KINDS OF EVIDENCE

ARCHA.R*

INTRODUCTION

Evidence is basically the visible or available fatcs or any kind of information that

vaildates a belief or a proposition. It helps to confirm or prove or rather acts as a proof

for some fact that already exsists. It helps verify the truth to the fullest extent and

helps in affirmation. With the help of proper substantial evidence, documentation and

authentication can be easily done. The evidence used can show, indicate, reveal a

significant piece of truth, which maybe cannot be found otherwise.

It can aslo be said as the proof of facts presented at a trial.1 This proof is used to

persuade the judge to accept the facts of the case presented provided that the judge

does not have any pre-concieved mindset. The opposing party can then try to deny the

evidence provided and prove otherwise.

In Re Lord Lovatt2, it was held that, "There is no making brick without straw. There is

no calling witnesses without facts. There is no making a defence without innocence.

There is no answering evidence which is true."

But this evidence has to have rules. Anything and eveyrthing cannot be accepted as it

would lead to bizzare consequences.

1
*14BLA1004, 3RD YEAR BA.LLB(HONS.), VIT UNIVERSITY, CHENNAI.
http://www.duhaime.org/LegalDictionary/E/Evidence.aspx last visited on 21.7.2016

2
18 St. Tr. 530, at page 812 (1746).
In Fox v Mackreth3, it was held that "It is of very little consequence to the public to

lay down definite rules of law if you have indefinite rules of evidence."

THE INDIAN EVIDENCE ACT

Before the actual indian evidence act was passed, the idea of evidence mainly evloved

from the ancient hindu period, mainly from the hindu dharma shastras. The shastras

say that any trial should end only in truth. The vasista recognises three main types of

evidence.4 This includes the Lekhya which is the documentary evidence, the sakshi

which means witness and bukhthi which means possesion. The muslim period also

saw the emergence of oral and documentary evidence. After this, the britishers started

to have control over India. In British India, the presidency courts were following the

english rules of law of evidence. However, in courts outside the main towns, there

were no definite rules of evidence. This led to a lot of confusion. Therefore there was

a huge need to codify the exsisting haphazard rules of evidence. The first attempt was

made between 1835 to 1853. But the amendments passed during this time were found

to be inadequate. In 1868, a comission headed by Sir Henry Maine submitted a draft,

but it somehow did not fit in well with the local conditions in India. Then again in

1870, Sir James Fitz James Stephen submitted a draft which was accepted by the

select committee and the high courts. Eventually the final draft was enacted and

Indian evidence act came in to force on 1st september, 1872.

Evidence in the simplest of sense means being plain, evident and obvious. It has been

derived from the latin word, ‘evidere’, which means to show clearly or prove
3
2 Cox 320 (1788)

4
http://www.lawctopus.com last visited on 25.7.2016
something.The fact that the evidence proves is called the principal fact and the fact

which in turn establsihes it is called the evidentary fact.

According to Sir Blackstone, ‘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.

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.

Section 3 of the Indian evidence act, 1872 defines evidence. It is an interpretation

clause.5

In this Act the following words and expressions are used in the following senses,

unless a contrary intention appears from the context:— “Court”. —“Court” includes

all Judges1 and Magistrates, 2 and all persons, except arbitrators, legally authorized to

take evidence. “Fact”. —“Fact” means and includes—

(1) any thing, state of things, or relation of things, capable of being perceived by the

senses;

(2) any mental condition of which any person is conscious. Illustrations

(a) That there are certain objects arranged in a certain order in a certain place, is a

fact.

(b) That a man heard or saw something, is a fact.

(c) That a man said certain words, is a fact.

5
https://indiankanoon.org/doc/1031309/ last visited on 1.8.2016
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or

fraudulently, or uses a particular word in a particular sense, or is or was at a specified

time conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation, is a fact. “Relevant”. —One fact is said to be

relevant to another when the one is connected with the other in any of the ways

referred to in the provisions of this Act relating to the relevancy of facts.

“Document”. —“Document” 4 means any matter expressed or described upon any

substance by means of letters, figures or marks, or by more than one of those means,

intended to be used, or which may be used, for the purpose of recording that matter.

