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Types of Evidence

The word evidence is used in common parlance in three different senses: (a) as equivalent to relevant, (b) as equivalent to proof, and (c) as equivalent to the material, on the basis of which Courts come to a conclusion about the existence or non-existence of disputed facts.[1]

As pointed out in the Hindu Dharma Shastra, the purpose of any trial is the desire to find out the truth. And as per Manu, the King presiding over the tribunal shall ascertain the truth and determine the correctness of the allegations regarding the subject of the suit, the correctness of testimonies of the witness, the description, time and place of the transaction or incident giving rise to the case as well as the usage of the country and pronounce a true judgment. Hence, from then on document, witness and possession came to be recognized as the kinds of evidence.

Al-Quran considers Justice as one of the attributes of God. And as per Muslim law, there is no real co'ncept regarding rule of evidence nor there were any codified laws. However, Evidence was divided under the heads of oral and documentary in Muslim Law.

In the British era, the laws relating to evidence were finally codified.

In layman's language, the word evidence refers to the proofs produced in the court of law in favour or against the disputed facts. The word evidence is derived from the Latin word evidentia meaning, distinction, vivid presentation, clearness.[2]

According to Sir Blackstone:
Evidence signifies that that demonstrates, makes clear or ascertain the reality of the facts or points in issue either on one facet or the opposite.

According to Sir Taylor:
Law of proof suggests that through argument to prove or contradict any matter of truth. the reality of that is submitted to judicial investigation.

As per, Indian Evidence Act, 1872:
Evidence means and includes Oral and Documentary evidence. All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry (oral evidence) and all documents including electronic records produced for the inspection of the Court (documentary evidence). [3] However, this definition, defines evidence in a very narrow way. This definition doesn't talk about local enquiry results, identification proceedings, etc. It just talks about two means, i.e., the statement of the witness and documents including electronic records.

In broader sense it can be said that:
Evidence forms the building blocks of the investigative process and for the final product to be built properly, evidence must be recognized, collected, documented, protected, validated, analysed, disclosed, and presented in a form which is acceptable to the Court.[4]

The word evidence in connection with Law, all valid meanings, includes all except agreement which prove disprove any fact or matter whose truthfulness is presented for Judicial Investigation. At this stage it will be proper to keep in mind that where a party and the other party don't get the opportunity to cross-examine his statements to ascertain the truth then in such a condition this party's statement is not Evidence.[5]

Types of Evidence
Even though as per the Indian Evidence Act 1872, the definition of evidence includes only two types of Evidence- Oral and Documentary, but there are various ways through which evidence can be grouped together to classify as types of Evidence, namely:

1. Real and Personal Evidence
Natural Evidence is "The Evidence by which in any mind persuasion is capable of being produced is derived from two sources: from the operation of the perceptive or intellectual faculties of the individual himself, and from the supposed operation of the like faculties on the part of others[6]. This brings us to two forms of Evidence Personal and Real.

Real Evidence (also known as Physical / Material Evidence)
When the evidence is brought to the knowledge of the court by inspection of a physical or material object and is not derived from witness or document, then it is called Real Evidence.
E.g., murder weapon, blood samples and fingerprints found, etc.

Personal Evidence (also known as Testimonial Evidence)
When the evidence is brought to the knowledge of the court by human agents, either in way of disclosure or by voluntary sign, and is the oral testimony of the witness, then it is called Personal Evidence.
E.g., Behaviour of the parties involved, the conduct of the witness, through Local inspection by the court, etc.

A deposes that he saw B pursue C with threats. C is found killed and B's bloody knife is found nearby. A's testimony is personal evidence; the knife is real evidence. 'Real' technically signifies merely thing".[7]

Direct and Indirect Evidence
I saw the original surveyor drive the particular stake in the ground.
I saw the original surveyor drive similar stakes at other corners.
The former statement proves the fact directly without relying on presumptions whereas the later relies on presumption in order to prove a fact. This again brings us to other two forms of evidence Direct and Indirect.

Direct Evidence
When a specific fact is established directly without providing a reason to connect to the fact, it is known as Direct Evidence.

Indirect Evidence (also known as Circumstantial Evidence)
When the facts in issue is proved by providing other facts, that is, indirect facts and then proving their relevance, it is known as Indirect Evidence.

