Law of Evidence

By Nizam Azeez Sait,

MODULE No. 18

ORAL EVIDENCE

This is the 18th Module of the subject ‘Law of Evidence’, covering Sections 54 and 55 of the Bharatiya Sakshya Adhiniyam (corresponding to Sections 59 and 60 of the Evidence Act), titled “Of Oral Evidence”. It is in part – III chapter – IV.

MODULE INDEX

  1. Introduction
  2. Proof of facts by oral evidence – Section 54
  3. Oral evidence must be direct – Section 55
  4. Evidentiary Value of Contents of the Scene Mahazar/Site Plan Prepared by the Police Officer
  5. Exclusion of Hearsay evidence and its Exceptions
  6. Material Evidence or Real Evidence
  7. Whether An Accused is Entitled to Get Copy of an Electronic Record Produced in the Court

1. Introduction

Two important principles are enunciated in this chapter titled “Of Oral Evidence”. The first one is that all facts except contents of a document may be proved by oral evidence. The second one is that oral evidence must be direct, that means, it should not be in the nature of hearsay. There are a few exceptions to this rule of exclusion of hearsay. Now Let us deal with the law embodied in Sections 54 and 55 of the Bharatiya Sakshya Adhiniyam (Sections 59 and 60 of the Evidence Act).

2. Proof of facts by oral evidence – Section 54

Section 54 of the Bharatiya Sakshya Adhiniyam (Section 59 of the Evidence Act) reads as under:

All facts, except the contents of documents may be proved by oral evidence.

Oral generally signifies ‘by words of mouth’. Now let us see, what exactly, is oral evidence as per the Evidence Act. Section 2 ( e ) (i)   (corresponding to Section 3 of the Evidence Act) says that all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence.

In this context it may be noted that contents of a document in certain situations as provided under Section 58(v) read with Section 60 of the Bharatiya Sakshya Adhiniyam (Section 63(5) read with Section 65 of the Evidence Act) may be proved by oral accounts of the contents of a document given by some person who has himself seen it.

Section 58 of the Bharatiya Sakshya Adhiniyam defines secondary evidence and section 60 enumerates the circumstances under which secondary evidence could be given.

Section 20 of the Bharatiya Sakshya Adhiniyam (Section 22 of the Evidence Act) is also relevant in this context, which reads as: 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.

Section 125 of the Bharatiya Sakshya Adhiniyam (Section 119 of the Evidence Act) deals with situations in which Witness is unable to communicate verbally. Section 125 provides that a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.

Oral evidence is given in court through the mechanism of examination of witnesses. We will deal with examination of witness in another module.

3. Oral evidence must be direct – Section 55

Section 55 of the Bharatiya Sakshya Adhiniyam (Section 60 of the Evidence Act) lays down one of the fundamental principles of law of evidence that oral evidence must be direct. Section 55 reads as under:

Oral evidence shall, in all cases whatever, 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;
  • a fact which could be heard, it must be the evidence of a witness who says he heard it;
  • 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;
  • 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:

Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:

Provided further that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

In Mohanan v State of Kerala 2011 (3) KHC 680: 2011 (4) KLT, The High Court of Kerala speaking through Justice Hema held that the facts narrated in a first information statement cannot be accepted in evidence unless the first informant deposes such facts before the court and that oral evidence has to be direct. The court correctly observed:

S.59 of Evidence Act (Section 54 of the Bharatiya Sakshya Adhiniyam) lays down that all facts, except the contents of documents or electronic records may be proved by oral evidence. As per S.60 of Evidence Act (Section 55 of the Bharatiya Sakshya Adhiniyam) oral evidence must, in all cases whatever, 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.

So, if the first informant who has seen an incident and the manner in which it has occurred, such facts may be proved only by direct oral evidence of first informant in Court and not by documentary evidence in the light of S.60 of Evidence Act (Section 55 of the Bharatiya Sakshya Adhiniyam). Only if first informant deposes in Court, the facts stated in first information statement, which are perceived by his senses, such facts may constitute evidence. But the facts stated in first information statement are not provable by mere production of first information statement. If first information statement is produced in Court and marked through first informant, what is proved is only existence of a first information statement and not the existence of facts contained in the first information statement.

