Law of Evidence
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This article is written by Shriya Sehgal, a first-year student pursuing BBA.LLB. from Symbiosis Law School, Noida. This is an exhaustive article dealing with the various kinds of evidence and includes important case laws.

Introduction

According to Section 3 of the Indian Evidence Act,1872 evidence means and includes oral and documentary evidence. Here, oral evidence refers to all the statements which the court permits to be made before it by the witness and such evidence should be related to the matter of fact under enquiry. Whereas, documentary or written evidence refers to all the electronic records presented before the court. This definition is considered to be a narrow definition as it doesn’t include material things, like a weapon; identification proceedings; local inquiry results; statements made in court; etc. 

Kinds of evidence

Direct evidence

Direct Evidence is considered as imperative evidence for deciding the matter in the issue. It directly proves or disproves the fact.  In such evidence, a specific fact is established directly without providing a reason to connect to the fact. One hardly needs to point out the illustration provided as the evidence of the witness in court is direct evidence as opposed to a testimony to a fact suggesting guilt. 

Such evidence is real, tangible, or clear evidence of a fact that requires no thinking or consideration to prove its existence. However, relying on the evidence completely without any reasoning to prove its existence can be considered as a drawback as well. For instance, one may be prosecuted for perjury.

Circumstantial evidence

Circumstantial or indirect evidence refers to evidence which proves the facts in issue by providing other facts, that is, indirect facts and then proving their relevance. A satisfactory conclusion can be drawn from such evidence by relating a series of other facts to the facts in issue. Such indirect facts must have been associated with the facts in issue and have a cause and effect relation. 

Under the Indian Evidence Act, “circumstantial evidence” is covered under the expression “relevant facts”. Here, “relevant facts” need to be proved by direct evidence which includes oral or documentary evidence.

Hanumant v. The State Of Madhya Pradesh

In this case, the first appellant held the post of excise commissioner whereas the second appellant held the post of a chemical engineer. Both of them were convicted and sentenced for the offence of criminal conspiracy, abetment, and forgery. There was no direct evidence to support them therefore circumstantial evidence was used.

It was stated that while dealing with circumstantial evidence there is always a possibility that suspicion might take the place of legal proof. In cases where the evidence is circumstantial in nature then such evidence should be completely established and should be consistent with the theory of the guilt of the accused.

Thus, the Supreme Court of India acquitted the appellants as the evidence produced was insufficient to prove the guilt of the accused beyond all reasonable doubt.

Ashok Kumar v. The State Of Madhya Pradesh

In this case, an appeal was made against the finding of the accused as guilty of the murder of his wife. However, it was argued by the appellants the entire prosecution was based on alleging circumstantial evidence and there was no eye witness. It was held in this case that the circumstantial evidence must satisfy the following facts:

  • The circumstances from which an inference of guilt is sought to be drawn must be firmly established;
  • The circumstance should be of definite tendency and undoubtedly point toward the guilt of the accused;
  • The circumstance should be incapable of explanation of any reasonable theory that saves the accused from the guilt.

Thus, the appeal was successful and the accused-appellants were accused of the charge. They were given the benefit of the doubt as the circumstantial evidence couldn’t fulfil the above-mentioned conditions.

Analogical evidence

Analogical evidence is underutilised evidence and usually comes in to play at the end moment. It saves the day when one doesn’t have statistics to refer to or any other matter to quote.

Anecdotal evidence

Anecdotal evidence refers to evidence which is based on a person’s observation of the world. Personal observations can also be useful for introducing as well as building up a topic. Such observations must be supported with statistical evidence to ensure the validation of such observation.

It is another underutilised type of evidence, which is generally considered as untrustworthy and meaningless. However, it can be beneficial for disproving generalisations by coming up with an appropriate example for contradicting a claim. The same can also be used to support claims.

Character evidence

Character evidence is an important type of evidence for determining the guilt of a person. This practice is being used since time immemorial. The character of a person is a general quality which is the summary of his/her past actions, whether good or bad. The same is considered to be vague and subjective. For instance, a person with ‘good character’ may be considered as a trustworthy and decent person, however, there is not any universal measure for the same. Moreover, it is not impossible for such a person to commit a heinous crime. Sometimes, the material evidence is covered by the character evidence. Such evidence may be proved where it is an imperative issue in a dispute, such as defamation.

