Kinds of Evidence
Kinds of Evidence
Kinds of Evidence
ARCHA.R*
INTRODUCTION
Evidence is basically the visible or available fatcs or any kind of information that
for some fact that already exsists. It helps verify the truth to the fullest extent and
helps in affirmation. With the help of proper substantial evidence, documentation and
authentication can be easily done. The evidence used can show, indicate, reveal a
It can aslo be said as the proof of facts presented at a trial.1 This proof is used to
persuade the judge to accept the facts of the case presented provided that the judge
does not have any pre-concieved mindset. The opposing party can then try to deny the
In Re Lord Lovatt2, it was held that, "There is no making brick without straw. There is
But this evidence has to have rules. Anything and eveyrthing cannot be accepted as it
1
*14BLA1004, 3RD YEAR BA.LLB(HONS.), VIT UNIVERSITY, CHENNAI.
http://www.duhaime.org/LegalDictionary/E/Evidence.aspx last visited on 21.7.2016
2
18 St. Tr. 530, at page 812 (1746).
In Fox v Mackreth3, it was held that "It is of very little consequence to the public to
lay down definite rules of law if you have indefinite rules of evidence."
Before the actual indian evidence act was passed, the idea of evidence mainly evloved
from the ancient hindu period, mainly from the hindu dharma shastras. The shastras
say that any trial should end only in truth. The vasista recognises three main types of
evidence.4 This includes the Lekhya which is the documentary evidence, the sakshi
which means witness and bukhthi which means possesion. The muslim period also
saw the emergence of oral and documentary evidence. After this, the britishers started
to have control over India. In British India, the presidency courts were following the
english rules of law of evidence. However, in courts outside the main towns, there
were no definite rules of evidence. This led to a lot of confusion. Therefore there was
a huge need to codify the exsisting haphazard rules of evidence. The first attempt was
made between 1835 to 1853. But the amendments passed during this time were found
but it somehow did not fit in well with the local conditions in India. Then again in
1870, Sir James Fitz James Stephen submitted a draft which was accepted by the
select committee and the high courts. Eventually the final draft was enacted and
Evidence in the simplest of sense means being plain, evident and obvious. It has been
derived from the latin word, ‘evidere’, which means to show clearly or prove
3
2 Cox 320 (1788)
4
http://www.lawctopus.com last visited on 25.7.2016
something.The fact that the evidence proves is called the principal fact and the fact
clear or ascertain the truth of the facts or points in issue either on one side or the
other.
disprove any matter of fact. The truth of which is submitted to judicial investigation.
clause.5
In this Act the following words and expressions are used in the following senses,
unless a contrary intention appears from the context:— “Court”. —“Court” includes
(1) any thing, state of things, or relation of things, capable of being perceived by the
senses;
(a) That there are certain objects arranged in a certain order in a certain place, is a
fact.
5
https://indiankanoon.org/doc/1031309/ last visited on 1.8.2016
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or
(e) That a man has a certain reputation, is a fact. “Relevant”. —One fact is said to be
relevant to another when the one is connected with the other in any of the ways
substance by means of letters, figures or marks, or by more than one of those means,
intended to be used, or which may be used, for the purpose of recording that matter.
witnesses, in relation to matters of fact under inquiry, such statements are called oral
evidence;
(2) 6 [all documents including electronic records produced for the inspection of the
Court], such documents are called documentary evidence. “Proved” .—A fact is said
to be proved when, after considering the matters before it, the Court either believes it
to exist, or considers its existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it exists.
before it, the Court either believes that it does not exist, or considers its non-existence
so probable that a prudent man ought, under the circumstances of the particular case,
to act upon the supposition that it does not exist. “ Not proved”. — A fact is said not
the territory of India excluding the State of Jammu and Kashmir .] 8 [the expressions
“secure digital signature” and “subscriber” shall have the meanings respectively
(1) All the statements which the court permits or requires to be made before it by
witnesses, in relation to matters of fact under enquiry; such statements are called Oral
evidence;
(2) All the documents including electronic records produced for the inspection of
The definition of Evidence given in this Act is very narrow because in this evidence
In Sivrajbhan v. Harchandgir6, it was held by the supereme court that “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
6
AIR 1954 SC 564
TYPES OF EVIDENCE
Documentary or secondary
Material or real
Direct
Indirect or hearsay
The first form of evidence is the most basic one. This is called as the oral evidence.
