THE LAW OF EVIDENCE

TOPIC: Exclusion of Oral Evidence by

Documentary Evidence

AN ASSIGNMENT
SUBMITTED TO THE

UNIVERSITY INSTITUTE OF LAW

PANJAB UNIVERSITY REGIONAL CENTRE, LUDHIANA

B.A. LL.B.
2020-2021

SUPERVISED BY: SUBMITTED BY:

Dr. Sunil Mittal Narsingh
Roll no.: 20

UNIVERSITY INSTITUTE OF LAW, PANJAB UNIVERSITY,

REGIONAL CENTRE, LUDHIANA
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 ACKNOWLEDGMENT

I wish to express my heartfelt gratitude to Dr. Sunil Mittal, my

mentor and supervisor for this term paper. It has been under her
constant and sincere guidance, auspices and motivation that I have
been able to get through with this term paper. She have lighted the
path for me with her expertise and attention throughout the course
of this term paper and it would not have been possible to have come
through with the research if not for her persistent counseling and
persuasion. I feel highly indebted to there concern and involvement
in the realization of this study.

I would also like to thank Prof. (Mr.) Ravi Inder Singh for being the
cornerstone of support and enlightenment for as long as I have been
concerned with the making of this term paper.
I would like to thank the staff of the library of University Institute
of Laws, Panjab University Regional Centre, Ludhiana for
providing me all the relevant books and material for the completion
of my assignment.

Lastly, I would take an opportunity to thank family, friends and

associates for putting up and sticking up from end to end of the
progression of this research.

Adesh Partap

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 TABLE OF CONTENTS

S.NO. TOPIC PAGE NO.

1. Acknowledgment 2
2. Lists of Abbreviations 5
3. Introduction 6

4. Meaning 7

5. Nature 7

6. SECTION 372 8

7. SECTION 373 8

8. SECTION 374 8

9. SECTION 375 9

10. SECTION 376 10

11. SECTION 377 11

12. SECTION 378 11

13. SECTION 379 12

19. Conclusion 15

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 LIST OF ABBREVIATIONS

1. AIR – All India Reporter

2. Anr. – Another
3. Cr.P.C. – Criminal Procedure Code
4. Crl. - Criminal
5. IPC – Indian Penal Code
6. No. – Number
7. Ors. – Others
8. S. – Section
9. SC – Supreme Court
10. SCC – Supreme Court Cases
11. Vs./V. – Versus
12. U/S – Under Section

LIST OF CASES

1. New Delhi v. M/s. C-Net Communication India Pvt. Ltd

2. Tambura Sahai vs. Jhunjhunwala
3. Keshav Lal vs. Lal Bhai Tea Mills Ltd
4. Balu Sonba Shinde v. Maharashtra
5. Kallu vs. Uttar Pradesh
6. Sivrajbhan v. Harchandgir

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INTRODUCTION
Evidence includes everything used to determine or prove the
authenticity of an assertion. Providing or obtaining evidence refers to
the process of using (a) what is assumed to be true or (b) what is
proven by evidence to prove the facts asserted.

The term “evidence” in its original sense indicates a state of

obviousness, that is, simple or obvious. But it applies to things that
tend to provide or produce evidence.

In English law, the term “evidence” sometimes refers to what the

witnesses in the court said and displayed.

At other times, this means that the facts have been proven by these
words and are considered the basis for the survival of the fittest that
has not been proven. Similarly, it is sometimes used as the meaning of
certain facts related to the matter under investigation. However, in the
Act, the word has a clearer meaning.

TYPES OF EVIDENCE
Oral Evidence
Section 60 of the Indian Evidence Act provides for the recording of
oral evidence. All statements that the court allows or wants witnesses
to make in his presence about the truth are called oral evidence. The
oral evidence is the evidence that the witness personally saw or heard.
The oral evidence must always be direct or affirmative.

Documentary evidence
Section 3 of the Indian Evidence Act stipulates that all documents
presented in the court for inspection are called documentary evidence.
In this case, the documentary evidence will show the actual attitude of
the parties, and their awareness of customs is more important than any
oral evidence.

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Primary Evidence
Section 62 of The Indian Evidence Act stipulates that primary
evidence is the most important type of evidence and is also a
document produced by the court itself. It is this kind of proof that can
provide crucial hints in the disputed facts under any possible
circumstances, and the original documents to be provided before the
court to check.

Secondary evidence
Section 63 says that Secondary evidence is considered inferior
evidence. It means that even after supporting evidence is provided, the
main evidence needs to be provided to fill the gap. Such evidence can
be provided without the main evidence, but the notice for it should be
issued. However, if the secondary evidence is accepted without
objection within a reasonable time, then the parties have no right to
assert that the view was proved with the help of secondary evidence
rather than primary evidence.

Hearsay evidence
Hearsay evidence is weak evidence. It was just the witness testimony
that he reported, and he had not seen it. Such evidence is the one
which the witness neither saw or heard personally, nor was perceived
by his own senses, but by some third party.

Judicial evidence
Judicial evidence refers to the evidence received by the court or
evidence to prove the facts. This evidence includes: The confession
made by the defendant in the court is also included in the judicial
evidence. Witness statements, documentary evidence and facts for
court review are also judicial evidence.

