Meaning of word 'Evidence' and its Kinds

 

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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.

 

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

 

1.    BEST EVIDENCE

The idea of best evidence is implicit in the Act. Evidence, under the Act, consists of statements made by a witness or contained in a document. If it is a case of oral evidence, the Act requires that only that person who has actually perceived something by that sense by which it is capable of perception, should make the statement about it and no one else. If it is documentary evidence, the Act requires that ordinarily the original should be produced, because a copy may contain omissions or mistakes of a deliberate or accidental nature. These ideas are expressed in Sections 60 and 64.

 

2.    DIRECT EVIDENCE

The same phrase is used in two different senses.

1.    On the basis of Relevancy

·       Direct and Circumstantial

2.    On the basis of Admissibility

·       Direct and Hearsay

 

For instance:

Suppose A is charged with the murder of B by stabbing him. C, D, E, F, G and H are witnesses called by the prosecution.

·       C says he saw A stab B.

·       D says he heard B cry out that A was stabbing him.

·       E says that he saw A running away with a blood-stained knife and blood-stained clothes.

·       F says that he saw A washing his blood-stained clothes.

·       G is a doctor who says that the knife found in A’s possession might have caused the wounds found on B; and

·       H says that he heard from C, that C saw A stabbing B.

If we use the phrases direct evidence and circumstantial evidence, the evidence given by C is direct evidence and that given by the others, circumstantial evidence, because C gives evidence of the very matter in controversy, whereas D to H give evidence of circumstances which, if believed, would assist the court in drawing an inference about the matter in controversy.

But, if we use direct evidence as used in Section 60, then the evidence of C to G is direct evidence, and that of ‘H’ is Hearsay evidence. Because each of them, C to G, is giving evidence about a fact which was perceived by him by the particular sense by which it was capable of being perceived; whereas, H alone is talking about A stabbing B — a fact capable of being seen, but without seeing it. He has heard about it. The evidence sought to be given by H is called hearsay evidence and, in general, is not admissible in a court of law.

 

3.    CIRCUMSTANTIAL EVIDENCE

• Circumstantial evidence is unrelated facts that, when considered together, can be used to infer a conclusion about something unknown. Information and testimony presented by a party in a civil or criminal action that permit conclusions that indirectly establish the existence or nonexistence of a fact or event that the party seeks to prove.

• An example of circumstantial evidence is the behaviour of a person around the time of an alleged offense. If someone were charged with theft of money, and were then seen in a shopping spree purchasing expensive items, the shopping spree might be regarded as circumstantial evidence of the individual's guilt. Similarly if a witness arrives at a crime scene seconds after hearing a gunshot to find someone standing over a corpse and holding a smoking pistol, the evidence is circumstantial, since the person may merely be a bystander who picked up the weapon after the killer dropped it. The popular notion that one cannot be convicted on circumstantial evidence is false.

• 5 Golden Principles called panchsheel: “five golden principles” enunciated by Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. Before a case against an accused vesting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as laid down in Hanumant Vs State of M.P. [1953] SCR 1091]

1.    The circumstances from which the conclusion of guilt is to be drawn should be fully established;

2.    The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3.    The circumstances should be of a conclusive nature and tendency;

4.    They should exclude every possible hypothesis except the one to be proved; and

5.    There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Direct evidence vs circumstantial evidence?

Parameter of Comparison	Direct Evidence	Circumstantial Evidence
Fundamental Difference	Direct evidence is stand-alone evidence which proves the fact directly without any intervention.	Circumstantial evidence is an inference out of a fact which is connected to logical reasoning.
Probative Value	Direct evidence does not require any second verification. It stands alone to prove the point and can be considered the final evidence for any judgement.	Circumstantial evidence requires many add-ons to prove the inference. It does not hold any direct fact to the point of discussion. The probative value is less when compared to direct evidence.
Facts and Observations	Direct evidence is highly objective. It either proves or disproves a point directly.	Circumstantial evidence is subjective and it does not prove or disprove anything directly. It may or may not have occurred based on the situation.
Evidence – Mode	Eye Witness is the primary mode of observation which points out of the fact directly.	Circumstantial evidence can be many, confession of an occurrence supporting the fact, forensic lab report of availability of a fingerprint, aftermath observation and confession of a certain occurrence which connects to the fact.
Level of Truth	Direct evidence is the highest form of evidence which has the highest level of truth about the incident.	Circumstantial evidence gives approximate levels of proof thus has less level of truth involved in the judgement.

 

 

 

 

 

 

4.    HEARSAY EVIDENCE

Comprising of two words, ‘hear’ and ‘say’, this term defines a testimony based on no personal communications but what a witness may have heard others say over an out-of-court conversation like second hand information. Hearsay has always been considered as an inferior form of evidence when compared with direct testimony by witnesses.

