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Admissibility of Evidence in India and England

The law in most of the democratic countries is based on the principle, Innocent until proven guilty. It is the duty of the prosecution to prove beyond any reasonable doubt that the accused has committed the offence. Circumstantial evidence, even though it is allowed in certain cases, it is not enough to prove a case beyond any reasonable doubt. The prosecution has to rely on the material evidence to get a conviction.

The material evidence must also be a one which is legally obtained to be considered as an admissible evidence. Section 101 to 166 of the Indian Evidence Act,1872 explains about the production of evidence and the burden of proof. It applies to material Documentary and evidence and also witnesses. There are some evidences which are inadmissible such as the hearsay evidence except in few circumstances. It is the duty of both the parties to provide the best evidence possible to win the case.

Evidences obtained through improper means are inadmissible and has hindered many criminal investigations throughout the years. Thus, it is important to know the Collection and producing of evidence to utilize it to the utmost effect.

Admissibility means that only the facts which are relevant are admissible in the court of Law. Section 136 of the Indian Evidence Act, 1872 explains which all evidence are admissible. Section 136 states that the it is the discretion of the Judge to decide whether an evidence is admissible or not. The presiding officer may ask the party to clarify how the particular fact or evidence is relevant under the provisions Section 6 to 55 of the Indian Evidence Act, 1872. if he is not convinced of its relevance.

So, technically the question of relevance comes first and then the question of admissibility. The presiding officer has the full power in deciding whether an evidence is admissible or not in a particular case. So, with this power comes ultimate responsibility to the Judge to make sure that every relevant evidence which is obtained legally is made admissible, so that the parties can obtain justice without undue advantages to one side.

Relevancy of fact:
Section 5 to 55 deal with the relevancy of fact. The main question arises as to which fact is legally relevant and also logical in nature. A logically relevant fact may not necessarily be legally relevant in court. All facts that are to be produced in court must be logically relevant as well as legally admissible. In State of UP v. Raj Narain (1975) where it was shown that not all relevant facts are admissible.

In Ram Bihari Yadav v. State of Bihar (1998), the difference between relevancy and admissibility is explained. Section 6 of the Indian Evidence Act is very important as it explains about the facts that form a part of the same transaction. The facts which are directly connected to the issue such as motive, cause, effect are most relevant this is contained in sections 6 to section 16 of the Indian Evidence Act. The relevancy regarding Confessions and precedents is also explained in the Indian Evidence Act, 1872. Character of a person may also be a relevant fact in some cases.

Unfair evidence admissible:

The only criteria regarding the admissibility of evidence in the Indian court of law is relevance. Though illegally obtained evidence is admissible, the value of such evidence may be affected as it was ruled that improperly obtained evidence will be analysed with due caution by the court. Supreme court of India has explicitly held that there is no construction of fundamental rights in the constitution which can be construed in a manner so as to exclude the evidence obtained in an illegal search.


Confession is not defined in the Act. Confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. A confession may occur in many forms. When it is made to the court itself then it will be called judicial confession and when it is made to anybody outside the court, in that case it will be called extra-judicial confession. It may even consist of conversation to oneself, which may be produced in evidence if overheard by another.

The word confession appears for the first time in Section 24 of the Indian Evidence Act. A confession to the police officer is the confession made by the accused while in the custody of a police officer and never relevant and can never be proved under Section 25 and 26. Now as for the extra-judicial confession and confession made by the accused to some magistrate to whom he has been sent by the police for the purpose during the investigation, they are admissible only when they are made voluntarily.

If the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the change against the accused person proceeding from a person in authority and sufficient in opinion of the court to give the accused person grounds, which would appear to him reasonable for supporting that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him, it will not be relevant and it cannot be proved against the person making the statement as per section 24 of the Act.

A confessional statement made by the accused before a magistrate is a good evidence and accused be convicted on the basis of it but a confession made to a police officer is not an admissible evidence in the Court of law.

Hearsay evidence:

The term `hearsay' is used with reference to what is done or written as well as to what is spoken and in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. The word `hearsay' is used in various senses. Sometimes it means whatever a person is heard to say.

Sometimes it means whatever a person declares on information given by someone else and sometimes it is treated as nearly synonymous with irrelevant. The sayings and doings of third person are, as a rule, irrelevant, so that no proof of them can be admitted. Every act done or spoken which is relevant on any ground must be proved by someone who saw it with his own eyes and heard it with his own ears.

