The term Evidence derived from the Latin terms ‘Evident’ or’ evidere’ means to show clearly, to discover, to ascertain or to prove. Evidence is a means of proof. Indian evidence Act provides the fact 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 the evidentiary value of the evidence produced before the Court. If the evidential value of the evidence against the accused is strong enough to prove the guilt of an accused beyond a reasonable doubt then only the court can convict the person. There are different types of Evidence that can be proved before the Court. Let’s understand the types of Evidence as follows:
1. Oral Evidence
2. Documentary Evidence
3. Primary Evidence
4. Secondary Evidence
5. Real Evidence
6. Hearsay Evidence
7. Direct Evidence
8. Indirect Evidence or Circumstantial Evidence
1. Oral Evidence
Oral Evidence means all statements which the court permits or requires to be made before it by witnesses, in relation to the matter of fact under inquiry. Section 59 of the Indian Evidence Act reads as ‘all facts, apart from the contents of a document or electronic records shall be considered as oral evidence’. When it comes to recording statements, most of the evidence is given orally hence everything in a way is oral evidence. Even if a witness cannot communicate orally whatever they say in writing or any other format to the court will still fall under the category of oral evidence. The oral evidence of a witness cannot be dismissed on the grounds of the non-production of medical evidence. For example, if the witness/victim is a person whose throat has been slit and she can point out to the accused, then her statement would still fall under the category of oral evidence.
Section 119 of Indian Evidence Act states that witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence. Section 119 is an extension of Oral Evidence.
Oral is a different form of the word Verbal in the case of Queen Empress Vs. Abdullah (27th February 1885) Hon’ble chief Justice of Allahabad W.C. Petheram discuss the difference between Verbal and Oral, Verbal means by the word, it is not necessary that the words should be spoken. If the term used in the section were oral, it might be that the statement must be confined to words spoken by the mouth. But the meaning of Verbal is something Wider
Section 60 of the Indian Evidence Act states that Oral evidence must, in all cases, whatever, be direct; that is to say:
• if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
• if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
• if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;
• if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found; or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
It was held under the case of State Vs. Rajal Anand that section 60 of the Indian Evidence Act only includes the word “direct” and excludes hearsay. Any evidence given must be direct and the hearsay evidence does not hold any area under oral evidence as it is not direct. But the doctrine of Res-gestae has been observed as an exception to the rule of hearsay which explained that any person who has experienced any series of relevant facts, his testimony after the incident even if he has not seen the crime being committed will be accepted.
2. Documentary Evidence:
Vox Audita Perit, Littera Scripta Manet is an Ancient Roman Proverb which means “the Spoken word vanishes, the written word remains”. The law of evidence recognizes the superior credibility of documentary evidence as against oral evidence.
Section 3 of The Indian Evidence Act provides that documentary evidence means all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence. Documents are divided into two categories, Public Documents, and Private Documents. The production of Documents in Court is regulated by the Civil Procedure Code and the Criminal Procedure Code. The contents of documents must be proved either by the production of a document which is called Primary Evidence or Secondary Evidence.
The Contents of documents may be proved either
A. By primary evidence i.e. by producing the document itself
B. By Secondary Evidence
A document which is proved to be genuine and satisfied the requirement of law should be relied upon. In the case of Afzauddin Ansari Vs. State of Bengal, 1997 it was held that ‘A man may lie but a document will never lie’.
A. Primary Evidence
Section 62 of the Indian Evidence Act provides for the provision of primary evidence. Primary evidence means the documents itself produced for the inspection of the Court. Primary evidence is considered to be the superior class of evidence. Such evidence is an original document that needs to be submitted before the court for inspection. It is admissible without any prior notice. Such evidence must be presented before the court before the secondary evidence. Secondary evidence can be presented only in the absence of primary evidence by explaining the reason for the absence of such evidence. Primary evidence, more commonly known as best evidence, is the best available substantiation of the existence of an object because it is the actual item. It differs from secondary evidence, which is a copy of, or substitute for, the original. If primary evidence is available to a party, that person must offer it as evidence.
Elements of Primary Evidence
• The original document itself produced for the inspection of the court
• When the Document is executed in several parts, each part is the primary evidence of the document.
• When the Document is executed in Counterparts, each counter will be primary evidence against the parties executing it or signing it for example, in the case of cheque, the main cheque is signed by the drawer so that it is primary evidence against him and the counterfoil may be signed by the payee of the cheques so that it will be primary evidence against the payee.
• Where several documents are made by one uniform process, but they are copies of the common original, they are not primary evidence of the contents of the originals. Example, by printing, lithography, or photography.
