Oral Evidence under Sections 54 and 55 of the Bharatiya Sakshya Adhiniyam, 2023: Direct Evidence, Hearsay and the Relationship with Documentary Evidence

Two sections govern the whole of oral evidence. Section 54 says that everything except the contents of documents may be proved by word of mouth. Section 55 says that such evidence must in all cases be direct, and in doing so gives statutory effect to the rule against hearsay without once using the word. Between them they occupy a page of the statute and determine what the greater part of every trial consists of.

1. Section 54 — What May Be Proved Orally

The section corresponds to Section 59 of the Indian Evidence Act, with electronic records added by the amendments of 2000 and carried forward. It is a provision of enablement, and its width is deliberate: the ordinary way of proving anything in a court is to call somebody who perceived it and ask him what he perceived.

The single exception is the contents of documents and electronic records, and it exists because of the best evidence rule. Where a matter has been reduced to writing, the writing is the best proof of what it says, and permitting a witness to recount its contents from memory would substitute a fallible account for an exact record. Sections 56 to 60 therefore govern the proof of contents, and Section 54 stands aside for them.

2. Section 55 — Oral Evidence Must Be Direct

The words 'in all cases whatever' are emphatic and are meant to be. The requirement admits of no exception except those the statute itself provides, and it applies equally to civil and criminal proceedings, to every kind of fact, and to every witness.

3. What 'Direct' Means Here

The word carries two quite different meanings in the law of evidence, and confusing them produces most of the difficulty students have with this section.

In Section 55 it means perceived by the witness himself, as opposed to learned from somebody else. Its opposite is hearsay.

In the classification of evidence it means evidence of the fact in issue itself, as opposed to evidence of other facts from which the fact in issue may be inferred. Its opposite is circumstantial evidence.

The two are independent. A witness who deposes that he personally saw the accused buy poison a week before the death is giving evidence that is direct in the first sense — he saw it — and circumstantial in the second, because the purchase is not the fact in issue but a circumstance from which it may be inferred. Section 55 is satisfied; the circumstantial-evidence rules then govern what the fact is worth.

4. The Four Limbs

The section works through the senses in turn, and the structure repays attention because each limb pairs the fact with the faculty by which it is perceived.

Sight. A fact which could be seen must be proved by a witness who says he saw it. This covers the great bulk of testimony about events — the occurrence itself, the presence of persons, the position of things, the condition of a place.

Hearing. A fact which could be heard must be proved by a witness who says he heard it. This covers words spoken, sounds, gunshots and cries. Its importance lies in what it makes possible: a witness who heard a statement may depose that it was made, and where the statement is relevant for some purpose other than its truth — as conduct, as a threat, as an operative utterance — his evidence is direct and unobjectionable.

Other senses. A fact perceptible by any other sense or in any other manner must be proved by a witness who says he perceived it in that way. Touch, smell and taste all fall here, and so does the perception of one's own bodily condition — pain, illness, sensation — which is closely connected with Section 12 on states of body and bodily feeling.

Opinion. Where the evidence refers to an opinion, or to the grounds on which the opinion is held, it must be the evidence of the person who holds that opinion on those grounds. This limb is the reason an expert report is not evidence merely by production, and the reason a witness may not depose to what another expert concluded.

5. Hearsay and Direct Evidence

Section 55 is the statutory vehicle of the rule against hearsay, though it approaches the matter from the positive side. It does not say that hearsay is excluded; it says that oral evidence must be direct, and hearsay is what is left out.

Hearsay is a statement made otherwise than by a witness deposing in the proceeding, tendered as evidence of the truth of what it asserts. The defining feature is the purpose, not the fact that the statement was made out of court.

The reasons for excluding hearsay are five, and they explain why the exceptions look as they do. The maker was not on oath. He was not cross-examined. His demeanour cannot be observed. Accuracy is diluted at each remove. And the witness who repeats the statement does not vouch for its truth.

Each statutory exception supplies a substitute for one or more of these. Section 4 relies on spontaneity, which removes the opportunity to fabricate. Sections 15 to 24 rely on the statement being against the maker's interest. Section 26 relies on necessity, coupled with a circumstance particular to each clause. Sections 28 to 32 rely on routine and official duty. Section 27 needs no substitute at all, because the evidence was given on oath with the right to cross-examine.