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

1) The person giving such evidence does not feel any responsibility; if he is cornered he has a line of escape by saying “I do not know, but so and so told me”;

2) Truth is diluted and diminished with each repetition; and

3) If permitted, gives ample scope for playing fraud by saying, “someone told me that ….” It would be attaching importance to a false rumour flying from one foul lip to another.

 

EXCEPTIONS TO HEARSAY UNDER THE INDIAN EVIDENCE ACT

·       Res Gestae; S. 6 IEA

·       Admission and Confession; Ss. 17-31

·       Statement of persons who cannot be called as witnesses S. 32-33 and;

·       Evidence given in formal proceedings 34 - 35;

·       Opinion as evidence Ss. 45-51

 

5.    ORAL AND DOCUMENTARY EVIDENCE

The definition of "evidence" covers

(a) Oral Evidence i.e the evidence of witnesses, and

(b) documentary evidence i.e. the document produced for the inspection of the Court.

ORAL EVIDENCE

Oral evidence is defined under section 3 (under evidence head) which explains that “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 as oral evidence.”

The word ‘Oral’ itself describes its meaning as something spoken or expressed by mouth; so anything which is accepted in the court in relation to the inquiry and expressed by any witnesses who are called in the trial is termed as oral evidence. Oral Evidence also includes the statements made by people in signs and writing forms (inclusive of people who cannot speak).     

As per Section 119 of Evidence Act, Witness who cannot communicate verbally may give evidence by writing or signs. Section 119 of Evidence Act is reproduced below:

[119. Witness unable to communicate verbally. - A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.]

The provisions of Order 18 Rule 4 of the CPC require that the "examination in chief" shall be on affidavit. It is also considered as Oral Evidence.

Oral Evidence is dealt with under Section 59 and 60 of the Evidence Act, 1872. It contains two principles –

      i.         All facts, except the contents of documents or electronic records, may be proved by oral evidence. (S. 59)

    ii.         Oral evidence must be direct rather than hearsay evidence. (S. 60)

 

DOCUMENTARY EVIDENCE

Relevant Provisions:

·       S. 3 of Evidence Act

·       Ss. 59, 61-100 of Evidence Act.

 

Documentary evidence is defined under Section 3 of Evidence Act as all documents produced for the inspection of the court.

The purpose of producing documents is to rely upon the truth of the statements contained therein. This involves, when a document is produced in court, the examination of three questions:

1) Is the document genuine?

2) What are its contents?

3) Are the statements in the document true?

Documents are of two kinds: public and private. Section 74 gives a list of documents which are regarded as public documents. All other documents are private.

The contents of documents must be proved either by the production of the document which is called primary evidence, or by copies or oral accounts of the contents, which are called secondary evidence.

Primary evidence is evidence which the law requires to be given first. Secondary evidence is evidence which may be given in the absence of the better evidence which the law requires to be given first, when a proper explanation is given of the absence of that better record. Primary evidence is defined in section 62 and secondary evidence in section 63.

Difference between oral and documentary evidence

BASIS	ORAL EVIDENCE	DOCUMENTARY EVIDENCE
STATUS UNDER INDIAN EVIDENCE ACT, 1872	Section 59 and 60 of the Act deals with such evidence.	Section 61 to 100 deals with such evidence.
TYPE	It refers to the statement given by the witnesses in a court of law.	It refers to the documents presented in a court of law.
STATEMENT	It is a statement submitted in oral form.	It is a statement submitted via documents.
RELEVANT	If a statement contradicts the previous statement it is considered to be doubtful.	If it is not supported by primary or secondary evidence it is considered to be doubtful.
MEANS	It can be presented in the form of speech, voice or symbols for its recording.	It can be presented in the form of words, signs, figures, letters, and remarks for its recording.

 

 

Primary evidence

Primary evidence means the documents itself produced for the inspection of the Court.

According to Section 62, primary evidence is considered to be the topmost class of evidence. Such evidence is an original document that needs to be submitted before the court for inspection.

Secondary evidence can be presented only in the absence of primary evidence by explaining the reason for the absence of such evidence.

Primary evidence, more commonly known as best evidence, is the best available substantiation of the existence of an object because it is the actual item.

It differs from secondary evidence, which is a copy of, or substitute for, the original. If primary evidence is available to a party, that person must offer it as evidence. When, however, primary evidence is unavailable—for example, through loss or destruction—through no fault of the party, the party may present a reliable substitute for it, once its unavailability is sufficiently established.

Secondary evidence

On bare reading, secondary evidence means and includes:

(1) Certified copies given under the provisions hereinafter contained.

(2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies.

(3) Copies made from or compared with the original.

(4) Counterparts of documents as against the parties who did not execute them.

(5) Oral accounts of the contents of a document given by some person who has himself seen it.

