidence which is not based upon personal vision or hearing, but based on the learning of the news through the medium of a third person: For e.g. If A sees the commission of the murder and given evidence in a court, then it is direct evidence and it is valid. If A says something to B and if B comes and given evidence in a court, then it is hearsay evidence. Hearsay evidence is not admissible.

Reason of exclusion of Hearsay Evidence- The reasons why hearsay evidence is not received as relevant evidence are:

• The person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility, i.e., every witness must give his testimony, under such circumstances, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying “I do not know, but so and so told me”,
• Truth is diluted and diminished with each repetition and if permitted, gives ample scope for playing fraud by saying “someone told me that………..”.
• It would be attaching importance to false rumour flying from one foul lip to another. Thus the statement of witnesses based on information received from others is inadmissible”.

Exception to Hearsay Rule:

According to section 59 „Oral Evidence‟ must be direct. Hearsay evidence is not direct evidence. So the rule is that „Hearsay Evidence‟ is not acceptable. There are certain exceptions to this rule.

There are following exceptions of this –

• Res gestae
• Conspiracy as defined in section 10 of Indian evidence act 
• Admission & Confession
• Dying Declaration
• Evidence in the former proceeding
• Opinion published in treatises 7. Sections 32, 33, 34 & 35³
• Res gestae is an exception of „Hearsay Evidence‟

The rule is that hearsay evidence is not acceptable. Oral evidence must be direct. But Res gestae is the exception of „Hearsay Evidence‟.

Case Laws:

Sukhar vs. State of U.P.⁴(1999)

In this  case the Supreme Court said that Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible.

Javed Alam v. State of Chhattisgarh and Anr. 2009
Section 6 of the Evidence Act is an exception to the rule of evidence that hearsay evidence is not admissible.

Bhairon Singh v. State of Madhya Pradesh 2009

Supreme Court observed, “The rule embodied in Section 6 is usually known as the rule of res gestae.

State (N.C.T. Of Delhi) vs Navjot Sandhu@ Afsan Guru 2005

Section 10 of Evidence act is based on the principle of agency operating between the parties to the conspiracy inter se and it is an exception to the rule against hearsay testimony. If the conditions laid down therein are satisfied, the act is done or statement made by one is admissible against the co-conspirators.

In Sahoo v. State of U.P.  Supreme Court said that Admissions and confessions are exceptions to the hearsay rule.

Khushal Rao v. State of Bombay 1957

Dying Declaration : Section 32 has been made by the Legislature, advisedly, as a matter of sheer necessity -by way of an exception to the general rule that hearsay is no evidence and that evidence, which has not been tested by cross-examination, is not admissible. Here there is neither cross-examination nor oath.

Ram Bihari Yadav v. State of Bihar (1998)

Hon‟ble Justice Syed Shah Quadri said, “Though a dying declaration is an indirect evidence being a specie of hearsay, yet it is an exception to the rule against admissibility of hearsay evidence”.

Sharad Birdhichand Sarda v. State of Maharashtra (17 July, 1984)

Section 32 is an exception to the rule of hearsay

Sudhakar & Anr. v. State of Maharashtra (July 17, 2000)

Section 32 is an exception of the rule of hearsay

Evidence in the former proceeding Section 33- Relevancy of certain evidence for proving, in a subsequent proceeding, the truth of facts

therein stated.

 Opinion published in treatises

Opinion published in treaties maybe the exception of hearsay evidence if all the conditions are being fulfilled.

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

It is therefore, said that under certain circumstances the hearsay evidence is held admissible, particularly when it “relates to the question of the credibility of witness.” The evidence of witness who heard the calling her name when her father was assaulting her mother is admissible.

Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr. (S.C.  2011)

Hon‟ble Justice Panchal observed, “

• Meaning of Hearsay -The term „hearsay‟ is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person.
• Hearsay evidence‟ under IEA– The phrase „hearsay evidence‟ is not used in the Evidence Act because it is inaccurate and vague.
• Hearsay in a different sense -The word „hearsay‟ is used in various senses. 
  A. Sometimes it means whatever a person is heard to say.
  B. Sometimes it means whatever a person declares on the information given by someone else, and
  C. Sometimes it is treated as nearly synonymous with irrelevant.

The sayings and doings of the third person are, as a rule, irrelevant, so that no proof of them can be admitted. Every act done or spoken which is relevant on any ground must be proved by someone who saw it with his own eyes and heard it with his own ears”.