What is ‘Best Evidence’ and how it can be proved in Court?

The main principle of the Law of Evidence is the principle of ‘Best Evidence’, which rejects hearsay evidence. “At common law the best evidence rule sought to reduce the hazard of invention and inaccuracy by requiring a party to adduce the best evidence on hand of the facts in issue having regard to the nature of the case.”[1] The best evidence rule is a common law rule of evidence, traced back at least as far as the 18th century. In the popular case of Omychund v. Barker[2] Lord Harwicke stated thus;

“The Judges and sages of the law have laid it down that there is but one general rule of evidence. the best that the nature of the case will allow.”

The phrase “hearsay evidence” is not used in the Evidence Act because it is inaccurate and vague. It is a fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible. Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied on, into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed. A statement oral or written, made otherwise than by a witness in giving evidence and a statement contained in a book, document or record whatever, proof of which is not admitted on other grounds, are deemed to be irrelevant for the purpose of proving the truth of the matter stated. An assertion other than one made by a person while giving oral evidence in the proceeding in inadmissible as evidence of any fact asserted. That this species of evidence cannot be tested by cross-examination and that, in many cases, it supposes the evidence of some better testimony, which ought to be offered in a particular case, is not the only ground for its exclusion. It’s tendency to protract legal proceedings to an embarrassing and dangerous length, its intrinsic weakness, its incompetency to satisfy the mind of a judge about the existence of a fact, and the fraud, which may be practised with impunity under its cover, combine to support the rule of exclusion. The person giving hearsay evidence does not feel any sense of responsibility. Every witness must give his testimony under such circumstances, as expose him to all penalties of falsehood.  Truth is diluted and diminished with each repetition. If permitted hearsay evidence, gives ample scope for playing fraud. It would be attaching importance to rumour flying from one foul lip to another.[3]

[1] Declan McGrath, Evidence, Thomson Dublin, Ireland, Reprinted 2006

[2] Omychhund v. Barker, (1745) 1 Atk 21 (49)

[3] KKalyan Kumar Gogoi v. Ashutosh Agnihotri, AIR 2011 SC 760

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