1

Introduction:
Evidence includes everything that is used to determine or demonstrate
the truth of an assertion. Giving or procuring evidence is the process of
using those things that are either (a) presumed to be true, or (b) which were
proved by evidence, to demonstrate an assertions truth. Evidence is the
currency by which one fulfills the burden of proof.

In law, the production and presentation of evidence depends first on

establishing on whom the burden of proof lays. Admissible evidence is that
which a court receives and considers for the purposes of deciding a
particular case. Two primary burden-of-proof considerations exist in law.
The first is on whom the burden rests. In many, especially Western, courts,
the burden of proof is placed on the prosecution. The second consideration
is the degree of certitude proof must reach, depending on both the quantity
and quality of evidence. These degrees are different for criminal and civil
cases, the former requiring evidence beyond reasonable, the latter
considering only which side has the preponderance of evidence, or whether
the proposition is more likely true or false.

Definition of evidence:
Section 3 of The Indian Evidence Act, defines evidence in the following
wordsEvidence means and includes-

(1)

All the statements which the court permits or requires to be made

before it by witnesses, in relation to matters of fact under enquiry; such

statements are called Oral evidence;
(2)

All the documents including electronic records produced for the

inspection of the court; such documents are called documentary evidence;

The definition of Evidence given in this Act is very narrow because in this
evidence comes before the court by two means only(1) The statement of witnesses.
(2) Documents including electronic records.
But in them those things have not been included on which a Judge or a
Penal authority depends for this position.
Different Forms of Evidence:

(a)

Oral Evidence- Section 60 of the Indian Evidence Act, 1872 prescribed

the provision of recording oral evidence. 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. Oral Evidence is that
evidence which the witness has personally seen or heard. Oral evidence
must always be direct or positive. Evidence is direct when it goes straight to
establish the main fact in issue.

S.59. Proof of facts by oral evidence. All facts, except the [contents of
documents or electronic records], may be proved by oral evidence.
S. 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 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:
Provided that the opinions of experts expressed in any treatise
commonly offered for sale, and the grounds on which such opinions are
held, may be proved by the production of such treatises if the author is dead
or cannot be found, or has become incapable of giving evidence, or cannot
be called as a witness without an amount of delay or expense which the
Court regards as unreasonable:
Provided also that, if oral evidence refers to the existence to the
existence or condition of any material thing other than a document, the

Court may, if it thinks fit, require the production of such material thing for
its inspection.
(b) Documentary Evidence- Section 3 of The Indian Evidence Act says
that all those documents which are presented in the court for inspection
such documents are called documentary evidences. In a case like this it is
the documentary evidence that would show the actual attitude of the parties
and their consciousness regarding the custom is more important than any
oral evidence.
The Exclusion of Oral by Documentary Evidence
S. 92. Exclusion of evidence of oral agreement
When the terms of any such contract, grantor other disposition of
property, or any matter required by law to be reduced to the form of a
document have been proved according to the last section, no evidence of any
oral agreement of statement shall be admitted, as between the parties to any
such instrument or their representatives in interest, for purpose of
contradicting, varying, adding to, or subtracting from, its terms;

Provision (1) Any fact may be proved which would invalidate any document,
or which would entitle any person to any decree or order relating thereto;
such as fraud, intimidation, illegality, want of due execution, want of
capacity in any contracting party, [want or failure] of consideration, or
mistake in fact or law.

Proviso (2) The existence of any separate oral agreement as to any matter
on which a document is silent, and which is not inconsistent with its terms,
may be proved. In considering whether or not this proviso applies, the Court
shall have regard to the degree of formality of the document.

Proviso (3). The existence of any separate oral agreement, constituting a

condition precedent to the attaching of any obligation under any such
contract, grant or disposition of property, may be proved.

Proviso (4). The existence of any distinct subsequent oral agreement to

rescind or modify any such contract, grant or disposition of property, may be
proved, except in cases in which such contract grant or disposition of
property is by law required to be in writing, or has been registered according
to the law in force for the time being as to the registration of documents.

