CONCEPT OF THE BEST EVIDENCE RULE

EVOLUTION OF THE CONCEPT OF THE BEST EVIDENCE RULE

BLOG/ NEWS Criminal Law Indian Evidence LAW EXPLAINED
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The Evidence play very widely role in determining the rights and liabilities of the conflicted parties. The best evidence rules means that the secondary evidence won’t be applicable if the primary evidence present. Its very important to present best evidence in front of the honorable court to determine or to delivery justice for the betterment. Evidences are of two type oral and documentary evidence.

Oral evidence is explained under section 59 and 60 of the Evidence Act, 1872. Defined in section 3 of Evidence Act, 1872 which means something spoken or expressed by witnesses and accepted in court for feather inquiry. Oral evidence also includes the statement if, made by the person in signs and written forms who cannot speaks.

Documentary evidence is explained under chapter 5 of Evidence Act, 1872. Defined in section 3 of Evidence Act, 1872 which states that any substance which is expressed or described through the mode of letter, figures, remarks or any electronic data. It is a statement submitted in documentary form and accepted in court for feather inquiry.

Origin and History.

In medieval period, pre- Roman advocated that the original written documents are not a indicia of right but the right in themselves[1]. This concept changes in 18th century when Doctrine of Profert in Curia is introduced in evidence law. This doctrine is closely related to the doctrine of best evidence of rule. In case of the profert in curia if the liable person fail to present the required original document then person losses all the rights to create the document.

The best evidence rule was originated in the 18th century in case of Ford v. Hopkins, 1700 and Omychund v. Barker, 1745 in which Lord Harwicke stated that no evidence was admissible unless it was “the best that the nature of the case will allow”.[2] This rule came into existence because in that period copying of document is done by the court clerk manually and there was a chance of error in the copied document.

Earlier, most of the people were illiterate and emphasizes great importance on ceremony and document writing affecting property and there rights. Later onward this mindset of the people disappeared in early 18th century, when the Doctrine of Best Evidence Rule was established which also known as the Original Documentary Rule.

The rule was first allocated in the case of Ford v. Hopkins in which exponent of evidence in which contents of written document need to be produce the original document and reason for it. In thus case court applies the doctrine of best evidence rule with an understanding and also gives importance to the verbatim language of the law in light of a slight variation of words may means a great difference in right.[3]

Evidence – Meaning and its significance

The word Evidence can be stated as the material presented in front of a court for assisting a judge to delivery the best judgement in the matter. The judgement of the court is limited to the evidence presented so its important for the conflicted parties to provide as much as relevant and admissible evidence to support their case.

Evidences are of two type –

  • Oral Evidence
  • Documentary Evidence
  • Best Evidence Rule
  • Oral Evidence : is explained in section 3 of the Evidence Act, 1872 which stated that “All statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statement are called as oral evidence”[4]. The word oral simply means something expressed or spoken by the mouth, which is accepted in court for feather inquiry or examination during the trial. The oral evidence includes the statements given by the witnesses in signs or written forms. The oral evidence is are of two type direct or indirect oral evidence. Oral evidences is play very widely role in the trial of the case because it stimulates and extracts what witness is seen and want to say regarding the trials.
  • Documentary Evidence : is explained in section 3 of Evidence Act, 1872 which stated that “All documents including electronic records produced for the inspection of the court, such documents are called documentary evidence”.[5] The documentary evidence simply means evidence which is in electronic form and admissible in court for feather trail of the case. Documentary evidence are of two type primary and secondary documentary evidence.

Evidence plays very widely role in the trial of any case presented in front of the court. Evidences are the one which assist the court in delivering the judgement because the evidences are the which help the court in knowing who is guilty. It is the duty of the liable party to represent admissible evidence in the court as prescribe in the law so that court can delivery best judgement for the betterment. If fail in doing so it will lead to default in judgement and court may get failed in delivering the judgement which is required .

Best Evidence Rule.

In India, the best evidence rule is not particularly explained but it is the basis of section 91 and 92 of the Evidence Act, 1872. The principle is also elaborated     

In section 60 and 64 of the Evidence Act,1872.

Section 91 states that whenever there is a question arise in front of the court in context to the document then the original document have to be produce in front of the court. This section is an exclusive rule as it excludes the use of oral evidence in context of the document where secondary evidence is admissible as the proof of the document.

This principle is introduced because the main written document is the one which at time of dispute can be produced in front of the court as evidence. But if, the oral and secondary evidence is produced in the court then the whole purpose of the written document is destroyed i.e we can say that section 91 is most inflexible in nature. This section is only applied to contract, grants and dispositions. In this section if there is more than one originally document then they need to be produce in front of the court during trial. In this section its also stated that if there is more then one original for the same contract, grant and dispositions the only one document is need to be produce in front of the court for the trial. In section its also stated if question of evidence arise other than the above mentioned then this rule will not apply and court can consider other admissible evidences for the trials in seak of justice.

Section 60 states that oral evidence must be direct in nature. According to this section the best evidence rule is producing the direct oral evidences in front of court because they are more admissible then indirect oral evidence. Direct evidence includes the witness who saw or heard or perceived by any manner which is admissible in court.

