Law of Evidence

Evidence
• Section 5 : Evidence may be given of facts in issue and relevant
facts.- Evidence may be given in any suit or proceeding of the
existence of non-existence of every fact in issue and of such other
facts as are hereinafter declared to be relevant, and of no others.
FACT In Issue / Factum Probandum
• Sec 3 [Fact in Issue] : The expression "facts in issue" means and
includes-- any fact from which, either by itself or in connection with
other facts, the existence, non-existence, nature or extent of any
right, liability, or disability, asserted or denied in any suit or
proceeding, necessarily follows.
Relevancy[Factum Probans]
• Consider : On a spring day, you take your pet dog outside to the patio behind your house. The
backyard is fenced, though there is a gate allowing access to and from an alley behind the yard.
One day, about half hour after taking the dog outside, you look back through the window and
notice that the dog is missing. You now set out to determine what happened to the dog. Walking
around, you take notice of several facts.
• The gate leading from the backyard to the alley is open.
• You did not hear any unusual barking or other sounds from the backyard.
• You have taken the dog out many times, and the dog had never tried to escape.
• A few moments before you looked out of the window you heard and unfamiliar voice stating
“That’s the dog”.
• After you took the dog out you began reading Chomsky, though you normally prefer reading
fiction.
• The year was a leap year.
Relevancy
• 1,2,3,4 matter cause they provide you some clue.
• 1,4 suggest possibility of an intruder.
• 3 increases the probability of an intruder taking the bird and reduces
the probability that the dog ran away.
• 2 undercuts or reduces the probability of the intruder.[ atleast
probability of an unfamiliar intruder]
• 5,6 make no difference.
• Relevancy means : Belief in one fact helps the court to come to a
conclusion upon existence of another fact.
Fundamental Rules of Evidence
• Facts with RATIONAL PROBATIVE VALUE.(evidence which is
sufficiently useful to prove something important in a trial)
• All facts having rational probative value are admissible unless
excluded by a positive rule.
Evidence
• How is the word evidence used in common parlance
• Equivalent to Relevant [Eg : presence of a person near a crime scene]
• Equivalent to Proof [Eg: A stolen property found with a person. ]
• Equivalent to Material basis to come to conclusion about existence or non-
existence of a disputed fact.

• Sec 3 of IEA-1872 : Evidence means and includes :

• All statements which the court permits or requires to be made before it by witnesses, in
relation to matters of facts under inquiry – such statements are called ORAL
EVIDENCE.
• All documents produced for the inspection of the court – called DOCUMENTARY
EVIDENCE.
• Is this definition extensive ?
• Material evidence like photos, weapon, clothes not included.
• Tape Recorder ? Dog Sniffing ?
Court
• “In order to constitute a court a States Sovereign judicical powers
must be conferred on it by a statue for deciding a dispute in the
judicial manner so as to decide the rights of thee parties in a
definitive judgement.” [Munna Lal v. State of UP.] [AIR 1991 All
189].
• JUDICIAL Manners:
• To be heard in support of their claim
• To adduce evidence in proof of it.
• To decide the matter on consideration of evidence in accordance of
law.
Union Of India vs T. R. Varma on 18 September, 1957:

• Whether tribunal would constitute or institutional enquiry be bound

my IEA?
• The law only requires that tribunals should observe rules of natural
justice such as that a party should have the opportunity of adducing all
relevant evidence on which he relies, that the evidence of the opponent
should be taken in his presence and that he should be given the
opportunity of cross-examining the witnesses examined by that party,
and that no materials should be relied on against him without his being
given an opportunity of explaining them. If these rules are satisfied
then the enquiry is not open to attack on the ground that the procedure
laid down in the IEA for taking evidence was not strictly followed.
Classification of Evidence
• Best Evidence:
• Oral Evidence: By only that person who perceived something by that sense by which it was capable of
perception.
• Documentary Evidence: Ordinarily the original has to be produced.

• Sec 60. Oral evidence must be direct. Oral evidence must, in all cases whatever, be direct;
that is to say--
• if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
• if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
• if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the
evidence of a witness who says he perceived it by that sense or
• in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds.”
Sec 64: Proof of documents by primary evidence. Documents must be proved by primary
evidence except in the cases hereinafter mentioned.
Hearsay Evidence

• Why is hearsay evidence not received by the court?

• Truth is diluted; person giving the evidence is does not own
responsibility; it can vitiate and prolong the trail, with each party
getting numerous witnesses.
Documentary Evidence
• All documents introduced for inspection in the court.
• Suppose a letter is produced before the court written by A, stating
that “B was killed by A”.

• What questions would you ask if relying on documentary evidence?

