ORAL EVIDENCE

(Subject- Forensic Science)

SUBMITTED BY
DHRITI SHARMA
BALLB (hons.), SECTION-A
ROLL NO. 14/15, SEM 9TH
UILS, P.U
 STUDENT’S DECLARATION

I hereby certify that the project work entitled “Oral Evidence” is an authentic record of my
own work carried out under the supervision of Dr. Ajay Ranga, UILS, Panjab University,
Chandigarh. The matter embodied in this work has not been submitted in any other
College/University

DHRITI SHARMA
 CERTIFICATE

This is to certify that Ms. Dhriti Sharma has worked under my supervision for the
completion of the Project entitled “Oral Evidence”. The research work is entirely her own
and is fit for the purpose of evaluation.

DR. AJAY RANGA

ASST. PROFESSOR,
UILS, PANJAB UNIVERISTY
INTRODUCTION

In the middle of 19th century natural science began to develop by leaps and bounds. The
mystic theories theretofore advanced to explain the scheme of things began to lose ground
as the clear, cold logic of scientific experiment gradually shed a new light on the mysteries
of universe. The change in point of view from the mystic to the scientific soon became
apparent not only in criminal investigation but in the different facets of the legal system.
Now there emerged two facets of a single case. The facet stated and the facet proved from
scientific view point. The era of forensic science had arrived.

From ancient era till the modern era of science and technology, forensic science has been
enlightening the path of administration of justice. Since the beginning of human civilisation,
the rate of crime is increasing drastically day by day. With the development of science and
technology, the methods of commission of crime by the criminals have undergone a
phenomenal change as criminals are trying to evade themselves from being detected after
the commission of crime. Undoubtedly, in these complex situations, it is much more difficult
to trace out the origin of crime, method of commission of crime and criminals involved in
that crime by using the traditional methods of investigations. In this context, the
contribution of forensic science cannot be underestimated in the art of investigation and in
judicial proceedings in order to provide better justice to victims of a crime.

Forensic science is the use of science in the service of the law. Sciences used in forensics
include any discipline that can aid in the collection, preservation and analysis of evidence
such as chemistry (for the identification of explosives), engineering (for examination of
structural design) or biology (for DNA identification or matching). A forensic scientist is an
expert in any technical field and can provide an analysis of the evidence, witness testimony
on examination results, technical support and even training in his or her specialized area. 1

Analysis of forensic evidence is used in the investigation and prosecution of civil and
criminal proceedings. Often, it can help to establish the guilt or innocence of possible
suspects. Forensic evidence is also used to link crimes that are thought to be related to one
another. For example, DNA evidence can link one offender to several different crimes or
crime scenes (or exonerate the accuse d).Linking crimes help law enforcement authorities to
narrow the range of possible suspects and to establish patterns of for crimes, which are
useful in identifying and prosecuting suspects.

Section 5 of the Evidence Act says," Evidence may be given in any suit or proceeding of the
existence or non-existence of every fact in issue and of such other facts as are hereinafter
declared to be relevant, and of no others."

1
“Evidentiary Value of Forensic Science” http://www.isca.in/FORENSIC_SCI/Archive/v4/i6/1.ISCA-RJFS-2016-
006.pdf, published on 21 June, 2016, last accessed on 15 th November, 2019.
The Section says that 'Evidence may be given....' But what is Evidence?

This word is used in common parlance in three different senses (a) as equivalent to relevant
(b) as equivalent to proof, and (c) as equivalent to the material on the basis of which courts
come to a conclusion about the existence or non-existence of disputed facts.
For example we may say, the presence of an accused person near the scene of the crime
just before the crime was committed, is evidence that he may be guilty; whereas his
presence after the crime was committed, at the same place, is not evidence of the guilt of
the accused. In this statement the word is used as equivalent to relevant.  Again we may say
that the possession of stolen article immediately after the theft is evidence of the fact that
the person in whose possession it is found is either theft, or a receiver of stolen property. In
this statement, the word is used as equivalent to proof, which is really the effect of
evidence. But it is neither of these senses that the word is used in the Act. It is used in the
third sense mentioned above, namely, as equivalent to the material placed before the Court
on the basis which the court comes to a conclusion as to the existence or non-existence of a
disputed fact. It is defined in Section 3 of the Act as bellow:

DEFINITION-

“Evidence” means and includes-

(1) All statements which the Court permits or requires to be made before it by witnesses, in relation
to matters of fact under inquiry, Such statements are called oral evidence;

(2) All documents including electronic records produced for the inspection of the Court,
Such documents are called documentary evidence.