Section 64 states that primary evidence are best evidence rule. According to this section primary evidence includes the primary evidence includes the original documents which are more admissible in the court. Copy of the primary evidence cannot be termed under best evidence rule. They are termed under secondary evidence whose admissible depends on the circumstances.

If the court have both direct oral evidence and primary documentary evidence for the trial. The court will consider primary documentary evidence under best evidence rule because the originality of the document can only questioned when its produced in form of secondary documentary evidence.

Evolution.

The best evidence rule came in existence in 18th century. In early period large number of the population were illiterate and emphasizes great importance on ceremony and document writing affecting property and there rights. Later onward this mindset of the people disappeared in early 18th century, when the Doctrine of Best Evidence Rule was established which also known as the Original Documentary Rule. In India the best evidence rule is not explained anywhere but basis are given in section 60, 64 and 91 of Evidence Act, 1872. In above mentioned sections its highlighted what is best evidence rule and which fall under the doctrine. It includes the direct oral evidence and primary documentary evidence because these two are highly admissible in court during trails. In the 20th century, because of the advancement in the technology was seen through development of the printers, xerox machines and computer. This lead to reproduction of the originals without any fear errors. The best evidence rule is now use to decide genuineness of the documents produce in front of the court for trail. This is more frequently in civil matters, where documents need to be produce before the court by the party. It is the duty of the court to make sure the genuineness of the produced documents before taking it as evidence for the trial.

Relevant Case Laws.

In the case of Bank of Baroda v. Shree Moti Industries Ltd. the Bombay high court held that the party who have the possession of the original document, its the duty of the same party to produce it in front of court for the trial .[6]

In the case of State Bank of India v. Mula Shakari Sakhar Karkhana Ltd.[7] it was held that the court will only allocate the nature of the transaction followed by the terms and conditions of the contract with keeping in mind the circumstance in a case where documents are suffered through some type of ambiguity. If there is no such ambiguity in production of documents the court will not be liable to take any such recourse for the trial.

In case of Balram Baoji Nasare v. Mahadeo Panduji[8] the honourable high cout of Nagpur held that the section 91 and 92 of the Evidence Act, 1872 will applicable only if the whole transaction is in documentary form. If few parts of the contract is in the form of document and other part is in the form of oral then above mention sections are not admissible for the same case. If no signature or proposal or acceptance of date is not present but the terms and conditions are there then this section is applicable because section demands all the terms not whole contract.

In case of Bai Hira Devi official Assignee of Bombay[9], the honourable supreme court of India held that the section 91 of the Evidence Act, 1872 is consonance with the best evidence rule. In this case the honourable supreme court of India established the difference between the section 91 and 92 of Evidence Act, 1872. Court said that the documents are need to be produced according to the section 91 and after the establishment of the document section 92 will come in role to excluding any oral agreement if any, and for the purpose of adding, subtracting or contradicting any of the statement in any terms of the evidence. The honourable court also held that section 91 is admissible on all the documents produce for the trials but section 92 is applicable only when the document is described dis-positive. Section 91 is admissible on both kind of documents bilateral documents and unilateral documents whereas, section 92 is only applicable on bilateral documents. The rule of section 91 is universal but section 92 is depending upon the parties to the document or their respective representatives in order of interest.

Conclusion

The best evidence rule is the basic necessity, this rule bound the part to present the original document and not allow them to do any modification in any form in the documents. It is stringent and hard for the party who is going to produce the evidence in front of the court. Since ages the main focus of rule of evidence is on primary source about controversial issues through exhausting the best available resources in front of the court. In Indian Evidence Act, 1872 the doctrine of best evidence rule is not limited with section 91 and section 92 but it’s also elaborated in section 60 and 64 also. The section 91 and section 92 are one of the most important sections because they deals with the document which original.

Section 60 and section 64, deals with direct and electronic evidence respectively, which are also the form of the documentary evidences and thus, these two sections can said to be the basis of the best evidence rule. 

As we seen in many cases various aspects such as confessions or in partition of the property and many more are governed under the section 91 and 92. Thus, these two sections provide evidentiary value of more than one documents and admissibility of oral evidence in different instances.

These two sections 91 and 92 is defined under the case where documents are exclusive evidence. Both these sections are only admissible only if the terms of transaction is mentioned of the documents. Law has taken all the measures on every aspect regarding the copying of evidence to improve the materially trial procedure and administration of justice. But it nowhere means that the production of evidence is protected under section 91 and 92.

-BY DHEERAJ KUMAR


[1] Cynthia A. DeSilva, Evidence Rule Repeal: Towards a Greater Appreciation for Secondary Evidence, 1999, 30 MC George.

[2] Dublin, The Law of Evidence, 1754.

[3] Scholarticles.wordpress.com.

[4] The Indian Evidence Act, 1872.

[5] The Indian Evidence Act, 1872.

[6] Bank of Baroda v. Shree Moti Industries Ltd. AIR, 2008, Bom 201.

[7] State Bank of India v. Mula Shakari Sakhar Karkhana Ltd., 2006, 6 SCC 293.

[8] Balram Baoji Nasare v. Mahadeo Panduji AIR 1949 Nag 389.

[9] Bai Hira Devi v. Official assignee of Bombay AIR 1958 SC 448.

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