Law of Evidence Page 1 3/6/2011

In the name of Allah, most merciful and most

gracious…..

Assignment
On

“What facts may be proved by oral evidence?

What does secondary evidence mean and include?
In which cases secondary evidence relating to documents may be given?”

Submitted to
Mr. Shahiduddin Hosain
Advocate
The Supreme Court of Bangladesh
Guest teacher, Dept. of Law
International Islamic University Chittagong,
Dhaka Campus.

Subject: What facts may be proved by oral evidence?

What does secondary evidence mean and include?
In which cases secondary evidence relating to documents may be given?

Course Title: Law of Evidence

Date: 03-March-2011

Submitted by
Name: Oliur Rahman
Matric No: L081506
6th Semester
Bachelor of law

International Islamic University Chittagong

Law of Evidence Page 2 3/6/2011

Dhaka Campus
Evidence, in relation to law, includes all legal means, exclusive of mere arguments,
which tend to prove ofr disporive any fact, the touth of which is submitted to judicial
investigation.
Sir James Fitxjmaes Stephen has said, “ the law of Evidence is that part of the law of
procedure, whice, with a view to ascertain individual rights and libilites in particular
cases, decides:
1. what facts may and may not, be proved in such cases;
2. what sort of evidence must be given of a fact which may be proved;
3. by whome and in what manner the evidence must be produced by which any fact
is be proved.”

 Facts which may be proved by Oral Evidence

A judicial proceeding takes place where there arises dispute in respect of right asserted by
one or more parties and denied by some other. In such a proceeding the matter in dispute
is known as fact.

According to Section 59 of the Evidence Act, 1872 [Act No. I of 1872] – ‘All facts,
except the contents of documents, may be proved by oral evidence’.

The term oral evidence, according to Section 3(1) of the Evidence Act, 1872 [Act No. I
of 1872], is defined below –
‘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’.

According to Section 60 of the Evidence Act, 1872 [Act No. I of 1872] – Oral evidence is
to be direct and within the purview of this section direct evidence means the testimony of
a witness who saw, heard or perceived a fact, as the case may be, or held a opinion if the
evidence refers to an opinion.

Though from the plain reading of provision as laid down in section 59 of the Evidence
Act, it appears that every fact except documents is provable by oral evidence
circumstance and human diligence never permits so.

In a judicial proceeding the courts have to give decisions about the existence or non-
existence of a right or liability to reach at the conclusion they need materials. What is
material (fact) which may be produced before a court is the first question because if there
is no limitation and restriction the introduction of irrelevant facts will waste the time of
the court and will also hamper justice. Therefore the first thing in the rules of the
evidence is the point of relevancy.

Relevancy means what facts may be brought before court i.e. may be proved. The facts
that are allowed to be proved under the Evidence Act are called relevant facts.

Relevant facts means those facts which may be allowed to be proved under some of the
provisions as laid down in section 6 to section 55 of the Evidence Act, 1872.
Law of Evidence Page 3 3/6/2011

However only the relevant facts may be proved by admissible oral evidence due to the
fact that in the presence of documentary evidence, oral evidence becomes inadmissible as
to truth or falsehood of such documentary evidence.

In fact proviso to section 59 as mentioned above lays down that where written documents
exist, they shall be produced as being the best evidence of their own contents and no oral
evidence can be adduced to prove as to what is wrong in the document.

In this respect the following references may be cited here –

‘Oral or extraneous evidence to contradict the terms of the contents of a document is
inadmissible under section 92 of the Evidence Act’ – reported in 39 DLR (AD) 78

‘No evidence is admissible to vary the contents of the documents by oral evidence’ –
reported in 1983 BLD (AD) 105

‘Oral evidence of no worth at all contrary to admitted documentary evidence on record

and could also decide the question of fact without consideration of the contents of the
relevant documentary evidence’ – reported in 43 DLR 429

Though it appears that oral evidence bears no admissibility where there is documentary
evidence, it is worth noting here that where such document is proved forged or false, oral
evidence is valuable in that case and relevant fact may be proved by oral evidence. The
following decision is mentioned in this respect –
‘Although oral evidence contradicting the contents of a document is not generally
admitted, such evidence is admissible in exceptional circumstances when the validity of
the document itself on the ground of fraud is in issue’ – reported in 45 DLR 615

Whereas in absence of documentary evidence, the given fact is to be proved by oral

evidence, in such case testimony of interested witnesses is not credible as well as
admissible. The decision as reported in 39 DLR (AD) 223 in this respect in produced
below -

‘Reliance on oral evidence of the interested witnesses in utter disregard of the principles
of law of evidence deprecated’

From the above discussion following conclusion appears –

(i) Only the relevant facts which comes within the purview of Ss. 6 – 55 of the
Evidence Act, 1872 can be proved by way of admissible evidence;
(ii) Oral evidence is admissible in absence of relevant documentary evidence or
when the relevant documentary evidence is proved false or forged;
(iii) Reliance on oral evidence of the interested witnesses is utter disregard of the
principles of law of evidence.

