Definition and Types of Evidence

Table of Contents

DEFINITION AND TYPES OF EVIDENCE

INTRODUCTION

The word ‘evidence’ is derived from the latin term ‘evidera’ which signifies to discover something clearly or to ascertain. According to Phipson, “evidence means testimony, whether documentary or oral or real, which may be legally received in order to proove or disproove a fact in issue”. In ordinary parlance, the terms evidence and testimony are used interchangeably but that is not correct. Evidence is wider than testimony because it includes oral as well as documentary evidences whereas a testimony can only be in oral form given by the witness in the court.

SECTION 3, INDIAN EVIDENCE ACT 1872

According to Section 3 of the Indian Evidence Act 1872, “evidence” means and 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.

The definition of evidence given in the act is objected to be too narow as it does not include things like:

Material things other than documents like weapons, articles of stolen property, etc.
Statements by parties before or outside the court.
A thing like struggle in case of murder.
The result of a local inquiry or inspection.

Related case laws:-

Affidavit is not an evidence: In Ayaaub Khan Noorkhan Pathan v. State of Maharashtra 2013, it was held that affidavit does’nt fall under the ambit of evidence in Section 3, although there can an exception arise if the court passes an order under Order 19 of the Code of Civil Procedure, 1908.
FIR is not a substantive evidence: In Magesh v. State of Karnataka 2010, it was held by the court that FIR is not a substantive piece of evidence but it does not mean that it can be given a complete go by. It can be provided as a corroborative evidence of a person lodging the same.
Judge’s personal views and observation: In Pritam Singh v. State of Punjab 1956, it was held that the personal observation of a judge can not be used as an evidence because by doing so a judge himself becomes a witness without being cross-examined.

Types of Evidence

ORAL & DOCUMENTARY EVIDENCE:-

As mentioned in Section 3 of the Indian Evidence Act, there are two types of evidence:

Oral Evidence- It includes the statements produced by the witness before the court in regard to the matters of fact under inquiry.
Documentary Evidence- It covers all the documents and electronic records produced for the inspection of court.

Landmark case laws:-

Recording of evidence through Video Conferencing- In State of Mharashtra v. Dr. Prafulla B. Desai 2003, recording of the statement of witness through video conferencing was allowed by the court on the ground that Section 3 of the Indian Evidence Act validates electronic documents as evidence and Section 272 of CrPC provides for dispensation from personal or physical evidence. Regarding the argument that the fundamental rights of the accused under Article 21 cannot be subjected to virtual reality, the court held that virtual reality is a state of mind where one is made to feel, hear, see or imagine what does’nt really exists while video conferencing is an advancement in the field of science and technology where one can see, hear or talk to another person far away with the same facility as if he is present before you.

Tape-recorded version- In Ram Singh v. Ram Singh 1986, the court laid down the following test regarding the admissibility of tape recorded versions-
The voice of the speaker must be identified by the maker of the record or by others who recognise his voice. Where the voice is denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
The voice of the speaker should be audible and not distorted by other sounds or disturbances.
The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence.
Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out.
The statement must be relevant according to the rules of evidence.
The recorded cassette must be carefully sealed and kept in safe custody.[1]

DIRECT & CIRCUMSTANTIAL EVIDENCE:-

Direct Evidence: A direct or primary evidence is about the real point in controversy or is an evidence that is directly related to the fact in issue.

Illustration: A is being tried for the murder of B. The testimony of C that she saw A attacking B with a knife will be a direct evidence.

Krishna Ram v. State of Rajsthan 1993- In case where there was a charge of murder, the eye witness is most reliable witness. If the court has aquitted one accused giving the benefit of doubt and convicted another because of this the credibility of an eye witness is not affected.
Balwan Ram v. State of Harayana 2014- The testimony of an injured or stamped witness is accorded a special status in law. This is a consequence of the fact that injury to the witness is an inbuilt guarantee of his presence at the crime scene and because the witness would not want the actual assailant go unpunished.

Circumstantial Evidence: A circumstantial or indirect evidence is that which relates to a series of other facts than the fact in issue but by experience have been found so associated with the fact in issue in relation of cause and effect that it leads to a satisfactory conclusion.

Illustration: A is being tried for the murder of B. The statement of C that he saw A walking towards the crime scene a few minutes before the death and then coming out with blood stains on his shirt is a circumstantial evidence.

The 5 golden principles of Circumstantial Evidence- In Sharad Birdichand Sarda v. State of Maharashtra, 1984, the court explained 5 rules for the admissibility of circumstantial evidence laid down in Hanumant v. State of MP, 1952–
The circumstances form which the guilt is being drawn should be fully established.
The facts so established should only be consistent with the hypothesis of the accused being guilty.
The circumstances should be of conclusive nature and tendency.
They should exclude every possible hypothesis except the one to be prooved.
There should be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the assused and must show that in all human probability that act must have been done by the accused.
Sahadevan v. State of Tamil Nadu, 2012- It was held that in case of circumstantial evidence, the onus lies upon the prosecution and a complete chain of events must be prooved that should undoubtedly lead only towards the guilt of the accused.

[1] https://www.lawyersclubindia.com/judiciary/ram-singh-ors-v-col-ram-singh-1985-tape-recorded-statement-as-evidence-5023.asp

Author: Rudra Gupta,
3rd Year, B.A. LL.B., Aligarh Muslim University