There is minimal difference between character and habits. Habit is consistent and specific. Character refers to a person’s personality or character trait whereas habit is what a person does habitually or regularly. It doesn’t describe a personality or character trait of the person, but something he or she does habitually, or regularly. For instance, if the person visited a specific coffee shop every morning for years then such fact can be used as evidence that he was probably at the coffee shop when it was robbed in the morning. Sometimes it’s hard to make a distinction between the two as they can be used interchangeably. 

Such evidence can’t be used to prove that the person acted in compliance with a particular character trait on a specific occasion in a civil suit as well as a criminal case.

Demonstrative evidence

Demonstrative evidence refers to evidence that is shown to the judge (and in some case, jury as well) in litigation. This evidence is neither testimony nor substantive evidence. Generally, it includes charts, diagrams, demonstrations and illustrations of the testimony of a witness.

Such evidence should not be harmful or detrimental but should assist in proving something. It is admissible only when it fairly and accurately reflects the witness’s testimony. Witnesses create such evidence at trial. The same set of evidence can be used by the opposing counsel in order to prove contrary positions.

Examples of demonstrative evidence include:

  • charts,
  • timelines, 
  • scale models,
  • photo enlargements,
  • maps,
  • diagrams of a crime scene,
  • animation,
  • film or video,
  • checklist exhibits,
  • sample product display, or
  • anything similar designed to help the judge or jury better understand the case.

Digital/Electronic evidence

Originally, digital or electronic type of evidence was not mentioned or covered under the definition of evidence. However, the definition of evidence was amended by the Information Technology Act, 2000 to include ‘electronic records’ within the same. An electronic record includes record generated, data generated, the image stored, sound stored, or any information received or sent in an electronic form.

Such evidence must be collected with a reasonable and least objectionable means. The manner of the collection depends upon various factors, such as:

  • System configuration encountered,
  • Type of investigation, and
  • The evidence should be relevant to support the investigation.

The examiner must be aware of the specific electronic data that is required for the investigation. He/she must be prepared to address the obstacles that arise during electronic evidence collection.

An electronic record means data, record, data generated, image stored, sound stored, or any information received or sent in an electronic form.

Sivrajbhan v. Harchandgir

In this case, it was stated that the word evidence in connection with Law includes all agreements except which prove or disprove any fact or matter whose truthfulness is presented for Judicial Investigation. In other words, when the parties involved don’t get the opportunity to cross-examine the statements to ascertain the truth then such a statement does not amount to evidence.

Thus, electronic evidence can be considered as a valid form of evidence.

Documentary evidence

‘Document’ is defined in Section 3 of the Indian Evidence Act. Documentary evidence refers to any matter described or expressed upon any substance by means of letters, figures or marks or by more than one means which can be used for recording the matter.

Such evidence is produced in the form of a document in order to prove a disputed fact. Essentials or subject-matter of documentary evidence are as follows:

  • how the contents of a document are to be proved.
  • how the document is to be proved to be genuine.
  • how far and in what cases the oral evidence is excluded by documentary evidence.

Exculpatory evidence

Exculpatory comes from the word ‘exculpate’, which comes from two Latin words ‘ex’ meaning from and ‘culpa’ meaning blame.

Exculpate

Exculpatory evidence refers to evidence which discharges the defendant and helps them to establish their innocence, thus proving him/her not guilty. In reality, the prosecutor, as well as the defence attorney, gather evidence to make their case. The prosecutor needs to turn over the evidence to the defence attorney before he uses it to prove the defendant as not guilty. In case he fails to provide the defence attorney with the same, the case can be dismissed or retired, thus proving the defendant innocent. In other words, any evidence which is favourable to the defendant is considered to be exculpatory evidence.

Certain evidence can confuse the prosecutor when the evidence doesn’t directly exculpate the defendant. However, any evidence that points towards the innocence of the defendant is considered to be exculpatory. For example DNA evidence on a knife in a murder case

DNA evidence could be either inculpatory or exculpatory, depending on the test results.

