The word evidence
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 about the
existence or non-existence of disputed facts.
As pointed out in the Hindu Dharma Shastra, the purpose of any trial is the
desire to find out the truth. And as per Manu, the King presiding over the
tribunal shall ascertain the truth and determine the correctness of the
allegations regarding the subject of the suit, the correctness of testimonies of
the witness, the description, time and place of the transaction or incident
giving rise to the case as well as the usage of the country and pronounce a true
judgment. Hence, from then on document, witness and possession came to be
recognized as the kinds of evidence.
Al-Quran considers Justice as one of the attributes of God. And as per Muslim
law, there is no real co'ncept regarding rule of evidence nor there were any
codified laws. However, Evidence was divided under the heads of oral and
documentary in Muslim Law.
In the British era, the laws relating to evidence were finally codified.
In layman's language, the word evidence refers to the proofs produced in the
court of law in favour or against the disputed facts. The word evidence is
derived from the Latin word evidentia meaning, distinction, vivid
According to Sir Blackstone:
Evidence signifies that that demonstrates, makes clear or ascertain the reality
of the facts or points in issue either on one facet or the opposite.
According to Sir Taylor:
Law of proof suggests that through argument to prove or contradict any matter of
truth. the reality of that is submitted to judicial investigation.
As per, Indian Evidence Act, 1872:
Evidence means and includes Oral and
Documentary evidence. All statements which the Court permits or requires to be
made before it by witnesses, in relation to matters of fact under inquiry (oral
evidence) and all documents including electronic records produced for the
inspection of the Court (documentary evidence).  However, this definition,
defines evidence in a very narrow way. This definition doesn't talk about local
enquiry results, identification proceedings, etc. It just talks about two
means, i.e., the statement of the witness and documents including electronic
In broader sense it can be said that:
Evidence forms the building blocks of the
investigative process and for the final product to be built
properly, evidence must be recognized, collected, documented, protected,
validated, analysed, disclosed, and presented in a form which is acceptable to
The word evidence in connection with Law, all valid meanings, includes all
except agreement which prove disprove any fact or matter whose truthfulness is
presented for Judicial Investigation. At this stage it will be proper to keep in
mind that where a party and the other party don't get the opportunity to
cross-examine his statements to ascertain the truth then in such a condition
this party's statement is not Evidence.
Types of Evidence
Even though as per the Indian Evidence Act 1872, the definition of evidence
includes only two types of Evidence- Oral and Documentary, but there are various
ways through which evidence can be grouped together to classify as types of
1. Real and Personal Evidence
Natural Evidence is "The Evidence by which in any mind persuasion is capable of
being produced is derived from two sources: from the operation of the perceptive
or intellectual faculties of the individual himself, and from the supposed
operation of the like faculties on the part of others. This brings us to two
forms of Evidence Personal and Real.
Real Evidence (also known as Physical / Material Evidence)
When the evidence is brought to the knowledge of the court by inspection of a
physical or material object and is not derived from witness or document, then it
is called Real Evidence.
E.g., murder weapon, blood samples and fingerprints found, etc.
Personal Evidence (also known as Testimonial Evidence)
When the evidence is brought to the knowledge of the court by human agents,
either in way of disclosure or by voluntary sign, and is the oral testimony of
the witness, then it is called Personal Evidence.
E.g., Behaviour of the parties involved, the conduct of the witness, through
Local inspection by the court, etc.
A deposes that he saw B pursue C with threats. C is found killed and B's bloody
knife is found nearby. A's testimony is personal evidence; the knife is real
evidence. 'Real' technically signifies merely thing".
Direct and Indirect Evidence
I saw the original surveyor drive the particular stake in the ground.
I saw the original surveyor drive similar stakes at other corners.
The former statement proves the fact directly without relying on presumptions
whereas the later relies on presumption in order to prove a fact. This again
brings us to other two forms of evidence Direct and Indirect.
When a specific fact is established directly without providing a reason to
connect to the fact, it is known as Direct Evidence.
Indirect Evidence (also known as Circumstantial Evidence)
When the facts in issue is proved by providing other facts, that is, indirect
facts and then proving their relevance, it is known as Indirect Evidence.
