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What is Evidence?
Section 5 of the Evidence Act says," Evidence may be given in any suit or proceeding of the
existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be
The Section says that 'Evidence may be given....' But what is Evidence?
This word 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
For example we may say, the presence of an accused person near the scene of the crime just before the
crime was committed, is evidence that he may be guilty; whereas his presence after the crime was
committed, at the same place, is not evidence of the guilt of the accused. In this statement the word is used
as equivalent to relevant. Again we may say that the possession of stolen article immediately after the theft
is evidence of the fact that the person in whose possession it is found is either theft, or a receiver of stolen
property. In this statement, the word is used as equivalent to proof, which is really the effect of evidence.
But it is neither of these senses that the word is used in the Act. It is used in the third sense mentioned
above, namely, as equivalent to the material placed before the Court on the basis which the court comes to
a conclusion as to the existence or non existence of a disputed fact. It is defined in Section 3 of the Act as
bellow:
Definition
(1) All statements which the Court permits or requires to be made before it by witnesses, in
(2) All documents including electronic records produced for the inspection of the Court,
The definition of word "evidence" Under Section. 3 of Indian Evidence Act is explanatory and not
precise. It consist oral evidence and documentary evidence. Oral evidence is evidence of the fact brought to
the knowledge of the court by the verbal statement of witness, quality to speak on the point he testifies. It
includes all statements, which the court permits or requires to be made before it by witness with regard to
Documentary Evidence is evidence of the fact brought to the knowledge of the court by inspection of the
Oral evidence is verbal testimony of the witness whereas the documentary evidence is written testimony
of a witness of the document. Oral evidence is adduced, documentary evidence proved before it is admitted
as evidence.
1) Direct Evidence -
It is also known as 'positive evidence'. Evidence given by direct witness / eyewitness is called Direct
Evidence. Direct Evidence is the testimony of a witness to the existence or non existence of a fact or fact in
issue. It is evidence of fact actually perceived by a witness with one of his own senses.
Illustrations
A is tried for setting fire to the house. B deposes that he saw A setting Fire. B is eye witness. A sues B for
breach of contract C deposes that he was present at the time of agreement entered into between A and B
Circumstantial evidences is that which tends to establish fact in issue by proving another fact which though
does not itself conclusively establish that fact, affords and inference as to its existence.
1) A.C. Lagu vs State of Bombay AIR1960 SC 500, 1960 SCJ 779: The accused, in the instant case
was family doctor. He was tried for murder of is patient, a rich woman and sentenced to death on the basis
In this case Kalua was charged with the murder of the deceased by shooting him a pistol. The
A) Few days before the killing of the deceased the accused had held out a threat against him.
D) Fire-Arm Expert gave his opinion that cartridge found near the cot of the dead body was fired from pistol
produced by accused.
It was held that there could be no room for thinking in the circumstances established in this case, that
anyone else than the accused might have shot the deceased. He was convicted.
3) Real Evidence -
Real or material evidence is the evidence of fact brought to the knowledge of the Court by inspection of
physical object and not by information derived from the witness or documents, for e.g. stolen property,
weapons, etc.
4) Personal Evidence -
Personal evidence is an oral testimony of the witnesses, which is afforded by human agent by way of
5) Original Evidence -
Original evidence is that which a witness reports himself to have seen or heard through the medium of his
own senses for e.g. A says that he saw B murdered C with sword.
6) Hear-say Evidence -
It is also known as second hand or unoriginal evidence, a witness is merely reporting not what he himself
saw or heard but what he has learnt in respect of the fact through the medium of the third person. It is a
statement made by a witness of what he has been said and declared out of court by a person and not before
Illustration -
'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.
2) A statement contained or recorded in any book, document or record which is not admissible.
The hearsay witness may not be able to say correctly and completely the truth of his statement.
(General rule is that hearsay evidence is no evidence but Indian Evidence Act provides certain exceptions to
Primary evidence means the document itself produced for the inspection of the Court. (S. 62).
Illustration
A sold his house to B for 50,000/-and executes registered sale deed. In a dispute as to the title, if B
Primary evidence is considered as the best evidence since it provides proof with certainty. That is why law
insists/requires first the primary evidence. The document may be in counter parts, and then each
counterpart is regarded as primary evidence. If the document is made by uniform process like printing or
8) Secondary evidence -
Secondary evidence means inferior or substituted evidence which itself indicates the existence of more
Original source of information (Sec. 63). Secondary evidence may be given in the absence of the (better)
primary evidence if proper explanation is given for such absence. Section 65 of the Evidence Act provides for
According to Section 63 copies made and compared with the originals, or Photostat copies may be treated
as secondary evidence.
Following are the circumstances in which secondary evidence is admissible (Section 65).
1) The person in possession of the original is not within the reach of the Court.
9) Oral Evidence -
All statement which the Court permits or requires to be made before it by witnesses, in relation to matter of
All document including electronic records, produced for the inspection of the Court, such documents are
“Document”.—“Document” 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,
Illustrations
Writing is a document;
A caricature is a document.
It is evidence received by courts of justice in proof or disproof of facts, the existence of which comes in
question before them. Judicial Evidence is a species of the genus evidence and is for the most part nothing
Evidence given in the proceeding before the Magistrate or officer not in a Judicial capacity but in an
administrative one, is non Judicial evidence, e.g. evidence in proceedings u/s. 164 of Cr. P.C. i.e. recording