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evidence act - preliminary concepts

In Rabindra Kumar Dey vs State Of Orissa : 1977 AIR 170, 1977 SCR (1) 439, (Also see: Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, [1960] 3 S.C.R. 319. 324 ), three principles of criminal jurisprudence which are well settled are as under:

(i) that the onus ties affirmatively on the

prosecution to prove its case beyond reasonable

doubt and it cannot derive any benefit from weak-

ness or falsity of the defence version while proving its case;

(ii) that in a criminal trial the accused must

be presumed to be innocent until he is proved to be

guilty; and

(iii) that the onus of the prosecution never


Similarly, the Hon’ble Delhi High Court in the case of Sunil Kumar Sharma vs State (Cbi): 139 (2007) DLT 407 - , it was observed that three cardinal principles of criminal jurisprudence are well settled and they are as follows: i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defense version while proving its case; ii) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and iii) that the onus of the prosecution shifts.


The law laid down by the Supreme Court in Sait Taraji Khimechand VS. Yelamarti Satvam is :- 'The mere marking of an exhibit does not dispense with the proof of docments'

In Baldeo Sahai VS. Ram Chander & Ors., Air 1931 Lahore 546 it was said :- "There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents , proved and formally tendered in evidence. It is at this later stage that the Court has to decide whether they should be admitted or rejected. If they are admitted and proved then the seal of the Court is put on them giving certain details laid down by law, otherwise the documents are resumed to the party who produced them with an endorsement thereon to that effect."

(A reading of the report shows that it was the practice of the Court to endorse the documents soon on their filing which practice was deprecated and hence slopped. The word "proved" has been used by the Division Bench in the sense of 'proposed to be proved' as is clear from its having been used Along with the word 'tendered' or "admitted" in evidence. The word proved has been loosely used for describing the stage after filing of the documents, when the Court would decide only whether they should be admitted or rejected. The Division Bench cannot be read as holding that the document is not to be endorsed with an Exhibit number unless and until proved. The stages of tendering/admitting/rejecting in evidence and holding a document proved - are two distinct and different stages, not one. They are respectively the second and third stages.)

Delhi High Court

Sudir Engineering Company vs Nitco Roadways Ltd. on 23 March, 1995

Admission of a document in evidence is not to be confused with proof of a document.

When the Court is called upon to examine the admissibility of a document it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the case, each lime a document was placed before it for being exhibited and form an opinion if it was proved before marking it as an exhibit.

The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was the document before the witness when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering while was the document to which the witness was referring to which deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit.

This makes the position of law clear. Any practice contrary to the above said statement of law has no sanctity and cannot be permitted to prevail.

Some illustrative different forms of evidence : -

Oral Evidence – Section 60 of the Indian Evidence Act, 1872 endorsed the arrangement of recording oral evidence. Every one of those explanations which the court allows or anticipates that the observers should make in his essence with respect to the reality of the realities are called Oral Evidence. Oral Evidence is that evidence which the observer has by and by observed or heard. Oral evidence should consistently be immediate or positive. Evidence is immediate when it goes directly to set up the primary truth in issue.

Documentary Evidence – Section 3 of The Indian Evidence Act says that every one of those archives which are introduced in the court for examination such records are called narrative evidences. In a case like this it is the narrative evidence that would show the genuine disposition of the gatherings and their cognizance with respect to the custom is a higher priority than any oral evidence.

Primary Evidence – Section 62 of The Indian Evidence Act says Primary Evidence is the Top-Most class of evidence. It is that proof which in any conceivable condition gives the crucial clue in a contested truth and builds up through narrative evidence on the creation of a unique record for assessment by the court. It implies the report itself created for the assessment of the court. In Lucas v. Williams Privy Council held “Essential Evidence will be evidence which the law needs to be given first and optional evidence is the evidence which might be given without that better evidence when an appropriate clarification of its nonappearance has been given.”

