What is the meaning of Evidence
Evidence comprises anything that may be used to determine the truth of the assertion. The production and presentation of evidence depend on establishing on whom the burden of proof lays. The judge or the jury decides if the burden of proof has been fulfilled. After it has been established who shall carry the burden of proof, the evidence is foremost gathered, collected and then presented before the court to determine its admissibility.
According to Sir Blackstone:
‘evidence’ signifies that which demonstrates, makes clear, or ascertains the truth of the facts or points in the issue either on one side or another.
According to Sir Taylor:
Law of Evidence which branches out of the Law of the procedure, “means through argument to prove or disprove any matter of fact. The truth of which is submitted to judicial investigation.”
Section 3 of the Indian Evidence Act defines evidence as:
- All the 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 the documents, including electronic records produced for the inspection of the court; such documents are called documentary evidence.
As per the above-mentioned definition of evidence under this act, the evidence presented before the court is extracted out from two sources, namely, a statement of witnesses and through documents and electronic records.
In Sivrajbhan vs Harchandgir, the Hon’ble supreme court of India held:
“The word evidence in connection with the law, all valid meanings, includes all except agreement which proves/disprove a factor matter whose truthfulness is presented for judicial investigation. At this stage, it will be proper to keep in mind that where a party and the other party don’t get the opportunity to cross-examine his statements to ascertain the truth, then in such a condition, this party’s statement is not evidence.”
Ten types of Evidence
The ten types of evidence under the Indian Evidence Act are:
- Oral Evidence
- Documentary Evidence
- Primary Evidence
- Secondary Evidence
- Real Evidence
- Hearsay Evidence
- Judicial Evidence
- Non-Judicial Evidence
- Direct Evidence
- Circumstantial Evidence or Indirect Evidence
1. Oral Evidence
The provision of section 60 of the Indian Evidence Act, 1872 deals with the recording of oral evidence.
All those acceptable statements which the court assumes from the witnesses to help accomplish the direction of the truth of the facts laid before the court are called Oral Evidence. Oral evidence is that evidence which the witness has himself has seen or heard. It must always be direct. Evidence is direct when it primarily establishes the main fact in an issue.
Example: A tells B that he will kill C. A’s statement is oral evidence.
2. Documentary Evidence
Section 3 of the Indian Evidence Act states that all documents presented before the court for inspection are claimed to be documentary evidence.
Documentary evidence helps determine the attitude, intention, and consciousness regarding the custom is viewed to be more important than oral evidence.
Example: marriage certificate, medical records, birth certificate, written contract, affidavits.
3. Primary Evidence
Section 62 of the Act reflects primary evidence as to the top-most class of evidence. It is that proof which in any possible condition gives a vital hint and appropriate direction for suitable action in a disputed fact and establishes for inspection by the court through documentary evidence on the production of an original document. It means that the document was itself available for the inspection of the court.
In Lucas vs Williams, Privy Council held:
primary evidence is evidence which the law requires to be given first and secondary evidence is the evidence which may be given in the absence of that better evidence when a proper explanation of its absence has been given.
Example: CCTV footage, audio recordings, video recordings, etc.
4. Secondary Evidence
Section 63 states it is evidence that occupies a secondary position, produced in the absence of the primary evidence; therefore, it is known as secondary evidence. If in place of primary evidence, secondary evidence is admitted without any objection at the proper time, then the parties are precluded from raising any question against the document not being proved by primary evidence but by secondary evidence. However, where there is no secondary evidence as contemplated by section 66 of the Evidence Act, the document cannot be said to have been proved either by primary evidence or by secondary evidence.
Example: Photocopy of a document.
5. Real Evidence
Any material evidence is real evidence. Real evidence of a fact is brought to the knowledge of the court by inspection of a physical object and not just by information derived from a witness or a document.
Example: contempt of court, the conduct of the witness, the parties’ behaviour to a case, the local inspection by the court. It can also be called the most satisfactory witness.
6. Hearsay Evidence
The acceptance and weightage of this evidence are very weak. It is only the reported evidence of a witness which he has neither seen nor heard. Sometimes it implies the witness overhearing a statement of some other person.
In Lim Yam Yong vs Lam Choon & Co., the Hon’ble Bombay High Court adjudged:
Hearsay Evidence which ought to have been rejected as irrelevant does not become admissible as against a party merely because his council fails to take objection when the evidence is tendered.
Hence, we can conclude that hearsay evidence is that evidence which the witness has neither itself seen or heard, nor has he perceived through his senses, and such a fact has been drawn to his knowledge through a secondary source – a third party.
There is no bar to receiving hearsay evidence provided since it has reasonable nexus and credibility. When a piece of evidence is such that there is no prima facie assurance of its credibility, it could prove dangerous and unfair to act upon it. Hearsay evidence is, therefore, conclusive to be out of the governance of the Evidence act.
It’s very rare for hearsay evidence to be an acceptable piece of evidence in any case. It doesn’t hold weightage compared to the others. In rare circumstances, when primary and secondary evidence are absent, it may be considered.
Example: A is the eye witness to a murder case. He saw B killing C. However, later during the proceedings, A develops a mental disorder. Due to mental disability or insanity, the court will not be able to admit A’s testimony. However, D overhears a conversation between E and F about B planning to kill C. In such an exceptional case, the court may rather consider D’s statement as hearsay evidence to structure its further proceedings.
7. Judicial Evidence
Evidence received by the court of Justice in proof or disproof of facts before the court is called judicial evidence.
Example: The confession made by the accused in the court, statements of witnesses, and documentary evidence and facts for the examination by the court are judicial evidence.
8. Non-Judicial Evidence
Any confession made by the accused outside the court in the presence of any person or the admission of a party is called non-judicial evidence.
9. Direct Evidence
Evidence is either direct or indirect. Direct evidence is evidence that is very important for the decision of the matter and fact in the issue presented.
When the facts of the case are presented before the court by witnesses, it is direct evidence.
The person who had actually seen the crime being committed can help describe the offence, and through its statement, help serve as a direction for the facts to be established in the case presented.
The evidence of the witness in court is direct evidence as opposed to a testimony to a fact suggesting guilt. Moreover, in case a statement was given before the police, it can be called circumstantial evidence of complicity and not direct evidence in the strict sense, i.e., indirect evidence.
Example: the testimony of an eye witness.
10. Circumstantial Evidence or Indirect Evidence
There is no difference between circumstantial evidence and indirect evidence. They are synonymous. Circumstantial evidence paves the way to prove the facts in the issue by providing other facts and manages to pull out an instance as to its existence. It connects to a series of other facts than the fact in the issue. However, it is often associated with the fact in issue relative to the cause and effect, leading to a satisfactory and meaningful conclusion.
In the case of Hanumant vs State of Madhya Pradesh, the Supreme Court observed:
“In dealing with circumstantial evidence there is always the danger that suspicion may take the place of legal proof. It is well to remember that in cases where the evidence is circumstantial, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. And all the facts so established should be consistent only with the hypothesis of the accused’s guilt. In other words, there can be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and it must be such as to show that within all human probability, the act must have been done by the accused.
Example: footprints on the crime scene floor may become a possibility for the person to be a suspect in the case.