A testifies that on that morning she walked to the subway and as she walked, she saw rain falling, she felt it striking her face, and she heard it splashing on the sidewalk. That testimony of the witness's perceptions would be direct evidence that it rained on that morning.[8]

A testified that it was clear as she walked to the subway, that she went into the subway and got on the train and that while she was on the train, she saw passengers come in at one station after another carrying wet umbrellas and wearing wet clothes and raincoats. That testimony constitutes direct evidence of what the witness observed. And because an inference that it was raining in the area would flow naturally, reasonably, and logically from that direct evidence, the witness's testimony would constitute circumstantial evidence that it was raining in the area.[9]

Judicially and Non-Judicial Evidence
"No confession made to a Police Officer shall be proved as against a person accused of an offense"[10] Section 162 of Crpc, protects the person making statement during police investigation under duress or inducement. The Code allows police officer to record statements of witnesses with a view to facilitating investigation of the offence. But if such statements are made under duress or inducement, they are rendered inadmissible in evidence because they cannot be said to be free and fair statements made voluntarily. This is how Judicial and Non-Judicial form of Evidence came into form.

Judicial Evidence
When the evidence is received by court of justice in proof or disproof of facts before them, it is called judicial evidence.

Non-Judicial Evidence
Any confession made by the accused outside the court in the presence of any person or the admission of a party is called Non-Judicial Evidence. Evidence given in the proceeding before the Magistrate or officer not in a Judicial capacity but in an administrative one, is non-Judicial evidence.

A was convicted of murder, one of the items of evidence being a confessional letter written by the accused and left near the dead body with the intention of being seen by police officer. In this particular case, the letter was not regarded as Non-Judicial evidence as, it was not confession made to a Police Officer coming within the ban of Section 25 of the Evidence Act. The Police Officer was not nearby when the letter was written, or knew that it was being written. In such circumstances the letter would not be a confession to a Police Officer even though it was addressed to the police officer.[11]

Character and Hearsay Evidence
In Indian law as well as in common law, both character evidence and Hearsay evidence, are considered to be weak evidence.

Character Evidence
The term character under Section 55 of Indian Evidence Act definition breaks down the term into two things which is reputation and disposition, where the former means the opinion that people, in general and the latter means the habitual behaviour of a particular person.[12]

As per Section 52 of the act, in civil cases, a fact pertaining to the character of an individual is not relevant.[13]

Whereas as per Section 53 of the act, in criminal cases a fact pertaining to the previous good character of an individual is relevant[14] but as per Section 54 of the act, in criminal cases a fact pertaining to the previous bad character of an individual is not relevant[15]

Hearsay Evidence
Hearsay evidence refers to evidence which the witness has neither personally seen nor heard, nor has he perceived through his senses and has come to know about it through some third person.[16]

A is being tried for stealing B's Cycle. C as witness says that he (C) heard D saying that D saw A with B's Cycle. Such evidence given by C is not admissible on the ground that testimony of C is hearsay evidence.

A, a businessman is charged with fraud. B a witness says that he (A) is an honest man i.e. the character is such that he can never commit fraud. Such evidence given by B is not admissible on the ground that testimony of C is character evidence and the case is of civil nature and has to be decided based on the facts of the case and not the character of the parties.

Oral and Documentary Evidence
As mentioned, Section 3 of the Indian Evidence Act, 1872, Evidence includes Oral and Documentary Evidences.

Oral Evidence
As per Section 60 and 61 of the Indian Evidence Act, 1872, All those statements which the court permits or expects the witnesses to make in his presence regarding the truth of the facts are called Oral Evidence.[17]

Documentary Evidence
As per Section 3 of the Indian Evidence Act, 1872, All those documents which are presented in the court for inspection such documents are called documentary evidences.[18]

A saw that B is hitting C. A will be an eyewitness to the crime scene and his testimony will be that of oral evidence.
A was murdered and CCTV video showed that B murdered A. Here the CCTV video of the murder taking place would be documentary evidence.

Primary and Secondary Evidence
Section 62 and 63 of the Indian Evidence Act defines primary and secondary evidence.

Primary Evidence
Primary Evidence is the main source of evidence. It is an original document that is presented before the court of law for inspection.[19]

Secondary Evidence
Secondary Evidence means inferior or substituted evidence which itself indicates the existence of more Original source of information. Secondary evidence may be given in the absence of the (better) primary evidence if proper explanation is given for such absence.[20]

A sold his house to B for 50,000/-and executes registered sale deed. In a dispute as to the title, if B produces before the court, the sale deed, it is primary evidence.
In case the original deed had already been admitted in the Court., then the other evidences produced will be secondary Evidence.

