Admissibility of Illegally Obtained Evidence

 

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Admissibility of Illegally Obtained Evidence

Under the Indian Evidence Law, an illegally obtained evidence is admissible in the Court if it is ‘relevant’ to the case and the admission of such evidence has not been expressly or impliedly barred by the Constitution or any other law.

Section 136 of Indian Evidence Act provides that the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the facts, if proved, would be relevant, and not otherwise.

Section 136 of Evidence Act is reproduced below:

136. Judge to decide as to admissibility of evidence. - When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the facts, if proved, would be relevant, and not otherwise.

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking.

If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.

Illustrations

(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32.

The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.

(b) It is proposed to prove, by a copy, the contents of a document said to be lost.
The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.

(c) A is accused of receiving stolen property knowing it to have been stolen.
It is proposed to prove that he denied to the possession of the property.

The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.

(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts, (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue.

The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

 

 

Four Principles providing illegally obtained pieces of evidence should not be accepted.

There are four principles which are based on which illegally obtained pieces of evidence should not be accepted. The four principles are

1.    Reliability principle

·       According to Reliability Principle, the evidence is admitted based on reliability but if evidence obtained through torture, violence or under pressure might not be reliable.

2.    Disciplinary principle

·       “Disciplinary Principle” states that Judiciary should discourage the improper manners used for obtaining evidence. This will deter the prosecution or defendant from resorting to such manners for getting pieces of evidence.

3.    Protective principle

·       “Protective principle” follows the idea that exclusion of illegally obtained evidence is one of the remedies to the person against whom the evidence was obtained with the breach of individual’s right.

4.    Judicial integrity principle.

·       “Judiciary Integrity Principle” is based on the idea that to maintain respect for the administration of justice, the court should be careful while admitting illegally obtained evidence as by allowing such shreds of evidence, courts are promoting the improper methods of procuring evidence.

 

Rule of Admissibility of Illegally Obtained Evidence in US and UK-

1.    United States- 

In the United States, illegally obtained evidence is inadmissible due to the application of the exclusionary principle and the doctrine of ‘Fruits of Poisonous Tree’.

While the former rule suggests that illegally obtained evidence cannot be made admissible in a criminal trial, the latter doctrine suggests that even the evidence obtained from primary illegality in the procedures which includes both physical evidences and live testimonies are inadmissible as the evidence evolves from the poisonous tree i.e. the illegal procedure.

Both these doctrines were formulated to support the Fourth Amendment Rights to the U.S. Constitution which warrant the right of citizens against any unwarranted search and seizures in their persons, houses, or papers.

In the case of Boyd v. U.S. (116 U.S. 616), the US Supreme Court held that illegal search and seizure is an unreasonable interference to the right to privacy of an individual and compelling a person to produce private papers is violative of Fourth Amendment Rights. Further, the US Supreme Court made the exclusionary rule mandatory in all state prosecutions and held that exclusionary rule also acts as a safeguard against Fifth Amendment Rights which include right against self-incrimination.

The scope of the exclusionary rule was also expanded by US Supreme Court in the case of Katz v. U.S. (389 U.S. 347 (1967) when it was held that eavesdropping and recording of private conversions of accused also amount to ‘unreasonable search and seizure’ and is violative of Fourth Amendment Rights.

The exclusionary principle is not an absolute rule and certain exceptions have been carved to its application for example,

·       if the evidence is found by the private individual instead of law officer,

·       if the evidence would inevitably appear through an illegal search, and

·       if the officer conducted the search in good faith and subsequently the warrant was found to be invalid, 

Then the exclusionary rule will not be applicable.

 

Note: This rule of excluding 'fruits of a poisonous tree' has a limited application in India under Sections 24, 25 and 26 of the Indian Evidence Act which bar the admissibility of confessions made to police officers, custodial confessions etc.

 

2.    United Kingdom- 

Under the Queen’s rule, the evidence is made admissible even if it is illegally obtained through the unlawful procedure.

In the landmark case of Kuruma v. the Queens (1955) AC 197 (U.K.), it was held an illegally obtained evidence is admissible if it is relevant to the case and it is the discretion of the Court to exclude such illegally obtained evidence if it leads to unfairness to the accused which was later known to be ‘Unfair Operation Rule.’

