Report No. 69
Oral Evidence-general Discussion
So far, the sections of the Act, which we have discussed, dealt with facts which can be proved, facts which cannot be proved, and facts which need not be proved. The mode of proof of facts which can be proved is now dealt with in the Act, first, in relation to oral evidence, and next, in relation to documentary evidence, followed by provisions relating to cases where documentary evidence is supposed to exclude oral evidence.
24.2. Section 59-"Oral evidence".-
As to oral evidence, section 59 provides that all facts, except the contents of documents, may be proved by oral evidence. Of course, "oral evidence" does not necessarily mean evidence orally given by word of 'mouth'. Although the expression "oral evidence" is defined in the Act in terms of "statements1, a person unable to speak because of permanent or temporary disability can give evidence in writing or by signs. Any method of communicating thoughts which the circumstances of the case or the physical condition of the witness demand, may, in the discretion of the Court, be employed.
Thus, a deaf mute may testify by signs, by writing, or through an interpreter. So, where a dying woman, conscious, but without power of articulation, was asked whether the defendant was her assailant, and if so, to squeeze the hand of the questioner, the question and the fact of her affirmative pressure were held to be admissible in evidence.2 The statement in this case, no doubt, was not "evidence" given in Court; but the principle is the same. In fact, the Act has expressly provided for giving evidence in Court by signs etc.,3 and evidence so given is deemed to be oral evidence.
1. Section 3.
2. R. v. Adbullah, 1885 ILR 7 All 385 (FB).
3. Section 119.
24.3. Earlier cases.-
The proposition enacted in section 59-namely, all facts, except the contents of documents, may be proved by oral evidence is a proposition of law which is obvious. But it appears that in several cases anterior to the passing of the Act, it was debated, and the matter had to be judicially considered. It would be useful to refer to a few cases.1
Thus, oral evidence, if worthy of credit, is sufficient without documentary evidence, to prove a fact or title;2 such as, boundaries;3 the existence of an agreement, e.g., a farming lease;4 the quantity of the defendant's land and the amount of its rent;5 the fact of possession;6 a prescriptive title;7and pedigree;8 an adjustmentof accounts9. Discharge of an obligation created by writing can also be proved by oral evidence.10
This is so11 even though there be a written receipt which is not produced. In short (as the section now declares), all facts, except the contents of documents, can be proved by oral evidence.
1. The old cases have been taken from Woodroffe.
2. Ram v. Akima, (1867) 9 WR 366.
3. Ranee Surut v. Rajender, (1868) 9 WR 125.
4. Goluk v. Nund, (1967) 2 WR 984.
5. Denoo v. Doorga, (1872) 12 WR 348.
6. (a) Sheo v. Goodur, (1867) 8 WR 348;
(b) Thakoor v. Syud, (1867) 8 WR 341;
(c) Gobind v. Anund, (1866) 5 WR Cr 79.
7. Meharban v. Muhbooh, (1867) 7 WR 462 (Cal).
8. Mohidin v. Muhammad, (1862) 1 Mad HCR 92.
9. (a) Kampilikaribasayappa v. Somasumuddiram, (1883) 1 Mad HCR 183; (b) Purnima v. Nittanand, 1863 BLR, Sip; Vol., FB 3 (Cal).
10. (a) Ramanadamisar v. Rama, (1865) 2 Mad HCR 412; (b) Gunman v. Sorabji, (1863) 1 Born HCR 11.
11. Dalip v. Durga, 1877 ILR 1 All 442.
24.4. Criticism of section 59 as to proof of documents.-
Even the exception regarding "contents of documents" calls for a comment. The section is not very happily worded,1 in so far as it implies a mandatory rule that the contents of documents can never be proved by oral evidence. In certain circumstances, the contents of documents may be proved by oral evidence, that is to say, when such evidence of their contents is admissible as secondary evidence, by a specific provision.2 However, this is a minor point, not calling for amendment.
1. See criticism by Woodroffe and by Ratanlal.
2. See section 63, clause (5).
24.5. Change not needed.- In the result, section 59 may be left as it is.