Proviso (5) Any usage or custom by which incidents not expressly

mentioned in any contract are usually annexed to contracts of that
description, may be proved.

Provided that the annexing of such incident would not be repugnant to, or
inconsistent with the express terms of the contract.

Proviso (6).Any fact may be proved which shows in what manner the
language of a document is related to existing facts.

Illustration:
A agrees absolutely in writing to pay B Rs. 1,000 on the first March,
1873. The fact that, at the same time an oral agreement was made that the
money should not be paid till the thirty-first March cannot be proved.
(c)

Primary Evidence- Section 62 of The Indian Evidence Act says

Primary Evidence is the Top-Most class of evidences. It is that proof which

in any possible condition gives the vital hint in a disputed fact and
establishes through documentary evidence on the production of an original
document for inspection by the court. It means the document itself
produced for the inspection of the court. In Lucas v. Williams Privy Council
held Primary Evidence is evidence which the law requires to be given first
and secondary evidence is the evidence which may be given in the absence
of that better evidence when a proper explanation of its absence has been
given.
S.61. Proof of contents of documents. The contents of documents may be
proved either by primary or by secondary evidence.
S.62. Primary evidence
Primary evidence means the documents itself produced for the inspection of
the Court.

(d) Secondary Evidence- Section 63 says Secondary Evidence is the

inferior evidence. It is evidence that occupies a secondary position. It is such
evidence that on the presentation of which it is felt that superior evidence
yet remains to be produced. It is the evidence which is produced in the
absence of the primary evidence therefore it is known as secondary
evidence. If in place of primary evidence secondary evidence is admitted
without any objection at the proper time then the parties are precluded from
raising the question that the document has not been proved by primary
evidence but by secondary evidence. But where there is no secondary
evidence as contemplated by Section 66 of the Evidence Act then the
document cannot be said to have been proved either by primary evidence or
by secondary evidence.
S.63. Secondary evidence
Secondary evidence means and includes
(1) certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in
themselves ensure the accuracy of the copy, and copies compared with such
copies.
(3) copies made from or compared with the original ;
(4) counterparts of documents as against the parties who did not execute
them;
(5) oral accounts of the contents of a documents given by some person who
has himself seen it.

Illustration:
A copy compared with a copy of a letter made by a copying machine is
secondary evidence of the contents of the letter, if it is shown that the copy
made by the copying machine was made from the original.
S.65. Cases in which secondary evidence relating to documents may be
given:
Secondary evidence may be given of the existence, condition, or
contents of a documents in the following cases:(a) When the original is shown or appears to be in the possession or power
of the person against whom the document is sought to be proved , or of
any person out of reach of, or not subject to, the process of the Court or of
any person legally bound to produce it, and when, after the notice
mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been
proved to be admitted in writing by the person against whom it is proved or
by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering
evidence of its contents cannot, for any other reason not arising from his
own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by

this Act, or by any other law in force in[India] to be given in evidence ;
(g) when the originals consist of numerous accounts or other documents
which cannot conveniently be examined in court and the fact to be proved it
the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the
document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of
secondary evidence, admissible.
In case (g), evidence may be given as to the general result of the
documents by any person who has examined them, and who is skilled in the
examination of such documents.
In a case where original documents are not produced at any time, nor,
any factual foundation has been led for giving secondary evidence, it is not
permissible for the court to allow a party to adduce secondary evidence.
Thus, secondary evidence relating to the contents of a document is
inadmissible, until the non production of the original is accounted for, so as
to bring it within one or other of the cases provided for in the section. The
secondary evidence must be authenticated by foundational evidence that the
alleged copy is in fact a true copy of the original. Mere admission of a
document in evidence does not amount to its proof. Therefore, the
documentary evidence is required to be proved in accordance with law. The

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court has an obligation to decide the question of admissibility of a document

in secondary evidence.
(e)

