Meaning of Evidence

The word ‘Evidence’ is derived from the Latin ‘Evidentia’ which means “the state of being evident, i.e. plain, apparent clear”. It is also related to the Latin expression ‘evidens evidere’ which means to show clearly, to make plain, certain, or to prove.

Blackstone states that evidence is that which demonstrates, makes clear, or ascertains. The truth of the very fact or point in issue is either on the one side or on the other.

Stephen evidence means “that part of the law procedure which, with a view to ascertaining the individual rights and liabilities in particular cases, decides what facts may or may not be proved in such a case; what sort of evidence has to be given of a fact which may be proved, by whom and in what manner the evidence must be produced relating to a fact which is to be proved.

DEFINITION OF EVIDENCE UNDER INDIAN EVIDENCE ACT1872

Section 3 of the Evidence Act defines evidence as given below: “Evidence”:- Evidence means and includes.
1) All statements that the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry statements are called Oral Evidence;
2) All documents including electronic records produced for the inspection of the Court;
Such documents are called documentary evidence.
The definition of evidence covers the evidence of witnesses and documentary evidence. Both of them must be produced before the Court for its inquiry and inspection. All the statements must be permitted by the Court or required to be produced before by the witnesses.

ITEMS THAT ARE NOT EVIDENCE.

The following are not evidence:
1) According to Section 1 and the definition of Evidence under Section 3, an affidavit is not evidence.

2) Under the Indian Evidence Act, 1872, matters other than statements of witnesses and documents produced for the inspection of the Court.

(a) a confession or a statement of an accused in a trial; statements made by parties when examined otherwise than as witnesses; demeanor of any witness under examination.

(b) the result of a local investigation or local inspection.

(c) material objects other than documents such as weapons, tools, stolen properties, etc. are not ‘evidence’ according to the definition of the Act.

3) A statement of a witness recorded under Section 154, Cr.P.C. is not evidence though it may be considered for other purposes.

4) Result of the investigation is not legal evidence.

5) The statement in reply to a show-cause notice is not evidence.

6) A statement made under Section 164 Cr.P.C. can never be used as substantive evidence of the facts stated, but it can be used to support or challenge evidence given in Court by the person who made the statement.

7) An affidavit required to be filed under amended Section 26(2) and O. VI. R. 15(4) of CPC would not be evidence for the purpose of the trial.

8) When the Court has not directed the proof of a fact by an affidavit it is no evidence.

10) When the accused makes a statement in answer to questions from the Court it does not fall within the definition of the word evidence as defined in the Evidence Act.

11 The speeches by the Ministers and the Members of Assembly are inadmissible in the Court of Law when the provisions of enactment are being considered.

12) Newspaper items by itself does not constitute evidence.

13) Pleadings do not constitute evidence.

14) Report of a Medical Officer without a statement on oath by the Medical Officer is not evidence.

15) Conclusions of witnesses including the police are not evidence.

16) Answers by the accused under Section 313 Cr.P.C. are not evidence.

17 Evidence collected by the police during the investigation is not evidence.

18) The statement made in a letter addressed to the Court is not evidence.

19) Statement of witnesses in the FIR or before police and identification parade held by the Magistrate is not substantive evidence.

20) Judicial confession of a co-accused, though evidence in a generic sense, is not evidence under Section 3 of the Indian Evidence Act, 1872.

Classification of Evidence:

Evidence may be classified under the following heads:
1)Oral and Documentary Evidence.
2)Primary (Original) and Secondary (Unoriginal) Evidence.
3) Personal and Material (Real) Evidence.
4) Direct (Positive) and Indirect (Circumstantial) Evidence.
5) Substantive and Non-Substantive Evidence.
6) Best and Inferior Evidence.
7) Positive and Negative Evidence.
8) Presumptive or Prima facie Evidence. Conclusive Evidence.
10) Corroborative Evidence.
11) Hearsay Evidence.

Oral and Documentary Evidence:

Oral evidence consists of statements in Court by witnesses. According to the definition of evidence (Sec. 3), all statements, that the Court permits or requires to be made by witnesses in relation to matters of fact under inquiry are called oral evidence. All the statements must be permitted by the Court or required to be produced before it by the witnesses.

Documentary evidence consists of documents produced for inspection by the Court. According to Section 3 of the Evidence Act, all documents including electronic records produced for the inspection of the Court are called documentary evidence. They must be produced before the Court for its inspection.

In Ram Swarup v. State, (AIR 1958 All. 119) has held that consequently, writing obtained by the Court for the accused for comparison is not evidence as it is not a document produced for the inspection of the Court.

Primary and Secondary Evidence:

According to Section 62 of the Evidence Act, primary evidence means the document produced for the Court’s inspection. It is also called original evidence, .eg. the registered sale deed is the actual evidence to prove one is the real owner.

