By Sumit Kumar Suman, CNLU
The term “law” is used in different senses. In the plain sense, it means any rule, regulation or canon, a dogma or a norm to which the human actions are required to conform. The entire corpus juris (body of laws) is broadly classified into two categories:
- Substantive laws, and,
- Adjective laws.
The law of evidence doesn’t come under the purview of substantive or procedural law, but under ‘adjective law’, which defines the pleading and procedure via which substantive laws are brought into practice. It is the machinery by which substantive laws are set and kept in motion. So it can be said that the law of evidence deals with rights, as well as, procedures.
The general meaning of the term “evidence” is “the available body of facts or information indicating whether a belief or proposition is true or valid”. But, as per the interpretation of 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[i][including electronics record] produced for the inspection of the court;
Such documents are called ‘documentary evidence.’
In order to trace the history of the law of evidence in our country, we have to study three different periods:
- The ancient Hindu period;
- The ancient Muslim period; and
- The British period.
Ancient Hindu period:
The sources of information relating to the law of evidence prevailing in Hindu India emanate from the Hindu Dharmashastras.
According to Hindu dharmashastras, the purpose of any trail is the desire to ascertain the truth. The emphasized that a judge by using his skill should extricate the deceit like a physician taking out from the body an iron dart with the help of the surgical instruments.
Vasista recognisewd three type of evidence:
- Lekhya (documentary evidence),
- Sakshi (witnesses), and
- Bukhthi (possession).
Ancient Muslim period:
In regard to the law of evidence discussed in the book “Muslim Jurisprudence” written by the sir Abdul Rahim. The Mohammendan law givers deals with evidence under the heads of oral and documentary. Oral evidence is further sub-classified into direct and hearsay evidence as in present day.
In the British Era:
In British India, the presidency courts by virtue of a royal charter establish in Bombay, Madras and Calcutta were following English rules of the law of evidence. In mofussil courts, outside the presidency towns, there were no definite rules relating to the law of evidence. The courts enjoyed unfettered liberty in the matter of admission of evidence. The entire administration of justice in the mofussil courts, in the absence of any definite rules regarding the law of evidence, was in total chaos.
There was a dire necessity for the codification of the rules of law. In 1835 the first attempt was made to codify the rules of evidence by passing the Act, 1835. Between 1835 and 1853 about eleven enactments were passed dealing with the law of evidence. But all these enactments were found inadequate.
In the year 1868, a commission was set up under the chairmanship of Sir Henry Mayne. He submitted the draft, which was later found unsuitable to Indian conditions. Later in the year 1870, this task of codification of the rules of law of evidence was entrusted to Sir James Fitz James Stephen. Stephen submitted his draft and it was referred to the select committee and also to High Courts and members of Bar to elicit the opinion, and, after gathering opinion, the draft was placed before the legislature and it was enacted. And at last, “The evidence Act ” came in to force on 1st September, 1872.
Prior to Independence, there were as many as 600 princely States in India, which were not within the jurisdiction of the British system of justice. Each of these states had its own rules of law of evidence. But by and large, followed the Indian evidence Act 1872. After independence, there was a merger of princely states into the Indian Union. Both the substantive as well procedural laws have since been made uniformly applicable to all states, whether British province or native States. So much so, the law of evidence is now applicable to all states constituting the Union of India.[ii]
The word “evidence” signifies in its original sense, the state of being evident, i.e., plain, apparent or notorious. But it is applied to that which tends to render evidence or generate a proof. The fact sought to be proved is called the principal fact; the fact which tends to establish it, the evidentiary fact (Best). In English Law, the word “evidence” sometimes means the words uttered and things exhibited by witnesses before a Court of Justice.
At other times, it means the facts proved to exist by those words or things and regarded as the groundwork of inference as to other fittest not so proved. Again, it is sometimes used as meaning to assert that a particular fact is relevant to the matter under inquiry.[iii] In the Act, however, the word has been assigned a more definite meaning and is used only in the first of these senses.
As thus used, it signifies only the instrument by means of which relevant facts are brought before the Court (viz., witnesses and documents) and by means of which the Court is convicted of these facts.[iv] Therefore matters other than the statements of witnesses and documents produced for the inspection of the Court, e.g., a confession or statement of an accused person in the course of a trial.[v]
Statements made by parties when examined otherwise than as witnesses, the demeanour of witnesses, the result of local investigation or inspection, and material objects other than documents such as weapons, tools, stolen property, etc., are not “evidence” according to the definition given in the Act.
These are, however, matters which the Court may legitimately take into consideration. The definition of “evidence” must be read together with the definition of “proved”; and the combined result of these two definitions in that “evidence”, as defined by the Act, is not the only medium of proof and that in addition to it, there are a number of other “matters” which the Court has to take into consideration when forming its conclusions. A statement recorded under Section 164, Cr. P.C. is not evidence within the meaning of this definition. So also a confession of an accused is not evidence in the ordinary sense of the term. Entire evidence of hostile witness does not get excluded or rendered unworthy of consideration.