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Forensic evidence 

Forensic evidence might lead to crucial investigative leads. Such evidence help in looking at and analysing things that cannot be seen with the naked eye. It varies from the type of crime one is investigating. For instance, in the case of a vehicular burglary, the DNA or fingerprints can be traced. Here DNA (deoxyribonucleic acid) is the founding block of all human beings. Investigators can find preparatory DNA in biological evidence found at a crime scene.

Forensic evidence can be divided into two categories, that is, physical evidence and biological evidence. Physical evidence refers to non-living or inorganic matter such as fingerprints, shoe impressions, tire impressions, fibers, glass, drugs, bullets, paints, petroleum by-products, etc. on the other hand, biological evidence includes blood, hair, saliva, urine, etc. it also includes botanical materials such as plants, wood, pollen, cocoons, etc.

Hearsay evidence

Hearsay evidence refers to evidence which the witness has neither personally seen nor heard. It is just reported by the witness and considered to be very weak evidence. In other words, it refers to something that others have said or heard. There are no set standards to receive such evidence provided it has reasonable credibility and nexus. In the absence of such credibility and nexus, it is difficult and dangerous to act upon such evidence. Thus, such a piece of evidence cannot be used if its credibility is not assured and questioned.

Such evidence is often rejected as they are considered to be irrelevant. They are inadmissible because the witness has neither personally seen nor heard. The witness has not perceived the evidence through his senses but has come to know about it through the third person.

Balram Prasad Agrawal vs The State Of Bihar & Ors

In this case, a young married woman named Kiran Devi, daughter of the appellant-complainant, who is alleged to have been murdered by the respondent-accused or to have been forced to commit suicide by falling in a well situated on the backside of the house of the accused. It was said that the information obtained from their neighbours was completely hearsay evidence, however, the respondents were convicted on the basis of hearsay evidence.

It was stated in this case that the evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay, following are the possible situations:

  • It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. 
  • It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.

The fact that the statement was made quite apart from its truth is relevant in considering the mental state and conduct of the witness or a person in whose presence these statements were made.

Physical evidence

Physical evidence refers to any evidence which is found at the crime scene. It includes fingerprints, cut marks, tool marks, handprints, footprints, etc. According to the American Academy of Forensic Sciences (AAFS), it refers to anything that needs a microscope to view something that cannot be seen by the naked eye.

Examination of such evidence can be conducted by various methods such as:

  • Making impressions in plaster;
  • Lifting fingerprints from the objects encountered;
  • Taking images of marks.

The examination of such evidence is imperative for forensic analysis. Identifying the alterations is one of the main purposes of such examination. 

Later, such evidence can be used to identify and compare the situation, like method or technique used by the defendant to harm the plaintiff, type of manufacturing method used to manufacture the murder weapon or any other tool. With the help of advanced technology, the specialist can also recover the text damaged by accident or on purpose.

Prima facie evidence

Prima facie evidence refers to the evidence whose existence is questionable but at the same time, it establishes a fact. The existence of such evidence cannot be questioned until it is rebutted. It is also called as presumptive evidence as it is sufficient to raise a presumption of the truth of a fact until and unless it is argued and rebutted.

Such evidence is sufficient to establish a basic fact. For instance, the performance of people can be considered as discriminatory, if white people perform better than black people.

Statistical evidence

Statistical evidence refers to the data which people search or investigate for the purpose of proving a particular point. Such evidence measures the strength of the evidence. Every time one uses numbers to prove a point or establish a fact he/she tends to use statistical evidence.

Examples of statistical evidence are:

  • Restaurants stating the fact that they serve one million people per year;
  • Two million migrants have crossed the borders in a specific year;
  • Sugar-free chewing gums are recommended by eight out of ten dentists.

Testimonial evidence

Testimonial evidence refers to evidence used to prove a particular point by testimony to the courts. Testimony can be either spoken or formal written statements.