Best Evidence Rule
No evidence will be admissible unless it is the best evidence that nature will allow[21]

In layman's language, Best Evidence Rule can simply be defined as:
A rule of evidence that holds an original document, photograph, recording, or other piece of evidence is required to prove its content.

Best evidence includes the best evidence which is available to a party and procurable under the existing situation, and all evidence falling short of such standard, and which in its nature suggests there is better evidence of the same fact, is secondary evidence.[22]

It can further be stated that:
The best evidence of a fact is the testimony of a person who knows.[23] For e.g., mother could testify to the date of her daughter's birth, as against an objection that the baptismal certificate or the registry was the best evidence.[24]

According to the Best Evidence Rule, highest available degree of proof must be produced[25] which rather means that:
no evidence which is merely substitutionary in its nature shall be received so long as original evidence can be had[26] and contents of document must be proved by producing document itself.[27]

The origin of the Best Evidence Rule has been traced to the Doctrine of Profert.[28] However, the doctrine of Profert, was a rule of pleading rather than one of evidence.[29] Later on, after 1571, full-fledged rule of evidence first became entirely distinguishable from the older pleading doctrine.[30] In around 1700, it was further stated that , the best proof that the nature of the thing will afford is only required.[31] Thereby giving birth to the rule of best evidence.

The best evidence rule does not demand the greatest amount of evidence which can possibly be given of any fact, but its desire is to prevent the introduction of any evidence than the document itself. The main aim behind introduction of this rule is to prevent fraud.

Sections Involved
The best evidence rule is also called the original document rule, it says that the party has to produce the original document and in case he is not able to provide for the original document he has to account for the same.[32] Section 91 and 92 of Indian evidence act talks about the Best Evidence Rule. Sections 91 to 100 are based upon the principle that the best evidence must always be given, and the acceptance of the fact that no matter how good a person's memory may be, the best evidence of the content of a document is the document itself. The principle does not demand the largest amount of evidence � it simply requires the best evidence and since this is documentary evidence, oral evidence is excluded.

Section 91 of the Indian Evidence Act, deals with the exclusiveness of the Documentary Evidence, that is, if the transaction has reduced to writing then the existence of the document excludes all other evidence of the transaction.[33]

Section 92 of the Indian Evidence Act , deals with exclusiveness of the documentary evidence, that is when the parties have deliberately put their agreement into writing, it is the writing, it is conclusively presumed between them and their privies, that they intended the writing to exclude and to form a full and final statement of their intentions and the parties or their privies are thus forbidden by the terms of Section 92 from giving any extrinsic evidence, to contradict, vary or explain written instruments, unless the case falls within any of the provisions to this section.

A contract, in writing with B, for the delivery of indigo upon certain terms. The contract mentioned the fact that B had paid A the price of other in contracted for verbally on another occasion. Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible. � Section 91 of the act

A policy of insurance is effected on goods in ships from Calcutta to London. The goods are shipped in a particular ship which is lost. The fact that that particular ship was orally excepted from the policy, cannot be proved. - Section 92 of the act.

Section 91 of the act mainly forbids proving of the contents of a writing otherwise than by writing itself and merely lays down the best evidence rule.[34] Section 91 and 92 in effect supplement each other. First, the documents are to be proved in the court according to section 91 and it is only after the documents have been established in the court that section 92 comes into play for the purpose of excluding any oral agreement or statement for the purpose of subtracting, varying, adding or contradicting any term of the evidence.

Section 91 applies to all documents whether any purport to particular rights or not but section 92 applies only to documents which can be described as dispositive. Section 91 applies to both bilateral and unilateral documents and section 92 depends only on bilateral documents. The rule in section 91 is universal and is not confined to the executant or executants of the documents but section 92 depends only on the parties to the documents or their representatives in interest.[35]

According to the Best Evidence Rule, when written documents are there, any oral assurance, which purports to contradict the written documents need not be considered.[36]
However, the apex court further ruled that, Where both oral as well as documentary evidence are admissible on their own merits and have been admitted, the court may go by the evidence which seems to be more reliable. There is nothing in the act requiring that the documentary evidence should prevail over the oral evidence.[37]

The Best Evidence Rule gains an important place in Criminal Law. As the criminal justice system in India is based on the concept of beyond reasonable doubt, hence the Best Evidence Rule is the best match.

