Types of Evidence under The Indian Evidence Act, 1872

Introduction:

In any judicial proceeding, evidence plays a vital role to ensure the correctness of the facts brought before the court by the parties involved in a case. Evidence supports the contention made by a party and makes their side of the case stronger as evidence acts a proof of the happening or the non-happening of any matter. Since evidence plays a major part in any case, The Indian Evidence Act, 1872 was enacted which came into effect on 1^st September, 1872 to govern its admissibility in the courts. The law of evidence comes under ‘adjective law’ as it deals with both rights and procedures. The act applies to all judicial proceedings including court-martial but does not apply to affidavits and arbitration.

Meaning

The word evidence has been derived from the Latin term ‘evidere’ which means to prove or to show/discover clearly. In an ordinary sense, evidence means anything plain or apparent or certain. It can be understood as an instrument that helps in establishing facts before the court of law.

According to Taylor, ” Evidence is adduced to prove any fact the truth of which is submitted to judicial investigation.”[1]

Evidence is something that indicates the truth or validity of a matter. Evidence under section 3 of The Indian Evidence Act, 1872 means and includes-

1. 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.
2. All documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.[2]

Types of Evidence

1. Oral Evidence: Oral evidence can be understood as that evidence which a witness has personally seen or heard in relation to the issue at hand. Oral evidence must be direct which means that it should be personally seen or heard or sensed by the witness and not something which he has heard through another person. Oral evidence must satisfy the conditions given under Section 60 of The Indian Evidence Act, 1872 in order to be admissible before a court. Its definition has been given under section 3 of the act to include all such statements made by witnesses in relation to the case being heard by the court.
2. Documentary Evidence: Section 3 of The Indian Evidence Act, 1872  has defined documentary evidence as all such documents presented by means of letters, figures or marks for examination by the court and is generally given higher credibility than other kinds of evidences as it is present in tangible form and therefore easier to be examined. Primary or Secondary evidence may be used to determine the authenticity of Documentary evidence as per Section 61 of the act.
3. Primary Evidence: Primary evidence as per section 62 of The Indian Evidence Act, 1872 is that document that is produced before the court for inspection to either prove or disapprove a fact in question. The act also states that if a document is executed in various parts then each part of the document will be considered as primary evidence of such document. The act further states that in case several documents are produced through a uniform process then each document so produced will be considered as primary evidence of the contents of the rest of such documents. Since primary evidence is the original document brought for assessment it is considered as the best type of evidence.
4. Secondary Evidence: Secondary evidence is the reproduction or copy of the original document or primary evidence and has been dealt with under section 63 of The Indian Evidence Act, 1872. Primary evidence is always preferred by the court over secondary evidence as per the best evidence rule while deciding a case. For secondary evidence to be admissible in court it must fulfill the conditions specified under section 65 of The Indian Evidence Act, 1872 which are:
   • The original document is in possession of a person against whom such document is to be proved or a person who is an outreach for the court or a person who is legally bound to produce it or a person who does not produce the document even after due notice has been served to him.
   • The person against whom such a document is to be proved or his representative, admit in writing the existence, conditions, or contents of the original document.
   • The party offering the evidence is unable to produce it in a reasonable time either because of some default or negligence on their part or when the original document has been destroyed or lost.
   • The nature of the original document is such that it is not easily movable from one place.
   • The public document as per section 74 of The Indian Evidence Act, 1872 is the original document.
   • Certified copy of the original document which are permitted to be given as evidence under The Indian Evidence Act, 1872 or any such act in India.
   • When the fact to be proved is the general result of an original document consisting of numerous other documents.
5. Real Evidence: Real or material or genuine evidence is that evidence which is present intangible or physical form and produced before the court for inspection. This type of evidence is derived by reviewing and inspecting a physical object and not from information by any document or witness. However, for real evidence to be used in a trial, it must be supported by calling a witness. Real evidence also needs to be relevant and authentic in order to be admissible, for example, a weapon used in a murder case, conduct or behavior of a person, etc.
6. Hearsay Evidence: When a witness reports an incident that he has neither personally seen or heard but rather got to know about it through someone else is known as hearsay evidence. Such evidence is inadmissible since it is not directly perceived by the witness and he has learned about it through a third person. Generally, hearsay evidence is considered as no evidence but The Indian Evidence Act, 1872 provides for some exceptions to this general rule which are:
   • Admission
   • Confession
   • Dying Declaration
   • Res Gestae
   • Evidence given in a formal proceeding
7. Judicial Evidence: Evidence that the court receives in order to prove or disprove facts in question such as confession by an accused, statement made by a witness, etc. is called judicial evidence.
8. Non-Judicial Evidence: Confession or admission by a party outside the court of law and in presence of any person is called non-judicial evidence It is weak evidence in itself but can be relied upon if it is supported by other prosecution evidence.
9. Direct Evidence: Direct or positive evidence plays a significant role in deciding a matter as it directly proves or disproves a fact in an issue without the need for further inference or reasoning. An example of direct evidence is testimony by an eyewitness.
10. Circumstantial Evidence: Circumstantial evidence is that evidence which proves a fact in question by providing other facts that are relevant to the issue. There is a cause and effect relation between the series of facts and the fact which is in question before the court. Various relevant and reliable facts are corroborated to arrive at a conclusion that serves as circumstantial evidence.
11. Electronic Evidence: Electronic evidence or e-evidence or digital evidence is evidence derived from electronic devices such as mobile phones, laptops, computers, tablets, CCTV cameras, pen drives etc. The evidence can be in the form of a message, video, call recording, photo, or any data stored in an electronic form. Earlier, they were not covered under the definition of evidence but with the rampant advent of technology, the definition of evidence was amended under The Information Technology Act, 2000 to include electronic records as well. Electronic evidence is dealt with under section 65A and 65B of The Indian Evidence Act, 1872.