Proof of preparation of first information statement and affixing of signature therein may prove existence of such a statement, but it will not further prove existence or truth of the ‘facts’ which are stated therein. If the ‘facts’ stated in first information statement are relevant in a case and existence or truth of such facts is in issue, mere marking of the first information statement will not prove truth or existence of such facts. The facts stated in the first information statement have to be proved by admissible evidence, in accordance with law.

4. Evidentiary Value of Contents of the Scene Mahazar/Site Plan Prepared by the Police Officer

It was further held In Mohanan v State of Kerala 2011 (3) KHC 680: 2011 (4) KLT in the context of the admissibility of the contents of the scene mahazar/site plan prepared by the police officer:

The observations made personally by investigating officer at the scene, such as what he saw etc., have to be deposed to by him in Court in the light of S.60 of the Evidence Act (Section 55 of the Bharatiya Sakshya Adhiniyam). Those facts must be proved by direct oral evidence of investigating officer and not by producing scene mahazar. In the absence of Police Officer’s oral evidence in Court regarding the facts observed by him at the scene which are stated in the scene mahazar, it will be illegal for the Court to rely upon the contents of scene mahazar as ‘evidence’. In other words, the relevant facts which investigating officer observed at the scene and which are recorded by him in scene mahazar must be deposed to by him in Court, if the Court wants to rely upon them as ‘evidence’.

In Mohanan v State of Kerala, the Kerala High Court relied on the Supreme Court judgment  in Ramji Dayawala & Sons (P) Ltd. v. Invest Import 1981 (1) SCC 80: AIR 1981 SC 2085, wherein It is held as follows:

‘Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.’

A site plan relating to the offence prepared by a police officer relying on the statement of witness would be affected by section 162 of the Criminal Procedure code (Section 181 the Bharatiya Nagarik Suraksha Sanhita, 2023) and would not be relevant (See Dharam Singh v State of Uttar Pradesh (1964)1 CrLJ 78.).

Whereas a site plan prepared by a police officer based on his own observations is relevant (See Tori Singh v. State of Uttar Pradesh AIR 1962 SC 399)

5. Exclusion of Hearsay evidence a nd its Exceptions

Section 55 (Section 60 of the Evidence Act) enunciates/lays down the rule of exclusion of hearsay evidence.

Hearsay evidence is the evidence of facts, which the witness has not learnt directly through his own senses but learnt through the medium of others. It is often called as derivative or second hand evidence. It is generally excluded from admissibility as the opposite party would not get opportunity to cross-examine the original person who is the source of information and if permitted it would encourage irresponsible and weaker evidence instead of the best available evidence.

The rule against hearsay evidence is implicit in Section 55 of the Bharatiya Sakshya Adhiniyam (S.60 of the Evidence Act).

The rule in S. 55 is that a person cannot give evidence of information he gathered from others, in other words S.60 excludes hearsay evidence. It is the duty of the Court to exclude hearsay evidence even if no objection is raised by the other party.

But the rule against hearsay evidence is not absolute. The Evidence Act in view of necessity/expediency also provides for certain well-defined exceptions to the general rule of exclusion of hearsay evidence. The Following are instances of such exceptions to hearsay evidence:

  1. Res gestae as provided under S.4 (S 6 of the Evidence Act) – See Module 4
  2. Extra Judicial Admissions and Confessions See Section 15 to 25(S 17 – S 31 of the Evidence Act)) – See Modules 8, 9, and 10.
  3. Statements of persons who cannot be called as witnesses under Section 26 (S.32 of the Evidence Act) and evidence given by such persons in the former judicial proceedings as provided under Section 27 (S 33 of the Evidence Act. See module 12.
  4. Certified Copies of Public Documents are admissible without examining the officer who prepared the same See Sections 76 and 77 (Sections 77 and 78 of the Evidence Act).
  5. The above provisos to Section 55 (S.60 of the Evidence Act) covering expert opinion expressed in treatise and ‘material thing’ are also exceptions to hearsay rule.

