- Introduction
Sir Taylor described the law of evidence as a way through which argument to prove or disprove any issue of fact. The truth of which is given to judicial investigation.[1]
The term Evidence derived from the Latin terms ‘Evident’ or’ evidere’ that mean to show clearly, to discover, to ascertain or to prove. Evidence is a means of proof. Indian evidence Act provides the fact on which evidence can be produced before the court. It also provides admissibility and inadmissibility of evidence. Once the evidence is proved, then comes the question of evidentiary value of the evidence produced before the Court. If the evidential value of the evidences against the accused are strong enough to prove the guilt of an accused beyond reasonable doubt then only court can convict the person.[2]
- Indian Evidence Act
The Indian Evidence Act[3], 1871 is based on the English law of evidence but there are some provisions, in the Act according to the situations and need in India. Though defects have been pointed out in the Act from time to time yet the drafting of the act is the model of the best draftsmanship skill. It may be relevant to mention that most of the States had already adopted this Act much prior to the Constitution of India came into force. It is a matter of importance that the law of evidence which came to be enforced in 1872 still continues to be applicable with least changes being made during the long period of more than 140 years.[4]
The object of the law of evidence is to restrict the investigations made by the court within the limits of general convenience. If such restrictions are not put, no suit can be decided even if it is trial take place for a long time. The law of evidence is for a judicial behaviour like the reasoning for logic. Without it, there will be much delay in trial and the harm to the general public and the litigants will have to face the obstructions and bare more costs.[5]
Definition of “Evidence” under Indian Evidence Act, 1872
According to Section 3 of the Act[6], “Evidence” includes
- 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;
- all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.[7]
- Types of Evidence
From the definition of evidence under the Act itself, it is very evident that primarily there are two types of evidence oral and documentary evidence. However the different types of evidence under the Indian Evidence Law are as follows:
- Oral Evidence
Oral Evidence pertains to spoken words, gestures or movements that a witness has personally observed or heard. It must directly establish the key fact under consideration. According to Section 3 of the Evidence Act, “Oral Evidence” is any statement that the court authorises or requires witnesses to make about matters of fact that are under inquiry. During a trial, anything admitted in court and expressed by any witness is considered oral evidence.[8]
Oral evidence refers to evidence which is confined to the words spoken by mouth. It is sufficient to be proved without any documentary evidence provided it is creditworthy. Chapter IV of the Indian Evidence Act, 1872 deals with the provisions of oral evidence. If a statement is contradictory to the previous statement, then the oral evidence may be considered as doubtful.
Certain kinds of contracts or grants can be created orally. Thus they do not require any document, such as:
- A sells his cat for Rs. 1000 to B.
- A wants to mortgage the cat for Rs. 1000 to B.
- A pays Rs.1000 to B and takes back the possession of the cat.
However, there are many documents that need to be necessarily written and registered. Also, the best evidence is the one which is reduced to documents.[9]
Section 60 of the Indian Evidence Act lays down the fundamental rule for the acceptance of evidence in court. It must be direct and meet all requirements under this section for oral evidence to be admitted. The term “direct” is the primary constituent of this section and it excludes all forms of hearsay evidence. Every witness providing oral testimony must fulfill the requirement of directness.[10]
- Documentary Evidence
Documentary evidence is the evidence that mentions any issue described or expressed upon any material by way of letters, figures or marks or by more than one of the ways which can be used for recording the issue. Such evidence is presented in the form of a document to prove a disputed fact in court.
Primary documentary evidence includes the evidence that shows the original documents as mentioned in Section 62 of the Indian Evidence Act, whereas secondary documentary evidence is the evidence that includes copies of documents that can be presented in the court under certain circumstances or as mentioned in Section 63 and Section 65 of the Indian Evidence Act.[11]
Types of Documentary Evidence
There are two categories of documentary evidence: public and private documents.
- Public Documents (Section 74 of Evidence Act): Public documents, covered under Section 74 of the Evidence Act, are certified copies provided by an authority or reproductions of entries found in public registers, books or records related to pertinent facts, such as birth and marriage certificates, FIRs filed with the police and water utility bills.
- Private Documents (Section 75 of Evidence Act): Private documents, covered under Section 75 of the Evidence Act, include correspondence between opposing parties to a lawsuit, such as letters, agreements, emails, etc.
Courts tend to accept public documents more readily than private documents since they are less likely to be tampered with. Additionally, it is possible to trace the origin of public documents to a trustworthy source for validation if needed.[12]
- Primary Evidence
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. Moreover, it is admissible without any prior notice.