Non-judicial evidence
Non-judicial evidence mainly refers to the confession made by the
defendant outside the court and in the presence of anyone. If such
evidence is proved in the court, it takes the form of judicial evidence.

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Real evidence
Real evidence is also called material evidence. The court may
examine this evidence on its own. It is presented to the court by
checking the real thing or the real thing. Such evidence does not come
from documents or witnesses. However, such evidence requires the
support of witnesses, preferably expert witnesses who can explain the
importance of the evidence.

Direct evidence
Evidence can be direct or indirect. Direct evidence is very important
evidence for the decision. Direct evidence is considered necessary
evidence for deciding the matter in the event. It directly proves or
denies the facts. In such evidence, a specific fact is directly
established without providing a reason related to that fact. It is almost
unnecessary to point out the explanation provided because the witness
’s evidence in the court is direct evidence, not the testimony of the
guilty fact.

Circumstantial and Indirect evidence

The circumstantial and indirect evidence refers to evidence that
proves the facts involved by providing other facts (i.e. indirect facts)
and proving their relevance. By linking a series of other facts to the
facts discussed, a satisfactory conclusion can be drawn from this
evidence.

Electronic evidence
This evidence can also be used as an electronic record provided by the
court. Even in criminal cases, evidence can be provided through
electronic records which can include data, image, sound, etc. This will
include a video conference or a video conference.

Tape Recording evidence

The tape itself is direct evidence. What the person said can be
recorded and can appear in court. Any previous statement of a person
can be recorded. If the person changes his statement in the court in the
end, the recorded statement can be submitted to the court to verify the
authenticity of the verifier. The audiotape evidence is more authentic
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than the written evidence.

DIFFERENCE BETWEEN ORAL AND

DOCUMENTARY EVIDENCE
Oral evidence means and includes
Documentary evidence means
all statements which are made by
producing a document before the court
a witness in the court.
of law and inspection is done by the
court in order to know the facts.

It is a statement by a witness. It is a statement of documents.

In oral evidence, the witness tells In documentary evidence, the facts are
about the facts by speaking or told and it is recorded in writing.
with gestures.

Oral evidence is provided under Documentary evidence is provided

Section 59 and 60 of Indian under Section 61 to 66 of the Indian
Evidence Act, 1872. Evidence Act.

Section 59 of the evidence says

Primary evidence is considered as the
that it considers all facts as oral
evidence which is given in several parts
evidence except electronic
like duplicate copies or as counterpart
evidence and documentary
like those which is signed by the parties
evidence. Section 60 says that oral
or photocopy of the document whereas,
evidence must be direct.
Secondary evidence contains certified
copies, that have been made by the same
mechanical process and also contain
counterparts of the document against
the parties.

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EXCLUSION OF ORAL EVIDENCE
FROM DOCUMENTARY EVIDENCE:
According to Section 91 of Indian Evidence Act: When the terms of a
contract, grant or any other property disposal are reduced to the form
of documents, and in all cases, the law requires the reduction of
anything except the document itself or in the case of secondary
evidence In addition to the secondary evidence, for any form of
contract, gift or other property or the provisions of such matters, no
evidence shall be provided as evidence in the form of this document is
acceptable according to the provisions contained above.

Exception 1.- When the law requires the appointment of a public

official in writing and shows that any particular person has already
served as the public official, there is no need to prove the appointment
in writing.

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

the probate.

Section 92 of the Indian Evidence Act: when any such contract, gift or
other property clause is proved according to the last section, or any
matter required by law to be simplified in the form of a document,
The parties or their interested representatives shall accept any verbal
agreement or statement of evidence in order to check conflict with the
terms of the term, increase or decrease:

This section excludes any evidence of oral agreement or statement,

when the contract, the terms of granting or disposing of property, or
any matter required by law in writing has been proved in accordance
with the provisions of Section 91 to conflict with, change, When
supplementing, it may be subtracted from its terms. The principle
stipulates that when the terms of any such document have been
proved by the primary or secondary evidence of the document, no oral
agreement or statement of evidence shall be accepted.

EXCEPTIONS
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1. The validity of the document-Section 92, the first provision
states that evidence can be provided to prove any relevant facts
that would invalidate the document in question or give the party
the right to obtain any decree related to the document or
command, in case the validity of the document may be
questioned. 

2. Matters for keeping the document silent -The second

conditional condition provides that evidence of oral agreement
can be provided for matters where the document remains silent.
There are two conditions for allowing such evidence: First, the
verbal agreement should not conflict with the provisions in the
document. Second, when allowing oral agreement evidence, the
court should consider the formality of the document.

3. Condition precedents-The third condition stipulates that it can

prove that there is any separate oral agreement, which
constitutes a condition precedent for attaching any obligations to
the document. If the party liable under the document has
indicated payment under the document, he cannot later defend
the oral precedent for liability.