Section 6 of the Act provides that facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place of at different times and places. The principal of law embodied in S.6 is usually known as the doctrine of res gestae.

Facts which may be proved, as part of res gestae, must be facts other than those in issue but must be connected with it. Though hearsay evidence is not admissible, but when it is res gestae it can be admissible in a court of law and may be reliable evidence. The rationale behind this is the spontaneity and immediacy of such statement that there is hardly anytime for fabrication.

In the case of Krishnan Kumar Malik vs. State of Haryana (2011) the Apex Court held that for bringing hearsay evidence in the ambit of section 6 what is required to be established is that it must be almost contemporaneous with the acts and there could not be an interval which would allow fabrication.

Evidence of character:

According to section 53 and 54 of the Act, in criminal proceedings the fact that the person is of a good character is relevant and admissible whereas the fact that the accused person has a bad character is irrelevant unless evidence has been given that he has a good character in which case it becomes relevant.

Admissibility is always decided by the judge and all relevant evidence is potentially admissible, subject to common law and statutory rules on exclusion.

Exclusion of unfair evidence:

Even where evidence is admissible, it may be excluded in certain circumstances under the court's common law powers and more frequently under section 78 of the Police and Criminal Evidence Act 1984 (PACE 1984). Exclusion will often be related to the way the evidence has been obtained.

The court may exclude evidence under PACE 1984, s.78 where, having regard to all the circumstances, including circumstances where the evidence was obtained illegally, improperly or unfairly, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. This only applies to prosecution evidence.

An application to exclude evidence may be based on a submission that the evidence has been obtained in circumstances where there has been a significant and substantial breach of the PACE Codes of Practice. Even where there are such breaches, exclusion will only be ordered where the breach affects the fairness of the proceedings. The discretion to exclude must be based on the particular circumstances of the case and the judge's assessment of the adverse effect on the fairness of the proceedings.


A confession is broadly defined in the PACE 1984, s 82(1) as any statement which is wholly or partly adverse to the person who made it.

There is no requirement that the confession must be made to someone in authority such as a police officer and PACE 1984 provides that the 'statement' can be made by 'words or otherwise'.

A confession may be wholly or partly adverse to the maker and is referred to as a mixed statement because it is partly a confession and partly exculpatory or self-serving. Where this is the case the court will admit the whole statement so that the prosecution cannot rely on the incriminating parts, whilst excluding those parts favourable to the defendant.

Under PACE 1984, s.76, a confession may be admissible in criminal proceedings if it is relevant to any matter in issue in the proceedings and it does not fall within a category of evidence which must be specifically excluded by the court. PACE 1984, s 76 provides that a confession must be excluded (even if it is true) if:
  1. it is represented to the court that the confession was obtained by:
  2. oppression
  3. as a result of 'anything said or done' which was likely in the 'circumstances existing at the time' to render the confession unreliable, or
  4. except to the extent that the prosecution proves beyond reasonable doubt that the confession was not so obtained
  5. the court of its own motion requires proof that the confession was not so obtained
The prosecution do not need to prove the admissibility of a confession unless the defence represent to the court that it is inadmissible by virtue of PACE 1984, s 76.

Hearsay evidence:

Hearsay is a statement made other than in the present court proceedings which is relied on for the truth of its contents rather than for some other purpose. The maker of the statement must have intended to cause someone either to believe the facts stated or to act on the basis that the facts were as stated. It is very important to remember that hearsay evidence has not been given on oath nor tested by cross-examination.

If a piece of evidence is classified as hearsay it is only admissible if it can pass through one or more of four statutory gateways set out in Criminal Justice Act 2003 (CJA 2003).

These are:
  • it falls within a statutory provision of CJA 2003
  • if the common law exceptions contained in CJA 2003 apply
  • if the parties agree
  • if it is in the interests of justice

The court has a general discretion to exclude hearsay evidence where the case for admitting it is substantially outweighed by the case for excluding it.

Evidence of character:

Evidence of bad character is evidence of, or a disposition towards, an offence (this includes convictions and cautions) or other misconduct for which the defendant has not been prosecuted, other than evidence relating to the offence in question.

If the evidence of misconduct falls within the statutory definition of 'bad character', it can only be admitted if one or more of the gateways of admissibility under CJA 2003 applies. If the evidence falls outside the definition, the statutory gateways do not apply and the evidence will be admissible as of right, subject to relevance.

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