II – WORKSHOP

KRISHNA DISTRICT

TOPIC - III

RECORDING OF EVIDENCE - RELEVANCY,

ADMISSIBILITY AND APPRECIATION OF
EVIDENCE

S.No Name of the Officer Page Number

Smt. G.Anandi,
1. III Additional Senior Civil Judge, 1-10
Vijayawada
Sri Kumar Vivek,
2. Senior Civil Judge 11-23
Nandigama
Sri K.Guru Aravind,
3. II Addl. Judicial Magistrate of I Class 24-37
Machilipatnam
Smt Gogi Kalarchana,
4. Addl. Junior Civil Judge, 38-49
Jaggaiahpet
Smt. BMR Prasanna Latha,
5. Addl. Junior Civil Judge, 50-56
Tiruvuru.
Sri S.Vijaya Chandar,
6. Junior Civil Judge, 57-64
Bantumilli
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Paper Presented by
Smt. G.Anandi,
III Additional Senior Civil Judge,
Vijayawada.

What is Evidence:
Evidence is factual knowledge or data that lends support to or casts
doubt on the hypothesis – Morris
The term “evidence” means and includes —
(i) Oral evidence — i.e., all statements which the Court permits or requires to
be made before it by witnesses, in relation to matters of fact under inquiry; and
(ii) Documentary evidence — i.e., all documents, including electronic records,
produced for the inspection of the Court.
The above definition of the term “evidence” is not a complete definition.
Evidence, thus defined, is not the only medium of proof; in addition to it, there
are a number of other matters like the demeanor of a witness, which the Court
has to take into consideration when forming its conclusion. In appropriate
situations the Judge is duty bound to record the demeanor of the witness
which forms a basis while assessing his evidence at all levels.
Bentham defines evidence as “any matter of fact, the effect, tendency or
design of which, when presented to the mind, is to produce in the mind, a
persuasion concerning the existence of some other matter of fact — a
persuasion either affirmative or dis-affirmative of its existence.”
Taylor uses the word evidence to mean “all the legal means, exclusive of
mere argument, which tend to prove or disprove any fact, the truth of which is
submitted to judicial investigation”.
A fact is said to be proved, when, after considering the matter, the Court
either believes it to exist, or considers its existence so probable that a prudent
man, ought to act, upon the supposition that it exists. A fact is said to be
disproved, when after considering the matter before it, the Court either believes
that it does not exist or considers its non existence so probable that a prudent
man, ought to act, upon the supposition that it does not exist. A fact is said to
be 'not proved' when it is neither proved nor disproved. Test of proof is the test
of probabilities upon which a prudent man may base his opinion. In a criminal
case, the prosecution has to discharge the burden to a greater degree in proof,
beyond all reasonable doubt. The presumption is that the accused is innocent
till the contrary is clearly established. The burden of proof that the accused is
guilty normally is always on the prosecution, except when there is specific
Legislation.
Relevancy and Admissibility of Evidence:
All admissible evidence is relevant but all relevant evidence is not
admissible. Relevancy is the genus of which admissibility is the species.
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‘Fact’ means an existing thing, event or action. The event or fact which is likely
to occur in future and which neither occurred in the past nor is occurring at
present, do not amount to ‘fact’ within the meaning of the Evidence Act.
According to Section 3 of the Act:
Relevancy - One fact is said to be relevant to another when the one is
connected with the other in any of the ways referred to in the provisions of this
Act relating to the relevancy of facts.
Section 5 to 55 of the Evidence Act deals with those facts which are relevant
and which can be allowed to be taken into evidence.
Section 5: Evidence may be given of facts in issue and relevant facts –
Evidence may be given in any suit or proceeding of the existence or non-
existence of every fact in issue and of such other facts as are hereinafter
declared to be relevant, and of no others.
Section 6 -Relevancy of facts forming part of same transaction: Res
Gestae
“Facts which, though not in issue, are so connected with a fact in issue
as to form part of the same transaction, are relevant, whether they occurred at
the same time and place of at different times and places”
Earliest case law is R vs Foster in the year 1843: Accused was charged with
manslaughter in killing a person by driving over him. A witness saw the fast
moving vehicle but did not see the accident. Immediately after hearing the cries
of the victim, he went up to him and asked him about the incident. The
deceased then made a statement as to the cause of the injury. The court held
that what the deceased stated about the cause of the accident is clearly
admissible and connected to the same transaction.
EXPANSION OF THIS DOCTRINE
Courts have slowly broadened the scope of this section to cases like
domestic violence, child witness etc.
Domestic violence and assault cases necessarily involve a startling event;
they often include the issue of excited utterances. In these cases it is only
victims who can identify the alleged culprit. So such testimony of the victims
must be admitted. In India, women may not react just after the crime of rape or
sexual violence because they are under the influence of such gruesome event
that they do not respond immediately. It is possible that they respond after a
day or two but such statement spoken can still be admitted under res gestae. If
it can be proved that victim was still under the stress of shock then such
statement can be admitted. Usually cases of rape take place in isolation. So
there is no eye witness to such event. Rape and domestic violence cases are
different than any other crime.
In Bishnavs State of West Bengal, AIR 2006 SC 302 at p. 309 para 27
where the two witnesses reached the place of occurrence immediately after the
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incident had taken place and found the dead body of Prankrishna and injured
Nepal in an unconscious state. One of them found the mother of Prankrishna
and Nepal weeping and heard about the entire incident from an eye-witness
and the role played by each of the appellants, their testimony was held to be
admissible under section 6 of the Evidence Act.
Section 8. Motive preparation and previous or subsequent conduct
The word “conduct” in this section does not include statements, unless those
statements accompany and explain acts other than statements; but this
explanation is not to affect the relevancy of statements under any other section
of this Act. Explanation 2.—When the conduct of any person is relevant, any
statement made to him or in his presence and hearing, which affects such
conduct, is relevant.
Illustrations:
(a) A is tried for the murder of B. The facts that A murdered C, that B knew
that A had murdered C, and that B had tried to extort money from A by
threatening to make his knowledge public, are relevant.
(b) A sues B upon a bond for the payment of money. B denies the making of the
bond. The fact that, at the time when the bond was alleged to be made, B
required money for a particular purpose is relevant.
(c) A is tried for the murder of B by poison. The fact that, before the death of B,
A procured poison similar to that which was administered to B, is relevant.
Section 9. Facts necessary to explain or introduce relevant facts
Illustrations
(c) A is accused of a crime. The fact that, soon after the commission of the
crime, A absconded from his house, is relevant, under section 8, as conduct
subsequent to and affected by facts in issue. The fact that, at the time when he
left home, he had sudden and urgent business at the place to which he went, is
relevant, as tending to explain the fact that he left home suddenly. The details
of the business on which he left are not relevant, except in so far as they are
necessary to show that the business was sudden and urgent.
(e) A, accused of theft, is seen to give the stolen property to B, who is seen to
give it to A's wife. B says, as he delivers it—" A says you are to hide this”. B's
statement is relevant as explanatory of a fact which is part of the transaction.
(f) A is tried for a riot and is proved to have marched at the head of a mob. The
cries of the mob are relevant as explanatory of the nature of the transaction.
Section 11: When Facts not otherwise relevant become relevant
Even though the facts are inconsistent but they are connected with other
fact proving existence or non existence of fact in issue are relevant
Inconsistent Facts: the first part of the section deals with facts are inconsistent
with facts in issue or relevant facts. These are common illustrations with
regard to inconsistent facts are
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Eg: Alibi, absence or non access of husband, survival of deceased person after
supposed time of death, commission of crime by a third person, self infliction of
harm alleged
Facts affecting the probability: the second part of the section deals with facts
either by itself or in connection with the other facts making the existence or
nonexistence of facts in issue or highly probable or improbable are relevant.
Illustrations
(a) The question is, whether A committed a crime at Calcutta on a certain day.
The fact that, on that day, A was at Lahore is relevant. The fact that, near the
time when the crime was committed, A was at a distance from the place where
it was committed, which would render it highly improbable, though not
impossible, that he committed it, is relevant.
(b) The question is, whether A committed a crime. The circumstances are such
that the crime must have been committed either by A, B, C or D, every fact
which shows that the crime could have been committed by no one else and that
it was not committed by either B, C or D, is relevant.
Section 17. Admission defined
It states that the statement must be oral or documentary which suggest
any fact in issue are relevant fact.
Section 19. Admissions by persons whose position must be proved as
against party to suit
Admissions should be made by only parties to the proceedings and not
by strangers. Their statement is not relevant, section 19 of the Act is an
exception to this principle. Stranger can make admissions and their statement
is relevant and admissible.
Section 27 How much of information received from accused may be
proved
Section 27 is an exception to the principle under section 25.
When an accused is in the custody of police officer given the information
on the basis of information if the police officer discovered the material object to
that part is relevant and admissible.
Section 32. Case in which statement of relevant fact by person who is
dead or cannot be found, etc. is relevant
The evidence given by oral testimony should be of direct evidence.
Hearsay evidence is no evidence but this section is an exception to such rule.
Statements made by persons who cannot be called as witnesses. A
person who is dead, who cannot be found, who is incapable of giving evidence
such person statement is relevant and admissible.
LORD LUSH – “A dying declaration is admitted in evidence because it is
presumed that no person who is immediately going into the presence of his
Maker, will do so with a lie on his lips. But the person making the declaration
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must entertain settled hopeless expectation of immediate death. If he thinks he

will die tomorrow it will not do.
Kushal Rao vs The State Of Bombay on 25 September 1958 AIR 22,
1958 SCR 552: The Supreme Court Of India accordingly states that the court
must be satisfied that the deceased was mentally fit to make the statement.
And victim had the opportunity to observe and identify the accused. The victim
should not be making the statement under any influence. Also, Supreme Court
of India held that once the court is satisfied that the dying declaration is true,
the conviction can be upheld and there is no need for further corroboration.
LORD EYRE, C.B., also held that “The principle on which this species of
evidence is admitted is, that they are declarations made in extremity, when the
part is at the point of oath, & when every hope of this world is gone; when
every motive of falsehood is silenced, & the mind is induced by the most
powerful consideration to speak the truth; a situation so solemn & awful is
considered by law as creating an obligation equal to that which is imposed by a
positive oath administered in the court of justice.”
Section 45. Opinions of experts
Generally the court will not take the opinion of the third parties or
persons. The Judge is not expected to be an expert in all the fields - especially
where the subject matters involves technical knowledge. He is not capable of
drawing inference from the facts which are highly technical. In these
circumstances he needs the help of an expert - who is supposed to have
superior knowledge or experience in relation to the subject matter. This
qualification makes the latter's evidence admissible in that particular case
though he is no way related to the case. Because an expert has an advantage of
a particular knowledge vis-a-vis a judge who is not equipped with the technical
knowledge and hence not capable of drawing an inference from the facts
presented before him.
Section 46. Facts bearing upon opinions of experts
Facts not otherwise relevant if they support or inconsistent with opinion of
experts such opinions are relevant.
Section 53. In criminal cases, previous good character - relevancy
No doubt good character is a good defense, but it is a very weak
evidence; it cannot outweigh positive evidence in regard to the guilt of a person.
In doubtful case it is rule that the accused may take the plea of possessing
good character, otherwise every accused will take the plea.
Section 53A of the Evidence Act,1872-
Evidence of character or previous sexual experience not relevant in
certain cases.- In a prosecution for an offence under section 354, section
354A, section 354B, section 354C, section 354D or section 376, section 376A,
section 376B, section 376C, section 376D or section 376E of the Indian Penal
 6

Code (45 of 1860) or for attempt to commit any such offence, where the
question of consent is in issue, evidence of the character of the victim or of
such person's previous sexual experience with any person shall not be relevant
on the issue of such consent or the quality of consent.
Appreciation of Evidence:
The definition of ‘evidence’ as per Section 3 of the Indian Evidence Act
1872 covers a) the evidence of witnesses and b) documentary evidence.
Evidence can be both oral and documentary. Electronic records can also be
produced as evidence. In criminal case, the prosecution has to prove the
charge beyond all reasonable doubt. The presumption is that the accused is
innocent until the contrary is clearly established. One has to appreciate the
evidence in proper perspective and reach a conclusion. It is no quantity of
evidence but the quality that matters.
In a criminal case appreciation of evidence is one of the first and primary
tests to consider the trustworthiness and consistency of the prosecution
version both oral and documentary. The finding of the facts, the question of law
and the conclusion of the Judges of the Court culminating into the judgments
in a criminal case mainly based on the appreciation of evidence. Right from
setting the law in motion in a criminal case by preferring FIR and after
completion of investigation filing the final report ultimately resulting in
producing and adducing the evidence before the Court consist varied kinds of
evidence both oral and documentary and the admissibility and reliability of
such evidence should be considered by the Court on the basis of the facts and
law for arriving at the just decision of the case. Therefore, appreciation of
evidence is the heart and soul of the justice delivery system in criminal law.
Criminal cases involves life and liberty of the individual and the destiny of the
citizen is to be decided by carefully analyzing and examining the evidence
adduced by the prosecution.
Appreciation of evidence involves weighing the credibility and reliability
of the evidence presented in the case. In criminal cases, the burden of proving
the guilt of an accused is upon the prosecution. It must stand by itself.
Essentially, accused need not establish his case beyond all reasonable doubt.
Of course, in some cases, where the burden of proof relating to a fact in issue
in a case is on the accused, the stand of proof required of him is not the same
as is required from the prosecution. The law always requires that the
conviction should be certain and not doubtful. If the evidence on record
establishes the truth of the charge and satisfies the reason and judgment of the
Court such evidence must be taken to have proved the charge beyond all
reasonable doubt justifying conviction.
In the case of State of Gujarat Vs. Bharwad Jakshibhai and others,1990
CrLJ 2531, the Hon'ble Supreme Court held as follows:
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“For appreciating the evidence of the injured witnesses the Court should bear
in mind that :
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely
the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution
and it cannot be doubted merely on some supposed natural conduct of a
person during the incident or after the incident because it is difficult to imagine
how a witness would act or react to a particular incident. His action depends
upon number of imponderable aspects.
(4) If there is any exaggeration in their evidence, then the exaggeration is to be
discarded and not their entire evidence.
Harbhajan Singh vs State Of Punjab: 1966 AIR 97
Where accused claims exemption under a general exception or a special
exception under Penal law, it will be sufficient if he succeeds in proving
preponderance of probabilities. In this connection, it may be relevant to refer to
the observations made by Hon’ble Supreme Court held in Harbhajan Singh’s, it
was observed that where an accused person is called upon to prove that his
case falls under an Exception, law treats the onus as discharged if the accused
person succeeds “in proving a preponderance of probability.” As soon as the
preponderance of probability is proved, the burden shifts to the prosecution
which has still to discharge its original onus. It must be remembered that
basically, the original onus never shifts and the prosecution has at all stages of
the case, to prove the guilt of the accused beyond a reasonable doubt.
It can be concluded that the appreciation of evidence on the basis if
relevant evidence is proved must be admitted cautiously as it involves the life of
parties where in case of Civil cases if the case is proved with probabilities then
such evidence can be taken into consideration but in case Criminal case the
evidence can be admitted only if proved beyond reasonable doubt and even a
small doubt it should be given benefit of doubt to the accused.
“Rohstash Kumar Vs. State of Haryana 2013 (2) A.L.D. (Crl.) 806 S.C.”--
Apex Court held that it is settled legal proposition that while appreciating the
evidence of witnesses, minor discrepancies in trivial matters, which do not
effect the core case of the prosecution, must not prompt the Court to reject the
entire evidence in its entirely.
In Dr.Praful B.Desai Vs State of maharastra 2003(4) Scc 601, the
Apex court held that, a video conferencing can be used to record the evidence
of a witness.
In Save life foundation and another Vs Union of India and Another
(2016(3) ALT 17 (DNSC)), it was held that in accident cases, the method of
examination of a witness (bystander or good samaritan) may be either be by a
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way of Commission under Sec.284 of the code or formally on affidavit as per

sec.296 of code or Video conferencing may be used extensively to record the
evidence of a witness who is an eye witness in order to prevent harassment and
inconvenience to good samaritans.
In Orilal Jaiswal’s case (AIR 1994 SC 1418), the Hon’ble Apex Court
explained the standard of proof saying that ‘the doubt must be of a reasonable
man and standard adopted must be standard adopted by a reasonable and just
man.’
In Bipin Kumar Mondal Vs. State of West Bengal (2010 (12) SCC 91),
it was held that it is not the quantity but the quality that is material. The
principle is evidence has to be weighed and not counted. The test is whether
evidence has ring of truth, is cogent, credible, trust worthy and reliable. The
same principles also discussed by the Hon’ble Supreme Court in recent
judgment, in 2014 (1) ALT Crl. Page 151 SC.)
In Rohtash Kumar Vs. State of Haryana, (2013 (2) ALD Crl. 806 SC=
AIR 2013 SC Crl. 1544), it was held that it is settled legal proposition that
while appreciating the evidence of witness, minor discrepancies on trivial
matters which do not affect the core case of the prosecution must not prompt
the court to reject the entire evidence in its entirety.
In Md. Ishaque and others Vs. State of west Bengal and others, (2013
(2) ALT Crl. 1496 SC) it was held that interested evidence is not necessarily
unreliable.
In Guiram Moda Vs. State of West Bengal, (2013 (2) Crl. 352 SC) was
held that evidence of relatives can be acted upon if reliable and trustworthy
and cannot be discarded on the ground of relationship. In the said judgment, it
was held by the apex Court that “In our view merely because a witness is a
relative of the deceased is not a reason for discarding his evidence. Many a
time, strangers will not come forward to depose as witnesses, even if they have
witnessed the crime. Further, the possibility of influencing such witness is
also not uncommon”.
In Ganesh Vs. State of Karnataka and others, (2009 (2) ALT Crl. 257
SC), it was held that ‘the maxim falses in uno falses in omnibus which means
false in one thing, false in every thing’ is merely a rule of caution. As a rule of
universals application, it cannot be said that when a portion of prosecution
evidence is discarded as unworthy of credence, there cannot be any conviction.
In Anwar P.V. Vs P.K.Basheer & others (AIR 2015 SC 180), the Apex
court held that in case of electronic evidence, Source and authenticity are the
hall marks for ascertaining such electronic evidence.
In Rammi @ Rameshwar Vs. State of M.P in (1999) 8 SCC 649 : It is
only the serious contradictions and omissions which materially affect the case
of the prosecution but not every contradiction or omission.
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In C. Muniappan and Others vs. State of Tamil Nadu, (2010) 9 SCC

