Category Archives: Law of Evidence

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:

Definition

“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.
Illustrations

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.

Illustration – 

‘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).

Illustration 

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.

Illustrations

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)


ADMISSION – Definition and Reasons for admissibility

Category : Law of Evidence

Section 17 of the act defines Admission – An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under circumstances hereinafter mentioned.

The section points three things it First defines “admission”, in terms of a statement which may be oral or documentary or in electronic form. Secondly, the section says that an admission will be relevant only if it is made by any of the person specified in the Act. The list is to be found in S. 18. Thirdly, the section says that it will be relevant only in the circumstances mentioned in the Act. Such circumstances are mentioned in section 18-30.

The Supreme Court has given some guidance in this respect. Before the right of a party can be taken to be defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should not be any doubt or ambiguity. It would be necessary to read all of his statements together. Applying this approach to the facts of a case before it.

Reasons for admissibility of admissions

An admission is relevant evidence. Several reasons have been suggested for receiving admissions in evidence some of them are as follows:

  1. Admissions as waiver of Proof

The section confines this effect only to formal admissions made at the time of the trial or as part of pleadings or in reference to the litigation. Sec.58 qualifies the principle by saying in the proviso that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission. Thus the Court may reject an admission either wholly or in part or may require further proof. “Waiver of proof” therefore, cannot be an exclusive reason for the relevancy of an admission.

  1. Admissions as statement against interest

The Second suggested reason is that an admission, being a statement against the interest of the maker, should be supposed to be true, for it is highly improbable that a person will voluntarily make a false statement against his own interest. But this also does not squarely account for the relevancy of admissions. For one thing Section 17 does not require that an admission should be a statement suggest some inference as to a fact in issue or relevant to the issue, even if the inference is in favour of the declarant. The act does not seem to require that an admission should be self-harming statement.

  1. Admissions as Evidence of Contradictory Statements

Still another reason that partly accounts for the relevancy of an admission is that there is a contradiction between the party’s statement and his case. This kind of contradiction discredits his case. If, for example, A sues B upon a loan. His account books show that the loan was given to C. The statement in his accounts is an admission on his part as it contradicts his case against B. But his is only partly true, for the principle is that a party can prove all his opponent’s statements about the facts of the case and it is not necessary that they should be inconsistent with his case.

4. Admissions as Evidence of Truth

The last and most plausible and perhaps widely accepted reason that accounts for relevancy of admissions is that whatever statements a party makes about the facts of the case, whether they be for or against his interest, should be relevant as representing or reflecting the truth as against him.

Forms of admission and to whom an admission may be made

It is generally immaterial as to whom an admission is made. It may occur in reference to the proceedings or outside the court.

Formal or Judicial Admissions

An admission which is made as part of the proceedings so that it is recorded in the file of the court,that is called a formal or judicial admission. “Admissions expressly made in the proceedings prior to the trial are sometimes called formal or express admissions.
Statements made by a person in his pleadings or in his evidence in a case have also been held by the Supreme Court to be admissions and, therefore, relevant. The case before the court was Bishwanath Prasad v. Dwarka Prasad :

The question was whether certain properties belonged to the defendant and certain others were liable to partition. The opposite party had made statement in dispositions in an earlier suit that they belonged to the defendant. Similar admissions occurred in the written statement filed by the plaintiff and his father in that suit.

Treating this as a relevant evidence against the plaintiff, Court remarked that Admissions are usually telling against the maker unless reasonably explained, and no acceptable ground to extricate the appellants from the effect of their own earlier statements has been made out. The attention of the learned Judge was drawn to section 145 of the Evidence Act which provides that if a witness is to be contradicted by his own earlier statement, the statement must be put to him so that he may have an opportunity to explain it and this was not done in the present case Dealing with this argument Court said :

There is a cardinal distinction between a party who is the author of a prior statement and a witness who is examined and is sought to be discredited by the use of his prior statement. In the former case in admission by a party is a substantive evidence if it fulfills the requirements of Sec21; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence. In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigore; in the latter case the Court cannot be invited to be disbelieve a witness on the strength of the prior contradictory statement unless it has been put to him, as required by sec 145.

The court then pointed out that this distinction was clearly made out in Bharat Singh’s Case, Where the court disposed of a similar argument with the following observation :

Admissions are substantive evidence by themselves, in view of sections 17 and 21 of the Act, though they are not conclusive proof of the matters admitted. We are of opinion that admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the case he made a statement contrary to these admissions. An admission is a substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness.

Referring to the distinction between the relevancy of an admission and its weight the Court pointed out in the Bharat Singh’s Case that the “the weight to be attached to an admission made by a party is a mater different from its use as an admissible evidence.
Informal or casual Admissions

Such admissions may occur in the ordinary course of life, or in the course of business, or in casual or informal conversation. The admission may be in writing or oral. Written admissions may occur in the course of correspondence , in letters, business dairies or account book or other records. If there is a document against a party, any statement made by him about the contents of the document is an admission against him even if the document itself is not provable on account of want of stamp.