Section 60 of the indian ecidence act of 1872 specifies a provision which speaks of
The oral evidence should always be direct. It should refer only to a fact which can be
seen or must be an evidence from the witness who has seen it or is claiming to have
seen it. It referes to a fact which could be percieved by nay other sense. It also can
refer to opinions or the grounds on which such opinion is built. If the evidence is for
any document that is going to be used for sale, it can be produced as direct evidence if
the authour is dead or cannot be found or has become incapable of giving evidence or
cannot be called as a witness. If oral evidence includes any other material object other
than a document, if the court thinks it’s fit, it can be required to be produced for
witness to make. These statements should be truth based on facts. Oral evidence must
“A direct evidence is one which is not contrary to the main fact established in the
issue.”
The next type of evidence is called the documentary evidence. Section 3 of the indian
evidence act says that, any or all documents that are produced before the court of law
for inspection is called documentary evidence. In Harihar Prasad Singh And Ors vs
Balmiki Prasad Singh And Ors9, it was held that documentary evidences are more
important that oral evidence because, it shows that actual real attitude of the parties
The next type of evidence is called the primary evidence. This kind of evidence is
detailed in section 62 of the act. This type of evidence is the most supreme. They are
highly admissible in court and allowed in the first place. It is a kind of proof which
gives a very important vital hint about the disputed fact in any possible condition
8
2006 (4) JCR 117 Jhr
9
1975 SCR (2) 932
In Lucas v Williams10, the Privy Council held “Primary Evidence is evidence which
the law requires to be given first and secondary evidence is the evidence which may
be given in the absence of that better evidence when a proper explanation of its
The secondary evidence is the next important kind of evidence. It’s detailed in section
63 if the act. The ourt accepts these kind of evidence if there is no primary evidence.
In Kalyan Singh, London Trained, v. Smt. Chhoti And Ors11, it was held that if in
place of primary evidence secondary evidence is admitted without any objection at the
proper time then the parties are precluded from raising the question that the document
has not been proved by primary evidence but by secondary evidence. But where there
secondary evidence.
The next type of evidence is called the real evidence. Real evidence basically means
from inspecting an object physically and not by mere over the top observation. The
material object is brought to the knowledge of the court through proper examination.
the obvious. Few examples include contempt of court, conduct of witness, the
10
1892 Q.B 116
11
AIR 1990 SC 396
behaviour or attitudes of the parties, a weapon used to commit an act of murder. This
can be seen or felt and thus is more satisfactory than all the other types of evidences.
The next type of evidence is called the hearsay evidence. This one is the weakest of
all the evidences. This because it’s a kind f evidence which is synonomus with gossip
or rumours. It is a reported evidence from a witness which he has maybe heard or not
In Lim Yam Yong v. Lam Choon & Co12, the high court of ombay held that, “Hearsay
Evidence which ought to have been rejected as irrelevant does not become admissible
as against a party merely because his council fails to take objection when the evidence
is tendered.”
In Hasmukhlal V. Shah vs Bank Of India and ors13, it was held that There is no bar to
Thus it is a kind of evidence which the witness has not actually seen or heard but has
either assumed or percieved through his senses or has heard a third party say or
witness it. The court does not really deny these kind of evidences, but it gives it the
lowest priority.
12
6 All 509 Fb
13
(1997) 3 GLR 1891
In K.P. Abdul Kareem Hajee And Anr. vs Director, Enforcement14, it was held that
When a piece of evidence is such that there is no prima facie assurance of its
credibility, it would be most dangerous to act upon it. Hearsay evidence being
evidence of that type has therefore, to be excluded whether or not the case in which its
The next two types of evidences are judicial and non-judicial evidences. Judicial
evidence is the evidence which is out in front of the court either in proof of the facts
or denying the facts. These include the confession, adminssion, statement of the
witness, documents produced before the court and so on. Non-judicial evidence is
The evidence which the concerned person makes outside the court to some person like
The last two types of evidence are direct and indirect evidence. Direct evidence is
very important. This is because it helps establish a fact. This includes a statement or
confession by a witness. This is basically the testimony of the witness about what
she/he himself has seen or witnessed. It helps to bring out the truth. It is thus called
According to section 5 of the indian evidnce act, it says evidence may be given in a
proceeding of the existence or non-existence of facts in issue and of such other facts
as are declared to be relevant by the Act. so if the evidence relates to exsistence of the
14
(1977) 2 MLJ 47
fact it is called direct evidence. But on the other hand if it realates to exsistence or
In Governor of Bengal in Council v. Motilal Ghosh15, it was held that testimony of eye
Indirect or circumstantial evidence is the one which helps to prove the fact involved
by providing any other fact that the direct facts. However they cannot be used as a
established.