This rule is now codified under section 78 of the Police and Criminal Evidence Act 1984 (PACE) wherein Court has the discretion to exclude evidence if it leads to unfairness to the accused.

 

·       POSITION IN INDIA

The Indian Evidence Act, 1872, formulated during the British Rule contemplates that the admissibility of evidence depends on the extent of its relevancy in the case.

Thereby, Indian Judiciary in the case of State of Maharashtra v. Natwarlal Damodardas Soni, (1980) 4 SCC 669, and R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157 held that any illegally obtained evidence is admissible in the Court of Law if it is relevant to the matter, but the value of such evidence is to be dealt with care and caution by the Courts.

Further, in the landmark case of Pooran Mal v. Director of Inspection of Income Tax (AIR 1974 SC 348), the Indian Supreme Court held that no Constitutional or Statutory construction prescribes to exclude the illegally obtained evidence thereby the only test of admissibility of evidence is the relevancy of the evidence. This case also decreed the ‘Unfair Operation Rule’ of England wherein the Courts have the discretion to exclude the illegally obtained evidence if it leads to unfair treatment to the accused.

Exception in cases of illegally recovered contraband

This rule cannot be applied to use illegally recovered contraband as evidence of possession. Statutes like Narcotic Drugs and Psychotropic Substances Act, Abkari Act etc, raise a presumption of guilt if possession of illegal article is established. Such laws have stringent provisions for search and seizure, as the mere possession of the article can lead to punishment. "Unlawful possession" of the contraband is necessary for recording conviction under the NDPS Act.

This position of law was shifted a little when in the case of State of Punjab v. Baldev Singh ((1999) 6 SCC 172), Supreme Court held that illegally obtained evidence is not admissible in the Court of Law if it is obtained in violation of Section 50 of the NDPS Act, as this provision confers procedural rights to the accused which are statutorily mandated thus are deemed to be followed. This standing of law to exclude the illegally obtained evidence is only confined to the provisions of the NDPS Act and does not apply to other situations.

Status of Involuntary Statement Leading To 'Section 27 Recovery'

1.    The relationship between Section 27 of the Evidence Act and Article 20(3) of the Constitution was clarified in Kathi Kalu Oghad [AIR 1961 SC 1808, It was observed in the majority opinion by Jagannadhadas, J.,

"13. ... The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self-incriminatory information has been given by an accused person without any threat that will be admissible in evidence and that will not be hit by the provisions of clause (3) of Article 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of Section 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion [has] been used in obtaining the information."

2.    Selvi v. State of Karnataka (2010) 7 SCC 263, wherein it was held that if a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3) of the Constitution.

3.    Ashish Jain v. Makrand Singh AIR 2019 SC 546

Accused persons were grilled and interrogated multiple times before extracting confessions which lead to recovery of ornaments, cash, weapons and key

Held that the Confessions that led to recovery of incriminating material not voluntary, but caused by inducement, pressure or coercion is hit by Article 20(3) of Constitution, rendering such confession inadmissible.

Position after recognition of Right to Privacy:

The 9 Judge Bench in the landmark Supreme Court Case of Justice K.S. Puttaswamy and Anr. v. Union of India and Ors. , has recognized that the right to privacy forms an integral part of the right to life and personal liberty under Article 21 of the Constitution and citizens have the right to give consent in relation to the physical body, personal data, and property.

This right is enforceable against the state subject to reasonable restrictions. With the invocation of privacy as a fundamental right under Section 21 of the Indian constitution, the admissibility of illegally obtained evidence can now be questioned as no statute should contradict the fundamental rights. 

Recently in Yashwant Sinha and Ors. v. Central Bureau of Investigation, (2020) 2 SCC 338.

The Supreme Court hearing of the review petitions seeking inquiry into the Rafale deal, arguments based on the doctrine of “Fruit of the Poisonous Tree” were submitted. Coined by Justice Frankfurter of the United States Supreme Court, this doctrine is part of the court-made “Exclusionary Rule” of evidence and postulates that illegally obtained evidence is inadmissible in court.