“Evidence” .— “ Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by

witnesses, in relation to matters of fact under inquiry, such statements are called oral

evidence;

(2) 6 [all documents including electronic records produced for the inspection of the

Court], such documents are called documentary evidence. “Proved” .—A fact is said

to be proved when, after considering the matters before it, the Court either believes it

to exist, or considers its existence so probable that a prudent man ought, under the

circumstances of the particular case, to act upon the supposition that it exists.

“Disproved”. — A fact is said to be disproved when, after considering the matters

before it, the Court either believes that it does not exist, or considers its non-existence

so probable that a prudent man ought, under the circumstances of the particular case,

to act upon the supposition that it does not exist. “ Not proved”. — A fact is said not

to be proved when it is neither proved nor disproved. 7 [“ India ”. —“ India ” means

the territory of India excluding the State of Jammu and Kashmir .] 8 [the expressions

“Certifying Authority”, 9 [electronic signature], 9 [Electronic Signature Certificate],

“electronic form”, “electronic records”, “information”, “secure electronic record”,

“secure digital signature” and “subscriber” shall have the meanings respectively

assigned to them in the Information Technology Act, 2000 (21 of 2000).]

so this basically means that , evidence 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.

In Sivrajbhan v. Harchandgir6, it was held by the supereme court that “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.”

6
AIR 1954 SC 564
TYPES OF EVIDENCE

Evidence an mainly be divided in to three major categories.

 Oral or personal or primary

 Documentary or secondary

 Material or real

Oral evidence is further classified in to

 Direct

 Indirect or hearsay

The first form of evidence is the most basic one. This is called as the oral evidence.

Section 60 of the indian ecidence act of 1872 specifies a provision which speaks of

recordinfg oral evidence.7

The oral evidence should always be direct. It should refer only to a fact which can be

seen or must be an evidence from the witness who has seen it or is claiming to have

seen it. It referes to a fact which could be percieved by nay other sense. It also can

refer to opinions or the grounds on which such opinion is built. If the evidence is for

any document that is going to be used for sale, it can be produced as direct evidence if

the authour is dead or cannot be found or has become incapable of giving evidence or

cannot be called as a witness. If oral evidence includes any other material object other

than a document, if the court thinks it’s fit, it can be required to be produced for

inspection in front of the court.

7
Indian Evidence Act, Ratanlal & Dhirajlal, Lexis Nexis Butterworths Wadhwa, 21st Edition, Nagpur
Oral evidence basically means the statements ehich the court allows or expcts the

witness to make. These statements should be truth based on facts. Oral evidence must

either me positive or direct. It can also be considered as primary or secondary.

In Jamshed J. Irani v. State Of Jharkhand8, It was held that

“A direct evidence is one which is not contrary to the main fact established in the

issue.”

The next type of evidence is called the documentary evidence. Section 3 of the indian

evidence act says that, any or all documents that are produced before the court of law

for inspection is called documentary evidence. In Harihar Prasad Singh And Ors vs

Balmiki Prasad Singh And Ors9, it was held that documentary evidences are more

important that oral evidence because, it shows that actual real attitude of the parties

and their counsiousness regarding their customs and behaviour.

The next type of evidence is called the primary evidence. This kind of evidence is

detailed in section 62 of the act. This type of evidence is the most supreme. They are

highly admissible in court and allowed in the first place. It is a kind of proof which

gives a very important vital hint about the disputed fact in any possible condition

through the production of any documentary evidence. It is an important document

which Is open for the court to inspect.

8
2006 (4) JCR 117 Jhr

9
1975 SCR (2) 932
In Lucas v Williams10,  the 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.”

The secondary evidence is the next important kind of evidence. It’s detailed in section

63 if the act. The ourt accepts these kind of evidence if there is no primary evidence.

Therefore it occupies a secondary position or an inferior poisiton.

In Kalyan Singh, London Trained, v. Smt. Chhoti And Ors11, it was held that 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.

The next type of evidence is called the real evidence. Real evidence basically means

physical or material evidence. It is very objective. It is a kind of evidence dervied

from inspecting an object physically and not by mere over the top observation. The

material object is brought to the knowledge of the court through proper examination.

This is impotant than an evidence given by a witness or document, because it states

the obvious. Few examples include contempt of court, conduct of witness, the

10
1892 Q.B 116

11
AIR 1990 SC 396
behaviour or attitudes of the parties, a weapon used to commit an act of murder. This

can be seen or felt and thus is more satisfactory than all the other types of evidences.

