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CRIMINAL EVIDENCE
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INTRODUCTION TO EVIDENCE LAW
INTRODUCTION
The term “law” is used in different senses. In the plain sense, it means any rule, regulation or canon, a dogma or a norm to which the human actions are required to conform. The entire corpus juris (body of laws) is broadly classified into two categories: Substantive laws, and, Adjective laws. The law of evidence doesn’t come under the purview of substantive or procedural law, but under ‘adjective law’, which defines the pleading and procedure via which substantive laws are brought into practice. It is the machinery by which substantive laws are set and kept in motion. So it can be said that the law of evidence deals with rights, as well as, procedures. The general meaning of the term “evidence” is “the available body of facts or information indicating whether a belief or proposition is true or valid”. But, as per the interpretation of Section 3 of the Indian Evidence Act, 1872, evidence means and includes: All statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; All documents[i][including electronics record] produced for the inspection of the court; Such documents are called ‘documentary evidence.’ HISTORICAL BACKGROUND In order to trace the history of the law of evidence in our country, we have to study three different periods:
The ancient Hindu period; The ancient Muslim period; and The British period. Ancient Hindu period : The sources of information relating to the law of evidence prevailing in Hindu India emanate from the Hindu Dharmashastras. According to Hindu dharmashastras , the purpose of any trail is the desire to ascertain the truth. The emphasized that a judge by using his skill should extricate the deceit like a physician taking out from the body an iron dart with the help of the surgical instruments. Vasista recognisewd three type of evidence: Lekhya (documentary evidence), Sakshi (witnesses), and Bukhthi (possession).. Ancient Muslim period: In regard to the law of evidence discussed in the book “Muslim Jurisprudence” written by the sir Abdul Rahim. The Mohammendan law givers deals with evidence under the heads of oral and documentary. Oral evidence is further sub- classified into direct and hearsay evidence as in present day. In the British Era: In British India, the presidency courts by virtue of a royal charter establish in Bombay, Madras and Calcutta were following English rules of the law of evidence. In mofussil courts, outside the presidency towns, there were no definite rules relating to the law of evidence. The courts enjoyed unfettered liberty in the matter of admission of evidence. The entire administration of justice in the mofussil courts, in the absence of any definite rules regarding the law of evidence, was in total chaos. There was a dire necessity for the codification of the rules of law. In 1835 the first attempt was made to codify the rules of evidence by passing the Act, 1835. Between 1835 and 1853 about eleven enactments were passed dealing with the law of evidence. But all these enactments were found inadequate.
objects other than documents such as weapons, tools, stolen property, etc., are not “evidence” according to the definition given in the Act. These are, however, matters which the Court may legitimately take into consideration. The definition of “evidence” must be read together with the definition of “proved”; and the combined result of these two definitions in that “evidence”, as defined by the Act, is not the only medium of proof and that in addition to it, there are a number of other “matters” which the Court has to take into consideration when forming its conclusions. A statement recorded under Section 164, Cr. P.C. is not evidence within the meaning of this definition. So also a confession of an accused is not evidence in the ordinary sense of the term. Entire evidence of hostile witness does not get excluded or rendered unworthy of consideration. In the matter of appreciation of the powers of the appellant, the courts are as wide as that of the trial court. It has full power to review the whole evidence. It is entitled to go into the entire evidence and relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused” Definition: As per Section 3 of the Evidence Act,1872, defined as, “evidence” means and includes: All statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; All documents[including electronics record] produced for the inspection of the court; such documents are called documentary evidence. It means this section deals with the term “Evidence” which is derived from the latin expression “Evidens Evidera” which signifies the state of being evident, that is, plain, apparent or notorious. According to Benthem, the evidence is defined as any matter of fact, the effect, tendency or design of which is to produced in the mind, a persuasion affirmative or disaffirmative, of the existence of some other matter of fact. According to Stephen , the word ‘evidence’ as generally employed, is ambiguous:-
