Oral and Documentary

Evidence

Oral Evidence
Oral means by word of mouth.
But a witness who is unable to speak may give his statement in any
manner in which he can make it intelligible, by writing or by signs.
All facts except the contents of a document may be proved by oral
evidence.
However the oral evidence must be direct and must not be hearsay.
Direct oral evidence are the testimonies of witnesses who saw, heard
or perceived a fact.
If it refers to fact which could be seen, it must be the evidence of a
witness who says he saw it.
If it refers to fact which could be heard, it must be the evidence of a
witness who says he heard it
If it refers to an opinion or to the grounds on which that opinion is
held, must be someone who holds that opinion an those grounds.

 In cases of opinions, such as those of experts, the expert

must come and depose his opinion in Court.
Kutubuddin Ahmed vs E P I D C (27 DLR 433)- an expert
opinion on a point of science in which he is well versed is
relevant. The opinion must be brought on record through his
own testimony in Court.

 In every piece of direct evidence, three element are involveda. Perception

b. Recollection
c. Narration
Problems of direct evidence
In perception: mistakes may occur, shortness of sight or hearing,
insufficiency of lights, presence of obstruction or crowd or noise or
distance or intoxication,
As to recollection: his weak memory, lapse between the incident
and time at which he is deposing in Court, daily busy life and
activities which made his memory of the particular fact indistinct.
Narration: may be incoherent, a child witness may imagine things
and stay into dreams or fantasies, weakening in straight-forwarding,
aged witness may have clear memory of remote past while lapsing
from recent ones.

Other problems: biasness, tutored witness, bribed by opponent,

morally depraved individual.
Advantages of direct witness:
The oath conducted binds him both morally and legally to
speak truth and truth only.
The scope and opportunity of cross-examination is most
effective was of ascertaining the truth or falsity in direct
evidence.

Circumstantial evidence
Evidence received from facts which are so closely connected
with the fact in issue that it is reasonable to infer from their
existence the existence of the fact in issue is circumstantial
evidence.
Circumstantial evidences relates to a series of facts other
than the fact in issue and by establishing a relation of cause
and effect, leads 6o a satisfactory conclusion of the
existence of the fact in issue beyond reasonable doubt.
Circumstantial evidence is indirect evidence and only
admitted when no direct evidence is available.
For example, there is no direct testimony against the
accused, but only some facts which afford an inference or
presumption of his involvement in the criminal act. Running
away of a husband after his wife has been brutally murdered.

 The circumstances that the deceased was last seen with the
accused is an important fact to prove guilt of the accused.
Abdus Samad vs The State (16 DLR SC 261)- a minor
girl was last seen with the accused
Ghulam Ahmed Khan vs The State (10 DLR WP 55)wife found dead in the hotel room while husband injured in
the corridor.
Man may lie, but circumstances do not- not always reliable.

Hearsay evidence
Hearsay evidences, except in recognized exceptions, always
rejected and excluded from admissibility.
However, the statements may be used to prove other facts.

Documentary Evidence
Documents produced before the Court for inspection are documentary evidence.
Also called primary evidence.
When a document is prepared in different parts, each part is a primary evidence
of the document.
When a certain fact is written down or laid down in a document, it is
documentary evidence.
Documentary evidence can be proved either by primary evidence or by
secondary evidence.
Primary evidence means the original copy.
Secondary includes:
Certified copies
Copies made from the original by mechanical process
Copies made from or compared with the original
Counterparts of documents as against the parties who did not execute them
Oral accounts of the contents of a document given by a person who has himself
seen it.

 Normally primary evidence, for following situation secondary:

When original is shown or appears to be in the possession or power of
the person against whom the document is sought to be proved, or of
any person out of reach, or of any person legally bound to produce it,
but does not produce it.
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.
When the original has been destroyed or lost, or when the party offering
evidence cannot produce it in reasonable time for no personal default
When the original cannot be easily movable
When it is a public document
Where certified copy is allowed by this Act or other law
When original consist of numerous accounts or other documents which
cannot conveniently examined in Court