Meaning of Evidence and Types of Evidence

Let us go back to the case we discussed in the previous sheet. I am sure you remember the killing of ‘A’. As soon as the police received the information of ‘A’s death, they started with their procedure and collected different material which they considered supportive of their case. However, can all this material collected be termed as EVIDENCE?

Just ask yourself, is a particular thing, for example say, your notebook, just evidence on its own or it becomes evidence just because it is somehow involved in the investigation of an offence? Does it become evidence only when police collects it or does it become evidence only because the lawyers decide to submit a certain material as evidence? So, is it the police, the lawyers or the parties- who decides which piece will be evidence and which will be not?

The Indian evidence act defines the term EVIDENCE in section 3 of the act. In simple terms, it means the material through which a fact under inquiry is brought before the court. The material or instrument used for this purpose are either witnesses or documents.

Thus, in the above case, your notebook does not become evidence only because it has been collected by the police or is somehow involved in the investigation. It becomes evidence when it is presented before the court to prove a certain fact which is essential to the case.

So, an evidence under the act is an evidence which fulfils the following conditions:

• It is given on oath: Anything presented before the court has to satisfy the test of truthfulness. If a witness appears before the court he has to bind himself by the oath that he shall state the truth. If the witness does not honour the oath and gives false evidence before the court, he can be prosecuted for the offence of giving false evidence under Indian Penal Code. (See section 191 IPC)

• It is subject to cross examination: Whenever any evidence is presented before the court, the opposite party is always given an opportunity to show to the court that the evidence presented is not reliable. This is done by way of cross examination.

These tests help the court is deciding the truthfulness of evidence given and it becomes easy for court to decide on the weight (how strong the evidence is) of evidence.

Anything which does not fulfil the above requirements will not be considered as evidence. For example section 30 of evidence act makes co-accused confession a relevant piece of evidence. However, such a confession is

• Not given on oath: An accused does not give confession on oath. If such a confession is given on oath, it becomes violative of Article 20(3) i.e. right against self incrimination which is a fundamental right of the accused. By giving oath, the accused is bound to speak the truth, because if what he is stating turns out to be false he can be punished under IPC. Thus, an accused is pressuried by oath to state the truth and give evidence against himself. This is prohibited by Article 20(3). So, an accused does not give confession on oath.
• Such confession is not subject to cross examination: Section 315 of Code of Criminal Procedure, 1973 specifies that an accused shall not be called as a witness except on his own  written request. Thus, an accused can only be a witness if he himself decides so, but he cannot be called as a witness by any other person. Neither the prosecution nor the other co-accused can call the accused as a witness. When an accused cannot be called as a witness, he cannot be cross-examined.

So, for example A and B are being jointly tried for the murder of C. B says that ‘A and I both decided to commit theft of jewels in the house of C. C suddenly entered the house and was about to call the police when A shot C with a gun.’

Here, B has confessed that he and A were both committing theft but it was only A who committed the murder of C. A knows that this confession is a relevant evidence against him also in the case and wishes to prove to the court that B is lying. He wishes to cross examine B to expose his false confession. However, he cannot do so because B can only be a witness on his own consent and cannot be called as a witness even by his co-accused.

You might wonder then why section 30 makes co-accused confession a relevant evidence under the act. This shall be discussed in detail under the relevant lesson.

Is Affidavit an evidence: An affidavit is a sworn statement of facts by a person who knows that such facts and circumstances have taken place. The person who makes such statement and signs it is known as a deponent. An affidavit is a written document signed by the deponent, confirming that the contents of the affidavit are true and correct to his knowledge and he has concealed nothing material therefrom. It is duly attested/ affirmed by the Notary or Oath Commissioner. Such Notary/ Oath Commissioners are appointed by the Court of Law. The duty of the Notary/ Oath Commissioners is to ensure that the signature of the deponent are not forged. Hence, the deponent himself needs to be present before the Notary/ Oath Commissioner during the attestation of the affidavit.

Section 1 of Indian Evidence Act states that the act does not apply to affidavits. Thus, affidavits are not evidence within the meaning of section 3 of the act. However, Order XIX rule 1 of CPC provides that court may order a fact to be proved by affidavit. The question arises then are affidavits evidences?

When we say affidavits are not evidence under Indian evidence act, it means that rules laid down in Indian evidence act do not apply on an affidavit. Therefore,

• The opposite party is not as of right entitled to cross examine the deponent of the affidavit. However, the court may in its own discretion require the deponent to present himself before the court for cross examination.
• Evidence under Indian evidence act is always given before the court where the matter is pending for adjudication. But an affidavit can be deposed before any person authorised to attest such affidavits. Example, NOTARY???
• Under Indian evidence act, section 60 specifies that all evidence must be direct. However, Order XIX CPC states that in an affidavit the deponent can depose to statements of belief as well. Such statements would not be considered direct under Indian Evidence Act.

It cannot be evidence unless the court has directed proof of fact by evidence. Thus, affidavit cannot be used in evidence unless the court specifically permits certain matters to be proved by them.

Can Judge use his own personal knowledge and observation as evidence: A judge has to decide the case on the basis of evidences presented before him. He cannot use his own knowledge in place of evidence presented before him or rely on some book which is otherwise inadmissible under the act. This is because by doing so the judge would become a witness without being cross examined.

Types of evidence:

• Direct evidence: Direct evidence is the evidence about the real point in controversy. Eg: On a trial of murder of A by B, C says that he saw B stab A. Here the witness is deposing exactly to the precise point in issue. This is direct evidence.

