2. What is evidence? Which kinds are admissible?

(7M)

A. SYNOPSIS-

- Introduction

- Meaning of Evidence – General and statutory

- Types of evidence-

Oral

Documentary

Primary

Secondary

Real

Hearsay

Judicial

Non-Judicial

Direct

Circumstantial

Electronic

- Relevant case laws

- Conclusion

Introduction:

In any judicial proceeding, evidence plays a vital role as it supports the contention made by a party
and makes their side of the case stronger as evidence acts a proof of the happening or the non-
happening of any matter.

Considering the significance and pivotal role of evidence, The Indian Evidence Act, 1872 was enacted
which came into effect on 1st September, 1872 to govern and ensure its admissibility in the courts.

The law of evidence comes under ‘adjective law’ as it deals with both rights and procedures.

The act applies to all judicial proceedings including court-martial but does not apply to affidavits and
arbitration.

Meaning

The word evidence has been derived from the Latin term ‘evidere’ which means to prove or to
show/discover clearly.

In an ordinary sense, evidence means anything plain or apparent or certain. It can be understood as
an instrument that helps in establishing facts before the court of law.
According to Taylor, ” Evidence is adduced to prove any fact the truth of which is submitted to
judicial investigation.” In other words, Evidence is something that indicates the truth or validity of a
matter.

Evidence under section 3 of The Indian Evidence Act, 1872 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. All documents including electronic records produced for the inspection of the Court; such
documents are called documentary evidence.

Types of Evidence

1. Oral Evidence:

Oral evidence can be understood as that evidence which a witness has personally seen or heard in
relation to the issue at hand. Oral evidence must be direct which means that it should be personally
seen or heard or sensed by the witness and not something which he has heard through another
person.

Oral evidence must satisfy the conditions given under Section 60 of The Indian Evidence Act, 1872 in
order to be admissible before a court.

Its definition has been given under section 3 of the act to include all such statements made by
witnesses in relation to the case being heard by the court.

2. Documentary Evidence:

Section 3 of The Indian Evidence Act, 1872 has defined documentary evidence as all such
documents presented by means of letters, figures or marks for examination by the court and is
generally given higher credibility than other kinds of evidences as it is present in tangible form and
therefore easier to be examined.

Primary or Secondary evidence may be used to determine the authenticity of Documentary evidence
as per Section 61 of the act.

3. Primary Evidence:

Primary evidence as per section 62 of The Indian Evidence Act, 1872 is that document that is
produced before the court for inspection to either prove or disapprove a fact in question.

The act also states that if a document is executed in various parts then each part of the document
will be considered as primary evidence of such document.

The act further states that in case several documents are produced through a uniform process then
each document so produced will be considered as primary evidence of the contents of the rest of
such documents.

Since primary evidence is the original document brought for assessment it is considered as the best
type of evidence.

4. Secondary Evidence:

Secondary evidence is the reproduction or copy of the original document or primary evidence and
has been dealt with under section 63 of The Indian Evidence Act, 1872. Primary evidence is always
preferred by the court over secondary evidence as per the best evidence rule while deciding a case.
For secondary evidence to be admissible in court it must fulfill the conditions specified under section
65 of The Indian Evidence Act, 1872 which are:

- The original document is in possession of a person against whom such document is to be

proved or a person who is an outreach for the court or a person who is legally bound to produce it or
a person who does not produce the document even after due notice has been served to him.

- The person against whom such a document is to be proved or his representative, admit in
writing the existence, conditions, or contents of the original document.

- The party offering the evidence is unable to produce it in a reasonable time either because
of some default or negligence on their part or when the original document has been destroyed or
lost.

- The nature of the original document is such that it is not easily movable from one place.

- The public document as per section 74 of The Indian Evidence Act, 1872 is the original
document.

- Certified copy of the original document which are permitted to be given as evidence under
The Indian Evidence Act, 1872 or any such act in India.

- When the fact to be proved is the general result of an original document consisting of
numerous other documents.

5. Real Evidence:

Real or material or genuine evidence is that evidence which is present intangible or physical form
and produced before the court for inspection. This type of evidence is derived by reviewing and
inspecting a physical object and not from information by any document or witness.

However, for real evidence to be used in a trial, it must be supported by calling a witness.

