LAW OF EVIDENCE
Q. 1 (a). Discuss the term ‘evidence’. Explain the different kinds of evidence recognized under the Indian Evidence Act.
Ans. Meaning of the term ‘Evidence’. The word ‘evidence’ has been derived from the Latin word ‘evidera’, which means to discover clearly, to ascertain or to prove. The term “evidence” in the Act is only an instrument by means of which relevant facts are brought before the Court. The instruments adopted for this purpose may be witnesses or documents or things.
The Law of Evidence, which is mainly procedural law, lays down rules as to admissibility of facts, method of proof of facts and persons entitled to testify the fact.
Sir James Stephen gives an elaborate definition of the term ‘evidence’ as follows:
“It sometimes means 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 grand work of reference as to other facts not so proved. Again, it is sometimes used as meaning to assert that a particular fact is relevant to the matter under inquiry.” (Stephen, ‘Introduction to the Law of Evidence’).
According to Stephen-
“The Law of Evidence is that part of the law of procedure, which with a view to ascertain individual rights and liabilities in individual cases, decides:
(1) what facts may, and what may not be proved in such cases;
(2) what sort of evidence must be given to a fact which may be proved; and
(3) by whom and in what manner the evidence must be given by which any fact is proved.”
Taylor defines evidence as: “all means which tend to prove or disprove any matter, fact, the truth of which is submitted to judicial investigation”. (Taylor, Evidence, Section 1).
Definition of the term ‘evidence’ in the Indian Evidence Act
According to Section 3 of the Indian Evidence Act, 1872, “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.”
Thus, it can be concluded that the Law of Evidence is a collection of general rules established by law:
(1) For declaring what is to be taken without proof.
(2) For declaring the presumptions of law, both those which are disputable and those which are conclusive.
(3) For production of legal evidence.
(4) For exclusion of whatever is not legal.
(5) For determining in certain cases, the value and effect of evidence.
According to the Allahabad High Court “The Law of Evidence does not affect substantive rights of parties but only lays down the law for facilitating the course of justice. The Evidence Act lays down the rules of evidence for the purposes of the guidance of the Courts. [Ram Jas v. Surendra Nath, AIR 1980 All 385].
Kinds of Evidence Recognised under the Indian Evidence Act.
Evidence can be classified under the following heads-
(1) Direct evidence or positive evidence.
(2) Indirect evidence or Circumstantial evidence.
(3) Real evidence and personal evidence.
(4) Hearsay evidence.
(5) Primary evidence.
(6) Secondary evidence.
(7) Oral evidence.
(8) Documentary evidence.
(9) Conclusive evidence.
1. Direct evidence.- Evidence may be either direct or indirect. Direct evidence is the evidence to the precise point in issue. It is the direct evidence when the principal fact is attested directly by witnesses, things or documents. Direct evidence is the testimony of the witnesses as to the prinicipal fact to be proved, e.g., the evidence of a person who saw the actual commission of the Act which constitutes the alleged offence.
Example. In a case of murder, the statement of witness that he saw the accused inflicting the blow which caused the death is direct evidence.
2. Indirect evidence or Circumstantial evidence.- Indirect evidence or Circumstantial evidence is that evidence which relates to a series of other facts. The chain of facts by experience have been found to be so closely associated with the facts-in-issue in relation of cause and effect that they lead to some definite conclusion. It is the testimony of a witness as to other relevant facts from which the fact-in-issue may be inferred. Circumstantial evidence is always direct and primary, i.e., the facts from which the existence of the fact-in-issue to be inferred must be proved by direct evidence.
Illustration- A is charged with murder of B. In this case, two sorts of evidence may be given. Witnesses may come and say that A killed B in their presence.
But it may happen that none saw the occurrence. The prosecution may lead evidence to the effect that A and B were seen going towards the bank of a river, after two hours A alone was seen coming back, that A had blood marks on his clothes, that after half an hour dead body of B was found on the bank of the river. In this case, there is no evidence of a person having seen the murder being committed. But from the circumstances given above it may be inferred that A murdered B.