6. Material Evidence or Real Evidence

Section 2(e) of the Bharatiya Sakshya Adhiniyam (S 3 of the Evidence Act defines Evidence as under:

“evidence” means and includes—

  • all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;
  • (ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence;

This definition of Evidence is not exhaustive it does not cover real evidence or material evidence. But 2nd proviso to Section 55 (Section 60 of the Evidence Act) refers to the production of ‘material thing’ for the inspection of the Court. This material thing or object is a matter before the court as specified in the definition of ‘proved’ and ‘disproved’ in Section 2 (Section 3 of the Evidence Act).

2nd proviso to Section 55 reads as follows:

Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

In English law Real evidence means any tangible object which is presented before the court as proof. Real evidence may be a weapon found at a place where crime is committed. Any object, person or material that is used at the time of proceeding in a court to make other parties liable is real evidence.

In Sherin V John v. State of Kerala, 2018 (3) KLT 298:2018 (3) KHC 725, the High Court of Kerala, explained the concept of ‘real evidence’ as under:

“The law recognizes a category of evidence other than oral evidence and documentary evidence. This third category is known as real or physical evidence and it consists of material objects other than documents produced for the inspection of the Court. This is the most widely accepted meaning of ‘real evidence’. (Phipson on Evidence, 16th Edition South Asian Edition of 2007, Page 5). The meaning of real evidence has been given in the Black’s Law Dictionary as follows:

“Physical evidence (such as clothing or a knife wound) that itself plays a direct part in the incident in question.”

The terms real evidence and demonstrative evidence are sometimes interchangeably used. The meaning of demonstrative evidence is given in Black’s Law Dictionary as physical evidence that one can see and inspect. The Dictionary says that this term sometimes overlaps with and is used as a synonym of real evidence.

Existence of the third category of evidence has been recognised by the Courts in India also, for which the eleven Judge Bench decision of the Supreme Court in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 : 1961 (2) CriLJ 856 is the authority. The Court has said: “Evidence has been classified by text writers into three categories, namely (1) oral testimony (2) evidence furnished by documents, and (3) material evidence.” Referring to materials like fingerprint, specimen signature and handwriting, the Apex Court has declared: “they are neither oral, nor documentary evidence, but belong to the third category of material evidence.”

The Court has called it material evidence instead of real evidence. No evidence is required to prove their genuineness since they are taken before the Court or pursuant to the orders passed by it. Material things have been referred to in the second proviso to S.60 of the Evidence Act (Section 55 of the Bharatiya Sakshya Adhiniyam).”

7. Whether An Accused is Entitled to Get Copy of an Electronic Record Produced in the Court

Fair trial is a constitutional Principle which cannot be compromised. A trial will be meaningful and fair only if the accused has access to the materials produced in the court to mould his defence.

In Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), 2010 (6) SCC 1: AIR 2010 SC 2352 the Supreme Court observed:

“218. The liberty of an accused cannot be interfered with except under due process of law. The expression “due process of law” shall deem to include fairness in trial. The Code gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in Court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the Prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused.

The Supreme Court further held:

  1. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under S.173(2) as per orders of the Court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial.

In Sherin V John v. State of Kerala(supra). The High Court of Kerala considered the following issues.

  1. Is the right of an accused to get copies of the documents produced by the prosecution absolute?
  2. Is an accused entitled to get copy of an electronic record produced in the Court by the prosecution as a material object?

The court after evaluation of Sections 207 and 173 of CrPC (Sections 230 and 193 of the Bharatiya Nagarik Suraksha Sanhita, 2023) and Judgment in Jasvinder Kalra v. C.B.I., 2011 CriLJ 1416, recognised that right to get copies is not absolute and held that “What can be understood from the provisions in the Cr.P.C discussed above is that no prejudice shall be caused to the accused and once that is done, the Court can refuse to supply copies of documents and statements on the grounds of interests of justice and public interest.”

It was also observed:

“When there is a conflict between the fundamental right of a person and the statutory right of another, the former shall prevail.”

