BEST EVIDENCE RULE

1. INTRODUCTION

The Best Evidence Rule iterates that the secondary evidence won’t be applicable if the primary
evidence exists. For Example, the rule applies when a party wants to admit as evidence the
contents of a document at trial, but that the original document is not available. In this case, the
party must provide an acceptable excuse for its absence. If the document itself is not available,
and the court finds the excuse provided acceptable, then the party is allowed to use secondary
evidence to prove the contents of the document and have it as admissible evidence.

The word ‘evidence’ 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. However, The Evidence has been classified into two types under Section
3 Interpretation Clause of the Indian Evidence Act of 1872.
Where Evidence means and includes:
1. Oral Evidence: All statements which the court permits or requires to be made before it by
witnesses
Abdulla Ahmed v Animendra Kissen Mitter
Document proof of where the language of the document is ambiguous and not clear, oral
evidence revealing true intention of the parties is admissible

2. Documentary Evidence: All documents including electronic records produced for the
inspection of the Court

Rule

The Rule specifies that the best evidence existing in a particular case and available, according
to what the circumstances would allow or the party will be able to produce, ought to be
produced. The best or original evidence means primary evidence. The rule excludes
secondary evidence.
In Roop Kumar vs. Mohan Thedani the Court laid down the parameters of
best evidence rule in the following terms: “Section 91 relates to evidence of terms of contract,
grants and other disposition of properties reduced to form of document. This section merely
forbids proving the contents of a writing otherwise than by writing itself; it is covered by the
ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named
but to others known sometimes as the “best-evidence rule”.

Where the fact to be proved is embodied in a document, the document is the best evidence
of the fact. Such fact should, therefore, be proved by the document itself, that is, by the primary
or secondary evidence of the document. According to the HC of Delhi, it did not permit oral
evidence of the contents of a partition deed which deed was inadmissible being not
registered. Once it is shown that the original document is not admissible in evidence because
of insufficiency of stamps, secondary evidence by way of oral statement or photocopy cannot
be allowed. Allowing the party to confront the witnesses with photocopy of such evidence was
held to be not permissible.
 SECTION 91 & 92
Section 91 relates to evidence of terms of contracts, grants and other disposition of
properties reduced to the form of document. Whereas, Section 92 articulates that when
such act has been done under section 91 no evidence or any oral agreement shall be
admitted as between the parties to any such document or their representatives-in-interest,
for the purpose of contradicting, varying, adding or subtracting from its terms. These
sections are based on “best evidence rule”. The rule can be said to be an exclusive rule
inasmuch as it excludes the admission of oral evidence for proving the contents of the
documents except in cases where secondary evidence is allowed to be led under the
relevant provision of the Act.

In Mumbai International Airport (P) Ltd. vs. Golden Chariot Airport, it was held that when
written documents are there, any oral assurance, which purports to contradict the written
documents need not be considered.

In Tulsi vs. Chandrika Prasad, the SC held that Section 91 of the act mainly forbids proving
of the contents of a writing otherwise than by writing itself and merely lays down the best
evidence rule.

These sections are supplementary in nature i.e., inoperative without each other’s aid.
However, few distinctions are: Section 91 applies to documents which are both bilateral &
unilateral. It deals with exclusiveness of the documentary evidence and with the proof of
matters dealt in this section. While, section 92 applies only to bilateral documents and doesn’t
apply to strangers who are not bound or affected by the terms of document. It deals with
conclusiveness of the documentary evidence and with disproof of matters dealt in section 91.

The SC held in Taburi Sahai v. Jhunjhunwala, that a deed of the adoption of child is not a
contract within the meaning of section 91 and, therefore, the fact of adoption can be proved
by any evidence apart from the deed.
Where both oral as well as documentary evidence are admissible on their own merits and
have been admitted, the court may go by the evidence which seems to be more reliable. There
is nothing in the act requiring that the documentary evidence should prevail over the oral
evidence.
Section 64 of the act talks about Proof of documents by primary evidence that the
document must be proved by primary evidence except in the cases mentioned in Section 65
of the act.
The modes of proof of contents of documents are:
1. PRIMARY EVIDENCE (Section62) consists of the original document, which is presented
to the court for inspection. This evidence is the best evidence in all circumstances. The
general rule talks about giving primary evidence. No procedure of notice is required before
giving evidence. Its importance is highest.