Essentials of circumstantial Evidence-In S.P. Bhatnagar v State of Maharashtra, AIR 1979 SC 826, the Supreme Court dealing with a case of circumstantial evidence formulated four essentials to be borne in mind in order to prove a case by circumstantial evidence.
They are:
(1) That the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) That all the facts SD established should be consistent with the hypothesis of the guilt of the accused.
(3) That the circumstances should be of a conclusive nature and tendency; and
(4) That the circumstances should be such as to exclude every other hypothesis except the one proposed to be proved.
Importance of circumstantial evidence. In reference to circumstantial evidence it has been observed by the Supreme Court:
“It is well established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution must inevitably and exclusively point out the guilt of the accused and there should be no circumstances which may reasonably be considered consistent with the innocence of the accused. Even in the case of circumstantial evidence, the Court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case.” [Umed Bhai v. State of Gujarat, AIR 1978 SC 424]
When the case squarely rests on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts or circumstances are found to be incompatible with the innocence of the accused or guilt of another person. (Chattar Singlı v. State of Haryana, AIR 2009 SC 378).
In the case of Daya Ram v. State (Delhi Admn.), AIR 1988 SC 615, the accused stabbed his partner, there being enmity between them, though no one was present at the sight. He was apprehended by passers-by immediately after the incident. The Supreme Court upheld the conviction on the basis of circumstantial evidence alone. Thus, in exceptional cases circumstantial evidence can be the basis of conviction [Ashish Batham v. State of M.P., AIR 2002 SC 2164].
It is not necessary that all the eye-witness should specifically refer to distinct acts of each member of the unlawful assembly. In case of any discrepancy in this regard, the evidence cannot be rejected only on this ground. [Kullu @ Masih v. State of M.P., AIR 2006 SC 831]
In Mohd. Firoz v. State of M.P., AIR 2022 SC 1967, the accused allegedly committed rape of deceased-victim aged 4 years after taken her into field. Deceased-victim was seen last together with the accused. Prosecution proved beyond doubt all circumstances individually and also proved circumstances forming a chain, so conclusive as to rule out possibility of any other hypothesis except guilt of the accused. It was held by the Supreme Court that the accused inflicted bodily injuries as mentioned in post-mortem report which cause her death. The Court pointed out that conviction of the accused by the trial court, which was affirmed by the High Court is proper.
3. Real and personal evidence. Real evidence is that evidence which is directly addressed to the senses of the Court. The seriousness of injuries may well be appreciated by the Court seeing the injured man. It encompasses the instruments used and the articles recovered from the scene of occurrence.
Example.-For example, in a murder trial, the instrument by which the murder is committed is brought into the Court-room for the inspection of the Court. This kind of evidence is addressed directly to the senses of the Judge. It is called real evidence. It is also called immediate evidence and, is considered to be a very satisfactory kind of evidence. Similarly, the Court can well appreciate the the seriousness of injuries by seeing the injured man.
Personal evidence is that evidence which is afforded by human agency. For example, A is charged with the murder of B. Witnesses come and dispose before the Court to the effect that they saw A killing B. Here the evidence reaches the Court through human agency which is perso is personal evidence.
4. Hearsay evidence. The word ‘hearsay’ is used in various senses. Sometimes, it means whatever a person is heard to say. Sometimes, it means whatever a person declared on information given by some one else. The term ‘hearsay’ is used with reference to what is done or written, as well as what is spoken, and in its legal sense it denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself but which rests also, in part, on the veracity and competence of some other person. This is that part of evidence which is not comig directly, rather it is coming through a secondary source to the witness for whom the incident has been a hearsay as he has himself not seen the incident herself.
Illustration- A files a complaint against B alleging that B attacked him with lathi, C is produced as a witness, C says that he did not see the occurrence himself but somebody told him. The credit of seeing the occurrence, in this case, does not go to the witness but it goes to somebody else. It is hearsay evidence.
