Evidence

What is Evidence?

As per Tomlin's Law Dictionary, evidence means an inference logically drawn as to the existence of a fact. It consists of proof by testimony of witnesses on oath, or by writings or record. Evidence includes an element of 'inference' to be drawn through reasoning. As per the understanding of Anglo-American law, evidence refers to proof of factual claims in law.

Evidence is a sine qua non for establishing a dispute and adjudicating it in a court of law. It is essentially the item or information offered to make the existence of a fact more or less probable. A proper decision in any case before a court is not possible without knowledge of true facts involved in a dispute. Through the evidence the facts alleged by one party, and denied by the other require the Court to ascertain whose contentions are true and for that purpose, the judge has to weigh the ‘evidence’ available in support of or contradiction to those contentions.

In order to appreciate the evidence, the judge has to cull out evidence from the narration, which represents the true state of affairs, hence  the role of the evidence is to separate grains from chaff. 

The common law rule of evidence differs from the continental procedural system in two ways; first, in its exclusionary nature and, secondly, in its unified effect.

Official Definition of Evidence

Section 2(1)e of Bharatiya Sakshya Adhiniyam, Evidence means and includes all the statements in electronic form which requires permission of the court or statements made before witnesses in relation of the facts in inquiry etc are called the oral evidence and all documents which includes electronic and digital records as well, that are produced before the court for inspection are the documentary evidences. This section corresponds to section 3 of Indian Evidence Act, 1872. However, under the Indian Evidence Act 1872 only electronic records were treated as documentary evidence and there was no express mention of digital records in the definition of ‘evidence’.

With regards to the definition of Evidence as per the 185th Law Commission Report, the commission recommended to remove the term “means to” from the definition and keep the entire definition intact.

Categorisation and Types of Evidence

The case of Kalyan Kumar gogoi v. Ashutosh Agnihotri, highlighted the manner in which the term ‘evidence’ is understood in the community, which are:

(a) as equivalent to relevant

(b) as equivalent to proof and

(c) as equivalent to the material

On the basis of all three manners, the court concludes with regards to the existence or non-existence of a disputed fact. Further, the types as observed by the court in this judgment are:  Best evidence, Circumstantial evidence, Corroborative evidence, Derivative evidence, direct evidence, Documentary evidence, Hearsay evidence, Indirect evidence, Oral evidence, Original evidence, Presumptive evidence, Primary evidence, Real evidence, Secondary evidence, Substantive evidence, Testimonial evidence, etc.

Furthermore, on the basis of admissibility and inadmissibility, evidence is divided into four types; Real, Demonstrative, Documentary and Testimonial.

Real and Demonstrative Evidence

Real evidence is any actual object that was directly involved in an event in the case. It could be the weapon used to murder a victim, like a gun or a hammer, or the tool used to break into a house, like a crowbar. Demonstrative evidence, on the other hand, is an illustration of evidence, something like a map of the crime scene.

Oral and Documentary Evidence

Oral evidence refers to the statement given by a witness before the court of law for proving or disproving a point of fact. Essentially the testimony recorded by the court is known as Oral evidence. Admissibility of Oral evidence depends upon the verification and checking of the statements made, there is no need for any further proof for the admission of the same.

Documentary evidence refers to any document containing information, which is presented before the court for inspection. The documentary evidence includes records saved in the form of electronic records as well.

Objection

In case an objection is raised with regards to either of these evidence during the course of trial, then the court is obliged to make a note of such objection. In case of objection against documentary evidence, the objected document can be exhibited for removal of such objection. However, in case of oral evidence the court mentions that the objection will be perused at the final stage of the judgment and if the objection has value then the evidence will be excluded from consideration.

An objection could be of one of two types:

1. Document is inadmissible
2. Mode of proof is irregular

The former can be raised at any stage, however the latter can only be raised before the evidence is placed. Omission in such a case leads to the assumption that mode of proof is acceptable.

Prejudicial evidence that impacts the integrity of the case and often used to mislead, Hearsay Information and Testimony based on Character etc are the types of evidence that are not acceptable in the court of law.