The Court carried out a thorough evaluation of the distinction between document and material object. It was a murder case in which the Prosecution produced a tablet (computer), hard discs, pen drives and compact discs containing related visuals. The Court refused to issue copy of the contents of the subject tablet finding that it is a material object in the case and allowed inspection of the same by the counsel for the accused in the court where as the court directed to issue copies of the other electronic records finding that those were produced as documents. The Court among others observed:

Material evidence is not covered by S.207 Cr.P.C ( S 230 of the Bharatiya Nagaril Suraksha Sanhita 2023). There is no law providing for issuance of copy of material objects to accused. A copy of a material object can be only its replica. When a material object cannot be produced before the Court, there is no provision to produce secondary evidence. But the second proviso to S.60 of the Evidence Act (Section 55 of the Bharatiya Sakshya Adhiniyam) enables the party concerned to adduce oral evidence in respect of the object.

….. In Raj Kapoor & others v. State (Delhi Administration) & others, AIR 1980 SC 258: 1980 CriLJ 202 the Supreme Court observed: “The Court will examine the film and Judge whether its display, in the given time and clime, so breaches public morals or depraves basic decency as to offend the penal provisions.” 

The following conclusions were reached in ‘Sherin V John:

(i) Apart from oral and documentary evidence, there is a third category of evidence called material evidence, which consists of materials other than documents.

(ii) Only copies of documents can be given, but not of material objects.

(iii) When nothing is expressed or described upon a substance, it is only a material object.

(iv) When a matter is expressed or described upon a substance, it may be a document or a material object depending upon the purpose for which it is produced.

(v) If the identity of the author of the matter expressed or described upon a substance is relevant, it is a document; otherwise it is only a material object.

(vi) Where the only purpose for which a material object upon which a matter has been expressed or described is produced is to prove its seizure from the possession of the accused, and it is made part of the evidence by proving its seizure from his possession, the Court does not want the testimony of anyone to prove the matter since it has become a ‘matter before the Court’.

The Court Further held:

The ‘tablet’ which has been produced before the Court below was seized from the petitioner. The prosecution only wants the Court to view it and draw the inference that may be taken from its possession by the petitioner.

In the light of the above discussion, I hold that the ‘tablet’ produced before the Court is a material object and the petitioner is not entitled to a copy of it. But his counsel shall be allowed to examine it in his presence and take notes in the presence of the prosecutor under the direct supervision of the Chief Ministerial Officer of the Court, for which he shall file an application and obtain orders of the Court below. The hard discs and the compact disc were not seized from him. So, the prosecution has to prove their genuineness and authenticity. They can be only considered documents.

A different approach was taken by another single bench of the Kerala High Court in Jisal Rasak v State of Kerala, 2019 (4) KLT 159: 2019 (4) KHC 928 (Raja Vijayaraghavan V.  J.), In this case the Court distinguished ‘Sherin V. John’. In this murder case the CCTV footage relied on by the prosecution was produced as “material object” and copy was denied to the accused, the High Court setaside the order of the Magistrate denying copy of the same. The Court observed:

I am of the view that Sherin V. John (supra) was rendered in a different fact situation and the learned Judge, who had decided the petition, had no occasion to consider the provisions of the Information Technology Act, 2000 and the sweeping changes it brought to the provisions of the Indian Evidence Act, 1872.

The Information Technology Act also defines computer resource, computer network, computer system and computer device. Thus, data, information or any other content generated kept stored, sent, received, and communicated through electronic, magnetic, optical and digital media has to be dealt with as per the provisions of the Information Technology Act, 2000 and such electronic evidence can be admitted and proved in courts in accordance with the special provisions as to evidence relating to electronic record as provided under S.65B of the Indian Evidence Act, 1872 (Section 63 of the Bharatiya Sakshya Adhiniyam).

