Best Evidence Rule in Indian Law

Joji George Koduvath, Kottayam.

PART I

Introduction

According to the Indian Evidence Act (Sec. 3) ‘Evidence’ means and includes all statements made before the courts by witnesses, and all documents including electronic records produced in the Court. The ‘best evidence rule’ is laid down in-particular in Sec. 60 and 61 of the Evidence Act (oral evidence must be direct; and contents of documents are to be proved either by primary or by secondary evidence).

Oral Evidence must be Direct

Sec. 60 of the Evidence Act directs that the oral evidence must be direct; that is to say:

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 other manner,
it must be the evidence of a witness who says he perceived it by that sense or in that manner;
if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

Documents must be Proved by Primary Evidence

Sec. 61 of the Evidence Act directs that the contents of documents may be proved either by primary or by secondary evidence. Best evidence rule insists for primary evidence when original documents exists; and Sec. 64 stipulates that documents must be proved by primary evidence except in the cases mentioned in Sec.65. Sec. 65 clause (a) to (g) delineates the cases in which secondary evidence relating to documents may be given.

Best-Evidence Rule

Indian Evidence Act lays down the following principles of ‘Rule of Best-Evidence’:

No.	Proposit`i`ons	Sec. in Evd. Act
1	Best available evidence must be produced. If not, adverse presumption will be taken.	114 (g)
2	Oral evidence must be direct. Hearsay evidence is accepted in rare instances (that falls under Sec. 6 of the Evid. Act).	60
3	Documents must be proved by Primary Evidence. Secondary evidence will be allowed only when it is so permitted.	64 & 65; 22 & 144;
4	To prove the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, document itself, or secondary evidence, must be produced.	91
5	No evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.	92
6	Sec. 93 and 94 speaks as to exclusion of evidence.	93 & 94
7	Sec. 94 to 99 lays down the circumstances in which evidence can be given with respect to documents.	94 to 99
8	Circumstantial and Presumptive evidence can be resorted to in proper cases.	114
9	Substantive evidence that requires corroboration must be corroborated.	157

Best available evidence must be produced; If Not, Adverse Presumption will be Taken

Generally, it is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld.

But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably (as shown below). Courts take into consideration the pleadings and decide whether the document/evidence withheld has any relevance. The court also cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The conduct and diligence of the other party is also important. Existence of some other circumstances may justify non-production (Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).

The rule that best available evidence must be produced is taken in the following cases:
Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6;
Hiralal v. Badkulal, AIR 1953 SC 225;
A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136;
The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755;
Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413;
M/s. Bharat Heavy Electrical Ltd. v. State of U.P., AIR 2003 SC 3024;
Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126.

In Mohan Lal Shamlal Soni v. Union of India, AIR 1991 SC 1346, the Supreme Court held as under:

“It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.”

Invoking best evidence rule it is observed by the Supreme Court in Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541, as under:

“13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413).”

In Jitendra v. State of M.P (2003) our Apex Court observed that charas and ganja seized from the accused was the best evidence in that case and the non-production of the same in court was seriously taken note of by the court and observed that that mere oral evidence as to the same was insufficient. (See also: Mohd. Aman, Babu Khan v. State of Rajasthan, AIR 1997 SC 2960.)

In Tomaso Bruno v. State of U.P, (2015) 7 SCC 178, it is observed as under:

“22. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW-1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.”

With regard to adverse presumption the Apex Court held in Tomaso Bruno as under:

“28. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act.”

Non examination of the best person as a witness was also taken seriously by our Apex Court in Jagga Singh v. State of Punjab, AIR 1995 SC 135, observing that ‘the best evidence having not been brought on record’ the it would not be justified, ‘to hold that it was the appellant who had done the mischief’.

In Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 also the Apex Court found fault for making no attempt to examine material witnesses and observed that the best evidence which would have been thrown light on the controversy in question was withheld.

Need for placing best evidence in cases of circumstantial evidence is emphasised in Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2019 SC 1 also.