Secondary Evidence – Section 63 says Secondary Evidence is the substandard evidence. It is evidence that possesses an auxiliary position. It is such evidence that on the introduction of which it is felt that better evidence yet stays than be created. It is the evidence which is created without the essential evidence hence it is known as optional evidence. In the event that instead of essential evidence optional evidence is conceded with no protest at the correct time then the gatherings are blocked from bringing up the issue that the report has not been demonstrated by essential evidence however by auxiliary evidence. Yet, where there is no auxiliary evidence as considered by Section 66 of the Evidence Act then the record can’t be said to have been demonstrated either by essential evidence or by optional evidence.”

Real Evidence – Real Evidence implies genuine or material evidence. Genuine evidence of a reality is brought to the information on the court by assessment of a physical article and not by data got from an observer or a record. Individual evidence is what is managed by human operators, either in method of exposure or by intentional sign. For instance, Contempt Of Court, Conduct of the observer, conduct of the gatherings, the nearby examination by the court. It can likewise be called as the most agreeable observer.

Hearsay Evidence – Hearsay Evidence is powerless evidence. It is just the announced evidence of an observer which he has not seen either heard. At some point it suggests the adage of something which an individual has heard others state.

In Lim Yam Yong v. Lam Choon and Co. The Hon’ble Bombay High Court declared “Prattle Evidence which should have been dismissed as immaterial doesn’t get allowable as against a gathering only on the grounds that his committee neglects to take protest when the evidence is offered.” So at long last we can affirm that Hearsay Evidence is that evidence which the observer has neither by and by observed or heard, nor has he seen through his faculties and has come to think about it through some third individual. There is no bar to get gossip evidence gave it has sensible nexus and credibility. When a bit of evidence is with the end goal that there is no at first sight confirmation of its validity, it would be generally risky to follow up on it. Gossip evidence being evidence of that type has consequently, to be avoided whether the situation where its utilization comes in for question is represented by the Evidence Act.

Judicial Evidence – Evidence got by official courtroom in proof or disproof of realities before them is called legal evidence. The admission made by the denounced in the court is likewise remembered for legal evidence. Articulations of witnesses and narrative evidence and realities for the assessment by the court are additionally Judicial Evidence.

Non-Judicial Evidence – Any admission made by the blamed external the court within the sight of any individual or the affirmation of a gathering are called Non-Judicial Evidence, whenever demonstrated in the court as Judicial Evidence.

Direct Evidence – Evidence is either immediate or circuitous. Direct Evidence is that evidence which is significant for the choice of the fact in issue. The primary certainty when it is introduced by witnesses, things and witnesses is immediate, evidence whereby principle realities might be demonstrated or set up that is the evidence of individual who had really observed the wrongdoing being submitted and has depicted the offense. We need scarcely bring up that in the representation given by us, the evidence of the observer in Court is immediate evidence rather than declaration to a reality proposing blame. The announcement before the police just is called incidental evidence of, complicity and not immediate evidence in the severe sense.

Circumstantial Evidence or Indirect Evidence – There is no contrast between conditional evidence and circuitous evidence. Fortuitous Evidence endeavors to demonstrate current realities in issue by giving different realities and bears an example concerning its reality. It is what identifies with a progression of different realities than the reality in issue yet by experience have been found so connected with the reality in issue in connection of circumstances and logical results that it prompts an agreeable end.

In Hanumant v. State of Madhya Pradesh AIR 1952 SC 343, , The Hon’ble Supreme Court Observed, “In managing fortuitous evidence there is consistently the threat that doubt may replace legitimate proof. It is well to recall that in situations where the evidence is of an incidental sort the conditions from which the finish of blame is to be drawn ought to in the main occurrence, be completely settled and the real factors so settled ought to be steady just with the theory of the blame of the charged. At the end of the day, there can be a chain of evidence so far complete as not to leave any sensible ground for an end predictable with the guiltlessness of the blamed and it must be, for example, to show that inside all human likelihood the demonstration probably been finished by the charged.”

Supreme Court of India

Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.