Value of hearsay evidence. Sometimes, hearsay evidence is treated as nearly synonymous with irrelevant, the reason being the tendency of protecting legal investigation to an embarrassing and dangerous length. Further, its intrinsic weakness is its incompetency to satisfy the amount of existence of the fact, and the frauds which may be practised with immunity under its cover, therefore, the rule is that hearsay evidence is inadmissible.
In the case of Juggal Kishore v. Narayan Chandra, AIR 1982 Cal. 142 a person appeared to give evidence of a benami transaction between the plaintiff and the defendant of which he had heard from others. The Court did not entertain the evidence as it was not a direct one. Exceptions to hearsay evidence. There are some exceptions to the rule that ‘hearsay evidence is no evidence.
(1) Evidence of expert. This exception is provided in the proviso to Section 60 itself which provides:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.
The evidence of an opinion can be given by that person only who holds that opinion.
(2) Admissions and confessions. (Sections 17 to 31);
(3) Certain statements made by persons dead or who cannot be called as witnesses which include dying declarations, statements made in due course of business, statements against interest, statements giving opinion as to public rights or customs, statements relating to pedigrees (Section 32);
(4) Previous deposition of a witness who is a dead or cannot be called as witness (Section 33);
(5) Entries in books of account kept in the course of business (Section34);
(6) Entries in public registers or record (Section 35);
(7) Maps and Charts and plans (Section 36).
5. Primary evidence.- Primary evidence is that evidence which is called the best evidence or that kind of proof which under any possible circumstances affords the greatest certainty to the facts in question, and it is illustrated by the case of written document. Section 62 of the Evidence Act lays down, “Primary evidence means the ‘document’ itself produced for the inspection of the Court”. The instrument is regarded as the primary or best possible evidence of its existence and contents. The “document itself” means the original document. When it is produced, remains nothing better to be produced.
Illustration-A executes a sale-deed in favour of B for Rs. 1000. B files a suit for the possession of the property on the basis of the sale-deed mentioned above. A denies to have executed the sale deed. B produces the sale-deed before the Court. This is the primary evidence of the contents of the document.
6. Secondary evidence. According to Section 63, secondary evidence means and includes:
“(1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them
(5) Oral accounts of the contents of a document given by some person who has himself seen it.”
Illustrations (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it, was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is is secondary sec evidence of the original.
The secondary evidence is the document which is not original document but it includes those documents which are mentioned in Section 63.
Secondary evidence means inferior or substitutionary evidence which itself indicates the existence of more original sources of information.
7. Oral evidence. All statements which the Court permits or requires to be made before it by witness orally in relation to matters of fact under inquiry are called oral evidence. Oral evidence is the evidence which is confined to words spoken by mouth.
Oral evidence must be direct (Section 60). According to Section 60 of the Evidence Act, “Oral evidence must in all cases whatever, be direct, that s to say-
if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.
The aforesaid, makes, it clear that ‘hearsay evidence’ is not admissible and the rule is that ‘hearsay evidence is no evidence’.
Value of oral evidence
Every oral evidence requires proof in the Court of law. It needs corroboration from other evidence and is subject to rebuttal. It can be tested by cross-examination.
Oral evidence of a witness can be looked with suspicion only if it contradicts the previous statement. Where deposition is literally larger than Fardbeyan but it is nowwhere contrary to it and the deposition merely elaborated form of statement recorded before the police with minor contradictions, it is reliable evidence. [Sheikh Juman v. State of Bihar, AIR 2017 SC 1121]
So far as the value of the oral evidence is concerned, particularly in civil cases, Supreme Court has held in a case of Chaturbhuj Pandey v. Collector, Raigarh, AIR 1969 SC 255, that in assessing the value of the evidence, Judges are bound to call in aid their experience of life and test the evidence on the basis of probabilities. Evidence of only one party even when no evidence of rebuttal is led by opposite party need not necessarily be accepted.