Primary and Secondary Evidence

When the original document is presented before the for its analysis, that is primary evidence. Even if two documents are created at the same time and executed and testified, only one of them shall be considered as primary evidence which has not been derived from any form of copying mechanisms, such as Xerox, etc.

On the other hand, secondary documentary evidence consist of certified copies, Copies made from the original document by a mechanical process which ensures the accuracy of the copy, and copies compared with such copies; copies made from or compared with the original document; counterparts of documents as against the parties who did not execute them; etc.

Types of Secondary Oral Evidence

Oral Evidence, which is secondary in nature, is not a very strong piece of evidence. It can be further classified as

1. Any oral accounts of the contents of a document given by some person who has himself seen it
2. Any oral account which a person may have heard from another person, that is hearsay.
3. Evidence given by an accomplice as a witness, approver and Police witness.

In case the person who has seen the original document is not able to read it, then the testimony of such person will not be admissible. Such oral evidence becomes hearsay evidence and thus rejected under section 60 of the Act.

The essential prerequisite for moving towards secondary evidence is the lack of original documents. It can also be considered by the court in case the primary document has been lost or destroyed. 

Direct and Circumstantial Evidence

Direct evidence is evidence of a fact based on a witness's personal knowledge or observation of that fact. A person's guilt of a charged crime may be proven by direct evidence if, standing alone, that evidence satisfies a judge beyond a reasonable doubt of the person's guilt of that crime.

Circumstantial evidence is direct evidence of a fact from which a person may reasonably infer the existence or nonexistence of another fact. A person's guilt of a charged crime may be proven by circumstantial evidence, if that evidence, while not directly establishing guilt, gives rise to an inference of guilt beyond a reasonable doubt. Sharad v. State of Maharashtra gave the five golden principles for guiding admissibility of circumstantial evidence . This is also known as the ‘panchsheel’ of proof.

1. the circumstances from which the conclusion of guilt is to be drawn should be fully established.
2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty
3. the circumstances should be of a conclusive nature and tendency unerringly pointing towards the guilt of the accused.
4. they should exclude every possible hypothesis except the one to be proved, and
5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Hearsay

An evidence given by a witness however, has not been received by the senses of the reporting witness. Thus, it is considered as a weak piece of evidence.

Why is it not admissible?

Section 30 of the Indian evidence act states that an oral evidence to be admissible has to fulfill the criteria of being directly en, heard or sensed. Hearsay fails to qualify the criteria and thus is not considered as admissible.

Exceptions to the Rule of Hearsay

The Dying Declaration is a form of exception to the rule of Hearsay. The Supreme Court held that the Dying Declaration also has to be, however, verified and only held important if they have a rational connection with the facts provided in the case previously.

Dying declaration is defined under section 32(1) of the Act, and its emphasis on the statements made by the person while dying with respect to the cause or circumstance of death.  This falls within the exception because the person making such statements is no longer alive and thus cannot testify for their cause.

Admission and confessions is also an exception to the rule of Hearsay. This is so because though admission is hearsay in nature, it is the best evidence. The court held in the case of State of Maharashtra v. Kamal Ahmed Mohd. Vakil Ansari that the Evidence Act places admissions and confessions in the province of relevance, presumably on the ground that they being declarations against the interest of the person making them, they are in all probability true. The probative value of an admission or a confession does not depend upon its communication to another.

Electronic Evidence

Electronic record means "data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche. When these electronic records are produced before the court, then they are classified as documentary evidence.

Any information available as an electronic record is considered as a document, if it fulfills the conditions mentioned within section 65B(2) of the Indian Evidence Act.  In the landmark decision of Anvar P.V. v. P.K. Basheer, the Apex court held that electronic records are wholly governed by Sections 65A and 65B. These sections form a complete code when it comes to admissibility of information contained in electronic records. And an electronic record by way of secondary evidence shall not be admitted unless the requirements under Section 65B are satisfied, including a written certificate under Section 65B(4).

However, when a primary evidence is submitted before the, then this original electronic record does not require any certification.

With regards to the oral form of electronic evidence, on a combined reading of section 45A of IEA and section 79A of information technology Act the provision states that whenever a question as to the genuineness of electronic record arises, it can be verified by an examiner of electronic evidence who is appointed by the Central Government.