4. Recession or modification-according to the provisions of

Section 4, withdrawing the document means putting it on hold,
and modifying means canceling or modifying some of them; this
verbal agreement can prove. However, this is subject to a
condition stipulated by the additional condition itself, that is, the
law requires the contract to be in writing, or the contract has
been registered in accordance with the law related to the
registration of the document, which proves that it cannot agree
to any oral agreement to resign or modify its terms.

5. Usage and customs-Therefore, Section 5 stipulates that there

can be a certain usage or habit of attaching certain types of
contracts to incidents. However, this is subject to the following
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 conditions: the usage or habit of providing proof should not
conflict with the explicit terms of the document. Usage should
not conflict with or inconsistent with the document, otherwise it
will invalidate the document.

6. The relationship of the language of the facts- The contracts

itself stipulates the facts on which the document is based,
sometimes not. Oral evidence can also be used to illustrate the
nature of the document. This section does not limit the court’s
power to disclose the true meaning of the document based on all
relevant circumstances surrounding it.

CASES
New Delhi v. M/s. C-Net Communication India Pvt.
Ltd1
In this case, the Supreme Court said that “digital electronics” will
mean that the decoder is multiple outputs, input and logic circuit,
which turns the coded input into a coded output. In addition, it is
considered that a decoder is a small tool, contrary to the encoder, the
encoding is fixed so that the first data can be recovered.

Tambura Sahai vs. Jhunjhunwala2

The Supreme Court ruled that the deed of adoption was not a contract
under section 91 of Indian Evidence Act , therefore, the fact of
adoption could be proved by any evidence other than the deed. In
addition, the principle of excluding all other evidence only applies to
the clauses that are exactly mentioned in the contract. In addition to
the presentation of documents, any other evidence can also prove this.
Both oral and documentary evidence are independently acceptable.
The advantage is that there is no requirement in the bill that
documentary evidence should prevail over oral evidence.

Keshav Lal vs. Lal Bhai Tea Mills Ltd3

1
AIR 2007 SC (Supp) 957.
2
AIR 1967 SC106
3
1958 AIR 512 , 1959 SCR213
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The court ruled that if the document did not mention any price at all,
then section 92 of this document would allow oral evidence saying
that the document was silent but not when the document mentions
ambiguous prices

Balu Sonba Shinde v. Maharashtra4

The Supreme Court held that the testimony statement of the witnesses
was not hostile to the facts. The part of the evidence in favor of the
parties can be used, but the court should be extremely cautious when
accepting such evidence.

Kallu vs. Uttar Pradesh5

In this case the defendant was murdered by shooting a deceased with
a domestic pistol. A bullet was found next to the deceased’s bed. The
defendant was arrested 14 miles from the village where the incident
occurred. He took out a pistol from his house, which showed that he
could have known it existed there. Gun experts proved that the gun
was the same as the gun, and the deceased was killed. In convicting
the defendant, the Supreme Court ruled: “Circumstantial evidence
indicates that the death of the deceased was caused by the defendant
and not anyone else.”

Sivrajbhan v. Harchandgir6
In this case, it was stated that the word evidence in connection with
Law includes all agreements except which prove or disprove any fact
or matter whose truthfulness is presented for Judicial Investigation. In
other words, when the parties involved don’t get the opportunity to
cross-examine the statements to ascertain the truth then such a
statement does not amount to evidence. Thus, electronic evidence can
be considered as a valid form of evidence.

4
2003 SCC (Crl.) 112
5
AIR 1958 SC 180
6
AIR 1954 SC 564
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CONCLUSION:
The value of oral evidence is lower than that of documentary
evidence. The court will inevitably accept the documentary proof. But
oral evidence can be considered. This also requires some supporting
evidence. Briefly stated, the parties provided two types of evidence,
verbal and written. In court, the value of documentary evidence is
higher than that of documentary evidence. Because the law always
needs the best evidence. Oral evidence is evidence limited to verbal
expression. The evidence on the other side is two types of
documentary evidence. The original evidence is more reliable, and the
best evidence is considered by the court. In the absence of primary
evidence, secondary evidence is provided to witnesses based on his
own point of view. The primary document as the main evidence is
submitted to the court for inspection. Direct evidence is the best
evidence to prove the facts. But in some cases, the main evidence is
the best evidence in all cases. There is documentary evidence that
excludes and excludes oral evidence, and the oral evidence shall
prevail when the evidence is submitted as a court witness. Those who
provide direct evidence can cross-check to test their accuracy.

Therefore, the document was written as written evidence. Sections 91

and 92 exempt written evidence from oral evidence. In some evidence
of criminal transactions called written testimony in section 91, oral
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evidence is more certain and reliable than oral evidence.

BIBLIOGRAPHY

BOOKS:
1. Batuk Lal, The Law of Evidence, 23rd Ed. Reprint 2020,
Central Law Agency

STATUTES:
1. Code of Criminal Procedure,1973
2. The Indian Evidence Act, 1872
3. Indian Penal Code, 1860

WEBLIOGRAPHY:
1. https://www.indianleagalsolution.com/
2. https://indianjudiciarynotes.com/
3. https://lawteacher.net/
4. https://blog.ipleaders.in/
5. https://indiankanoon.org/
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6. https://www.scconline.com/

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