Indian Evidence Act, 1872 (in short “IEA” hereinafter) as drafted by the British and came into effect on 1st September, 1872, is one of the oldest, precise and flawless piece of legislation in the world and holds the field till today with negligent lacuna in its drafting, as every possible inference is covered coupled with a residuary clause, in case, some situation is not covered expressly. This legislation is so commonsensical that sometimes it becomes technical in its application. The beauty of this legislation lies in its interpretation and there is no end to it. With my limited intellect and learning at the bar so far, the best way as I understand, is to read it (as seniors say) by correlation through examples and focus on its applicability. The more one dives deep into its interpretation, the deeper it takes you. Thus, reading a provision of this legislation is different from its application, as latter is the hard part in the facts of each case.
By way of this write up, the author endeavors to touch upon a very relevant topic of this Act namely, the ‘mode of proof’ to prove a document under this Act and at what stage it should be taken under law.
Every case has its make or break situation at the “evidence stage”, which more or less decides the outcome of a case, as a person may lie but not the evidence and document filed and proved on record by one of the modes of proof as envisaged under this Act. Even more importantly, Court gives its verdict based on evidence only. It is no gain-saying that marking of a document as an exhibit is different from proving the same.
Now the expression “evidence” is defined under Section 3 as ‘interpretation clause’ and is more of an inclusionary definition which says that the word evidence means and includes oral (Chapter IV of IEA) as well as documentary evidence (Chapter V of IEA), as stated therein. In other words, evidence includes all statements which Court permits or requires to be made before it, in relation to matters of fact under inquiry and in second leg, includes all documents including electronic record, produced for the inspection of the Court.
Expression ‘document’ finds mention also in Section 3, ibid, and means any matter expressed or described upon any substance by means of letter, figure or marks or by more than one of those means, intended to be used or which could be used, for the purpose of recording that matter. For instance, a document could be writing, a map or plan or an inscription on a metal plate or stone or a caricature.
Further, there is a clear distinction between a private document and a public document. Private documents deserve treatment mentioned in Sections 61 to 66 of IEA. The genuineness of the same is to be taken into consideration having regard to Sections 67-73 of IEA.
Now, a document may be proved under this Act either by primary evidence or by secondary evidence. As defined under Section 62 of this Act, Primary Evidence means by proving the original document itself, being the best evidence. Secondary Evidence as per Section 63 of IEA, means, document other than its original, as stated therein. A document may be proved by secondary evidence as per conditions and terms enumerated in Sections 64-65 of IEA.
Ordinarily, objection when directed towards mode of proof is different from objection to admissibility of document in evidence itself. In the first case, objection falls within procedural and based on policy of rule of fair play, is to be taken before the document is marked as an exhibit and admitted to the record. In the second case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded being a legal issue and is available to be raised even at a later stage or even in appeal or revision. In other words, mere putting of the exhibit mark on a document is not admission of the document into evidence if otherwise not admissible according to law. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. [See: (2003) 8 SCC 752, (2004) 7 SCC 107 and followed up in Vivek Kochher and Ors V. KYK Corporation Ltd. and Ors]
‘Mode of proof’ is discussed in Chapter V of IEA, and means that by which mode either primary or secondary, a document may be proved. Mode of proof of a document can be proved by the co-existence of following factors:-
- Existence – means that the contents of a document must be proved. It means that a distinction has to be drawn between truth and the contents of a document. This distinction has also been highlighted in the matter of Om Praksh Berlia vs. Unit Trust of India & Ors. Example – If A writes a letter to B saying that C has made a payment of Rs.100/- to D, then the contents of the letter can be proved only to the extent that A actually wrote a letter to B saying the same. However, the truth pertains to the factum as to whether C actually made a payment of Rs.100/- to D. The letter has to be proved by an independent direct or circumstantial evidence along with the statement of a witness who may depose of the truth of such payment.
- Genuineness – Genuineness only relates to the fact whether a document has been signed or handwritten by a particular person. This fact has to be proved in accordance with Sections 45, 47 or 67 to 73 of IEA.
- Accuracy – Accuracy is restricted to the fact that whether the witness who is deposing of the truth of the matter has personal knowledge (i.e. direct oral evidence, among other) of the same or not. In other words, no hearsay (i.e. indirect) evidence could be given of such a fact. (See: Sections 59-60, IEA– imply that oral evidence to be direct)
- Stamping – Stamping only restricts itself to such documents which require stamping for purpose of maintaining their genuineness, credibility and not to other documents (i.e. mandatorily required under Registration Act, Stamp Act)(See: 2020(3) SCALE 648).
- Inherent/Ab-initio Admissibility – it means that the document in question should not be irrelevant (See: Order 13 Rule 3, CPC – ‘’Rejection of irrelevant or in-admissible document’’) or document is privileged to be brought on record (See: Sections 122 -129 of IEA). Also, Section 167, IEA says that judgment is to be based on ‘’duly proved facts’’ and ‘’admissible documents’’ and no other.
A ‘duly proved’ document can only be considered at the final hearing of a proceeding (See: Section 3, IEA- ‘proved’, ‘disproved’ & ‘not-proved’). ‘Onus to prove’ (See: Sections 101-114, IEA) a document is upon the party intending to rely on it. Genuineness or Truthfulness of contents of a document is to be proved by oral evidence, and contents thereof are to be proved either by adducing primary evidence or secondary evidence.
IEA distinguishes between ‘private document’ and ‘public document’ and below mentioned criteria of proving a document do not apply to the ‘public document’ due to the special rules and presumptions provided by law.
A document is said to be proved if following three criteria are satisfied:-
(a) Firstly, the execution (via Sections 67-73, IEA) of a document, i.e. the handwriting or signature on the document, if any, is proved. (Genuineness of a document)
(b) Secondly, contents/condition (via primary or secondary evidence/S.61-66, IEA) of a document, and
(c) Thirdly, truthfulness (via oral evidence/S.59-60, IEA) of the contents of a document.