Forensic Evidence

Challenges

Data volatility leads to inconsistency in data. Collection of encrypted data raises questions about privacy and freedom of speech. With regards to the admission of such evidence, the possibility of alleging tempering electronic evidence is quite high that can render the evidence of no utility. Reliability of the computer, on which data was stored, can also be questioned.

Because of the existence of huge amounts of fake accounts it becomes highly difficult to rely on the data produced by such accounts, as the identity is still not found.

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Opinion Evidence (Expert Evidence)

Expert evidence is information or opinion given by an expert in any field that person is specialized in, which comes out to be evidence in any matter.

Evidentiary Value of different experts

• Medical expert - Medical evidence is only in the form of opinion and is required only for settling a matter.
• DNA expert - This kind of evidence is admissible because it is perfect science.
• Fingerprint expert - in case many people have handled the object then there will be no effect of non-examination of the finger-print expert in any way.
• Handwriting expert - It is not considered as direct evidence, however it can be used for supporting other evidence.
• Experts in textbooks - Opinions expressed in text books by specialist authors may be of some importance for the court in arriving at the truth but the same cannot be treated as final or conclusive.

Corroborative Evidence:

Corroborative evidence can have a dual function in argument whereby not only does it have a primary function of providing direct evidence supporting the main conclusion, but it also has a secondary, bolstering function which increases the probative value of some other piece of evidence in the argument.

The case of Shankar @ Gauri Shankar And Ors. vs State Of Tamil Nadu explained what is required for corroboration, it is that the evidence in corroboration must be an independent testimony which affects the accused by connecting or tending to connect him with the crime. It is sufficient if there is corroboration as to the material circumstances and the crime of the identity of the accused in relation to the crime. The corroborative evidence can be direct or circumstantial. Ultimately, the question of whether there is sufficient corroboration or not further depends on the facts and circumstances of each case.

Admissions

It is a statement made orally or in writing, suggesting an inference as to fact in issue or relevant fact by any of the following persons:

1. party to the proceeding, or
2. agent to party to suit, or
3. suitor in representative suit, or
4. party interested in subject matter, or
5. person from whom parties have derived their interest, or
6. person whose position is relevant, or
7. person referred for information

The evidentiary value of admissions depends upon the types of admissions in question. Generally, admissions are considered as reliable and good evidence. However, they are not conclusive proof of any fact. For instance, Judicial admissions which are made in court during a legal proceeding are generally very reliable and can be difficult to disprove. But on the other hand, extra-judicial admissions,  which are made outside of court are still good evidence but can be challenged more easily.

Concepts associated with Evidence Law

Admissibility

What nature of evidence that can be presented before the Court is a question that is dealt with as per the concept of Admissibility. The concept of admissibility and its grounds are meant for ensuring that cases are not being decided on the basis of authenticity and credibility which can be subjected to reasonable doubt.

Burden of Proof

Burden of proof is used to hold someone responsible for proving the existence of facts. Person holding the burden of proof will be having the responsibility of providing evidence to the court.

Standard of Proof

The degree of proof which is expected from certain evidence, for deciding upon the disputed facts is known as standard of proof. In criminal matters this standard is beyond any reasonable doubts.  

Doctrines related to Evidence Law

The Best Evidence Rule

The original version of evidence like documents or recordings is preferred according to the best evidence rule. The original document is preferred over the copied version to ensure no errors are encountered while relying on the evidence, thus strengthening the genuineness of the document.

Derivative Evidence of Fruits of Poisonous Tree

The Fruit of the Poisonous Tree doctrine (also known as the Derivative Evidence Doctrine) is a rule in criminal law that makes evidence that was derived from an illegal search, arrest or interrogation inadmissible. In other words, the evidence (the “fruit”) was tainted due to it coming from the illegal search and seizure.

However, as per Indian Law, there is nothing in the Indian Evidence Act that forbids the courts from looking into illegally obtained Evidence. The Courts in India have time and again held that illegally or improperly obtained evidence is not per se inadmissible. In the confessions part, Section 29 of the Indian Evidence act specifically mentions this. The courts have also held that the only test for admissibility of evidence is the test of relevancy and no other.