567, Hon'ble Supreme Court explained the law regarding the defective
investigation, in the following manner: "There may be highly defective
investigation in a case. However, it is to be examined as to whether there is any
lapse by the IO and whether due to such lapse any benefit should be given to
the accused.
Gangabhavani Vs. Rayapati Venkat Reddy & Ors., (2013) 15 SCC
298; Jodhan Vs. State of M.P., (2015) 11 SCC 52: The evidence cannot be
disbelieved merely on the ground that the witnesses are related to each other
or to the deceased. In case the evidence has a ring of truth to it, is cogent,
credible and trustworthy, it can, and certainly should, be relied upon.
In Shivaji Sahebrao Bobade & Anr. Vs. State of Maharashtra, (1973)
2 SCC 793, Hon'ble Sri Justice V.R. Krishna Iyer, J., stated thus: "The
cherished principles or golden thread of proof beyond reasonable doubt which
runs through the web of our law should not be stretched morbidly to embrace
every hunch, hesitancy and degree of doubt. The excessive solicitude reflected
in the attitude that a thousand guilty men may go but one innocent martyr
shall not suffer is a false dilemma. Only reasonable doubts belong to the
accused. Otherwise, any practical system of justice will then break down and
lose credibility with the community."
The following are some of the practices to be adopted by the judges
while evaluating the evidence and recording findings:
1. The proof of each material facts lies in corroboration. Proof means full
proof only. There is nothing like part proof in criminal law.
2. Evidence is to be weighed and not counted.
3. The charge must be proved beyond reasonable doubt.
4. The burden of proof totally rests on the prosecution. The court shall not
assume anything against the accused. He/she continues to be treated as
innocent till the conclusion of trial. In few circumstances the burden of proof
shifts on accused. Eg: Offences under Dowry Prohibition Act, POCOSO Act,
Negotiable Instruments Act, General Exceptions, etc.,
5. In cases where only circumstantial evidence is the evidence available, the
circumstances proved must clinchingly establish the guilt of the accused. The
circumstantial evidence must be consistent, continuous without break in links.
6. Statement of witnesses given under Sec. 162 shall not be read except for
contradicting the witness.
7. Evidence of hostile witnesses does not have any greater value that of
witnesses contradicting themselves.
8. Whole evidence is to be considered.
9. Judge should scrutinize the evidence of prosecution and defence witness
with one standard.
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10. Evidence of interested witness should be examined with caution.

11. Expert evidence though relevant, is not conclusive. The court shall not
simply adopt it but necessarily give an independent finding.
12. Status of witness shall not be a criterion in assessing the reliability of the
evidence.
13. Cogency, consistency, knowledge, memory and ability of the witness will
go a long way in assessing the credibility of the witness.
14. The court shall not search for contradictions and collect all relevant and
irrelevant contradictions.
15. The court shall not brand a witness as untrustworthy and reject his
evidence but consider the evidence on its merits.
16. Mere marking of documents is not enough. It has to be proved. Marking
is only for the purpose of identification.
17. There should be no ambiguity in the conviction. Correct sections of the
Penal Code should be specified.
18. There should be a proper narration of facts, appreciation of all Evidence
without omissions and all the findings given must be based on reason.
Conclusion:
Appreciation of evidence is a matter of experience and knowledge of
human affairs. It is a delicate task to be carried out by Judges for weighing
evidence and drawing inferences. Each case presents its own peculiarities.
Common sense and dexterity are also part of the tools. The correct method of
appreciation and assessing evidence of a witness is by scrutinizing it on merits
and ascertain the truth to render justice to the litigants. Judges have to use
their own skills, experience, natural faculties and appreciate the evidence
taking the aid of provisions of Evidence Act, precedents rendered by the
Hon’ble Supreme Court and Hon’ble High Courts and appreciate the evidence
in correct perspective with an ultimate object that neither innocents be
punished nor culprits be escaped in any Criminal Case.
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Paper Presented by
Sri Kumar Vivek,
Senior Civil Judge
Nandigama.
Section 3 of Indian Evidence Act defines evidence as follows meaning and
including,-
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.
In the authority reported between Sivrajbhan v. Harchandgir in AIR
1954 SC 564 Hon’ble Supreme Court of India held ‘The word evidence in
connection with Law, all valid meanings, includes all except agreement which
prove disprove any fact or 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’.
Recording of Evidence
Recording of evidence should be confined to relevant fact and fact in issue in
view of section 5 of the Indian Evidence Act. Section 136 of the Indian
Evidence Act empowers the Court to decide the admissibility of evidence
sought to be adduced by the party. Section 118 of Indian Evidence Act
declares a child witness, infirm persons as competent witnesses but their
competence to testify is subject to satisfaction of the Court they have
intellectual capacity to understand the question and give rational answers to
them. Under section 119 of the Indian Evidence Act the evidence of dumb
witness can be recorded through his signs and gestures. The Court is required
to adhere the mandate of sections 120 to 129 of the Indian Evidence Act
when evidence is sought to be adduced in respect of matrimonial, official, and
professional communications.
Recording of evidence as contemplated in the Criminal Procedure Code:
Section 272 of the Criminal Procedure Code empowers the State
Government to determine the language of the subordinate Courts.
Section 273 of the Criminal Procedure Code provides that all evidence in the
enquiries and trial should, except as otherwise expressly provided, be taken in
the presence of the accused. The exceptions to this rule are contending the
sections 205, 291, 292, 293, 299, and 317 of the Criminal Procedure Code. For
other exceptions to this rule, reference may be made to the provisions of
sections 32 and 33 of the Indian Evidence Act, and section 17 of the
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Extradition Act. The rule enacted in section 273 of the Criminal Procedure
Code, subject to the exceptions enumerated above, is imperative that all
evidence in any enquiry or trial shall place in the presence of the accused. The
trial of an accused in his absence cannot be held to be null and void if his
attendance is dispensed with by the court on his own application and if he is
represented by a pleader of his choice during such absence as held in AIR
1951 All 864. The expression ‘all evidence’ in the section means evidence of
the prosecution as well as of the defence. While evidence is being taken, not
only must the accused be present but he must be given an opportunity to cross
examine the witnesses. Denial of such opportunity vitiates the trial, even if
counsel of the accused has consented to it as held in Sikraj vs. State of
Rajasthan reported in 1967 CrLJ 1702. Magistrate should take and attest a
deposition in the presence of the accused and should also by the use of a few
apt words on the face of the deposition, make it apparent that that deposition
was taken in the presence of the accused. In every fresh trial, the witness must
be examined de novo in the same manner as if the case were entirely new and
the witnesses had not been examined before. The reading of the sworn
statement of the complainant though in the presence of the accused is not
enough for treating it as examination in chief. In the trial of two cross
complaints, when the prosecution evidence in each was taken as defence
evidence in the other, it amounts to letting in evidence in the absence of the
accused and violates, section 273 of the Criminal Procedure Code. Therefore,
where there were two separate cases, in each of which the evidence was
recorded separately and the accused persons were convicted by the trial court,
but on appeals the Sessions Court freely imported the evidence in one case into
another, and did not deal with the evidence in each case separately, the
procedure adopted was held to be illegal in the authority reported in 1955
AnWR 770.
Section 274 of the Criminal Procedure Code prescribes a briefer recording of
the evidence of the witnesses in summons cases falling under section 260 of
the Criminal Procedure Code, in all the enquiries under sections 145 to 148
and in all the proceedings under section 446 of the Criminal Procedure Code.
Section 274 of the Criminal Procedure Code does not require that the evidence
of the witnesses should be read over to them in a case triable summarily. It is
the duty of the Magistrate under section 274 of the Criminal Procedure Code to
take down the substance of the evidence of each witness & sign the record.
Section 275 of the Criminal Procedure Code provides that the Magistrate
will take down the evidence of each witnesses in warrant cases in writing
either with his own hand or from his dictation in open court or cause it to be
taken in presence and hearing, and under his personal direction and
superintendence if he is unable to do so due to physical or other incapacity, in
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the form of narrative, or in his discretion any part of such evidence in the form
of question and answer, and then sign the same. The statements of the
witnesses should be taken down in full and not compressed. The evidence of
the witness has to be recorded as it is given by the witness and it is not
sufficient compliance with section 275(1) of the Criminal Procedure Code to
record that one witness corroborates another. When a Magistrate dis-allows an
important question on the ground of irrelevancy or on other grounds during the
course of cross-examination, it may be useful to the magistrate note the
question and his reasons for dis-allowing it as held in AIR 1920 Pat 25.
Recording the evidence in indirect form of the speech is quite an improper
procedure as held in AIR 1958 Mys 1.
Section 276 of the Criminal Procedure Code provides that the sessions
judge will take down the evidence of each witnesses in writing either with his
own hand or from his dictation in open court, or under his personal direction
and superintendence in the form of narrative to a, or in his discretion any part
of such evidence in the form of question and answer, and then sign the same.
Section 277 of the Criminal Procedure Code provides recording of the
evidence of the witness in the language of the court if given in that language, or
in a different language other than in the language of the court if given by the
witness in the different language, and where it is not practicable to take down
such evidence in the different language then a true translation of the statement
of the witness in the language of the court has to be prepared, and signed by
the court. The provisions of section 277(b) of the Criminal Procedure Code only
relate to the oral evidence adduced in the case and not a documentary evidence
as held by the Hon’ble Supreme Court in AIR 1963 SC 1850.
Section 278 of the Criminal Procedure Code provides for reading over the
evidence of each witness to the witness in the presence of the accused, if in
attendance, or of his pleader, and to be corrected, if necessary, and where the
witness denies the correctness of any part of his evidence then the court
should make a memorandum of such objection and add appropriate remarks,
instead of correcting the evidence, and where the evidence of the witness has
been recorded in the language of the court in which it was not given by the
witness and the witnesses unable to understand the language of the court,
then the evidence has to be interpreted to the witness in the language it was
given by him, or in other language understood by him. The object of this
section is to ensure accuracy in recording the evidence given by the witness
and to give him an opportunity to correct any mistakes made by the court or
the clerk of the court. It is significant to note that section 278 of the Criminal
Procedure Code to not prescribe reading over that the deposition to the witness
within the hearing of the accused. This section is not applicable to the
deportation of the witness reported in summons case or in cases triable
 14

summarily. In AIR 1952 SC 214 the Hon’ble Supreme Court has held that the
object of reading over the deposition to the witness is not to enable the witness
to change his story but to ensure that the record faithfully and accurately
embodies the gist of what witness actually said. The evidence of a witness is
ordinarily completed when he has been examined in chief, cross-examined, and
if necessary, re-examined. ‘By the completion of evidence’ words in the section
is not meant what the witness the deposition was on a particular day.
Therefore, wherever witnesses are examined in chief on one day, and cross-
examined on the another day, and his a whole evidence is read over to him
after cross-examination, it is read over ‘as it is completed’ within the meaning
of the section. It is not necessary that the deposition should be read over to the
witness after the examination in chief is over as there is nothing in section 278
of the Criminal Procedure Code to indicate exact time whether the deposition
should be read over, it fulfils the requirements of the section which is to give an
opportunity to the witness to explain are correct the statement made by him.
Once it is established that the record of the deposition is correct, the witness
cannot escape the consequences of the law merely the ground that the
procedure contemplated in section 278(1) of the Criminal Procedure Code, as to
the reading over and interpreting the deposition to the witness has not been
complied with as held in Jogendra Singh vs. State of Bihar reported in 1968
CrLJ 213. The mandate of section 278(1) of the Criminal Procedure Code is not
complied with in terms of by giving the witness an opportunity of reading it
over to himself except to a witness who is stone–deaf person.
Section 279 of the Criminal Procedure Code provides for interpretation of
the evidence of the witness to the accused or his pleader when evidence is
given by a witness in a language not understood by the accused all his pleader.
The procedure indicated under section 279(1) of the Criminal Procedure Code
cannot be applied to the deaf-mute accused and the evidence of the witness to
such accused can be made understand by the signs and gestures. The evidence
of the witness under this section has to be interpreted to the accused or his
pleader, who doesn’t understand the language of the court, into their own
language, and to ensure compliance of the mandate of this section the court
may order for taking services of a sworn interpreter. However, it has to be
ensured that the interpreter must be a person other than the witness was
evidence is to be interpreted. The Hon’ble Supreme Court in Shivnarayana
Kabra vs. State of Madras reported in AIR 1967 SC 986 violation of section
279 of the Criminal Procedure Code is merely an irregularity if it is not shown
that there is any prejudice caused to the accused on this account when he is
represented by two eminent advocates in the trial court who knew the
languages. Section 279 of the Criminal Procedure Code also confers a right on
 15

the accused to have all or any part of a document used on his trial to be
translated or interpreted to him.
Section 280 of the Criminal Procedure Code prescribes for recording remarks
about the demeanour of the witness whilst under examination. Recording a
remark about the demeanour of a witness is different from recording a remark
or opinion about the substance of the deposition of that witness like ‘the
witness falters and from his demeanour it appears that he has not told the
truth’, as it tantamount to prejudice the case of the party concerned.
Section 284 of the Criminal Procedure Code provides for issuance of
commission for the purpose of recording the examination of the witness in case
of delay, inability or inconvenience. In the authority reported in AIR 1957 SC
594 the Hon’ble Supreme Court held that that as a general rule in a criminal
proceeding, the important witness on whose testimony the case against the
accused is to be established, must be examined in court and issuing of
commission should be restricted to formal witnesses or such a witness whose
presence cannot be secured without unnecessary delay or inconvenience.
The procedure for recording evidence in absence of the accused has been laid
down in section 299 of the Criminal Procedure Code. The object of section
299 of the Criminal Procedure Code is to procure and preserve the evidence so
as to prevent its loss.
Recording of evidence as contemplated in the Criminal Rules of Practice:
Rule 51 of the Criminal Rules of Practice requires the Sessions Judge and
Magistrates to themselves administer oath to the witness or the interpreter.
Rule 52(1) of the Criminal Rules of Practice prescribes the formats for
administering oath to the witness, interpreter and deponent to an affidavit.
Sub-rule 3 provides for recording of the finding by the Court in case of child
witness below 12 years that he understands the duty of speaking truth.
Rule 53 of the Criminal Rules of Practice provides that each witness is
examined and the requirements of Section 278 of the Criminal Procedure Code
of the Criminal Procedure Code are complied with, the witness shall be
required to sign or affix his of the Criminal Procedure Code thumb impression
on the record of his deposition.
Rule 54 of the Criminal Rules of Practice provides that in every case in
which the precise age of the accused person is relevant to the determination of
the sentence or order to be passed, evidence shall be taken on the question and
whenever necessary the opinion of a medical expert shall be obtained.
Rule 55 of the Criminal Rules of Practice provides that when the deposition
of a Gosha women has to be taken, the Court shall, if necessary, adjourn to a
place where the witness can be examined with due regard to her privacy, in the
presence of the accused, precautions being of course taken to make sure of her
identity.
 16