Admission and Hearsay

An oral admission can be proved either by the party to whom it was made or by someone who heard it being made. To this extent the evidence of an informal admission is an evidence of hearsay. Sec.60 requires that oral evidence must in all cases be direct, that is to say, the witness must have personal and direct knowledge of the fact to which he testifies. If, for example, the question is how a fire started. A person who witnessed the fire being started by an explosion can give evidence of this fact, for he has personal knowledge of the fact. If on his way home he told someone of the fact of explosion, that other cannot give evidence of the explosion for his knowledge is nothing but a hearsay.

Persons whose admissions are relevant

Section 18 lays down the list of persons whose admissions constitute evidence against a party. The effects of Sec.18,19 and 20, when put together, is that the admissions of following parties become relevant :

  1. Parties of the Suit,
  2. Agents of Parties,
  3. Persons occupying representative character,
  4. Statement will include the statements of the following parties :

This category will include the statements of the following parties :

(a) Persons having pecuniary or proprietary interest.

(b) Persons from whom the parties derived their interest.

(c) Persons whose position is in issue or is relevant.

(d) Persons expressly referred to.

Parties to suit or proceeding 

The statement of a party in his written statement in an earlier proceeding was held to be relevant against him in a subsequent proceeding. It seemed to the court to be evidence of telling nature and heavily loaded against the party. Where there are more than one plaintiffs oar defendants to a suit, the Act does not make it clear whether the statement of a party will be relevant against his co-plaintiffs or co-defendants. On principle as well as policy the statement of a defendant should not bind his co-defendants, for otherwise the plaintiff can defeat the case of the other defendants through the mouth of one of them. That would be unfair to the co-defendants. So a defendant is bound by his statement only to the extent of his own interest. An admission is the best evidence only against the party who has made it. Even if it were relevant under one category or the other, it appears from decision of the Supreme Court in Kashmira Singh v. State of M. P., that not much weight can be attached to it against the co-parties and it cannot by itself be the basis of legal rights or liabilities.

Agents of Parties

The statement of an agent to a party are relevant as admission against the party provided the court regards, under the circumstances of the case, the agents to be expressly or impliedly authorised by the party to make the statement. According to the law of agency, a statement by agent in the ordinary course of the business of agency is an admission against his principal.
Statements in representative character

A person who sues or is sued in a representative character, any statement made by him during the time that he holds such character is an admission against the party whose representative he is. Representative character is occupied, for example, by trustees, receivers, the assignee of an insolvent’s estate, executors, administrators etc.

Persons having pecuniary or proprietary Interest in subject-matter

Statement of persons who, though not parties to the proceeding, have a pecuniary or proprietary interest in the subject-matter of the proceeding, are relevant provided that the statement is made by any such person in the character of his interest.

Predecessor-in-title
Statements made by a persons from whom the parties to the suit have derived their interest in the subject-matter of the suit are admissions provided they are made during the continuance of the interest of the persons making the statements. A person of this kind is called a “predecessor-in-title”. Any statement made by him about the property while he was holding the title is relevant against the parties who acquired the title from him. This category will include statements made by a former owner of a property and such statements will be relevant against present owners. A statement made by any such person after he ceased to have any interest in the property in question shall not be an admission against the present owner of the property.
Persons whose position is in issue

Sec.19 deals with statements of persons whose position is in issue, though they are not parties to the case. The section is based upon the principle that where the right or liability of a party to a suit depends upon the liability of a third person, any statement by that third person about his liability is an admission against the parties.

Statements by referees

Sec.20 deals with the principle that when a party makes a reference to a third person for information, any statement by that person about the subject-matter of the reference is an admission against the party making the reference.

The Supreme Court in K.M. Singh v. Secretary, Association of Indian Universities. Here the issue was whether the resignation tendered by the plaintiff was an involuntary one. He named two officials of the respondent association that if they would take special oath at a specified religious place and affirm that his resignation was not involuntary, he would accept the same. When the official did so it amounted to an admission on his part and he became bound by the same.
S. 21. Proof of admissions against persons making them, and by or on their behalf

Admission are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases :

(1)An admission may be proved by or on behalf of the person making it when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons u/s 32.
(2)An admission maybe proved by or on behalf of the person making it; when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

(3)An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

Illustrations
(a) The question between A and B is, whether certain deed is or is not forged. A
affirms that it is genuine, B that it is forged.

A may prove a statement by B that the deed is genuine, and B may  prove a statement by A that the deed is forged; but A cannot prove a  Statement by himself that the deed is genuine, nor can be proved a statement  by himself that the deed is forged.

(b) A, the captain of a ship, is tried for casting her away.

Evidence is given to show that the ship was taken out of her proper course.

A produces a book kept by him in the ordinary course of his business,  showing observations alleged to have been taken by him from day to day, and  indicating that the ship was not taken out of her proper course. A may prove these statements because they would be admissible between third parties if he were dead, under Sec.32.

