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PROCEDURE

Table of Contents

QUESTION BANK

Q.1 State the various kinds of evidence.

Q.2 Define “Evidence” and state its kinds and importance.

Q.3 Explain fully “substantive law and procedural law”.

SHORT NOTES

Kinds of Evidence.
Substantive law.
Procedural law.
Circumstantial Evidence.
Documentary Evidence.

I Adjective (Procedural) Law[1]: –

All Laws may be classified into (1) substantive Laws and (ii) Adjective (Procedural) Laws.

Substantive Laws are those which define the rights, duties and liabilities of the parties. Indian Penal Code, Indian Contract Act, the Transfer of Property Act, etc., are instances of substantive laws.

Whereas, Adjective Laws are those which define the pleading and procedure by which substantive Laws are applied in practice. Civil Procedure Code[2], Criminal Procedure Code[3] and the Indian Evidence Act are the Adjective or Procedural Laws.

For example, if A is prosecuted for murder, the punishment provided by the Indian Penal Code in S. 302 is either death or imprisonment for life (Substantive Law determining the liability of A and the right of State to prosecute A). However, A cannot directly be hanged or sentenced to life imprisonment unless the commission of murder by A is proved. The commission of murder needs to be proved before the Court with the help of Adjective Laws. Thus, the fact that C saw A beating B, D saw A and B moving towards the place where B’s murder took place, etc., need to be established before the Court. On such established facts, the Court either will convict A for B’s murder or acquit him thereby. Thus, the court would establish the state’s right of prosecution and liability of ‘A’ for murder or establish the right of A of acquittal.

Similarly, X enters into a contract with Y, promising to sell his house to him, and Y promises to pay Rs. 2,00,000/- to X. On breach of contract by either party, the aggrieved party comes to a Court to get his right established. The rights of the aggrieved party and liability of defaulting party, as well as remedies thereto for breach of contract, are provided in the Indian Contract Act (substantive law). However, the Court cannot decide the rights and liabilities of the parties unless the ‘existence of contract’ between X and Y is proved by the procedure prescribed by the procedural law.

If A prosecutes B for defamation, the right, liability, and punishment are provided under the Indian Penal Code. However, the Court cannot determine A’s right and B’s liability unless it is proved by the evidence that B has defamed A. Similarity and answers to the questions as to who should offer evidence and in what manner are provided in the Indian Evidence Act (Adjective Law).

Rules regarding evidence in the administration of justice are very important. No substantive Law can be enforced without the help of the rules of the Law of Evidence. The Law of Evidence can be called the foundation on which the entire structure of adjudication (judiciary)[4] is based. (Note- Sections quoted in this topic are sections from the Indian Evidence Act).

II. Evidence[5] : –

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 the 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-

i. Oral Evidence[6] –

It means all statements that the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and

ii. Documentary evidence –

It means all documents, including electronic records[7] 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 mediums of proof which the Court takes into consideration as evidence but which are not covered under the above definitions, viz. –

a) Demeanor of witness[8]: –

‘Demeanor’ means the condition, behaviour, and expression of witnesses at the time of giving evidence. Observing the demeanor of the witness by the Court at the time of chief or cross-examination is a material piece of evidence, a judge takes note of it.

b) Admission[9] and confessions[10] of the parties-
c) Presumptions to be drawn from the absence of a producible witness or evidence[11].
d) Identification proceedings[12] (e.g. identification of accused, ornaments, articles, etc.)
e) Inspection of the site (scene) of the crime[13]
f) Real evidence, i.e. material objects[14] produced for the court’s inspection, such as photographs, weapons used in the crime, bloodstained clothes, etc.
g) Statements of witnesses – If the opportunity of 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 above definition under section 3 of the Evidence Act is exhaustive if we interpret it widely; it is because all evidence can either be made orally or through documents. Thus, admissions, and confessions are oral statements, whereas photographs, weapons, and objects can be called ‘documents’.

III. Kinds of Evidence[15] : –

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[16] (S. 3): –

Section 3 defines ‘document’. It 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 given in S. 29 of the Indian Penal Code. The definition of ‘document’ is given with a very wider sense. Generally, ‘document’ means ‘written paper’. But according to the definition, 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[17] : –

This classification concerns the kind of proof that may be given of the contents of the document. ‘Primary evidence’ is the evidence which is given in the first instance. ‘Secondary evidence’ is that which is given in the absence of the 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 ‘secondary evidence’ of that document. (For details, refer to S. 65)

(iii) Direct and Circumstantial Evidence[18] : –

Direct evidence is also called ‘original evidence’. ‘Direct evidence’ is the testimony of a witness as to any matter of fact which the witness have themselves 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 fact that A was seen with the gun by D at the place of murder, recovery of the gun, the bullet found in the body was the same purchased by A from E’s shop, 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 issue of theft.