Rule 56 of the Criminal Rules of Practice bars the police officers from
interpreting evidence of a witness in cases prosecuted by the police.
Rule 57 of the Criminal Rules of Practice provides for charges for
interpretation that Sessions Judges and Chief Judicial Magistrates are
authorized to incur under intimation to the High Court, expenditure to a limit
not exceedingRs.150/- (Rupees One hundred and fifty only) in each case on
account of interpretation of evidence in a language not known by the accused
or in a language other than the language of the court and not understood by
the accused or in a language other than the language of the court and not
understood by the Advocate o the accused or by the Court. They are also
authorised the limit prescribed to pass similar charges incurred by Magistrates
subordinate to them. This Rule also apply to cases of interpretation of
statements made by the deaf and dumb or the dumb and to the payment of
remuneration to the expert in interpreting such statements.
Rule 58 of the Criminal Rules of Practice provides that exhibits admitted in
evidence shall be marked as
(i) if filed by the prosecution with the capital letter ‘P’ followed
by a numeral, P1, P2,P3 and the like;
(ii) if filed by defence with the capital letter ‘D’ followed by a
numeral, D1, D2, D3 and the like;
(iii) in case of Court exhibits with the capital letter ‘D’ followed
by a numeral C1, C2, C3 and the like.
(2) All the exhibits filed by the several accused shall be marked
consecutively. All material objects shall be marked in Arabic
numbers in continuous series as M.O. 1, M.O.2 and M.O.3 and the like,
whether exhibited by the prosecution or the defence or the Court.
Rule 83 of the Criminal Rules of Practice provides that the margin of one-
fourth of the deposition sheet should be left blank.
Rule 84 of the Criminal Rules of Practice enables Court to record deposition
by type writing machine. A certificate must be given by the Presiding Judge
that evidence is recorded to his dictation in open Court and each page of the
record so made must be attested by him.
Rule 85 of the Criminal Rules of Practice indicates that Presiding Judge or
Magistrate shall record in his own handwriting the name of the witness
examined, name of his father, and if she is a married one, the name of her
husband, profession, age of the witness, village, police-station, district in which
the witness resides, and the entry of age of the witness shall be according to
the estimation of the Presiding Judge.
According to Rule 87 of the Criminal Rules of Practice deposition of each
witness should be separately paragraphed and consecutive numbers should be
assigned.
 17

Rule 88 of the Criminal Rules of Practice provides that the Magistrate or the
Presiding Judge shall personally sign the certificate at the bottom of the
deposition of each witness to the effect that read over and explained to the
witness in presence of the accused/pleader representing the accused and
admitted to be correct.
Recording of evidence of witness through video conference:
In the authority reported between State of Maharatra vs.Dr.Praful B Desai in
AIR 2003 SC 2053 the Hon’ble Supreme Court did not agree with the
contention put forth by the accused that the requirement of Section 273 that ‘
all evidence...shall be taken in the presence of the accused’ will be violated if
evidence is recorded through video conferencing which is only “virtual reality”
and held that it is clear that so long as the accused and /or his pleader are
present when evidence is recorded by video conferencing that evidence is being
recorded in the “presence” of the accused and would thus fully meet the
requirements of section 273 of the Criminal Procedure Code.
In the authority reported between Bodala Murali Krishna vs. Smt. Badola
Prathima in 2007 (1) ALT 237 the Hon’ble High Court of Andhra Pradesh
permitted recording of the evidence of an American resident witness through
video conference.
In the authority reported between Sakshi vs. Union of India in AIR 2004 SC
3566 the Hon’ble Supreme Court permitted examination of a victim who had
been sexually exploited and/or was suffering from post traumatic stress
disorder through video conference.
In the authority reported between Twentieth Century Fox Film Corporation
and another vs. NRI Film Production Associates (P) Ltd in AIR 2003 Kant
148 the Karnataka High Court held that the word ‘in attendance’ under Order
18 Rule 3(4)(2 of the Civil Procedure Code is to be understood as the person
being present and it need not be physical presence. The presence on the screen
is as good as attendance for the purpose of Order 18 Rule 3(4)(2) of the civil
procedure code. The Hon’ble Karnataka High Court has also formulated
certain Conditions for video-recording of evidence:
1) Before a witness is examined in terms of the audio-video link, a witness is to
file an identification affidavit or an undertaking duly verified before a Notary or
a Judge that the person who is shown as a witness is the same person as who
is going to depose on the screen. A copy is to be made available to the other
side.
2) The person who examines the witness on the screen is also to file an
affidavit/undertaking before examining the witness with a copy to the other
side with regard to identification.
3) The witness has to be examined during working hours of Indian Courts.
Oath is to be administered through the media.
 18

4) The witness should not plead any inconvenience on account of time

difference between India and USA.
5) Before examination of the witness, a set of plaint, written statement and
other documents must be sent to the witness so that the witness could have
acquaintance with the documents, and an acknowledgement is to be filed
before the Court in this regard.
6) Learned Judge is to record such remarks as is material regarding the
demeanour of the witness while on the screen.
7) Learned Judge must note the objections raised during the course recording
of witness and to decide the same at the time of arguments.
8) After recording the evidence, the same is to be sent to the witness and his
signature is to be obtained in the presence of a Notary and thereafter it forms
part of the record of the suit proceedings.
9) The visual is to be recorded at both the ends. The witness should be alone at
the time of video conference and the Magistrate or the Notary is to give
certificate to this effect.
10)The expenses of the arrangements are to be borne by the applicant who
wants this facility.
11)In case of perjury Court will be able to take cognizance not only about the
witness who gave evidence but who induced to give such evidence.
In the authority reported between Dr.Balram Prasad vs.Dr.Kunal Saha in
(2014)1 SCC 384 the Hon’ble Supreme court admitted the recording of
testimonies and cross examination of the foreign expert witnesses in evidence
through internet conferencing (Skype) instead of video conferencing.
In the authority reported between Bodala Murali Krishna vs. Bodala
Prathima in 2007 (3) ALD 72 the Hon’ble High court of Andhra Pradesh held
that necessary precautions must be taken to identify the witness and ensure
the accuracy of the equipment being used. In addition, any party wishing to
avail itself of the facility of video conferencing must meet the entire expense.
Relevancy of evidence
Relevant evidence is evidence that makes a fact more or less likely to be true
than it would be without the evidence (looking for probative value). Relevant
evidence may be excluded for unfair prejudice, confusion, or waste of time. A
relevant evidence is generally admissible but an irrelevant evidence is never
admissible. Nothing is to be received which is not logically probative of some
matter requiring to be proved and that everything which is thus probative
should come in, unless a clear ground of policy or law excludes it, are the
principles to be borne in mind for deciding relevant evidence.
There is marked difference between logical relevance and legal relevance. A fact
is said to be logically relevant to another when it bears such a causal relation
with the other as to render probable the existence or non-existence of the
 19

latter. All facts which are logically relevant are not legally relevant. One fact is
said to be legally relevant to another, only when the one is connected with the
other in any of the ways referred to in sections 5 to 55 of the Indian Evidence
Act. Logical relevancy is wider than legal relevancy; every fact which is legally
relevant is logically relevant, but every fact which is logically relevant is not
necessarily legally relevant. Thus, a confession made to a police officer may
appear to be logically relevant, but such a confession is not legally relevant
under section 25 of the Evidence Act. Thus, all evidence that is admissible is
relevant, but all facts which is relevant is not necessarily admissible. Relevancy
is the genus of which admissibility is a species. Cases of exclusion of logically
relevant facts by positive rules of law are under sections 91 to 99 of the
Indian Evidence Act (Exclusion of oral by documentary evidence), sections
115-117 of the Indian Evidence Act (Exclusion of evidence of facts by
estoppels), and sections 121-130 of the Indian Evidence Act (Exclusion of
privileged communications, such as confidential communications with a legal
adviser, communication during marriage, official communication).
The Indian evidence Act enumerates the following as relevant facts under
different sections :
1. Facts necessary to explain or introduce a fact in issue or relevant fact;
2. Facts which support or rebut an inference suggested by a fact in issue or a
relevant fact;
3. Facts which establish the identity of anything or person whose identity is
relevant;
4. Facts which fix the time and place at which any fact in issue or relevant fact
happened;
5. Facts which show the relation of parties by whom any fact in issue or
relevant fact was transacted.
Admissibility of evidence
Admissibility means the facts which are legally receivable by the Court. Under
section 136 of the Indian Evidence Act, the discretion on the admissibility of
evidence lies with the judge.
In the authority reported in AIR 1998 SC 1859 between Ram Bihari Yadav v.
State of Bihar the Hon'ble Supreme Court held that “More often the
expressions ‘relevancy and admissibility’ are used as synonyms but their legal
implications are distinct and different from for more often than not facts which
are relevant are not admissible; so also facts which are admissible may not be
relevant, for example questions permitted to put in cross examination to test
the veracity or impeach the credit of witnesses, though not relevant, are
admissible. The probative value of the evidence is the weight to be given to it
which has to be judged having regards to the fact and circumstances of each
case.
 20

In the authority reported in AIR 1928 Cal.893 between Ambikacharan v.

Kumuk Mohan it was held that “ as a general rule, section 11 of the Indian
Evidence Act is controlled by section 32 of the Indian Evidence Act but when
the evidence consists of statement of persons who are dead and the test
whether such a statement is relevant under section 11 of the Indian Evidence
Act, though not relevant and admissible under section 32 of the Indian
Evidence Act, it is admissible under section 11 of the Indian Evidence Act, and
it is altogether immaterial whether what said was true or false, but highly
material that it was said.
Appreciation of evidence
Judiciary has played vital role in clarifying the rules of appreciation of
evidences on the points where statutes were silent. This following Rules of
appreciation of evidences laid down by judiciary does not have universal
application but needs to be applied in the light of facts and circumstances of
the case.
A). The first and foremost rule of evidence is that an accused person can be
convicted only if his guilt could be proved beyond reasonable doubt. Benefit of
doubt is always given to the accused person.
B). Next important rule is rule of probability. Section 3 of the Indian
Evidence Act defines three ingredients of rule of probability i.e. proved,
disproved and not proved. A fact is said to be proved when after considering a
matter before it, the court either believes it to exist, or consider its existence so
probable that a prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it exist. A fact is said to be disproved
when, after considering the matter before it, the court either believes that it
does not exist or consider its existence so probable that a man of ordinary
prudence ought under the circumstances of the particular case, to act upon
the supposition that it does not exist. A fact is said not to be proved when it is
neither proved nor disproved.
C). Another rule of evidence is rule of presumption. Section 3 of the Indian
Evidence Act defines the ingredients of rule of presumption i.e. may presume,
shall presume and conclusive proof. Where it is provided by the Indian
Evidence Act that the court may presume a fact, it may either regard such fact
as proved, unless and until it is disproved, or may call for proof of it. Similarly
whenever it is directed by the Indian Evidence Act that the court shall presume
a fact, it shall regard such fact as proved, unless and until it is disproved.
When one fact is declared by the Indian Evidence Act to be conclusive proof of
another, the court shall, on proof of the one fact, regard the other as proved,
and shall not allow evidence to be given for the purpose of disproving it.
 21

D). Falsus in uno falsus in omnibus means false in one particular thing, false in
all. This rule is a rule of caution and has not acquired the status of rule of law
in India.
E). Evidence to be weighed not to be counted is a rule under section 134 of the
Indian Evidence Act which provides that its the quality of the evidence or the
evidentiary value of the evidence which matter and not the quantity of the
evidence.
F). Best evidence rule provides that best evidence of the content of the
document is the document itself. This is the rule provided under section 91 the
Indian Evidence Act.
Evidenciary value of different evidences:-
Admission:
Under section 31 of the Indian Evidence Act deals with the evidential value
of admission. Admission is not the conclusive proof of the matter admitted. It is
good evidence against the maker but maker not bound by it and can disprove it
on following grounds:
i. mistake of fact
ii. made under threat, inducement or fraud
But if on the admission, the other party has altered his position then
admission can’t be disprove and it may operate as an estoppel against its
maker.es of Appreciation of Evidence
Confession of Accused:
a). Judicial confession to a Magistrate during investigation u/s 164 of the Code
of Criminal Procedure or during trial when charges framed, is reliable evidence,
and it can be a sole basis of conviction.
b). Extra-judicial confession means confession to any person other than
magistrate. It’s a weak piece of evidence. It can be a sole basis of conviction if
proved to be voluntarily made.
c). Retracted Confession means confession made before trial begins and
repudiated at trial. It’s a very weak piece of evidence. It can lead to conviction if
proved to be made voluntarily & corroborated by an independent witness.
Confession of co-accused:
It has been provided under section 30 of the Indian Evidence Act. When
more than one person jointly tried for same offence confesses affecting himself
and other, if proved, may be taken into consideration. It’s a weak evidence of
corroborating value only. It can’t be sole basis of conviction.
Confession to Police:
Confession made to police by virtue of section 25 of the Indian Evidence Act
cannot be proved so it has no evidentiary value. If confession made in police
custody in immediate presence of magistrate then it can be proved and has
 22

evidentiary value of judicial confession. So confession to a Magistrate in police

custody can lead to conviction if proved to be made voluntarily.
Discovery Statement:
If disclosure whether amounting to confession or not by accused while in police
custody leads to discovery is a relevant fact against accused under section 27
of the Indian Evidence Act. It can’t be a sole basis of conviction. It has only
corroborating value.
First Information Report:
FIR is not considered a substantive piece of evidence. It can be relevant under
following sections of Indian Evidence Act:
i. As conduct under section 8 of the Indian Evidence Act, if made by accused or
victim,
ii. As admission under section 21 of the Indian Evidence Act of the Indian
Evidence Act,
iii. As discovery statement under section 27 of the Indian Evidence Act of the
Indian Evidence Act if made by accused in custody and leads to discovery, on
such information
iv. As corroborating statement under section 157 of the Indian Evidence Act,
and
v. As contradictory statement under section 145 of the Indian Evidence Act.
Confessional First Information Report:
When accused makes an FIR i.e. gives first information of commission of an
offence to police and states that he committed the offence, if accused in police
custody while making confessional FIR then confessional part of FIR can’t be
proved as per section 25 of the Indian Evidence Act. Only non-confessional part
of FIR leading to discovery may be proved under section 27 of the Indian
Evidence Act. Discovery statement has only corroborative evidential value so
can’t lead to conviction. If accused not in police custody while making
confessional FIR then
confessional part of FIR can’t be proved as per section Sec 25 of the Indian
Evidence Act. Whole of non confession part of FIR may be proved and it has
only contradictory or corroborative value so cannot lead to conviction.
Statement to police:
Statement to police under section 161 of the Code of Criminal Procedure can’t
be used for any purpose as per section 162 of the Code of Criminal Procedure,
but there are certain exceptions to it which are as follows:
i. Statement to police by prosecution witness can be used for contradicting
under section 145 of the Indian Evidence Act
ii. Statement made while in police custody leading to discovery can be used
under section 27 of the Indian Evidence Act
 23

iii. Statement to police by a person who is dead can be used as his dying
declaration under section 32 of the Indian Evidence Act
Dying Declaration:
It is dealt with under section 32(1) of the Indian Evidence Act. It’s a statement
as to cause of his death and circumstances leading to his death. It’s an
exception to general rule that oral evidence must be direct. As it is not recorded
on oath so there is no scope of cross examination. It is relied on only after
careful scrutiny. Out of caution court seeks corroboration from other
circumstances. But it can be a sole ground of conviction if recorded with all
precautions & made in fit state of mind.
Of dying declaration if its maker survives:
Dying Declaration to magistrate can be used if its maker survives for
corroboration under section 157 of the Indian Evidence Act and for
contradiction under section 145 of Indian Evidence Act. Dying Declaration to
police can’t be used if its maker survives for corroboration u/s 157 of the
Indian Evidence Act due to bar of section 162 of the Code of Criminal
Procedure but can be used for contradiction u/s 145 the Indian Evidence Act
due to exception provided under section 162 of the Code of Criminal Procedure.
Expert Evidence:
When court has to form an opinion on foreign law, science, art or as to identity
of handwriting or finger impression, opinion of person especially skilled in such
matters is relevant. It is not conclusive of a fact. Court not bound to rely on it,
as there are
chances of expert favouring party who call him or mistake in the opinion of
expert. Expert opinion on the field of science fully developed can be relied
completely e.g. DNA test report.
Circumstantial Evidence:
It is not to be confused with hearsay and secondary evidence. It is generally
used when no eye witness available. It can be sole basis of conviction provided
the circumstances from which the conclusion of guilt is to be drawn should be
fully established. The facts so established should be consistent with the
hypothesis of the guilt of the accused. Circumstances should be of conclusive
nature and tendency. They should exclude every possible hypothesis except the
one to be proved. There must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion constant with the innocence of the
accused and must show that in all human probability the act must have been
done by the accused.
 24

Paper Presented by
Sri K.Guru Aravind,
II Addl. Judicial Magistrate of I Class
Machilipatnam.

1. INTRODUCTION :
‘Fiat Justitia’ is the motto of the Court. It is a Latin phrase, which
means ‘ Let Justice be done’. Appreciation of evidence involves weighing the
credibility and reliability of the evidence presented in the case. According to
Bentham, ‘evidence’ is any matter of facts, the effect, tendency or design of
which is to produce in the mind, a persuasion, affirmative or dis-affirmative, of
the existence of some other matter of fact.
The word “Evidence” is derived from the Latin root word “evidare” which
means “to show clearly; to ascertain; to prove”.
As per Section 3 of the Indian Evidence Act, evidence means and
includes both oral and Documentary evidence. Oral evidence includes all the
statements which the court permits or requires to be made before it by
witnesses, in relation to matters of fact under enquiry. Documentary evidence
includes all documents including electronic records produces for the inspection
of court.
The most important part in trial of the both civil and criminal cases is
recording evidence. There is tremendous changes brought under the Indian
Evidence Act and concerned Acts i.e., information Technology Act in the future
the most important evidence may be created on mobile device information
technology as caused a paradigm shift in the way individuals and organizations
communicated and created collect share and store data and information
advance technologies ranging from mobile devices and satellites or providing
sophisticated ways to document daily events resulting in an expansive
collection of individual records. Millions of people are now creating
documentation that may become 'evidence' in cases around the world.
Observers on the scene can now document the details of events with
photographs video and audio recording from their cell phones and cameras and
postings of real time commentary (often transmitted through mobile devices) on
websites such as you-tube, global social media sites and twitter and in e-mail
and text messages. Now in court proceedings traditional eye witness testimony
can be greatly enhanced and corroborated by introducing
digital evidence court rules requires that for evidence to be admissible, it must
be authenticated. In the simplest terms this means that data and information
must be shown to be what the proponent claims that it is. The foundation for
digital evidence are based on the established principles of authentication and
admissibility that originated with the use of paper evidence.
 25

The five separate foundations are.