Case Laws

State vs. Mohd. Afzal and Ors

Section 65B of the Indian Evidence Act and Section 69 of The Police and Criminal Act, 1984 of the U.K. have substantially the same effect. The Law Commission in England reviewed the law relating to computer-generated evidence and observed in its report that Section 69 fails to address the major causes of inaccuracy in computer evidence and Section 69 has been repealed by Section 60 of the Youth Justice and Criminal Evidence Act, 1999. and common law presumption “in the absence of evidence to the contrary the court will presume that mechanical instruments were in order at the relevant time”, operates with full force.[3]

Ramawati Devi vs. State of Bihar

 A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question, becomes admissible under Section 32 of the Evidence Act. Such a statement made by the deceased is commonly termed as a dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such a statement, must necessarily depend on the facts and circumstances of each particular case. [4]

Kalyan Kumar Gogoi vs. Ashutosh Agnihotri

The reasons why hearsay evidence is not received as relevant evidence are:

(a) the person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility, i.e., every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying “I do not know, but so and so told me”,

(b) truth is diluted and diminished with each repetition and

(c) if permitted, gives ample scope for playing fraud by saying “someone told me that………..”. It would be attaching importance to false rumors flying from one foul lip to another. Thus, a statement of witnesses based on information received from others is inadmissible.[5]

Conclusion

The Indian Evidence Act, 1872 is an important legislation since evidence plays a huge role in deciding any case. In order to prove any fact in question, a person may use any of the different types of evidence available at his disposal to make his case stronger.

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References:

[1] Meaning and Definitions of Evidence, Srdlawnotes.com, https://www.srdlawnotes.com/2017/03/meaning-and-definitions-of-evidence.html (last visited Nov 28, 2020).

[2] Legislative.gov.in, http://legislative.gov.in/sites/default/files/A1872-01.pdf (last visited Nov 28, 2020).

[3] Docs.manupatra.in, http://docs.manupatra.in/newsline/articles/Upload/2F4065EB-7307-437A-881E-CDB6B9637768.pdf (last visited Nov 28, 2020).

[4] Ramawati Devi vs State Of Bihar on 5 January, 1983, Indiankanoon.org, https://indiankanoon.org/doc/1683212/ (last visited Nov 28, 2020).

[5] Kalyan Kumar Gogoi vs Ashutosh Agnihotri & Anr on 18 January, 2011, Indiankanoon.org, https://indiankanoon.org/doc/386344/ (last visited Dec 6, 2020).