• CIRCUMSTANTICAL EVIDENCE: It is the evidence of facts which do not establish the point is controversy directly but only establish it by inference. For example, if B is tried for the murder A, the fact that A had motive to murder B and that he was seen going to the house of A with a gun and was seen returning from the house of A with blood on his clothes, are all circumstances raising an inference as to guilt of B. None of the fact directly proves that B killed A but raises suspicion about guilt of B.

In simple terms circumstantial evidence can be defined as evidence of circumstances revolving around fact in issue. The question which arises is that whether circumstantial evidence is sufficient to convict an accused when no direct evidence is available in the case? So, ask yourself are you convinced that it was B who killed A in the above example. If not, then what is the use of circumstantial evidences?

This question was answered by Supreme Court in the case of Sharadchand Sharda v. State of Maharashtra. In this case, Panchsheel test for basing conviction on the basis of circumstantial evidence was laid down. The court relied on decision of Hanumant v. State of MP, and laid the following test:

1. the evidence must be clearly established.
2. The evidence must be conclusive in nature.
3. The evidence must be consistent with the guilt of accused.
4. The evidence should exclude any inference of innocence of accused.
5. The chain of events must be so complete that the court believes the accused to be the author of the crime.

When all the 5 points are present, conviction can be safely based on circumstantial evidence. Otherwise, such evidence, remains a weak piece of evidence.

Is weakness of defence evidence one of the circumstances which the prosecution can use in its favour?

For example, B is being tried for the murder of A in Delhi. Prosecution does not have any direct evidence pointing to the fact that B killed A but has a number of circumstantial evidences. B in his defence says he was not present in the town on the day of murder but was present in Kerala instead. He presents flight ticket, hotel reservations as his evidence. However, prosecution is able to prove that the tickets presented by B are forged and he was lying about his presence in Kerala on the day of murder. Prosecution is able to prove that B was in Delhi on the day of murder. Can prosecution use the falsity of defence evidence to strengthen its own case? Is the false defence evidence one of the circumstance which is pointing to the guilt of B? 

It is well settled rule of criminal law that prosecution must stand or fall on its own feet and it cannot take any benefit or strength from the weakness of defence case. In short, prosecution itself has to establish a strong case against the accused. However, in cases based on circumstantial evidence, once the prosecution has completely established the various links in a chain, then a false plea of defence or weakness of defence case may be called into aid only to lend assurance to the court. Then the prosecution can use weakness of defence as an additional support to its case.

Thus, before looking into defence evidence, the prosecution has to prove that the all the links in the chain are complete and they do not suffer from any infirmity. If there is any infirmity or lacuna in the case of prosecution, it cannot fill the gap by using weakness of defence.

• Hearsay evidence: It is kind of evidence which does not derive its value from the credit to be given to the witness himself but on the competency of some other person who is not before the court. It is the evidence which comes indirectly before the court, not from the knowledge of the person who deposes before the court but some other person.

For example, A says ‘C told me that B murdered D’. Here, A’s statement is hearsay to prove that B murdered D.

There are a number of reasons why hearsay evidence is held to be inadmissible under Indian Evidence Act.

• The original source of information is not present before the court. In the above example. A has not directly seen that B murdered D but he is deriving information from some other source. So, to give this evidence, A will have to come before the court because it is the statement of A, but the real source of information which is C will not be present before the court.

• Who will be liable of giving false evidence? In the above example, if the statement of A is found to be untrue, A can always say that he only said what C had told him. So, A cannot be held liable for giving false statement. Also, C will not be liable for giving false evidence because C has not made the statement on oath. Thus, no one will be liable in such a case. This in turn will affect the administration of justice if people find a way to give false evidence without any fear of punishment.

• With repetition, truth gets diluted. As statements pass on from one person to another, various additions are made to the same statement. Therefore, it is always better that the original source of information appears before the court to give the evidence.

Exception to hearsay rule: However, the rule that hearsay evidence is inadmissible is not a rule without exceptions. In some cases due to necessity, even hearsay evidence becomes relevant and admissible under the act. Following are the exceptions:

• Admission
• Confession
• Dying declaration
• Other statements relevant under Section 32
• Statements made in previous litigation

Hearsay and circumstantial evidence: Circumstantial evidence is not the direct evidence of fact in issue or relevant fact but it is the direct evidence of the circumstances from which an inference as to fact in issue or relevant fact is raised. Thus, circumstantial evidence is different from hearsay evidence. A circumstantial evidence is always proved by direct evidence and not hearsay evidence.

• Real and personal evidence: Real evidence is where the object itself is presented for the inspection of court. For example, you must have seen in the movies where evidence is presented in a ziplock bag before the court. This is the real evidence. Thus, presenting the murder weapon before the court is the real evidence. Personal evidence is evidence given by human agency. This includes the conduct of parties before the court, the demeanour of the witness, local inspection made  by the court.

Documentary evidence: As per Section 3, documentary evidence is a document given for the inspection of the court. However, not every document before the court becomes a documentary evidence. What is of important is whether the contents of the document are given as evidence or not. If the contents of the document is not relevant as evidence, then the document does not become a documentary evidence.

For example, Section 73 of Indian Evidence Act specifies that court can call an accused to give a handwriting sample for the purpose of court comparison. In such a case, the document which the accused submits does not become the evidence. This is because here the content of document is not relevant to the case but the form in which the document is written i.e. the handwriting of the accused is of court’s interest.