The definition of word "evidence" under Section 3 of Indian Evidence Act is explanatory and
not precise. It consist oral evidence and documentary evidence. Oral evidence is evidence of
the fact brought to the knowledge of the court by the verbal statement of witness, quality
to speak on the point he testifies. It includes all statements, which the court permits or
requires to be made before it by witness with regard to matter of fact under inquiry.

Documentary Evidence is evidence of the fact brought to the knowledge of the court by
inspection of the document produce before the court. Oral evidence is verbal testimony of
the witness whereas the documentary evidence is written testimony of a witness of the
document. Oral evidence is adduced, documentary evidence proved before it is admitted as
evidence. Apart from oral and documentary evidences there are other types of evidences
also which are not defined in the Act. These are- direct evidence, hearsay evidence,
substantial evidence, corroborative evidence, expert evidence, medical evidence, primary
evidence, secondary evidence, electronic evidence.2

ORAL EVIDENCE UNDER INDIAN EVIDENCE ACT- 

The oral evidence against the criminal may be the evidence of the eye- witness(es) or of
victim, it may be confession of the culprit, an incriminating statement of a co-criminal,
circumstantial evidence or scientific evidence.

Chapter IV of the Indian Evidence Act deals with Oral Evidence.

There are only two sections under this chapter namely Section 59 and Section 60.

Section 59- Proof of facts by oral evidence.

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

Section 60- Oral evidence must be direct.

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 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;

Provided that the opinions of experts expressed in any treatise commonly offered for sale,
and the grounds on which such opinions are held, may be proved by the production of such
treatises if the author is dead or cannot be found, or has become incapable of giving
evidence, or cannot be called as a witness without an amount of delay or expense which the
Court regards as unreasonable;

Provided also that, if oral evidence refers to the existence to the existence or condition of
any material thing other than a document, the Court may, if it thinks fit, require the
production of such material thing for its inspection.

2
“Importance of Oral and Documentary Evidence” https://www.legalcrystal.com/blog/civil-law/importance-of-
oral-and-documentary-evidence/ (last accessed on 11th November, 2019)
 DIFFERENCE BETWEEN ORAL AND DOCUMENTARY EVIDENCE

                  Oral evidence Documentary evidence

Oral evidence means and includes all Documentary evidence means producing a document
statements which are made by a witness before the court of law and inspection is done by the court
in the court. in order to know the facts.

It is a statement by a witness. It is a statement of documents.

In oral evidence, the witness tells about In documentary evidence, the facts are told and it is
the facts by speaking or with gestures. recorded in writing.

Oral evidence is provided under Section Documentary evidence is provided under Section 61 to 66
59 and 60 of Indian Evidence Act, 1872. of the Indian Evidence Act.

Primary evidence is considered as the evidence which is

Section 59 of the evidence says that it given in several parts like duplicate copies or as counterpart
considers all facts as oral evidence except like those which is signed by the parties or photocopy of the
electronic evidence and documentary document whereas, Secondary evidence contains certified
evidence. Section 60 says that oral copies, that have been made by the same mechanical
evidence must be direct. process and also contain counterparts of the document
against the parties.

For example- any crime has been

committed by a Ram and there is a
person available at the movement then
For example- a photocopy of a document or photograph.
whatever he heard, sees, perceive, or
forms an opinion all this is considered as
oral evidence.

EXCEPTIONS TO ORAL EVIDENCE3

3
“Oral evidence in Forensic Science”, http://healthdrip.com/oral-evidence/, published on May 17, 2012, (last
accessed on November 19th, 2019)
(1) Dying declaration (Section. 32 & 157, I.E.A.). Statements, verbal or written, of relevant
facts made by a person who is dead, who cannot be found, who has become incapable of
giving evidence, or whose attendance cannot be procured without unreasonable delay and
expenditure, is admissible as evidence (Section. 32, I.E.A.).

(2) Expert opinion expressed in a treatise may be proved in Court by producing such book if
the author is dead or cannot be found or cannot be called as a witness without
unreasonable delay or expense (Section. 60, I.E.A.).

(3) Oral Evidence of a doctor recorded in a lower Court is accepted in a higher Court,
provided it is recorded and attested by Magistrate in the presence of the accused. But he is
liable to be summoned, if the evidence is deficient or needs further explanation (Section-
291, Cr.P.C.).