A testifies that on that morning she walked to the subway and as she walked,
she saw rain falling, she felt it striking her face, and she heard it splashing
on the sidewalk. That testimony of the witness's perceptions would be direct
evidence that it rained on that morning.
A testified that it was clear as she walked to the subway, that she went into
the subway and got on the train and that while she was on the train, she saw
passengers come in at one station after another carrying wet umbrellas and
wearing wet clothes and raincoats. That testimony constitutes direct evidence of
what the witness observed. And because an inference that it was raining in the
area would flow naturally, reasonably, and logically from that direct evidence,
the witness's testimony would constitute circumstantial evidence that it was
raining in the area.
Judicially and Non-Judicial Evidence
"No confession made to a Police Officer shall be proved as against a person
accused of an offense" Section 162 of Crpc, protects the person making
statement during police investigation under duress or inducement. The Code
allows police officer to record statements of witnesses with a view to
facilitating investigation of the offence. But if such statements are made under
duress or inducement, they are rendered inadmissible in evidence because they
cannot be said to be free and fair statements made voluntarily. This is
how Judicial and Non-Judicial form of Evidence came into form.
When the evidence is received by court of justice in proof or disproof of facts
before them, it is called judicial evidence.
Any confession made by the accused outside the court in the presence of any
person or the admission of a party is called Non-Judicial Evidence. Evidence
given in the proceeding before the Magistrate or officer not in a Judicial
capacity but in an administrative one, is non-Judicial evidence.
A was convicted of murder, one of the items of evidence being a
confessional letter written by the accused and left near the dead body with the
intention of being seen by police officer. In this particular case, the letter
was not regarded as Non-Judicial evidence as, it was not confession made to a
Police Officer coming within the ban of Section 25 of the Evidence Act. The
Police Officer was not nearby when the letter was written, or knew that it was
being written. In such circumstances the letter would not be a confession to a
Police Officer even though it was addressed to the police officer.
Character and Hearsay Evidence
In Indian law as well as in common law, both character evidence and Hearsay
evidence, are considered to be weak evidence.
The term character
under Section 55 of Indian Evidence Act definition breaks
down the term into two things which is reputation and disposition, where the
former means the opinion that people, in general and the latter means the
habitual behaviour of a particular person.
As per Section 52 of the act, in civil cases, a fact pertaining to
the character of an individual is not relevant.
Whereas as per Section 53 of the act, in criminal cases a fact pertaining to
the previous good character of an individual is relevant but as per Section
54 of the act, in criminal cases a fact pertaining to the previous bad
character of an individual is not relevant
Hearsay evidence refers to evidence which the witness has neither personally
seen nor heard, nor has he perceived through his senses and has come to know
about it through some third person.
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.
A, a businessman is charged with fraud. B a witness says that he (A) is an
honest man i.e. the character is such that he can never commit fraud. Such
evidence given by B is not admissible on the ground that testimony of C is
character evidence and the case is of civil nature and has to be decided based
on the facts of the case and not the character of the parties.
Oral and Documentary Evidence
As mentioned, Section 3 of the Indian Evidence Act, 1872, Evidence
includes Oral and Documentary Evidences.
As per Section 60 and 61 of the Indian Evidence Act, 1872, All those statements
which the court permits or expects the witnesses to make in his presence
regarding the truth of the facts are called Oral Evidence.
As per Section 3 of the Indian Evidence Act, 1872, All those documents which
are presented in the court for inspection such documents are called documentary
A saw that B is hitting C. A will be an eyewitness to the crime scene and his
testimony will be that of oral evidence.
A was murdered and CCTV video showed that B murdered A. Here the CCTV video of
the murder taking place would be documentary evidence.
Primary and Secondary Evidence
Section 62 and 63 of the Indian Evidence Act defines primary and secondary
Primary Evidence is the main source of evidence. It is an original document
that is presented before the court of law for inspection.
Secondary Evidence means inferior or substituted evidence which itself
indicates the existence of more Original source of information. Secondary
evidence may be given in the absence of the (better) primary evidence if proper
explanation is given for such absence.
A sold his house to B for 50,000/-and executes registered sale deed. In a
dispute as to the title, if B produces before the court, the sale deed, it is
In case the original deed had already been admitted in the Court., then the
other evidences produced will be secondary Evidence.
