TYPES OF EVIDENCE (Part 2) by MAHEK UPADHAYAY @LexCliq

The classification of evidences is done on the basis of their form in which they are presented or from the manner they  are obtained. Based on their form, evidences are classified as Oral or Documentary Evidences and to prove the content of Documentary Evidences -Primary or Secondary Evidences are provided. But, on the basis of the manner they are obtained, evidences are of following types:

REAL EVIDENCE

Real Evidence Real evidence, often called physical evidence, consists of material items involved in a case, objects and things the Court can physically hold and inspect. Examples of real evidence include fingerprints, blood samples, DNA, a knife, a gun, and other physical objects. Real evidence is usually admitted because it tends to prove or disprove an issue of fact in a trial. Real evidence is usually involved in an event central to the case, such as a murder weapon, clothing of a victim, narcotics or fingerprints. In order to be used at trial, real evidence must be relevant, material, and authentic. The process whereby a lawyer establishes these basic prerequisites is called laying a foundation, accomplished by calling witnesses who establish the item’s chain of custody.

HEARSAY EVIDENCE

Hearsay Evidence means the statement of witness not based on his personal knowledge but on what he heard from others It is not direct evidence. Evidence that is not direct is what he heard from a third party who is not himself called as witness. The evidence of such witness is inadmissible to prove the truth of the fact stated.

The reasons why hearsay evidence is not received as relevant evidence are:

(a) The person giving such evidence does not feel any responsibility. The law requires all evidence to be given under personal responsibility, i.e., every witness must give his testimony, under such circumstance, as expose him to all the penalties of falsehood. If the person giving hearsay evidence is cornered, he has a line of escape by saying “I do not know, but so and so told me”,

(b) Truth is diluted and diminished with each repetition and

(c) If permitted, gives ample scope for playing fraud by saying “someone told me that………..”. It would be attaching importance to false rumours flying from one foul lip to another. Thus statement of witnesses based on information received from others is inadmissible.

Exceptions to hearsay:

Res gestae under Section 6 of Indian Evidence Act : The statement of a person may be proved through another person who appears as a witness if the statement is a part of the transaction issues.

The doctrine of Res gestae is portrayed under section 6 of the Indian Evidence Act, 1872 in the following words:
Facts which though not in issue are so connected with the facts in issue so as to form a part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places”

These facts become relevant due to their association with main transaction which itself is a relevant fact in the nature of fact in issue. Circumstantial facts are admitted as forming a part of res gestae i.e. it being a part of original proof of what has taken place. Statements may also accompany physical happenings like gestures. Things said or acts done in course of transaction amounts to res gestae. The statements made or acts done have to be spontaneous and simultaneous to the main transaction. It has to be done or made immediately before, or during or immediately after the occurrence of the main transaction. Where time gap is enough for fabrication or concoction, then statement or act shall not fall under section 6.

DIRECT EVIDENCE

Direct evidence is evidence that will prove the point in fact without interpretation of circumstances.. It is any evidence that can show the court that something occurred without the need for the judge to make inferences or assumptions to reach a conclusion. An eyewitness who saw the accused shoot a victim would be able to provide direct evidence. Similarly, a security camera showing the accused committing a crime or a statement of confession from the accused admitting to the crime could also be considered direct evidence. Direct evidence should not be confused with the concept of direct examination, which is the initial examination and questioning of a witness at trial by the party who called that witness. And, although each witness who provides evidence could, in theory, be providing direct testimony of their own knowledge and experiences, that evidence is often not direct evidence of the offence itself.

INDIRECT or CIRCUMSTANTIAL EVIDENCE

Circumstantial evidence is an Evidence that relies on an inference to connect it to a conclusion of fact. such as a fingerprint at the scene of a crime.

Peter Murphy defines Circumstantial Evidence as “Evidence from which the desired conclusion may be drawn. The Evidence which requires the court not only to accept the evidence presented but also draw an inference from it.

Supreme Court has given the guidelines for admissibility of the Circumstantial Evidence in the matter of Bodh Raj Vs. State of Jammu and Kashmir as follows :

  • The Circumstance from where conclusion of guild is to be drawn ought to be established. The circumstances involved “must” or “should” and not “may be” established.
  • The facts, therefore, established ought to be as per the hypothesis of the guild of the accused.
  • Circumstances ought to be conclusive in nature and tendency.
  •  There should be complete sequence of proof so as to not leave any affordable ground for the conclusion in line with the innocence of the defendant and should show that the offence must have been committed by the defendant.

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