1. Relevance.
2. Authenticity
3. hearsay.
4. Best evidence
5. Probative value
In Kalyan Kumar Gogoi vs. Ashutosh Agnihotri (AIR 2011 SC 760),
the Hon’ble Apex Court observed: The word ‘evidence’ is used in common
parlance in three different senses: (a) as equivalent to relevant (b) as equivalent
to proof and (c) as equivalent to the material, on the basis of which courts come
to a conclusion about the existence or non-existence of disputed facts.
Though, in the definition of the word "evidence" given in Section 3 of the
Evidence Act one finds Recording of Evidence – Relevance, 2 Admissibility and
Appreciation only oral and documentary evidence, this word is also used in
phrases such as : best evidence, circumstantial evidence, corroborative
evidence, derivative evidence, direct evidence, documentary evidence, hearsay
evidence, indirect evidence, oral evidence, original evidence, presumptive
evidence, primary evidence, real evidence, secondary evidence, substantive
evidence, testimonial evidence, etc. The idea of best evidence is implicit in the
Evidence Act. Evidence under the Act, consists of statements made by a
witness or contained in a document. If it is a case of oral evidence, the Act
requires that only that person who has actually perceived something by that
sense, by which it is capable of perception, should make the statement about it
and no one else. If it is documentary evidence, the Evidence Act requires that
ordinarily the original should be produced, because a copy may contain
omissions or mistakes of a deliberate or accidental nature.

2. RECORDING OF EVIDENCE
Mode of recording Evidence (Criminal)
Section 272 to 283 of the Code of Criminal Procedure deal with mode of taking
and recording evidence in Criminal courts.
Section 273 mandates to record all the evidence in presence of the accused. If
personal attendance of the accused is dispensed with, the same must be
recorded in presence of his pleader.
Section 274 lays down that the Magistrate shall record the memorandum of
substance of evidence of a witness in open Court and such memorandum must
be signed by him and shall form part of the record so far as summons case is
concerned. In a warrant case, the Magistrate shall record the evidence of a
witness by taking down by himself or cause it to be taken down in the
narrating form.
 26

Section 275(3) permits the Magistrate to record the evidence in the form of
question and answer. In view of the proviso to section 275(1), the evidence of a
witness may be recorded by audio video electronic means in presence of the
advocate of the accused.
Section 278 stipulates that evidence of a witness when completed should be
read over to him in presence of the accused or his pleader. It should not be
done so at the end of the day after all witnesses have been examined. When the
evidence is read over to the witness or to his pleader, if necessary, it can be
corrected. If the witness denies the correctness of any part of the evidence, the
Presiding Judge may instead of correcting the evidence, make the
memorandum of the objection raised by the witness and shall add such
remarks as he deems fit. If the evidence is recorded in the language not
understood by the accused or his pleader, it shall be contemplated in open
Court in the language understood to them.
Section 280 empowers the Presiding Judge or the Magistrate to record the
remarks, if any, if he thinks material in respect of the demeanour of any
witness and he should avoid formulating any opinion on the credibility of the
witness until the whole evidence has been taken.
Sec. 299 Cr.P.C. deals with recording of evidence in the absence of accused.
Sec. 317 Cr.P.C. deals with provision for enquiries and trial being held in the
absence of the accused in certain cases.
As per rule 83, the margin of one-fourth of the deposition sheet should be left
blank. Rule 84 enables Court to record deposition by type writing machine. A
certificate must be given by the Presiding Judge that evidence is recorded to his
dictation in open Court and each page of the record so made must be attested
by him.
Rule 85 indicates that Presiding Judge or Magistrate shall record in his own
handwriting the name of the witness examined, name of his father and if she is
a married one, the name of her husband, profession, age of the witness, village,
police-station, district in which the witness resides, the entry of age of the
witness shall be according to the estimation of the Presiding Judge.
So far as doubtful expression is concerned, the trial Court should
actually record the word used by the witness so that its exact signification can
be assessed in judgment. Assistance of an interpreter may be taken if the
language of the witness is not understood by the accused Court, or lawyers.
According to rule 87, deposition of each witness should be separately
paragraphed and consecutive numbers should be assigned.
In reference to Rule 88, the Magistrate or the Presiding Judge shall
personally sign the certificate at the bottom of the deposition of each witness to
the effect that read over and explained to the witness in presence of the
accused/pleader representing the accused and admitted to be correct
 27

Mode of treating and Recording evidence – Including recording of

evidence through video conferencing :
In a path breaking development, the Supreme Court held that a trial judge
could record evidence of witnesses who is staying abroad through video
conferencing. Interpreting Section 273 of the Criminal Procedure Code in the
light of technological advancements, a bench comprising Justice S N Variava
and Justice B N Agrawal said recording of evidence through video conferencing
would be perfectly legal.
The judgment relates to a case in which a US-based doctor had opined
against operation of a cancer patient through video conferencing. Ignoring the
advice, two Indian doctors operated on the lady, who later passed away.
The patient's family went to court against the doctors. However, the US-based
doctor, Ernest Greenberg, refused to come to India, but expressed willingness
to give evidence through video conferencing.

Certain Case Laws regarding Mode of treating and recording evidence including
recording of evidence through video conferencing:
State of Maharashtra vs. Dr Praful B Desai (AIR 2003 SC 2053) [The
question involved whether a witness can be examined by means of a video
conference.] The Supreme Court observed that video conferencing is an
advancement of science and technology which permits seeing, hearing and
talking with someone who is not physically present with the same facility and
ease as if they were physically present. The legal requirement for the presence
of the witness does not mean actual physical presence. The court allowed the
examination of a witness through video conferencing and concluded that there
is no reason why the examination of a witness by video conferencing should
not be an essential part of electronic evidence.
DHARAMBIR Vs. CENTRAL BUREAU OF INVESTIGATION (148 (2008) DLT
289).The court arrived at the conclusion that when Section 65-B talks of an
electronic record produced by a computer referred to as the computer output) it
would also include a hard disc in which information was stored or was earlier
stored or continues to be stored. It distinguished as there being two levels of an
electronic record. One is the hard disc which once used itself becomes an
electronic record in relation to the information regarding the
changes the hard disc has been subject to and which information is retrievable
from the hard disc by using a software program. The other level of electronic
record is the active accessible information recorded in the hard disc in the form
of a text file, or sound file or a video file etc. Such information that is accessible
can be converted or copied as such to another magnetic or electronic device
like a CD, pen drive etc. Even a blank hard disc which contains no information
 28

but was once used for recording information can also be copied by producing a
cloned had or a mirror image.
3. RELEVANCY OF EVIDENCE:
While recording evidence the court has to see whether the evidence
produced is relevant or not. Relevant fact means one fact is said to be relevant
to another when the one is connected with the other in any of the ways referred
to in the provisions of Indian Evidence Act relating to the relevancy of facts.
Sections 5 to 55 of Indian Evidence Act deals with Relevancy of facts. Relevant
Evidence is evidence that makes a fact more or less likely to be true than it
would be without the evidence (looking for probative value). Relevant evidence
may be excluded for unfair prejudice, confusion, or waste of time. Relevant
evidence is generally admissible and irrelevant evidence is never admissible.
LEADING PRINCIPLES ON RELEVANCE
1) that nothing is to be received which is not logically probative of some matter
requiring to be proved; and
2) that everything which is thus probative should come in, unless a clear
ground of policy or law excludes it. Relevancy exists as a relation between an
item of evidence and a proposition sought to be proved.
LOGICAL RELEVANCE VS. LEGAL RELEVANCE
A fact is said to be logically relevant to another when it bears such a causal
relation with the other as to render probable the existence or non- existence of
the latter. All facts which are logically relevant are not legally relevant. One fact
is said to be legally relevant to another, only when the one is connected with
the other in any of the ways referred to in Ss. 5 to 55 of the Evidence Act.
Logical relevancy is wider than legal relevancy; every fact which is legally
relevant is logically relevant, but every fact which is logically relevant is not
necessarily legally relevant. Thus, a confession made to a police officer may
appear to be logically relevant, but such a confession is not legally relevant.
Sec.25 of the Act declares that it cannot be used as evidence against the
person making it. Very often, public considerations of fairness and the
practical necessity for reaching speedy decisions necessarily cause the rejection
of much of the evidence which may be logically relevant.
Thus, all evidence that is admissible is relevant, but all that is
relevant is not necessarily admissible. Relevancy is the genus of which
admissibility is a species. Thus, oral statements which are hearsay may be
relevant, but not being direct evidence, are not admissible. Legal relevancy is,
for the most part, based upon logical relevancy, but it is not correct to say that
all that is logically relevant is necessarily legally relevant and vice versa.
Certain classes of facts which, in ordinary life, are relied upon as logically
relevant are rejected by law as legally irrelevant.
 29

Cases of exclusion of logically relevant facts by positive rules of law are:

(I) Exclusion of oral by documentary evidence: Ss. 91-99. (ii) Exclusion of
evidence of facts by estoppel: Ss. 115-117. (iii) Exclusion of privileged
communications, such as confidential communications with a legal adviser,
communication during marriage, official communications, etc.: Ss. 121-130.
In yet another decision in State of U.P. V. Ram Veer Singh and Another
reported in 2007 (6) Supreme 164 the Hon'ble Apex Court has held as
follows:
"The golden thread which runs through the web of administration of
justice in criminal cases is that if two view are possible on the evidence
adduced in the case, one pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the accused should be adopted.
The paramount consideration of the Court is to ensure that miscarriage of
justice is prevented. A miscarriage of justice which may arise from acquittal of
the guilty is no less than from the conviction of an innocent. In a case where
admissible evidence is ignored, a duty is cast upon the appellate Court to re-
appreciate the evidence where the accused has been acquitted, for the purpose
of ascertaining as to whether any of the accused really committed any offence
or not."
4. ADMISSIBILITY OF EVIDENCE
Admissibility means that the facts which are relevant are only admissible
by the Court. According to section 136 of the Indian Evidence Act, however, the
final discretion on the admissibility of evidence lies with the judge.
Section 136 states that: “When either party proposes to give evidence of any
fact, the Judge may ask the party proposing to give the evidence in what
manner the alleged fact, if proved, would be relevant; and the Judge shall
admit the evidence if he thinks that the fact, if proved, would be relevant, and
not otherwise. If the fact proposed to be proved is one of which evidence is
admissible only upon proof of Recording of Evidence – Relevance, Admissibility
and Appreciation 5some other fact, such last- mentioned fact must be proved
before evidence is given of the fact first- mentioned, unless the party
undertakes to give proof of such fact, and the Court is satisfied with such
undertaking.
If the relevancy of one alleged fact depends upon another alleged fact
being first proved, the Judge may, in his discretion, either permit evidence of
the first fact to be given before the second fact is proved, or require evidence to
be given of the second fact before evidence is given of the first fact.”
The essential ingredients of the above section are:
1. It is the judge who decides the questions of relevancy and admissibility.
2. When a party proposes to adduce evidence of any fact, the judge may ask
the party to clarify „in what manner‟ the fact would be relevant.
 30

The judge would „admit‟ the particular adduced fact only if he is satisfied with
the answer of the party that it is, indeed, relevant under one or the other
provisions of S. 5 to 55. Thus the consideration of relevancy comes first and of
admissibility later and the judge will admit the fact only if it is relevant.”
In the case of Ram Bihari Yadav v. State of Bihar (AIR 1998 SC 1859)
the Hon'ble Supreme Court observed that “More often the expressions”
relevancy and admissibility‟ are used as synonyms but their legal
implications are distinct and different from for more often than not facts
which are relevant are not admissible; so also facts which are admissible may
not be relevant, for example questions permitted to put in cross examination to
test the veracity or impeach the credit of witnesses, though not relevant are
admissible. The probative value of the evidence is the weight to be given to it
which has to be judged having regards to the fact and circumstances of each
case.”
In the case of Lakshmandas Chaganlal Bhatia v. State, (AIR 1968
Bom. 807) the Hon'ble Bombay High court laid down the following to be
“relevant facts”:
1. Facts necessary to explain or introduce a fact in issue or relevant fact;
2.Facts which support or rebut an inference suggested by a fact in issue or a
relevant fact;
3. Facts which establish the identity of anything or person whose identity is
relevant;
4.Facts which fix the time and place at which any fact in issue or relevant fact
happened;
5.Facts which show the relation of parties by whom any fact in issue or
relevant fact was transacted.
Another section of the Evidence Act which deals with admissibility is the
Section 11. Section 11 deals with those facts which are not otherwise relevant
but become relevant if they are inconsistent with any relevant fact or they
make the existence or non-existence of any relevant fact highly probably or
improbable.
Admissibility of electronic evidence:
New Sections 65A and 65B are introduced to the Evidence Act under the
Second Schedule to the ITAct, 2000. Section 5 of the Evidence Act provides
that evidence can be given regarding only facts that are at issue or of relevance.
Section 136 empowers a judge to decide on the admissibility of the evidence.
New provision Section 65A provides that the contents of electronic records may
be proved in accordance with the provisions of Section 65B. Section 65B
provides that notwithstanding anything contained in the Evidence Act, any
information contained in an electronic record (ie, the contents of a document or
communication printed on paper that has been stored, recorded and copied in
 31

optical or magnetic media produced by a computer ('computer output')), is

deemed to be a document and is admissible in evidence without further proof
of the original's production, provided that the conditions set out in Section
65B(2) to (5) are satisfied.
Conditions for the admissibility of electronic evidence:
Before a computer output is admissible in evidence, the following conditions as
set out in Section 65(B)(2) must be fulfilled:
"(2) The conditions referred to in subsection (1) in respect of a computer output
shall be the following, namely:
(a) the computer output containing the information was produced by the
computer during the period over which the computer was used regularly to
store or process information for the purposes of any activities regularly carried
on over that period by the person having lawful control over the use of the
computer;
(b) during the said period, information of the kind contained in the electronic
record or of the kind from which the information so contained is derived was
regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period the computer was operating
properly or, if not, then in respect of any period in which it was not operating
properly or was out of operation during that part of the period, was not such as
to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived
from such information fed into the computer in the ordinary course of the said
activities.
(3) Where over any period the function of storing or processing information for
the purposes of any activities regularly carried on over that period as
mentioned in clause (a) of subsection (2) was regularly performed by
computers, whether:
(a) by a combination of computers operating over that period;
(b) by different computers operating In succession over that period;
(c) by different combinations of computers operating In succession over that
period; or
(d) in any other manner involving the successive operation over that period, in
whatever order, of one or more computers and one or more combinations of
computers,
2. all the computers used for that purpose during that period shall be treated
for the purposes of this section as constituting a single computer and
references in this section to a computer shall be construed accordingly."
Section 65B(4) provides that in order to satisfy the conditions set out above, a
certificate of authenticity signed by a person occupying a responsible official
position is required.
 32

Such certificate will be evidence of any matter stated in the certificate.

