The law in most of the democratic countries is based on the principle, “Innocent
until proven guilty”. It is the duty of the prosecution to prove beyond any
reasonable doubt that the accused has committed the offence. Circumstantial
evidence, even though it is allowed in certain cases, it is not enough to prove
a case beyond any reasonable doubt. The prosecution has to rely on the material
evidence to get a conviction.
The material evidence must also be a one which is
legally obtained to be considered as an admissible evidence. Section 101 to 166
of the Indian Evidence Act,1872 explains about the production of evidence and
the burden of proof. It applies to material Documentary and evidence and also
witnesses. There are some evidences which are inadmissible such as the hearsay
evidence except in few circumstances. It is the duty of both the parties to
provide the best evidence possible to win the case.
Evidences obtained through
improper means are inadmissible and has hindered many criminal investigations
throughout the years. Thus, it is important to know the Collection and producing
of evidence to utilize it to the utmost effect.
Admissibility means that only the facts which are relevant are admissible in the
court of Law. Section 136 of the Indian Evidence Act, 1872 explains which all
evidence are admissible. Section 136 states that the it is the discretion of the
Judge to decide whether an evidence is admissible or not. The presiding officer
may ask the party to clarify how the particular fact or evidence is relevant
under the provisions Section 6 to 55 of the Indian Evidence Act, 1872. if he is
not convinced of its relevance.
So, technically the question of relevance comes
first and then the question of admissibility. The presiding officer has the full
power in deciding whether an evidence is admissible or not in a particular case.
So, with this power comes ultimate responsibility to the Judge to make sure that
every relevant evidence which is obtained legally is made admissible, so that
the parties can obtain justice without undue advantages to one side.
Relevancy of fact:
Section 5 to 55 deal with the relevancy of fact. The main question arises as to
which fact is legally relevant and also logical in nature. A logically relevant
fact may not necessarily be legally relevant in court. All facts that are to be
produced in court must be logically relevant as well as legally admissible. In
State of UP v. Raj Narain
(1975) where it was shown that not all relevant facts
In Ram Bihari Yadav v. State of Bihar
(1998), the difference
between relevancy and admissibility is explained. Section 6 of the Indian
Evidence Act is very important as it explains about the facts that form a part
of the same transaction. The facts which are directly connected to the issue
such as motive, cause, effect are most relevant this is contained in sections 6
to section 16 of the Indian Evidence Act. The relevancy regarding Confessions
and precedents is also explained in the Indian Evidence Act, 1872. Character of
a person may also be a relevant fact in some cases.
Unfair evidence admissible:
The only criteria regarding the admissibility of evidence in the Indian court of
law is “relevance
”. Though illegally obtained evidence is admissible, the value
of such evidence may be affected as it was ruled that improperly obtained
evidence will be analysed with due caution by the court. Supreme court of India
has explicitly held that there is no construction of fundamental rights in the
constitution which can be construed in a manner so as to exclude the evidence
obtained in an illegal search.
Confession is not defined in the Act. Confession is an admission made at any
time by a person charged with a crime stating or suggesting the inference that
he committed that crime. A confession may occur in many forms. When it is made
to the court itself then it will be called judicial confession and when it is
made to anybody outside the court, in that case it will be called extra-judicial
confession. It may even consist of conversation to oneself, which may be
produced in evidence if overheard by another.
The word confession
appears for the first time in Section 24 of the Indian
Evidence Act. A confession to the police officer is the confession made by the
accused while in the custody of a police officer and never relevant and can
never be proved under Section 25 and 26. Now as for the extra-judicial
confession and confession made by the accused to some magistrate to whom he has
been sent by the police for the purpose during the investigation, they are
admissible only when they are made voluntarily.
If the making of the confession
appears to the court to have been caused by any inducement, threat or promise
having reference to the change against the accused person proceeding from a
person in authority and sufficient in opinion of the court to give the accused
person grounds, which would appear to him reasonable for supporting that by
making it he would gain any advantage or avoid any evil of a temporal nature in
reference to the proceeding against him, it will not be relevant and it cannot
be proved against the person making the statement as per section 24 of the Act.
A confessional statement made by the accused before a magistrate is a good
evidence and accused be convicted on the basis of it but a confession made to a
police officer is not an admissible evidence in the Court of law.
The term `hearsay' is used with reference to what is done or written as well as
to what is spoken and in its legal sense, it denotes that kind of evidence which
does not derive its value solely from the credit given to the witness himself,
but which rests also, in part, on the veracity and competence of some other
person. The word `hearsay' is used in various senses. Sometimes it means
whatever a person is heard to say.