It sometimes means the words uttered in and things exhibited by witnesses before the court of justice; At other times it means the facts proved to exist by those words or things and regarded as the ground work of inference as to other facts in issue not so proved; It is sometimes used as meaning to assert that a particular fact is relevant to the matter in the inquiry. According to Taylor, evidence means and includes all facts except arguments, which tend to prove or disprove any matter, which under inquiry in judicial proceedings. Kinds of evidence: Evidence is generally divided into three categories: oral or personal or primary, documentary or secondary, material or real. But the fact only recognizes the first two categories. Real or material evidence is supplied by material objects for inspection of the Court, e.g., the weapon of offence or stolen property. Evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video-conferencing. Oral evidence may be classified into two categories: Direct, and Indirect or hearsay. Primary and Secondary – It may be oral or documentary. Primary oral evidence is the evidence of what a witness has personally seen or heard or gathered by his senses. It is called direct evidence as opposed to hearsay (Section 60)****. As a rule, hearsay evidence is not admissible, but there are some exceptional cases of hearsay evidence which are admissible. Such
According to Section 5 of the Act, evidence may be given in a proceeding of the existence or non-existence of facts in issue and of such other facts as are declared to be relevant by the Act. If the evidence relates directly to the existence or non- existence of a fact in issue, the evidence is direct; but if it relates to the existence or non-existence of only a relevant fact, it is indirect or circumstantial. Direct evidence, as thus understood, should not be confused with the sense in which this term is used in Section 60 of the Act. In Section 60 the term “ direct evidence” is used as opposed to “hearsay” evidence and not as opposed to “circumstantial” evidence, and therefore, in the sense in which this term is used in that section, circumstantial evidence must always be “direct”, i.e., the facts from which the existence of the fact in issue is to be inferred must be proved by “direct” ‘and not by “hearsay” evidence. Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The circumstances may lead to particular inferences and the relationship to true facts may be more apparent than real. The value of circumstantial evidence has to be assessed on the consideration that it must be such as not to admit of more than one solution, and that it must be inconsistent with every proposition or explanation that is not true. If these conditions are fulfilled, circumstantial evidence may approximate to truth and be preferred to direct evidence. For proof by circumstantial evidence, four things are essential:- That the circumstances from which the conclusion is drawn be fully established. That all the facts should be consistent with the hypothesis. That the circumstances should be of a conclusive nature and tendency. That the circumstances, should, to moral certainty actually exclude every hypothesis but the one proposed to be proved. According to the Supreme Court, it is an effect to say that “what the Court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond ‘shadow of doubt’. In the first place, ‘shadow of doubt’, even in cases which depend on direct evidence is the shadow of ‘reasonable’ doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypothesis is far more rigorous than the test of proof beyond reasonable doubt”. In the case where two of the accused persons had intentionally caused the death of the deceased, there is no reason to discard evidence of witnesses.
In a prosecution for bribery the fact that money had been recovered from the bush shirt of the appellant, was, by itself held to be not sufficient, for convicting him, when the substantive evidence led to prove the offence was found to be not reliable. The rule that facts are provable by circumstances as well as by direct testimony, has a considerable effect in preventing guilty or dishonest parties from tampering, or making way with witnesses and other instruments of evidence, which they would be more likely to do, if they knew that the only evidence which the law would receive against them was contained in a few easily-ascertained depositories. “The sentence of the law to the moral sentiment of the public in relation to any offence is what a seal is to hot wax. It converts into a permanent final judgment what might otherwise be a transient sentiment. The infliction of punishment by law gives definite expression and a solemn ratification and justification to the hatred which is excited by the commission of the offence, and which constitutes the moral or popular is distinguished from the conscientious sanction of that part of morality which is also sanctioned by the criminal law. The criminal law thus proceeds upon the principle that it is morally right to hate criminals, and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it. This close alliance between criminal law and moral sentiment is in all ways healthy and advantageous to the community “….. Stephen. It is a well-settled principle that the prosecution evidence has to be weighed and not to be counted. It is just because pedestrian or resident of the vicinity has not been cited as the witness will be no ground throws away the otherwise reliable testimony of the eye-witnesses which is natural and inspires confidence. It is not necessary that all eye-witnesses should specifically refer to the distinct acts of each member of an unlawful assembly. Kinds of Evidence After all our research related to the topic, “Evidence as to matter in writing”, we saw that the word “evidence” signifies in its original sense, the state of being evident, i.e., plain, apparent or notorious. But it is applied to that which tends to render evidence or generate a proof. We can say that the term “Evidence” is nothing but a process which deals with the right as well as procedures.
