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DEFINITIONS (S.3): –

QUESTION BANK

Q.1. Define evidence. State its kinds.

Short Notes

(i) Oral and Documentary Evidence.

(ii) Primary and Secondary Evidence.

(iii) Direct and Circumstantial Evidence.

(iv) Direct and hearsay evidence.

(v) Real and personal evidence.

(vi) Substantive and Corroborative Evidence.

SYNOPSIS

Evidence: –
Kinds of Evidence: –

(i) Oral and Documentary Evidence: –

(ii) Primary and Secondary Evidence: –

(iii) Direct and Circumstantial Evidence: –

(iv) Direct and hearsay evidence: –

(v) Real and personal evidence: –

(vi) Substantive and Corroborative Evidence: –

DEFINITIONS (S.3): –

Table of Contents

The definitions of some important terms frequently used in the Evidence Act are given under S. 3 of the Evidence Act as below-

I. Evidence[1] : –

The word ‘evidence’ is derived from the Latin word ‘evider’, which means ‘to show clearly’, ‘to discover clearly’, ‘to ascertain’, and ‘to prove’.

Thus, the term evidence means everything that makes apparent the truth of a matter in question.

According to Blackstone ‘evidence’ signifies that which demonstrates, makes clear or ascertains the truth of the facts or points in an issue either on one side or the other.
The Evidence Act defines the term ‘evidence’ means and includes-
Oral Evidence[2] – i.e. all statements that the Court permits or requires to be made before it by witnesses concerning matters of fact under inquiry and
Documentary evidence – i.e. all documents, including electronic records[3] produced for the inspection of the Court.

Thus, the definition of evidence covers two types of evidence, i.e. statements made by the witnesses (Oral Evidence) and documents produced (Documentary Evidence.)

This definition is said to be incomplete because it does not include all the material on which the decision of the judge may rest. There are certain other proof mediums that the Court considers as pieces of evidence but which are not covered under the above definition, viz. –

a) Demeanor of witness[4]: –

It means the condition, behaviour, and expression of witnesses when giving evidence. The court’s observation of the witness’s demeanour at the time of chief or cross-examination is a material piece of evidence; a judge takes note of it.

b) Admission[5] and confessions[6] of the parties
c) Presumptions to be drawn from the absence of producible witness or evidence[7].
d) Identification proceedings[8] (e.g. identification of accused, ornaments, articles, etc.)
e) Inspection of the site (scene) of the crime[9]
f) Real evidence, i.e. material objects[10] Documents produced for the court’s inspection, Such as photographs, weapons used in a crime, blood-stained clothes, etc.
g) Statement of witness – If the opportunity for cross-examination is not given to the opposite party,
In this way, Taylor’s definition of ‘Evidence’ is said to be more comprehensive. According to him, ‘Evidence’ means ‘all the legal means, exclusive of mere arguments, which tend to prove or disprove any fact the truth of which is submitted to the judicial investigation’. Thus, the terms ‘Evidence’ and ‘Proof’ are often used as ‘synonymous’.

According to another view, the above definition under section 3 of the Evidence Act is exhaustive if we interpret it widely because all evidence can be made orally or through documents. Thus, admissions and confessions are oral statements, whereas photographs, weapons, and objects can be called ‘documents’.

II. Kinds of Evidence[11] : –

Evidence can be classified into the following kinds. (We will discuss them in short)

(i) Oral and Documentary Evidence: –

According to the above definition of ‘Evidence’, it is either oral or documentary.

Oral Evidence: –

“All statements made by witnesses in the witness box in relation to the matter of facts under enquiry” are called oral evidence, and “all documents which are produced before the Court in support of certain facts” are called documentary evidence.

Thus if ‘X’ produces witness ‘Z’, who says in the Court that the money was lent by ‘X’ to ‘Y’ before him, it is oral evidence of ‘Z’ of the fact as to whether ‘X’ has lent money to ‘Y’?. But if ‘X’ produces a promissory note in his favour given by ‘Y’, it is documentary evidence.

Document[12] (S.3): –

Section 3 defines ‘document’ means “any matter expressed or described upon any substance by means of letters, figures or marks, or by more of these means, intended to be used or which may be used, for the purpose of recording that matter”.