Real evidence also needs to be relevant and authentic in order to be admissible, for example, a
weapon used in a murder case, conduct or behavior of a person, etc.

6. Hearsay Evidence:

When a witness reports an incident that he has neither personally seen or heard but rather got to
know about it through someone else is known as hearsay evidence. Such evidence is inadmissible
since it is not directly perceived by the witness and he has learned about it through a third person.
Generally, hearsay evidence is considered as no evidence but The Indian Evidence Act, 1872 provides
for some exceptions to this general rule which are:

Admission

Confession

Dying Declaration

Res Gestae

Evidence given in a formal proceeding

Kalyan Kumar Gogoi vs. Ashutosh Agnihotri

The reasons why hearsay evidence is not received as relevant evidence are:

(a) the person giving such evidence does not feel any responsibility. The law requires all evidence to
be given under personal responsibility, i.e., every witness must give his testimony, under such
circumstance, as expose him to all the penalties of falsehood. If the person giving hearsay evidence
is cornered, he has a line of escape by saying “I do not know, but so and so told me”,

(b) truth is diluted and diminished with each repetition and

(c) if permitted, gives ample scope for playing fraud by saying “someone told me that………..”. It
would be attaching importance to false rumors flying from one foul lip to another. Thus, a statement
of witnesses based on information received from others is inadmissible.

7. Judicial Evidence:

Evidence that the court receives in order to prove or disprove facts in question such as confession by
an accused, statement made by a witness, etc. is called judicial evidence.

8. Non-Judicial Evidence:

Confession or admission by a party outside the court of law and in presence of any person is called
non-judicial evidence It is weak evidence in itself but can be relied upon if it is supported by other
prosecution evidence.

9. Direct Evidence:

Direct or positive evidence plays a significant role in deciding a matter as it directly proves or
disproves a fact in an issue without the need for further inference or reasoning. An example of direct
evidence is testimony by an eyewitness.

10. Circumstantial Evidence:

Circumstantial evidence is that evidence which proves a fact in question by providing other facts that
are relevant to the issue. There is a cause and effect relation between the series of facts and the fact
which is in question before the court. Various relevant and reliable facts are corroborated to arrive
at a conclusion that serves as circumstantial evidence.

In Laxman Naik V. state of Orissa 1995, the conviction and sentence of death sustained on the basis
of circumstantial evidence showing an unbroken and complete chain of events leading to the rape
and murder of a seven year old daughter of the brother of the accused.

11. Electronic Evidence:

Electronic evidence or e-evidence or digital evidence is evidence derived from electronic devices
such as mobile phones, laptops, computers, tablets, CCTV cameras, pen drives etc. The evidence can
be in the form of a message, video, call recording, photo, or any data stored in an electronic form.
Earlier, they were not covered under the definition of evidence but with the rampant advent of
technology, the definition of evidence was amended under The Information Technology Act, 2000 to
include electronic records as well. Electronic evidence is dealt with under section 65A and 65B of The
Indian Evidence Act, 1872.

Case Laws

State vs. Mohd. Afzal and Ors

Section 65B of the Indian Evidence Act and Section 69 of The Police and Criminal Act, 1984 of the
U.K. have substantially the same effect. The Law Commission in England reviewed the law relating to
computer-generated evidence and observed in its report that Section 69 fails to address the major
causes of inaccuracy in computer evidence and Section 69 has been repealed by Section 60 of the
Youth Justice and Criminal Evidence Act, 1999. and common law presumption “in the absence of
evidence to the contrary the court will presume that mechanical instruments were in order at the
relevant time”, operates with full force.[3]

Ramawati Devi vs. State of Bihar

A statement, written or oral, made by a person who is dead as to the cause of his death or as to any
of the circumstances of the transaction which resulted in his death, in cases in which the cause of
that person’s death comes into question, becomes admissible under Section 32 of the Evidence Act.
Such a statement made by the deceased is commonly termed as a dying declaration. There is no
requirement of law that such a statement must necessarily be made to a Magistrate. What
evidentiary value or weight has to be attached to such a statement, must necessarily depend on the
facts and circumstances of each particular case. [4]

Conclusion

The Indian Evidence Act, 1872 is an important legislation since evidence plays a huge role in deciding
any case. In order to prove any fact in question, a person may use any of the different types of
evidence available at his disposal to make his case stronger.