In certain cases, the testimonial evidence is inadmissible in a court of law. The courts will decide whether or not such evidence is relevant to the case on the basis of facts and proficiency. In the following cases the evidence will not be allowed:

  • If it is misleading and wastes the time of the court;
  • If it is unfair and detrimental;
  • If it comes from the information between the attorney and the client;
  • If it is not actually provided by an expert witness.
    For example, a doctor is called for the testimony, however, a nurse appears as a witness.

Judicial evidence

Judicial evidence refers to evidence received by the court that proof or disproof the facts. Such evidence includes:

  • Confessions of accused in a court of law;
  • Statement of witnesses in a court of law;
  • Documentary evidence and facts presented for examination by the court.

Non-judicial evidence

Non-judicial evidence primarily refers to the confession made by the accused outside the court of law and in the presence of any person. If such evidence is proved in the court of law then it takes the form of judicial evidence.

Primary evidence

According to Section 62, primary evidence is considered to be the topmost class of evidence. Such evidence is an original document that needs to be submitted before the court for inspection. Moreover, it is admissible without any prior notice.

Such evidence must be presented before the court before the secondary evidence. Moreover, secondary evidence can be presented only in the absence of primary evidence by explaining the reason for the absence of such evidence.

Secondary evidence

According to Section 63, secondary evidence is considered to be an inferior type of evidence. It implies, that even after producing secondary evidence one needs to produce primary evidence in order to fill in the gaps. Such evidence can be presented in the absence of the primary evidence, however, the notice of the same is to be given.

However, if the secondary evidence is accepted without any objection within a reasonable time then the parties do not have the right to argue that the point was proved with the help of secondary evidence and not primary evidence.

Real evidence

Real evidence is also known as material evidence. It is tangible evidence that the court can examine for itself. It is presented before the court by inspection of a physical or material object. Such evidence is not derived from a document or witness. However, such evidence needs to be supported by a witness, preferably an expert witness who can explain the significance of evidence.

Real evidence includes:

  • Material object (murder weapon, in a murder case);
  • Photographs (position and state of the deceased body, in a murder case);
  • Video recordings;
  • Out of court inspection;
  • Person’s behaviour and appearance.

Oral evidence

Oral evidence refers to evidence which is confined to the words spoken by mouth. It is sufficient to be proved without any documentary evidence provided it is creditworthy. Chapter IV of the Indian Evidence Act, 1872 deals with the provisions of oral evidence. If a statement is contradictory to the previous statement, then the oral evidence may be considered as doubtful.

Certain kinds of contracts or grants can be created orally. Thus they do not require any document, such as:

  • A sells his cat for Rs. 1000 to B.
  • A wants to mortgage the cat for Rs. 1000 to B.
  • A pays Rs.1000 to B and takes back the possession of the cat.

However, there are many documents that need to be necessarily written and registered. Also, the best evidence is the one which is reduced to documents.

Scientific/Expert/Trace Evidence

Scientific evidence is generally referred to as empirical evidence. Such evidence is gathered from scientific research which requires a lot of investment of time and patience on the part of the researcher. In order to be recognised as evidence, such research needs to be done and established according to the set standards.

Scientific research primarily relies on data and it is the responsibility of the researchers to ensure that such data is true. Thus, the research can be conducted ethically and safely only if the data is collected and analysed properly.

For instance, if the research involves environmental process then the test and control should be carried out under natural conditions. If it is practically impossible to do so then lab-based studies can also be used.

The ability to admit scientific evidence, however, is at the discretion of the presiding judge. The judge may consider various factors, such as:

  • The validity of the evidence;
  • The credibility of the science behind it;
  • How influential evidence is during the case.

Scientific evidence is relevant in cases where conventional forms of crime have assumed immense proportions.

Substantive and corroborative evidence

In layman language, substantive refers to something considerable, that is, to have a strong base. Whereas, corroborative refers to something that needs to be more considerable.

Substantive evidence is the evidence on the basis of which a fact is proved and which requires no corroboration. On the other hand, corroborative evidence is the evidence used to make substantive evidence more concrete. Both the evidence are either direct or circumstantial or both.

