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Everything About Evidence

Evidence includes everything that is used to determine or demonstrate the truth of an submission. Giving or procuring evidence is the process of using those things that are either (a) presumed to be true, or (b) which were proved by evidence, to demonstrate an assertion’s truth. It is very essential to decide the merit of a case. Evidence is the currency by which one fulfills the burden of proof [1].

In law, the production and presentation of evidence depends first on establishing on whom the burden of proof lays.

Affirmanti non neganti incumbit probation means the burden of proof is incumbent upon the one who affirms. not on the one who denies.

Evidence

The word ‘Evidence’ has been derived from the Latin word ‘evidere’ which implies to show distinctly, to make clear to view or sight, to discover clearly, to make plainly certain, to certain, to ascertain, to prove.

According to Sir Taylor, Law of Evidence means through argument to prove or disprove any matter of fact. The truth of which is submitted to judicial investigation.

Further, Sir Blackstone said, ‘Evidence’ signifies that which demonstrates, makes clear or ascertain the truth of the facts or points in issue either on one side or the other.

Section 3 of The Indian Evidence Act [2], defines evidence in the following words-

Evidence means and includes-

(1) All the statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry; such statements are called Oral evidence;

(2) All the documents including electronic records produced for the inspection of the court; such documents are called documentary evidence;

The definition of Evidence given in this Act is very narrow because in this evidence comes before the court by two means only-

(1) The statement of witnesses.

(2) Documents including electronic records.

The Hon’ble Supreme Court of India in Sivrajbhan v. Harchandgir (AIR 1954 SC 564) held “The word evidence in connection with Law, all valid meanings, includes all except agreement which prove disprove any fact or matter whose truthfulness is presented for Judicial Investigation. At this stage it will be proper to keep in mind that where a party and the other party don’t get the opportunity to cross-examine his statements to ascertain the truth then in such a condition this party’s statement is not Evidence.”

The Supreme Court has ruled that a compact disc (CD) is a document under Section 3 of the Indian Evidence Act, 1872. The Court also held that a CD has to be exhibited/played by the trial court to enable the public prosecutor to admit or deny its genuineness under Section 294 of the Code of Criminal Procedure (CrPC).

The decision was rendered by a Division Bench of Justice PC Pant and Justice Dipak Misra  in an appeal [3].

Different Forms of Evidence

(a) Oral Evidence 

Section 60 of the Indian Evidence Act, 1872 prescribed the provision of recording oral evidence. All those statements which the court permits or expects the witnesses to make in his presence regarding the truth of the facts are called Oral Evidence. Oral Evidence is that evidence which the witness has personally seen or heard. Oral evidence must always be direct or positive. Evidence is direct when it goes straight to establish the main fact in issue[4].

b) Documentary Evidence–

Section 3 of The Indian Evidence Act says that all those documents which are presented in the court for inspection such documents are called documentary evidences. In a case like this it is the documentary evidence that would show the actual attitude of the parties and their consciousness regarding the custom is more important than any oral evidence[5].

(c) Primary Evidence

Section 62 of The Indian Evidence Act says Primary Evidence is the Top-Most class of evidences. It is that proof which in any possible condition gives the vital hint in a disputed fact and establishes through documentary evidence on the production of an original document for inspection by the court. It means the document itself produced for the inspection of the court. In Lucas v. Williams (1892 Q.B 116) Privy Council held “Primary Evidence is evidence which the law requires to be given first and secondary evidence is the evidence which may be given in the absence of that better evidence when a proper explanation of its absence has been given.”

(d) Secondary Evidence

Section 63 says Secondary Evidence is the inferior evidence. It is evidence that occupies a secondary position. It is such evidence that on the presentation of which it is felt that superior evidence yet remains to be produced. It is the evidence which is produced in the absence of the primary evidence therefore it is known as secondary evidence. If in place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not been proved by primary evidence but by secondary evidence. But where there is no secondary evidence as contemplated by Section 66 of the Evidence Act then the document cannot be said to have been proved either by primary evidence or by secondary evidence.”[6]

(e) Real Evidence

Real Evidence means real or material evidence. Real evidence of a fact is brought to the knowledge of the court by inspection of a physical object and not by information derived from a witness or a document. Personal evidence is that which is afforded by human agents, either in way of disclosure or by voluntary sign. For example, Contempt Of Court, Conduct of the witness, behavior of the parties, the local inspection by the court. It can also be called as the most satisfactory witness.