The next type of evidence is called the hearsay evidence. This one is the weakest of

all the evidences. This because it’s a kind f evidence which is synonomus with gossip

or rumours. It is a reported evidence from a witness which he has maybe heard or not

heard or maybe heard someone say it.

In Lim Yam Yong v. Lam Choon & Co12, the high court of ombay held that, “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.”

In Hasmukhlal V. Shah vs Bank Of India and ors13, it was held that There is no bar to

receive hearsay evidence provided it has reasonable nexus and credibility.

Thus it is a kind of evidence which the witness has not actually seen or heard but has

either assumed or percieved through his senses or has heard a third party say or

witness it. The court does not really deny these kind of evidences, but it gives it the

lowest priority.

12
6 All 509 Fb

13
(1997) 3 GLR 1891
In K.P. Abdul Kareem Hajee And Anr. vs Director, Enforcement14, it was held that

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.

The next two types of evidences are judicial and non-judicial evidences. Judicial

evidence is the evidence which is out in front of the court either in proof of the facts

or denying the facts. These include the confession, adminssion, statement of the

witness, documents produced before the court and so on. Non-judicial evidence is

The evidence which the concerned person makes outside the court to some person like

a police office. It is not permissible unless proved in court. If it is proved in court, it

can be called as judicial evidence.

The last two types of evidence are direct and indirect evidence. Direct evidence is

very important. This is because it helps establish a fact. This includes a statement or

confession by a witness. This is basically the testimony of the witness about what

she/he himself has seen or witnessed. It helps to bring out the truth. It is thus called

the positive evidence.

According to section 5 of the indian evidnce act, it says evidence may be given in a

proceeding of the existence or non-existence of facts in issue and of such other facts

as are declared to be relevant by the Act. so if the evidence relates to exsistence of the

14
(1977) 2 MLJ 47
fact it is called direct evidence. But on the other hand if it realates to exsistence or

non-exsistence of a certain relavent fact only it’s called indirect evidence.

In Governor of Bengal in Council v. Motilal Ghosh15, it was held that testimony of eye

witness to a murder is a direct evidence.

Indirect or circumstantial evidence is the one which helps to prove the fact involved

by providing any other fact that the direct facts. However they cannot be used as a

definite form of proof. It can be vague or ambiguos sometimes as it only provides a

general idea of the crime scene.

In Kenchegowda v. P. Chaunaiya16, it was said that ,

For proof by circumstantial evidence four things are essential:-

 That the circumstances from which the conclusion is drawn be fully

established.

 That all the facts should be consistent with the hypothesis.

 That the circumstances should be of a conclusive nature and tendency.

 That the circumstances, should, to moral certainty actually exclude every

hypothesis but the one proposed to be proved.

In many cases the supreme court has said that when a circumstantial evidence is

presented, to affirm it or to order a person guilty on the basis of such evidence, there

15
41 C 173: 20 IC 8114 Cr LJ 321

16
1953 Mys 22
shouldn’t even be a shawdow of doubt and such evidence should establish the dispute

in the fact beyond any reasonable doubt.

In Hanumant v. State of Madhya Pradesh17, the supreme court held that “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 Ashok Kumar v. State of Madhya Pradesh18, the supreme court held that ,

(1)   The circumstances from which an inference of guilt is sought to be drawn must

be cogently and firmly established.

(2)    Those circumstances should be of a definite tendency unerringly pointing

towards the guilt of accused.

(3)   The circumstances, taken cumulatively should from a chain so complete that

there is no escape from the conclusion that within all human probability the crime was

committed by the accused and none else.

17
AIR 1995 SC 343

18
AIR 1989 SC 1890
(4)   The Circumstantial Evidence in order to sustain conviction must be complete and

incapable of explanation on any other hypothesis than that of the guilt of the accused

and such evidence should not only be consistent with the guilt of the accused but

should be inconsistent with his innocence.

The courts have to be very careful in accepting both these type of evidences because

relying on these types of evidence can be risky as the witness can give statements that

are entierly false. This can make the inference drawn from it wrong.