1. SECONDARY EVIDENCE (Section 63) consists of the document which is not an original
document. Though it is not best evidence but is evidence of secondary nature and is
admitted in exceptional circumstance. It is an exception to the general rule. The procedure
of notice is required to be followed before giving such evidence. Its value is not as that of
primary evidence.

The phrase best evidence is now exclusively associated with this rule that when the contents
of the writing are to be proved, the writing itself must be produced before the court or its
absence accounted for before testimony t its contents is admitted. It has been a flexible rule
which wherever the written instruments are appointed, either by the requirement of law or by
the contract of the parties to be the repositories & memorials of truth, any other evidence is
excluded from being used either as substitute or to contradict such instruments.

OF WITNESS
Ques. Discuss the law regarding competency of a witness? (Sections 118-121) Can a wife
be a competent witness against her husband? (Section 120)

Ans. The modern judicial system is based on evidence. The knowledge of how an event
happened is arrived at by the court through witnesses. Section 118 of Indian Evidence Act,
1872, contains the provisions for determining a competent witness.

Section 118. Who may testify? - All persons shall be competent to testify unless the Court
considers that they are prevented from understanding the question put to them, or from
giving rational answer to those questions, by tender years, extreme old age, disease,
whether of body and mind, or any other cause of the same kind.

Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy

from understanding the question put to him and giving rational answers to him.

As is evident from Section 118, in general, nobody is barred from being a witness as long as
he is able to understand the questions that are put to him as well as is able to give rational
replies to those questions. There may be several reasons because of which a person may
not be able to comprehend the questions and/or is unable to reply coherently. This section
does not attempt to define all such reasons but gives examples of such reasons such as
young age (in case of a child), mental illness, or extreme old age. It is up to the court to
determine whether a person is able to understand the questions or give rational answers.
Thus, competency is a rule, while incompetency is an exception. Even a lunatic is
considered a competent witness if his lunacy does not prevent him from understanding the
questions and giving rational answers.

Child Witness
A young child, if he is able to understand the questions and is able to reply rationally, is a
competent witness even if he is of a tender age. For example, in the case of Jai Singh vs
State, 1973, Cr LJ, a seven year old girl who was the victim of attempted rape was
produced as a witness and her testimony was held valid. It has been held in several early
cases that a child under the age of seven years can be a competent witness if, upon the
strict examination of the court, the child is found to understand the nature and consequences
of an oath. For example, in Queen vs Seva Bhogta, 1874, a ten year old girl, who was the
only eye witness of a murder was made a witness. She appeared to be intelligent and was
able to answer questions frankly and without any hesitation.

Dumb Witness
Section 119 - A witness who is unable to speak may give his evidence in any other manner
in which he can make it intelligible, as by writing or by signs; but such writing must be written
and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.
State of Rajasthan v Darshan singh
When a deaf and dumb person is examined in the court has to exercise due caution and
take care to ascertain before he is examined that he possess the requisite amount of
intelligence and that he understands the nature of the oath. On being satisfied on this, the
witness may be administered oath by appropriate means and that also be with the
assistance of and interpreter.

Competency of a wife as a witness against her husband

As per Section 120, in all civil proceedings the parties to the suit, and the husband or wife of
any party to the suit, shall be competent witnesses. Further, in criminal proceedings against
any person, the husband or wife of such person, respectively, shall be a competent witness.
Thus it is pretty clear that the spouse of a person can be a competent witness against that
person.
For example,
In the case of Shyam Singh vs Shaiwalini Ghosh, Calcutta HC held that Husband and wife
are both competent witness against each other in civil and criminal cases. They are
competent witness to prove that there has been no conjugation between them during
marriage.
Although not mentioned in the act, it has been held in several cases that provisions of this
section are subject to Section 122, which makes the communication between a husband and
wife privileged.

