The word ‘Evidence’ is derived from Latin term ‘evidens‘ or ‘evidere‘ which means to prove, to ascertain, to make clear. According to Bentham evidence can be defined as any matter of fact, the effect of which is to produce in a mind a persuasion, affirmative or disaffirmative, of existence of some other fact. The fact sought to be proved is the principal fact and the fact which tends to establish it, is evidentiary fact.

Section 3 of Indian Evidence Act defines the term ‘Evidence’. The definition given in Section 3 includes two kinds of evidence- (1) Oral evidence and (2) Documentary evidence. But it does not mean that there cannot be any other kind of evidence.

(a)    Oral evidence : It means all the statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, and

(b)   Documentary evidence : It means and includes all the documents including the  electronic produced for the inspection of the Court.

Supreme Court in State of Maharashtra v. Paful B. Desai, (2003) 4 SCC 601, held that the words ‘means and includes’ suggest that the definition of evidence is an exhaustive one. In Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, Supreme Court has held that the definition is exhaustive.

Evidence signifies only the instruments by means of which relevant facts are brought before the court. It is different from proof which is the effect of evidence. According to Phipson evidence is a testimony whether oral, documentary or real which may be legally received in order to prove or disprove some fact or dispute. 

Real evidence: Definition in Section 3 does not refer to the ‘real evidences’. Real evidences are material objects produced in court. For example blood stained cloth, weapons etc. This ‘real evidence’ is covered by proviso to Section 60. It provides that if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection. Such ‘material thing other than document’ is what we called ‘real evidence’.

Affidavit as evidence: According to Section 1 of the Act, the Indian Evidence Act does not apply to affidavits presented to the courts. In Sudha Devi v. M.P. Narayanan, AIR 1988 SC 1381, Supreme Court held that statements in affidavit do not constitute evidence within Section 3. The reason for exclusion of affidavits is that in affidavits there can be statements based on information which is hearsay. Affidavits can be used as evidence only when the court passes order under Order XIX, Rule 1 and 2 of Code of Civil Procedure. When a court orders that a particular fact may be proved by an affidavit then it becomes evidence. The Code of Civil Procedure (Amendment) Act, 2002 permits affidavit in the form of evidence. Supreme Court in Ayaaub Khan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, has held that where the deponent can be available for cross examination and an opportunity is given to the other party to cross examine then the affidavit can be relied upon as evidence.

Evidence of tracker dog: Supreme Court in Abdul Razak v. State, AIR 1970 SC 283, held that discovery of a fact with the help of a tracker dog is scientific evidence.

Direct evidence: Direct evidence is evidence which proves the fact in dispute directly without any inference or presumption. The principal fact is proved directly by witnesses, documents or things. It is based on precise point in issue. For example, in case of murder if the witness saw the accused commiting the offence then the evidence of the witness will be direct evidence.

Circumstantial evidence: Circumstantial evidence is not defined under the Indian Evidence Act. Circumstantial evidence is that which relates to a series of other facts than the fact in issue. It means the evidences of circumstances. When there is no direct evidence available then the courts look to the circumstances which can be linked to provide evidence.

Supreme Court in Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SSCC 228, Ganpat Singh v. State of M.P., (2017) 16 SCC 353, State of U.P. v. Ravindra Prakash Mittal, AIR 1992 SC 2045, and in many other cases held that following are the principles which must be kept in mind while dealing with the circumstantial evidence.

1.     The general principle is that the circumstances from which an inference of guilt is drawn must be cogently and firmly established.

2.     Those circumstances should be definite and unerringly point towards the guilt of accused.

3.     Circumstances should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused.

4.          Such circumstances should be incapable of any hypothesis other than the guilt of accused and it should be inconsistent with the innocence of the accused.

Author & Former Judge

Comments (0)

Leave a Reply

Your email address will not be published. Required fields are marked *