However, relying on an English decision, the Court noted that, “it matters not how you get it if you steal it even, it would be admissible in evidence.” So long it is not tainted by an inadmissible confession of guilt evidence, even if illegally obtained, is admissible. While passing its decision the Court also cited its dicta in another case and noted that “a document which was procured by improper or even by illegal means could not bar its admissibility provided its relevance and genuineness were proved.”

 

Law Commission's suggestion

It may also be noted that the Law Commission of India in its 94th Report suggested to give Court's discretionary power to exclude illegally obtained evidence.

The Commission suggested incorporation of Section 166A of the Indian Evidence Act for giving courts the discretionary power to exclude illegally or improperly obtained evidence.

The following parameters were enlisted in the proposed Section to determine whether the admission of such evidence will bring administration of justice into disrepute:

(i) The extent to which human dignity and social values were violated in obtaining the evidence;

(ii) The seriousness of the case;

(iii) The importance of the evidence;

(iv) The question whether any harm to an accused or others was inflicted wilfully or not;

(v) The question whether there were circumstances justifying the action, such as a situation of urgency requiring action to prevent the destruction or loss of evidence.

But the suggestion of Law Commission has not been accepted.

Present Position of Admissibility of Illegally obtained Evidence:

Thus, the rule of admissibility of illegally obtained evidence after these judicial pronouncements are as follows:

• All relevant evidence is admissible subject to any Constitutional or Statutory prohibition. E.g.
• Section 50 NDPS Act
• Section 27 IEA r/w Article 20(3) of Constitution.
• The Courts have discretionary power to exclude any evidence obtained in defiance of any procedural statutory right if the evidence leads to unfair treatment to the accused.
• The conviction of any accused cannot be upheld based on evidence obtained in violation of the procedural statutory right of the accused. 

·       The value of such evidence is to be dealt with care and caution by the Courts.

 

Salient features of Indian Evidence Act, 1872

 

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INDIAN EVIDENCE ACT 1872

• came into force on 1^st September 1872

• Drafted by James F. Stephen

• Divided into three parts,

• Part I of the act deals with the Relevancy of facts,

• Part ll deals with proof and the various kinds of evidence and

• Part lll deals with the Production and Effect of evidence.

• 11 chapters and comprises of 167 sections.

 

SALIENT FEATURES

1.    Procedural Law

2.    Lex Fori

3.    Nature of law of Evidence

4.    Not Exhaustive

5.    Scheme of the act

6.    Object of Law of Evidence

7.    Basic rules of Evidence

8.    Section 1: Application of Evidence Act

9.    Same for both civil and criminal proceedings

10. Meaning of word ‘Evidence’

11. Kinds of Evidence

12. Relevancy and Admissibility

13. Credibility and Appreciation of Evidence

14. Doctrine of Corpus Delicti

15. Falsus in uno falsus in omnibus

 

 

 

 

1.    PROCEDURAL LAW

The Substantive and Procedural Laws are the two important branches of Law. The terms “Substantive” and “Adjective” seem to have been invented by Bentham in 1843.

Substantive laws define the legal relationship between different individuals, or between individuals and the State. Procedural laws define the rules with which substantive laws may be enforced.

In the case of Commissioner of Wealth Tax, Meerut vs. Sharvan Kumar Swarup & Sons [(1994)122 CTR(SC)380], the distinction between Substantive and Procedural Laws was made clear. “As a General Rule, laws which fix duties, establish rights and responsibilities among & for persons natural or otherwise are “Substantive laws”, while those which merely prescribe the manner in which such rights & responsibilities may be exercised & enforced in a Court are ‘Procedural Laws’.”

Thus, Evidence Act is essentially a procedural law.

2.    LEX FORI

• IEA is the law of the forum (or court)

• If foreigners come before an Indian court they cannot insist upon their law of evidence being followed. The Indian court knows only the Indian Law of Evidence and will follow it

3.    NATURE OF LAW OF EVIDENCE

The law of evidence occupies the most important place in adjective law. It is for the courts to ascertain the existence or non-existence of certain facts and to apply the substantive law to the ascertain facts and to declare the rights and liabilities of the parties in so far as they are affected by such facts. The means by which the courts inform themselves of the existence of these facts is termed as evidence.

Sir Stephen: Law of Evidence is that part of the law of procedure which with view to ascertain individual rights and liabilities in particular cases decides

a.    What facts may or may not be proved?

b.    What sort of evidence must be given of a fact which may be proved?

c.     By whom and in what matter the evidence must be produced?