Best Evidence Rule
No evidence will be admissible unless it is the best evidence that nature will
In layman's language, Best Evidence Rule
can simply be defined as:
A rule of evidence that holds an original document, photograph, recording, or
other piece of evidence is required to prove its content.
Best evidence includes the best evidence which is available to a party and
procurable under the existing situation, and all evidence falling short of such
standard, and which in its nature suggests there is better evidence of the same
fact, is secondary evidence.
It can further be stated that:
evidence of a fact is the testimony of a person who knows. For e.g., mother could testify to the date of her daughter's birth, as against an
objection that the baptismal certificate or the registry was the best
According to the Best Evidence Rule
, highest available degree
of proof must be produced which rather means that:
no evidence which is
merely substitutionary in its nature shall be received so long as original
evidence can be had and contents of document must be proved by producing
The origin of the Best Evidence Rule
has been traced to the Doctrine of Profert
the doctrine of Profert, was a rule of pleading rather
than one of evidence. Later on, after 1571, full-fledged rule of evidence
first became entirely distinguishable from the older pleading doctrine. In
around 1700, it was further stated that , the best proof that the nature of the
thing will afford is only required. Thereby giving birth to the rule of
The best evidence rule does not demand the greatest amount of evidence which can
possibly be given of any fact, but its desire is to prevent the introduction of
any evidence than the document itself. The main aim behind introduction of this
rule is to prevent fraud
The best evidence rule is also called the original document rule
, it says
that the party has to produce the original document and in case he is not able to
provide for the original document he has to account for the same. Section
91 and 92 of Indian evidence act talks about the Best Evidence Rule. Sections
91 to 100 are based upon the principle that the best evidence must always be
given, and the acceptance of the fact that no matter how good a person's memory
may be, the best evidence of the content of a document is the document itself.
The principle does not demand the largest amount of evidence – it simply
requires the best evidence and since this is documentary evidence, oral evidence
Section 91 of the Indian Evidence Act, deals with the exclusiveness of the
Documentary Evidence, that is, if the transaction has reduced to writing then
the existence of the document excludes all other evidence of the
Section 92 of the Indian Evidence Act , deals with exclusiveness of the
documentary evidence, that is when the parties have deliberately put their
agreement into writing, it is the writing, it is conclusively presumed between
them and their privies, that they intended the writing to exclude and to form a
full and final statement of their intentions and the parties or their privies
are thus forbidden by the terms of Section 92 from giving any extrinsic
evidence, to contradict, vary or explain written instruments, unless the case
falls within any of the provisions to this section.
A contract, in writing with B, for the delivery of indigo upon certain terms.
The contract mentioned the fact that B had paid A the price of other in
contracted for verbally on another occasion. Oral evidence is offered that no
payment was made for the other indigo. The evidence is admissible. – Section 91
of the act
A policy of insurance is effected on goods in ships from Calcutta to London.
The goods are shipped in a particular ship which is lost. The fact that that
particular ship was orally excepted from the policy, cannot be proved. -
Section 92 of the act.
Section 91 of the act mainly forbids proving of the contents of a writing
otherwise than by writing itself and merely lays down the best evidence
rule. Section 91 and 92 in effect supplement each other. First, the
documents are to be proved in the court according to section 91 and it is only
after the documents have been established in the court that section 92 comes
into play for the purpose of excluding any oral agreement or statement for the
purpose of subtracting, varying, adding or contradicting any term of the
Section 91 applies to all documents whether any purport to particular
rights or not but section 92 applies only to documents which can be described as dispositive. Section 91 applies to both bilateral and unilateral documents and
section 92 depends only on bilateral documents. The rule in section 91 is
universal and is not confined to the executant or executants of the documents
but section 92 depends only on the parties to the documents or their
representatives in interest.
According to the Best Evidence Rule
, when written documents are there, any
oral assurance, which purports to contradict the written documents need not be
However, the apex court further ruled that, Where both oral as well as
documentary evidence are admissible on their own merits and have been admitted,
the court may go by the evidence which seems to be more reliable. There is
nothing in the act requiring that the documentary evidence should prevail over
the oral evidence.
