What is Evidence?
Category : Law of Evidence
Section 5 of the Evidence Act says,” Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.”
The Section says that ‘Evidence may be given….’ But what is Evidence?
This word is used in common parlance in three different senses (a) as equivalent to relevant (b) as equivalent to proof, and (c) as equivalent to the material on the basis of which courts come to a conclusion about the existence or non existence of disputed facts.
For example we may say, the presence of an accused person near the scene of the crime just before the crime was committed, is evidence that he may be guilty; whereas his presence after the crime was committed, at the same place, is not evidence of the guilt of the accused. In this statement the word is used as equivalent to relevant. Again we may say that the possession of stolen article immediately after the theft is evidence of the fact that the person in whose possession it is found is either theft, or a receiver of stolen property. In this statement, the word is used as equivalent to proof, which is really the effect of evidence. But it is neither of these senses that the word is used in the Act. It is used in the third sense mentioned above, namely, as equivalent to the material placed before the Court on the basis which the court comes to a conclusion as to the existence or non existence of a disputed fact. It is defined in Section 3 of the Act as bellow:
“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.
The definition of word “evidence” Under Section. 3 of Indian Evidence Act is explanatory and not precise. It consist oral evidence and documentary evidence. Oral evidence is evidence of the fact brought to the knowledge of the court by the verbal statement of witness, quality to speak on the point he testifies. It includes all statements, which the court permits or requires to be made before it by witness with regard to matter of fact under inquiry.
Documentary Evidence is evidence of the fact brought to the knowledge of the court by inspection of the document produce before the court.
Oral evidence is verbal testimony of the witness whereas the documentary evidence is written testimony of a witness of the document. Oral evidence is adduced, documentary evidence proved before it is admitted as evidence.
There are following kinds of Evidence:
1) Direct Evidence –
It is also known as ‘positive evidence’. Evidence given by direct witness / eyewitness is called Direct Evidence. Direct Evidence is the testimony of a witness to the existence or non existence of a fact or fact in issue. It is evidence of fact actually perceived by a witness with one of his own senses.
A is tried for setting fire to the house. B deposes that he saw A setting Fire. B is eye witness. A sues B for breach of contract C deposes that he was present at the time of agreement entered into between A and B witnessed. In this Example C is the direct witness/ Eye witness.
2) Indirect / Circumstantial Evidence –
In cases, where direct evidence is not available, then circumstantial evidence can be resorted to. Circumstantial evidences is that which tends to establish fact in issue by proving another fact which though does not itself conclusively establish that fact, affords and inference as to its existence.
Relevant case law
1) A.C. Lagu vs State of Bombay AIR1960 SC 500, 1960 SCJ 779: The accused, in the instant case was family doctor. He was tried for murder of is patient, a rich woman and sentenced to death on the basis of the circumstantial evidence.
2) Kalua Vs. State Of U.P. AIR 1958 SC 180
In this case Kalua was charged with the murder of the deceased by shooting him a pistol. The Circumstantial evidence proved was:
A) Few days before the killing of the deceased the accused had held out a threat against him.
B) A cartridge was found near the cot of the deceased.
C) A pistol was recovered from his house.
D) Fire-Arm Expert gave his opinion that cartridge found near the cot of the dead body was fired from pistol produced by accused.
It was held that there could be no room for thinking in the circumstances established in this case, that anyone else than the accused might have shot the deceased. He was convicted.
3) Real Evidence –
Real or material evidence is the evidence of fact brought to the knowledge of the Court by inspection of physical object and not by information derived from the witness or documents, for e.g. stolen property, weapons, etc.
4) Personal Evidence –
Personal evidence is an oral testimony of the witnesses, which is afforded by human agent by way of disclosure or by voluntary signs.
5) Original Evidence –
Original evidence is that which a witness reports himself to have seen or heard through the medium of his own senses for e.g. A says that he saw B murdered C with sword.
6) Hear-say Evidence –
It is also known as second hand or unoriginal evidence, a witness is merely reporting not what he himself saw or heard but what he has learnt in respect of the fact through the medium of the third person. It is a statement made by a witness of what he has been said and declared out of court by a person and not before the court. Hearsay evidence is no evidence and is not admissible.
‘A’ is being tried for stealing B’s Cycle. ‘C’ as witness says that he (C) heard ’D’ saying that ‘D’ saw ‘A’ with B’s Cycle. Such evidence given by ‘C’ is not admissible on the ground that testimony of C is hearsay evidence.
Hearsay Evidence means whatever a person is heard to say it includes:
1) A statement made by a person, not called as witness;
2) A statement contained or recorded in any book, document or record which is not admissible.
The hearsay witness may not be able to say correctly and completely the truth of his statement.
(General rule is that hearsay evidence is no evidence but Indian Evidence Act provides certain exceptions to this rule see in detail Hearsay Evidence)
7) Primary evidence –
Primary evidence means the document itself produced for the inspection of the Court. (S. 62).
A sold his house to B for 50,000/-and executes registered sale deed. In a dispute as to the title, if B produces before the court, the sale deed, it is primary evidence.
Primary evidence is considered as the best evidence since it provides proof with certainty. That is why law insists/requires first the primary evidence. The document may be in counter parts, and then each counterpart is regarded as primary evidence. If the document is made by uniform process like printing or lithography, each one constitutes the primary evidence.
8) Secondary evidence –
Secondary evidence means inferior or substituted evidence which itself indicates the existence of more Original source of information (Sec. 63). Secondary evidence may be given in the absence of the (better) primary evidence if proper explanation is given for such absence. Section 65 of the Evidence Act provides for circumstances in which secondary evidence is admissible.
According to Section 63 copies made and compared with the originals, or Photostat copies may be treated as secondary evidence.
Following are the circumstances in which secondary evidence is admissible (Section 65).
1) The person in possession of the original is not within the reach of the Court.
2) If the original is in possession of the opposite party.
3) If the original is lost.
4) When original deed had already been admitted in the Court.
5) If Original is public document.
6) When the original is not easily movable; and
7) When the original consists of many accounts.
9) Oral Evidence –
All statement which the Court permits or requires to be made before it by witnesses, in relation to matter of fact under inquiry; such statements are called Oral evidence;
10) Documentary Evidence –
All document including electronic records, produced for the inspection of the Court, such documents are called Documentary Evidence.
The expression ‘document’ is defined in section 3 of the Evidence Act, as follows:
“Document”.—“Document” 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.
Writing is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.
11) Judicial Evidence –
It is evidence received by courts of justice in proof or disproof of facts, the existence of which comes in question before them. Judicial Evidence is a species of the genus evidence and is for the most part nothing more than natural evidence, modified by rule of positive law.
12) Non-judicial Evidence –
Evidence given in the proceeding before the Magistrate or officer not in a Judicial capacity but in an administrative one, is non Judicial evidence, e.g. evidence in proceedings u/s. 164 of Cr. P.C. i.e. recording of confession and statements. (Confessions made to Police Officer are inadmissible)