In the matter of Prithvi Vs. State of H.P, it was held that the carbon copy was made by a uniform process of the certificate of a doctor (as to the condition of a rape victim) given in the performance of professional duty. It was held to be primary evidence within the meaning of the explanation to Section 62.
Section 276 of the succession Act, 1925 requires that an application for probate or letters of administration should be made with the “will” annexed. Since this does not necessarily mean “original will”, a copy certified by sub-registrar was allowed to be annexed.
In the matter of Murarka Properties Pvt. Ltd. Vs. Bihari Lal Murarka 1978 it was held by the supreme court that where there is documentary evidence available, the oral evidence must not be given much weight.
B. Secondary Evidence
Section 63 provides for Secondary Evidence means and includes:
• Certified copies
• Copies made from original by a mechanical process and copies compared with such copies
• Copies made from or compared with the original
• Counterparts of documents against the party who did not execute them
• Oral accounts of the contents of the document by a person who has seen it.
These are those evidence which is entertained by the court in the absence of the primary evidence. Therefore it is known as secondary evidence.
If the parties want to prove a fact by secondary evidence then they have to satisfy the conditions given in Section 65 of the Indian Evidence Act.
Section 64 of the Indian Evidence Act state that Document must be proved by primary evidence except in the cases hereinafter mentioned i.e. in Section 65.
In the matter of Malay Kumar Ganguly Vs. Sukumar Mukherjee, 2010 it was held that the document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken.
Section 65 exception to the rule laid down in Section 64
Section 65 of the Indian Evidence Act state that Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:
a. When the Original Document is in possession of :
I. A person against whom it is to be proved, or
II. Any person out of the reach of, or not subject to the process of the court, or
III. Any person who is legally bound to produce it, does not produce it even due notice has been given.
b. When the existence, condition or contents of the original have been proved to be admitted in writing.
c
. When the original has been destroyed or lost.
d. When the original is of such a nature as not to be easily movable.
e. When the original is a public document within the meaning of section 74.
f. When the original is a document of which a certified copy is permissible.
g. When the originals consist of numerous accounts or other documents.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
In the matter of Satyam Kumar Sah Vs. Narcotic Control Bureau, 2019 it was held that Section 65 does not contemplate the filing of any application or seeking prior permission of the court for leading secondary evidence.
A party producing secondary evidence before a court has to satisfy the condition mentioned in section 65 of the Indian evidence at and only when the condition of section 65, Indian Evidence Act are satisfied, secondary evidence would be admissible.
In the matter of Dhanpat Vs. Sheo Ram (Deceased) Through Lrs. & Ors on 19th March 2020, held that as per terms of Section 65(c) of the Evidence Act, there is no requirement to file an application during producing secondary evidence to put on record. Further, the Hon’ble Court observed that the court cannot deny considering the secondary evidence on the basis that the application for permission to lead the secondary evidence was not filed.
Admissibility of Electronic Evidence (Section 65B of Indian Evidence Act, 1872) :
Section 3 of the Evidence Act, 1872 defines evidence as under: “Evidence” – Evidence means and includes all documents including electronic records produced for the inspection of the court. Such documents are called documentary evidence.
Electronic Records: Section 2(t) of the Information Technology Act, 2000 “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche.
Electronic Certificate: An electronic certificate is a set of data enabling identification of the holder of the certificate, secure exchange of information with other persons and institution, and electronic signing of data sent in such a way as to enable verification of its integrity and origin.
Section 65B of the Indian Evidence Act,1872 deals with the admissibility of the electronic records. In this section clause, 1 to 5 provide the information regarding which electronic records can be produced before the court, which electronic records treated as a deemed document, when the document will be admissible in the court, and which certificates required producing the Electronic document before the court.
Let’s understand the clauses 1 to 5 of Section 65B of Indian Evidence Act, 1872
Sec. 65B (1): Notwithstanding anything contained in this Act, any information contained in an electronic record:
• which is printed on a paper, stored, recorded or
• copied in optical or magnetic media
• produced by a computer
shall be deemed to be also a document, if the conditions mentioned in this section are satisfied
in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
In the matter of Abdul Rahaman Kunji Vs. The State of West Bengal, The Hon’ble High Court of Calcutta while deciding the admissibility of email held that an email downloaded and printed from the email account of the person can be proved by virtue of Section 65B r/w Section 88A of Evidence Act. The testimony of the witness to carry out such a procedure to download and print the same is sufficient to prove the electronic communication.
Sec. 65B (2): The conditions referred to in sub-section (1) of Section 65B in respect of a computer output shall be the following, namely:
• The computer from which the record is generated was regularly used
• Information was fed in computer in the ordinary course of the activities of the person having lawful control over the computer
• The computer was operating properly, and if not, was not such as to affect the electronic record or its accuracy Information reproduced is such as is fed into the computer in the ordinary course of activity.