According to Section 63, secondary evidence is considered to be an inferior type of evidence. It implies, that even after producing secondary evidence one needs to produce primary evidence in order to fill in the gaps. Such evidence can be presented in the absence of the primary evidence, however, the notice of the same is to be given. However, if the secondary evidence is accepted without any objection within a reasonable time then the parties do not have the right to argue that the point was proved with the help of secondary evidence and not primary evidence.

No.	Primary Evidence	Secondary Evidence
1)	Primary Evidence is original document which is presented to the court for its inspection	Secondary Evidence is the document which is not original document but those documents which are mentioned in S. 63.
2)	It is the main source of Evidence.	It is an alternative source of Evidence.
3)	Section 62 of the Evidence Act defines Primary Evidence	Section 63 of the Indian Evidence Act defines Secondary Evidence
4)	Primary Evidence is the best Evidence	Secondary Evidence is not best evidence but is evidence of secondary nature and is admitted in exceptional circumstances mentioned in Section 65.
5)	Giving Primary Evidence is general rule.	Giving Secondary Evidence is exception to the general rule.
6)	Primary Evidence itself is admissible.	Secondary Evidence is admissible in the absence of the Primary Evidence.
7)	No notice required before giving Primary Evidence.	Notice is required to be given before giving Secondary Evidence.

 

6.    SUBSTANTIVE AND CORROBORATIVE EVIDENCE

(a) Substantive evidence is the evidence on the basis of which a fact is proved and which requires no corroboration. Substantive evidence is either direct or circumstantial or both.

(b) Corroborative evidence is the evidence used to corroborate substantive evidence. If there is no substantive evidence, corroborative evidence loses its significance. In other words in absence of substantive evidence, corroborative evidence is no evidence

 

7.    Judicial evidence & Non-judicial evidence

Judicial evidence

Judicial evidence refers to evidence received by the court that proof or disproof the facts. Such evidence includes:

·       Statement of witnesses in a court of law;

·       Documentary evidence and facts presented for examination by the court.

Non-judicial evidence

Non-judicial evidence primarily refers to the confession made by the accused outside the court of law and in the presence of any person. If such evidence is proved in the court of law then it takes the form of judicial evidence.

Difference between judicial and non-judicial Evidence

BASIS	JUDICIAL EVIDENCE	NON-JUDICIAL EVIDENCE
LOCATION	Such evidence is presented inside a court of law.	Such evidence is presented outside a court of law.
PRODUCED BEFORE	Such evidence is produced before the judge or jury or both.	Such evidence can be produced in front of any person.
CONVERTIBILITY	Such evidence is not convertible.	Such evidence can be converted to judicial evidence if it is proved in the court of law.
EXAMPLE	Confession made by the accused inside the court of law.	Confession made by the accused outside the court of law.

 

 

 

 

8.    REAL AND PERSONAL EVIDENCE

Real Evidence (also known as Physical / Material Evidence)

When the evidence is brought to the knowledge of the court by inspection of a physical or material object and is not derived from witness or document, then it is called Real Evidence. E.g., murder weapon, blood samples and fingerprints found, etc.

Personal Evidence (also known as Testimonial Evidence) When the evidence is brought to the knowledge of the court by human agents, either in way of disclosure or by voluntary sign, and is the oral testimony of the witness, then it is called Personal Evidence. E.g., Behaviour of the parties involved, the conduct of the witness, through Local inspection by the court, etc.

 

9.    DIGITAL/ELECTRONIC EVIDENCE

Originally, digital or electronic type of evidence was not mentioned or covered under the definition of evidence. However, the definition of evidence was amended by the Information Technology Act, 2000 to include ‘electronic records’ within the same. An electronic record includes record generated, data generated, the image stored, sound stored, or any information received or sent in an electronic form.

Such evidence must be collected with a reasonable and least objectionable means. The manner of the collection depends upon various factors, such as:

• System configuration encountered,
• Type of investigation, and
• The evidence should be relevant to support the investigation.

The examiner must be aware of the specific electronic data that is required for the investigation. He/she must be prepared to address the obstacles that arise during electronic evidence collection.

An electronic record means data, record, data generated, image stored, sound stored, or any information received or sent in an electronic form.

 

10.                  SCIENTIFIC/EXPERT/TRACE EVIDENCE

Scientific evidence is generally referred to as empirical evidence. Such evidence is gathered from scientific research which requires a lot of investment of time and patience on the part of the researcher. In order to be recognised as evidence, such research needs to be done and established according to the set standards.

Scientific research primarily relies on data and it is the responsibility of the researchers to ensure that such data is true. Thus, the research can be conducted ethically and safely only if the data is collected and analysed properly.

For instance, if the research involves environmental process then the test and control should be carried out under natural conditions. If it is practically impossible to do so then lab-based studies can also be used.

The ability to admit scientific evidence, however, is at the discretion of the presiding judge. The judge may consider various factors, such as:

• The validity of the evidence;
• The credibility of the science behind it;
• How influential evidence is during the case.