UNIT III
DIFFERENT TYPES OF
EVIDENCE
Course Outline
Analyzing the different types of evidence in the
context of the Indian Evidence Act, 1872.
WHAT IS EVIDENCE?
Ramnarayan vs. State of Maharashtra, (1964) 5 SCR
1064
This word is used in common parlance in three different senses:
(i) as equivalent to relevant, or
(ii) as equivalent to proof, or
(iii) as equivalent to the material on the basis of which courts come to a
conclusion about the existence or non-existence of disputed facts.
It is defined in Section 3 as:
i) 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
ii) [all documents including electronic records produced for the
inspection of the Court; such documents are called
documentary evidence.
DIFFERENT KINDS OF EVIDENCE
In the broader way, there are many kinds of evidence –
Direct evidence and Indirect evidence or Circumstantial evidence
Original Evidence and Hearsay or Unoriginal Evidence
Oral evidence and Documentary evidence,
Primary evidence and Secondary evidence,
Real Evidence/ Material Evidence and Personal Evidence
Corroborative evidence and Substantive evidence,
Judicial Evidence and Extra-Judicial Evidence
Positive and Negative Evidence
Prima Facie evidence and Conclusive evidence.
Scientific Evidence and Digital Evidence
All these types of evidences are dealt with by the Act either
explicitly or by implication, though in the definition of the word
we find only oral & documentary evidence .
Direct evidence and Indirect evidence or Circumstantial
evidence
Direct Evidence or Positive Evidence is any
evidence of a fact actually proved by the witness by
his own opinion or senses about the existence or non
existence about the very fact in issue or matter in
controversy.
It must be noted that small discrepancies or
irrelevant details if left out in the witnesses’
statement shall not corrode the credibility of the
witness and will not in any way rejection of the
witness statement by the Court.
Circumstantial Evidence is a testimony by witnesses as to
the circumstances from which an inference is to be drawn as to
the fact in issue.
Such kind of evidence is to be resorted to only in case no direct
evidence is available.
Example: X is charged with the murder of Y. At the trial, a
witnesses Z, on behalf of the prosecution, gives evidence that he
saw X stab Y or, Z may make the statement that he saw X
running away from the place where Y's corpse was found, with
a blood-stained knife in his hand. In the first case, the evidence
given by Z is usually referred to as direct evidence and in the
second circumstantial evidence.
Evidentiary value of circumstantial evidence
In the case of C. Parshwanath v. State of Karnataka
AIR2010SC 2914, Supreme Court observed,
On the other hand, circumstantial evidence is evidence of relevant facts from
which, one can, by process of intuitive reasoning, infer about the existence of
facts in issue or factum probandum. The court further observed that Human
agency may be faulty in expressing picturisation of actual incident, but the
circumstances cannot fail. Therefore, many times it is aptly said that “men
may tell lies, but circumstances do not”.
Circumstantial evidence is a weak piece of evidence. However, in
the case of Bodh Raj v. State of Jammu and Kashmir
(2002) 8 SCC 45, Supreme Court observed that a person be
convicted on circumstantial evidence alone. But circumstantial
evidence must be proved.
The Supreme Court in the case of Sharad Birdichand Sarda
v. State of Maharashtra [1985] 1 SCR 88, laid down the
Five Golden Principles of Circumstantial Evidence:
i. The circumstances from which the conclusion of guilt is to
be drawn should be fully established.
ii. The facts so established must be consistent only with
the hypothesis of the guilt of the accused i.e. it should only
explain the hypothesis of the guilt of the accused.
iii. The circumstances should be of a conclusive nature.
iv. They should exclude every possibility of any other
hypothesis than the one to be proved.
v. There must be a chain of evidence so complete so as not to
leave any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all possibility that
the act must have been done by the accused.
In the case of Caestanco Fernandez v. Union Territory of
Goa AIR 1977 SC 135,, a test was laid down for the acceptance of
circumstantial evidence which is as follows:
if 2 inferences are possible at the same time, one about the innocence and the
other the guilt of the accused, the evidence indicating towards the innocence of
the accused shall be used.
Original Evidence and Hearsay or Unoriginal
Evidence
Original Evidence is that which a witness reports himself
to have heard or seen by way of his own senses.
Unoriginal or Hearsay Evidence is that which a witness
is merely reporting what he himself saw or heard but
through the medium of a third person.
It is a fundamental principle of evidence law that such kind
of evidence is not admissible.
Reason being:
The original maker and the person making it cannot be cross examined.
Truth is diluted with each repetition.