In the matter of appreciation of the powers of the appellant, the courts are as wide as that of the trial court. It has full power to review the whole evidence. It is entitled to go into the entire evidence and relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused”.[vi]
As per Section 3 of the Evidence Act,1872, defined as, “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 [vii][including electronics record] produced for the inspection of the court; such documents are called documentary evidence.
It means this section deals with the term “Evidence” which is derived from the latin expression “Evidens Evidera” which signifies the state of being evident, that is, plain, apparent or notorious.
According to Benthem, the evidence is defined as any matter of fact, the effect, tendency or design of which is to produced in the mind, a persuasion affirmative or disaffirmative, of the existence of some other matter of fact.[viii]
According to Stephen, the word ‘evidence’ as generally employed, is ambiguous:-
- It sometimes means the words uttered in and things exhibited by witnesses before the court of justice;
- At other times it means the facts proved to exist by those words or things and regarded as the ground work of inference as to other facts in issue not so proved;
- It is sometimes used as meaning to assert that a particular fact is relevant to the matter in the inquiry.[ix]
According to Taylor, evidence means and includes all facts except arguments, which tend to prove or disprove any matter, which under inquiry in judicial proceedings.[x]
Kinds of evidence:
Evidence is generally divided into three categories:
- oral or personal or primary,
- documentary or secondary,
- material or real.
But the fact only recognizes the first two categories. Real or material evidence is supplied by material objects for inspection of the Court, e.g., the weapon of offence or stolen property.
Evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video-conferencing.[xi]
Oral evidence may be classified into two categories:
- Direct, and
- Indirect or hearsay.
Primary and Secondary–
It may be oral or documentary.
Primary oral evidence is the evidence of what a witness has personally seen or heard or gathered by his senses. It is called direct evidence as opposed to hearsay (Section 60). As a rule, hearsay evidence is not admissible, but there are some exceptional cases of hearsay evidence which are admissible. Such exceptional cases of hearsay evidence are examples of secondary oral evidence or indirect evidence (e.g., Sections 32, 33).
Primary documentary evidence is the evidence of the original documents (Section 62), while secondary documentary evidence is the evidence of copies, etc., of documents which are admissible under certain circumstances. (Sections 63, 65).
The Best evidence or the original evidence means the primary evidence. The Best evidence Rule excludes secondary evidence.
The word direct evidence is used in two senses:
- As opposed to hearsay evidence,
- As opposed to circumstantial evidence.
In the first sense, direct evidence is the evidence of a fact actually perceived by a witness with his own senses or an opinion held by him, while hearsay evidence is, e.g., what someone else had told the witness to have seen or heard by him. In section 60 the word ‘direct’ is used in contradistinction with ‘hearsay’ evidence.
Direct and circumstantial evidence:
English text-writers divide evidence into
- Direct or positive evidence, and
- Indirect or circumstantial evidence.
Direct evidence is that which goes expressly to the very point in question and which, if believed, proves the point in question without aid from inference or reasoning, e.g., the testimony of an eye-witness to murder.[xii] Indirect or circumstantial evidence, on the other hand, does not prove the point in question directly, but establishes it only by inference.
Thus, if A were tried for the murder of B, evidence of the fact A had a motive to murder Band that, at the time B was murdered A, with a drawn sword, was seen going towards the place where B was murdered and, shortly afterwards, was seen returning from the place with his clothes stained with blood, would be indirect or circumstantial evidence.
According to Section 5 of the Act, evidence may be given in a proceeding of the existence or non-existence of facts in issue and of such other facts as are declared to be relevant by the Act. If the evidence relates directly to the existence or non-existence of a fact in issue, the evidence is direct; but if it relates to the existence or non-existence of only a relevant fact, it is indirect or circumstantial. Direct evidence, as thus understood, should not be confused with the sense in which this term is used in Section 60 of the Act.
In Section 60 the term “direct evidence” is used as opposed to “hearsay” evidence and not as opposed to “circumstantial” evidence, and therefore, in the sense in which this term is used in that section, circumstantial evidence must always be “direct”, i.e., the facts from which the existence of the fact in issue is to be inferred must be proved by “direct” ‘and not by “hearsay” evidence.
Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The circumstances may lead to particular inferences and the relationship to true facts may be more apparent than real. The value of circumstantial evidence has to be assessed on the consideration that it must be such as not to admit of more than one solution, and that it must be inconsistent with every proposition or explanation that is not true. If these conditions are fulfilled, circumstantial evidence may approximate to truth and be preferred to direct evidence.[xiii] For proof by circumstantial evidence, four things are essential:-
- That the circumstances from which the conclusion is drawn be fully established.
- That all the facts should be consistent with the hypothesis.
- That the circumstances should be of a conclusive nature and tendency.
- That the circumstances, should, to moral certainty actually exclude every hypothesis but the one proposed to be proved.