• Is the document genuine?
• What are the contents of the document?[primary or secondary evidence]
• Are the statements in the document true?
Documentary Evidence
• Sec 61: Proof of contents of documents. The contents of documents
may be proved either by primary or by secondary evidence.
• Primary evidence. Primary evidence means the document itself
produced for the inspection of the Court.
• Explanation 1.--Where a document is executed in several parts, each
part is primary evidence of the document: Where a document is
executed in counterpart, each counterpart being executed by one or
some of the parties only, each counterpart is primary evidence as
against the parties executing it.
• Secondary evidence. 63: Secondary evidence means and includes--
(1) certified copies given under the provisions hereinafter contained;
• copies made from the original by mechanical processes which in
themselves insure the accuracy of the copy, and copies compared
with such copies;
• copies made from or compared with the original;
• counterparts of documents as against the parties who did not execute
them;
• oral accounts of the contents of a document given by some person
who has himself seen it.
Circumstantial and Corroborative Evidence
• Circumstances from which an inference can be drawn about the fact in issue or
relevant fact, is called Circumstantial evidence.
• Corroborative Evidence : Evidence which substantiates or supports Substantive
evidence[Fact in issue and relevant fact]
• [Complaint corroborates the evidence of a eye witness.] {Sec 156 & 157}
Sec 156 .-When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may
be questioned as to any other circumstances which he observed at or near to the time or place at which
such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would
corroborate the testimony of the witness as to the relevant fact which he testifies.
Sec 157: Former statements of witness may be proved to corroborate later testimony as to same
fact.-In order to corroborate the testimony of a witness, any former statement made by such
witness relating to the same fact at or about the time when the fact took place, or before any
authority legally competent to investigate the fact, may be proved.
Circumstantial Evidence
• Allows a fact in issue to be proved inferentially rather than directly.
• If two views are possible of an evidence adduced in a case of circumstantial evidence, one
pointing to the guilt and other pointing to his innocence; the court should adopt the view in
favor of the accused.
• Test for decision to rest on Circumstantial evidence:[]
• 1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and
firmly established;
• 2. those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
• 3. the circumstances, taken cumulatively; should from a chain so complete that there is no escape from
the conclusion that within all human probability the crime was committed by the accused and none else,
and
• 4. the circumstantial evidence in order to sustain conviction must be complete and incapable of
explanation of any other hypothesis than that of the guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but should be inconsistent with his innocence. [Ashok
Kumar Chatterjee vs State Of M.P. on 2 May, 1989][Munshi Prasad v. State of Bihar]
Res Gestae
• Sec 6 : Relevancy of facts forming part of same transaction.-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 or at different times and places.
• Transaction :”A group of facts so connected together as to be
referred to by a single legal name, as a crime, a contract, a wrong,
or any other subject of enquiry which may be in issue.”[Digest of the
Law of Evidence, Sir James Stephan].
• Transactions includes : Physical acts & Words accompanying physical
acts whether spoken by the person doing such acts or to whom they
where done.
Illustrations
• A is accused of beating B. [All spontaneous declarations and
statements by A or B or any other bystanders are relevant and form
part of the same transaction].
• Suppose C is in a room next to where the crime took place hears a
maid cry out that A is killing B. C rushes out and sees B lying
unconscious. [What is C here?]
• Letters forming part of the same transaction. [Libellous
letter/Defamation]
• Goods delivery : Each intermediate delivery is a relevant fact.
• Section 6 of the Evidence Act is an exception to the general rule
where under the hearsay evidence becomes admissible.
• But for bringing such hearsay evidence within the provisions of
Section 6, what is required to be established is that it must be almost
contemporaneous with the acts and there should not be an
interval which would allow fabrication.
Hearsay Exception
• Wigmores Evidence Act reads thus: Under the present Exception [to
hearsay] an utterance is by hypothesis, offered as an assertion to
evidence the fact asserted (for example that a car-brake was set or
not set), and the only condition is that it shall have been made
spontaneously, i.e. as the natural effusion of a state of excitement.
Now this state of excitement may well continue to exist after the
exciting fact has ended. The declaration, therefore, may be
admissible even though subsequent to the occurrence, provided it is
near enough in time to allow the assumption that the exciting
influence continued.
Summarizing Res Gestae
• 1. The declarations (oral or written) must relate to the act which is in issue or
relevant thereto; they are not admissible merely because they accompany an act.
Moreover the declarations must relate to and explain the fact they accompany, and
not independent facts previous or subsequent thereto unless such facts are part of a
transaction which is continuous.
• 2. The declarations must be substantially contemporaneous with the fact and not
merely the narrative of a past.
• 3. The declaration and the act may be by the same person, or they may be by
different persons, e.g., the declarations of the victim, assailant and bystanders. In
conspiracy, riot declarations of all concerned in the common object are admissible.
• 4. Though admissible to explain or corroborate, or to understand the significance
of the act, declarations are not evidence of the truth of the matters stated.
Sukhar vs State Of Uttar Pradesh on 1
October, 1999.
• PW2: stated : It was one year & 11 months ago at 7 7.30 A.M. while
I had gone to attend the call of nature when I heard the sound of
firing and I went there and saw Nakkal lying on the ground near the
sugar cane of Kallan after being hit by a bullet. I did not see him
being hit by the bullet. When I asked him Nakkal told me that his
nephew Sukkar hit him with the bullet.
• The essence of the doctrine is that a fact which, though not in issue,
is so connected with the fact in issue "as to form part of the same
transaction" becomes relevant by itself
Rattan Singh V. State of H.P
• The act of the assailant intruding into the courtyard during dead of
the night, victim`s identification of the assailant, her pronouncement
that appellant was standing with a gun and his firing the gun at her,
are all circumstances so intertwined with each other by proximity of
time and space that the statement of the deceased became part of the
same transaction. Hence it is admissible under Section 6 of the
Evidence Act.
Gentela Vijayavardhan Rao And Anr vs
State Of Andhra Pradesh.
• The judicial magistrate who recorded the dying declaration took down the
statements of PW-5 and PW-7 also as dying declarations thinking that they
too might succumb to the burns.
• But those two statements (Ext. P-71 and Ext. P-75, respectively) were
relied on by the High Court on the premise that "it is relevant and
admissible as res gestae under Section 6 of the Evidence Act.“
• Here was some appreciable interval between the acts of incendiarism
indulged in by the miscreants and the judicial magistrate recording
statements of the victims- That interval, therefore, blocks the statement
from acquiring legitimacy under Section 6 of the Evidence Act. High Court
was, therefore- in error in treating Exts. P-71 and P-75 as forming part of
res gestae evidence.
• In R. v. Lillyman, (1896) 2 O.B. 167 a statement made by a raped
woman after the ravishment was held to be not part of the res gestae
on account of some interval of time lapsing between making the
statement and the act of rape.
Summarizing.
• Spontaneity and Immediacy.
• Statement must have been made contemporaneous with the acts
which constitute the offence or at least immediately thereafter.(fact
in issue)
• There should be no Interval for fabrication.
Section 7
• Facts which are the occasion (opportunity), cause, or effect, immediately or otherwise, of
relevant facts, or facts in issue, or which constitute the state of things under which they
happened, or which afforded an opportunity for their occurrence or transaction, are relevant.
• Illustrations
• The question is, whether A robbed B.
• The facts that, shortly before the robbery, B went to a fair with money in his possession, and
that he showed it or mentioned the fact that he had it, to third persons, are relevant.
The question is whether A murdered B.
• Marks on the ground, produced by a struggle at or near the place where the murder was
committed, are relevant facts.
• The question is whether A Poisoned B.
• The state of B’s health before the symptoms ascribed to poison, and habits of B, known to A,
which afforded an opportunity for the administration of poison, are relevant facts.
Sec 9

