Law of Evidence

Introduction

• The law of Evidence does not fall under substantive or procedural law, but rather under
“adjective law”, which describes the pleading and method by which substantive laws are
put into operation.
• The role of evidence law is to scientifically reconstruct the past events on which the
disputing parties disagree.
• The goal of evidence law is to seek truth and to be an effective tool in fact finding process.

Concept of Evidence Law

• The term Evidence is derived from the Latin term “Evidera”, which means lucidity, clarity
in presentation, and the ability to prove the facts in question.
• Evidence is defined as anything that tends to verify or deny the existence or non-existence
of a stated fact. The party who claims the presence of a fact must prove its existence,
whereas the party who denies it must disprove its existence or establish its non-existence.

Proof and Evidence

• Proof is a sum of Evidence that proves a fact to be true. Evidence is material or information
that a fact may be true.
• Proof is conclusive in nature. Evidence is suggestive in nature.
• Proof is a firm confirmation about the fact being true after scrutinizing evidence. Evidence
is raw pieces of Information or material that can be approved or disapproved.

Definition of evidence under the Indian Evidence Act- Section 3

• Evidence means and includes the following:

➢ All statements made before the Court by witnesses about matters of fact under
investigation, which court permits or requires; such statements are referred to as oral
evidence.
➢ All documents (including electronic records) presented for the inspection of the
court; such materials are referred to as documentary evidence.
• Oral Evidence (Section 59 and 60)- Oral evidence is the statements made by witnesses
which are allowed or needed by the court. Witness testimony has also been called as the
 “living proof”. However, in the cases where a witness is unable to speak, then
communication through signs or writing is also admissible as oral evidence. Usually, all
evidence that is not written in documents is oral evidence and is sufficient to prove a fact
or title. However, according to Section 60, in the presence of both documentary and oral
evidence, the former takes precedence. Oral evidence must be direct i.e., the witness
making the statement must have seen or heard, or experienced the event first-hand.
• Hearsay evidence- When information passes through indirect channels, such as rumours
or gossip, it can be termed as hearsay. It is such evidence which has not been obtained
through direct means, and has not been experienced by the witness first hand. Hearsay
evidence is not admissible in court and does not hold evidentiary value. However, hearsay
evidence is admissible except in the following cases:
➢ A statement made by someone other than a witness becomes admissible when it is
part of the transaction in question according to the principle of res gustae in Section
6
➢ The testimony of a witness to whom a confession or admission was made outside
the court.
➢ Dying declaration made under Section 32(1) of IEA, 1872.
• Documentary Evidence (Section 61-90)- All documents submitted to the court for scrutiny
fall under the umbrella of documentary evidence. Documentary evidence holds precedence
as compared to oral evidence, in terms of both credibility and permanence. Documentary
evidence can be of 2 types:
➢ Primary Evidence- Primary evidence includes the original document; a document
executed in separate parts; a document that has been manufactured or produced by
one uniform, mass process
➢ Secondary Evidence- Secondary evidence includes certified copies of an original
document. Also, when original documents are used to make a larger number of
copies through a mechanical process, for example, by printing, photocopying etc.
• Direct and circumstantial evidence- Direct evidence directly addresses the fact in issue or
the matter of controversy between parties. For example, A witnessed B killing C with a
knife. A’s witness testimony of the murder of C by B is direct evidence. Direct evidence
takes precedence over circumstantial evidence. Direct evidence depends upon the
credibility of the witness testimony and the documents submitted. Whereas circumstantial
 evidence is based upon relevant facts that prove or disprove the fact in issue.
Circumstantial evidence must prove the guilt of the accused beyond doubt if it is to be
admissible in court. Circumstantial evidence takes the indirect route to prove or disprove
the fact in issue, however, it must not be confused with secondary evidence.
In Sharad Birdi Chand v. State of Maharashtra and Hanumant v. State of MP, the five
golden principles for circumstantial evidence were laid out. They are:
➢ Circumstances from which guilt is drawn should be fully established.
➢ Facts so established should be consistent only with the hypothesis of the guilt of the
accused and should not be explainable in any other way.
➢ Conclusive nature and tendency
➢ Must exclude every other hypothesis except the one to be proved
➢ Chain of evidence must be complete and should not leave any reasonable ground for
conclusion consistent with the innocence of the accused.
• Real and personal evidence- Real evidence consists of the assumptions or conclusions the
court draws from the information available to it. For example, DNA found at the crime
scene; the nervous behaviour of the accused before the judge; fingerprints found on the
murder weapon, etc. Personal evidence is obtained through human agency.
• Original and unoriginal evidence- Original evidence is firsthand evidence, which a witness
has personally experienced through his own senses. Whereas, unoriginal evidence is
secondary or hearsay and has been learned indirectly through a third party.
• Substantive and non-substantive evidence- Substantive evidence is that evidence which
does not need to be corroborated and serves to prove or disprove a fact in issue. Substantive
evidence can be both circumstantial or direct. Non-substantive evidence does not hold
enough weight by itself and is not sufficient to prove or disprove a fact.
• Positive and negative evidence- Positive evidence proves that an event has taken place or
that a certain fact exists. Whereas, negative evidence proves that a fact does not exist.
• In Kalyan Kumar Gogoi v. Ashutosh Agnihotri, The Supreme Court made the following
observations on ‘evidence’. The word ‘evidence’ has been used in common parlance in
three different senses: as
1. Equivalent to relevant
2. As equivalent to proof, and
 3. As equivalent to the material, based on which Courts conclude the existence or non-
existence of disputed facts.
• Different kinds of witnesses:
➢ Prosecution witness-
• Fact- The term “fact” under the Evidence Act” refers
➢ External Facts- Anything or state of a thing or relation of things which is capable of
being perceived by the five senses.
➢ Internal Facts- Any mental condition regarding which a person is conscious of.