 

4.    Not Exhaustive

• The Act is not exhaustive. There are many statutes which supplement the Evidence Act Some of them are-

• Crpc

• CPC

• Bankers book evidence act

• Stamp act

• Indian Limitation Act

5.    SCHEME OF THE ACT

It contains 3 parts, 11 chapters and 167 sections.

·       PART I - Relevancy Of Facts (Ss. 1-55)

o   CHAPTER I – Preliminary (Ss. 1 – 4)

o   CHAPTER II – Of the Relevancy of Facts (Ss. 5 – 55)

·       PART II – On Proof (Ss. 56 – 100)

o   CHAPTER III – Facts Which Need Not Be Proved (Ss. 56 – 58)

o   CHAPTER IV.—OF ORAL EVIDENCE (Ss. 59 – 60)

o   CHAPTER V.— OF DOCUMENTARY EVIDENCE (Ss. 61 – 90-A)

o   CHAPTER VI. –– OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE (Ss. 91 – 100)

·       PART III – PRODUCTION AND EFFECT OF EVIDENCE  (Ss. 101 – 167)

o   CHAPTER VII. –– OF THE BURDEN OF PROOF (Ss. 101 – 114-A)

o   CHAPTER VIII. –– ESTOPPEL (Ss. 115 – 117)

o   CHAPTER IX.— OF WITNESSES (Ss. 118 – 134)

o   CHAPTER X. –– OF THE EXAMINATION OF WITNESSES (Ss. 135 – 166)

o   CHAPTER XI–– OF IMPROPER ADMISSION AND REJECTION OF EVIDENCE (S. 167)

·       THE SCHEDULE [Repealed.]

 

6.    OBJECT OF LAW OF EVIDENCE

1. Preamble.—WHEREAS it is expedient to consolidate, define and amend the law of Evidence; it is hereby enacted as follows:—

The object of the preamble of an Act is to indicate what, in general terms, was the object of the Legislature in passing the Act. The preamble here shows that the Indian Evidence Act is not merely a fragmentary enactment, but a consolidated one. 

The object of the court is to prevent the inaccuracy in the admissibility of evidence and to introduce a more correct and uniform rule of practice.

2. The Law of Evidence helps the judges to separate wheat from chaff amongst the mass of facts that are brought before them. It helps to draw correct inferences from the circumstances mentioned during the hearing of the case and helps to deliver a judgement.

3. The IEA provides the rules relating to

a. As to what facts may be proved?

b. How to prove those facts?

c. On whom burden of proof lies?

d. How the knowledge of the witnesses to be placed before court?

e. Who are competent witnesses and who cannot be witnesses?

f. Rules as to chief examination, cross examination and re-examination e.g. How to impeach the credit of the witnesses etc.

7.    BASIC RULES OF EVIDENCE

The main principles which forms the foundation of Law of Evidence are

• Evidence must be confined to the matter in issue;

• Hearsay evidence must not be admitted; and

• Best evidence must be given in all cases.

 

8.    Application of Evidence Act: Section 1 of IEA

1. Short title, extent and commencement. - This Act may be called the Indian Evidence Act, 1872.

It extends to the whole of India [[***]]and applies to all judicial proceedings in or before any Court, including Courts-martial, [other than Courts-martial convened under the Army Act (44 & 45 Vict.,Clause 58),] [the Naval Discipline Act (29 & 30 Vict., c.109) or [* * *]the Indian Navy (Discipline) Act, 1934 (34 of 1934),] [or the Air Force Act (7 Geo. t, Clause 51)], but not to [affidavits] presented to any Court or Officer, not to proceedings before an arbitrator;

And it shall come into force on the first day of September, 1872.

Where it applies	Where it do not apply
• In India • All judicial proceedings in or before any Court • including Courts-martial	• other than Courts-martial convened under ·       the Army Act (44 & 45 Vict., c. 58) ·       the Naval Discipline Act (29 & 30 Vict., c. 109) or ·       the Indian Navy (Discipline) Act, 1934 (34 of 1934) or ü ·       the Air Force Act • affidavits presented to any Court or Officer • to proceedings before an arbitrator

 

Proceedings can be:

a)    Judicial proceedings

b)    Non judicial proceedings

c)    Domestic Tribunals

d)    Disciplinary proceedings

e)    Proceedings before an Arbitrator

 

Judicial Proceedings:

·       The Evidence Act applies to all judicial proceedings in or before any court.  It does not apply to non-judicial proceedings.