According to the Supreme Court, it is an effect to say that “what the Court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond ‘shadow of doubt’. In the first place, ‘shadow of doubt’, even in cases which depend on direct evidence is the shadow of ‘reasonable’ doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypothesis is far more rigorous than the test of proof beyond reasonable doubt”.
In the case where two of the accused persons had intentionally caused the death of the deceased, there is no reason to discard evidence of witnesses.
In a prosecution for bribery the fact that money had been recovered from the bush shirt of the appellant, was, by itself held to be not sufficient, for convicting him, when the substantive evidence led to prove the offence was found to be not reliable.
The rule that facts are provable by circumstances as well as by direct testimony, has a considerable effect in preventing guilty or dishonest parties from tampering, or making way with witnesses and other instruments of evidence, which they would be more likely to do, if they knew that the only evidence which the law would receive against them was contained in a few easily-ascertained depositories.
“The sentence of the law to the moral sentiment of the public in relation to any offence is what a seal is to hot wax. It converts into a permanent final judgment what might otherwise be a transient sentiment. The infliction of punishment by law gives definite expression and a solemn ratification and justification to the hatred which is excited by the commission of the offence, and which constitutes the moral or popular is distinguished from the conscientious sanction of that part of morality which is also sanctioned by the criminal law. The criminal law thus proceeds upon the principle that it is morally right to hate criminals, and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it. This close alliance between criminal law and moral sentiment is in all ways healthy and advantageous to the community“….. Stephen.
It is a well-settled principle that the prosecution evidence has to be weighed and not to be counted. It is just because pedestrian or resident of the vicinity has not been cited as the witness will be no ground throws away the otherwise reliable testimony of the eye-witnesses which is natural and inspires confidence.
It is not necessary that all eye-witnesses should specifically refer to the distinct acts of each member of an unlawful assembly.[xiv]
Section 144 deals with the “Evidence as to matters in writing”
It means this section deals with any witness may be asked, whilst under examination whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation.- A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
It means under section 144 a witnesses who is being examined may be asked whether any contract, grant or other disposition of property as to which he is disposing of was not contained in a document. When the witness answers the question in an affirmative manner or when he is about to make any statement as to the contents of such a document which in the opinion of the court ought to be produced, the adverse party has a right to object to such evidence being given until the document itself is produced or proper foundation is laid for the purpose of proving the contents of the document by means of secondary evidence.
The explanation under Section 144 allows a witness to give oral evidence of statements made by other persons about the contents of evidence of documents if such statements are themselves relevant facts. In the illustration appended to section, the question is whether one A assaulted B. c, a witness deposes that he heard A to say that B had written a letter accusing A of committing
Theft and that he will take revenge. This statement about the contents of the letter may be proved although the letter is not produced since the statement is relevant as showing A’s motive for the assault under section 8 of the evidence Act.
As per Section 145 of Evidence Act, 1872 deals with the cross-examination as to previous statements in writing.- A witness may be cross- examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
The general rule is that the contents of writing cannot be used unless the writing itself is produced. But section 145 making an exception to rule says that a witness may be cross-examined as to the previous statements made by him in writing or reduced to the form of writing and relevant to the matter in question without such writing being shown to him or being proved.[i]
After all our research related to the topic, “Evidence as to matter in writing”, we saw that the word “evidence” signifies in its original sense, the state of being evident, i.e., plain, apparent or notorious. But it is applied to that which tends to render evidence or generate a proof. We can say that the term “Evidence” is nothing but a process which deals with the right as well as procedures.
It means it supports the instrument of our claim and also talks about proceeding our claim before the court of law. The topic itself is explanatory itself- it includes evidence in writing, which will also be admissible and valid.
Formatted on February 20th, 2019.
[iii] Stephen’s Introduction, pp. 3-4.
[iv] Per Macnair, A.J.C., in Gobarya v. E., 125 IC 673: 1930 N 242: 31 Cr LJ 881 (FB).
[v] . Laxman Jairam v. E., 1937 B 31: 166 IC 569: 38 Bom LR 1122; Gobarya v. E., 125 IC 673: 1930 N 242: 31 Cr LJ 881 (FB); Q.E. v. Khandia Bin Pandu, 15 B 65; E. v. Tuti Babu, ILR 25 P 33 (written statement); see however, E. v. Ashootosh Chukerbutty, 4 C 483 (FB).
[vi] . Brathi v. State of Punjab, (1991) 1 SCC 519: 1991 SCC (Cri) 203: 1991 Cr LJ 402: AIR 1991 SC 318 (Para 7).
[vii] Ins. By Information Technology Act, 1999, (21 of 2000), w.e.f. 17-10-2000.
[viii] Best: Evidence,, sec. 11, citting Benthem.
[ix] Digest of law of evidence,m secs, 3-4.
[x] Taylor’s Evidence.
[xii] Governor of Bengal in Council v. Motilal Ghosh, 41 C 173: 20 IC 8114 Cr LJ 321
[xiii] Kenchegowda v. P. Chaunaiya, 1953 Mys 22.