Rule of ‘Next Best Evidence’

Under the Rule of Best Evidence the law requires, production of the next best evidence if it is not possible to produce the best evidence. See the following:

Balkar Singh v. State of Punjab, 2005 (1) RCR (Criminal) 576 : 2005 Cri LJ (NOC) 180 (the school record is the next best evidence in the absence of any entry in the office of Registrar of Births and Deaths.)
Jagdamba Tea Factory Vs. Parshotam Kishan, 2008-3 PunLR 388, 2008-3 RCR(CIVIL) 17,
2008-1 RCR(RENT) 507 (Where there is no lease deed nor any receipt, the rate of rent could well be determined on the basis of house-tax register, which was the next best evidence available. Gurinder Singh v. Kundan Lal, 2005(1) RCR(Rent) 332 : 2005(2) CCC 128 was relied on where entries in the municipal house tax register was considered.)
Chiman Lal v. Datar Singh, 1998 CriLJ 267, 1997 (1) WLN 396.
M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456

In C. Assiamma v. State Bank of Mysore, 1992 -74 Com Cas 139, it is pointed out that the copy of a deed of transfer is not ordinarily a document of title for the purposes of an equitable mortgage, and that there may be cases where the original document is lost and there are no chances of that document being made use of for any purpose; and in such a circumstance the next best evidence of the owner’s title to the property would be a certified copy of that document.

Certified Copy alone Admitted as Secondary Evidence , Not Xerox Copy

Relying on Kalyan Singh v. Chhoti, AIR 1990 SC 396, the Madras High Court, in Ananthkrishnan V. K G Rangasamy, 2020-1 MadLW 355, observed that when a document was a registered one, the xerox copy of the same was not admissible as secondary evidence; and the court found it bad to create an equitable mortgage with xerox copy. The same view is taken by the Kerala High Court in Syndicate Bank v. Modern Tile and Clay Works, 1980 KLT 550. It is followed in Biju Paul Vs. Nedungadi Bank,2012-245 KerLR 291.

But, the AP High Court observed in G Balamani v. Parimi Manga Devi, 2019-4 ALD 401,
2019-3 CIVCC 590, 2019-4 ALT 203, that a valid equitable mortgage could be created by deposit of photostat copies of title deeds.

Non-Examination of Registrar

There is a presumption on registration of deeds. Therefore, the best evidence rule requires examination of Registrar when one seeks to rebut or displace the presumption. In Muruga Udayar v. Thirumalai Enterprises, 2011-3 LW 513, the Madras High Court took it seriously that the party, who raised dispute as to the execution of the agreement, did not chose to examine the Sub-Registrar, for proving his case that he did not appear before the Sub-Registrar and put his signature towards registration.

Oral Evidence must be Direct; Hearsay Evidence, Inadmissible

As per the Evidence Act (Sec. 3), ‘evidence’ means and includes oral evidence and documentary evidence. As stated earlier, Sec. 59 of the Evidence Act says that all facts, except the contents of documents or electronic records may be proved by oral evidence. Sec. 60 directs that the oral evidence must be direct.

Sec. 6 of the Evidence Act – an Exception to Hearsay Rule. Though the Evidence Act does not contain the word ‘hearsay’, Sec. 60 makes it clear that ‘hearsay evidence is not admissible. But, Sec. 6 is an exception to this rule. It lays down that when the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. It allows ‘res gestae’ (facts forming same transaction) evidence. The principle is that those facts ‘speak for themselves’. Evidence of a fact that took place in continuation of the real act in issue is embodied in ‘res gestae and in Sec. 6 of the Evidence Act. Sec. 6 reads as under:

“6. Relevancy of facts forming part of same transaction. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.”

In Sukhar v State of U.P. 1999 AIR SC 3968: (1999) 9 SCC 507 it was held that the statement of the witness indicating that the injured told him that his nephew had fired at him, would become admissible under Section 6 of the Evidence Act and it was observed that the rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae.

In Bishna vs State of West Bengal, AIR 2006 SC 302, besides the eye-witnesses, two more witnesses, PWs.16 and 19 were examined in this case. They came to the place of occurrence immediately after the incident had taken place and found the dead body of Prankrishna and injured Napal in an unconscious state. PW-16 found the mother of Prankrishna and Nepal weeping as also Chepulal and Shambhu present there. He heard about the entire incident from Chepulal including the role played by each of the Appellants and others. PW-19 also corroborated the testimonies of the prosecution witnesses. He heard about the incident from Subhas Mahato. The Supreme Court held that the evidence of these two witnesses is admissible in terms Section 6 of the Indian Evidence Act.