The significance of corroborative evidence depends on substantive evidence. In other words the existence of corroborative evidence depends on substantive evidence.

Difference between direct and circumstantial evidence

BASIS

DIRECT EVIDENCE

CIRCUMSTANTIAL EVIDENCE

ESTABLISHMENT OF FACT

It establishes a fact directly.

It requires a judge or jury to establish a fact indirectly via judgment or inference.

ABSOLUTE

It is absolute evidence.

It is not absolute evidence.

PROBATIVE VALUE

It has more probative value than circumstantial evidence.

It has less probative value than direct evidence.

RELIABILITY 

It is less reliable than circumstantial evidence.

It is more reliable than direct evidence as it is more subjective.

Difference between primary and secondary evidence

BASIS

PRIMARY EVIDENCE

SECONDARY EVIDENCE

STATUS UNDER INDIAN EVIDENCE ACT, 1872

Section 62 of the Act defines primary evidence.

Section 63 of the Act defines secondary evidence.

ORIGINALITY

It is an original document that is presented before the court of law for inspection.

It is not an original document.

SOURCE

It is the main source of evidence.

It is not the main source of evidence but an alternative source.

GENERAL RULE

It is the topmost evidence. Thus, it is a general rule to present such evidence.

It is not the best evidence and is used under exceptional circumstances. Thus, it is not a general rule to present such evidence.

NOTICE

Notice is not required to present such evidence.

Notice is required to present such evidence.

ADMISSIBILITY

It is itself admissible.

It is admissible only in the absence of primary evidence.

Difference between inculpatory and exculpatory evidence

BASIS

INCULPATORY EVIDENCE

EXCULPATORY EVIDENCE

FAVOURABLE

It is favourable to the defendant in a criminal trial.

It is favourable to the prosecution in a criminal trial.

SPECIAL RULES

There are no special rules for such evidence.

There are special rules for such evidence.

MISTRIAL

There is no such provision for inculpatory evidence.

If such evidence is not shared with the defence the case can be dismissed and a mistrial can be claimed.

EXAMPLE

If a man is stabbed to death by a knife and the knife is found in possession of the deceased’s wife then that knife will be considered as inculpatory evidence against the wife.

If a man is stabbed to death by a knife and the DNA evidence on the knife links another individual to a crime it then will be considered as exculpatory evidence against that individual.

Difference between judicial and non-judicial

BASIS

JUDICIAL EVIDENCE

NON-JUDICIAL EVIDENCE

LOCATION

Such evidence is presented inside a court of law.

Such evidence is presented outside a court of law.

PRODUCED BEFORE

Such evidence is produced before the judge or jury or both.

Such evidence can be produced in front of any person.

CONVERTIBILITY

Such evidence is not convertible.

Such evidence can be converted to judicial evidence if it is proved in the court of law.

EXAMPLE

Confession made by the accused inside the court of law.

Confession made by the accused outside the court of law.

Difference between oral and documentary evidence

BASIS

ORAL EVIDENCE

DOCUMENTARY EVIDENCE

STATUS UNDER INDIAN EVIDENCE ACT, 1872

Section 59 and 60 of the Act deals with such evidence.

Section 61 to 66 deals with such evidence.

TYPE

It refers to the statement given by the witnesses in a court of law.

It refers to the documents presented in a court of law.

STATEMENT

It is a statement submitted in oral form.

It is a statement submitted via documents.

RELEVANT

If a statement contradicts the previous statement it is considered to be doubtful.

If it is not supported by primary or secondary evidence it is considered to be doubtful.

MEANS

It can be presented in the form of speech, voice or symbols for its recording.

It can be presented in the form of words, signs, figures, letters, and remarks for its recording.

Conclusion

Evidence is an imperative part of every case, whether it is a criminal case or a civil suit as it validates a fact. The facts can be used in evidence for deciding as well as proving the disputed facts. Evidence attaches weight to the facts quoted as evidence. Thus various types of evidence can be used for proving and disproving facts. Moreover, evidence helps in curbing down the time dedicated to a particular case. Thus, it can be concluded that the evidence is for judicial behaviour like the reasoning for logic.

References


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