WHAT IS BEST EVIDENCE RULE?

It is often called as the “cardinal principle” of the evidence act and specifies the best existing
evidence of the fact to be produced before the court as per the circumstances of the case.
According to section 64, the primary evidence is considered as the best evidence in all cases
except when it is lost or destroyed or is not easily immovable, then secondary evidence is
admissible as per Section 65 of the act.

For instance, a poor photocopy could obscure details of the handwriting, while a digital copy
might alter the colour and could also be manipulated by someone with skills.1

In the case, MOHANLAL SHAMJI SONI V UNION OF INDIA & ANR2, the SC held that 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.

History of best evidence rule.

The doctrine of best evidence rule is traced back to doctrine of profert in curia which tended
the right to produce the original written documents in the court, a similarity to the best
evidence rule. However, the doctrine of profert was properly speaking a rule of pleading than
evidence and was restricted to limited class of documents.3 Originally, the contractual
documents affecting properties were not considered as mere expressions of those rights, but
as the rights themselves.4

It has first known to have enunciated in the case FORD V HOPKINS5 and OMYCHUND V
BARKER6 where Lord Hardwicke said that “no evidence will be admissible unless it is the
best evidence that the nature will allow.”

1
Himanshu Arora, BEST EVIDENCE RULE - SEC 91 -100 OF INDIAN EVIDENCE ACT,
2
AIR 1991 SC 1346
3
The Best Evidence Rule: An Evaluation in Context, 51 Iowa L. Rev. 825 (1965-1966), Edward W, Cleary and
John W.Strong.
4
Cynthia A. DeSilva, California’s Best Evidence Rule Repeal: Toward a Greater Appreciation for Secondary
Evidence
A Study on the Rule of Best Evidence, Saumya Parmarthi, August 31, 2015

5
(1700) 91 Eng Rep 250 (KB.)
6
(1745) 26 ER 15
67
(2003) 6 SCC 595
8
(2006) 8 SCC 322
The parameters of the best evidence rule were laid down in ROOP KUMAR V MOHAN
THEDANI7

OBJECTIVE OF BEST EVIDENCE RULE AND IT’S ROLE IN CRIMINAL

JURISPRUDENCE

The objective behind the rule is to prevent errors or frauds and ensure the court receives
unaltered evidence i.e. legible or clearly perceivable in the case of video and audio
recordings. It prevents misinterpretations of original and tampered copies to be submitted to
court. It facilitates in solving the disputed issues or facts accurately in court and provide
fairness.

The rule is the foundation stone for the criminal jurisprudence. Since the accused has to be
proved guilty beyond any reasonable doubt and not merely on preponderance of probabilities,
the prosecution is required to adduce the best possible evidence.8

Effect of non-production of best available evidence in criminal trials

Section 114 of the evidence act, allows the courts to presume certain facts of a case and
bounds a duty on the prosecutor to produce the best possible evidence.

In the case, TOMASO BRUNO & ANR V STATE OF UP 9, the Court held that CCTV footage
was the best piece of evidence to prove the presence of the accused at the scene of crime. A
failure to produced such evidence raised serious doubts about the case of the prosecution.

In the case, VIJENDER V STATE OF DELHI10, the post-mortem report was discarded by the
court and was reported to be legally inadmissible because the best evidence was not available
by the prosecution, i.e. the oral examination of the doctor who conducted the post-mortem
examination, as per Section 60 of the act. It was held that non-testimony of the best witness
effects the testimony of other witnesses too

8
The Rule of Best Evidence in Criminal Jurisprudence, Madhav Khurana & Ankita Bhatia, May 25, 2020.
9
(2015) 7 SCC 178
10
1997 [6] SCC 171

10
EVOLUTION IN INDIA

In India, the best evidence rule is not specifically mentioned in any of the provisions of the
act but is the basis of Section 91 and 92 of the act where original document is given the prime
evidence.

EXCLUSION OF ORAL EVIDENCE BY DOCUMENTARY EVIDENCE

EVIDENCE REDUCED IN FORM OF DOCUMENT

The rule laid under the Section 91 of the act is that when the fact to be proved is embodied in
the document or a contract is reduced to writing, the best evidence is the original document
itself and no other evidence is admissible, except secondary evidence in some cases. The
maxim of law is that whatever is in writing must be proved by writing

In TULSI V CHANDRIKA PRASAD11, the SC held that Section 91 of the act mainly forbids
proving of the contents of a writing otherwise than by writing itself and merely lays down the
best evidence rule.

The scope of this section extends to two types of transactions i.e. the one which is voluntarily
made and the other which is mandatory under law to be in writing. For example, judgement
and decrees, the deposition of witnesses, deed of conveyance of land, deed of partition etc are
mandatory. It can be considered as an exclusive rule as it excludes the oral evidence from
superseding the documentary evidence in the court.