The certificate must:
• identify the electronic record containing the statement;
• describe the manner in which it was produced; and
• give such particulars of any device involved In the production of the electronic
record as may be appropriate for the purpose of showing that the electronic
record was produced by a computer.
The certificate must also deal with any of the matters to which the conditions
for admissibility relate.
In Sheikh Ketab-Uddin v. Nagarchand Pattak (AIR 1927 Cal.230), it
was held, that where the executants of an archive holding presentations of
boundaries of land are alive and don‟t give their evidence, such archives are
not acceptable under this segment.
In Ambikacharan v. Kumuk Mohan (AIR 1928 Cal.893), it was held
that as a general rule, S.11 is controlled by S.32, “when the evidence consists
of statement of persons who are dead and the test whether such a statement is
relevant under S.11, though not relevant and admissible under S.32, is that it
is admissible under S.11, when it is altogether immaterial whether what said
was true or false, but highly material that it was said.
5. EVIDENCE CONNECTED WITH THE INFORMATION TECHNOLOGY/
DIGITAL EVIDENCE
After enacting Information Technology Act, 2000, the electronic evidence has
assumed great importance. Sec.65 (A) and (B) of the Act provide the Rules
regarding the admissibility of electronic record. Sec.65(B) of the Act is the
provision which provides that an electronic record by way of computer output
is admissible only if certain conditions are satisfied. To admit and prove an
electronic record such as computer output is necessary.
In Ziyauddin Barhuddin Bhukari v. Brijmohan Ramdas Mehra ((1976)
2 SCC 17), it was held by the Hon‟ble Apex Court that Tape record speeches
were defined by Sec.3 of the Evidence Act, which stood on no different footing
than photographs and that they were admissible in evidence on satisfying the
following conditions:- (a) The voice of the person alleged to be speaking must be
duly identified by the maker of the record or by others who know it. (b)
Accuracy of what was actually recorded had to be proved by the maker of the
record and satisfactory evidence, direct or circumstantial, had to be there so as
to rule out possibilities of tampering with the record. (c) The subject matter
record had to be shown to be relevant according to rules of relevancy found in
the Evidence Act.
In Jagjit Singh v. State of Haryana (AIR 2007 SC 594), the Hon'ble
Supreme Court found no infirmity in the Speaker of the Legislative Assembly of
the State of Haryana relying on the digital evidence in the said case. The
 33

original compact disc was received from Zee Tele films along-with the
translation in English of the transcript of the interview conducted in the said
channel. The Apex Court in the said case has also held that the doctrine of
necessity would also be applicable in relying on such evidence.
In State (NCT of Delhi) v. NAVAJOT SANDHU (AIR 2005 SC 3820) a
two Judge Bench of the Hon’ble Supreme Court in respect of media interview
of the accused has held that since the interview in that case was in the
immediate presence of police, it is not admissible. The Hon‟ble Supreme Court
in the same Judgment has an occasion to consider an issue of production of
electronic record as evidence. While considering of the printouts of the
computerized records of the calls pertaining to the cellphones, has held that
irrespective of compliance with the requirement Sec.65-B of the Act, there is no
bar in adducing the secondary evidence.
In P.V. Anvar v. P.K.Basheer (AIR 2015 – SC 186) a three Judge Bench
of the Hon’ble Supreme Court has held that the statement of law on
admissibility of secondary evidence pertaining to electronic record, as stated in
Navjot Sandhu case, does not lay down the correct legal position. The three
Judges Bench overruled it and held that an electronic record by way of
secondary evidence shall not be admitted in evidence unless the requirements
under Section 65B (4) of the Act are satisfied. Thus, in the case of CD, VCD,
chip, etc., the same shall be accompanied by the certificate in terms of
Section 65B (4) of the Act obtained at the time of taking the document,
without which, the secondary evidence pertaining to that electronic record, is
inadmissible.
The condition provided in Sec.65B (4) of the Act are as under:-
(a) There must be a certificate which identifies the electronic record
containing the statement;
(b) The certificate must describe the manner in which the electronic
record was produced;
(c) The certificate must furnish the particulars of the evidence involved in the
production of that record;
(d) The certificate must deal with the applicable conditions mentioned under
Section 65B(2) of the Evidence Act and
(e) The certificate must be signed by a person occupying a responsible official
position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate
that the same is to the best of his knowledge and belief. Most importantly, such
a certificate must accompany the electronic record like computer printout,
Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to
which a statement is sought to be given in evidence, when the same is
produced in evidence. All these safe-guards are taken to ensure the source and
 34

authenticity, which are the two hallmarks pertaining to electronic record

sought to be used as evidence. Electronic records being more susceptible to
tampering, alteration, transposition, excision, etc., without such safe-guards,
the whole trial based on proof of electronic records can lead to travesty of
justice.
6. APPRECIATION OF EVIDENCE
In a criminal case appreciation of evidence is one of the first and foremost tests
to consider the credibility and reliability of the prosecution version both oral
and documentary. The finding of the facts, the question of law and the
conclusion of the Judges of the Court culminating into the judgments in a
criminal case mainly based on the appreciation of evidence.
Right from setting the law in motion in a criminal case by preferring FIR
and after completion of investigation filing the final report ultimately resulting
in producing and adducing the evidence before the Court consist varied kinds
of evidence both oral and documentary and the admissibility and reliability of
such evidence should be considered by the Court on the basis of the facts and
law for arriving at the just decision of the case. Therefore appreciation of
evidence is the heart and soul of the dispensation of justice delivery system in
criminal law. Criminal cases involves life and death problem of a citizen and
the destiny of the citizen is to be decided
by carefully analyzing and scrutinizing the evidence adduced by the
prosecution.
The Hon'ble Apex Court in Rang Bahadur Singh V. State of U.P. reported
in AIR 2000 SC 1209 has held as follows :
“The time-tested rule is that acquittal of a guilty person should be preferred to
conviction of an innocent person. Unless the prosecution establishes the guilt
of the accused beyond reasonable doubt a conviction cannot be passed on the
accused. A criminal court cannot afford to deprive liberty of the appellants,
lifelong liberty, without having at least a reasonable level of certainty that the
appellants were the real culprits.”
In a criminal case appreciation of evidence is one of the first and
foremost tests to consider the credibility and reliability of the prosecution
version both oral and documentary. The finding of the facts, the question of law
and the conclusion of the Judges of the Court culminating into the judgments
in a criminal case mainly based on the appreciation of evidence. Right from
setting the law in motion in a criminal case by preferring FIR and after
completion of investigation filing the final report ultimately resulting in
producing and adducing the evidence before the Court consist varied kinds of
evidence both oral and documentary and the admissibility and reliability of
such evidence should be considered by the Court on the basis of the facts and
law for arriving at the just decision of the case. Therefore appreciation of
 35

evidence is the heart and soul of the dispensation of justice delivery system in
criminal law. Criminal cases involves life and death problem of a citizen and
the destiny of the citizen is to be decided by carefully analyzing and
scrutinizing the evidence adduced by the prosecution.
It is held in Rajgopal ..Vs.. Kishan Gopal, A.I.R. 2003 S.C. 4319 that
when there is no pleading regarding certain issue, no finding can be
given despite evidence.
Evidentiary valur of statemtns recorded u/sec 161 and 164 of Crpc.
Section 161 of Cr. P. C. – Statement recorded under S.161 Cr.P.C. shall not be
used for any purpose except to contradict a witness in the manner prescribed
in the proviso to Section
162 (1) – Further the First Information Report is not a substantial piece of
evidence – Baldev Singh vs. State of Punjab (1990 (4) SCC 692 = AIR 1991 SC
31).
In Rajendra singh vs. State of U.P – (2007) 7 SCC 378 the Hon’ble Apex Court
has held that, “A statement under Section 161 Cr. P. C is not a substantive
piece of evidence. In view of the provision to Section 162 (1) CrPC, the said
statement can be used only for the limited purpose of contradicting the maker
thereof in the manner laid down in the said proviso. Therefore, the High Court
committed a manifest error of law in relying upon wholly inadmissible evidence
in recording a finding that Respondent 2 could not have been present at the
scene of commission of the crime.”
Section 164 Cr. P. C. Statement – It can be used for corroboration or
contradiction.
In Sunil Kumar and others vs. State of M.P. reported in AIR 1997 SC 940 the
Hon’ble Apex Court has held that,
“20. .... This conclusion of ours, however, does not in any way affect the merits
of the prosecution case for we find that immediately after PW 1 was taken to
the hospital his statement was recorded as a dying declaration which,
consequent upon survival, is to be treated only as a statement recorded under
Section 164 Cr. P. C and can be used for corroboration or contradiction. ....”
Appreciation of the evidence of the injured witnesses:-
In the case of State of Gujarat Vs Bharwad Jakshibhai and others,1990 CrLJ
2531 “For appreciating the evidence of the injured witnesses the Court should
bear in mind that:
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely
the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution
and it cannot be doubted merely on some supposed natural conduct of a
person during the incident or after the incident because it is difficult to imagine
 36

how a witness would act or react to a particular incident. His action depends
upon number of imponderable aspects.
(4) If there is any exaggeration in their evidence, then the exaggeration is to be
discarded and not their entire evidence.

In appreciation of evidence under section 3 of Indian Evidence Act, the Hon'ble

Supreme Court has illustrated some instances in Ganesh K. Gulve ...Vs... State
of Maharashtra AIR 2002 SC 3068 in following words;
“In order to appreciate the evidence, the Court is required to bear in
mind the setup and environment in which the crime is committed. The level of
understanding of the witnesses. The over jealousness of some of near relations
to ensure that, everyone even remotely connected with the crime be also
convicted. Everyone's different way of narration of
same facts. Etc.”
APPRECIATION OF EVDIENCE RECORDED THROUGH ELECTRONIC
MEDIA.
In Amitabh Bagchi Vs. Ena Bagchi (AIR 2005 Cal 11) sections 65A
and 65B of Evidence Act, 1872 were analyzed.
The court held that the physical presence of person in Court may not be
required for purpose of adducing evidence and the same can be done through
medium like video conferencing.
Sections 65A and 65B provide provisions for evidences relating to electronic
records and admissibility of electronic records, and that definition of electronic
records includes video conferencing.
State of Maharashtra v Dr Prafu B Desai (AIR 2003 SC 2053)
involved the question whether a witness can be examined by means of a video
conference.
The Supreme Court observed that video conferencing is an advancement
of science and technology which permits seeing, hearing and talking with
someone who is not physically physically present with the same facility and
ease as if they were physically present.
The legal requirement for the presence of the witness does not mean actual
physical presence.
The court allowed the examination of a witness through video conferencing
and concluded that there is no reason why the examination of a witness by
video conferencing should not be an essential part of electronic evidence.
In Bodala Murali Krishna Vs. Smt. Bodala Prathima (2007 (2) ALD 72) the
court held that, “...the amendments carried to the Evidence Act by
introduction of Sections 65-A and 65-B are in relation to the electronic record.
Sections 67-A and and 73-A were introduced as regards proof and were
verification of digital signatures. As regards presumption to be drawn about
 37

such records, Sections 85-A, 85-B, 85-C, 88-A and 90-A were C, added. These
provisions are referred only to demonstrate that the emphasis, at present, is to
recognize the electronic records and digital signatures,
as admissible pieces of evidence.”
The Hon'ble Apex Court in Rang Bahadur Singh V. State of U.P.
reported in AIR 2000 SC 1209 has held as follows :“The time-tested rule is
that acquittal of a guilty person should be preferred to conviction of an
innocent person. Unless the prosecution establishes the guilt of the accused
beyond reasonable doubt a conviction cannot be passed on the accused. A
criminal court cannot afford to deprive liberty of the appellants, lifelong liberty,
without having at least a reasonable level of certainty that the appellants were
the real culprits.”
In another decision in State of U.P. V. Ram Veer Singh and Another
reported in 2007 (6) Supreme 164 the Hon'ble Apex Court has held as
follows:
"The golden thread which runs through the web of administration of justice in
criminal cases is that if two view are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the other to his innocence,
the view which is favourable to the accused should be adopted. The paramount
consideration of the Court is to ensure that miscarriage of justice is prevented.
A miscarriage of justice which may arise from cquittal of the guilty is no less
than from the conviction of an innocent. In a case where admissible evidence is
ignored, a duty is cast upon the appellate Court to re-appreciate the evidence
where the accused has been acquitted, for the purpose of ascertaining as to
whether any of the accused really committed any offence or not."
7. CONCLUSION
The force of judgment is derived from the recording of evidence. As such,
the mode of taking and recording evidence is an integral feature of criminal
trial. Higher Court (Appellate/Revisional Court) looks at the evidence through
the eyes of the trial Judge. Unless a Judge is well equipped with legal
knowledge and also well trained in recording evidence, protection of innocent
and punishment to the guilty would be a far-cry. The progression of the Indian
evidence law is apparent as it has withstood the pressures and challenges of
technology and the cyber world. The appropriate amendments in Evidence Law,
incorporated by our judiciary shows pro-activism. In my opinion, the law
enforcement agencies and investigating officers have to update themselves
about the authentication process prescribed by the court regarding the
admissibility of electronic / digital evidences so that impediments in trial
procedures can be successfully overcome.
 38

Paper Presented by

Smt Gogi Kalarchana,

Addl. Junior Civil Judge,
Jaggaiahpet

Introduction:-
In a criminal case, court determines the guilt of an accused on the
basis of evidences produced before it. Indian Evidence Act provides the facts on
which evidence can be produced before the court. People have faith and
confidence on Courts and they come to Court for justice. The object of a
Criminal Court is to do justice, so to say, to convict the guilty and protect the
innocent on the basis of evidence given by the witness. The main motto of a
criminal trial is to search for the truth and it is possible only on analysis of
evidence given by the witness. As such, the duty of a Criminal Court is to
arrive at the truth and subserve the ends of justice.
The word “Evidence” is derived from the Latin root word “evidare”
which means “to show clearly; to ascertain; to prove”.
As per Section 3 of the Indian Evidence Act, evidence means and
includes both oral and Documentary evidence. Oral evidence includes all the
statements which the court permits or requires to be made before it by
witnesses, in relation to matters of fact under enquiry. Documentary evidence
includes all documents including electronic records produces for the inspection
of court.
To elicit the truth, Courts require proper or relevant facts and record
evidence in clear and intelligible manner. For which a presiding judge must
actively participated in process of trial and exercise his control over the court
proceedings effectively; Whenever the witness deposed irrelevant fact which is
unnecessary to case, the presiding judge should interfere and tried to overcome
it, so that the ultimate objective i.e., the truth is come out from the mouth of
the accused.
In Kalyan Kumar Gogoi vs. Ashutosh Agnihotri (AIR 2011 SC 760),
the Hon‟ble Apex Court observed: “The word ‘evidence’ is used in common
parlance in three different senses: (a) as equivalent to relevant (b) as equivalent
to proof and (c) as equivalent to the material, on the basis of which courts come
to a conclusion about the existence or non-existence of disputed facts.
Though, in the definition of the word "evidence" given in Section 3 of the
Evidence Act one finds Recording of Evidence – Relevance, 2 Admissibility and
Appreciation only oral and documentary evidence, this word is also used in
phrases such as : best evidence, circumstantial evidence, corroborative
evidence, derivative evidence, direct evidence, documentary evidence, hearsay
evidence, indirect evidence, oral evidence, original evidence, presumptive
evidence, primary evidence, real evidence, secondary evidence, substantive
 39

evidence, testimonial evidence, etc. The idea of best evidence is implicit in the
Evidence Act. Evidence under the Act, consists of statements made by a
witness or contained in a document. If it is a case of oral evidence, the Act
requires that only that person who has actually perceived something by that
sense, by which it is capable of perception, should make the statement about it
and no one else. If it is documentary evidence, the Evidence Act requires that
ordinarily the original should be produced, because a copy may contain
omissions or mistakes of a deliberate or accidental nature.
These principles are expressed in Sections 60 and 64 of the Evidence
Act.:
After understanding the meaning and scope of evidence, the next concept
which needs to be looked upon is about the facts of which evidence can be
given. Section 5 of the Indian Evidence Act provides that evidence may be given
in any suit or proceedings of the existence or non-existence of every fact in
issue and relevant fact. Fact in issue means any fact from which, either by
itself or in connection with other facts, the existence, non-existence, nature or
extent of any right, liability or disability, asserted or denied in any suit or
proceeding, necessarily follows.
Section 272 to 283 of the Code of Criminal Procedure deal with mode of taking
and recording evidence in Criminal courts.
1. RECORDING OF EVIDENCE:
Taking and recording evidence would assume great significance in
administration of justice. A good and reasoned judgment lags behind clear and
correct recording of evidence. Sections 272 to 283 of the Code of Criminal
Procedure, 1973 read with rules covered under Chapter XIII of General Rules
and Circular Order (Criminal) Volume –I would throw light to a Presiding Judge
or Magistrate on mode of taking and recording evidence in criminal cases.
Section 273 mandates to record all the evidence in presence of the accused. If
personal attendance of the accused is dispensed with, the same must be
recorded in presence of his pleader.
Section 274 lays down that the Magistrate shall record the memorandum of
substance of evidence of a witness in open Court and such memorandum
Recording of Evidence – Relevance, Admissibility and Appreciation 3 must be
signed by him and shall form part of the record so far as summons case is
concerned. In a warrant case, the Magistrate shall record the evidence of a
witness by taking down by himself or cause it to be taken down in the
narrating form.
Section 275(3) permits the Magistrate to record the evidence in the form of
question and answer. In view of the proviso to section 275(1), the evidence of a
witness may be recorded by audio video electronic means in presence of the
advocate of the accused.
 40