Such evidence must be presented before the court before the secondary evidence. Moreover, secondary evidence can be presented only in the absence of primary evidence by explaining the reason for the absence of such evidence.[13]
- Secondary Evidence
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.[14]
- Real Evidence
Real Evidence Real evidence, often called physical evidence, consists of material items involved in a case, objects and things the Court can physically hold and inspect. Examples of real evidence include fingerprints, blood samples, DNA, a knife, a gun, and other physical objects. Real evidence is usually admitted because it tends to prove or disprove an issue of fact in a trial. Real evidence is usually involved in an event central to the case, such as a murder weapon, clothing of a victim, narcotics or fingerprints. In order to be used at trial, real evidence must be relevant, material, and authentic. The process whereby a lawyer establishes these basic prerequisites is called laying a foundation, accomplished by calling witnesses who establish the item’s chain of custody.[15]
- Hearsay Evidence
Hearsay evidence refers to evidence which the witness has neither personally seen nor heard. It is just reported by the witness and considered to be very weak evidence. In other words, it refers to something that others have said or heard. There are no set standards to receive such evidence provided it has reasonable credibility and nexus. In the absence of such credibility and nexus, it is difficult and dangerous to act upon such evidence. Thus, such a piece of evidence cannot be used if its credibility is not assured and questioned.
Such evidence is often rejected as they are considered to be irrelevant. They are inadmissible because the witness has neither personally seen nor heard. The witness has not perceived the evidence through his senses but has come to know about it through the third person.[16]
- Direct Evidence
Direct evidence is evidence that will prove the point in fact without interpretation of circumstances.. It is any evidence that can show the court that something occurred without the need for the judge to make inferences or assumptions to reach a conclusion. An eyewitness who saw the accused shoot a victim would be able to provide direct evidence. Similarly, a security camera showing the accused committing a crime or a statement of confession from the accused admitting to the crime could also be considered direct evidence. Direct evidence should not be confused with the concept of direct examination, which is the initial examination and questioning of a witness at trial by the party who called that witness. And, although each witness who provides evidence could, in theory, be providing direct testimony of their own knowledge and experiences, that evidence is often not direct evidence of the offence itself.[17]
- Indirect Evidence or Circumstantial Evidence
When the facts in issue is proved by providing other facts, that is, indirect facts and then proving their relevance, it is known as Indirect Evidence.
Illustration
A testifies that on that morning she walked to the subway and as she walked, she saw rain falling, she felt it striking her face, and she heard it splashing on the sidewalk. That testimony of the witness's perceptions would be direct evidence that it rained on that morning.
A testified that it was clear as she walked to the subway, that she went into the subway and got on the train and that while she was on the train, she saw passengers come in at one station after another carrying wet umbrellas and wearing wet clothes and raincoats. That testimony constitutes direct evidence of what the witness observed. And because an inference that it was raining in the area would flow naturally, reasonably, and logically from that direct evidence, the witness's testimony would constitute circumstantial evidence that it was raining in the area.[18]
- Judicial evidence
Judicial evidence refers to evidence received by the court that proof or disproof the facts. Such evidence includes:
- Confessions of accused in a court of law;
- Statement of witnesses in a court of law;
- Documentary evidence and facts presented for examination by the court.[19]
- 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.[20]
Conclusion
Evidence is simply everything that is utilized to acknowledge or explain the truth of submission and every kind of evidence is considered extremely important to determine the outcome of a case.
Whether it is a civil or a criminal case, evidence plays a significant role as the proof of facts will not be effective without having any evidence. Moreover, the different types of evidence are notable concerning their relevance and admissibility standards. In simple words, it would be impossible to determine the results of a case without having any evidence in the case.[21]
[1] Saswata Tewari; “What is Evidence and different kinds of evidence under the Indian Evidence Act”; available at: https://blog.ipleaders.in/central-conceptions-law-evidence/ (last visited on November 16, 2023)
[2] Lalit Jain; “Types of Evidence”; available at: https://taxguru.in/corporate-law/types-evidence.html (last visited on November 16, 2023)
[3] The Indian Evidence Act, 1872 (Act 1 of 1872)
[4] Batuk Lal; The Law of Evidence; p.10 (Central Law Agency, Allahabad, 2022)
[5] Id, p.4
[6] Supra note 3
[7] The Indian Evidence Act, 1872 (Act 1 of 1872), s.3
[8] Aishwarya Agarwal; “Oral and Documentary Evidence”; available at: https://lawbhoomi.com/oral-and-documentary-evidence/ (last visited on November 16, 2023)
[9] Shriya Sehgal; “Law of Evidence: An Overview of different kinds of Evidence”; available at: https://blog.ipleaders.in/different-kinds-of-evidence/#Oral_evidence (last visited on November 16, 2023)
[10] Supra note 8
[11] Supra note 1
[12] Supra note 8
[13] Supra note 9
[14] Supra note 9
[15] Supra note 2
[16] Supra note 9
[17] Supra note 2
[18] Shristi Nimodia;”Types Of Evidence”; available at: https://www.legalserviceindia.com/legal/article-4657-types-of-evidence.html (last visited on November 16, 2023)
[19] Supra note 9
[20] Supra note 9
[21] Supra note 1