….  if the oral evidence refers to the existence or condition of a material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection. Thus, when material objects such as weapon of offence, clothes or other personal items of the victim or any other thing which is referred by the witnesses are produced in Court, it is regarded as a thing and it can be relied on as it is. It is next to impossible to supply copies of the same to the accused. However, after the advent of technology, the line between categorizing a thing as a ‘material thing’ or a document has become more or less obliterated. If a hard disk or a magnetic disk containing data is stolen and the same is seized and produced in court, it may sometimes be difficult to categorize it as ‘a thing’ produced for inspection of the court or a ‘document’. One way of distinguishing it is by asking a question as to whether the item is relevant in itself or whether the item is relevant because of the information that can be retrieved from it. In other words, if a material thing is produced in Court to rely on the data that it contains, it is probably a document and it has to be regarded as such. On the other hand, if the material thing is brought to court in order to rely on it as it is, it is a thing and may be exhibited as a material object.

In view of the above discussion and on a proper understanding of the provisions of the Information Technology Act, 2000 and the Indian Evidence Act, 1872, it can be deduced that the CCTV footage in the instant case is “data” as defined under S.2(o) of the Information Technology Act, 2000 and it is an electronic record as defined under S.2(t) of the I.T. Act. If that be the case, the electronic record produced for the inspection of the Court has to be regarded as documentary evidence. In that view of the matter, I am unable to accept the logic of the prosecution in producing the CCTV footage as a material object and in refusing to supply a copy of the same to the accused. I hold that cloned Digital copies of the footage relied on by the prosecution have to be made available to the accused, unless it is impracticable or unjustifiable. For instance, in a case of brutal sexual abuse, if the incident has been videotaped, in view of the element of privacy or to prevent misuse, copy may be refused. In a case in which the accused is being prosecuted for possessing pedophilic material, copies of the same can be refused. In such cases, the Court may grant permission to the counsel or the accused to have a private screening to have a proper defense. Same is the case in a terrorism prosecution, wherein national security interests demand non – disclosure of the digital evidence, which has been collected. These are merely illustrative and not exhaustive. As an adversarial system is followed in our country, the accused is entitled to a copy of the records so that he can bring to the notice of the courts exculpatory material or such other aspects in the prosecution case, which may be to his advantage.

In the case on hand, I have no doubt in my mind that the investigating agency has committed a grave error by producing the CCTV footage as a material object and also in refusing to give a copy of the same to the accused. The accused is entitled to a digital copy of the CCTV footage, which is relied on by the prosecution to prove the charge. That being the case, the order passed by the learned Magistrate will stand set aside.

Supreme Court on Furnishing Copies of Electronic Record to the Accused

In Tarun Tyagi v. CBI, 2017 (4) SCC 490: AIR 2017 SC 1136, on the allegation that the accused had stolen source codes of a software, a search was conducted in his house and hard disks were seized. At the stage of S.207 of the Code of Criminal Procedure, all other records except for the cloned copies of the Hard Disk were supplied to the accused. The accused approached the Supreme Court and contended that the copies of the hard disks are to be supplied to demonstrate during trial that no case is made out against him. He also contended that the cloned copies are required for enabling him to prepare his cross examination and a proper defense strategy. The CBI opposed the prayer and it was urged that the accused would misuse the same. The Supreme Court repelled the contention and the cloned copies of the hard disk were ordered to be supplied to the accused.

In Gopalakrishnan P @ Dileep v State of Kerala, AIR 2020 SC 1: 2020 CriLJ 1240, (A M. Khanwilkar; Dinesh Maheshwari, JJ), (Actress abduction and sexual assault case), the factual background as discernible from the high court judgment are as under:

The Petitioner/8th accused is a well-known and popular cine artist. The de facto complainant (victim) is also a well-known actress in Malayalam film industry. The allegation that the petitioner-maintained enmity towards the de facto complainant, believing her to be responsible for the breakdown of his matrimonial relationship. To retaliate, he allegedly conspired with the first accused to abduct the victim, to sexually abuse her, to record the acts of sexual abuse and to black mail her using the video graphed materials. In prosecution of the above conspiracy, the first accused allegedly solicited the assistance of accused Nos. 2 to 6 and on 17/02/2017, while the victim was proceeding in a car along the National Highway, she was intercepted by accused Nos. 1 to 6. They abducted her to Ernakulam and on the way she was sexually abused inside the vehicle and the acts of sexual violence involving the first accused and the victim were video graphed by the first accused on his mobile phone and stored in a memory card. The alleged offences were under S.342, S.366, S.376, S.506(1), S.120B and S.34 of the 1860 Code and S.66E and S.67A of the 2000 Act.