(4) Oral Evidence given by a witness in a previous judicial proceeding is admissible in

subsequent judicial proceeding, when the witness is dead or cannot be found, or is
incapable of giving evidence, or cannot be called without undue delay or unreasonable
expense (Section- 33, I.E.A. & Section 291 Cr.P.C.).

(5) Oral Evidence of Mint officers or an officer of the India Security Press (Section- 292,
Cr.P.C.).

(6) Reports of certain Government scientific or forensic experts become part of Oral
evidence (S. 293 (1), Cr. P.C.):

 Chemical Examiner or Assistant Chemical Examiner

 Chief Inspector of Explosives
 Director Fingerprint Bureau
 Director, Central Forensic Science Laboratories or State Forensic Science
Laboratories.
 Serologist to the Government

The Court has the power to summon and examine any such expert. The prosecution and
defence have also a right to demand the Court to summon and examine any such expert
(Section 293 (2) Cr.P.C.).

(7) Public records: A record kept in a public office, e.g., birth and death, certificates of
marriage, etc., is admissible in evidence without oral testimony. (Section 35, 74, 76 and 78,
I.E.A.).

(8) Hospital records: Routine entries, such as dates of admission and discharge, pulse,
temperature, treatment given, etc., are admissible without oral evidence. But the causes of
the disease or diagnosis are not accepted without oral testimony.

CRTICAL ANALYSIS OF ORAL EVIDENCE

The courts in India, till recently and even now, depend mostly on oral evidence, mainly on
the eye-witnesses accounts. Logically, the evidence of the eye witnesses appears to be the
best evidence. If the person has witnessed the occurrence, the same should be the best
evidence against the culprits.4

However, it has been proved time and again that this evidence suffers from a no. of
infirmities-

 The eye witness observes the occurrence for an extremely short period of time.
 He may not have observed the complete occurrence.
 He is often uncertain about the identity unless he knows them.
 He may intermingle the actions of various individuals in the occurrence.
 He may be biased in favour or the victim or the culprit.
 He may be mentally imbalanced; he may exaggerate using his fertile imagination.
 He may forget, rationalise, or confuse as his evidence is recorded after considerable
lapse of time.
 He is influenced subconsciously by the opinion of other persons with whom he has
discussed the case or who have aired their opinion in the media.
 His powers of observation, memory and description may be minimal yet the
evidence is crucial.
 He may be frightened by the courtroom environment and forget the observations
 He may be over awed by the opposing counsel or by the court.
 He may have been threatened by the culprits or won over by the parties.5

In view of the above, it is highly dangerous, for the proper dissemination of justice, to
accept the statement of an eye witness in its totality. It has been so proved in actual cases
and in experiments. This lacuna can be overcome only by scientific evidence.

CONCLUSION

4
Anil Aggrawal's Internet Journal of Forensic Medicine and Toxicology, 2001; Vol. 2, No. 1 (January-June
2001): http://anilaggrawal.com/ij/vol_002_no_001/ug002_001_2.html; Published: March 19, 2001, (Accessed:
November 24, 2019)
5
“Oral Evidence” by Modi's Medical Jurisprudence and Toxicology, K. Mathiharan and Amrit K Patnaik, Lexis
Nexis, Buttersworth, 2010, pp 101-102.
The value of documentary evidence is more than oral evidence. The court mainly accepts
documentary evidence but takes oral evidence into consideration. Briefly, we can say that
there are two types of documents- oral and documentary evidence. In court, documentary
evidence has more value. Court wants best evidence and documentary evidence is the best
evidence and it consists of two parts primary evidence and secondary evidence. Primary
evidence is the best evidence recognized by the court. In the absence of primary evidence,
secondary evidence is given to the Court. On the other hand, oral evidence is evidence given
by words and gestures and are not permanent it can be changed. Hence Section 91 and 92
exclude oral evidence by documentary evidence. Proof in the form of a document can be
submitted instead of giving orally.

BIBLIOGRAPHY

1. Modi's Medical Jurisprudence and Toxicology, K. Mathiharan and Amrit K Patnaik,

LexisNexis, Buttersworth, 2010
2. Textbook of Modis Medical Jurisprudence and Toxicology, K. Kannan and K.
Mathiharan, Buttersworths India, 2012
3. Medical Jurisprudence and Toxicology (Law Practice and Procedure), K.S. Narayan
Reddy, ALT Publications, 2006
4. Avtar Singh, Principles of the Law of Evidence (2008) Central Law Agency, New Delhi
5. Rattan Lal, Dhiraj Lal: Law of Evidence (1994) Wadhwa, Nagpur