The Best Evidence Rule
gains an important place in Criminal Law. As the
criminal justice system in India
is based on the concept of beyond reasonable
, hence the Best Evidence Rule
is the best match.
Documentary evidence has more value than the oral evidence. Court is bound to
accept the documentary evidence. But oral evidence may be taken into
consideration in certain circumstances.
Hence it can be interpreted that, as per the Best Evidence Rule
secondary evidence won't be applicable if the primary evidence exists.
Best Evidence Rule
was introduced with the aim to prevent fraud and adhere to
the idea of Natural Justice. It gives more importance to primary evidence, with
an aim to have the best in hand. Through various judicial decisions, the idea
and the concept of the best evidence rule
has been made clearer.
According to the Best Evidence Rule
, Only the original should be used
when proof is provided, such as a document or recording, unless there is a valid
reason why the original cannot be used. It includes the best evidence which is
available to a party and procurable under the existing situation, and all
evidence falling short of such standard, and which in its nature suggests there
is better evidence of the same fact, is secondary evidence.
The focus behind the Best Evidence Rule
is to ensure that accurate evidence is
provided in the Court. To comply with the Best Evidence Rule
which the evidence, need to establish its accuracy, else such evidences will be
excluded. Compilance to this rule may sometimes appear to be burden. But in
practice, Best Evidence Rule is flexiable enough to accomode those situations,
where obtaining the original evidence appears impractical. When a party can show
that original is not available or impractical to procure, the rule is flexible
enough to allow other types of evidence as proof of what the writing, recording
or photographic evidence show.
- Kalyan Kumar Gogol v. Ashutosh Agnihotri, (2011) 2 SCC 532
- Section 3(e) of Indian Evidence Act, 1872
- Canada Evidence Act, (Government of Canada, 2017).
- Sivrajbhan v. Harchandgir, AIR 1954 SC 564.
- I Bentham, Rationale of Judicial Evidence (i827) 51-52
- Dumont, Treatise on Judicial Evidence (1825)
- People v Bretagne, 298 N.Y. 323, 325 (1949)
- People v Benzinger, 36 N.Y.2d 29, 31-32 (1974)
- Section 25, Indian Evidence Act 1872
- Sita Ram vs. State of UP (AIR 1966 SC 1906).
- Section 55, Indian Evidence Act, 1872
- Section 52, Indian Evidence Act, 1872
- Section 53, Indian Evidence Act, 1872
- Section 54, Indian Evidence Act, 1872
- Indian Evidence Act, Ratanlal & Dhirajlal, Lexis Nexis Butterworths
Wadhwa, 21st Edition, Nagpur
- Section 61, Indian Evidence Act, 1872
- Section 3, Indian Evidence Act, 1872
- Section 62, Indian Evidence Act, 1872
- Section 63, Indian Evidence Act, 1872
- Ford v Hopkins (1700) 91 Eng. Rep 250 (K.B.); Omychund v Barker (1745)
26 ER 15.
- Best v. Equitable Life Assur. Soc., Mo.App., 299 S.W. 118, 120.
- State v. Normandale, 154 La. 523, 97 So. 798, 799
- Cheadle v. Bardwell, 95 Mont. 299, 26 P.2d 336
- Pettit v. Campbell, Tex.Civ. App., 149 S.W.2d 633, 635, 636
- Nunan v. Timberlake, 85 F.2d 407, 410, 66 App.D.C. 150
- Holdsworth, The History of English Law 168 (1926)
- HOLDSWORTH, op. cit. supra notes 1, at 171
- WIGMORE, EVIDENCE & 1177, at 312 (3d ed. 1940)
- Ford v. Hopkins, 1 Salk. 283, 91 Eng. Rep. 250 (K.B. 1700)
- Collin Miller, 'Evidence: Best Evidence Rule' (2012) CALI eLangdell
- Section 91, Indian Evidence Act 1872
- Tulsi vs. Chandrika Prasad (2006) 8 SCC 322
- Bai Hira Devi v Official assignee of Bombay AIR 1958 SC 448
- Mumbai International Airport (P) Ltd. vs. Golden Chariot Airport (2012)
10 SCC 422
- Javarsetty v. Nongamma, AIR. 1992 Kant. 160.