In Vasa Chandrasekhar Rao v. Ponna Satyanarayana, (2000) 6 SCC 286, the father of the accused informed the father of the deceased over telephone that accused had killed the deceased. There was no finding that the information was either of the time of commission of the crime or immediately thereafter, so as to form the same transaction. Therefore, it was held that it cannot be considered as relevant under Section 6 of the Evidence Act.

Secondary evidence allowed only when permitted under Sec. 65

Sec. 61 of the Evidence Act directs that the contents of documents may be proved either by primary or by secondary evidence. Sec. 62 says that Primary evidence means the document itself produced for the inspection of the Court.

Sec. 63 lays down the mode of secondary evidence permitted by the Act. It reads as under:

“63. Secondary evidence means and includes—
- (1) Certified copies given under the provisions hereinafter contained;
- (2) Copies made from the original by mechanical processes which in themselves insure 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.”

As pointed out earlier, Sec. 64 stipulates that documents must be proved by primary evidence except in the cases mentioned in Sec.65. Clauses (a) to (g) of Sec. 65 delineate the cases in which secondary evidence relating to documents may be given. They read as under:

(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, of any person out of reach of,
- or not subject to, the process of the Court,
- or 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 from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1 [India] to be given in evidence;
(g) when the originals consist 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.

No Notice Required if Adverse Party knows that ‘he will be required to produce it‘

Sec. 66 of the Evidence Act stipulates that secondary evidence of the documents shall not be permitted unless the party proposing to give such secondary evidence have given notice to the other party. But, the proviso to the section states, among other things, that when, from the nature of the case, the adverse party knows that “he will be required to produce it,” then such notice is not required.

In Hiralal Devji Kharva v. Ladhibai Gokal, 1979- 2 Guj LR 390, it was held that where the adverse party is expected to know from the facts of the case that the document is required to be produced and fails to produce the same the non service of notice would not preclude the party from leading secondary evidence.

See Blog: Notice to Produce Documents in Civil Cases

Certain Certificates are Not Admissible

A certificate prepared on the basis of other documents, by itself, is not admissible as it will only be a secondary evidence. A wound certificate or post mortem report is not a substantive evidence. It has to be proved by a competent witness.

Unless presumption can be invoked under Sec. 114 Evidence Act, read with Sec. 35, no (official) certificate can be taken as proved. If presumption cannot be taken, its contents are to be proved in a formal manner. Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.

Best Evidence Rule insists Evidence of High Probative Value

Though various kinds of secondary evidences are provided under Sec. 63, the probative value of one kind (say, a photograph of an original, as stated in Illustration (a) of Sec. 63) will definitely be higher when compared with another (say, oral account). The best evidence rule insists evidence bearing high probative value.

Oral Evidence on contents of Documents – No Use, Unless Secondary Evidence Permitted

Sec. 22 and 144 of the Evidence Act postulate that the oral admissions or assertions as to contents of documents are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under Sec. 65, or unless the genuineness of a document produced is in question.

Sec. 22 emphasises that oral evidence as to contents of documents , even if adduced, will be of no use, as it will be ‘irrelevant’. By virtue of Sec. 144 of the Evidence Act, the adverse party may object to giving oral evidence as to contents of the same until such document itself is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.

Sec. 22 of the Evidence Act reads as under:

22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

Sec. 144 of the Evidence Act reads as under:

144. Evidence as to matters in writing.—Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration. The question is, whether A assaulted B. C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

Sec. 59 of the Evidence Act lays down that contents of documents (or electronic records) are to be proved by oral evidence. Sec. 62 defines primary evidence to mean ‘the document itself’ produced for the inspection of the Court. Sec. 64 of the Act requires that that the documents to be proved primarily by ‘primary evidence’, except in cases where secondary evidence is provided under Sec. 65.

Sections 22, 59, 61, 62 and 64 of the Evidence Act project the ‘rule of best evidence’ and it directs that the contents of the document are to be proved by the original document itself, unless secondary evidence is provided under Sec. 65. (See: Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 Shim LC 341)

Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded.