(f) Hearsay Evidence

Hearsay Evidence is very weak evidence. It is only the reported evidence of a witness which he has not seen either heard. Sometime it implies the saying of something which a person has heard others say. The Hon’ble Bombay High Court adjudged “Hearsay Evidence which ought to have been rejected as irrelevant does not become admissible as against a party merely because his council fails to take objection when the evidence is tendered.” So finally we can assert that Hearsay Evidence is that evidence which the witness has neither personally seen or heard, nor has he perceived through his senses and has come to know about it through some third person. There is no bar to receive hearsay evidence provided it has reasonable nexus and credibility. When a piece of evidence is such that there is no prima facie assurance of its credibility, it would be most dangerous to act upon it. Hearsay evidence being evidence of that type has therefore, to be excluded whether or not the case in which its use comes in for question is governed by the Evidence Act. [7]

(g) Judicial Evidence 

Evidence received by court of justice in proof or disproof of facts before them is called judicial evidence. The confession made by the accused in the court is also included in judicial evidence. Statements of witnesses and documentary evidence and facts for the examination by the court are also Judicial Evidence.

(h) Non-Judicial Evidence

Any confession made by the accused outside the court in the presence of any person or the admission of a party are called Non-Judicial Evidence, if proved in the court in the form of Judicial Evidence.

(i) Direct Evidence

Evidence is either direct or indirect. Direct Evidence is that evidence which is very important for the decision of the matter in issue. The main fact when it is presented by witnesses, things and witnesses is direct, evidence whereby main facts may be proved or established that is the evidence of person who had actually seen the crime being committed and has described the offence. We need hardly point out that in the illustration given by us, the evidence of the witness in Court is direct evidence as opposed to testimony to a fact suggesting guilt. The statement before the police only is called circumstantial evidence of, complicity and not direct evidence in the strict sense.[8]

(j) Circumstantial Evidence or Indirect Evidence

There is no difference between circumstantial evidence and indirect evidence. Circumstantial Evidence attempts to prove the facts in issue by providing other facts and affords an instance as to its existence. It is that which relates to a series of other facts than the fact in issue but by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to a satisfactory conclusion.

In Hanumant v. State Of Madhya Pradesh (AIR 1995 SC 343), The Hon’ble Supreme Court Observed, “In dealing with circumstantial evidence there is always the danger that suspicion may take the place of legal proof. It is well to remember that in cases where the evidence is of a circumstantial nature the circumstances from which the conclusion of guilt is to be drawn should in the first instance , be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. In other words there can be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”

In the case of Kallu v. State Of Uttar Pradesh (AIR 1958 SC 180), the accused was tried for the murder of the deceased by shooting him with a country made pistol. A cartridge was found near the bed of the deceased. The accused was arrested at a distance of 14 miles from the village which was the place of occurrence. He produced a pistol from his house which indicated that he could have alone have known of its existence there. The fire-arms expert proved that it was the same pistol from which the shot was fired and deceased was killed. The Hon’ble Supreme Court while convicting the accused held “Circumstantial Evidence has established that the death of the deceased was caused by the accused and no one else.”


Footnotes:

[1]. http://anesthesiology.pubs.asahq.org/article.aspx?articleid=1924667

[2]. https://indiankanoon.org/doc/1031309/

[3]. http://barandbench.com/cd-is-document-under-section-3-of-evidence-act-rules-supreme-court/

[4]. Jamshed J. Irani vs State Of Jharkhand And Anr, 2006 (4) JCR 117

[5]. Harihar Prasad Singh And Ors vs Balmiki Prasad Singh And Ors, 1975 SCR (2) 932

[6]. Kalyan Singh, London Trained vs Smt. Chhoti And Ors, AIR 1990 SC 396,

[7]. Hasmukhlal V. Shah vs Bank Of India And Ors, (1997) 3 GLR 1891

[8]. Tahsildar Singh And Another vs The State Of Uttar Pradesh, AIR 1959 SC 1012

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