By: Souvik Chatterji.

MODES OF PROOF
Modes of proof
§ A fact may be proved either by oral evidence of the fact or by documentary
evidence, if any. That means that there are two methods of proving a fact.
One is by producing witnesses of fact, which is called oral evidence.
§ And the other is by producing a document which records the fact in question
called documentary evidence.
§ Section 59 – All facts except the contents of documents, (or electronic
records) may be proved by oral evidence.
§ Oral evidence includes the statements of witnesses before the Court which
the Court either permits or requires them to make.
§ The statement may be made by any method by which the witness is capable
of making it.
§ A witness who cannot speak may communicate his knowledge of the facts
to the court by signs or by writing and in either case it will be regarded as
oral evidence.
Section 60
§ Oral evidence must in all cases be direct.
§ 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 manner, it
must be the evidence of a witness who says he perceived it by that sense or in
that manner.
The section excludes hearsay evidence. Hearsay evidence means the statement of a
witness not based on his personal knowledge but on what he heard from others.
Stobart v. Dryden, (1836), 130 ER 531 – In a mortgage transaction the question was
whether the mortgage deed had been fraudulently altered by one of the
attesting witness to the effect that he had fraudulently altered the deed.
The evidence was held to be inadmissible . It was not that of a person who had
himself seen the deed altered, but who had only heard about it.
Documentary evidence
§ Document means any matter expressed or described upon any substance
by means of letters, figures or marks, or by more than one of those means,
intended to be used, or which may be used, for the purpose of recording
that matter.
§ Mahabir Prasad v. Surinder Kaur, AIR 1982 SC 1043 – The case involved the
eviction of a tenant on the ground of sub-letting. The finding of the Rent
Controller that there was subletting, was based upon tape-recorded
conversation between the tenant and the husband of the landlady.
§ The Court held that tape-recorded conversation can only be relied upon as
corroborative evidence of conservation deposed by any of the parties to the
conversation.
§ In the absence of any such evidence, the tape cannot be used as evidence in
itself.
§ The Supreme Court had also held that after recording the tape should have
been kept in proper custody.
Section 61
§ Proof of contents of documents – The contents of document may be proved
either by primary or by secondary evidence.
§ Tex India v. Punjab and Sind Bank, AIR 2003 Bom 444 – Where the document
carried adhesive stamps which belonged to a period prior to six months
from the date of purchase, the Court said that such document could not be
accepted in evidence. It would have been admissible if it was not creative of
any rights in favour of any party and merely recorded something.

§ Section 62 – Primary evidence means the document itself produced for the
inspection of the Court.
§ The following four are included in the expression primary evidence.
§ (i) The original document itself produced for the inspection of the Court.
§ (ii) Where a document is executed in several parts, each part is primary
evidence of the document.
Section 62
§ (iii) where document is executed in counterparts, each counterpart is
primary evidence against the party signing it.
§ (iv) where a number of documents are all made by one uniform process, like
printing, or photography, each is primary evidence of the contents of
document.

§ Section 63 – Secondary evidence.

§ Secondary evidence means (a) certified copies given under the provisions
contained,
§ (b) copies made from the original by mechanical processes which in
themselves insure the accuracy of the copy, and copies compared with such
copies,
§ (c ) copies made from or compared with the original,
§ (d) counterparts of documents as against the parties who did not execute
them
Secondary evidence
§ (v) oral evidence of the contents of a document given by some person who
has himself seen it.

§ Ramesh v. Union of India, (1988) 1 SCC 668 – Newspaper report of an

interview with the author of a book is not relevant for the purpose of
proving the contents of a book. The action was to restrain the telecasting of
the serial “Tamas” which was based upon a book.
§ The Supreme Court agreed to look at the news items in view of the public
importance of the matter.

§ Section 64 – Documents must be proved by primary evidence except in the

cases hereinafter mentioned.
§ Section 65 –Cases in which secondary evidence relating to documents may
be given.
Section 65
§ (i) when original is shown or appears to be in the possession of (a) a
person against whom the document is sought to be proved,
§ (b) of any person out of reach of, or not subject to the process of the
court,
(c ) any person legally bound to produce it,
When original is not easily movable,
When the original is a public document, etc.

AIR 2004 Cal 204 – In a suit for specific performance of an agreement for
sale, the plaintiff sought for permission to tender photostat copy of
the agreement because the defendant had failed to produce the
original document which was in his possession. The defendant did
not prove that the original was lost and he had lodged a complaint
with police. Plaintiff was allowed to produce photostat copy.
Section 66
§ Rules as to notice to produce – Section 66 provides that party who
has possession of the original, or his attorney or pleader, should be
given notice to produce.
§ Such notice is not required (a) when the document is a notice by
itself,
§ (b) when the nature of the case makes it clear to the party in
possession that he will be required to produce it,
§ (c ) when it appears that the party has obtained possession of the
original by fraud or force,
§ (d) when the adverse party has the original in court, etc.

§ Section 68 - Proof of execution of document required by law to be

attested.
Section 68
§ If a document is required by law to be attested, it shall not be used
as evidence until one attesting witness at least has been called for
the purpose of proving its execution, if there be an attesting witness
alive and subject to the process of the Court and capable of giving
evidence.
§ No attesting witness need be called in the case of a document not
being a will which has been registered under Indian Registration Act,
1908.
§ State of Haryana v. Raj Kaur, AIR 2001 P &H 322 – The original will
was not produced. The sole attesting witness had no recollection
and neither there was any explanation as to why natural heirs were
excluded in favour of the nephews.
§ The sub-registrar who registered the will was not produced. It was
held that the will was not proved to the satisfaction of the court.