In the case RATAN LAL V HARI SHANKER12, Allahabad HC didn’t permit oral evidence to
prove the contents of a partition deed, which also involved conveyance, as the deed was
unregistered. Both the unregistered deed and the oral evidence were not produced under the
pretence of evidence for a collateral purpose.

In the case, LAKSHMAMMA V RIYAZ KHAN13, the court held that Once it is shown that the
original document is not admissible in evidence because of insufficiency of stamps, a
secondary evidence by way of oral statement or xerox copy cannot be allowed.

The section confines the principle of exclusion only to contracts, grant or other depositions of
the property. Any document of deed not containing these terms will not be affected by this
rule.
11

12
AIR 1980 All 180
13
AIR 2003 Kant 197.
Exceptions to Section 91

 Public officers: when the appointment of public officer is required to be in writing, it

is a sufficient evidence of fact to show that the person has acted as an officer by the
person who has appointed him and the writing is not necessary.
For instance, for ‘A’ to prove his position of judge in HC, it is sufficient to prove that
he is working as a judge there. The warrant of appointment is not necessary.

 Wills: In India, the original document containing the will need not be produced. It is
sufficient to produce probate for the proof. "Probate" is a copy of the will certified
under the seal of the court and, therefore, is a sufficient proof of the contents of the
will.

Explanations under Section 91

Explanation 1 provides that the contract or grants can be comprised in single or more than
one written document.

Explanation 2 provides that if there exists more than one original document, then one is a
sufficient proof to be admissible in the court.

Explanation 3 provides that if there consists an extraneous fact i.e. an additional fact outside
the terms of a contractual agreement, it can be proved by an oral evidence.

In the case, TABURI SAHAI V JHUNJHUNWALA14, it was held that a deed of the adoption of
a child is not a contract within the meaning of Section 91 and, therefore, the fact of adoption
can be proved by any evidence apart from the deed.

EVIDENCE OF ORAL AGREEMENTS EXCLUDED

The extension of Section 91 can be seen in Section 92 of the act. The principal laid down
under section 92 is that when terms of any such contract, grant or other deposition of property

14
AIR 1996 SC 106
is proved under Section 91 of the act, then no oral agreement shall be admitted to alter,
modify or contradict the terms of the document.

It precludes only the parties of the contact or the representation-in-interest from giving the
oral evidence and not the person who is a stranger to it.

In the case of Ram Janaki Raman v. State,15 it was held by the court that the bar laid down by
Section 92 of the Act was not applicable under the Criminal proceeding.

Exceptions:

The exceptions are mentioned as proviso in the Section,

Proviso 1: Validity of document

It provides that no man is be debarred from producing an evidence in any from that would
invalidate the contract. The document is considered unlawful or void when it is created due to
mistake of law or fact or by fraud or undue influence, under section 23 of the contract act etc.
Oral evidence to prove the document invalid is permissible.

Proviso 2: Separate oral arguments

The term “separate oral agreements” refers to as the prior oral agreements made before
entering into the contract.

In the case, BAL RAM V RAMESH CHANDRA16, the court stated that if the documents are
silent on these prior agreements, they can be proved only if they are not in contradiction with
the terms of contract.

It also provides that if the document is extremely formal, evidence of an oral agreement shall
not be allowed even on matters on which the document is silent. For example, agreement on
formal and stamped paper.

Proviso 3: Condition Precedent

15
AIR 2006 SC 1106
16
AIR 1973 Ori 13
Where a document is issued subject to a condition precedent or an event, which is not
mentioned in the contract, the oral agreements are admissible in such a case to prove the
condition not being fulfilled.

In the case, KACHWARID V MARIAPPA17a lease deed created, where the lessor orally agreed
to vacate the premises from the possession of the third party. It was held that no liability
would arise under the deed until the condition was fulfilled, and, therefore, the oral
agreement was provable.18

Proviso 4: Recission or Modification

Under this proviso, an oral agreement can affect the alteration or recission of a documentary
evidence provided that such document is not required to be in writing or registered under law.

For instance, A reduced the terms of the agreement to writing voluntarily, for sake of
convenience and not required by law, the oral agreement made subsequently to modify it is
admissible.

Proviso 5: Usage or Customs

The oral evidence to prove the existence of usage or local custom of general application in
the subject matter of contract to bind the parties to it is admissible provided that such usage
or custom is not inconsistent with the written document.

For instance, by general usage, credit for a month has been given to the buyer, such custom
can be used to prove that the buyer is rightfully entitled to the credit.

Proviso 6: Extrinsic evidence of surrounding circumstances

The object is to ascertain the true meaning of the document that is to be presented in the
court. For this purpose, the extrinsic evidence from the relevant surrounding circumstances is
required and is admissible in the court. The intention of the parties must be gathered from the
language of the parties.

17
AIR 1954 Trav. Co. 10.
18