Section 276 says that recording of evidence before Sessions Court should be
in the form of narrative. The Presiding Judge may, in his discretion, take down
or cause to be taken down, any part of such evidence in the form of question
and answer and the evidence so taken down shall be signed by the Presiding
Judge.
Section 278 stipulates that evidence of a witness when completed should be
read over to him in presence of the accused or his pleader. It should not be
done so at the end of the day after all witnesses have been examined. When the
evidence is read over to the witness or to his pleader, if necessary, it can be
corrected. If the witness denies the correctness of any part of the evidence, the
Presiding Judge may instead of correcting the evidence, make the
memorandum of the objection raised by the witness and shall add such
remarks as he deems fit. If the evidence is recorded in the language not
understood by the accused or his pleader, it shall be contemplated in open
Court in the language understood to them.
Section 280 empowers the Presiding Judge or the Magistrate to record the
remarks, if any, if he thinks material in respect of the demeanour of any
witness and he should avoid formulating any opinion on the credibility of the
witness until the whole evidence has been taken.
Sec 284 to 289 of Cr.P.C. deal with examination of witnesses on
commissions. Recording of Evidence – Relevance, 4 Admissibility and
Appreciation Sec. 299 Cr.P.C. deals with recording of evidence in the absence
of accused.
Sec. 317 Cr.P.C. deals with provision for enquiries and trial being held in the
absence of the accused in certain cases.
As per rule 83, the margin of one-fourth of the deposition sheet should be left
blank. Rule 84 enables Court to record deposition by type writing machine. A
certificate must be given by the Presiding Judge that evidence is recorded to his
dictation in open Court and each page of the record so made must be attested
by him.
Rule 85 indicates that Presiding Judge or Magistrate shall record in his own
handwriting the name of the witness examined, name of his father and if she is
a married one, the name of her husband, profession, age of the witness, village,
police-station, district in which the witness resides, the entry of age of the
witness shall be according to the estimation of the Presiding Judge.
So far as doubtful expression is concerned, the trial Court should
actually record the word used by the witness so that its exact signification can
be assessed in judgment. Assistance of an interpreter may be taken if the
language of the witness is not understood by the accused Court, or lawyers.
According to rule 87, deposition of each witness should be separately
paragraphed and consecutive numbers should be assigned.
 41

In reference to Rule 88, the Magistrate or the Presiding Judge shall

personally sign the certificate at the bottom of the deposition of each witness to
the effect that read over and explained to the witness in presence of the
accused/pleader representing the accused and admitted to be correct.
Marking of Exhibits:
1. The documents admitted as evidence on behalf of the prosecution shall be
marked with number in the order in which they are admitted. For example:
Ext.P.1,P.2 etc.,
2. The documents admitted as evidence on behalf of the defence shall be marked
with capital letters. For example: Ext. D.1, D.2, etc.
3. When documents admitted at the instance of the Court and neither party is
willing to accept them as evidence, they shall be marked as: Ext. C-I, C-II etc.
4. When a number of documents of same nature will be admitted, the whole
series shall bear the same number or same capital letter, as the case may be,
and a small number or small letter being added to distinguish each document
of the series. For example: Exhibit 11, 12, 13 etc. Aa, Ab, Ac etc., C-I/1, C-I/2,
etc., etc.
5. When any article or material which is produced and after being proved and
admitted in evidence, it shall be marked with a Roman number. For example:
MO-I, MO- II etc.
6. List of articles admitted in evidence shall be prepared by the Bench Clerk of the
Court and shall be signed by the Judge.
Considerable Solutions to practical problems in aid of the Evidence Act,
1872:
a) Examination in chief and cross-examination must relate to relevant facts. The
objects of cross-examination are to impeach the accuracy, credibility and
general value of the evidence given in chief, shift the facts already stated by
witnesses, to detect and expose discrepancies, to elicit suppressed facts which
will support the case of cross-examining party.
b) Repetition of questions is prohibited in view of the ratio laid down by the
Bombey High Court in deciding a criminal appeal in 485 of 2006 (date of
judgment: 06.05.2011)
c) The cross-examiner should be asked to repeat the question, if the witness is
unable to understand. This minor precaution can prevent improper and
incorrect recording of evidence. Ordinary witness should not be asked
regarding legal provisions. At times legal questions may be relevant to an
expert witness.
d) While recording omissions and contradictions, the Presiding Officer must verify
the previous statement. When the omissions relate to the natural part of the
statement, it should be specifically recorded to that effect.
 42

e) Unless documents are properly filed on record, they should not be permitted to
refer in cross-examination.
f) Handwriting or signature may be proved by the person who wrote or signed,
who acquainted with the handwriting or signature or by the Court itself by
means of comparison or through opinion of expert.
g) If a document is duly proved but mechanically or otherwise is not exhibited,
still it can be read in evidence. Courts take judicial notice of public document.
All official documents are also public documents. Certified copies of public
documents are treated to be genuine unless contrary is proved. Truth of
contents of certified copies of private documents like sale deed, gift deed, lease
deed, etc., are required to be proved by independent evidence.
h) Court insists for direct evidence and primary evidence. Execution of a
document is proved by admissible evidence. Admissible evidence is by way of
admission by signatory to the document of its execution, by way of examination
of a scribe, by way of examination of an attesting witness, by proof of signature
and handwriting of the person who signed or wrote the document produced, by
proof of digital signature, by expert’s opinion or by proof as to verification of
digital signature.
i) Where several accused of the same name appear at one trial, care should be
taken in recording evidence to specify the name of the father of the accused.
2. RELEVANCY OF EVIDENCE:
While recording evidence the court has to see whether the evidence
produced is relevant or not. Relevant fact means one fact is said to be relevant
to another when the one is connected with the other in any of the ways referred
to in the provisions of Indian Evidence Act relating to the relevancy of facts.
Sections 5 to 55 of Indian Evidence Act deals with Relevancy of facts.
“Relevant Evidence is evidence that makes a fact more or less likely to be true
than it would be without the evidence (looking for probative value). Relevant
evidence may be excluded for unfair prejudice, confusion, or waste of time.
Relevant evidence is generally admissible and irrelevant evidence is never
admissible.
Leading Principles on Relevance
a) that nothing is to be received which is not logically probative of some matter
requiring to be proved; and
b) that everything which is thus probative should come in, unless a clear ground
of policy or law excludes it. Relevancy exists as a relation between an item of
evidence and a proposition sought to be proved.
Logical Relevance Vs. Legal Relevance
A fact is said to be logically relevant to another when it bears such a
causal relation with the other as to render probable the existence or
nonexistence of the latter. All facts which are logically relevant are not legally
 43

relevant. One fact is said to be legally relevant to another, only when the one is
connected with the other in any of the ways referred to in Ss. 5 to 55 of the
Evidence Act. Logical relevancy is wider than legal relevancy; every fact which
is legally relevant is logically relevant, but every fact which is logically relevant
is not necessarily legally relevant. Thus, a confession made to a Recording of
Evidence – Relevance, Admissibility and Appreciation 5 police officer may
appear to be logically relevant, but such a confession is not legally relevant.
Sec.25 of the Act declares that it cannot be used as evidence against the
person making it. The Indian Evidence Act lays down, in Ss. 5-55, what facts
are relevant; but the mere fact of logical relevancy does not ensure the
admissibility of a fact. Very often, public considerations of fairness and the
practical necessity for reaching speedy decisions necessarily cause the rejection
of much of the evidence which may be logically relevant.
Thus, all evidence that is admissible is relevant, but all that is relevant is
not necessarily admissible. Relevancy is the genus of which admissibility is a
species. Thus, oral statements which are hearsay may be relevant, but not
being direct evidence, are not admissible. Legal relevancy is, for the most part,
based upon logical relevancy, but it is not correct to say that all that is logically
relevant is necessarily legally relevant and vice versa. Certain classes of facts
which, in ordinary life, are relied upon as logically relevant are rejected by law
as legally irrelevant.
3. ADMISSIBILITY OF EVIDENCE:
Admissibility means that the facts which are relevant are only admissible
by the Court. According to section 136 of the Indian Evidence Act, however, the
final discretion on the admissibility of evidence lies with the judge. Section 136
states that: “When either party proposes to give evidence of any fact, the Judge
may ask the party proposing to give the evidence in what manner the alleged
fact, if proved, would be relevant; and the Judge shall admit the evidence if he
thinks that the fact, if proved, would be relevant, and not otherwise. If the fact
proposed to be proved is one of which evidence is admissible only upon proof of
Recording of Evidence – Relevance, 6 Admissibility and Appreciation some
other fact, such last- mentioned fact must be proved before evidence is given of
the fact first- mentioned, unless the party undertakes to give proof of such fact,
and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact
being first proved, the Judge may, in his discretion, either permit evidence of
the first fact to be given before the second fact is proved, or require evidence to
be given of the second fact before evidence is given of the first fact.”
The essential ingredients of the above section are:
a. It is the judge who decides the questions of relevancy and admissibility.
 44

b. When a party proposes to adduce evidence of any fact, the judge may ask the
party to clarify „in what manner‟ the fact would be relevant. The judge would
„admit‟ the particular adduced fact only if he is satisfied with the answer of the
party that it is, indeed, relevant under one or the other provisions of S. 5 to 55.
Thus the consideration of relevancy comes first and of admissibility later and
the judge will admit the fact only if it is relevant.”
The State of U.P. V. Ram Veer Singh and Another reported in 2007 (6)
Supreme 164 the Hon'ble Apex Court has held as follows:
"The golden thread which runs through the web of administration of
justice in criminal cases is that if two view are possible on the evidence
adduced in the case, one pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the accused should be adopted.
The paramount consideration of the Court is to ensure that miscarriage of
justice is prevented. A miscarriage of justice which may arise from acquittal of
the guilty is no less than from the conviction of an innocent. In a case where
admissible evidence is ignored, a duty is cast upon the appellate Court to re-
appreciate the evidence where the accused has been acquitted, for the purpose
of ascertaining as to whether any of the accused really committed any offence
or not."
In yet another decision in State of U.P. V. Ram Veer Singh and Another
reported in 2007 (6) Supreme 164 the Hon'ble Apex Court has held as
follows:
"The golden thread which runs through the web of administration of
justice in criminal cases is that if two view are possible on the evidence
adduced in the case, one pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the accused should be adopted.
The paramount consideration of the Court is to ensure that miscarriage of
justice is prevented. A miscarriage of justice which may arise from acquittal of
the guilty is no less than from the conviction of an innocent. In a case where
admissible evidence is ignored, a duty is cast upon the appellate Court to re-
appreciate the Justice K. N.BASHA, Judge, High C ourt. evidence where the
accused has been acquitted, for the purpose of ascertaining as to whether any
of the accused really committed any offence or not."
In the case of Ram Bihari Yadav v. State of Bihar (AIR 1998 SC 1859) the
Hon'ble Supreme Court:-
observed that “More often the expressions „relevancy and admissibility‟
are used as synonyms but their legal implications are distinct and different
from for more often than not facts which are relevant are not admissible; so
also facts which are admissible may not be relevant, for example questions
permitted to put in cross examination to test the veracity or impeach the credit
of witnesses, though not relevant are admissible. The probative value of the
 45

evidence is the weight to be given to it which has to be judged having regards to

the fact and circumstances of each case.
Recording of Evidence – Relevance, Admissibility and Appreciation In the
case of Lakshmandas Chaganlal Bhatia v. State, (AIR 1968 Bom. 807)
the Hon'ble Bombay High court laid down the following to be “relevant
facts”:
1. Facts necessary to explain or introduce a fact in issue or relevant fact;
2. Facts which support or rebut an inference suggested by a fact in issue or a
relevant fact;
3. Facts which establish the identity of anything or person whose identity is
relevant;
4. Facts which fix the time and place at which any fact in issue or relevant fact
happened;
5. Facts which show the relation of parties by whom any fact in issue or
relevant fact was transacted. Another section of the Evidence Act which deals
with admissibility is the Section 11. Section 11 deals with those facts which are
not otherwise relevant but become relevant if they are inconsistent with any
relevant fact or they make the existence or non-existence of any relevant fact
highly probably or improbable.
In Sheikh Ketab-Uddin v. Nagarchand Pattak (AIR 1927 Cal.230),
it was held, that where the executants of an archive holding presentations of
boundaries of land are alive and don‟t give their evidence, such archives are
not acceptable under this segment.
In Ambikacharan v. Kumuk Mohan (AIR 1928 Cal.893), it was held that as a
general rule, S.11 is controlled by S.32, “when the evidence consists of
statement of persons who are dead and the test whether such a statement is
relevant under S.11, though not relevant and admissible under S.32, is that it
is admissible under S.11, when it is altogether immaterial whether what said
was true or false, but highly material that it was said.
4. TECHNOLOGY/ DIGITAL EVIDENCE:
Electronic record is documentary evidence under section 3 of the
Evidence Act. Any information contained in an electronic record is deemed to
be a document. An electronic record may be like computer print out, Compact
Disc (CD), Video Compact Disc (VCD), Pen drive, Chip etc.,. In other words, it
may be printed on a paper, stored, recorded or copied in optical or magnetic
media produced by a computer. The Evidence Act does not contemplate or
permit the proof of an electronic record by oral evidence. If an electronic record
as such is used as primary evidence under section 62 of the Evidence Act, the
same is admissible in evidence. The general law on secondary evidence under
section 63 read with section 65 of the Evidence Act has no application in case
of secondary evidence by way of electronic record.
 46

Digital evidence is any probative information stored or transmitted in

digital form. A party in court case may use the same at trial. Before accepting
digital evidence a court will determine if the evidence is relevant, whether it is
authentic, if it is secondary evidence and whether a copy is acceptable or the
original is required. To know the principles as to admissibility of such evidence,
it is essential to go through the ruling in Anvar P.V. Versus, P.K. Basheer
and Others, MANU/SC/0834/2014 (Infra). The essential ingredients of section
65-B, 65-B (2), 65-B (3), and 65-B (4) of the Indian Evidence Act,1872 are
relevant as to appreciation of electronic evidence.
In State of Maharashtra vs. Dr Praful B Desai (AIR 2003 SC 2053),
the Supreme Court observed that video conferencing is an advancement of
science and technology which permits seeing, hearing and talking with
someone who is not physically present with the same facility and ease as if
they were physically present. The court allowed the examination of a witness
through video conferencing. In this case, it was observed that ”there is no
reason why the examination of a witness by video conferencing should not be
an essential part of electronic evidence.” In Amitabh Bagchi Vs. Ena Bagchi
(AIR 2005 Cal 11), it was held that the physical presence of person in Court
may not be required for purpose of adducing evidence and the same can be
done through medium like video conferencing.
The same is wholly governed by sections 65-A & 65 B. In State (NCT
of Delhi) v. Navjot Sandhu @ Afsan Guru: (2005) 11 SCC 600, the Apex
Court while considering the print out of the computerised records of the
calls pertaining to the cell phones in view of the production of electronic
record held as follows-
“ irrespective of the compliance with the requirement of section 65–B,
which is a provision dealing with admissibility of the electronic records, there is
no bar to adducing secondary evidence under the other provisions of the
Evidence Act, namely, sections 63 & 65. It may be that the certificate
containing the details in Sub-section (4) of section 65-B is not filed in the
instance case, but that does not mean that secondary evidence cannot be given
even if the law permits such evidence to be given in the circumstances
mentioned in the relevant provisions, namely, sections 63 & 65.”
The nature and manner of admission of electronic records was one of
the principal issues arising for consideration before the Apex Court in the
aforesaid appeal. The appellant therein admittedly has not produced any
certificate in terms of section 65–B in respect of the impugned CDs. Therefore,
the same could not be admitted in evidence. For such reasons, the whole case
set up regarding the corrupt practice using sounds, announcements and
speeches fall to the ground.
 47

After enacting Information Technology Act, 2000, the electronic evidence

has assumed great importance. Sec.65 (A) and (B) of the Act provide the Rules
regarding the admissibility of electronic record. Sec.65(B) of the Act is the
provision which provides that an electronic record by way of computer output
is admissible only if certain conditions are satisfied. To admit and prove an
electronic record such as computer output is necessary.
In Ziyauddin Barhuddin Bhukari v. Brijmohan Ramdas Mehra ((1976)
2 SCC 17), it was held by the Hon‟ble Apex Court that Tape record speeches
were defined by Sec.3 of the Evidence Act, which stood on no different footing
than photographs and that they were admissible in evidence on satisfying the
following conditions:- (a) The voice of the person alleged to be speaking must be
duly identified by the maker of the record or by others who know it. (b)
Accuracy of what was actually recorded had to be proved by the maker of the
record and satisfactory evidence, direct or circumstantial, had to be there so as
to rule out possibilities of tampering with the record. (c) The subject matter
record had to be shown to be relevant according to rules of relevancy found in
the Evidence Act.
In Jagjit Singh v. State of Haryana (AIR 2007 SC 594), the Hon'ble
Supreme Court found no infirmity in the Speaker of the Legislative Assembly
of the State of Haryana relying on the digital evidence in the said case. The
original compact disc was received from Zee Tele films along-with the
translation in English of the transcript of the interview conducted in the said
channel. The Apex Court in the said case has also held that the doctrine of
necessity would also be applicable in relying on such evidence.
In State (NCT of Delhi) v. NAVAJOT SANDHU (AIR 2005 SC 3820) a
two Judge Bench of the Hon‟ble Supreme Court in respect of media interview
of the accused has held that since the interview in that case was in the
Recording of Evidence – Relevance, Admissibility and Appreciation 9 immediate
presence of police, it is not admissible. The Hon‟ble Supreme Court in the
same Judgment has an occasion to consider an issue of production of
electronic record as evidence. While considering of the printouts of the
computerized records of the calls pertaining to the cellphones, has held that
irrespective of compliance with the requirement Sec.65-B of the Act, there is no
bar in adducing the secondary evidence.
In P.V. Anvar v. P.K.Basheer (AIR 2015 – SC 186) a three Judge
Bench of the Hon‟ble Supreme Court has held that the statement of law on
admissibility of secondary evidence pertaining to electronic record, as stated in
Navjot Sandhu case, does not lay down the correct legal position. The three
Judges Bench overruled it and held that an electronic record by way of
secondary evidence shall not be admitted in evidence unless the requirements
under Section 65B (4) of the Act are satisfied. Thus, in the case of CD, VCD,
 48

chip, etc., the same shall be accompanied by the certificate in terms of Section
65B (4) of the Act obtained at the time of taking the document, without which,
the secondary evidence pertaining to that electronic record, is inadmissible.
The condition provided in Sec.65B (4) of the Act are as under:-
a) There must be a certificate which identifies the electronic record containing the
statement;
b) The certificate must describe the manner in which the electronic record was
produced;
c) The certificate must furnish the particulars of the evidence involved in the
production of that record;
d) The certificate must deal with the applicable conditions mentioned under
Section 65B(2) of the Evidence Act and Recording of Evidence – Relevance, 10
Admissibility and Appreciation;
e) The certificate must be signed by a person occupying a responsible official
position in relation to the operation of the relevant device. It is further clarified
that the person need only to state in the certificate that the same is to the best
of his knowledge and belief. Most importantly, such a certificate must
accompany the electronic record like computer printout, Compact Disc (CD),
Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is
sought to be given in evidence, when the same is produced in evidence. All
these safe-guards are taken to ensure the source and authenticity, which are
the two hallmarks pertaining to electronic record sought to be used as
evidence. Electronic records being more susceptible to tampering, alteration,
transposition, excision, etc., without such safe-guards, the whole trial based on
proof of electronic records can lead to travesty of justice.
5. APPRECIATION OF EVIDENCE:
In a criminal case appreciation of evidence is one of the first and
foremost tests to consider the credibility and reliability of the prosecution
version both oral and documentary. The finding of the facts, the question of law
and the conclusion of the Judges of the Court culminating into the judgments
in a criminal case mainly based on the appreciation of evidence. Right from
setting the law in motion in a criminal case by preferring FIR and after
completion of investigation filing the final report ultimately resulting in
producing and adducing the evidence before the Court consist varied kinds of
evidence both oral and documentary and the admissibility and reliability of
such evidence should be considered by the Court on the basis of the facts and
law for arriving at the just decision of the case. Therefore appreciation of
evidence is the heart and soul of the dispensation of justice delivery system in
criminal law. Criminal cases involves life and death problem of a citizen and
the destiny of the citizen is to be decided by carefully analyzing and
scrutinizing the evidence adduced by the prosecution.
 49