The word ‘disposition’ is not a ‘term of law’ as observed in Pushpalatha N V v. V Padma, AIR 2010 Kant 124. It is said as under:

“The term ‘disposition’ has been defined in Stroud’s Judicial Dictionary as a devise ‘intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law’ and ‘includes transfer and change of property. The word ‘disposition’ means giving away or giving up by a person of something which was his own. It is not a term of law. In has no precise meaning. Its meaning has to be gathered from the context in which it is used. The word ‘disposition’ in relation to property means disposition made by deed or will and also disposition made by or under a decree of a court. The word ‘disposition’ would ordinarily be used in reference to a written document and not to the effect of that document. The removal of a thing from one’s self is involved in a disposal. The disposition is the provision creating the interest, not the interest itself. Therefore, disposition means a plan or arrangement for the disposal, distribution of something; definite settlement with regard to some matter.”

Both Sec. 91 and 92 are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6 SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7 SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).

The Supreme Court held in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, as under:

“The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”

However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Jahuri Sah v. Dwarka Prasad Jhunjhunwala, AIR 1967 SC 109).

Words in the Instruments Matters; Not to the Presumed Intention

Brett L.J. in Re Meredith, ex parte Chick, (1879) 11 Ch D 731, observed as under:

“I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke ……. They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.” (Quoted in: Thomas v. AA Henry, 2008(2) KLT 63.)

Oral Admission of Witnesses as to the contents of a document is Bad and Barred

From the wording of Sec. 22 it is clear that the “oral admissions as to the contents of a document” by any ‘witness’ (not only that of “the party proposing to prove them”), are barred. It is equally bad and barred as that of ‘hearsay evidence’, because of the forceful edict in Sec. 22 – “Oral admissions as to the contents of a document are not relevant”.

Bulk of evidence waste Time and Space of the courts

It is very important to note that the statements of witnesses contrary to what is in the document is liable to be eschewed (for it is irrelevant); and therefore, the statements could not harm or benefit the party to the suit or the maker thereof. Still, it is a sheer fact that bulk of such evidence is adduced in court wasting the time and space of the courts.

EXCEPTIONS to the Rule of Irrelevancy of Oral Evidence on Documents

Following are the exceptions to the general rule as to bar of oral evidence on contents of documents:

Exceptions in Sec. 91:
- “Exception 1.––When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
- Exception 2.–– Wills admitted to probate in India may be proved by the probate.”
Provisos to Sec. 92:
- Proviso (1). –– Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure] of consideration, or mistake in fact or law.
- Proviso (2). ––The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
- Proviso (3). ––The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
- Proviso (4). ––The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
- Proviso (5). –– Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
- Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
- Proviso (6). –– Any fact may be proved which shows in what manner the language of a document is related to existing facts.
Sec. 93 to 99 Evidence Act:
- 93. Exclusion of evidence to explain or amend ambiguous document. –– When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.
  94. Exclusion of evidence against application of document to existing facts. –– When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.
- 95. Evidence as to document unmeaning in reference to existing facts. –– When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.
- 96. Evidence as to application of language which can apply to one only of several persons. –– When the facts are such that the language used might have been meant to apply to any one,
  and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to.
- 97. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies. –– When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.
- 98. Evidence as to meaning of illegible characters, etc. –– Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense.
- 99. Who may give evidence of agreement varying terms of document. –– Persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.

Circumstantial/presumptive evidence

When there is no direct evidence on a matter for consideration in a case, a court can base its findings on circumstantial evidence. The evidence relied on in such a case should always be admissible evidence. It is the application of an admissible evidence to attain a direct aim in an indirect way by inferring matters on presumptions allowed under Sec. 114 of the Evidence Act. In Umedbhai Jadavbhai v. The State of Gujarat, AIR 1978 SC 424, the Supreme Court held as under:

“It is well established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonable be considered consistent with the innocence of the accused. Even in the case of circumstantial evidence, the court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case.”

In Laxman Naik v. State of Orissa, AIR 1995 SC 1387, the Apex Court held that the standard of proof required to convict a person on circumstantial evidence was that the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.

The Supreme Court pointed out in Gade Lakshmi Mangraju v State of A.P., AIR 2001 SC 2677, that one circumstance by itself may not unerringly point to the guilt of the accused; but, it is the cumulative result of all circumstances which could matter.