Competency of Accused
as per Section 315 of Cr P C, an accused is a competent witness. He can give evidence on
his behalf, but if he does not, no comment can be made against the accused or adverse
inference be drawn against him.

Competency of judges and magistrates

Section 121 says that no Judge or Magistrate shall, except upon the special order of some
Court to which he is subordinate, be compelled to answer any question as to his own
conduct in Court as such Judge or Magistrate, or as to anything which came to his
knowledge in court as such Judge or Magistrate; but he may be examined as to other
matters which occurred in his presence whilst he was so acting.
For example
 A is accused before the Court of Session of having given false evidence before b, a
Magistrate. B cannot be asked what a said, except upon the special order of the
Superior Court
 A is accused before the Court of Session pf attempting to murder a police officer
whilst on his trial before B, a Session Judge. B may ne examined as to what
occurred.

Competency of an Accomplice
Accomplice - An accomplice is a person who has taken part, whether big or small, in the
commission of an offence. Accomplice includes principles as well as abettors.
Not an Accomplice - person under threat commits the crime, person who merely witnesses
the crime, detectives, paid informers, and trap witnesses

generally, a small offender is pardoned so as to produce him as a witness against the bigger
offender. However, evidence by an accomplice is not really very reliable because - 1) he is
likely to swear falsely in order to shift blame, 2) as a participator in a crime, he is a criminal
and is likely immoral, and so may disregard the sanctity of oath, and 3) since he gives
evidence in promise of a pardon, he will obviously be favourable to prosecution.

Even so, an accomplice is allowed to give evidence. As per Section 133, he is a competent
witness against the accused and a conviction based on his evidence is not illegal merely
because his evidence has not been corroborated. At the same time, Section
114 (b) contains a provision that allows the Court to presume that an accomplice is unworthy
of credit, unless he is corroborated in material particular. The idea is that since such a
witness is not very reliable, his statements should be or verified by some independent
witness. This is interpreted as a rule of caution to avoid mindless usage of evidence of
accomplice for producing a conviction.

Haroon Haji v State of Maharashtra

Court held that every detail of the story of the accomplice need not be confirmed by the
independent evidence although some additional independent evidence must be looked for to
see whether the approver is speaking the truth and there must be some evidence, direct or
circumstantial which connects the co-accused with the crime independently of the
accomplice.

Maghar singh v State of Punjab

The evidence furnished by extra-judicial confession made by the accused to witnesses
cannot be termed to be a tainted evidence and if corroboration is required it is only by way of
abundant caution. If the court believes the witness before whom the confession is made and
it is satisfied that the confession was voluntary, then in such a case conviction can be
founded on such evidence alone.

BURDEN OF PROOF
Ques. What do you understand by Burden of Proof? On whom the does the burden of
proof lie? State the rules of determining Burden of Proof in a suit or proceeding. When does
the burden of proof shift to the other parties? Are there any exceptions?

Ans. General Concept of Burden of Proof

The responsibility to prove a thing is called burden of proof. When a person is required to
prove the existence or truthfulness of a fact, he is said to have the burden of proving that
fact. In a case, many facts are alleged and they need to be proved before the court can base
its judgment on such facts. The burden of proof is the obligation on a party to establish such
facts in issue or relevant facts in a case to the required degree of certainty in order to prove
its case. For example, in a case of murder, prosecution may allege that all the conditions
constituting a murder are fulfilled. All such conditions are facts in issue and there is an
obligation to prove their existence. This obligation is a burden of proof. In general, every
party has to prove a fact that goes in his favour or against his opponent, this obligation is
nothing but burden of proof.
Section 101 defines burden of proof as follows - When a person is bound to prove the
existence of any fact, it is said that the burden of proof lies on that person.

The important question is who is supposed to prove the various facts alleged in a case. In
other words, on whom should the burden of proving a fact lie? The rules for allocation of
burden of proof are governed primarily by the provisions in Section 101 to 105. The rules
propounded by these sections can be categorized as General rules and Specific rules.
General rules

Rule 1 - As per Section 101, specifies the basic rule about who is supposed to prove a fact.
It says that whoever desires any Court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts, must prove that those facts exist. For
example, A desires a Court to give judgment that B shall be punished for a crime which A
says B has committed. A must prove that B has committed the crime.