A witness in a criminal trial plays a pivotal role in a determining the fate of

the case. The word "witness" has been defined nowhere in the Criminal Procedure

Code. A witness may be defined as one who gives evidence in a case, an indifferent

person to each party, sworn to speak the truth, the whole truth and nothing but the


According to Black’s Law Dictionary ,“Witness is one who sees, knows or

vouches for something or one who gives testimony, under oath or affirmation in

person or by oral or written deposition, or by Affidavit".

According to Bentham, "Witnesses are the eyes and ears of justice”

Affidavit not evidence unless law allows it : -

An affidavit can be termed to be an “evidence” within the ambit of Section 3 only in those cases where the same is filed at the instance or under the direction of the Court or law specifically permits for proof of anything by affidavit. Thus, the filing of an affidavit or one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court.

Reliance was placed on Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, wherein the Supreme Court had held that affidavit can be relied upon when the deponent is available for cross-examination in terms of Order 18 Rule 4 CPC. The High Court held that: “Thus, it is now well settled that affidavit is not evidence within the meaning of Section 3 of the Evidence Act unless an opportunity to effectively cross-examine to the person(s) examined is given to another side as provided in Order 18 Rule 4(2) of the CPC.”

Witness can be further divided into following kinds-

Child Witness - A child witness, if found competent to depose , to the facts is reliable one

such evidence could be the basis of conviction. In other words, even in the absence

of oath , the evidence of a child witness can be considered U/s 118 Indian Evidence

Act provided that such witness is able to understand the questions . The evidence of

child witness and credibility thereof , would depend upon the circumstances of each

case. For every reliable witness it is his capacity to understand and explain what he

wants to express. Testimony of a child is also reliable, if he easily understands

questions and gives rational replies to each such questions. Testimony of child

witness should be accepted only after great caution and circumspection. When a

witness is a person of tender years or extreme old age or a person alert to test his

competency. Similarly where a witness is a child, court should be alert of the need,

to decide, whether oath can be administered. Ordinarily, this satisfaction is to be

arrived at, by preliminary examination of the witness by the court. However, it does not mean that in the absence of preliminary examination, the evidence becomes

inadmissible. Since the general rule is in favour of the competency and satisfaction,

if necessary, it can be arrived at in the course of evidence.

In State of Madhya Pradesh V. Ramesh & Anr,2011 (3) SCALE 619 has

examined the law relating to deposition by child witness. While examining the law ,

the court emphasized that the deposition of a child witness may require

corroboration, but in case his deposition inspires the confidence of the court and

there is no embellishment or improvement therein, the court may rely upon his

evidence. If there is evidence on record to show that child has been tutored, then the

court can reject his statement partly or fully.

Eye Witness :-

Eye witness is a direct witness who observed the event. He must not be a

stock witness. Eye witness must be capable of adequate vision and there must be

light adequate enough to see and identify the person involved in the event. Eye

witness states that he can see the happening which are proximate and not distant

and that he is capable of seeking and understanding the happenings distinctly and

that there were no objects obstructing the vision. When witness does not speak of the

event but only about the circumstance leadings to the event or happening occurring

immediately after, he need not be created as an eye witness. The Criminal Justice

System realize heavily on eyewitness to determine the facts surrounding criminal

events. An eye witness, who has no motive to lie is a powerful form of evidence for

jurors, especially if the eyewitness appears to be highly confident about his or her

reconciliation. In the absence of definite proof to the contrary, the eyewitness

account is generally accepted by police, prosecutor, judge and jurors.

An eyewitness is one, who saw the act, fact or transaction to which he

testifies. A witness is able to provide graphic account of the attack on the deceased

can be accepted as eye witness.

The evidence of witness will be assessed by its worth. If there are

contradictions in the evidence, and by, such contradictions, the veracity of the

evidence is effected, it can be a ground for the court to reject the evidence of such

witness, even if he has spoken both falsehood and truth in a particular case. If the

truth in a particular case, is separated from the falsehood, law permits the court to

act on that part of the evidence which is truthful, separable from falsehood spoken

by the witness.