·       The term "judicial proceedings" is not defined by the Act. According to Section 2(i) of Cr.P.C, a judicial proceeding includes any proceedings in the course of which evidence is or may be legally taken on oath.

·       The main object of judicial proceeding, is to determine rights, duties, liabilities, immunities, disabilities etc. An inquiry in which evidence is legally taken and Judgment is authorized to be given and acted upon, is included in the term "judicial proceeding".

·       That is why the word "Court" has been defined in Section 3 as including all Judges and magistrates, and all persons, except arbitrators, who are legally authorized to take evidence. The word "Court" includes all the persons who are legally authorized to take evidence.

Non-judicial Proceedings:

·       A proceeding in which only administrative duties are to be discharged cannot be said as a judicial proceeding. An enquiry about matters of fact where there is no discretion is to be exercised and no Judgment to be formed but something is to be done in a certain event as duty, is not a Judicial but an administrative enquiry.

·       It concerns with investigation of facts only and that is why, law of evidence does not apply to non-judicial proceeding.

·       Examples:

o   The statements recorded by a Magistrate in the course of police investigation under Section 164, CrPC is not a judicial proceeding.

o   Proceedings before a Magistrate under Section 88, CrPC,

o   an enquiry under Section 176/ 340, CrPC,

o   an enquiry conducted by a Collector under the Land Acquisition Act, or

o   an inquest before the Coroner under the Coroner Act,1871,

o   proceedings before the authorities of income-tax, sales-tax are not judicial proceedings.

Domestic Tribunals

·       A tribunal is a Court of Justice, while the Court is a Court of law and Court of Justice.

·       The basic principle is that the domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act but they have to conform to the cardinal rules of evidence in order to obviate injustice.

·       The substantive rules which would form part of Principles of natural justice cannot be ignored by the domestic tribunals.

·       The principle that a fact sought to he proved must be supported by statements made in the presence of the person against whom the enquiry is held and that the statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basic principles which cannot be ignored on the mere ground that the domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act.

Disciplinary Proceedings:

·       The departmental proceeding/enquiry is a quasi-judicial proceeding and the provisions of the Evidence Act may not be properly applicable to it, but the principles of natural justice shall be.

·       However, in disciplinary proceedings, the proof required is beyond reasonable doubt as the proceedings are like criminal proceedings.

 

Proceedings before an Arbitrator:

·       Section 19 of the The Arbitration and Conciliation Act, 1996

‘19. Determination of rules of procedure. 

(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (1 of 1872).

******’

·       The Arbitrators are only bound by rules of natural justice.

·       He decides the disputes according to justice, equity and good conscience.

 

 

9.    SAME FOR BOTH CIVIL & CRIMINAL PROCEEDINGS

1.    S.5 IEA provides that “Evidence may be given in any suit or proceedings…………” Thus it is clear that evidence act is applicable to both civil & criminal proceedings.

2.    However, an Evidence may be sufficient to prove a claim or right in a civil case but the same evidence may not be sufficient to prove a charge in a criminal case.

3.    An evidence may be admissible in a civil case and the same evidence may not be admissible in a criminal case.

4.    There are certain provisions which are applicable only to civil and certain provisions which are applicable only to criminal:

PROVISIONS APPLICABLE ONLY TO CIVIL	PROVISIONS APPLICABLE ONLY TO CRIMINAL
1. S.12 2. S.23 3. S.52, 55 4. No presumption of Innocence 5. BOP keeps on shifting   6. Standard of Proof- Preponderance of probabilities 7. Estoppel	1. S.24-30 2. S.53, 53A, 54 3. Presumption of Innocence in favour of accused 4. BOP Always on Prosecution. It never shifts but onus shifts 5. Standard of Proof- Beyond Reasonable doubt 6. Accomplice

 

 

10.                  MEANING OF WORD ‘EVIDENCE’

• The word "evidence" is derived from the Latin word evidens or evidere, which means "to show clearly; to make clear to the sight; to discover clearly; to make plainly certain; to ascertain; to prove".