Events which have neither occurred in the past nor in the present but are likely to occur
in the future does not fall within the ambit of the definition of “fact” under the Indian
Evidence Act, 1872.

• Relevant- Section 3 of the Indian Evidence Act, 1872 defines relevancy as “one fact is
said to be relevant to another when one is connected with the other in any of the ways
referred to in the provisions of the Act relating to the relevancy of facts”. Relevant facts
are those which are needed to prove or disprove a fact in issue. Relevant facts are also
called evidentiary facts (factum probans). These facts are not in issue- they are not the
main issue of controversy or dispute between the parties. Rather, relevant or evidentiary
facts dig deeper into the context or circumstances of the facts in issue, and help draw
inferences about them. For example, A is accused of committing theft. A relevant fact
would be that A had a history of pickpocketing and shoplifting, and has been prosecuted
before. The fact in issue would be- whether A has committed theft. A fact may either be
logically relevant or legally relevant. Where a fact bears such casual relation to the other
that it renders probable its existence or non-existence. For example, where it is to be
determined whether A has placed the murder weapon in the field or not, the fact that B saw
A walking towards the field with the murder weapon is relevant. All legally relevant facts
are logically relevant and all logically relevant facts may not be legally relevant.
• Facts in issue- The expression “facts in issue” refers to facts out of which a legal right,
liability or disability arises and such legal right, liability or disability is involved in the
inquiry and upon which the court has to give a decision. Facts in issue are those facts that
are sought to be proved and are also called “principal facts” or factum probandum. For
example, X is accused or defaming Y through libel. The possible facts may be in issue:
 that X caused damage to Y’s reputation, Y’s business suffered losses due to X’s
defamation, X wrote and published defamatory statements about Y out of malice.