Facts can be put in two categories - those that positively affirm something and those that
deny something. For example, the statement, "A is the owner of this land" is an affirmative
statement, while "B is not the owner of this land" is a denial. The rule given in Section
101 means that the person who asserts the affirmative of an issue, the burden of proof lies
on him to prove it. Thus, the person who makes the statement that "A is the owner of the
land", has the burden to prove it. This rule is useful for determining the ownership of the
initial burden. Whoever wishes the court to take certain action against the opposite party
based on certain facts, he ought to first prove those facts.

In the case of Soward vs Legatt, a landlord suing the tenant asserted that the tenant did
not repair the house. Here, he was asserting the negative. But the same statement can also
be said affirmatively as the tenant let the house dilapidate. In this case, Lord
ABINGER observed that in ascertaining which party is asserting the affirmative the court
looks to the substance and not the language used. Looking at the substance of this case,
the plaintiff had to prove that the premises were not repaired.

Thus, the court should arrive at the substance of the issue and should require that party to
begin who in substance, though may not be in form, alleges the affirmative of the issue.

Burden of Proof and Onus of Proof

The term Burden of Proof is used in two difference senses - the burden of proof as a matter
of law and pleading, and the burden of proof as a matter of adducing evidence also called as
onus. There is a subtle distinction between burden of proof and onus of proof, which was
explained in the case of Ranchhodbhai vs Babubhai AIR 1982. The first one is the burden
to prove the main contention of party requesting the action of the court, while the second one
is the burden to produce actual evidence. The first one is constant and is always upon the
claimant but the second one shifts to the other party as and when one party successfully
produces evidence supporting its case. For example, in a case where A is suing B for
payment of his services, the burden of proof as a matter of law is upon A to prove that he
provided services for which B has not paid. But if B claims that the services were not up to
the mark, the onus of burden as to adducing evidence shifts to B to prove the deficiency in
service. Further, if upon providing such evidence, A claims that the services were provided
as negotiated in the contract, the onus again shifts to A to prove that the services meet the
quality as specified in the contract.

The next rule determines who has the onus of proof.

Rule 2 - As per Section 102, the burden of proof in a suit or proceeding lies on that person
who would fail if no evidence at all were given on either side. The following illustrations
explain this point -
Illustration 1 - A sues B for land of which B is in possession, and which, as A asserts, was
left to A by the will of C, B's father. If no evidence were given on either side, B would be
entitled to retain his possession. Therefore the burden of proof is on A.
Illustration 2 - A sues B for money due on a bond. The execution of the bond is admitted,
but B says that it was obtained by fraud, which A denies. If no evidence were given on either
side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore
the burden of proof is on B.

Rule 3 – (Doctrine of Alibi) As per Section 103, the person who wants the court to believe in
an alleged fact is the one who is supposed to prove that fact unless it is provided by any law
that the proof of that fact shall lie on any particular person. For example, A prosecutes B for
theft, and wishes the Court to believe that B admitted the theft to C. A must prove the
admission. Another example - B wishes the Court to believe that, at the time in question, he
was elsewhere. He must prove it.
Further, as specified in Section 104, if a person wants the court to believe in a fact that
assumes the existence of another fact, it is up to the person to prove the other fact also. For
example, A wishes to prove a dying declaration by B. A must prove B's death. A wishes to
prove, by secondary evidence, the contents of a lost document. A must prove that the
document has been lost.

Specific Rules
These rules specifically put the burden on proving certain facts on particular persons -

Rule 1 - As per Section 106, when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him. When a person does an act with some
intention other than that which the character and circumstances of the act suggest, the
burden of proving that intention is upon him. For example, A is charged with travelling on a
railway without a ticket. The burden of proving that he had a ticket is on him.