• Under Indian Evidence Act

• S.3 IEA: 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) [all documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence

• Other Definitions

·       Evidence is anything that you see, experience, read, or are told that causes you to believe that something is true or has really happened.

·       Evidence is the available body of facts or information indicating whether a belief or proposition is true or valid.

·       Evidence is "the means from which an inference may logically be drawn as to the existence of a fact. It consists of proof by testimony of witnesses, on oath, or by writing or records."

 

Hardeep Singh v State of Punjab AIR 2014 SC 1400

The definition of evidence provided under section 3 of the Evidence Act, 1872 is an exhaustive definition. Wherever the words "means and includes" are used, it is an indication of the fact that the definition "is a hard-and-fast definition", and no other meaning can be assigned to the expression other than that is laid down in the definition. It indicates an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expression.

 

Syed Mohammad Husain Afqar Mohani v Mirza Fakhrullah Beg, (1932) 8 Luck 135

The juristic conception of the term "evidence" in the case of the oral testimony of witnesses is that the party against whom it is used has had the right and opportunity of cross-examining the witnesses. So long as the accused is not allowed the right and opportunity of cross-examining the witnesses, any statements made by them can only be described as statements but cannot be dignified with the name of evidence.

 

The definition of "evidence" covers

(a) the evidence of witnesses, and

(b) documentary evidence. "

Evidence can be both oral and documentary and electronic records can be produced as evidence.

The word "evidence" does not cover everything that a court has before it. There are certain other media of proof; e.g., the statements of the parties, the result of local investigation, facts of which the court takes judicial notice, and any real or personal property, the inspection of which may be material in determining the question at issue, such as weapons, tools or stolen property.

The definition of "evidence" is considered to be incomplete as it does not include the whole material on which the decision of the Judge may rest.

 

11.                  KINDS OF EVIDENCE

1.    Best Evidence

2.    Direct evidence

3.    Circumstantial evidence

·       Hanumant v. The State Of Madhya Pradesh

·       Sharad Birdhichand Sarda v. State of Maharashtra

4.    Hearsay Evidence

5.    Oral and Documentary Evidence

6.    Primary Evidence and Secondary Evidence

7.    Substantive and corroborative evidence

8.    Judicial evidence & Non-judicial evidence

9.    Real and Personal Evidence

10. Digital/electronic Evidence

11. Scientific/Expert/Trace Evidence

 

12.                  Relevancy and Admissibility

1.    Relevant facts have been defined in Section 3 and 5 of the Indian Evidence Act, 1872 (hereinafter referred to as 'Act'). A perusal of both the provisions says that evidence may be given of-

(i) The existence or non-existence of facts in issue; and

(ii) Of such other relevant facts.

2.    The first part deals with points to facts which directly tend to prove or disprove facts in issue and the second part refers to collateral facts which are so inseparably connected with the facts in issue that they indirectly and presumptively tend to prove or disprove any fact in issue.

3.    Furthermore, relevancy (determined by rules of the Act) is the test of admissibility. All relevant facts may not be admissible (they may be ruled out due to prejudice, paucity of time, confusion) and all admissible facts may not be relevant. While relevancy is based on logic, admissibility only relies on lawful pertinence, i.e., whether a fact can be permitted in Court on the basis of the Act. Relevant facts can thus be termed as genus and admissibility as its specie.

4.    As per Bentham, one fact is relevant to another, if the effect or tendency of the former when presented to the mind, is to produce a persuasion concerning the existence of some other matter of fact. As such the relation between factum probandum and factum probans is called relevancy. As per Sir James Fitzjames Stephen, relevant means any two facts to which it is applied are so related to each other that, according to the common course of events, either taken by itself or in conjunction with other facts, proves or renders probable past, present or future existence, or non-existence of the other.

5.    Section 5-55 of the Act deals with what facts are relevant; but the mere fact of logical relevancy does not ensure the admissibility of a fact. Very often, public considerations of fairness and the practical necessity for reaching speedy decisions necessarily cause the rejection of much of the evidence which may be logically relevant. Cases of exclusion of logically relevant facts by positive rules of law are:

(i)            Exclusion of oral by documentary evidence: Sections 91-99.