Presumptions of Law and Presumptions of Fact- Section 4

• There are two kinds of presumptions:

➢ Presumption of Fact- Presumption of facts are those inferences that are naturally and
reasonably concluded on the basis of observations and circumstances in the course
of basic human conduct. These are also known as material or natural presumption.
Presumption of fact is always rebuttable and goes away when explained or rebutted
by establishment of positive proof. The court can exercise its discretion while
drawing presumption of fact
➢ Presumption of law- Presumption of law is mandatory. The court is bound tod raw
presumption of law.
i. Irrebuttable or conclusive- The conclusive or irrebuttable presumptions of law
are those legal rules which are not overcome by any evidence that the fact is
otherwise. For example, under Section 82 of the IPC it is laid down that
“nothing is an offence which is done by a child under seven years of age”. If
in a criminal case, the accused is below seven years of age, he shall be
presumed innocent, no evidence will be allowed to prove that the accused was
guilty.
ii. Rebuttable presumption- This kind of presumption arises when presumptions
of law are certain legal rules, defining the amount of evidence requisite to
support a particular allegation, which facts being proved, may be either
explained away or rebutted by evidence to the contrary, but are conclusive in
the absence of such an evidence. A man is presumed innocent till he is proven
guilty. For example, a child born in a legal wedlock shall be presumed to be
legitimate and the one who questions his legitimacy must disprove it.
• May Presume- A court has discretion to presume a fact as proved, or to call for
confirmatory evidence as the circumstances require. In such cases the presumption is not
a hard and fast rule. The court is free to presume any fact or not as the presumptions are
about the question of facts. It may regard such fact as proved, unless and until it is
disproved or may call for proof of it. For example, under Section 90 of the Evidence Act
when a document of thirty years old is produced before the court, it may be presumed that
 the document was signed and written by a person by whom it was presumed to have been
written and signed.
• Shall Presume- The court is bound to presume a fact as proved. The presumption is
irrebuttable presumption as it is presumption of law. Whenever there is provision to the
effect, “that the court shall presume a fact”, the court cannot exercise its discretion, but in
such circumstance the court shall have the liberty to allow the opposite party to adduce
evidence to disprove the fact so presumed. If the party is successful in disproving it the
court shall not presume the fact.
• Conclusive Proof- When a fact is a ‘conclusive proof’ of another fact the court has no
discretion to disprove it. It is irrebuttable presumption and the court shall not allow
evidence to be given for the purpose of disproving it. Where a statute makes certain facts
as final and conclusive, evidence to disprove such facts is not to be allowed. This is the
strongest of all the presumptions. For example, when any person signs a document, it is
presumed that he has read the document properly and understood it and only then he has
affixed his signature thereon.

Relevancy of Facts- Section 5

• Relevancy- As per Section 2 of the Indian Evidence Act, One fact is said to be relevant to
another when one is connected with the other in any of the ways referred to in the
provisions of the Indian Evidence Act relating to the relevancy of facts. Section 5-55 of
the Indian Evidence Act provides several ways in which one fact may be connected with
the other fact and therefrom the concept of relevant fact can be meted out. One fact is
relevant to another fact if they are connected with each other in any of the ways as
described in Section 5-55. If a fact is not so connected, it is not a relevant fact.
• Admissibility- Admissibility is the means and the method of proving the relevant facts. All
the relevant facts which are admissible by the court are called admissibility. As per Section
136 of the Indian Evidence Act, the final discretion of the admissibility of evidence of the
case lies with the judge. Evidence excluded by the Evidence Act as inadmissible should
not be admitted merely because it may be essential for the ascertainment of truth.
• Distinction between relevancy and admissibility
➢ Relevancy is based on logic and probability. Admissibility is not based on logic but
strict rules of law.
 ➢ The rules of relevancy are governed under Sections 5-55 of Evidence Act. The rules
of admissibility are not described under Sections 5-55 of the Evidence Act.
➢ Under Evidence Act, the rules of relevancy means relevant evidence. They may be
admissible or not. Admissibility means is the means and method to prove the
relevant fact and to keep the evidence limited to relevant fact.
➢ The facts which are not relevant are not necessarily admissible. The facts which are
admissible are necessarily relevant.

