Oral and Documentary Evidence; Burden of Proof notes — Unit 4

Oral evidence means all statements which the Court permits or requires to be made before it by witnesses.

⇒Section 59: Proof of Facts

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

⇒Section 60: Oral Evidence must be Direct

This is the absolute rule against hearsay. If oral evidence is given, it must be direct:

• 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, it must be the evidence of a witness who says he perceived it by that sense.

You cannot bring C to court to say "B told me that he saw A steal the car." B must come to court.

The contents of documents may be proved either by Primary or by Secondary evidence (Section 61).

⇒Primary Evidence (Section 62)

Primary evidence means the document itself produced for the inspection of the Court. It is the best evidence. (e.g., The original signed contract).

⇒Secondary Evidence (Section 63)

Secondary evidence is inferior evidence. It includes:

• Certified copies.
• Copies made from the original by mechanical processes (photocopies).
• Copies compared with the original.
• Oral accounts of the contents of a document given by some person who has actually seen it.

General Rule (Sec 64): Documents must be proved by primary evidence EXCEPT in the cases mentioned in Section 65.

You cannot just bring a photocopy to court. You must first prove to the judge why you cannot produce the original.

⇒Conditions for admitting Secondary Evidence:

• When the original is in the possession or power of the person against whom the document is sought to be proved (and they refuse to produce it after notice).
• When the existence, condition, or contents of the original have been admitted in writing by the opponent.
• When the original has been destroyed or lost, or when the party cannot, for any other reason not arising from his own default, produce it in reasonable time.
• When the original is of such a nature as not to be easily movable (e.g., writing on a brick wall or a monument).
• When the original is a public document (a certified copy is enough).

When parties take the trouble to write down their contract in a formal document, the law respects that document over human memory.

⇒Section 91 (Best Evidence Rule)

When the terms of a contract, grant, or disposition of property have been reduced to the form of a document... no evidence shall be given in proof of the terms of such contract, except the document itself (or secondary evidence if Sec 65 applies).

(If you signed a rent agreement, you cannot bring witnesses to verbally describe what the rent was. You must show the agreement).

⇒Section 92 (Parol Evidence Rule)

Once the document is produced and proved under Section 91, no oral evidence shall be admitted to contradict, vary, add to, or subtract from its terms.

(If the written contract says rent is ₹10,000, you cannot bring a witness to say "Actually, we verbally agreed it would be ₹8,000").

In any court case, the judge sits neutral. It is up to the parties to prove their claims. The "Burden of Proof" (Onus Probandi) dictates who must do the proving.

⇒Section 101: Burden of Proof

Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

(If A wants the court to punish B for murder, A must prove B committed murder. The burden rests on A).

⇒Section 102: On whom burden of proof lies

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

(If A sues B for a loan, and neither A nor B produces any evidence or says a word, the court will dismiss the case against A. Therefore, the initial burden is on A).

A critical concept: The burden of proof under Section 101 (the burden to establish the overall case) never shifts. It always stays on the prosecution/plaintiff.

However, the onus of adducing evidence (the burden of going forward) constantly shifts like a pendulum during the trial.

⇒Example of Shifting Onus:

• Step 1: Prosecution proves A killed B. (Burden discharged).
• Step 2: A claims he killed B in self-defense. (Section 105: The burden to prove an exception is on the accused. The onus shifts to A).
• Step 3: A proves he was attacked by B with a sword. (Burden discharged).
• Step 4: Prosecution claims A shot B 15 times while B was on the ground, exceeding self-defense. (Onus shifts back to prosecution).

Ultimately, when all evidence is in, the final burden to prove the case beyond reasonable doubt remains on the prosecution.

⇒Burden as to particular fact (Sec 103)

The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. (e.g., A prosecutes B for theft. B claims he was in London. The burden of proving the alibi is on B).

⇒Burden of proving Exception (Sec 105)

In criminal cases, if the accused claims the benefit of any General Exception in the IPC (like insanity, self-defense, or sudden provocation), the burden of proving that exception is on the accused.

⇒Facts Especially Within Knowledge (Sec 106)

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

(Example: A is charged with traveling on a train without a ticket. The burden of proving that he HAD a ticket is on A, because only he knows where he put it).

Sometimes, the law helps the party with the burden of proof by creating 'Presumptions'—assuming a fact to be true until proven otherwise.

⇒Section 112: Legitimacy of Child

The fact that any person was born during the continuance of a valid marriage, or within 280 days after its dissolution, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties had no access to each other.

⇒Section 113B: Dowry Death

If it is shown that a woman died within 7 years of marriage, and soon before her death she was subjected to cruelty by her husband for dowry, the court shall presume that the husband caused the dowry death.

⇒Section 114A: Rape Cases

In a prosecution for rape, where sexual intercourse is proved and the woman states in her evidence that she did not consent, the court shall presume that she did not consent. (The burden shifts entirely to the accused to prove consent).

⇒Summary of Master Concepts

• Oral Evidence (Sec 60): Must always be direct. No hearsay.
• Primary vs Secondary Evidence (Sec 61-65): Original document is primary. Copies are secondary (allowed only if original is lost, destroyed, or with opponent).
• Exclusion Rules (Sec 91-92): Written contracts override oral evidence regarding their terms.
• Burden of Proof (Sec 101): Lies on the person asserting the claim.
• Specific Burden (Sec 105/106): Accused must prove exceptions (insanity/self-defense) and facts especially in their knowledge (ticket).

⇒University Exam Tips for this Unit (Premium Advice)

• Sections 91 & 92: A very common long question. Explain that when parties intentionally reduce a contract to writing, oral evidence altering it is barred because written words are more reliable than human memory.
• Section 101 vs 102: Master the distinction. The burden of proof (establishing the whole case) NEVER shifts. The onus of proof (adducing evidence for a specific point) shifts continuously.
• Section 114A: Highlight this as a major progressive shift in burden of proof in crimes against women.