Corroborative evidence

Sec. 5 of the Evidence Act stipulates that Evidence can be given of facts in issue and relevant facts, ‘as are hereinafter declared to be relevant, and of no others’. The Evidence Act expressly declared to adduce ‘corroborative evidence’ in the following circumstances:

Section 8 Illustration (j) [falls under Explanation 1] specifically says that the fact that a rape-victim said that she had been ravished can be relevant as corroborative evidence under section 157.
Sec. 114 Illustration (b) speaks that an accomplice is unworthy of credit, unless he is corroborated in material particulars. (However, it must be seen that Sec. 133 says that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.)
Sec. 156 allows to adduce independent evidence of facts in evidence in order to corroborate the evidence as to an any relevant fact which he observed at or near to the time or place at which such relevant fact occurred.
Sec. 157 permits to prove former statements of witness to corroborate his later testimony relating to the same fact at or about the time when the fact took place.
Sec. 158 allows to prove all matters that may be proved either in order to contradict statements relevant under section 32 or 33 or to corroborate it.

Order XI rule 12, 13, 14 & 21 CPC

Provisions in Order XI CPC as to discovery and production of documents are also meant to stand abide by ‘best evidence rule’.

Order 11 rule 12 says as to ‘Application for discovery of documents’. O. 11 R. 13 directs filing ‘Affidavit of documents’. O. 11 R. 14 gives power to the court to order ‘Production of documents’. O. 11 R. 21 lays down the effect of ‘Non-compliance with order for discovery’ that is: ‘liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out’. These Rules read as under:

O. 11 R. 12 Application for discovery of documents: Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit :
Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.
O. 11 R. 13 Affidavit of documents: The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No. 5 in Appendix C, with such variations as circumstances may require.
O. 11 R. 14 Production of documents: It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.
O. 11 R. 21 Non-compliance with order for discovery: (1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.
(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.

See Blog: Production of Documents: Order 11, Rule 14 & Rule 12

PART II

Adverse Inference Drawn when a party Withholds Documents, Even if he has no burden

The Supreme Court observed in Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413, as under:

“Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manichavasaka Pandara Lord Shaw observed as follows:
- “A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision.. With regard to 44 I. A. 98, at P. 103. third parties, this may be right enough-they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships’ opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.”
This passage was cited with approval by this Court in a recent decision: Biltu Ram v. Jainandan Prasad . In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Bilas Kunwar v. Desrai Ranjit Singh.
- “But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents.”
But Shah, J., speaking for the Court, stated:
- “The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration(g) of s. 114 of the Evidence Act, and also an impressive body of authority.”

In Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316, It was held as under:

“7. The same rule was reaffirmed in Rameshwar Singh v. Bajit Lal, AIR 1929 PC 95 and was approved by this Court in Hiralal v. Badkulal, AIR 1953 SC 225. These three decisions lay down that it is the duty of a party to a suit in possession of important documents to produce them in court, and if that duty is not discharged the court may as well draw the presumption which it is entitled to do under S. 114 of the Evidence Act. A division bench of the Madras High Court in Narayana Rao v. Venkatapayya, ILR (1937) Mad 299 : (AIR 1937 Mad 182) considered the interaction of the provisions of S. 118 of the Negotiable Instruments Act and S. 114 of the Evidence Act in the matter of rebuttal of the presumption under the former section. After considering the earlier decisions, including those of the Privy Council, Varadachariar, J., summarized the law at p. 311 ( of ILR Mad) : (at p. 187of AIR) thus:
“It has to be borne in mind that, when evidence has been adduced on both sides, the question of onus is a material or deciding factor only in exceptional circumstamces, cl. Yellappa Ramappa Naik v. Tippanna, 56 Mad LJ 287 : (AIR 1929 Mad 8) and that even the onus under S. 118 of the Negotiable Instrument Act need not always be discharged by direct evidence adduced by the defendant; Muhammad Shafi Khan v. Muhammad Moazzam Ali Khan, 79 Ind Cas 464 : (AIR 1923 All 214), Singar Kunwar v. Basdeo Prasad, 124 Ind Cas 717 : (AIR 1930 All 568) and Bishambar Das v. Ismail, AIR 1933 Lah 1029. Not merely can the Court base its conclusion on the effect of the evidence taken as a whole but it may also draw adverse inferences against a party who being in a position to adduce better evidence deliberately abstains from doing so; AIR 1917 PC 6, Guruswami Nadan v. Goplaswami Odayar, ILR 42 Mad 629 : (AIR 1919 Mad 444) and Raghavendra Rao v. Venkataswami Naicken, 30 Mad LW 966 at p. 971 : (AIR 1930 Mad 251 at p. 254).
We respectifully accept the correctness of the said observations.”

