This article has been written by Sushant Biswakarma, a student from Symbiosis Law School, Noida. This article is a research analysis of Section 167 of the Indian Evidence Act, 1872 along with different types of evidence.

Introduction

India is a democratic and free country. If someone has been accused of committing a crime, he is deemed to be innocent until proven guilty. He has the right to a fair trial, and it is on the prosecution to prove his guilt beyond reasonable doubts.

In order to prove anything before a court, one needs to adduce evidence supporting their statements. The Indian Evidence Act, 1872 prescribes a proper procedural way of producing evidence before the court. Any evidence that is to be produced must be done in compliance with this act.

Types of evidence

Evidence is a document or a statement that is presented before the court in order to support a fact of the case.

There are various kinds of evidence under the Indian Evidence Act.

Oral Evidence – Section 60

• Any spoken evidence was given by a witness in court regarding the facts of the case.
• It must have been personally seen or heard by the witness.
• It should not be a hear-say statement.
• It must be direct and it should set up the main fact in issue.

Documentary – Section 3(2)(e)(2)

• These are any documents and electronic records produced for the inspection of the court.
• Section 65B states that electronic records are admissible as evidence.

Primary Evidence – Section 62

• The original copy of the main document itself, eg, contract, lease agreement, sale deed. Etc.
• It is the best kind of evidence there is because it is the original document and the credibility of the evidence need not be proved.
• One is expected to adduce primary evidence in the first place if possible.

Secondary Evidence – Section 63

• It is a copy of the original document.
• Admissible if primary evidence is not available.

Electronic Evidence Section 65B

• It includes data and media storing data such as flash drives and data inside them.
• It can be very helpful in cases of cybercrime.

Apart from the codified evidence, there exists another class of evidence that is extra-statutory. Such as:

Physical Evidence

• A physical object presented as evidence.
• It could be weapons used for murder or any item related to the crime.

Scientific Evidence

• Any forensic findings, like blood test results, etc.
• These are to be adduced after forensic experts conduct the test.
• The credibility of the evidence is hard to question.

Hear-say

• Evidence that has not been personally seen or heard by the witness.
• Someone else has told the witness about the fact.
• It is the weakest form of evidence.
• Credibility is very less.

Judicial Evidence

• These are evidence given in the court before the magistrate.
• It could be confessions by the accused, etc.

Non-Judicial Evidence

• Confession of the accused made outside the court.
• It is when confessions are not made before the magistrate.
• Confession made to the police during interrogation could be an example.

Direct Evidence

• This type of evidence must be one that establishes a fact of the case.
• It can be oral or documentary.
• Statements that were given by the witness is an example.

Indirect or Circumstantial Evidence

• It gives a rough idea about a fact in a case.
• They are not concrete proof but could lead the case in the right direction.
• Reports made after inspection of the crime scene could be one example.

When is evidence admissible?

Parties to the case may present their evidence to support their case, but not all evidence is admissible before the court.

Admissibility means whether the court entertains any evidence or not. In order for any evidence to be admissible, it must help prove a relevant fact of the case.

There can be many facts in a certain case, but only some of those facts are relevant to the court proceeding. In order to understand the admissibility of evidence, we need to first understand what facts are relevant.

What is a fact?

Fact is something that is certainly known to be true. It can be proved and there is no doubt regarding its existence. 

It can be an event or an action that has happened for certain. 

Section 3(1) of the Evidence Act has divided ‘fact’ into two categories:

Physical Fact

Section 3(1) defines physical fact as “a state of things, or relation of things that are capable of being perceived by the sense.

It means that when a person sees, hears or externally feels a certain event or action, it can be construed as a fact.

For example:

• Harry saw Ron and Hermoine together at the mall.
• Harry heard Hermoine say something.

Non-Physical Fact

It has been defined in the Section as “any mental condition of which any person is conscious”.

These could be feelings, perceptions or opinions that cannot be perceived with our sensory organs.

For example:

• Harry dislikes Tom.
• Harry is a well-respected person.

What is a relevant fact?

Section 2(e) of the Act defines relevant fact as “one fact which is connected to another in any way as given in the provision of the act”. It means that any fact that is important to connect the dots with other facts in the case and helps establish the entire scenario of the case. Therefore, any fact is relevant if it can be used to prove or disprove a material issue in the case.

Even though only relevant facts are admissible in the court, there are some instances when even these facts can not be admissible. Some relevant facts can be protected and can not be admissible, such as:

• Privileged conversation between advocate and their client.
• Confession made by an accused to the police during interrogation.

Admissibility of a fact

Only relevant facts are admissible, but not all relevant facts are admissible.

The act prescribes that in order for a fact to be admissible, it must be legally relevant and not logically relevant.

Only such evidence that is legally admissible must be entertained by the court.

Admissibility of Electronic Evidence

Section 65B of the Indian Evidence Act talks about the admissibility of electronic records. 

The Section states that: 

• If any electronic record is either printed on a paper, stored, recorded or copied into a storage device. Such records will be considered as a document.

The Supreme Court in the case of Shafi Mohammad v. The State of Himachal Pradesh has expanded the scope of Section 65B by including audio recordings and video recordings in the provision.

If any new device has been invented and is capable of recording any fact by any means. If there is a way to prove the credibility of that recording, such recordings can be used as evidence. The same was held in the case of Ram Singh & Ors v. Col. Ram Singh. 