6. The Two Provisos

6.1 Expert opinion in a treatise

The first proviso permits the opinion of an expert expressed in a treatise commonly offered for sale, and the grounds on which it is held, to be proved by producing the treatise, where the author is dead, cannot be found, has become incapable of giving evidence, or cannot be called without unreasonable delay or expense.

The conditions of unavailability mirror those in Section 26, and the reasoning is the same — necessity, coupled with a circumstance supplying reliability. Here that circumstance is publication: a work written for the profession at large, offered for sale, and staking the author's reputation on its accuracy carries a guarantee that a private communication would not.

Two limits should be noted. The proviso applies to a treatise commonly offered for sale, not to an unpublished paper, an internal report or a private opinion. And it applies where the author is unavailable; where he can be called, he must be, and the treatise is then used, if at all, under Section 40 as a fact bearing on his opinion or in cross-examination of another expert.

6.2 Production of material things

The second proviso permits the court, where oral evidence refers to the existence or condition of a material thing other than a document, to require its production for inspection.

This short provision is the route by which real or material evidence enters the record. A weapon, a bloodstained garment, a damaged article, a sample — none of these falls within the definition of evidence in Section 2(1)(e), which names only oral and documentary evidence, and the proviso is what allows the court to look at the thing itself rather than depending on descriptions of it.

The logic is the best evidence rule applied to objects. Where a witness describes the condition of a thing and the thing can be produced, the thing is better proof of its condition than any description. The court's power is discretionary — 'if it thinks fit' — and it is exercised where the condition genuinely matters and the article is available and unchanged.

7. Oral Evidence and Documentary Evidence

The relationship between the two is governed by three distinct sets of provisions, and they answer three different questions.

The three operate in sequence and should not be run together. Section 54 is about the mode of proof and simply carves out contents. Sections 56 to 60 are about how contents are proved once the carve-out applies. Sections 94 to 103 are about something different again — they say that where the parties have reduced a contract, grant or disposition to writing, the writing is the only evidence of its terms, and oral evidence to add to, vary or contradict it is excluded.

The third set contains six provisos of considerable practical importance, permitting oral evidence of matters such as fraud, want of consideration, the existence of a separate oral agreement on a matter on which the document is silent, a condition precedent, and a subsequent oral agreement to rescind or modify. Those are examined separately.

8. What Oral Evidence Is Worth

Sections 54 and 55 govern admissibility. They say nothing about weight, and it is worth noting three propositions from elsewhere in the Adhiniyam that do.

No particular number of witnesses is required. Section 139 provides that no particular number shall in any case be required for the proof of any fact, and the maxim it embodies is that evidence is weighed and not counted. A conviction may rest on a single witness whose testimony is wholly reliable.

Oral evidence is tested by cross-examination, and the provisions governing examination in Sections 140 to 168 are what give the requirement of directness its practical force. A witness who says he saw a thing can be asked where he stood, how the light was, how far away he was and what else he noticed. A witness repeating what he was told can be asked none of these usefully, which is the whole reason hearsay is excluded.

Minor discrepancies are expected. Witnesses to a sudden event perceive different things and recall them imperfectly, and testimony that corresponds in every particular is more often a sign of rehearsal than of truth. What matters is whether the discrepancies go to the core of the account or to its margins.

9. The Position Stated Shortly

1. Section 54 permits every fact to be proved orally except the contents of documents and electronic records, and the exception is confined to contents.
2. Section 55 requires oral evidence to be direct in all cases whatever, and this is the statutory form of the rule against hearsay.
3. 'Direct' in Section 55 means perceived by the witness, not evidence of the fact in issue. The two senses of the word are independent.
4. The section works through the four faculties — sight, hearing, other senses, and the holding of an opinion — and pairs each fact with the way it is perceived.
5. A statement heard by a witness is direct evidence that it was made, and whether it is hearsay depends on what it is offered to prove — Subramaniam.
6. The first proviso admits an expert's treatise where the author is unavailable, on conditions mirroring Section 26.
7. The second proviso is the route for real evidence, permitting the court to require production of a material thing for inspection.
8. Three separate rules govern the relationship with documents — Section 54 on mode, Sections 56 to 60 on proof of contents, and Sections 94 to 103 on exclusion of oral evidence by documentary evidence.

10. Related Topics and Provisions