Mere Non-Production of Documents would Not result in Adverse Inference

In Mahendra L. Jain v. Indore Development Authority, (2005) 1 SCC 639, the Supreme Court held that mere non-production of documents would not result in adverse inference. If a document was called for in the absence of any pleadings, the same was not relevant. An adverse inference need not necessarily be drawn only because it would be lawful to do so. In Manager, R.B.I., Bangalore v. S. Mani, AIR 2005 SC 2179, the Industrial Tribunal directed the employer to produce the attendance register. The explanation thereto was that the attendance registers being very old, could not be produced. The Tribunal drew an adverse inference. The respondents did not adduce any evidence whatsoever. Apex Court reversed the finding observing as under:

“The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle.”

Similar view is stated in the following decisions:

Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96;
Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das, AIR 1967 SC 256; Smt. Indira Kaur v. Shri Sheo Lal Kapoor, AIR 1988 SC 1074;
Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy, AIR 2003 SC 3342, Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214;
Takhaji Hiraji v. Thakore Kubersing Chamansing, AIR 2001 SC 2328;
Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681; A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; R.M.
Yellatti v. Assistant Executive Engineer AIR 2006 SC 355;
Pratap Singh v. State of M.P., AIR 2006 SC 514;
Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134,
Ravi Yashwant Bhoir v. District Collector, Raigad, AIR 2012 SC 1339,

Referring all the aforesaid decisions it is held in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, as under:

“16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court’s order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary.”

Adverse Inference Drawn if a Party Does Not Examine Himself: Not an Invariable Rule

The Supreme Court observed in Vidhyadhar v. Manikrao, AIR 1999 SC 1441, as under:

“Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”

In Janki Vashdeo Bhojwani v. Indusind Bank Ltd. our apex Court followed Vidhyadhar v. Manikrao, AIR 2005 SC 439, and held as under:

“No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.”

But, it is not an invariable principle. Two contra-situations are pointed out by Kerala High Court:

It is applied only against the party on whom the burden of proof lies;
It is not applicable where there is no much scope for any oral evidence.

in Mammu Haji and Company Vs. Vasanthalakshmi, 2014 -3 KHC 213 that this proposition of law laid down by the Apex Court applies only in cases where the party on whom the burden of proof lies withholds himself from adducing evidence. It is held as under:

“In short, this decision can be applied against the party on whom the burden of proof lies; but did not adduce evidence. In the instance case, the burden of proof absolutely lies on the defendant who claims protection under S.106 of the Act. Therefore, the non – examination of the plaintiff is not fatal and no adverse inference can be drawn against the plaintiff, where the lease arrangement is admitted as such by the defendant, and the entire burden of proof lies on the defendant.”

In Upendra Rao v. Ammini, ILR 2017-1 Ker 466, the Kerala High Court pointed out that the principle in Vidhyadhar v. Manikrao (that when a party to a suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, adverse presumption can be taken) cannot be applied to the facts of a case where there is not much scope for any oral evidence.

In P. Sukumaran v. K. A. Hamza Haji, ILR 2015-2 Ker 166, the Kerala High Court distinguished Vidhyadhar v. Manikrao observing as under”

“13. In Vidhyadhar’s case , the Apex Court was dealing with a case where the first defendant in the suit contended that, the sale deed executed by the second defendant in favour of the plaintiff was fictitious and the whole transaction was a bogus transaction as only Rs. 500/- was paid as sale consideration to the second defendant. He further claimed that payment of Rs. 4500/- to the second defendant at his home before the registration of the deed was wholly incorrect. This plea was not supported by the first defendant as he did not enter the witness box. It was in such circumstances, the Apex Court held that, the non-examination of the first defendant, by itself, is enough to reject his claim that the transaction of sale between second defendant and the plaintiff was a bogus transaction.
14. But, in the case on hand, the tenancy in respect of the petition schedule building and the rate of rent are not in dispute. When a plea of discharge of rent is set up by the tenant, the burden is upon him to prove that plea of discharge and no adverse inference or a presumption under Section 114(g) of the Evidence Act, 1872, can be drawn against the landlord on his omission to appear as a witness and to state his own case on oath.”

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