“Law Master’s Publications
“Definitions”
Prof.S.D.Bhosale
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DEFINITIONS (S.3): -
QUESTION BANK
Q.1. Define evidence. State its kinds.
Short Notes
Oral and Documentary Evidence.
(i)
(ii) Primary and Secondary Evidence.
(iii) Direct and Circumstantial Evidence.
(iv) Direct and hearsay evidence.
(v) Real and personal evidence.
(vi) Substantive and Corroborative Evidence.
SYNOPSIS
I. Evidence: -
II. Kinds of Evidence: -
(i)
Oral and Documentary Evidence: -
(ii)
(iii)
(iv)
(v)
Primary and Secondary Evidence: -
Direct and Circumstantial Evidence: -
Direct and hearsay evidence: -
Real and personal evidence: -
(vi)
Substantive and Corroborative Evidence: -
“Law Master’s Publications
“Definitions”
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DEFINITIONS (S.3): -
The definitions of some important terms frequently used in the Evidence Act are
given under S. 3 of the Evidence Act as follows-
I. Evidence: -
The word 'evidence' is derived from the Latin word 'evider', which means 'to show
clearly', ‘to discover clearly’, ‘to ascertain’, and ‘to prove’.
Thus, the term evidence means everything that makes apparent the truth of a matter
in question.
1.
According to Blackstone, 'evidence' signifies that which demonstrates, makes clear
or ascertains the truth of the facts or points in an issue, either on one side or the other.
2.
i.
The Evidence Act defines the term ‘evidence’ means and includes-
Oral Evidence - i.e. all statements that the Court permits or requires to be made
before it by witnesses concerning matters of fact under inquiry and
ii.
for the inspection of the Court.
Thus, the definition of evidence covers two types of evidence, i.e. statements made
by the witnesses (Oral Evidence) and documents produced (Documentary Evidence.)
This definition is said to be incomplete because it does not include all the material
on which the decision of the judge may rest. There are certain other proof mediums that
the Court considers as pieces of evidence but which are not covered under the above
definition, viz. -
a)
Demeanor of witness: -
It means the condition, behaviour, and expression of witnesses when giving
evidence. The court's observation of the witness's demeanour at the time of chief or cross-
examination is a material piece of evidence; a judge takes note of it.
b)
c)
d)
e)
f)
Admission and confessions of the parties
Presumptions to be drawn from the absence of producible witness or evidence.
Identification proceedings (e.g. identification of accused, ornaments, articles, etc.)
Inspection of the site (scene) of the crime
Real evidence, i.e. material objects Documents produced for the court's inspection,
Such as photographs, weapons used in a crime, blood-stained clothes, etc.
g) Statement of witness - If the opportunity for cross-examination is not given to the
opposite party,
3.
In this way, Taylor's definition of 'Evidence' is said to be more comprehensive.
According to him, 'Evidence' means ‘all the legal means, exclusive of mere arguments,
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“Law Master’s Publications
“Definitions”
Prof.S.D.Bhosale
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which tend to prove or disprove any fact the truth of which is submitted to the judicial
investigation’. Thus, the terms 'Evidence' and 'Proof' are often used as 'synonymous'.
According to another view, the above definition under section 3 of the Evidence Act
is exhaustive if we interpret it widely because all evidence can be made orally or through
documents. Thus, admissions and confessions are oral statements, whereas photographs,
weapons, and objects can be called ‘documents’.
II.
Kinds of Evidence : -
Evidence can be classified into the following kinds. (We will discuss them in short)
Oral and Documentary Evidence: -
(i)
According to the above definition of 'Evidence', it is either oral or documentary.
Oral Evidence: -
“All statements made by witnesses in the witness box in relation to the matter of
facts under enquiry” are called oral evidence, and “all documents which are produced
before the Court in support of certain facts” are called documentary evidence.
Thus if 'X' produces witness 'Z', who says in the Court that the money was lent by
'X' to 'Y' before him, it is oral evidence of 'Z' of the fact as to whether 'X' has lent money
to 'Y'?. But if 'X' produces a promissory note in his favour given by 'Y', it is documentary
evidence.
Document (S.3): -
Section 3 defines 'document' means “any matter expressed or described upon any
substance by means of letters, figures or marks, or by more of these means, intended to be
used or which may be used, for the purpose of recording that matter”.
Illustrations
a)
b)
c)
d)
e)
A writing is a document
Words printed, lithographed, or photographed are documents.
A map or plan is a document.
An inscription on a metal plate or stone is a document.
A caricature is a document.
This definition of 'document' is similar to that definition given in S.29 of the Indian
Penal Code. The definition of 'document' is given in a very wide sense. Generally,
'document' means 'written paper'. But according to the definition, the document means and
includes “matters expressed or described on all material substances by means of letters,
figures or marks”. Thus, writing an inscription on a metal plate or stone is a document.