(ii)           Exclusion of evidence of facts by estoppel: Sections. 115-117.

(iii)         Exclusion of privileged communications, such as confidential communications with a legal adviser, communication during marriage, official communications, etc.: Sections. 121-130

6.    Thus, relevancy may be considered in the decision-making process.

7.    On the other hand, admissible facts are though strings of relevant facts which are admissible in Court. Section 136 of the Act states that it is the judge which would decide on the admissibility of a fact/document. The essential ingredients of the Section 136 are:

                        i.         The judge will decide the questions of relevancy and admissibility.

                       ii.         When a party proposes to adduce evidence of any fact, the Judge may ask the party to clarify 'in what manner' the fact would be relevant.

                     iii.         The Judge would 'admit' the particular adduced fact only if he is satisfied with the answer of the party that it is, indeed, relevant under one or the other provisions of S. 6 to 55.

Thus, it is always the consideration of relevancy that comes first and that of admissibility comes later, and the judge will admit the fact only if it is relevant.

8.    Admissibility is based on law and not logic. Facts which may have no logical relevance may sometimes be admissible in Courts. After an evidence has been declared logically relevant and legally admissible, how it was obtained becomes irrelevant.

9.    The Supreme Court in Ram Bihari Yadav vs. State of Bihar AIR 1998 SC 1850, has observed that more often the expressions 'relevancy and admissibility' are used as synonyms but their legal implications are distinct and different from for more often than not facts which are relevant are not admissible; so also facts which are admissible may not be relevant, for example questions permitted to put in cross examination to test the veracity or impeach the credit of witnesses, though not relevant are admissible. The probative value of the evidence is the weight to be given to it which has to be judged having regards to the fact and circumstances of each case.

10. As seen from above, Admissibility of evidence is strictly based on law whereas relevancy is based on logic and probability. Secondly, Admissibility declares whether an evidence is admissible or not, whereas relevancy declares whether the given facts are relevant to the facts in question.

 

Difference between relevance & admissibility

RELEVANCY	ADMISSIBILITY
Relevancy is based on logic and Probativity.	Admissibility is not based on logic but on strict rules of law
The rules of relevancy are described under Sections 5-55 of IEA.	The rules of admissibility are described under Sections 56 onwards of IEA.
The rules of relevancy declare what is relevant	The rules of admissibility declare whether certain type of relevant evidence are admissible or are to be excluded.
The rules of relevancy indicate the facts permitted to be proved which then becomes admissible	Admissibility is the means and modes for admissibility of relevant evidence.
The facts which are admissible are not necessarily relevant	The facts which are relevant are not necessarily admissible
The question of relevancy is a question of law and can be raised at any stage.	Question of admissibility is a question of procedure and is capable of being waived.

 

13.                  CREDIBILITY AND APPRECIATION OF EVIDENCE

In the case of Anvar P.V vs P.K.Basheer & Ors 2014 SC: It was observed as under:

Construction by plaintiff, destruction by defendant. Construction by pleadings, proof by evidence; proof only by relevant and admissible evidence. Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility. These are some of the first principles of evidence.

a)   Credibility of Witness

·       Impeaching the credibility of Witness; Section 155 of IEA

·       By Contradiction; S. 145 IEA

·       By Corroboration; S. 157 IEA

b)   Credibility of Evidence

·       Conclusive Evidence

·       Substantive piece of Evidence

·       Corroborative piece of Evidence

·       Contradictory piece of Evidence

·       May be taken into Consideration

Appreciation   of   evidence  

Appreciation   of   evidence   is   a   matter   of experience and knowledge of human affairs. It is a delicate task to be carried out by Judges for weighing evidence and drawing inferences. Each cases presents its own peculiarities. Common sense and dexterity are also part of the tools.

Under section 3 of Evidence Act first the terms  Fact,  Relevant Fact  and  Fact in issue  are defined in respect of evidence  and later when it can be said to be  proved,  disproved  and  not proved is discussed.  Thus, while appreciating evidence in respect of any fact, relevant fact and fact in issue the Court has to give its anxious consideration towards the peculiar facts of the case.  There may be several facts in a case before Court and among it some may be relevant or some may be fact in issue.  The Court has to first ascertain the facts, then it has to find out whether they are relevant and then whether they are actually in issue.  After ascertaining this, the Court shall examine the fact and later by applying rules of evidence Court has to see that whether those facts are proved, disprove or not proved.