II. Documentary Evidence:- Document as defined in Section 3, means any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means intended to be used, or which may be used, for the purpose of recording that matter. Documentary evidence deals with evidence produced in the form of a document in order to prove a disputed fact. The subject-matter of documentary evidence can be divided into three parts: (i) how the contents of a document are to be proved (ii) how the document is to be proved to be genuine (iii) how far and in what cases the oral evidence is excluded by documentary evidence The meaning of the document or of a particular part of it is to be sought for, in the document itself. That is undoubtedly, the primary rule of construction to which sections 90 to 94 of the Indian Evidence Act, give statutory recognition and effect with certain exceptions contained in sections 95 to 98 of this Act. Of course to “document” means the “document” read as a whole and not piecemeal. III. Oral Evidence:- All statements which the court permits or requires to be made before it by witnesses in relation to the matters of fact under inquiry; such statements are called oral evidence. Further, oral evidence is the evidence, which is confined to words spoken by mouth or gestures. Where a fact which can be proved by oral evidence, it is not necessary that the statement of the witness should be oral. Thus, a dumb person may be testified by signs or by writing. The facts can also be proved by oral evidence.25 “Oral evidence” includes not only the one adduced by examining the witnesses, on behalf of such party, but also the cross- examination of witness by the opposite party, in relation to it.26Oral evidence, when reliable, is sufficient without documentary evidence to prove a fact or title. Section 60 of the Act states that oral evidence must be direct.27 This implies that a witness can tell the Court of only a fact of which he has the first hand personal knowledge in the sense that he perceived the fact by any of the five senses. For instance, where the question is whether a particular statement was made, a person who heard the making of the statement may appear in the court of tell the court of the fact that the statement was made in his presence or hearing.
IV. Primary and Secondary Evidence:- Section 61 of the Evidence Act provides that contents of the documents may be proved either by primary or secondary evidence. Section 62 provides that primary evidence means the document itself produced for the inspection of the Court. Secondary evidence means that which can be given in absence of the primary evidence. Where a copy of the document or recollection of the witness who has read the original document are tendered in evidence they will be called secondary evidence of the document.2 Where the original has been destroyed or lost, and when party has made diligent search for it and exhausted all sources and means available for its production then the secondary evidence is admissible V. Electronic Evidence:- The definition of evidence was amended by the Information Technology Act, 2000 to include ‘electronic records’ within the same. An electronic record29 means data, record or data generated, image or sound stored , received or sent in an electronic form or micro film or computer generated micro fiche. VI. Circumstantial Evidence:- Justice Fletcher Moulton once had, in respect of circumstantial evidence, observed “proof does not mean rigid mathematical formula since that is impossible. Further Lord Justice Coleridge observed, “the circumstantial evidence is like a grassamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches”. He had further observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape.”30 In the context of competing and various kinds of evidence, in very few cases direct evidence of facts is available.31Keeping in mind, the manner in which crimes are committed victims in many cases are silenced altogether and the criminals leave no trail of evidence behind thus making prosecution difficult. Thus, in these situations the main action needs to be reconstructed before the Court with the help of surrounding circumstances such as the cause or effect of the event. Thus, it is herein affirmed that circumstances speak as forcefully as does direct evidence.32 The Hon’ble