Direct evidence is reliable, but where the case is based entirely on circumstantial evidence, 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 by the Courts that where circumstantial evidence is susceptible to two possible inferences, the Court should accept that inference which favours the accused rather than the inference which goes in favour of the prosecution.

(iv) Direct and hearsay evidence[19]: –

(Direct evidence is discussed above). The direct expression 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 ‘second hand’ or ‘un-original’ evidence. Hearsay evidence is the evidence of incidence learnt by witnesses not through the medium of their own senses but through others.

Thus, if A deposes before the Court that B told him that he saw C stabbing D, it is hearsay evidence, which 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 the above facts from somebody else is hearsay.

(v) Real and personal evidence[20] : –

Real or material evidence is the evidence of a fact brought to the knowledge of the Court by inspection of the 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, either in the way of discourse by voluntary signs.

(vi) Substantive and Corroborative Evidence[21] : –

Substantive evidence is evidence on which the court can rely to decide the case. Corroborative evidence is additional evidence that 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 a confession. However, the confession by co-accused ‘B’ is not substantive evidence against ‘A’. However, the court can take such a confession of ‘B’ into account as corroborative evidence against A, which has already concluded that ‘A’ was convicted on the basis of substantive evidence.

IV. Valuation of evidence-

Probative force or value of evidence depends upon a number of factors such as the demeanour of the witness, the cross-examination of the witness, the manner in which the witness answers questions, the discrepancies noticeable in the depositions of witnesses, the corroboration of witnesses, the nature of circumstantial evidence etc.

Salmond has laid down certain rules relating to the valuation of evidence, such as conclusive proof, presumptive proof, insufficient evidence, exclusive evidence, no evidence, etc.

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[1] प्रक्रिया/कार्यपध्दती विशयक [प्रक्रिया / प्रक्रिया विनिर्देश ]

[2] दिवाणी प्रक्रिया संहिता [नागरिक प्रक्रिया संहिता ]

[3] फौजदारी प्रक्रिया संहिता [दंड प्रक्रिया संहिता ]

[4] न्यायदानाचे [न्याय का ]

[5] पुरावा [प्रमाण ]

[6] सर्व प्रकारचा तोंडी पुरावा की जो न्यायालयापुढे देण्यास परवानगी दिली जाते अथवा न्यायालयापुढे घेण्याची न्यायालयास गरज वाटते की जो न्यायालयापुढील चैकषीच्या कामाषी संबंधीत असतेा [सभी मौखिक साक्ष्य जिन्हें न्यायालय के समक्ष दिए जाने की अनुमति है या जिन्हें न्यायालय के समक्ष ले जाने के लिए न्यायालय आवश्यक समझे जो न्यायालय के समक्ष विचारण के परिणाम के लिए प्रासंगिक हो। ]

[7] (Inserted by Information and Technology Act)

[8] सक्षीदारांचे आचरण/कोर्टापुढील वागणूक [अदालत में गवाहों का आचरण/व्यवहार ]

[9] वस्तुस्थितीची कबुली/कबुली [तथ्य की स्वीकारोक्ति / स्वीकारोक्ति ]

[10] गुन्हयाची कबुली [अपराध बोध ]

[11] जबाब किंवा पुरावा देणे षक्य असूनसुध्दा तो न दिल्यास न्यायालयाने गृहित धरण्याच्या गोश्टी [उत्तर या साक्ष्य देना संभव होने पर भी यदि यह नहीं दिया जाता है तो न्यायालय द्वारा माने जाने वाले मामले ]

[12] ओळख प्रक्रिया [पहचान प्रक्रिया ]

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

[14] स्थावर स्वरुपाचा पुरावा [अचल साक्ष्य ]

[15] पुराव्याचे प्रकार [साक्ष्य के प्रकार ]

[16] दस्तऐवज/कागदपत्र [दस्तावेज़ / दस्तावेज़ ]

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

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

[19] प्रत्यक्ष व ऐकीव पुरावा [प्रत्यक्ष और सुनी सुनाई सबूत ]

[20] वस्तु/स्थावर व व्यक्तीगत पुरावा [वस्तु/अचल और व्यक्तिगत साक्ष्य ]

[21] मूळ सकारात्मक पुराव्यास बळकटी / पुष्टी देणारा पुरावा [साक्ष्य जो मूल सकारात्मक साक्ष्य को पुष्ट / पुष्टि करता है]