 Secondary Evidence:
 Law of Evidence Page 4 3/6/2011

As per section 63 of the Evidence Act, 1872, secondary evidence means and includes –
(1) Certified copies given under certain provisions of the Evidence Act, 1872;
(2) Copies made from the original by mechanical processes which in themselves
ensure the accuracy of the copy and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has
himself seen it.
Discussion:
Certified copy: According to Section 76 of the Evidence Act a copy of an original public
document made, certified and supplied on demand affixing seal of the office by a public
officer is called a certified copy of that document.
According to section 74 of the Evidence Act the following documents are to be treated as
public documents –
(1) documents forming the acts, or records of the act,
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive , of any part of
Bangladesh or of the Commonwealth, or of a foreign country;
(2) Public records kept in any state of private documents

Copies made from the original by mechanical process: The copies must be made from the
original by such mechanical process as in themselves insure the accuracy of the copy
such for example the printing, lithography or photography.

Copies made from or compared with the original: If a copy is prepared word for word
from the original it is secondary evidence of the original. In this case even a copy of a
document which is not a public document can be given in secondary evidence. A copy
prepared by another copy compared with the original is secondary evidence.

Counterparts of documents – The counterparts of a document are secondary evidence

against the person who did not execute it. The best example of this would be a patta and a
qabuliat (in respect of lease of property by landlord to some tenant).

Oral accounts of the contents of a document given by some person who has himself seen
it – Sometimes it so happens that neither the original nor a certified copy of it is
available. In such cases it is enough if somebody who has read the document is produced
to relate the contents. The word ‘seen’ under this clause means read. Consequently a
person who proposes to testify to the contents of a document must have read it.

 Cases in which secondary evidence relating to documents may be given:

As per the provision of section 65 of the Evidence Act, 1872 secondary evidence relating
to documents may be given in the following cases.
(a) the original is shown or appears to be in the possession of power – of the person
against whom the document is sought to be proved, or of any person out of reach
of, or not subject to the process of the Court, or
Law of Evidence Page 5 3/6/2011

of any person legally bound to produce it,

and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be
admitted in writing by the person against whom it is proved or by his
representative-in-interest;
(c) when the original has been destroyed or lost, or when the party offering evidence
of its contents cannot, for any other reason not arising form his own default or
neglect, produce it in reasonable time;
(d) when the original is of such a nature as to be easily movable;
(e) when the original is a public document within the meaning of section 74 of the
Act;
(f) when the original is a document of which a certified copy is permitted by this Act,
or by any other law in force, to be given in evidence;
(g) when the original consists of numerous accounts or other documents which
cannot conveniently be examined in Court, and the fact to be proved is the general
result of the whole collection.
In cases (a), (c) and (d) as mentioned above any secondary evidence of the contents of the
document is admissible.
In case of (b) the written admission is admissible.
In case of (e) or (f), a certified copy of the document, but no other kind of secondary
evidence is admissible.
In case of (g), evidence may be given to the general result of the documents by any
person who has examined them, who is skilled in the examination of such documents.

It appears that section 65 is exhaustive. Thus when the admissible and original account is
available no copy of the same as secondary evidence is admissible. Nor secondary
evidence is admissible when party fails to explain the reason for non-production of
original. Observation of the Court as reported in AIR 2000SC 1759 is worth mentioning
here which runs as follows –

‘Application seeking permission under Section 65 of the Act to lead secondary evidence
must contain full details and must be supported by a proper affidavit’.

From the above list it may be stated that secondary evidence can only be given when the
primary evidence or the document itself is admissible. The provisions of section 65 of the
Act as mentioned earlier provides an alternative method of proving the contents of a
document which for various reasons can not be produced. It is designed only for the
protection of persons who in spite of their best efforts are unable, from circumstances
beyond their control to place before the Court primary evidence of document as required
by law.
End
 Law of Evidence Page 6 3/6/2011

 Sources:
1. THE INDIAN EVIDENCE ACT, 1872 (Act No. 1 of 1872); By K.K. Singh &
H.P. Gupta. Published by: Eastern Book Company, Lucknow.
2. Sarkar’s commentary on Law of Evidence (In India, Pakistan, Bangladesh,
Srilanka and Malaysia) by S.C. Sarkar; 1st Edition, 2004 (Reprint, 2005);
Published by – Dwivedi Publising Company and Dwivedi Law Agency;
3. Law of Evidence by A.N. Saha, First Published 1987, With Supplemental 1991,
published by Eastern Law House Private limited;
4. The Law of Evidence by Batuk Lal, Twelfth Edition, 1992, Published by Central
Law Agency;
5. Law on Evidence by Zahirul Huq, Second Edition, 2002; Published by
Bangladesh Law Book Compay;
6. Reflections on the Law of Evidence by Muhammad Nazrul Islam; First Edition,
March 1995, Published by the Author;
7. Obaidul Huq Chowdhury’s The Evidence Act; Third Edition 1999; Published by
Esrarul Huq Chowdhury.