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Thursday, January 8, 2015

What is Oral evidence? Explain fully with the illustration that oral evidence must be direct under section 60.


This note is related to :
o   Section 59 and 60 of Evidence Act 1872
o   Definition of Oral Evidence
o   Hearsay evidence
o   Evidential value of oral evidence

o   Rules regarding oral evidence
o   Illustration: “oral evidence must in all cases be direct
o   Exceptions of provision 59 & 60.

সাধারন নিয়ম এই যে আদালতে সবসময় “Best Evidence” দিতে হবে। যে সব বিষয়বস্তু কোন document  দ্বারা প্রমান যোগ্য সেই সব বিষয় বস্তু document এর মাধ্যমেই প্রমান করিতে হবে। আর অন্য বিষয় প্রমান করিতে হয় মৌখিক সাক্ষ্য দ্বারা।Documentary evidence থাকার পরোও কেউ যদি তা আদালতে উপস্থিত না করে তবে সাধারনত আনুমান করা হয় যে document টিতে এমন কোন কিছুর উল্ল্যেখ আছে যা সেই ব্যাক্তি গোপন করতে চায়। সাধারনত আদালত এই ধরনের সাক্ষ্য সহজে গ্রহন করে না, এবং এই সব ক্ষেত্রে যখন মৌখিক সাক্ষ্য দেওয়া হয় তখন স্বাভাবিক ভাবেই এর evidential value কমে যায়। কিন্তু documentary evidence কে corroborate কারার সাপেক্ষে দলিলি সাক্ষ্যের সাথে মৌখিক সাক্ষ্য প্রাসঙ্গিক।

আর যে সব বিষয় বস্তু documentary evidence দ্বারা প্রমান যোগ্য না সে সব বিষয়বস্ত মৌখিক সাক্ষ্য অর্থাৎ oral evidence দ্বারা প্রমান করতে হবে। ফৌজদারি মামলায় সাধারনত মৌখিক সাক্ষ্যের উপর বিচার হয় এবং দেওয়ানী মামলায় দলিলি সাক্ষ্য প্রাধান্য পায়।  

At present days the oral evidence is a much less satisfactory medium of proof than documentary evidence. But in criminal cases oral evidence always get prevail in order to in-availability because of in a criminal case the fact happen suddenly.  

Section 59:
“All facts, except the contents of documents, may be proved by oral evidence.”
The meaning of the expression “oral evidence” is given in section 3 along with the definition of term ‘Evidence’. Section 3 states “all statements which the court permits or require to be made before it by witnesses in relation to matters of fact under inquiry; such statements are called oral evidence”.  All facts except the contains of document or electronic may be roved by oral evidence.  

The word ‘Oral’  means by word of mouth; but a witness who is unable to speak may give evidence in any manner in which he can make communicate, e.g., by writing or by signs (section- 119)  in either case it will be regarded as oral evidence.
Exceptions: Section 35 the “relevancy of entry in public record made in performance of duty. “

Maxim & evidentiary value of oral evidence:
Oral evidence should be approached with caution. The court must shift the evidence, separate the grain from the chaff and accept what it finds to be true and reject the rest. The credibility of the witness should be decided on the following important points:
a.       Whether the witness have the means of gaining correct information,
b.      Whether they have any interest in concealing the truth,
c.       Whether they agree in their testimony.
Though a chance witness is not necessarily being a false witness, it proverbially rash to rely upon such evidence. If one is found lying, should he be trusted again? In ordinary terms one would not be inclined to take other statements of such as being above-board. On this count, under common law a doctrine prevails, known as Falsus in Uno, Falsus in Omnibus where under if a portion of the statement given by witness is found to be false, the entire statement of witness is rejected. However the law of evidence does not follow this doctrine and instead requires the judge to ascertain the portion of the evidence which is correct and based thereon decide the matter.

In case Balaka Singh v. State of Punjab, AIR 1975 the Supreme Court observed that “the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up, then the principle will not apply” In all civilized system of jurisprudence there is a presumption against perjury (শপথ ভঙ্গ). The correct rule is to judge the oral evidence with the reference to the conduct of the parties, and the presumptions and the probabilities legitimately arising in the case.

Section 60:
“Oral evidence must, in all cases whatever, be direct.”
Section 60 lays down two rules;
        i.            Oral evidence must direct in all cases; and
      ii.            Hearsay evidence is not relevant and not admissible.
Section 60 aims at rejection of evidence which is not direct. Evidence of a witness as to what was said to him by another person is not admissible, unless that person himself deposes to that fact as a witness. It is true that hearsay evidence excluded  by this section. The word ‘hearsay’ is capable of various meaning and is ambiguous in the extreme. It has at least 3 distinct meaning:
     Firstly: the word ‘hearsay’ may mean whatever a person is heard to say
     Secondly: it may mean whatever a person declares on information given by someone else.
     Thirdly: it may be synonymous with irrelevant.
Stephen says “the word ‘hearsay’ is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else.”

Oral Evidence must be direct:
How oral evidence may be direct has been outlined in section 60 of the Evidence Act. it lays down that the oral evidence would be direct in the following manner:
1.      If the question arise about the fact which can be seen the witness produced must say that- he himself saw it.
Illustration: if the question is whether A  shot B dead, the evidence should be of someone who saw a sorting at B with his own eyes or if the question is  whether A signed a particular deed, the evidence should be witnesses who say they saw A affixing his mark to it.
2.      If the question arise about the fact which can be heard  the witness produced must say that he himself hear it.
Illustration:  if some body’s statement or dying declaration or admission is to be proved, it must be proved by the evidence of a person who heard it himself.

3.      If the evidence is to be given about a fact which can be perceived by any other sense or in any other manner, the witness produced must say that he perceived it himself in that sense or in that manner.
Illustration: if the question is whether a man died of fever or by poisoning, evidence of a person who tested the deceased body in the manner provided in medical treatise would be relevant.

4.      If the evidence is to be given about an opinion or as to the ground on which opinion is to be make, the witness produced must say that he make that opinion and on those grounds.
Illustration: when a question is whether a custom exists, or a certain relationship between persons exists, or whether a particular right of way exist or not, the person who has special knowledge and experience about these should be produced and not the persons who say that they heard such a man say so

According to section 60 only a direct evidence of a fact which can be perceived by sense can be given. To be technical it may be said that hearsay evidence is not admissible. Hearsay evidence is that evidence which causes not from the knowledge of the person who deposes it but through some other person.

Exceptions: there are three cases which may be regarded exceptions to the general rule that oral evidence must be direct.
a.       A dying declaration of a person as to the cause of his death is admissible after the death of the person when the cause of his death comes into question.
b.      A statement made by a person in the ordinary course of business, e.g., an in a book of account relevant when the person making it is dead, or out of the reach of the court, or cannot be called without unreasonable delay on expense.
c.       A statement made by a person who is dead or out of reach is relevant when such statement is against the proprietary interest of the person making it.
Exceptions of provisions 59 and 60: section 6, 8, 13, 14 and 32 to 35 must be read with this two section for better understand. 

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