A files a suit against B for defamation. The allegations in the plaint are that B said that A has committed theft in Calcutta. In this case, the witnesses who may come for A must say that B said in their presence that A committed theft and they heard it.
Appreciation of oral evidence. In Salveraj v. State of Tamil Nadu, AIR 1976 SC 1970, the conviction of the appellant rested on the oral testimony of the two prosecution witnesses, who claimed to be eye-witnesses to the murder of the deceased. Both the learned Additional Sessions Judge as well as the High Court relied on the evidence of these two witnesses. The Supreme Court held that ordinarily it would be loath to disturb the concurrent view taken by these Courts as regards the appreciation of their evidence. In this case, the Supreme Court found that there were inherent improbabilities in the story put forward by these two witnesses and the Supreme Court did not think it would be safe to act upon their uncorroborated testimony.
In B.K. Channappa v. State of Karnataka, AIR 2007 SC 432, the Supreme Court held-The evidence given by an eye-witness or injured witness cannot be termed as of interested witness. Where there is a long time gap in examining eye witness say after 5 years, it is bound to involve some discrepancy. Only on the basis of such defect, the evidence cannot be disbelieved so as to harm the substratum of prosecution case.
Testimony of injured witness that he sustained injuries on his right hand while rescuing the deceased which was corroborated by medical evidence cannot be disbelived. [Bhagirath v. State of M.P., AIR 2020 SC (Cri.) 287
The testimony of injured witnesses cannot be rejected only because they were partisan witnesses. At the most their statement should be examined with close scrutiny. [N.S. Yanadaiah v. State of A.P., AIR 1993 SC 1175]]
With the advent of technological and scientific advancements recording of witness through video conferencing and examination of witness through this process has been approved by the Supreme Court in civil cases. [State of Maharashtra v. Dr. Praful B. Desai, AIR 2003 SC 2053]. In criminal cases too, this process can be relied upon and the same has been approved by the Supreme Court in Bodala Murali Krishna v. Smt. S. Bodala Prathima, AIR 2007SC 43.
8. Documentary evidence. All documents produced for the inspection of the Court are called documentary evidence. It is the evidence which is based on documents and so it is the most reliable source of evidence provided the documents are genuine.
The expression ‘document’ has been defined in Section 3 of the Evidence Act in these words: “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 :-
(a) A writing is a document;
(b) Words printed, lithographed or photographed are documents;
(c) A map or plan is a document;
(d) An inscription on a metal plate or stone is a document;
(e) A caricature is a document.
The most common document with which we have to deal is a document which is described by letters.
Document-How to prove. The contents of a document may be proved in two ways:
(1) by primary evidence; or
(2) by secondary evidence in exceptional cases.
9. Conclusive evidence.- ‘Conclusive evidence’ is the evidence, where the connection between the principal fact and evidentiary fact is a necessary consequence of the law of nature. This evidence does not leave any iota of doubt for its rebuttal. Hence the matter stands conclusively proved by this kind of evidence. In such case, no evidence, further probe or support or corroboration is required or necessary.
Q. 1 (b). Can a person be convicted merely on the basis of circumstantial evidence? Examine with examples. Also distinguish between direct and circumstantial evidence.
Ans. Circumstantial evidence. Circumstancial evidence is resorted to when direct evidence is not available. Certain offences are committed in such places and manner that it is difficult to find any direct evidence thereof. In fact, circumstantial evidence is that which relates to a series of other facts than the fact-in-issue; but it is found so associated with the fact-in-issue in relation of cause and effect that it leads to a satisfactory conclusion. Circumstantial evidence is not to be confused with hearsay or secondary evidence. The circumstantial evidence is always direct and primary, i.e., the facts from which the existence of the fact in issue to be inferred must be proved by direct evidence.