Illustrations

a) A writing is a document
b) Words printed, lithographed, or photographed are documents.
c) A map or plan is a document.
d) An inscription on a metal plate or stone is a document.
e) A caricature is a document.

This definition of ‘document’ is similar to that definition given in S.29 of the Indian Penal Code. The definition of ‘document’ is given in a very wide sense. Generally, ‘document’ means ‘written paper’. But according to the definition, the document means and includes “matters expressed or described on all material substances by means of letters, figures or marks”. Thus, writing an inscription on a metal plate or stone is a document. Writing on a wall is a document. Hence, a document means all material substances on which human thoughts are recorded.

(ii) Primary and Secondary Evidence[13] : –

This classification concerns the kind of proof that may be given of the contents of documents. Primary evidence is the evidence which is given in the first instance. Secondary evidence is that which is given in the absence of primary evidence.

When the original document itself is produced for the inspection of a Court, it is called primary evidence. However, if a copy of the document is produced in the evidence, it is called as ‘secondary evidence’ of that document. (For details, refer to S.65)

(iii) Direct and Circumstantial Evidence[14] : –

Direct evidence is also called ‘original evidence’. ‘Direct evidence’ is the testimony of a witness as to any matter of fact that the witness has himself perceived, e.g. A is accused of the murder of ‘B’ by gunfire. C is an eyewitness to the incident. The testimony of C that he saw A firing at B is direct evidence. Similarly, in a case of theft by X of Y’s articles, the evidence of the person who has seen X stealing the article is direct evidence.

‘Circumstantial evidence’ is the evidence as to the circumstances from which an inference is to be drawn as to the fact in issue. Circumstantial evidence is helpful when direct evidence is not available. Thus, if in the above gunfire case, the facts that (i) A was seen with the gun by D at the place of murder, (ii) recovery of the gun, and (iii) the bullet found in the body was the same purchased by A from E’s shop, (iv) deposition of F that there was a quarrel between A and B on the count of land, are all circumstantial evidence leading towards the fact in issue, i.e. murder of B. Similarly, in another theft case (discussed above), if X is found in possession of the articles stolen from ‘Y’s house, Z saw Y running from X’s house, etc., are all circumstantial evidence leading towards the fact in an issue of theft.

Direct evidence is reliable, but where the case is based entirely on circumstantial evidence, a conviction of the accused cannot be ordered unless –

a) the circumstances from which evidence is drawn are cogently and firmly established.
b) The established circumstances should have a definite tendency to point towards only the guilt and the guilt of the accused.
c) the circumstances taken cumulatively should form a chain so complete that there is only one conclusion that, with all probability, the crime was committed by the accused and nobody else.

However, in cases based completely on circumstantial evidence, it is well established that where circumstantial evidence is susceptible to two possible inferences, the Court should accept that inference favouring the accused rather than the inference favouring the prosecution.

(iv) Direct and hearsay evidence[15]: –

(Direct evidence is discussed above). The expression ‘direct evidence’ or ‘original evidence’ is used with two senses, one opposite to circumstantial evidence (Already discussed) and another opposite to hearsay evidence.

Hearsay evidence signifies the evidence heard and said. It is also called secondhand or un-original evidence. Hearsay evidence is the evidence learned by witnesses not through their senses but in the medium of a third person. Therefore, it is called as heard and said.

Thus, hearsay evidence is hearsay if A deposes before the Court that B told him that he saw C stabbing D. Hearsay evidence is not admissible in Court.

Suppose, in a murder case, evidence as to the following facts is given –

a) that the accused was stabbing the deceased with a knife.
b) that the deceased was crying for help, c) that the accused ran away.

The evidence of a witness who has seen a stabbing or heard cries of the deceased for help or seen the accused running away is direct, but the evidence of a witness who has heard these facts from somebody else is hearsay.

(v) Real and personal evidence[16] : –

Real or material evidence is the evidence of a fact brought to the knowledge of the Court by inspection of a physical object and not by information derived from a witness or document, e.g. stolen property, weapons used in a crime, blood-stained clothes, etc. Personal evidence is that which is afforded by a human agent who has witnessed the fact.