Documentary evidence has more value than the oral evidence. Court is bound to accept the documentary evidence. But oral evidence may be taken into consideration in certain circumstances.

Hence it can be interpreted that, as per the Best Evidence Rule, the secondary evidence won't be applicable if the primary evidence exists.

Best Evidence Rule was introduced with the aim to prevent fraud and adhere to the idea of Natural Justice. It gives more importance to primary evidence, with an aim to have the best in hand. Through various judicial decisions, the idea and the concept of the best evidence rule has been made clearer.

According to the Best Evidence Rule, Only the original should be used when proof is provided, such as a document or recording, unless there is a valid reason why the original cannot be used. It includes the best evidence which is available to a party and procurable under the existing situation, and all evidence falling short of such standard, and which in its nature suggests there is better evidence of the same fact, is secondary evidence.

The focus behind the Best Evidence Rule is to ensure that accurate evidence is provided in the Court. To comply with the Best Evidence Rule the parties which the evidence, need to establish its accuracy, else such evidences will be excluded. Compilance to this rule may sometimes appear to be burden. But in practice, Best Evidence Rule is flexiable enough to accomode those situations, where obtaining the original evidence appears impractical. When a party can show that original is not available or impractical to procure, the rule is flexible enough to allow other types of evidence as proof of what the writing, recording or photographic evidence show.

  1. Kalyan Kumar Gogol v. Ashutosh Agnihotri, (2011) 2 SCC 532
  3. Section 3(e) of Indian Evidence Act, 1872
  4. Canada Evidence Act, (Government of Canada, 2017).
  5. Sivrajbhan v. Harchandgir, AIR 1954 SC 564.
  6. I Bentham, Rationale of Judicial Evidence (i827) 51-52
  7. Dumont, Treatise on Judicial Evidence (1825)
  8. People v Bretagne, 298 N.Y. 323, 325 (1949)
  9. People v Benzinger, 36 N.Y.2d 29, 31-32 (1974)
  10. Section 25, Indian Evidence Act 1872
  11. Sita Ram vs. State of UP (AIR 1966 SC 1906).
  12. Section 55, Indian Evidence Act, 1872
  13. Section 52, Indian Evidence Act, 1872
  14. Section 53, Indian Evidence Act, 1872
  15. Section 54, Indian Evidence Act, 1872
  16. Indian Evidence Act, Ratanlal & Dhirajlal, Lexis Nexis Butterworths Wadhwa, 21st Edition, Nagpur
  17. Section 61, Indian Evidence Act, 1872
  18. Section 3, Indian Evidence Act, 1872
  19. Section 62, Indian Evidence Act, 1872
  20. Section 63, Indian Evidence Act, 1872
  21. Ford v Hopkins (1700) 91 Eng. Rep 250 (K.B.); Omychund v Barker (1745) 26 ER 15.
  22. Best v. Equitable Life Assur. Soc., Mo.App., 299 S.W. 118, 120.
  23. State v. Normandale, 154 La. 523, 97 So. 798, 799
  24. Ibid.
  25. Cheadle v. Bardwell, 95 Mont. 299, 26 P.2d 336
  26. Pettit v. Campbell, Tex.Civ. App., 149 S.W.2d 633, 635, 636
  27. Nunan v. Timberlake, 85 F.2d 407, 410, 66 App.D.C. 150
  28. Holdsworth, The History of English Law 168 (1926)
  29. HOLDSWORTH, op. cit. supra notes 1, at 171
  30. WIGMORE, EVIDENCE & 1177, at 312 (3d ed. 1940)
  31. Ford v. Hopkins, 1 Salk. 283, 91 Eng. Rep. 250 (K.B. 1700)
  32. Collin Miller, 'Evidence: Best Evidence Rule' (2012) CALI eLangdell Press
  33. Section 91, Indian Evidence Act 1872
  34. Tulsi vs. Chandrika Prasad (2006) 8 SCC 322
  35. Bai Hira Devi v Official assignee of Bombay AIR 1958 SC 448
  36. Mumbai International Airport (P) Ltd. vs. Golden Chariot Airport (2012) 10 SCC 422
  37. Javarsetty v. Nongamma, AIR. 1992 Kant. 160.

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