Relevancy of facts forming part of the same transaction- Doctrine of Res Gestae- Section 6

• Res Gestae- Res Gestae are the facts that form a part of the same transaction automatically
or naturally. Due to their association with the main transaction, these facts become relevant
in the nature of fact in question. Things said or acts done in the course of transaction
amounts to res gestae. The principal act charged as an offence against the accused from its
inception to its consummation and whatever may be said by either of the parties during the
continuance of the transaction, with reference to it, form part of the principal transaction
and may be given in evidence a spart of res gestae. Although hearsay evidence is not
admissible, it may be admissible in a court of law when it is res gestae and may be reliable
proof. The reason behind this is the spontaneity and immediacy of such a statement that
for concoction there is hardly any time.
In Gentela Vijaya Vardhan Rao v. State of Andhra Pradesh, The accused sneaked into a
passenger bus with the most inflammable liquid, petrol and a match box and then set it at
blaze. As a result, 23 passengers died. The Magistrate recorded the statement of a victim
who is under expectation of death. In the view of appreciable interval between acts of
carnage and Magistrate’s recording of statement, the statements recorded did not form a
part of res gestae.
In R v. Beddingfield, Beddingfield attacked a lady and slit her throat. He slit his own throat
too. The lady went to her aunt and told her what beddingfield did to her. The court held
that it was neither a dying declaration nor Section 6 due to time gap. This case was heavily
criticised and overruled in R v. Andrew.
• Definition of transaction- A transaction, as the term used in this section, is defined as a
crime, contract, error or any other subject of inquiry that may be in question by a single
name. A transaction may be a single incident occurring for a few moments or it may be
spread across a variety of acts, statements, etc. All these facts are only relevant when they
 are connected by time proximity, unity or location proximity, continuity of action and
community purpose or design.
• Time- For bringing hearsay evidence under Section 6, it has to be established that it must
be almost contemporaneous with the acts and there should not be an interval which would
allow fabrication. In R v. Foster, the deceased had been killed by a speeding truck. The
witness had not seen the incident but only the speeding truck. The deceased had stated to
him what had happened with him in the accident. The court held the statement of the
deceased to the witness to be admissible in evidence as res gestae.

Facts which are the occasion, cause or effect of facts in issue- Section 7

Facts which are the occasion, cause, or effect, immediate or otherwise, of relevant facts or facts
in issue or which constitute the state of things under which they happened, or which afforded an
opportunity for their occurrence or transaction are relevant.

• Scope- The scope of Section 7 is wider than Section 6. Section 6 deals with relevant facts
forming part of the same transaction, whereas Section 7 provides for the relevancy of
several classes of facts. Sometimes, it is difficult to prove whether fact forms part of the
same transaction, but there are several collateral facts which are not part of the same
transaction, are required to be judicially considered for ends of justice provided they
constitute the occasion, cause or effect or provide opportunity for the happening of the
facts in issue. For example, the question is, whether A poisoned B. The state of B’s health
before symptoms ascribed to poison, and the habits of B known to A, which afforded an
opportunity for the administration of poison are relevant facts.
• Cause and occasion of facts- Evidence relates to set of circumstances which constitute
cause and occasion for the happening of facts in issue is relevant. The cause and effect of
particular fact in the past will have the same cause and effect in future. The question is
whether ‘G’ was murdered by ‘A.’ Q a girl refused A’s (accused) offer of sex. ‘G’ was
alone at her home at the time of murder being the occasion of murder and for refusal of
sex by ‘G’ is the cause and occasion of the murder.
• Effect- An effect is the ultimate result of an act done, which not only keeps records of the
happening of the act but also helps to know the nature of act. So, the facts which are the
effects, immediate or otherwise of a fact in issue or relevant fact, are relevant under section
 7. For instance, the question is whether A murdered B. Marks on the ground, produced by
a struggle at or near the place where the murder was committed, are relevant facts.
• Opportunity- Facts affording opportunity for occurrence of the fact in issue are the
relevant. For instance, the question is whether A poisoned B. The state of B’s health before
the symptoms ascribed to poison, and habits of B, known to A, which afforded an
opportunity for the administration of poison, are relevant facts. An opportunity may be
either mere opportunity or exclusive opportunity. Mere opportunity for a person to do
something which may give rise an inference that he did it is relevant. In exclusive
opportunity it proves conclusively that the act was done by the person having exclusive
opportunity to do it. The evidence of a woman who was alone in the house on particular
day was held admissible to show that it afforded an opportunity to the accused to commit
rape, is relevant under section 7 of the act.
• State of things- The state of things means the set of facts which has to be placed before the
court as a background in order to make principal fact intelligible to them. It is relevant.
• Spencer Cooper’s Trail- In this case, the body was found in the river. The court considered
the question of whether death was by suicide or homicide. While delving upon this, the
court sought to understand whether it was a case of suicide by adducing some other
evidence which is relevant.

