Joji George Koduvath, Kottayam.
PART I
Introduction
According to the Indian Evidence Act (Sec. 3) ‘Evidence’ means and includes all statements made before the courts by witnesses, and all documents including electronic records produced in the Court. The ‘best evidence rule’ is laid down, in-particular, in Sec. 60 and 61 of the Evidence Act (oral evidence must be direct; and contents of documents are to be proved either by primary or by secondary evidence).
Oral Evidence must be Direct
Sec. 60 of the Evidence Act directs that the oral evidence must 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.
Documents must be Proved by Primary Evidence
Sec. 61 of the Evidence Act directs that the contents of documents may be proved either by primary or by secondary evidence. Best evidence rule insists for primary evidence when original documents exists; and Sec. 64 stipulates that documents must be proved by primary evidence except in the cases mentioned in Sec.65. Sec. 65 clause (a) to (g) delineates the cases in which secondary evidence relating to documents may be given.
Best-Evidence Rule
Indian Evidence Act lays down the following principles of ‘Rule of Best-Evidence’:
| No. | Propositions | Sec. in Evd. Act |
| 1 | Best available evidence must be produced. If not, adverse presumption will be taken. | 114 (g) |
| 2 | Oral evidence must be direct. Hearsay evidence is accepted in rare instances (that falls under Sec. 6 of the Evid. Act). | 60 |
| 3 | Documents must be proved by Primary Evidence. Contents of documents and electronic records are not allowed to be proved by oral evidence. Secondary evidence will be allowed only when it is so permitted. | 64 & 65; 22, 22A & 144; |
| 4 | To prove the terms of a contract, or of a grant, 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, document itself, or secondary evidence, must be produced. | 91 |
| 5 | 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 terms. | 92 |
| 6 | Sec. 93 and 94 speaks as to exclusion of evidence. | 93 & 94 |
| 7 | Sec. 94 to 99 lays down the circumstances in which evidence can be given with respect to documents. | 94 to 99 |
| 8 | Circumstantial and Presumptive evidence can be resorted to in proper cases. | 114 |
| 9 | Substantive evidence that requires corroboration must be corroborated. | 157 |