(b)that all the facts must be consistent with the hypothesis of guilt of accused; (c)that the circumstances must be of conclusive nature and tendency; (d)that the circumstances should, to a moral certainty, actually exclude every hypothesis except the one proposed to be proved; Value of Circumstantial Evidence: Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The chain of circumstances may lead to particular inferences and the relation to true facts may be more apparent than real. Hence, such evidence must be used with caution. Where the circumstantial evidence only showed that the accused and deceased were seen together the previous night, it was held to be not sufficient; VII. Hearsay Evidence:- Hearsay evidence means the statement of a witness not based on his personal knowledge but on what he heard from others.41It may be called indirect, second-hand or derivative evidence. It is a statement made to the Court by a witness who has not seen the happening of the transaction or facts, but heard that something had happened. Thus, it means that which a witness does not say of his own knowledge but says that another has said or signified to him. The courts do not normally take such evidence much seriously.42 The effect of provision is that if the fact of which the evidence is offered is a fact which could be seen, the evidence must be of a person who personally saw the happening of the fact. Hence, hearsay evidence is not permissible in a court of law. The law regarding hearsay evidence has been described by the House of Lords to be technical, rather ‘absurdly technical’.43 The rule is not absolute and there are certain exceptions which have been carved out in this regard. There are seven exceptions: Firstly, the statement of a person may be proved through another person who appears as a witness if the statement is a part of the transaction in issue. Secondly, an admission of liability or confession of guilt which takes place outside the Court is proved through the testimony of a witness to whom the admission or the confession was made. It follows that admissions and confessions constitute an exception to the hearsay rule. Thirdly, statements made under Section 32 are the statements of deceased persons and the evidence of these statements is received through the testimony of persons who heard their statements. The evidence of such statements is
hearsay and still regarded important. Fourthly, statements in public documents such as Acts of Parliament, official books and registers, can be proved by the production of the document and it is not necessary to produce before the court the draftsmen of the document.44 Fifthly, evidence used in previous proceedings by a witness held as truth can be used in subsequent proceedings.45 Sixthly, statements of experts in treatises is accepted as an exception to hearsay evidence. This is recognized by the proviso to section 60 of the Act. The Supreme Court has held:46 “Every article published or a book written cannot ipso factored regarded as conclusive or worthy of acceptance. What is stated therein may not only be a view of the author and may not be based on a data which is scientifically collected from a reliable source. VIII. Medical Evidence :-Medical knowledge is a specialized form of knowledge. A layman may not be in a position to have medical knowledge without proper education and training. The knowledge of the medical expert is always essential in the criminal justice system. The expert evidence given by a medical person comes to the help of the Court in deciding various matters. Particularly, in case of death of a person, medical evidence is inevitable. Such evidence can be obtained through postmortem report. The importance of the post-mortem report is as a tool in the hands of the prosecution. It becomes useful to decide the guilt of the accused.47The Supreme Court48stated the dictum that medical opinion is admissible in evidence like all other types of evidence and there is no hard-and-fast rule with regard to appreciation of medical evidence. IX. Expert Evidence:- The law of evidence is designed to ensure that, the Court considers only that evidence which enables it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear testimony of the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the Court’s knowledge. Thus cases where the science involved is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed. Rules of Expert Evidence: 49
Circumstantial or indirect evidence refers to evidence which proves the facts in issue by providing other facts, that is, indirect facts and then proving their relevance. A satisfactory conclusion can be drawn from such evidence by relating a series of other facts to the facts in issue. Such indirect facts must have been associated with the facts in issue and have a cause and effect relation. Under the Indian Evidence Act, “circumstantial evidence” is covered under the expression “relevant facts”. Here, “relevant facts” need to be proved by direct evidence which includes oral or documentary evidence. Hanumant v. The State Of Madhya Pradesh In this case, the first appellant held the post of excise commissioner whereas the second appellant held the post of a chemical engineer. Both of them were convicted and sentenced for the offence of criminal conspiracy, abetment, and forgery. There was no direct evidence to support them therefore circumstantial evidence was used. It was stated that while dealing with circumstantial evidence there is always a possibility that suspicion might take the place of legal proof. In cases where the evidence