Conclusion:
The appropriate amendments in Evidence Law, incorporated by our
judiciary show pro-activism. The Presiding Judge or Magistrate shall scrutinize
evidence led by both the parties under a reasoned judgment. The force of
judgment is derived from the recording of evidence. As such, the mode of
taking and recording evidence is un-constable and integral feature of criminal
trial. Higher Court (Appellate/Revisional Court) looks at the evidence through
the eyes of the trial Judge. Unless a Judge is well equipped with legal
knowledge and also well trained in recording evidence, protection of innocent
and punishment to the guilty would be a far-cry. The progression of the Indian
evidence law is apparent as it has withstood the pressures and challenges of
technology and the cyber world. I concluded that the presiding judges,
advocates and investigating officers have to update and adjudicate themselves
to give their eminent support in the process of recording of evidence so that
impediments in trial procedures can be successfully overcome.
 50

Paper Presented by

Smt. BMR Prasanna Latha,

Addl. Junior Civil Judge,
Tiruvuru.

The important part in the entire Evidence Act is mode of recording

evidence and Relevancy and Admissibility of evidence and Appreciation of
evidence relating to fact – in – issue.
1. Meaning of evidence:-
The Word 'evidence' is derived from the Latin word 'Evidentia' which
means 'the state of being evident, i.e., plain, apparent clear”. It is also related
to the Latin expression' evidence evidere' which means to show clearly, to make
plain, certain or to prove.
2. Definition of Evidence:-
As per Sec.3 the Indian Evidence Act (for brevity “I.E. 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 or fact under inquiry; such statements
are called evidence;
(2) (all documents including electronic records produced for the
inspection of the Court); such documents are called documentary evidence.
Thus, the oral and documentary evidence adduced and produced before
the Court has to be carefully and cautiously scrutinized to decide which
evidence is admissible, believable, reliable and trustworthy. The public at large
have un-clenching faith, trust and high confidence in the Indian Judiciary and
Courts as such the litigant public approach Courts for justice. The main motto
of the Court in conducting the trail is to search for the truth, to meet the ends
of justice and to render justice. In order to find out the truth Courts require
proper or relevant facts and record of evidence in clear and intelligible manner.
The point for discussion is what is mode of recording evidence in Indian
Courts. In the administration of justice taking and recording of evidence
assumes great significance as the good and reasoned judgment solely depends
on clear and admissible evidence. The main object of the examination-in-chief
and cross-examination must be related to the facts and to impeach the
accuracy, credibility and general value of the evidence given in chief and to
expose the discrepancies. The courts in general insist for direct evidence and
primary evidence. Execution of a document is proved by admissible evidence.
Admissible evidence is by way of admission by signatory to the document of its
execution, by way of examination of scribe, of an attesting witness and by proof
of signature and handwriting of the person who signed or wrote the document
produced, by proof of digital signature, and by expert’s opinion or by proof as
to verification of digital signature.
 51

3. Mode of recording Evidence:-

a) Taking and recording evidence would assume great significance in
administration of justice. A good and reasoned judgment lags behind clear and
correct recording of evidence. Sections 272 to 283 of the Code of Criminal
Procedure, 1973 read with rules covered under Chapter XIII of General Rules
and Circular Order (Criminal) Volume –I would throw light to a Presiding Judge
or Magistrate on mode of taking and recording evidence in criminal cases.
b) Section 273 mandates to record all the evidence in presence of the
accused. If personal attendance of the accused is dispensed with, the same
must be recorded in presence of his pleader.
c) Section 274 lays down that the Magistrate shall record the memorandum
of substance of evidence of a witness in open Court and such memorandum
must be signed by him and shall form part of the record so far as summons
case is concerned. In a warrant case, the Magistrate shall record the evidence
of a witness by taking down by himself or cause it to be taken down in the
narrating form.
d) Section 275(3) permits the Magistrate to record the evidence in the form
of question and answer. In view of the proviso to section 275(1), the evidence of
a witness may be recorded by audio video electronic means in presence of the
advocate of the accused.
e) Section 276 says that recording of evidence before Sessions Court should
be in the form of narrative. The Presiding Judge may, in his discretion, take
down or cause to be taken down, any part of such evidence in the form of
question and answer and the evidence so taken down shall be signed by the
Presiding Judge.
f) Section 278 stipulates that evidence of a witness when completed should
be read over to him in presence of the accused or his pleader. It should not be
done so at the end of the day after all witnesses have been examined. When the
evidence is read over to the witness or to his pleader, if necessary, it can be
corrected. If the witness denies the correctness of any part of the evidence, the
Presiding Judge may instead of correcting the evidence, make the
memorandum of the objection raised by the witness and shall add such
remarks as he deems fit. If the evidence is recorded in the language not
understood by the accused or his pleader, it shall be contemplated in open
Court in the language understood to them.
g) Section 280 empowers the Presiding Judge or the Magistrate to record the
remarks, if any, if he thinks material in respect of the demeanour of any witness
and he should avoid formulating any opinion on the credibility of the witness
until the whole evidence has been taken.
h) As per rule 83, the margin of one-fourth of the deposition sheet should be
left blank. Rule 84 enables Court to record deposition by type writing machine.
 52

A certificate must be given by the Presiding Judge that evidence is recorded to

his dictation in open Court and each page of the record so made must be
attested by him.
I) Rule 85 indicates that Presiding Judge or Magistrate shall record in his
own handwriting the name of the witness examined, name of his father and if
she is a married one, the name of her husband, profession, age of the witness,
village, police-station, district in which the witness resides, the entry of age of
the witness shall be according to the estimation of the Presiding Judge.
j) So far as doubtful expression is concerned, the trial Court should actually
record the word used by the witness so that its exact signification can be
assessed in judgment. Assistance of an interpreter may be taken if the language
of the witness is not understood by the accused Court, or lawyers.
k) According to rule 87, deposition of each witness should be separately
paragraphed and consecutive numbers should be assigned.
l) In reference to Rule 88, the Magistrate or the Presiding Judge shall
personally sign the certificate at the bottom of the deposition of each witness to
the effect that read over and explained to the witness in presence of the
accused/pleader representing the accused and admitted to be correct.
RELEVANCY AND ADMISSIBILITY IN EVIDENCE
The concept of relevance is one criterion that governs the admission and
use of evidence in a judicial proceeding. If the evidence does not relate directly
or indirectly to the issue at hand, it should not be admitted as proof for either
the prosecution or the defense. The term relevance in this context simply
means that the evidence in question is closely connected or logically related to
the matter at hand. Relevant evidence is the evidence that is logically
connected to the fact it intends to establish.
2. The term relevance refers to the degree of connection between a fact that
is given in and the issue to be proved. A fact is relevant when it is so related to
the fact in issue.
3. The term admissibility refers to the process whereby the court
determines whether the law of evidence permits that relevant evidence, to be
received by the court or not. An irrelevant fact is normally not admissible in
the court. However, in certain cases, evidence, which is not relevant, may still
be admissible. Basically, the rules of evidence draw a distinct line between
relevant & irrelevant facts, and admissible &inadmissible facts.
4. To distinguish between relevancy and admissibility, I would like to
explain the meaning of relevancy and admissibility before we proceed to the
difference between these two concepts.
5. According to Janab’s Key to Evidence, relevancy refers to the degree of
connection and probative value between a fact that is given in evidence and the
issue to be proved. Relevancy of facts had been provided from Section 5 to 55
 53

of Evidence Act 1950. By referring to the illustration (a) provided in Section 5

where A is tried for the murder of B by beating him with a club with the
intention of causing his death. There are three facts in issue to be proved - A’s
beating B with the club; A’s causing B’s death by the beating; and A’s intention
to cause B’s death.
6. A fact is relevant when it is so related to the fact in issue, that they
render the fact in issue probable or improbable. For example, to prove the third
facts in issue in the example just now, the facts that A and B was having
quarrel before the murder happens is relevant to prove the third facts in issue
which is A’s intention to cause B’s death.
7. The concept of admissibility is often distinguished from relevancy.
Relevancy is determined by logic and common sense, practical or human
experience, and knowledge of affairs. On the other hand, The admissibility of
evidence, depends first on the concept of relevancy of a sufficiently high degree
of probative value, and secondly, on the fact that the evidence tendered does
not infringe any of the exclusionary rules that may be applicable to it.
Relevancy is not primarily dependant on rules of law but admissibility is
founded on law. Thus, relevancy usually known as logical relevancy while
admissibility is known as legal relevancy. Relevancy is a question of fact which
is the duty of lawyers to decide whether to tender such evidence in the court or
not. On the other hand, admissibility is the duty of the court to decide whether
an evidence should be received by the court or not according to Augustine Paul
JC in the case of Public Prosecutor v. Dato Seri Anwar bin Ibrahim.
APPRECIATION OF EVIDENCE
In a criminal case appreciation of evidence is one of the first and primary
tests to consider the trustworthiness and consistency of the prosecution
version both oral and documentary. The finding of the facts, the question of law
and the conclusion of the Judges of the Court culminating into the judgments
in a criminal case mainly based on the appreciation of evidence. Right from
setting the law in motion in a criminal case by preferring FIR and after
completion of investigation filing the final report ultimately resulting in
producing and adducing the evidence before the Court consist varied kinds of
evidence both oral and documentary and the admissibility and reliability of
such evidence should be considered by the Court on the basis of the facts and
law for arriving at the just decision of the case. Therefore appreciation of
evidence is the heart and soul of the special consideration of justice delivery
system in criminal law. Criminal cases involves life and death problem of a
citizen and the destiny of the citizen is to be decided by carefully analyzing and
examining the evidence adduced by the prosecution.
b) The standard of proof in Criminal cases is not the same as in the
Civil. Importantly, in criminal cases, the burden of proving the guilt of an
 54

accused is upon the prosecution. It must stand by itself. Essentially, accused

need not establish his case beyond all reasonable doubt. Of course, in some
cases, where the burden of proof relating to a fact in issue in a case is on the
accused, the stand of proof required of him is not the same as is required from
the prosecution. This proposition of law is no more res-integra. Upon such
proof as is adduced, if there is a real and reasonable doubt as to his guilt, the
accused is entitled to the benefit of doubt. The law always requires that the
conviction should be certain and not doubtful. If the evidence on record
establishes the truth of the charge and satisfies the reason and judgment of the
Court such evidence must be taken to have proved the charge beyond all
reasonable doubt justifying conviction. How to appreciate evidence in a
criminal case is explained in Sardul Singh vs. State of Haryana, AIR 2002 SC
3462).
Various Kinds of Evidences and Its Appreciation
1. First information Report:-
FIR is not an encyclopedia. It is only to set the law in motion. It need not
elaborate but should contain necessary allegations to constitute cognizable
offences.
a) Evidentiary Value:
Section 154, Cr.P.C – Use of FIR – FIR is not a substantial piece of
evidence. It can only be used for corroborating or contradicting its maker. It
cannot be used to corroborate or contradict other witnesses.
Section 154, Cr.P.C. – FIR – Evidentiary value – Corroboration of its
maker is permissible. But the first information report cannot be used as
substantive evidence or corroborating a statement of third party.
(b) Delay in FIR:-
Delay in FIR – The inordinate and unexplained delay in dispatching the
first information report to the Magistrate. The difference in the account given
by the prosecution witnesses and appearing from the first information report of
the occurrence. The absence of any statement in the first information report as
to the injuries received by some of the accused, and the non examination of
material witnesses. Conviction cannot be sustained.

APPRECIATION OF DOCUMENTARY EVIDENCE IN CIVIL CASE:-

THE HONBLE SRI JUSTICE RAMESH RANGANATHAN AND HONBLE SRI
JUSTICE M.SATYANARAYANA MURTHY, in P.Madhusudhan Rao vs Lt.Col.Ravi
Manan, CIVIL REVISION PETITION NO.4515 OF 2014, Date of judgment on12-
03-2015, clearly illustrated the rules for interpretation of a document with an
aid of rulings of the Hon’ble Supreme Court of India.
 55

The Supreme Court in Delhi Development of Authority Vs. Durga Chand, 1973
AIR 2609 has also noticed Odgers Rules and quoted them with approval and as
the observation of the Supreme Court have the force of law of the land, it may
be taken Odgers Rules (known as golden rules of interpretation) have been
judicially recognized and may be adopted as Rules for interpretation of the
documents in India.
These Rules are listed hereunder:-
1. The meaning of the document or of a particular part of it is therefore to be
sought for in the document itself.
2. The intention may prevail over the words used.
3. words are to be taken in their literal meaning.
4. literal meaning depends on the circumstances of the parties.
5. When is extrinsic evidence admissible to translate the language?
6. Technical legal terms will have their legal meaning.
7. Therefore the deed is to be construed as a whole. Apart from the said seven
rules listed by Odger, it would be convenient to list the following rules for the
sake of convenience are called additional rules and given number in
continuation:
8. Same words to be given the same meaning in the same contract.
9. Harmonious construction must be placed on the contract as far as possible.
However, in case of conflict between earlier or later clauses in a contract, later
clauses are to be preferred to the earlier; while in a will, earlier clause is to be
preferred to the later.
10. Contra Proferendum Rule-If two interpretations are possible, the one
favourable to the party who has drafted the contract and the other against him,
the interpretation against that party has to be preferred.
11. If two interpretation of a contract are possible the one which helps to make
the contract operative to be preferred to the other which tends to make it
inoperative.
12. In case of conflict between printed clauses and typed clauses, type clauses
are to be preferred. Similarly, in conflict between printed and hand written
clauses, hand written clauses are to be preferred and in the event of conflict
between typed and hand written clauses, the hand written calluses are to be
preferred.
13. the special will exclude the general.
14. Rule of expression unius est exclusion alterius.
15. Rule of noscitus a sociss.
16. Ejusdem generic rule will apply both the contract and statute.
17. place of Punctuation in interpretation of documents.
 56

CONCLUSION
The Presiding Judge or Magistrate shall scrutinize evidence led by both
the parties under a reasoned judgment. The force of judgment is derived from
the recording of evidence. As such, the mode of taking and recording evidence
is unconstable and integral feature of criminal trial. Higher Court (Appellate/
Revisional Court) looks at the evidence through the eyes of the trial Judge.
Unless a Judge is well equipped with legal knowledge and also well trained in
recording evidence, protection of innocent and punishment to the guilty would
be a far-cry.
 57

Paper Presented by
Sri S.Vijaya Chandar,
Junior Civil Judge,
Bantumilli
1. INTRODUCTION
In administration of justice taking and recording evidence assumes great
significance. For discovery of the truth courts require proper or relevant facts
and recording of evidence in clear and intelligible manner. In a criminal case,
court determines the guilt of an accused on the basis of evidences produced
before it. Indian Evidence Act provides the facts 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 a person. Before
understanding how different evidences are appreciated by court, it is necessary
to understand some basic concepts of evidence law like what is evidence, facts
on which evidence can be given, basic rules of evidence and appreciation of
evidence.

