BEST EVIDENCE RULE- AN OVERVIEW OF ADMISSIBILITY OF PROOF UNDER INDIAN EVIDENCE ACT, 1872

BEST EVIDENCE RULE: A true nightmare under procedural law is about provisions under the Indian Evidence Act, 1872 regarding oral and documentary evidence and interlinked sections. Even though the number of provisions is less yet are a bit complicated to understand. However, this is quite easy if you read provisions together and in a connected way. Here is help for you aspirants to connect the provisions and read the provisions as a whole and not exclusive of others. These provisions are very important for preliminary as well as main examination. It is necessary for you to have comprehensive knowledge for better performance in judicial services examination of any state and stand a better chance of selection.

Part II of the Indian Evidence Act, 1872 provides for proof and is frightening for its ambiguous terminology but becomes at your fingertips once you start reading in the way being discussed now. The essential principle of evidence law is that the evidence must be confined to matter in issue and best evidence must be given. The best evidence rule is not an unknown expression for a law student however it is important to organize the content in a comprehensive way. It is a cardinal rule in the law of evidence that the best evidence shall be brought before the court and sections 60, 64, and 92 of the Indian Evidence Act 1872 are based on this rule.  The law does not demand the greatest possible evidence but it attempts to prevent the introduction of inferior evidence when better evidence is possible because in such cases, justice remains doubtful. The Best Evidence Rule is a mechanism to prevent injustice and fraud. 

There are three major rules under this expression which are as follows:

1. The first rule is provided under Section 60 of the Indian Evidence Act 1872 which states that ‘Oral evidence must, in all cases whatever, 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’. On proof of facts by oral evidence, Section 59 of the Indian Evidence Act 1872 states that all facts, except the contents of documents or electronic records, may be proved by oral evidence. Thus, oral evidence must be direct and not hearsay. Oral evidence is looked at with suspicion only if it contradicts the previous statements by the same person. Hearsay means whatever a person declares on the information given by someone else. Any statement made by persons not called as witnesses is not admissible in evidence. However, this is subject to certain exceptions for example Section 32(1), Section 6 of the Indian Evidence Act 1872, etc. Section 32(1) of the Indian Evidence Act 1872 provides for relevancy of dying declaration and states that ‘When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under the expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question’. Another exception is the previous deposition of a witness who is dead or cannot be called as a witness as provided under Section 33 of the Indian Evidence Act 1872. One exception is found under Illustration (a) to Section 6 of the Indian Evidence Act 1872 which states that ‘A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact’. Section 34 of the Indian Evidence Act 1872 providing for entries in books of account kept in the course of business is also an exception to the rule of exclusion of hearsay evidence.  These are exceptions to the rule that oral evidence must be direct. 
2. The Second rule is provided under Section 64 of the Indian Evidence Act 1872 which states that ‘Documents must be proved by primary evidence’. Exceptions to this are provided under Section 65 of the Indian Evidence Act 1872. Before that, it is important to read about what is primary and secondary evidence. Section 61 of the Indian Evidence Act 1872 provides that the contents of documents may be proved either by primary or by secondary evidence. Section 62 and 63 of the Indian Evidence Act 1872 define primary and secondary evidence respectively. Primary evidence means the document itself produced for the inspection of the Court and secondary evidence means copies of the original which is not original but one of the kinds mentioned under Section 63 of the Indian Evidence Act 1872. Section 63 of the Indian Evidence Act 1872 is exhaustive of kinds of secondary evidence admissible under the Indian Evidence Act, 1872.  Primary evidence is called the best evidence meaning thereby it affords the greatest certainty of the fact in question in any possible circumstances. Secondary evidence can be given only in circumstances mentioned under Section 65 of the Indian Evidence Act 1872 which states that the Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:—

1.  When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66 of the Indian Evidence Act 1872, such person does not produce it;
2. When the existence, condition, or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
3. When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
4. When the original is of such a nature as not to be easily movable;
5. When the original is a public document within the meaning of section 74 of the Indian Evidence Act 1872;
6. When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
7. When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. 

It has to be kept in mind that section 65 of the Indian Evidence Act 1872 provides for the manner of proof and not on the admissibility of evidence. Secondary evidence can only be given when the primary evidence or the document itself is admissible. Admission of such evidence which is per se inadmissible can be objected at any stage even at appeal and not only at the time of production of evidence. 

3. The third rule for best evidence is given under Section 91 of the Indian Evidence Act 1872 which provides for exclusion of oral evidence. It states that ‘When 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, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.’ It means that the best evidence of the contents of a document is the document itself and thus, the law prescribes that to prove the contents, the document itself shall be brought. Section 91 of the Indian Evidence Act 1872 can be regarded as an exclusive rule in as much as it excludes the admission of oral evidence for proving contents of document except in cases where secondary evidence is allowed. Complimentary to this provision is Section 92 of the Indian Evidence Act 1872 which excludes oral evidence to contradict the terms of a contract where the deed is proved. Together both can be said to be exclusive rules. Section 91 of the Indian Evidence Act 1872 has certain exceptions. First  Exception states that ‘When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved’. Exception two provides that ‘wills admitted to probate in India may be proved by the probate.’ Section 92 of the Indian Evidence Act 1872 states that ‘When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, 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’. It is after the document has been produced to prove its terms under Section 91 that the provisions of Section 92 of the Indian Evidence Act 1872 come into operation for the purpose of excluding evidence of any oral agreement or statement for the purpose of contradicting, varying, adding to, or subtracting from its terms. Both provisions are supplementary to each other. Section 92 of the Indian Evidence Act 1872 is applicable only to parties to the instrument and not to strangers to the instrument. There are six exceptions to the general rule that no oral evidence will be allowed to contradict or vary the term of a document – 

1. Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law,
2. The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document,
3. The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant, or disposition of property, may be proved,
4. The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant, or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents,
5. Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract,
6. Any fact may be proved which shows in what manner the language of a document is related to existing facts.

The manner in which provision of Section 91 and 92 of the Indian Evidence Act 1872 for exclusion can be enforced is provided under Section 144 of the Indian Evidence Act 1872 which states that ‘any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it’. The important point to notice is that the rule of exclusion applies only to terms of contract, grant or disposition of property and any other fact apart from its terms can be proved by any other evidence than by producing the document. For example, the Apex Court has observed that the fact of adoption can be proved by any evidence apart from the adoption deed as an adoption deed is not a contract within the meaning of Section 91 of the Indian Evidence Act 1872. 

The above can be concluded as the Part II of the Indian Evidence Act 1872 deals with the admissibility of facts and lays down the rules as to whether a certain form of evidence about a relevant fact may be allowed or excluded. Admissibility means the method of proof, the rules of exclusion, etc. One of its ambits is the Best Evidence Rule which establishes the point that the best available evidence should be produced before the court to prove the relevant fact. Summarizing, three points are that only direct evidence of a fact which can be perceived by senses can be given, writing is the best evidence of its own contents and must be produced before the court, and that the oral evidence for proving content of a document is excluded except in cases where secondary evidence is allowed. This best evidence rule ensures fairness along with justice and prevents fraud.

We hope this list of BEST EVIDENCE RULE is helpful to you in all means.

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