is circumstantial in nature then such evidence should be completely established and should be consistent with the theory of the guilt of the accused. Thus, the Supreme Court of India acquitted the appellants as the evidence produced was insufficient to prove the guilt of the accused beyond all reasonable doubt. Ashok Kumar v. The State Of Madhya Pradesh In this case, an appeal was made against the finding of the accused as guilty of the murder of his wife. However, it was argued by the appellants the entire prosecution was based on alleging circumstantial evidence and there was no eye witness. It was held in this case that the circumstantial evidence must satisfy the following facts: The circumstances from which an inference of guilt is sought to be drawn must be firmly established;
The circumstance should be of definite tendency and undoubtedly point toward the guilt of the accused; The circumstance should be incapable of explanation of any reasonable theory that saves the accused from the guilt. Thus, the appeal was successful and the accused-appellants were accused of the charge. They were given the benefit of the doubt as the circumstantial evidence couldn’t fulfil the above-mentioned conditions. Analogical evidence Analogical evidence is underutilised evidence and usually comes in to play at the end moment. It saves the day when one doesn’t have statistics to refer to or any other matter to quote. Anecdotal evidence Anecdotal evidence refers to evidence which is based on a person’s observation of the world. Personal observations can also be useful for introducing as well as building up a topic. Such observations must be supported with statistical evidence to ensure the validation of such observation. It is another underutilised type of evidence, which is generally considered as untrustworthy and meaningless. However, it can be beneficial for disproving generalisations by coming up with an appropriate example for contradicting a claim. The same can also be used to support claims. Character evidence Character evidence is an important type of evidence for determining the guilt of a person. This practice is being used since time immemorial. The character of a person is a general quality which is the summary of his/her past actions, whether good or bad. The same is considered to be vague and subjective. For instance, a person with ‘good character’ may be considered as a trustworthy and decent person, however, there is not any universal measure for the same. Moreover, it is
diagrams of a crime scene, animation, film or video, checklist exhibits, sample product display, or anything similar designed to help the judge or jury better understand the case. Digital/Electronic evidence Originally, digital or electronic type of evidence was not mentioned or covered under the definition of evidence. However, the definition of evidence was amended by the Information Technology Act, 2000 to include ‘electronic records’ within the same. An electronic record includes record generated, data generated, the image stored, sound stored, or any information received or sent in an electronic form. Such evidence must be collected with a reasonable and least objectionable means. The manner of the collection depends upon various factors, such as: System configuration encountered, Type of investigation, and The evidence should be relevant to support the investigation. The examiner must be aware of the specific electronic data that is required for the investigation. He/she must be prepared to address the obstacles that arise during electronic evidence collection. An electronic record means data, record, data generated, image stored, sound stored, or any information received or sent in an electronic form. Sivrajbhan v. Harchandgir In this case, it was stated that the word evidence in connection with Law includes all agreements except which prove or disprove any fact or matter whose truthfulness is presented for Judicial Investigation. In other words, when the parties
involved don’t get the opportunity to cross-examine the statements to ascertain the truth then such a statement does not amount to evidence. Thus, electronic evidence can be considered as a valid form of evidence. Documentary evidence ‘Document’ is defined in Section 3 of the Indian Evidence Act. Documentary evidence refers to any matter described or expressed upon any substance by means of letters, figures or marks or by more than one means which can be used for recording the matter. Such evidence is produced in the form of a document in order to prove a disputed fact. Essentials or subject-matter of documentary evidence are as follows: how the contents of a document are to be proved. how the document is to be proved to be genuine. how far and in what cases the oral evidence is excluded by documentary evidence. Exculpatory evidence Exculpatory comes from the word ‘exculpate’, which comes from two Latin words ‘ex’ meaning from and ‘culpa’ meaning blame.
