Introduction to Evidence

Author: Meenakshi Raj

INTRODUCTION TO EVIDENCE

The word ‘evidence’ is derived from the Latin word evident or evidere, which means “to show clearly, to discover clearly, to prove”. The law of Evidence bears the same relation to a judicial magistrate as logical to the reasoning. It is a system of rules which the Court has to follow.

1.1  DEFINITIONS

Section 3 of the Indian Evidence Act, 1872, uses the following words and expressions in a sense unless a contrary intention appears from the context:-

Court- “ Court” includes all Judges and Magistrates and all persons, except arbitrators legally authorized to take evidence. This definition is not exhaustive. To be noted is that in a trial by jury, the Court includes jury.

Fact- Law has not merely to deal with things physically but also with things that are so hidden as to be beyond physical observation, such as, a state of or condition of a person’s mind.

A Fact may be defined as-

1. Any thing, state of things, or relation of things capable of being perceived by senses.
2. Any mental condition of which any person is conscious.

Illus:- That a man heard or saw something is a fact.

Fact in Issue- 1. Any act from which either by itself or in connection with other facts, the existence, non-existence, nature or intensity of any right or liability or disability, asserted or denied in any suit or proceeding, necessarily follows.

2. Any fact asserted or denied in answer to an issue of fact recorded under CPC.

The facts that are in dispute are ‘facts in issue’. It is sometimes also called the ‘principal fact’ or ‘factum probandum’ and these are the facts which sought to be proved in order to get adjudication in his favor or which a defendant may prove to defeat the suit.

Relevant Facts- The word ‘relevant’ means that any two facts to which i is applied are so related to each other that according to the common course of events, one taken by itself or in connection with the other facts proves or renders probable the existence or non-existence of the other.

A fact is said to be relevant to another fact when the one is connected with the other in any of the ways referred to in the provisions of the Indian Evidence Act relating to the relevancy of facts.

To be noted is the fact that the section does not define the term ‘relevant’ but simply indicates when one fact becomes relevant to another.

In the case of Lakshmi v Haider, the word ‘relevant’ was held to be admissible.

Evidence-The word evidence implies the state of being evident i.e. plain, apparent, or notorious; but it is applied to that which tends to render evidence or generate proof of a fact.

It includes-

1. All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry,
2. All documents including electronic records produced for the inspection of the Court.

Illus- Where the question is whether an explosion took place before a fire occurred. The noise of the explosion and its flash are evidence of it.

Document-The term ‘ document’ refers any matter expressed or described upon any substance by means of letter, 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.

In the case of, R. v Daye, the term ‘document’ was defined as “any writing or printing capable of being made evidence, no matter on what material it may be inscribed”.

Proved- A fact is said to be ‘proved’ when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does exist.

In the case of, State of Maharashtra v Md. Yakub, it was pointed out that the word ‘proved’ does not draw any distinction between direct and circumstantial evidence.

Disproved-A fact is said to be ‘disproved’ when, after considering the matters before it, the Court either believes it to not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

Not-Proved- A fact is said to be ‘not proved’ when it is neither proved nor is disproved. This means that neither the fact is proved with certainty nor the fact is believed to exist. In other words, the man of ordinary prudence neither believes that the fact exists nor he believes that the fact does not exist.

Oral- This type of evidence means all the statements which the Court permits or requires to be made before by the witnesses in relation to the matters of fact under inquiry.

Documentary- Under Section 3, evidence can be both oral and documentary, and ‘electronic records’ can be produced as evidence.

Illus- Evidence recorded through video-conferencing.

Hearsay Evidence- The evidence is also called derivative or second-hand evidence. It is the testimony of a witness as to statements made out of court which is offered as evidence of their own truth.

Thus, A’s evidence that A heard that a murder had taken place is ‘hearsay’ evidence.

1.2. STANDARD OF DEGREE OF PROOF IN CIVIL/CRIMINAL PROCEEDINGS

No such distinction has been made in the Evidence Act with respect to the degree of proof or the possible requisite for criminals as distinguished from civil cases. However, there is a marked difference as to the effect, i.e. probative force of evidence, in civil and criminal proceedings.

• In Civil cases, a mere preponderance of probability is sufficient; whereas in Criminal cases, issues must be proved beyond any reasonable doubt.
• In Civil cases, the rule of evidence may be relaxed by consent of parties or by court’s order. E.g. proof of affidavit. In Criminal cases, the rule of evidence is not relaxed by the consent of parties or by court’s order.

In the case of Razik Ram v Jaswant Singh 1975, the court held that ‘the same evidence which may be sufficient to regard a fact as proved in a civil suit may be considered insufficient for a conviction in a criminal action’.

1.3. MAY RESUME, SHALL RESUME & CONCLUSIVE PROOF

A presumption is interference of facts drawn from other known or proved facts. There are certain aspects in which the Court can take into consideration certain facts even without calling for proof of them. When the Court presumes the existence of a fact that is known as a presumption.

A presumption is nothing but the result of human experience and reason as applied to the course of nature and the ordinary flow of life.

Illus- If A and B are found alone in suspicious circumstances, it is presumed by the law that they were not there to say their prayers and the divorce laws would take this as evidence of adultery.

A presumption is mainly of three types. The same has been defined under section 4 of the Indian Evidence Act, 1872.

These are-

1. May Presume-Whenever it is provided by the Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call it for proof of it.

These are the inferences which the mind naturally and logically draws from the given facts, irrespective of their legal effect.

In the case of Akhil Kumar v State, 1992, the Court held that, if a doctor gave an injection for determination of pregnancy which resulted in miscarriage and death of the woman, it was said that the doctor could be presumed to know the side effects of the injection, as doctors are generally informed of such effects.

2. Shall Presume- Whenever it is directed by the Act that the Court shall presume a fact,  it shall regard such fact as proved, unless and until it is disproved.

These are the arbitrary inferences which the law expressly directs the judge to draw from the particular facts. They are nothing but deductions drawn from human experiences and observation and expressed in the form of artificial rules.

3. Conclusive Proof- When one fact is declared by the Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

Illus- A child under a certain age is incapable of committing any crime. (section 92, IPC).