Sec.65 B(3): The following computers shall constitute a single computer:
• by a combination of computers operating over that period; or
• by different computers operating in succession over that period; or
• by different combinations of computers operating in succession over that period; or
• 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,
Sec. 65B (4): Regarding the person who can issue the certificate and contents of the certificate, it provides the certificate doing any of the following things:
• identifying the electronic record containing the statement and describing the manner in which it was produced;
• giving the particulars of the device
• dealing with any of the matters to which the conditions mentioned in sub-section (2) relate
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate, and for the purposes of this subsection, it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
In the matter of Anvar P.V. Vs. P.K. Basheer, (2014) 10 SCC 473 it was held that the certificate required under Section 65B (4) is a condition precedent to the admissibility of evidence by way of electronic records.
In the matter of Shafhi Mohammad Vs. State of H.P (2018) 2 SCC 801 the division bench had clarified that the requirement of a certificate under Section 64B(4), being procedural, can be relaxed by the Court whenever the interest of justice so justifies, and one circumstance in which the interest of justice so justifies would be where the electronic device is produced by a party who is not in possession of such device as a result of which such party would not be in a position to secure the requisite certificate.
Law on the admissibility of Electronic Evidence without Certificate under Section 65B of Evidence Act, 1872
The Supreme Court clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. Let’s understand through the recent Judgment Passed by the Supreme Court in the matter of Arjun Panditrao Khotkar Vs Kailash Kushanrao Gorantyal, 2020 decided on 14.07.2020
The 3 Judge bench in the above case, holding the Shafhi Mohammad judgment to be incorrect said “the major premise of Shafhi Mohammad (Supra) that such certificate cannot be secure by a person who is not in possession of an electronic device is wholly incorrect. An application always is made to a judge for the production of such a certificate from the requisite person under Section 65B (4) in the case in which such a person refuses to give it.
The Court also clarified the confusion over the aforementioned sentence in the Anvar P.V. case which reads as “The clarification referred to above is that the required certificate under section 65B(4) is unnecessary if the original document itself is produced”. This can be done by the owner of a laptop computer, computer tablet, or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing the information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4).”\
3. Real Evidence
Real Evidence Real evidence, often called physical evidence, consists of material items involved in a case, objects and things the Court can physically hold and inspect. Examples of real evidence include fingerprints, blood samples, DNA, a knife, a gun, and other physical objects. Real evidence is usually admitted because it tends to prove or disprove an issue of fact in a trial. Real evidence is usually involved in an event central to the case, such as a murder weapon, clothing of a victim, narcotics or fingerprints. In order to be used at trial, real evidence must be relevant, material, and authentic. The process whereby a lawyer establishes these basic prerequisites is called laying a foundation, accomplished by calling witnesses who establish the item’s chain of custody.
In the matter of Marada Venkateswara Rao Vs. Oleti Vana Laxmi AIR 2008 AP 195, the property in dispute was self-acquired property of the mother. The suit for partition was filed by the plaintiff (Daughter). The son was the defendant. He stated that the plaintiff and her brother were destitute and not born to his mother. As such, they had no right of inheritance. The Court said that the maternity of the parties was thus disputed. The Court directed both the parties to undergo a DNA test.
4. Hearsay Evidence
Hearsay Evidence means the statement o witness not based on his personal knowledge but on what he heard from others It is not direct evidence. Evidence that is not direct is what he heard from a third party who is not himself called as a witness. The evidence of such a witness is inadmissible to prove the truth of the fact stated.
In the matter of Subramaniam’s case (1956) MLJ 220, the Accused was charged with unlawful possession of ammunition. His defense was that he had been captured by terrorists and was acting under duress. The issue that arose whether the statement made by the terrorist to the appellant which he will be killed if he did not carry the ammunition amounted to hearsay?
The trial judge held that the evidence of his conversation with terrorists was inadmissible unless the terrorist testified. Subramaniam was convicted. He then filed an appeal.
The Privy Council allowed his appeal. The hearsay rule was not infringed because his evidence about what the terrorists had said to him was not adduced in order to show that what the terrorists had said was the truth but in order to show that threats had in fact been made.
The reasons why hearsay evidence is not received as relevant evidence are:
(a) The person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility, i.e., every witness must give his testimony, under such circumstances, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying “I do not know, but so and so told me”,
(b) Truth is diluted and diminished with each repetition and
(c) If permitted, gives ample scope for playing fraud by saying “someone told me that………..”. It would be attaching importance to false rumor flying from one foul lip to another. Thus the statement of witnesses based on information received from others is inadmissible.
Exceptions to hearsay:
• Res gestae under Section 6 of Indian Evidence Act: The statement of a person may be proved through another person who appears as a witness if the statement is a part of the transaction issues.