If permitted it may give ample scope for playing fraud.
Exception to Hearsay Rule:
Res-gestae (Section 6)
Admission and Confession
Dying Declaration
Author’s opinion under proviso to section 60
These exceptions are either based on rule of
necessity and relevancy.
Oral evidence and Documentary evidence
Section 3 states that 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
Oral Evidence is that which is brought to the knowledge of the Court by
verbal statements of the witness, qualified to speak on point under enquiry.
[S. 59 & S. 60]
Further, Section 3 states that all documents including electronic records
produced for the inspection of the Court); such documents are called
documentary evidence.
Documentary evidence is that evidence of a fact brought to the knowledge
of the Court by inspection of any document produced. A documents means
any matter expressed or described upon any substance by means of letters
or figures intended to be used. [S. 61- S.90]
Primary evidence and Secondary evidence
Primary evidence is when a document is
produced before the court for inspection or proof of
an admission of the contents by the parties.
Section 62 defines it.
Secondary evidence is inferior which itself
indicates that the existence of a fact is taken from the
original source.
Defined under section 63.
Real Evidence/ Material Evidence and Personal
Evidence
Real Evidence is that which is brought to the
knowledge of the Court by inspection of an object
and not by way of a witness or a document produced
(Section 60 last para).
Personal Evidence is that which is afforded by a
human agent by voluntary signs. These are evidences
personal to one’s conscience and experience.
Corroborative evidence and Substantive evidence
Corroborative evidence must be taken along with substantive
evidence.
When evidence is given of the fact in issue or of a relevant
fact that is called substantive evidence.
There are, however, several statements oral & documentary,
which are not substantive evidence. They are not admissible
by themselves, but become admissible to corroborate, or
support, substantive evidence already given.
Evidence to corroborate substantive evidence is permitted
under Sections 156 & 157.
Judicial Evidence and Non- Judicial Evidence
Judicial Evidence is that which is received by the Court of
justice in proof or disproof of facts. Therefore, it is natural
evidence modified by certain rules.
Non Judicial Evidence is that which is given in proceedings
before an officer not in a judicial capacity but in an
administrative capacity [S. 164 CRPC]
Positive and Negative Evidence
Positive Evidence is that which tends to prove the existence
of a fact whereas, by negative evidence the non-existence of
a fact is proved. Therefore the latter is not good evidence.
Prima Facie Evidence and Conclusive Evidence:
Prima facie evidence is accepted as reliable as it establishes or proves a
fact in the absence of any contradictory evidence.
Conclusive evidence is the use of facts involving the application of the
rule of law. (S. 41). Example- Decree of a competent court is conclusive
evidence.
Scientific Evidence and Digital Evidence
Scientific evidence the use of scientific basis from the point of view of
cogency, weight or effect of the evidence. It is based on the fact that
science confirms the facts stated.
Digital evidence is the rule of modern concepts or electronic concepts in
establishing or proving a part of facts in issue which is relied on by the
Courts depending on the facts and circumstances of the case.
Does evidence includes ‘Video
Conferencing’?
State of Maharashtra v. Dr. Praful B. Desai
20 (April 1, 2003)
In this case court held that electronic evidence
includes evidence through ‘Video Conferencing’. For
the purpose of presence under section 273, Cr.P.C.
includes constructive presence.
Court further held that video-conferencing has
nothing to do with virtual reality. It is actual reality.
Does evidence include illegally obtained tape recording?
Yes, R. M. Malkani vs State of Maharshtra (1972)
Court in this case held that tape recorded conversation is admissible provided:
the conversation is relevant to the matters in issue;
there is identification of the voice; and,
the accuracy of the tape recorded conversation is proved by eliminating the
possibility of erasing the tape record.
A tape record of a relevant conversation is a relevant fact and is admissible
under Section 8 and 6 of the Evidence Act.
Court also held that Indian Evidence Act does not say that Evidence must be
collected in legal manner. This Act is silent regarding manner of collection of
Evidence. It concentrate on relevancy of facts.
Whether statement of accused could be considered as
evidence in trial?
Read section 3 of IEA with section 313 and 315 of CRPC.
Is “confession of co-accused and accused” evidence under
Indian Evidence Act?
In strict sense, no because of following reasons -
It is not required to be given on oath,
nor in the presence of the accused (for co-accused), and
it cannot be tested by cross-examination
But relevant and admissible and can form basis of conviction.
Refer case Mohd. Khalid v. State of West Bengal (2002) for co-accused
and Aghnoo Nagesia vs State of Bihar (