Sometimes it means whatever a person declares
on information given by someone else and sometimes it is treated as nearly
synonymous with irrelevant. The sayings and doings of third person are, as a
rule, irrelevant, so that no proof of them can be admitted. Every act done or
spoken which is relevant on any ground must be proved by someone who saw it with
his own eyes and heard it with his own ears.
Section 6 of the Act provides that 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 of at different times
and places. The principal of law embodied in S.6 is usually known as the
doctrine of res gestae.
Facts which may be proved, as part of res gestae, must
be facts other than those in issue but must be connected with it. Though hearsay
evidence is not admissible, but when it is res gestae it can be admissible in a
court of law and may be reliable evidence. The rationale behind this is the
spontaneity and immediacy of such statement that there is hardly anytime for
In the case of Krishnan Kumar Malik vs. State of Haryana
(2011) the Apex Court
held that for bringing hearsay evidence in the ambit of section 6 what is
required to be established is that it must be almost contemporaneous with the
acts and there could not be an interval which would allow fabrication.
Evidence of character:
According to section 53 and 54 of the Act, in criminal proceedings the fact that
the person is of a good character is relevant and admissible whereas the fact
that the accused person has a bad character is irrelevant unless evidence has
been given that he has a good character in which case it becomes relevant.
Admissibility is always decided by the judge and all relevant evidence is
potentially admissible, subject to common law and statutory rules on exclusion.
Exclusion of unfair evidence:
Even where evidence is admissible, it may be excluded in certain circumstances
under the court’s common law powers and more frequently under section 78 of the
Police and Criminal Evidence Act 1984 (PACE 1984). Exclusion will often be
related to the way the evidence has been obtained.
The court may exclude evidence under PACE 1984, s.78 where, having regard to all
the circumstances, including circumstances where the evidence was obtained
illegally, improperly or unfairly, the admission of the evidence would have such
an adverse effect on the fairness of the proceedings that it ought not to be
admitted. This only applies to prosecution evidence.
An application to exclude evidence may be based on a submission that the
evidence has been obtained in circumstances where there has been a significant
and substantial breach of the PACE Codes of Practice. Even where there are such
breaches, exclusion will only be ordered where the breach affects the fairness
of the proceedings. The discretion to exclude must be based on the particular
circumstances of the case and the judge’s assessment of the adverse effect on
the fairness of the proceedings.
A confession is broadly defined in the PACE 1984, s 82(1) as any statement which
is wholly or partly adverse to the person who made it.
There is no requirement that the confession must be made to someone in authority
such as a police officer and PACE 1984 provides that the 'statement' can be made
by 'words or otherwise'.
A confession may be wholly or partly
adverse to the maker and is referred to
as a mixed statement because it is partly a confession and partly exculpatory or
self-serving. Where this is the case the court will admit the whole statement so
that the prosecution cannot rely on the incriminating parts, whilst excluding
those parts favourable to the defendant.
Under PACE 1984, s.76, a confession may be admissible in criminal proceedings if
it is relevant to any matter in issue in the proceedings and it does not fall
within a category of evidence which must be specifically excluded by the court.
PACE 1984, s 76 provides that a confession must be excluded (even if it is true)
- it is represented to the court that the confession was obtained by:
- as a result of 'anything said or done' which was likely in the
'circumstances existing at the time' to render the confession unreliable, or
- except to the extent that the prosecution proves beyond reasonable doubt
that the confession was not so obtained
- the court of its own motion requires proof that the confession was not
The prosecution do not need to prove the admissibility of a confession unless
the defence represent to the court that it is inadmissible by virtue of PACE
1984, s 76.
Hearsay is a statement made other than in the present court proceedings which is
relied on for the truth of its contents rather than for some other purpose. The
maker of the statement must have intended to cause someone either to believe the
facts stated or to act on the basis that the facts were as stated. It is very
important to remember that hearsay evidence has not been given on oath nor
tested by cross-examination.
If a piece of evidence is classified as hearsay it is only admissible if it can
pass through one or more of four statutory gateways set out in Criminal Justice
Act 2003 (CJA 2003).
- it falls within a statutory provision of CJA 2003
- if the common law exceptions contained in CJA 2003 apply
- if the parties agree
- if it is in the interests of justice
The court has a general discretion to exclude hearsay evidence where the case
for admitting it is substantially outweighed by the case for excluding it.
Evidence of character:
Evidence of bad character is evidence of, or a disposition towards, an offence
(this includes convictions and cautions) or other misconduct for which the
defendant has not been prosecuted, other than evidence relating to the offence
If the evidence of misconduct falls within the statutory definition of 'bad
character', it can only be admitted if one or more of the gateways of
admissibility under CJA 2003 applies. If the evidence falls outside the
definition, the statutory gateways do not apply and the evidence will be
admissible as of right, subject to relevance.