The doctrine of Res gestae is portrayed under section 6 of the Indian Evidence Act, 1872 in the following words:
Facts which though not in issue are so connected with the facts in issue so as to form a part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places”
Res gestae originally was used by the Romans to mean acts are done or actus. The English and American writers described it as facts that form the same transaction. Res gestae are those facts which automatically or naturally form a part of the same transaction. They are the acts talking for themselves. These facts become relevant due to their association with the main transaction which itself is a relevant fact in the nature of fact in issue. Circumstantial facts are admitted as forming a part of res gestae i.e. it being a part of the original proof of what has taken place. Statements may also accompany physical happenings like gestures. Things said or acts done in course of transaction amounts to res gestae.
The statements made or acts done have to be spontaneous and simultaneous to the main transaction. They may be made or done before or after the main transaction, but the time gap has to be very little so as to render it to be a res gestae i.e. it has to be done or made immediately before, or during or immediately after the occurrence of the main transaction. Where the time gap is enough for fabrication or concoction, then a statement or act shall not fall under section 6.
According to Section 6, the facts forming a part of the same transaction may or may not occur at the same place or same time. For example in the case of Ratten V. Queen, the victim (wife) had called the police for help but before the operator could connect her to the police, her call was disconnected. Later the police found her dead body from her house from where the call was made and the time of death and the time of the phone call was almost the same. The call made to the police came under the purview of section 6 and thereby defeated the accused husband defense that he accidentally fired his wife.
• Statement in Public Document under Section 74 of Indian Evidence Act: The Statement in Public Document such as the Acts of the Parliament, official books, and registers can be proved by the production of document and it is not necessary to produce before the court the draftsman of the documents.
• Admission and Confession (under Section 17 – Section 23 and section 24 – Section 30)
• Dying Declaration: Section 32 (1) When it relates to cause of death.—When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under the exception of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
The Apex Court in its decision in P.V. Radhakrishna v. State of Karnataka held that ‘the principle on which a dying declaration is admitted in evidence is indicated in Latin maxim, Nemo morturus procsumitur mentri, a man will not meet his maker with a lie in his mouth. Information lodged by a person who died subsequently relating to the cause of his death is admissible in evidence under this clause.
• Evidence given in the former proceedings (Section 33): It is provided that evidence given by a witness in the proceeding can be used as evidence of the truth of the facts stated in any subsequent proceedings between the same parties, provided that the witness has died or is for some other reason not available.
Statement of experts in treaties (Section 60): provides that opinion are proved by production of such treaties if the author is dead or cannot be found or become incapable of giving evidence.
5. Direct Evidence
Direct evidence is evidence that will prove the point in fact without interpretation of circumstances.. It is any evidence that can show the court that something occurred without the need for the judge to make inferences or assumptions to reach a conclusion. An eyewitness who saw the accused shoot a victim would be able to provide direct evidence. Similarly, a security camera showing the accused committing a crime or a statement of confession from the accused admitting to the crime could also be considered direct evidence. Direct evidence should not be confused with the concept of direct examination, which is the initial examination and questioning of a witness at trial by the party who called that witness. And, although each witness who provides evidence could, in theory, be providing direct testimony of their own knowledge and experiences, that evidence is often not direct evidence of the offense itself.
6. Circumstantial Evidence or Indirect Evidence
Circumstantial evidence is an Evidence that relies on an inference to connect it to a conclusion of fact. such as a fingerprint at the scene of a crime.
Peter Murphy defines Circumstantial Evidence as “Evidence from which the desired conclusion may be drawn. Evidence requires the court not only to accept the evidence presented but also to draw an inference from it.
Supreme Court has given the guidelines for admissibility of the Circumstantial Evidence in the matter of Bodh Raj Vs. State of Jammu and Kashmir as follows :
• The Circumstance from where the conclusion of guild is to be drawn ought to be established. The circumstances involved “must” or “should” and not “maybe” established.
• The facts, therefore, established ought to be as per the hypothesis of the guild of the accused.
• Circumstances ought to be conclusive in nature and tendency.
• There should be a complete sequence of proof so as to not leave any affordable ground for the conclusion in line with the innocence of the defendant and should show that the offense must have been committed by the defendant.
Circumstantial Evidence is especially important in civil and criminal cases where direct evidence is lacking.
In the matter of Ramawati Devi Vs. State of Bihar, it was held that in a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances.
In the matter of Ummed Bhai Vs. State of Gujarat, it was held that in the absence of direct evidence a person can be convicted on the basis of circumstantial evidence alone.
In the matter of Nalini Singh Vs. State of Tamilnadu and 25 others, it was held that the well-known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence. “The circumstance proved must form a chain of event” from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis is possible