Writing on a wall is a document. Hence, a document means all material substances on
which human thoughts are recorded.
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(ii)
Primary and Secondary Evidence: -
This classification concerns the kind of proof that may be given of the contents of
documents. Primary evidence is the evidence which is given in the first instance. Secondary
evidence is that which is given in the absence of primary evidence.
When the original document itself is produced for the inspection of a Court, it is called
primary evidence. However, if a copy of the document is produced in the evidence, it is
called as 'secondary evidence' of that document. (For details, refer to S.65)
(iii)
Direct and Circumstantial Evidence : -
Direct evidence is also called 'original evidence'. ‘Direct evidence’ is the testimony
of a witness as to any matter of fact that the witness has himself perceived, e.g. A is accused
of the murder of 'B' by gunfire. C is an eyewitness to the incident. The testimony of C that
he saw A firing at B is direct evidence. Similarly, in a case of theft by X of Y's articles, the
evidence of the person who has seen X stealing the article is direct evidence.
‘Circumstantial evidence’ is the evidence as to the circumstances from which an
inference is to be drawn as to the fact in issue. Circumstantial evidence is helpful when
direct evidence is not available. Thus, if in the above gunfire case, the facts that (i) A was
seen with the gun by D at the place of murder, (ii) recovery of the gun, and (iii) the bullet
found in the body was the same purchased by A from E's shop, (iv) deposition of F that
there was a quarrel between A and B on the count of land, are all circumstantial evidence
leading towards the fact in issue, i.e. murder of B. Similarly, in another theft case (discussed
above), if X is found in possession of the articles stolen from 'Y's house, Z saw Y running
from X's house, etc., are all circumstantial evidence leading towards the fact in an issue of
theft.
Direct evidence is reliable, but where the case is based entirely on circumstantial
evidence, a conviction of the accused cannot be ordered unless -
a) the circumstances from which evidence is drawn are cogently and firmly established.
b) The established circumstances should have a definite tendency to point towards only
the guilt and the guilt of the accused.
c) the circumstances taken cumulatively should form a chain so complete that there is
only one conclusion that, with all probability, the crime was committed by the accused
and nobody else.
However, in cases based completely on circumstantial evidence, it is well
established that where circumstantial evidence is susceptible to two possible inferences,
the Court should accept that inference favouring the accused rather than the inference
favouring the prosecution.
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“Definitions”
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(iv)
Direct and hearsay evidence: -
(Direct evidence is discussed above). The expression ‘direct evidence’ or ‘original
evidence’ is used with two senses, one opposite to circumstantial evidence (Already
discussed) and another opposite to hearsay evidence.
Hearsay evidence signifies the evidence heard and said. It is also called secondhand
or un-original evidence. Hearsay evidence is the evidence learned by witnesses not through
their senses but in the medium of a third person. Therefore, it is called as heard and said.
Thus, hearsay evidence is hearsay if A deposes before the Court that B told him that
he saw C stabbing D. Hearsay evidence is not admissible in Court.
Suppose, in a murder case, evidence as to the following facts is given -
a)
b)
that the accused was stabbing the deceased with a knife.
that the deceased was crying for help, c)that the accused ran away.
The evidence of a witness who has seen a stabbing or heard cries of the deceased
for help or seen the accused running away is direct, but the evidence of a witness who has
heard these facts from somebody else is hearsay.
(v)
Real and personal evidence : -
Real or material evidence is the evidence of a fact brought to the knowledge of the
Court by inspection of a physical object and not by information derived from a witness or
document, e.g. stolen property, weapons used in a crime, blood-stained clothes, etc.
Personal evidence is that which is afforded by a human agent who has witnessed the fact.
(vi)
Substantive and Corroborative Evidence : -
Substantive evidence is that piece of evidence on which reliance can be placed for
the decision of the case by the Court. Corroborative evidence is additional evidence which
tends to strengthen or confirm the evidence already given. In other words, the Court can
convict the accused on the basis only of substantive evidence. However, the Court
considers corroborative evidence merely to fortify the decision of conviction.
Thus, the confession of accused 'A' is substantive evidence against him, and the
Court can convict him on the grounds of such confession. But confession by co-accused
'B' is not substantive evidence against 'A'. However, such confession of 'B' can be
considered corroborative evidence against A.
Rules of Evidence in Civil and Criminal Proceedings: -
The principles of the Evidence Act apply to civil and criminal proceedings.
However, here are some provisions that apply exclusively to criminal proceedings,
such as confessions, dying declarations, character, and compatibility of witnesses. In
contrast, the admission and estoppel provisions only apply to civil proceedings.
In civil matters, the standard of proof required is by probability (i.e., the burden of
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“Definitions”
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proof is lighter), whereas in criminal cases, the standard of proof is required to prove an
offence beyond a reasonable doubt. (The burden of proof is heavy).
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