Above three points expanded for better appreciation and read as follows:-
(A) Execution: – The process of proving the signature or handwriting in a document goes to the ‘genuineness’ of the document. The party who seeks to prove a particular document must get the handwriting or signature of the author, if any, identified by the author himself under Section 67 of IEA or any third person acquainted with the handwriting in question under Section 47 of IEA or by a person in whose presence the document was signed or executed under Sections 67 & 68 of IEA or by an expert witness under Section 45 of IEA. Also, the signatory may himself admit having signed or executed a document, which dispenses with proof there of vide Section 58 of IEA. Further, the Court itself is enabled under Section 73 of IEA to compare the handwriting or the signature in question with the one admitted or proved to the satisfaction of the Court. Under certain circumstances enumerated at Sections 79 to 90A of IEA, a Court is entitled to presume that the signature on a document and the document itself is genuine. Thus, under Section 79, Courts shall presume that certified copies are genuine (Note: Sections 79-85C deal with “shall presume”; and Sections 86-90A deal with “may presume”). Proof of a signature or handwriting on document is sometimes referred to as mere ‘formal proof of a document’ [See: Section 294(3) CrPC – means to dispense with formal proof/genuineness of document where it is not disputed, eg: FIR] as proof thereof does not automatically result in the proof of the contents of the document.
(B) Contents: – where the party is not able to produce the primary evidence itself due to the reasons enumerated under Section 65 of IEA, the party is at liberty to produce the secondary evidence to prove contents of the document. The ‘proof of contents’ is different from the ‘truth of the contents’. The distinction has been brought out in AIR 1983 Bom 1, ibid, wherein, it was held that expression ‘contents of a document’ under the IEA must mean only ‘what the document states and not the truth of what the document states’.
(C) Truthfulness of the Contents: – Section 67 prescribes that truthfulness of the contents has to be proved by the personal knowledge. In other words, a witness should be the author of the document. This is proof by way of oral evidence as stipulated in Section 59 of IEA.
However, in Bombay High Court judgment of Bima Tima Dhotre v. Pioneer Chemical Co.(1968 (70) Bom LR 683),observed that it is not necessary to call the writer of the document in order to prove the document as documentary evidence would become meaningless if the writer has to be called in every case. Hence, it can be said that truth of the contents of a document must be proved either by the author or by ‘the person who knows and understands the contents’, i.e. persons having personal knowledge of a document. This is rule against hearsay. But, following are some of the exceptions to the Rule against Hearsay:-
- When the truth of contents is not material to be proved or is not a fact-in-issue.
- When the witnesses themselves are not available. Such contingency is covered by the Section 32(1-8) of IEA i.e. incapacity/ unavailability of witness.
- Public Documents.
- Summaries of voluminous documents. Under Section 65(g) of IEA, if original documents are voluminous, then the summary or synopsis thereof can be prepared and admitted in evidence by a person who is not the author of the documents.
To address the controversy of stage of deciding objections as to mode of proof, Bombay High Court in a Full Bench (FB of 2008) Reference Case in ‘Hemendra Rasiklal Ghai vs. Subodh Mody’, [Reported in (2008 Mh. L.J. 886)] dealt with two conflicting views on this issue: One, admissibility of documents should be decided before they are exhibited in evidence or Other, question of admissibility and proof of document should be reserved until judgment in the case is given. Issue framed by Court to deal with above conflicting views read as: “At which stage, objection as to admissibility or proof of document which may be produced or tendered should be raised, considered and decided?” Full Bench answered the above reference by tracing out the law and dealt with conflicting judgments on this aspect by categorizing objections as to mode of proof and stage of their dealing by Court. Firstly, Objection of Deficiency of Stamp Duty is to be taken when document tendered in evidence and Court to decide on it before document is marked as exhibit. Secondly, Objection of Proof where admissibility is not disputed is to be taken when document is marked as exhibit, and Court to decide on it before it is marked as exhibit. Thirdly, Objection of Admissibility is to be taken at any stage of case until final judgment is reserved; and lastly, Objection as to admissibility/relevancy, is to be taken at any stage of case until final judgment is reserved.
Recently, Delhi High Court in the case of M/S Prakash Oil Corporation & Anr. V. Brij Kishan, [CM (M) No.1002/2018 & CM APPL. 34738/2018] was pleased to observe that ultimate test as guiding factor in deciding the objection as to mode of proof is that trial should be expedited and there should not be any unnecessary delay. Hence, on a case to case basis, objections qua admissibility or mode of proof should be addressed at stages, as the Court finds it necessary for the expedition of the trial.
To conclude, it is utmost essential for a lawyer to do two important things right in every case in the context of mode of proof, among other, and that is, firstly, to bring on record the documents favoring one’s own case at first instance, and secondly; to prevent opposite side from placing/bringing documents incorrectly on record contrary to mode of proof, by timely objections at first instance as per law, ibid.
(assisted by Kunal Bhardwaj, Final Year student of CLC, Law Faculty, DU).
Comments, if any, on this article/write up will be appreciated by the Author.
Rajat Mathur is a practicing lawyer in Delhi [B.Com (H) SRCC, DU] [LLB, Law Faculty, DU]. Despite gaining experience in Civil and Tax Law, he has worked extensively on the criminal side and has represented bureaucrats and Government Servants in matters related to the ‘Coal Block Allocation Scam case’. At 33 years of age, Mr. Mathur got the controversial acquittal of former Coal Secretary, Mr. H. C. Gupta, a decorated IAS office (now retired) in the high-profile case.
Disclaimer: The views or opinions expressed are solely of the author.