In appreciation of evidence under section 3 of Indian Evidence Act, the Hon'ble Supreme Court has illustrated some instances in Ganesh K. Gulve Vs State of Maharashtra AIR 2002 SC 3068 in following words;

“In   order   to   appreciate   the   evidence,   the   Court   is required to bear in mind the set­up and environment in which the crime is committed.   The level of understanding of the witnesses.  The over jealousness of some of near relations to ensure that, everyone even remotely connected with the crime be also convicted.   Everyone's different way of narration of same facts. Etc.”

It is one of the established principles of law that a witness may lie but not the circumstances. The guilt of person can be proved by circumstantial evidence also.

However, the Court must adopt a cautious approach while basing its conviction purely on circumstantial evidence. The circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so for complete has not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and further it must be such as to show that within all human probability the act must have been done by the accused.

Abscondance of the   accused   is   not   a circumstance which can be taken as a conclusive proof of guilt. False pleas raised by the accused can be taken as a circumstance against the accused.   False   and   inconsistent   defences   taken       by        the     accused charged of   murder were held to be additional circumstances against him strengthening the chain of circumstances already firmly established.

A statement of an accused recorded under section 313 Cr. P.C. cannot be treated as evidence. Further the entire prosecution evidence need not be put to the accused. Unregistered lease deed though not allowed to be produced in evidence, it could be used by the carrier to explain the character of the possession.

A witness narrated to the doctor his version of the history of assault. The doctor recorded in his papers. This was held to be not a substantive piece of evidence. The statement would be used at based to contradict the testimony of the person who gave the narrative.  (Sujit   Gulab   Sohatre Vs State   1997   Cr.L.J.   454 (Bombay). 

Presence of injury on a person of a witness does not guarantee his truthfulness. The Court is not bound to accept his evidence if it is found to be hopelessly contradictory and utterly unreliable.

Testimony   of   child   witness   is   not   be rejected outright but it is to be scrutinized with greatest caution.

The evidence of stock witnesses cannot be relied upon because of appearing as police witnesses in number of cases and they being pliable and untrustworthy.

 

14.                  CORPUS DELICTI

• Refers to the body of the offense or the essence of the crime

• The term used to refer to the actual victim’s body in a murder case

• Relate to what must be proven in a case to elicit an acquittal or conviction

• Object is to protect persons from being unjustly convicted of a crime they did not commit.

• Corpus delicti—from the Latin meaning "body of evidence"—is the proof that a crime has taken place. When applied to a criminal case, proof of a crime must be shown in order to convict a person of the crime

• few examples :

• When a person is charged with theft, the corpus delicti is proof that property was stolen.

• When a person is charged with the crime of mischief by fire, the corpus delicti is the burnt property.

• In a murder case, the corpus delicti is the dead body of the victim.

• There are exceptions to this rule, however. In certain cases, it may be admissible to prove the basis of corpus delicti based on presumptive (circumstantial) evidence rather than conclusive evidence.

• The first U.S. case where conviction was made without absolute evidence of corpus delicti took place in 1850 in the murder trial of John Webster.

• The Supreme Court in Badshah & Ors. v. State of U.P., Cr. Appeal No. 554 of 2005 categorically held that in the event of murder of an abducted person, either by direct or presumptive evidence, an inference of murder can safely be drawn in respect whereof it would not be necessary to prove the corpus delicti.

15.                  Falsus in Uno Falsus in Omnibus

False in one, false in all.

This maxim may properly be applied in those cases only where a witness speaks to a fact with reference to which he cannot be presumed liable to mistake.

• The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments, Vgar Ahir v. State of Bihar, AIR 1965 SC 277 (279).

• The maxium 'falsus in uno, falsus in omnibus' has no application in India and the witnesses cannot be branded as liars. The maxim 'falsus in uno, falsus in omnibus' has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to is that in such cases testimony may be disregarded, and not that it must be discarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence', Ram Udgar Singh v. State of Bihar, (2004) 10 SCC 443 (447).