(vi) Substantive and Corroborative Evidence[17] : –

Substantive evidence is that piece of evidence on which reliance can be placed for the decision of the case by the Court. Corroborative evidence is additional evidence which tends to strengthen or confirm the evidence already given. In other words, the Court can convict the accused on the basis only of substantive evidence. However, the Court considers corroborative evidence merely to fortify the decision of conviction.

Thus, the confession of accused ‘A’ is substantive evidence against him, and the Court can convict him on the grounds of such confession. But confession by co-accused ‘B’ is not substantive evidence against ‘A’. However, such confession of ‘B’ can be considered corroborative evidence against A.

Rules of Evidence in Civil and Criminal Proceedings: –

The principles of the Evidence Act apply to civil and criminal proceedings.

However, here are some provisions that apply exclusively to criminal proceedings, such as confessions, dying declaration, character, and compatibility of witness. In contrast, the admission and estoppel provisions only apply to civil proceedings.

In civil matters, the standard of proof required is by probability[18] (i.e., the burden of proof is lighter), whereas, in criminal cases, the standard of proof is required to prove an offence beyond any reasonable doubt[19]. (The burden of proof is heavy).

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[1] पुरावा [प्रमाण ]

[2] सर्व प्रकारचा तोंडी पुरावा की जो न्यायालयापुढे देण्यास परवानगी दिली जाते अथवा न्यायालयापुढे घेण्याची न्यायालयास गरज वाटते की जो न्यायालयापुढील चैकषीच्या कामाशी संबंधीत असते. [सभी प्रकार के मौखिक साक्ष्य जिन्हें न्यायालय के समक्ष प्रस्तुत करने की अनुमति दी जाती है या जिन्हें न्यायालय न्यायालय के समक्ष ले जाना आवश्यक समझता है और जो न्यायालय के समक्ष गवाह के कार्य से संबंधित है। ]

[3] (Inserted by Information and Technology Act now)

[4] सक्षीदारांचे आचरण/कोर्टापुढील वागणूक [ अदालत में गवाहो व्यवहार का आचरण ]

[5] वस्तुस्थितीची कबुली/कबुली [ स्वीकारोक्ति तथ्य का स्वीकारोक्ति ]

[6] गुन्हयाची कबुली [ अपराध स्वीकारोक्ति ]

[7] जबाब किंवा पुरावा देणे शक्य असूनसुध्दा तो न दिल्यास न्यायालयाने गृहित धरण्याच्या गोष्टी [ उत्तर या साक्ष्य देना संभव होने पर भी न्यायालय द्वारा मानी जाने वाली बातें ]

[8] ओळख प्रक्रिया [ पहचान प्रक्रिया ]

[9] प्रत्यक्ष गुन्हयाच्या ठिकाणची पाहणी [ वास्तविक अपराध स्थल का निरीक्षण ]

[10] स्थावर स्वरुपाचा पुरावा [ अचल प्रपत्र का प्रमाण ]

[11] पुराव्याचे प्रकार [ साक्ष्य के प्रकार ]

[12] दस्तऐवज/कागदपत्र [ दस्तावेज़ दस्तावेज़ ]

[13] प्राथमिक व दुय्यम पुरावा [ प्राथमिक और माध्यमिक साक्ष्य]

[14] प्रत्यक्ष व परिस्थितीजन्य पुरावा [ प्रत्यक्ष और परिस्थितिजन्य साक्ष्य ]

[15] प्रत्यक्ष व ऐकीव पुरावा [ प्रत्यक्ष और सुने सबूत ]

[16] वस्तु/स्थावर व व्यक्तीगत/वैयक्तिक पुरावा [ भौतिक अचल और व्यक्तिगत /व्यक्तिगत साक्ष्य ]

[17] मुळ सकारात्मक पुराव्यास बळकटी/ पुष्टी देणारा पुराव [ साक्ष्य जो मूल सकारात्मक साक्ष्य को पुष्ट /पुष्टि करता है ]

[18] घटणेची शक्यता दाखविनारा पुरावा [घटना की संभावना का प्रमाण ]

[19] कोनत्यही संयुक्तीक षक्यतेपलीकडे गुन्हा शिध्द होने गरजेचे असने [ अपराध को किसी भी उचित संभावना से परे साबित किया जाना चाहिए ]