• Facts necessary to explain or introduce a fact in issue or relevant fact, or

which support or rebut an inference suggested by a fact in issue or
relevant fact, or which establish the identity of any thing or person
whose identity is relevant, or fix the time or place at which any fact issue
or relevant fact happened, or which show the relation of parties by whom
any such fact was transacted, are relevant in so far as they are necessary
for that purpose.

• Only facts explanatory of the fact in issue or relevant facts that would be
relevant under Sec 9.
Introduce a Fact
• A sues B for a libel imputing disgraceful conduct to A; B affirms
that the matter alleged to be libelous is true.
• The position and relations of the parties at the time when the libel
was published may be relevant facts as introductory to the facts in
issue.
• The particulars of a dispute between A and B about a matter
unconnected with the alleged libel are irrelevant though the fact that
there was a dispute may be relevant it is affected the relations
between A and B.
Relevant Fact

• A is accused of a crime.
• The fact that, soon after the commission of the crime, A absconded
from his house, is relevant.
• The fact that at the time when he left home he had sudden and urgent
business at the place to which he went is relevant, as tending to
explain the fact that he left home suddenly.
• The details of the business on which he left are not relevant, except
in so far as they are necessary to show that the business was sudden
and urgent.
Relationship Between Parties
• The question is, whether a given document is the will of A.
• The state of A’s property and of his family at the date of the alleged
will may be relevant facts.
Test Identity
• Identity of Anything: A bullet recovered from the body and the gun
recovered from A. That the bullet was fired by that particular
gun/pistol should be established as one of the circumstances.
• Identify of the person should be established.
• Dr. Crippen case : The wife was mutilated, but there was a scar in
the abdominal region establishing that the body did belong to Mrs.
Crippen.
Test Identification Parade.
• One of the methods of establishing identities of a person as a doer of
a particular act is TI-Parade.
• Main Purpose :To confirm the identity of the accused and help in
investigation.
• To corroborate identification in the court.
TI-Parade
• Should be done in presence of a Judicial Office (Section 162 CRPC
evidence of the statement made to the police during investigation
cannot be given, generally).
• Identification in the Court : Testimonial evidence is the Best
Evidence.
• Test Identification: Corroborates the testimonial. (Not substantive
evidence).
• When is TI-Parade not required?
• No Need of TI Parade (State of H.P. v. Prem Chand; when the
identity of the accused is known.)(When arrested on spot)
• Witness did not identity the person in the court. Is TI-Parade
sufficient?
Daya Singh v. State of Haryana, AIR 2001 SC 1188

• First is to enable the witnesses to satisfy themselves that the

prisoner whom they suspect is really the one who was seen by them
in connection with the commission of the crime.
• Second is to satisfy the investigating authorities that the suspect is
the real personwhom the witnesses had seen in connection with the
said occurrence.