Who can prove admissions

The section lays down the principles as to proof of admissions. The section is based upon the principle that an admission is evidence against the party who has made the admission and, therefore, it can be proved against him. He himself cannot prove his own statements, “otherwise every man, if he were in a difficulty, or in view of one, might make declarations to suit his own case”, and then lodge them in proof of his case. The general rule is that “the statements of a living person cannot be received unless they are against his interest.” No man should be at liberty to make evidence for himself through his own statements. Granted this facility, every litigant would construct a favourable case by his own statement.

The principle is, however, subject to important exceptions. In these exceptional cases a party is permitted to prove his own statements. Some of them may be mentioned here.
1. When the statement should have been relevant as Dying Declaration or as that
of a deceased person under S. 32
.

Sec. 32 deals with the statement of persons who have died or who otherwise cannot come before the court. The statement of any such person can be proved in any case or proceeding to which it is relevant whether it operates in favour or against the person making the statement. In circumstances stated in Sec. 32 such a statement can be proved by the maker himself if he is still alive. The exception is thus stated in S. 21(1).

An admission may be proved by or behalf of the person making it, when it is of such a nature that if the person making it were dead, it would be relevant as between third persons under Sec. 32. Illustration (b) is on the point.

  1.  Statements as to bodily feeling or state of mind

The second exception is contained in S.21(2). It deals with statements as to body, bodily feeling or state of mind. The subsection enables a person to prove his statements as to his state of body or of mind. If, for example a person is injured and the question is whether the injury was intentional or accidental, his statement at that time as to the way he was injured can be proved by himself. The conditions for the admissibility of such statements are, Firstly, that the statement should have been made at about the time when the state of mind of of body which is described by the statement still existed. The statement should be contemporaneous with the existence of the condition of mind or of body. This rules our chances of fabrication. A person is the least likely to fabricate a statement when he is still reeling under the pain of the injury. And Secondly, the statement should be accompanied by conduct which renders the falsehood of the statement improbable.

Thus to reassure that the statement is really true, the Legislature insist that the statement should be accompanied by such conduct as shows that the condition of mind or of body described by the statement is really true and not feigned. The conduct of a person under real pain is different from that of a person who is only acting as such. The accompanying conduct is a greater guarantee of truth than the statements.

  1.  When otherwise relevant

The last exception is that a person may prove his own statement when it is otherwise relevant under any of the provisions relating to relevancy. A statement may be relevant either as an admission of relevant fact or as a proof of the existence of a fact. There are many cases in which a statement is relevant not because it is an admission but because it establishes the existence or non-existence of a relevant fact or a fact in issue. In all such cases a party can prove his own-statements.
Statement when Relevant

The act provides for the relevancy of statement in several cases.

Firstly, a party may prove his own statement under S.6 if it is a part of the same transaction. The doctrine of res gestae covers such statements.

Secondly, a statement may be proved by or on behalf of the person making it under Section 8 if it accompanies or explains acts other than statements or if it influenced the conduct of a person whose conduct is relevant.

Thirdly, a statement may be proved by or on behalf of the person making it under Section 14 if the statement explains his state of mind or body or bodily feeling when any such thing is relevant or is in issue.

Fourthly, a statement may be proved on behalf of the person making it if it is relevant under any of the clauses of Section 32.

The Supreme Court has also laid down in some cases that where there is an admission, it is not necessary to confront the person concerned with the previous statement. This is so because an admission is a substantive and an independent piece of evidence.
Presumption of genuineness of electronic records

Electronic records are presumed to be true. No further evidence is necessary in proof of a fact appearing in such record. It is only when the genuineness of the record is in question that other evidence would be receivable. In that case, an oral account of the contents of such record would also become receivable in evidence.

In K. Chinnaswamy Reddy v. State of Andhra Pradesh, to hold that the statement relating to concealment is admissible in evidence by virtue of section 27. In that case, the question was formulate by the court, as follows:

Let us then turn to the question whether the statement of the appellant to the effect that ‘he had hidden them (the ornaments)’ and would point out the place’ where they were, is wholly admissible in evidence under S.27 or only that of it is admissible where he stated that he would point out the place but not the part where he stated that he had hidden the ornaments.

In Pulukuri Kotayya v. King Emperor, the above question was answered as :

If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S.27. It is only that part which distinctly relates to the discovery which is admissible; if any part of the statement distinctly relates to the discovery it will be admissible wholly and the Court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not.

It is however urged that in a case where the offence consists of possession even the words where he had hidden them’ would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S.27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may prove the offence, for after the articles have been recovered are connected with crime. i.e. In this case the prosecution will have to show that they are stolen property. We are therefore of opinion that the entire statement of the appellant would be admissible evidence.

In the light of this decision, we must hold that the accused must be deemed to be in exclusive possession of the articles concealed under the earth though the spots at which they were concealed may be accessible to public.