The Supreme Court was called upon to address the following issues:

whether the contents of a memory card / pen – drive being electronic record as predicated in S.2(1)(t) of the Information and Technology Act, 2000 (for short, ‘the 2000 Act’) would, thereby qualify as a “document” within the meaning of S.3 of the Indian Evidence Act, 1872 (for short, ‘the 1872 Act’) and S.29 of the Indian Penal Code, 1860 (for short, ‘the 1860 Code’)?

If so, whether it is obligatory to furnish a cloned copy of the contents of such memory card / pen – drive to the accused facing prosecution for an alleged offence of rape and related offences since the same is appended to the police report submitted to the Magistrate and the prosecution proposes to rely upon it against the accused, in terms of S.207 of the Code of Criminal Procedure, 1973 (for short, ‘the 1973 Code’)?

The next question is: whether it is open to the Court to decline the request of the accused to furnish a cloned copy of the contents of the subject memory card / pen – drive in the form of video footage / clipping concerning the alleged incident / occurrence of rape on the ground that it would impinge upon the privacy, dignity and identity of the victim involved in the stated offence(s) and moreso because of the possibility of misuse of such cloned copy by the accused (which may attract other independent offences under the 2000 Act and the 1860 Code)?

The Supreme court after referring to various judgments and the definition of document held:

It is crystal clear that all documents including “electronic record” produced for the inspection of the Court alongwith the police report and which prosecution proposes to use against the accused must be furnished to the accused as per the mandate of S.207 of the 1973 Code. The concomitant is that the contents of the memory card / pen – drive must be furnished to the accused, which can be done in the form of cloned copy of the memory card / pen – drive. It is cardinal that a person tried for such a serious offence should be furnished with all the material and evidence in advance, on which the prosecution proposes to rely against him during the trial. Any other view would not only impinge upon the statutory mandate contained in the 1973 Code, but also the right of an accused to a fair trial enshrined in Art.21 of the Constitution of India.

But considering the privacy aspects of the victim in a case of such nature, the court observed and held as under:

The right to fair trial is not singularly absolute, as is perceived, from the perspective of the accused. It takes in its ambit and sweep the right of the victim(s) and the society at large. These factors would collectively allude and constitute the Rule of Law i.e. free and fair trial.

Going by the dicta in Asha Ranjan (Asha Ranjan v. State of Bihar, 2017 (4) SCC 397: 2017 (2) SCC (Cri) 376), principle of primacy cannot be given to one right whereby the right of the other gets totally extinguished. Total extinction is not balancing. Balancing would mean curtailing one right of one class to some extent so that the right of the other class is also protected.”

In conclusion, we hold that the contents of the memory card / pen drive being electronic record must be regarded as a document. If the prosecution is relying on the same, ordinarily, the accused must be given a cloned copy thereof to enable him / her to present an effective defence during the trial.

However, in cases involving issues such as of privacy of the complainant / witness or his / her identity, the Court may be justified in providing only inspection thereof to the accused and his / her lawyer or expert for presenting effective defence during the trial. The Court may issue suitable directions to balance the interests of both sides.

We will deal with examination of witnesses and appreciation of oral evidence in subsequent modules.

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence’.

Option for Payment

The Author has put in a lot of effort in preparing this study material/commentary comprising 28 modules spreading across 1000 pages. If you feel that this material is useful for you, you may send your contributory remuneration to the following phonePe No or to the following Bank Account:

Phonepe No – 9846151718    QR code

Bank Account:

Name – Nizam. A, SB A/c No 30083188312, IFS Code SBIN0003054,

ADB Alleppey Branch, State Bank of India.

Payment is optional and not mandatory

Exercise Questions

  1. Oral evidence must be direct. Elucidate
  2. What is Hearsay evidence? Comment on the exclusion of hearsay evidence and its exceptions.
  3. What is Real Evidence or Material Evidence?
  4. Whether an Accused is entitled to get copy of an Electronic Record produced in the Court. Discuss in the light of decided cases.