In many cases the supreme court has said that when a circumstantial evidence is
presented, to affirm it or to order a person guilty on the basis of such evidence, there
15
41 C 173: 20 IC 8114 Cr LJ 321
16
1953 Mys 22
shouldn’t even be a shawdow of doubt and such evidence should establish the dispute
In Hanumant v. State of Madhya Pradesh17, the supreme court held that “In dealing
with circumstantial evidence there is always the danger that suspicion may take the
place of legal proof. It is well to remember that in cases where the evidence is of a
drawn should in the first instance , be fully established and all the facts so established
should be consistent only with the hypothesis of the guilt of the accused. In other
words there can be a chain of evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused and it must be
such as to show that within all human probability the act must have been done by the
accused.”
In Ashok Kumar v. State of Madhya Pradesh18, the supreme court held that ,
there is no escape from the conclusion that within all human probability the crime was
17
AIR 1995 SC 343
18
AIR 1989 SC 1890
(4) The Circumstantial Evidence in order to sustain conviction must be complete and
incapable of explanation on any other hypothesis than that of the guilt of the accused
and such evidence should not only be consistent with the guilt of the accused but
The courts have to be very careful in accepting both these type of evidences because
relying on these types of evidence can be risky as the witness can give statements that
are entierly false. This can make the inference drawn from it wrong.
In Kallu v. State Of Uttar Pradesh19, a person was killed by a shot from a country
made pistol. A cartridge was found near the deceased. The accused was arrested at a
distance of 14 miles from the place of occurance. He produced a pistol from his house
which in turn indicated that he alone could have known of it’s exsistence there. It was
proved that it was the same pistol out of which the shot was fired.the supreme court
convicted the accused and held that, “Circumstantial Evidence has established that the
death of the deceased was caused by the accused and no one else.”
Evidence mainly comes from witnesses. There are two main kinds of witness. One is
The prosecution witness : the prosectuion is the party in a law suit which
showcases all the formal charges against the accused and tries to prove him
19
AIR 1958 SC 180
guilty beyond any reasonable doubt. Therefore a witness who appreas on
The defense witness: the defense is the party in the law suit which defends the
accused and tries to prove him innocent. The defence counsel basically denys
all the proof put forth by the prosecution. A witness who aappears on behlaf of
The expert witness: the expert witness is someone like a doctor who explains
the judge about certain medical terms or a forensic expert who details the
crime scene or a psychologist who talks about the mental condition of the
concered person. Their role is only advisory in nature. Only if the judge
In State Of Himanchal Pradesh v. Jai Lal20, in this it was held that credibility of the
expert witness depends upon the reasons stated in support of his conclusions and the
The eye witness : this is basically a witness who gives testimony about
something he has seen for himself. However he must be legally fit, that is of
sound mind to testify in the court. Identification of the person by the eye
identification can cause severe consequences for the person identified by the
witness. So it must be dealt carefully. There is also a difficulty when the case
20
AIR 1999 SC 3318
solely relays on the testimony of only one eye witness. It is up to the court to
decide whether to relay on a single eye witness or not. The court usually insist
on the quality of evidence and not the quantity of evidence. thus there is no bar
to a case being decided on the basis of the testimony of the single eye witness.
“It is only when the courts find that the single eye witness is a wholly unreliable
witness that his testimony is discarded in toto and no amount of corroboration can
The hostile witness: a hostile witness is one who is not willing to be a witness
or not willing to disclose what he knows. They are the ones who withdraw in
the last minute due to fear or some other reasons specific to their own. In Balu
Sonba Shinde v. State of Maharashtra22, the supereme court held that the
declaration that a witness is hostile, does not reject the evidence given by him.
What ever benefits the case can be taken out of it. But it must be dealt
CONCLUSION
Evidence is a very important part of any case. Something more important that
evidence is the testimony of the witness present. Only if there is proper evidence,
there can be a fair judgement and the judge can reach an unbaised verdict. When the
21
(1993) 3 SCC 282
22
2003 SCC (Crl.) 112
evidence factor is lightly twisted, the game plan of the whole case can change at
times. It is up to the jugde to decide, what is true and what is not. It is equally
important for people to come forward as witness and not to turn hostile. It is only then
the courts can give a proper jugdment and people’s faith in judiciary of the country
can be upheld. Nowadays, it is much more easier to collect evidence due to the
evolution of technology such as cctv cameras, tracking cell phone signals, gps
devices, satellites etc. it is much more easier to make a blue print of the crime scence
to the nearest authority. It is important that people always be alert and vigilant, to
make the society a better plaec to live. It is important that they turn themselves in as
witness if they have really witnessed something. If people keep silent about such
issues, what happened to another person, can always happen to us. Thus to conclude,
it can be said that evidence and witness in any law suit play a crucial role in
BOOKS REFERRED
Indian Evidence Act, Ratanlal & Dhirajlal, Lexis Nexis Butterworths Wadhwa,
21st Edition, Nagpur
The indian evidence act- a critical commentary covering emerging issues and