As per Section 63 of the Evidence Act, Secondary evidence means and includes,
(1) Certified copies given under the provisions hereinafter contained.
(2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies.
(3) Copies made from or compared with the original.
(4) Counterparts of documents as against the parties who did not execute them
(5) Oral accounts of the contents of a document given by some person who has himself seen it.

Secondary evidence is also called unoriginal evidence or second-hand evidence.

Personal (Direct) and Material (Real) Evidence:

Personal evidence is that which is given by a human being directly before the Court. Oral evidence is personal evidence. If ‘A’ murders ‘B’ and ‘C’ sees it and comes to the Court personally and deposes his evidence before the Court, it is personal evidence as C personally attends the Court. Personal evidence is direct evidence.

Where the objects are presented for the inspection of the Court, it is called material evidence, e.g. the bloodshed knife which was used to murder, bloodstained clothes of the accused, of the deceased, etc. The material evidence is also called as real evidence.

Direct Evidence and Indirect or Circumstantial Evidence:

Direct evidence is meant that the existence of a given thing or fact is proved either by its actual production or by the testimony or admissible declaration of someone who has himself perceived it. It is evidence that, if believed, establishes a fact in the issue.

Direct evidence consists either of the testimony of the witness who perceived the fact or the production of the documents which constitute the fact that is in question. Direct evidence is evidence that requires no mental process on the part of the tribunal of fact in order to draw the conclusion sought by the proponent of the evidence, other than acceptance of the evidence itself. Direct evidence is also called ‘percipient evidence’.

Circumstantial Evidence (Indirect Evidence):

Indirect evidence otherwise known as circumstantial evidence is evidence that gives rise to a logical inference that such a fact does exist.

Essential ingredients to prove guilt by circumstantial evidence are:
(i) Circumstances from which a conclusion is drawn should be fully proved or established.
(ii)Circumstances should be conclusive.
(iii) All facts so established should be consistent only with the hypothesis of guilt and inconsistent with the innocence of the accused.
(iv) Circumstances should exclude the possibility of guilt of a person other than the accused.
(v) There must be a chain of evidence showing that the act must have been done by the accused.

Substantive Evidence and Non-Substantive Evidence:

Substantive evidence is that on which reliance can be placed for the decision of the case. It pertains to the rights and duties, and this evidence is reliable for the decision of a case. It corroborates with other evidence.

Non-substantive evidence is that which either corroborates the substantive evidence to increase its credibility or which contradicts substantive evidence to diś credit.

Positive and Negative Evidence:

Positive evidence tends to prove the existence of a fact. If the evidence adduced before the Court satisfies it as unqualified, does not create any doubt, definitive and beyond reasonable doubts, it is positive evidence. It is also called affirmative evidence.

Negative evidence is adduced to prove the non-existence of a fact. Generally, it is weak evidence. The negative evidence is ordinarily no good evidence. Negative testimony is not as to the immediate fact occurrence, but facts from which you might infer that the act could not possibly have happened.

Best and Inferior Evidence:

The best evidence consists of statements made by a witness or contained in a document. If the person actually perceived something by that sense by which it is capable of perception gives a statement in Court and an original document is produced to Court for inspection it is called the best evidence.

Inferior evidence is that which suggests that better evidence might be available e.g. a copy of a document that suggests that somewhere the original exists, or a description of an object by a witness when the object could be produced for inspection.

Other types of Evidence:

1) Presumptive Evidence
Evidence which is declared to be sufficient evidence of a fact, unless and until an opponent adduced contradictory evidence, in which case the tribunal of fact must weigh all the evidence tendered by all parties, in order to decide whether the fact has been proved”. For example, the rule that a child aged between 7 and 12 is presumed to be doli incapax since evidence to contradict the lack of capacity may be introduced by the prosecution.

According to Section 84 of the IPC, nothing is an offense that is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the Act, or that he is doing what is either wrong or contrary to law.
As per Section 82 of the IPC, nothing is an offense that is done by a child under seven years of age.

Section 83 of the IPC states that nothing is an offense that is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion.

Conclusive Evidence:

Conclusive evidence, which is rare, is tantamount to a rule of law since it is evidence that no party is permitted to contradict the evidence. Conclusive evidence, therefore, is inaptly named, and it would be preferable to state the fact so proved as a rule of law”. For example, as per Section 82 of the IPC, a child under the age of 7 years is to be taken as incapable of committing a criminal offense.

Corroborative Evidence and Substantive Evidence:

Corroborative evidence is evidence that concurs with other evidence. Corroborative evidence must be taken along with substantive evidence. When evidence is given of the fact in an issue or of a relevant fact, that is called substantive evidence. There are several statements, oral and documentary which are not substantive evidence. They are not admissible by themselves but become admissible to corroborate, or support, substantive evidence already given. Evidence to corroborate substantive evidence is permitted under Sections 156, 157, and 158 of the Evidence Act. Corroborating evidence is also important and necessary to prove an offense.