The appreciation of the evidence of eye witness depends upon : -

- The accuracy of the witness’s original observation of the

events which he described, and

- The correctness and extent of that he remember and his


Hostile Witness

As a common law practice, it means the “contrivance of artful witnesses”

who willfully by hostile evidence “ruin the case” of party calling such witness. A

hostile witness is not necessarily a false witness. Common law , laid down certain

peculiarities of a hostile witness, such as ‘not deserious of telling the truth at the

instance of the party calling him’ or the existence of a hostile animus to the party

calling such a witness.

The courts exercising its discretion under Section 154 of IEA, may allow a

person who has called witness to ask questions that can be put to him by the

counsel in cross examination. The Evidence given by the witness can be relied upon,

if it is relevant to determine the guilt of the accused. The Evidence of the hostile witness cannot be discarded as the relevant fact of the statement is admissible.

The Court remains alert at the time of any undue

influence over the course of trial and he has not to wait for trial to end but

intervene. The court held that the corroborated part of evidence of hostile witness

regarding the commission of offence is admissible. It has no justification to reject

his evidence as a whole. The Credibility of Hostile witness can form the basis of

conviction.. It includes the fact that he is willing to go back upon previous

statements made by him. A witness's primary allegiance is to the truth and not to

the party calling him.


1.Absence of awareness

Witness protection is required for earlier disposal of cases. Witnesses were

usually threatened or injured or murdered before being able to give testimony in the

Court, as there is no law for their security. Therefore, witnesses are deprived of any

protection from threat.

2. Right to bail

Right to bail should be denied by the state whenever there is a threat to a

witness or a reasonable apprehension. The accused having knowledge that there is a

witness to his act will try to eliminate him so that the procedure does not implicate

him .

3. Insufficient Remuneration

Witnesses who appear in the court have a risk to their life and their families

but are not given the reasonable expenses and remuneration for participating in the

criminal courts.

4. Absence of Facilities

Facilities provided to witnesses are minimum and insufficient. There are no

basic amenities provided to them which could be helpful to them, during their stay

in the court, before hearing.

5. Regular adjournment

Cases are adjourned repeatedly to discourage the witness so that he

ultimately gives up. Miscarriage of justice arises when the adjournments are held

without any reason.

Witnesses repeatedly, come to the courts from far distances. Court remains

alert, so that any undue influence over the courses of trial is checked and nipped in

the bud at an appropriate stage only. The court does not outright by reject the

evidence of a hostile witness but subject it to be a close scrutiny. Therefore, the

courts have accepted the fact that evidence brings consistency to the case

Related witness:

Any person appearing as a witness either on behalf of the prosecution or defense is

related to the party summoning him is addressed as a related witness.

Credibility of the Related witnesses:

The testimony of relative witness must be examined with caution. It is more

often than not that a relation, would not conceal the actual culprits and make

allegation against an innocent person. Foundation has to be laid if plea of false

implication is made. In such case the correct, perspective is to adopt a careful

approach and analyze the evidence to find out whether it is cogent and credible.

In Raja Gounder V. State of Tamil Nadu

The Hon’ble court stated that under 302 IPC read with Sec 3 IEA in the

murder case, where there were no independent witnesses. Conviction on basis of

related witness was upheld, as the dispute was between brothers over a piece of

land. The dispute existed in between the family. No independent witnesses were

available. Incident witnessed by the wife of the deceased and her evidence is

credible, as she would be the last person to involve appellants who are her brother in-law.

Every witness, who is related to the deceased cannot be said to be an

interested witness, who will depose falsely to implicate the accused. Statement of

every related witness cannot as a matter of rule be rejected by the courts.

Evidence of close relatives cannot be excluded , solely on the ground, that they are

interested witnesses. It is the duty of the court to scrutinize the evidence of such

witnesses very carefully and if there is any doubt as regards there trustworthiness,

the court may discard their evidence.

Ordinarily, a close relative would be the last person to screen the real culprit

and falsely implicate an innocent person. Hence, the mere fact of relationship

cannot be a ground for rejecting the testimony of the witness. Credibility of a witness is not effected by Relationship .When the statement

of witness who are parties known to the affected party, is credible, reliable, trust

worthy, admissible in accordance with the law and corroborated by other witnesses