The word “Evidence” is derived from the Latin root word “evidare”
which means “to show clearly; to ascertain; to prove”. As per Section 3 of
the Indian Evidence Act, evidence means and includes both oral and
Documentary evidence. Oral evidence includes all the statements which the
court permits or requires to be made before it by witnesses, in relation to
matters of fact under enquiry. Documentary evidence includes all documents
including electronic records produces for the inspection of court.

In Kalyan Kumar Gogoi vs. Ashutosh Agnihotri (AIR 2011 SC 760),

the Hon‟ble Apex Court observed: “The word ‘evidence’ is used in common
parlance in three different senses: (a) as equivalent to relevant (b) as equivalent
to proof and (c) as equivalent to the material, on the basis of which courts come
to a conclusion about the existence or non-existence of disputed facts. Though,
in the definition of the word "evidence" given in Section 3 of the Evidence Act
one findsonly oral and documentary evidence, this word is also used in phrases
such as : best evidence, circumstantial evidence, corroborative evidence,
derivative evidence, direct evidence, documentary evidence, hearsay evidence,
indirect evidence, oral evidence, original evidence, presumptive evidence,
primary evidence, real evidence, secondary evidence, substantive evidence,
testimonial evidence, etc. The idea of best evidence is implicit in the Evidence
Act. Evidence under the Act, consists of statements made by a witness or
 58

contained in a document. If it is a case of oral evidence, the Act requires that

only that person who has actually perceived something by that sense, by which
it is capable of perception, should make the statement about it and no one else.
If it is documentary evidence, the Evidence Act requires that ordinarily the
original should be produced, because a copy may contain omissions or
mistakes of a deliberate or accidental nature. These principles are expressed in
Sections 60 and 64 of the Evidence Act.”
After understanding the meaning and scope of evidence, the next concept
which needs to be looked upon is about the facts of which evidence can be
given. Section 5 of the Indian Evidence Act provides that evidence may be given
in any suit or proceedings of the existence or non-existence of every fact in
issue and relevant fact. Fact in issue means any fact from which, either by
itself or in connection with other facts, the existence, non-existence, nature or
extent of any right, liability or disability, asserted or denied in any suit or
proceeding, necessarily follows. Section 272 to 283 of the Code of Criminal
Procedure deal with mode of taking and recording evidence in Criminal courts.
2. RECORDING OF EVIDENCE
Mode of recording Evidence (Criminal)
Section 273 mandates to record all the evidence in presence of the accused. If
personal attendance of the accused is dispensed with, the same must be
recorded in presence of his pleader.
Section 274 lays down that the Magistrate shall record the memorandum of
substance of evidence of a witness in open Court and such memorandum must
be signed by him and shall form part of the record so far as summons case is
concerned. In a warrant case, the Magistrate shall record the evidence of a
witness by taking down by himself or cause it to be taken down in the
narrating form.
Section 275(3) permits the Magistrate to record the evidence in the form of
question and answer. In view of the proviso to section 275(1), the evidence of a
witness may be recorded by audio video electronic means in presence of the
advocate of the accused.
Section 276 says that recording of evidence before Sessions Court should be
in the form of narrative. The Presiding Judge may, in his discretion, take down
or cause to be taken down, any part of such evidence in the form of question
and answer and the evidence so taken down shall be signed by the Presiding
Judge.
Section 278 stipulates that evidence of a witness when completed should be
read over to him in presence of the accused or his pleader. It should not be
done so at the end of the day after all witnesses have been examined. When the
evidence is read over to the witness or to his pleader, if necessary, it can be
corrected. If the witness denies the correctness of any part of the evidence, the
 59

Presiding Judge may instead of correcting the evidence, make the

memorandum of the objection raised by the witness and shall add such
remarks as he deems fit. If the evidence is recorded in the language not
understood by the accused or his pleader, it shall be contemplated in open
Court in the language understood to them.
Section 280 empowers the Presiding Judge or the Magistrate to record the
remarks, if any, if he thinks material in respect of the demeanour of any
witness and he should avoid formulating any opinion on the credibility of the
witness until the whole evidence has been taken.
Sec 284 to 289 of Cr.P.C. deal with examination of witnesses on
commissions.
Sec. 299 Cr.P.C. deals with recording of evidence in the absence of accused.
Sec. 317 Cr.P.C. deals with provision for enquiries and trial being held in the
absence of the accused in certain cases.
3. RELEVANCY OF EVIDENCE
While recording evidence the court has to see whether the evidence
produced is relevant or not. Relevant fact means one fact is said to be relevant
to another when the one is connected with the other in any of the ways referred
to in the provisions of Indian Evidence Act relating to the relevancy of facts.
Sections 5 to 55 of Indian Evidence Act deals with Relevancy of facts. “Relevant
Evidence is evidence that makes a fact more or less likely to be true than it
would be without the evidence (looking for probative value). Relevant evidence
may be excluded for unfair prejudice, confusion, or waste of time. Relevant
evidence is generally admissible and irrelevant evidence is never admissible.
LEADING PRINCIPLES ON RELEVANCE
1) that nothing is to be received which is not logically probative of some matter
requiring to be proved; and
2) that everything which is thus probative should come in, unless a clear
ground of policy or law excludes it. Relevancy exists as a relation between an
item of evidence and a proposition sought to be proved.
LOGICAL RELEVANCE VS. LEGAL RELEVANCE
A fact is said to be logically relevant to another when it bears such a causal
relation with the other as to render probable the existence or non- existence of
the latter. All facts which are logically relevant are not legally relevant. One fact
is said to be legally relevant to another, only when the one is connected with
the other in any of the ways referred to in Ss. 5 to 55 of the Evidence Act.
Logical relevancy is wider than legal relevancy; every fact which is legally
relevant is logically relevant, but every fact which is logically relevant is not
necessarily legally relevant. Thus, a confession made to a police officer may
appear to be logically relevant, but such a confession is not legally relevant.
Sec.25 of the Act declares that it cannot be used as evidence against the
 60

person making it. The Indian Evidence Act lays down, in Ss. 5-55, what facts
are relevant; but the mere fact of logical relevancy does not ensure the
admissibility of a fact. Very often, public considerations of fairness and the
practical necessity for reaching speedy decisions necessarily cause the rejection
of much of the evidence which may be logically relevant.
Thus, all evidence that is admissible is relevant, but all that is
relevant is not necessarily admissible. Relevancy is the genus of which
admissibility is a species. Thus, oral statements which are hearsay may be
relevant, but not being direct evidence, are not admissible. Legal relevancy is,
for the most part, based upon logical relevancy, but it is not correct to say that
all that is logically relevant is necessarily legally relevant and vice versa.
Certain classes of facts which, in ordinary life, are relied upon as logically
relevant are rejected by law as legally irrelevant.
Cases of exclusion of logically relevant facts by positive rules of law are:
(I) Exclusion of oral by documentary evidence: Ss. 91-99. (ii) Exclusion of
evidence of facts by estoppel: Ss. 115-117. (iii) Exclusion of privileged
communications, such as confidential communications with a legal adviser,
communication during marriage, official communications, etc.: Ss. 121-130.
4. ADMISSIBILITY OF EVIDENCE
Admissibility means that the facts which are relevant are only admissible
by the Court. According to section 136 of the Indian Evidence Act, however, the
final discretion on the admissibility of evidence lies with the judge. Section 136
states that: “When either party proposes to give evidence of any fact, the Judge
may ask the party proposing to give the evidence in what manner the alleged
fact, if proved, would be relevant; and the Judge shall admit the evidence if he
thinks that the fact, if proved, would be relevant, and not otherwise. If the fact
proposed to be proved is one of which evidence is admissible only upon proof of
Recording of Evidence – Relevance, Admissibility and Appreciation 5some other
fact, such last- mentioned fact must be proved before evidence is given of the
fact first- mentioned, unless the party undertakes to give proof of such fact,
and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact
being first proved, the Judge may, in his discretion, either permit evidence of
the first fact to be given before the second fact is proved, or require evidence to
be given of the second fact before evidence is given of the first fact.”
The essential ingredients of the above section are:
1. It is the judge who decides the questions of relevancy and admissibility.
2. When a party proposes to adduce evidence of any fact, the judge may ask
the party to clarify „in what manner‟ the fact would be relevant.
The judge would „admit‟ the particular adduced fact only if he is satisfied with
the answer of the party that it is, indeed, relevant under one or the other
 61

provisions of S. 5 to 55. Thus the consideration of relevancy comes first and of

admissibility later and the judge will admit the fact only if it is relevant.”
In the case of Ram Bihari Yadav v. State of Bihar (AIR 1998 SC 1859)
the Hon'ble Supreme Court observed that “More often the expressions”
relevancy and admissibility‟ are used as synonyms but their legal
implications are distinct and different from for more often than not facts
which are relevant are not admissible; so also facts which are admissible may
not be relevant, for example questions permitted to put in cross examination to
test the veracity or impeach the credit of witnesses, though not relevant are
admissible. The probative value of the evidence is the weight to be given to it
which has to be judged having regards to the fact and circumstances of each
case.”
In the case of Lakshmandas Chaganlal Bhatia v. State, (AIR 1968
Bom. 807) the Hon'ble Bombay High court laid down the following to be
“relevant facts”:
1. Facts necessary to explain or introduce a fact in issue or relevant
fact;
2.Facts which support or rebut an inference suggested by a fact in
issue or a relevant fact;
3. Facts which establish the identity of anything or person whose
identity is relevant;
4.Facts which fix the time and place at which any fact in issue or
relevant fact happened;
5.Facts which show the relation of parties by whom any fact in issue
or relevant fact was transacted.
Another section of the Evidence Act which deals with admissibility is the
Section 11. Section 11 deals with those facts which are not otherwise relevant
but become relevant if they are inconsistent with any relevant fact or they
make the existence or non-existence of any relevant fact highly probably or
improbable.
In Sheikh Ketab-Uddin v. Nagarchand Pattak (AIR 1927 Cal.230), it
was held, that where the executants of an archive holding presentations of
boundaries of land are alive and don‟t give their evidence, such archives are
not acceptable under this segment.
In Ambikacharan v. Kumuk Mohan (AIR 1928 Cal.893), it was held
that as a general rule, S.11 is controlled by S.32, “when the evidence consists
of statement of persons who are dead and the test whether such a statement is
relevant under S.11, though not relevant and admissible under S.32, is that it
is admissible under S.11, when it is altogether immaterial whether what said
was true or false, but highly material that it was said.
 62

5. EVIDENCE CONNECTED WITH THE INFORMATION TECHNOLOGY/

DIGITAL EVIDENCE
After enacting Information Technology Act, 2000, the electronic evidence has
assumed great importance. Sec.65 (A) and (B) of the Act provide the Rules
regarding the admissibility of electronic record. Sec.65(B) of the Act is the
provision which provides that an electronic record by way of computer output
is admissible only if certain conditions are satisfied. To admit and prove an
electronic record such as computer output is necessary.
In Ziyauddin Barhuddin Bhukari v. Brijmohan Ramdas Mehra ((1976)
2 SCC 17), it was held by the Hon‟ble Apex Court that Tape record speeches
were defined by Sec.3 of the Evidence Act, which stood on no different footing
than photographs and that they were admissible in evidence on satisfying the
following conditions:- (a) The voice of the person alleged to be speaking must be
duly identified by the maker of the record or by others who know it. (b)
Accuracy of what was actually recorded had to be proved by the maker of the
record and satisfactory evidence, direct or circumstantial, had to be there so as
to rule out possibilities of tampering with the record. (c) The subject matter
record had to be shown to be relevant according to rules of relevancy found in
the Evidence Act.
In Jagjit Singh v. State of Haryana (AIR 2007 SC 594), the Hon'ble
Supreme Court found no infirmity in the Speaker of the Legislative Assembly of
the State of Haryana relying on the digital evidence in the said case. The
original compact disc was received from Zee Tele films along-with the
translation in English of the transcript of the interview conducted in the said
channel. The Apex Court in the said case has also held that the doctrine of
necessity would also be applicable in relying on such evidence.
In State (NCT of Delhi) v. NAVAJOT SANDHU (AIR 2005 SC 3820) a
two Judge Bench of the Hon’ble Supreme Court in respect of media interview
of the accused has held that since the interview in that case was in the
immediate presence of police, it is not admissible. The Hon‟ble Supreme Court
in the same Judgment has an occasion to consider an issue of production of
electronic record as evidence. While considering of the printouts of the
computerized records of the calls pertaining to the cellphones, has held that
irrespective of compliance with the requirement Sec.65-B of the Act, there is no
bar in adducing the secondary evidence.
In P.V. Anvar v. P.K.Basheer (AIR 2015 – SC 186) a three Judge Bench
of the Hon’ble Supreme Court has held that the statement of law on
admissibility of secondary evidence pertaining to electronic record, as stated in
Navjot Sandhu case, does not lay down the correct legal position. The three
Judges Bench overruled it and held that an electronic record by way of
secondary evidence shall not be admitted in evidence unless the requirements
 63

under Section 65B (4) of the Act are satisfied. Thus, in the case of CD, VCD,
chip, etc., the same shall be accompanied by the certificate in terms of
Section 65B (4) of the Act obtained at the time of taking the document,
without which, the secondary evidence pertaining to that electronic record, is
inadmissible.
The condition provided in Sec.65B (4) of the Act are as under:-
(a) There must be a certificate which identifies the electronic record
containing the statement;
(b) The certificate must describe the manner in which the electronic
record was produced;
(c) The certificate must furnish the particulars of the evidence involved in the
production of that record;
(d) The certificate must deal with the applicable conditions mentioned under
Section 65B(2) of the Evidence Act and
(e) The certificate must be signed by a person occupying a responsible official
position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate
that the same is to the best of his knowledge and belief. Most importantly, such
a certificate must accompany the electronic record like computer printout,
Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to
which a statement is sought to be given in evidence, when the same is
produced in evidence. All these safe-guards are taken to ensure the source and
authenticity, which are the two hallmarks pertaining to electronic record
sought to be used as evidence. Electronic records being more susceptible to
tampering, alteration, transposition, excision, etc., without such safe-guards,
the whole trial based on proof of electronic records can lead to travesty of
justice.
6. APPRECIATION OF EVIDENCE
In a criminal case appreciation of evidence is one of the first and
foremost tests to consider the credibility and reliability of the prosecution
version both oral and documentary. The finding of the facts, the question of law
and the conclusion of the Judges of the Court culminating into the judgments
in a criminal case mainly based on the appreciation of evidence. Right from
setting the law in motion in a criminal case by preferring FIR and after
completion of investigation filing the final report ultimately resulting in
producing and adducing the evidence before the Court consist varied kinds of
evidence both oral and documentary and the admissibility and reliability of
such evidence should be considered by the Court on the basis of the facts and
law for arriving at the just decision of the case. Therefore appreciation of
evidence is the heart and soul of the dispensation of justice delivery system in
criminal law. Criminal cases involves life and death problem of a citizen and
 64

the destiny of the citizen is to be decided by carefully analyzing and

scrutinizing the evidence adduced by the prosecution.
The Hon'ble Apex Court in Rang Bahadur Singh V. State of U.P.
reported in AIR 2000 SC 1209 has held as follows :“The time-tested rule is
that acquittal of a guilty person should be preferred to conviction of an
innocent person. Unless the prosecution establishes the guilt of the accused
beyond reasonable doubt a conviction cannot be passed on the accused. A
criminal court cannot afford to deprive liberty of the appellants, lifelong liberty,
without having at least a reasonable level of certainty that the appellants were
the real culprits.”
In another decision in State of U.P. V. Ram Veer Singh and Another
reported in 2007 (6) Supreme 164 the Hon'ble Apex Court has held as
follows:
"The golden thread which runs through the web of administration of justice in
criminal cases is that if two view are possible on the evidence adduced in the
case, one pointing to the guilt of the accused and the other to his innocence,
the view which is favourable to the accused should be adopted. The paramount
consideration of the Court is to ensure that miscarriage of justice is prevented.
A miscarriage of justice which may arise from cquittal of the guilty is no less
than from the conviction of an innocent. In a case where admissible evidence is
ignored, a duty is cast upon the appellate Court to re-appreciate the evidence
where the accused has been acquitted, for the purpose of ascertaining as to
whether any of the accused really committed any offence or not."
7. CONCLUSION
The Presiding Judge or Magistrate shall scrutinize evidence led by both
the parties under a reasoned judgment. The force of judgment is derived from
the recording of evidence. As such, the mode of taking and recording evidence
is unconstable and integral feature of criminal trial. Higher Court
(Appellate/Revisional Court) looks at the evidence through the eyes of the trial
Judge. Unless a Judge is well equipped with legal knowledge and also well
trained in recording evidence, protection of innocent and punishment to the
guilty would be a far-cry. The progression of the Indian evidence law is
apparent as it has withstood the pressures and challenges of technology and
the cyber world. The appropriate amendments in Evidence Law, incorporated
by our judiciary show pro-activism. In my opinion, the law enforcement
agencies and investigating officers have to update themselves about the
authentication process prescribed by the court regarding the admissibility of
electronic/digital evidences so that impediments in trial procedures can be
successfully overcome.