Motive, Preparation and previous or subsequent conduct- Section 8

• Motive- Motive generally means that which moves or induces a person to act in a certain
way. For example, a desire, fear, reason etc. which influences a person’s volition. The
Supreme Court of India has said motive is something which prompts a man to form an
intention and knowledge, is an awareness of the consequences of the act. If an offence has
been committed voluntarily then presence of motive cannot be declined. Since motive
plays an important role in criminal cases, its relevancy is drawn by the court and supplied
as evidence. In a case where there is clear motive for the commission of the crime, it
supports the findings of the court proving the accused guilty of the charges levelled against
him or her. Evidence for motive becomes important when a case is based on circumstantial
evidence only.
When talking about motive, it is crucial to distinguish between motive and intention. From
purely criminal point of view, motive assumes lesser importance. But, from an evidence
point of view, motive can be given more importance. By intention, we mean a pre-
 calculation in the mind of the accused and the knowledge as to what is going to be the
likely result. Sometimes, the motive behind commission of a crime maybe in good faith
but intention is always bad or guilt oriented.
• Preparation- The Supreme Court of India interpreted preparation to denote not only action
or process of preparing the components to produce the compound, but also that which is
prepared. Preparation consists in arranging or devising the means necessary for the
commission of crime. Every crime is necessarily preceded by preparation. Preparation for
the commission of any crime would indeed be very relevant as evidence under this act.
When a question as to whether a person has done a particular act or not, the fact that he
made certain preparations which is related to his act, would certainly be relevant for the
purpose of showing that he did it. For example, A is tried for the murder of B by poison.
The fact that, before the death of B, A procured poison similar to that which was
administered to B, is relevant. Evidence tending to show that the accused had prepared for
the crime is always admissible. But, preparation does not depict the whole scenario of the
crime but only the arrangements made in respect. Further, there is no mandate that
preparation is always carried out. Therefore, it is very difficult to prove preparation
concretely though it is a physical fact.
• Conduct- Conduct in this section is different from character. Conduct means the external
behaviour of a person, whereas character can be said to be an impression of the person in
the minds of others. The conduct of a person concerned in a crime would become relevant
if his conduct is related with the incident. To regard a conduct to be relevant it must be
closely connected with the incident concerned. If the Court considers some conduct to be
relevant then the conduct must help the Court in arriving to a conclusion in the controversy.
The conduct must have a bearing over the decision. If so happens, then, notwithstanding
the conduct was previous or subsequent, it shall be thoroughly scrutinized by the Court. A
conduct to become relevant under section 8 of need not become simultaneous or
spontaneous, that is to say with that very incident. It may become subsequent and previous
to the main fact in issue. For example, complaints of the deceased made before two months
of his death becomes admissible. Though conduct forms important evidence under the
scope of Section 8 but, other than direct conduct, if seen by witness, will not be of definite
bearing over the case. A conduct which is not directly linked to the facts in issue but some
or the other way connected to it is as good as circumstantial evidence which will be difficult
for the court to prove.