Rules of Presumption - Section 107 and 108 say that if a person was known to be alive
within 30 yrs the presumption is that he is alive and if the person has not been heard of for
seven years by those who have naturally heard from him if he had been alive, the
presumption is that the person is death. But no presumption can be draw as to the time of
death. Sections 109 establishes the burden in case of some relations such as landlord and
tenant, principle and agent etc. Further sections specify the rules about burden of proof in
case of terrorism, dowry death, and rape.

Exceptions -

Exception 1 - The general rule in criminal cases is that the accused is presumed innocent. It
is the prosecution who is required to establish the guilt of the accused without any doubt. At
the same time, the accused is not required to prove his innocence without any doubt but only
has to create reasonable doubt that he may not be guilty. Section 105 specifies an
exception to this general rule. When an accused claims the benefit of the General Exception
clauses of IPC, the burden of proving that he is entitled to such benefit is upon him. For
example, if an accused claims the benefit of insanity in a murder trial, it is up to the accused
to prove that he was insane at the time of committing the crime.
In the case of Rizan v State of Chhattisgarh the burden of establishing the plea of self-
defence is in the accused and the burden stands discharged by showing preponderance of
probabilities in favour of that plea on the basis of material on record.
Exception 2 - Admission - A fact which has been admitted by a party and which is against
the interest of that party, is held against the party. If the fact is contested by the party, then
the burden of proof rests upon the party who made the admission. For example, A was
recorded as saying that he committed theft at the said premises. If A wants to deny this
admission, the burden of proof rests on A to prove so.

Exception 3 - Presumptions - Court presumes the existence of certain things. For

example, as per Section 107/108, court presumes that a person is dead or alive based on
how long he has not been heard of. Section 109, presumes that when two people have
been acting as per the relationship of landlord - tenant, principle - agent, etc, such
relationship still exists and anybody who contends that such relationship has ceased to exist
has to provide proof. Section 110 presumes that the person who has the possession of a
property is the owner of that property. As per Section 113A, When the question is whether
the commission of suicide by a woman had been abetted by her husband or any relative of
her husband and it is shown that she had committed suicide within a period of seven years
from the date of her marriage and that her husband or such relative of her husband had
subjected her to cruelty, the court may presume, having regard to all the other
circumstances of the case, that such suicide had been abetted by her husband or by such
relative of her husband. As per Section 113B, when the question is whether a person has
committed the dowry death of a woman and it is shown that soon before her death such
woman had been subjected by such person to cruelty or harassment for, or in connection
with, any demand for dowry, the court shall presume that such person had caused the dowry
death.
G.V. Siddaramesh v. State of Karnataka
Court held that there must be material to show that son before the death of woman, such
woman was subjected to cruelty or harassment for or in connection with demand of dowry,
and then only a presumption can be drawn that a person has committed the dowry death of
a woman

Kailash v state of Madhya Pradesh

The word “soon before” in section 113B cannot be limited by fixing time limit. It is left to be
determined by the courts, depending upon the facts and circumstances of the case.

Thus, when the presumption of the court is in favour of a party, the burden of disproving it
rests on the opposite party.

Plea of alibi
Introduction
Plea of alibi is that form of defense through which accused attempts to prove that he was in
some other place at the time when alleged offense was committed. In fact, criminal’s laws
have provided accused different defenses to prove his innocence against accusation. No-
doubt, plea of alibi is one of such defenses. However, plea of alibi is considered different from
all of other such defenses.

Meaning of Plea Alibi

Alibi is Latin World, which means elsewhere. And plea of alibi means that accused was
physically not present at time of scene of offence because he was present at another place.
In fact, if accused suggests to court that he was somewhere else at time of commission of
alleged offence, such suggestion is called plea of alibi.
Relevant provision
Section 103. Burden of proof as to a particular fact – the burden of proof as to any
particular fact lies on that person who wishes the court to believe in its existence, unless it is
proved by any law that the proof of that fact shall lie on any particular person.
Illustration A prosecutes B for theft, and wishes the court to believe that B admitted the theft
to C. A must prove the admission.
B wishes the court to believe that, at the time in question, he was elsewhere. He must prove
it.

State of Haryana v Sher Singh

Court held that plea of alibi is taken by accused, it is he who has to prove it.