An example can be given of footprints which are found on sand through which it can be inferred that some animate being has gone that way and also from the shape of footprints it can be ascertained as to whether those are of a man or of a bird or of an animal. Similarly, from the circumstantial evidence. the fact-in- issue is inferred.
Illustration-In a trial of the accused under Sections 377 and 302, I.P.C. for having committed sodomy and thereafter having murdered a boy, there was no evidence to the effect that any person saw the accused committing the crime. The only evidence led in the case was :
(i) That the accused was seen with the boy going towards the place where the dead body was found at two stages of the journey.
(ii) After the alleged murder he was seen without the boy near the place where sodomy was committed and dead body was found.
(iii) He pointed out the dead body that was recovered in consequence of his pointing out.
All these evidence are circumstantial evidence. Since there was no direct evidence, from the facts mentioned above, it may be inferred that the accused committed the crime mentioned above.
In Meria Venkata Rao v. State of A.P., AIR 1994 SC 470, the Supreme Court held-In the case of circumstantial evidence, all the circumstances should be established by independent evidence and they should form a complete chain, bring home the guilt of the accused without giving room to any other hypothesis. In this case, the prosecution case rested on extra-judicial confession as one of the circumstance and the accused deposed his guilt of alleged crime twenty days after the incident, the possibility of confession at the instance of police could not be ruled out. The giving of extra-judicial confession was doubtful. Therefore, the conviction was set aside.
In the State of Maharashtra v. Bharat Fakira Dhiwar, AIR 2002 SC 16, the Supreme Court held-Where all the circumstantial evidence clearly and unerringly pointed to the guilt of the accused and the circumstances strongly lent the support to the evidence of child witness, ignoring and brushing aside those circumstance by the High Court and acquitting the accused was not proper.
Conviction on the basis of circumstantial evidence
There must be 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. [Hanumant Govind Nargundkar and another v. State of M.P., AIR 1952 SC 343].
In Pandurang Patil v. State of Maharashtra, AIR 2004 SC 3562, it was held that it is not necessary in all cases that the commission of crime be proved by ocular evidence by examining before the Court those persons who have seen the commission of crime. The principle of factum probandum (factum probandum refers to the ultimate fact to be proven or the proposition to be established) )may be proved indirectly by means of certain inferences drawn from factum probans, i.e., through evidentiary facts.
In Kalua v. State of U.P., AIR 1958 SC 180, Kalua was charged with the murder of deceased by shooting him with a pistol. The circumstantial evidence proved were:
(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) the Fire arm expert gave his opinion that the cartridge found near the cot of the dead body was fired from the pistol produced by the accused.
The Court held that there could be no room for thinking in the circumstances established in this case, that anyone else other than the accused might have shot the deceased. He was convicted.
Want of explanation. Certainly, in case of circumstantial evidence various links in the chain of evidence should be clearly established and the completed chain should be such as to rule out the reasonable likelihood of the innocence of the accused. But in case where the various links have been satisfactorily made out and the circumstances point to the appellant as the probable assailant with reasonable definiteness and in proximity to the deceased as regards time and situation and he offers no explanation which if accepted, though not proved would afford reasonable basis for conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain.
In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, the Supreme Court held-It is now well settled that in a case where an offence is said to have been established on circumstantial evidence alone, indisputably all the links in the chain must be found to be complete in the following terms:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and ‘not may be established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency,
(4) They should exclude every possible hypothesis except the one to be proved, and
(5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
Distinction between direct and circusmtantial evidence.- An evidence is direct if, to act upon it. the Court has to rely upon only the witness, whereas circumstantial evidence is indirect evidence. Circumstantial evidence is proof of one or more facts from which another fact may be found. Circumstantial evidence is the evidence, which is based on circumstances or incidents, which do not directly prove a fact, but they (i.e., circumstances or incidents) point out the guilt of an accused indirectly by linking the chain of events to arrived at the final conclusion.
Both direct evidence and circumstantial evidence have equal importance in the eye of law.