However, in the case of Tukaram S. Dighole v. Manikrao Shivaji Kokate, the court observed that new technologies are more prone to be tampered with and recordings of such devices would be subject to scepticism. No proper rule can be given with regard to the admissibility of such evidence. But, there must be more elaborate rules regarding the authenticity of such evidence.

In the case of Tomaso Bruno & anr v. State of U.P, it was held that computer records along with other scientific methods must be used during the investigation for more efficiency. If electronic evidence is necessary for establishing a relevant fact, it can be very useful.

Section 65B along with the aforementioned case laws has made it clear that an electronic record including photos, videos, etc when essential for establishing a relevant fact, can be treated as documentary evidence and is admissible.

Section 167

Evidence must be legally relevant in order to be admissible. The admission must be made and received in compliance with the Evidence Act.

Section 167 of the Indian Evidence Act talks about ‘no new trial for improper admission or rejection of evidence’. It says:

• Improper admission or rejection of evidence is not a ground for initiating a new trial or reversal of any decision;
• If there were enough evidence to justify the decision; or
• If the evidence that has been rejected had been received;
• The evidence rejected or improperly submitted should not be so significant that the decision could have been different if it was admitted.

Therefore, if an appeal is filed on the ground of improper exclusion of evidence or admission of evidence, the appellant must be able to prove that:

• There was improper admission or exclusion of evidence, and
• There has been a mockery of justice.

This section is applicable to both criminal and civil cases.

Effects of improper admission or rejection of evidence in civil cases

In civil cases, it is pretty obvious that where there is enough evidence to justify a decision it is immaterial whether the evidence has been admitted or rejected, initiating a new trial all together is not required.

Section 167 uses the phrase “reversal of judgment”, and judgments can only be reversed by an appellate court. It means that this section is applicable to appeals as well.

In the case of Abdul Rahim v. King-Emperor, it was laid down that:

• Acceptance of inadmissible evidence is not an ipso facto ground for a new trial.
• Acceptance of inadmissible evidence is not a ground to set aside a judgment.
• Provided that there is other evidence to support the findings and reach the same decision.

The High Court of Karnataka, in the case of State of Mysore v. Sampangiramiah observed that:

• Acceptance of inadmissible evidence is less injurious than the rejection of admissible evidence.
• Because in the former case – while deciding the verdict, the evidence improperly admitted can be excluded from consideration.
• But, in the latter case – evidence wrongly rejected can only be recorded by having recourse to further proceedings.

In case a decision is made by the trial court based on a wrongly admitted evidence. Such evidence must be set aside and see if they are relevant. If the decision is solely based on such wrongly admitted evidence, then it must be reversed.

Effects of improper admission or rejection of evidence in criminal cases

This section will be applicable to criminal cases also, as held by The High Court of Bombay in the case of Abdul Rahim v. King-Emperor.

• It was laid down that if evidence has been wrongly admitted in a criminal case at the trial stage,
• The High Court on appeal should try to exclude that inadmissible evidence and still keep the decision the same. 
• Provided that the evidence already available was enough to clearly establish the case and reach the same decision.

It means that:

• In case the High Court on appeal is unsure if a fact was missing the opinion or decision of a certain authority would be the same or not.
• The High Court interferes but only if it is totally certain that there would have been no other decision.
• In that case, the irrelevant circumstances above would totally wreck the order, as observed in Madan Lal v. Principal, H.B.T. Institute.

The court in the case of Abdul Rahim v. King-Emperor said that it may be misdirection, and it is not sufficient ground to change the verdict. 

Therefore, if the evidence is improperly admitted and there was already enough evidence to establish the case. Such improperly admitted evidence can be ignored and the decision would still remain the same. Or else there has to be a new trial.

Rejection of evidence

In the case of Narain v. State of Punjab, the prosecution had cited a certain person as a witness but, they were not very keen to examine him.

When that witness opposed giving evidence, he was dropped by the prosecution.

The court held that in such case evidence cannot be said to have been rejected within Section 167 of the Indian Evidence Act.

In such a case the prosecution does not actually tender the person as a witness.

The judge observed that the real question regarding Section 167 is not so much as to whether the rejected evidence would not have been accepted against other testimony on record as to whether the evidence –  “ought not to have varied decision”.

Conclusion

Evidence is the only way to establish someone’s case in court. The Justice is blind and it seeks only evidence in order to serve justice.

The laws in India regarding the admissibility of evidence is up to par and really helpful. A wrongful submission of evidence can change the entire course of the trial and deny justice. Not just by the parties, it has happened on multiple occasions that the court has wrongly accepted some evidence that resulted in the change in entire judgment, only to be overturned by the appellate jurisdiction.

To sum it up:

• Only relevant facts are admissible;
• A relevant fact must be legally relevant in order to be admissible;
• Admission must be made in compliance with the Indian Evidence Act, 1872.

References

Bare Acts

• The Indian Evidence Act, 1872

Books

• Batuk Lal, The Law of Evidence, Central Law Agency, 2018

Cases

• Abdul Rahim v. King-Emperor
• Madan Lal v. Principal, H.B.T. Institute
• Narain v. State of Punjab
• Ram Singh & Ors v. Col. Ram Singh
• Shafi Mohammad v. The State of Himachal Pradesh
• State of Mysore v. Sampangiramiah
• Tomaso Bruno & anr v. State of U.P
• Tukaram S. Dighole v. Manikrao Shivaji Kokate

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