In Kallu v. State Of Uttar Pradesh19, a person was killed by a shot from a country

made pistol. A cartridge was found near the deceased. The accused was arrested at a

distance of 14 miles from the place of occurance. He produced a pistol from his house

which in turn indicated that he alone could have known of it’s exsistence there. It was

proved that it was the same pistol out of which the shot was fired.the supreme court

convicted the accused and held that, “Circumstantial Evidence has established that the

death of the deceased was caused by the accused and no one else.”

Evidence mainly comes from witnesses. There are two main kinds of witness. One is

eye witness and other is circumstantial witness.

There are mainly five types of witness.

 The prosecution witness : the prosectuion is the party in a law suit which

showcases all the formal charges against the accused and tries to prove him

19
AIR 1958 SC 180
 guilty beyond any reasonable doubt. Therefore a witness who appreas on

behlaf of the prosecution is called the prosecution witness.

 The defense witness: the defense is the party in the law suit which defends the

accused and tries to prove him innocent. The defence counsel basically denys

all the proof put forth by the prosecution. A witness who aappears on behlaf of

the defense side is called the defense witness.

 The expert witness: the expert witness is someone like a doctor who explains

the judge about certain medical terms or a forensic expert who details the

crime scene or a psychologist who talks about the mental condition of the

concered person. Their role is only advisory in nature. Only if the judge

accepts it, it becomes a part of other evidence.

In State Of Himanchal Pradesh v. Jai Lal20, in this it was held that credibility of the

expert witness depends upon the reasons stated in support of his conclusions and the

data furnished which form the basis of his conclusions.

 The eye witness : this is basically a witness who gives testimony about

something he has seen for himself. However he must be legally fit, that is of

sound mind to testify in the court. Identification of the person by the eye

witness in the court is a serious matter and the probability of false

identification can cause severe consequences for the person identified by the

witness. So it must be dealt carefully. There is also a difficulty when the case

20
AIR 1999 SC 3318
 solely relays on the testimony of only one eye witness. It is up to the court to

decide whether to relay on a single eye witness or not. The court usually insist

on the quality of evidence and not the quantity of evidence. thus there is no bar

to a case being decided on the basis of the testimony of the single eye witness.

In Anil Puhkan v. state of Assam21, it was held that,

“It is only when the courts find that the single eye witness is a wholly unreliable

witness that his testimony is discarded in toto and no amount of corroboration can

cure that defect.”

 The hostile witness: a hostile witness is one who is not willing to be a witness

or not willing to disclose what he knows. They are the ones who withdraw in

the last minute due to fear or some other reasons specific to their own. In Balu

Sonba Shinde v. State of Maharashtra22, the supereme court held that the

declaration that a witness is hostile, does not reject the evidence given by him.

What ever benefits the case can be taken out of it. But it must be dealt

carefully as it might even be false information.

CONCLUSION

Evidence is a very important part of any case. Something more important that

evidence is the testimony of the witness present. Only if there is proper evidence,

there can be a fair judgement and the judge can reach an unbaised verdict. When the

21
(1993) 3 SCC 282

22
2003 SCC (Crl.) 112
evidence factor is lightly twisted, the game plan of the whole case can change at

times. It is up to the jugde to decide, what is true and what is not. It is equally

important for people to come forward as witness and not to turn hostile. It is only then

the courts can give a proper jugdment and people’s faith in judiciary of the country

can be upheld. Nowadays, it is much more easier to collect evidence due to the

evolution of technology such as cctv cameras, tracking cell phone signals, gps

devices, satellites etc. it is much more easier to make a blue print of the crime scence

in the present than a decade back.

Also if people have witnessed anything abnormal, it is very important to go report it

to the nearest authority. It is important that people always be alert and vigilant, to

make the society a better plaec to live. It is important that they turn themselves in as

witness if they have really witnessed something. If people keep silent about such

issues, what happened to another person, can always happen to us. Thus to conclude,

it can be said that evidence and witness in any law suit play a crucial role in

determining the outcome of the case.

BOOKS REFERRED

Indian Evidence Act, Ratanlal & Dhirajlal, Lexis Nexis Butterworths Wadhwa,

21st Edition, Nagpur

The indian evidence act- a critical commentary covering emerging issues and

international developments., 2nd edition, 2015.

Sarkar on evidence, 5th eddition,2004

Law of evidence, Batuk lal, 5t edition.