Real Evidence- Real Evidence means real or material evidence. Real

evidence of a fact is brought to the knowledge of the court by inspection of a

physical object and not by information derived from a witness or a
document. Personal evidence is that which is afforded by human agents,
either in way of disclosure or by voluntary sign. For example, Contempt Of
Court, Conduct of the witness, behavior of the parties, the local inspection
by the court. It can also be called as the most satisfactory witness.
(f)

Hearsay Evidence- Hearsay Evidence is very weak evidence. It is only

the reported evidence of a witness which he has not seen either heard.
Sometime it implies the saying of something which a person has heard
others say. In Lim Yam Yong v. Lam Choon & Co. The Honble Bombay High
Court adjudged Hearsay Evidence which ought to have been rejected as
irrelevant does not become admissible as against a party merely because his
council fails to take objection when the evidence is tendered. So finally we
can assert that Hearsay Evidence is that evidence which the witness has
neither personally seen or heard, nor has he perceived through his senses
and has come to know about it through some third person. There is no bar
to receive hearsay evidence provided it has reasonable nexus and credibility.
When a piece of evidence is such that there is no prima facie assurance of
its credibility, it would be most dangerous to act upon it. Hearsay evidence
being evidence of that type has therefore, to be excluded whether or not the
case in which its use comes in for question is governed by the Evidence Act.
(g) Judicial Evidence- Evidence received by court of justice in proof or
disproof of facts before them is called judicial evidence. The confession made

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by the accused in the court is also included in judicial evidence. Statements

of witnesses and documentary evidence and facts for the examination by the
court are also Judicial Evidence.
(h) Non-Judicial Evidence- Any confession made by the accused outside
the court in the presence of any person or the admission of a party are
called Non-Judicial Evidence, if proved in the court in the form of Judicial
Evidence.
(i)

Direct Evidence- Evidence is either direct or indirect. Direct Evidence

is that evidence which is very important for the decision of the matter in
issue. The main fact when it is presented by witnesses, things and witnesses
is direct, evidence whereby main facts may be proved or established that is
the evidence of person who had actually seen the crime being committed
and has described the offence. We need hardly point out that in the
illustration given by us, the evidence of the witness in Court is direct
evidence as opposed to testimony to a fact suggesting guilt. The statement
before the police only is called circumstantial evidence of, complicity and not
direct evidence in the strict sense.
(j)

Circumstantial

difference

between

Evidence

or

circumstantial

Indirect
evidence

Evidenceand

There

indirect

is

no

evidence.

Circumstantial Evidence attempts to prove the facts in issue by providing

other facts and affords an instance as to its existence. It is that which
relates to a series of other facts than the fact in issue but by experience have
been found so associated with the fact in issue in relation of cause and
effect that it leads to a satisfactory conclusion.

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Different Kinds of Witnesses:

The witness can be divided mainly into two categories(1) Eye Witness
(2) Circumstantial Witness
Witness can be further divided into following kinds(1) Prosecution Witness- Prosecution is the institution or commencement
of criminal proceeding and the process of exhibiting formal charges against
an offender before a legal tribunal and pursuing them to final judgment on
behalf of the state or government by indictment or information. A
prosecution exists until terminated in the final judgment of the court to
write the sentence, discharge or acquittal, a witness which appears on
behalf of the prosecution side is known as a Prosecution Witness.
(2) Defense Witness- Defense side in a criminal proceeding is opposing or
denial of the truth or validity of the prosecutors complaint, the proceedings
by a defendant or accused party or his legal agents for defending himself. A
witness summoned on the request of the defending party is known as a
Defense Witness.
(3) Expert Witness- An expert is not a witness of fact. His evidence is
really of an advisory character. The duty of an expert witness is to furnish
the judge with the necessary scientific criteria for testing the accuracy of the
conclusion so as to enable the judge to form his independent judgment by
the application of this criteria to the facts proved by the evidence of the
case. The scientific opinion evidence, if intelligible, convincing and tested

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becomes a factor and along with the other evidence of the case. The
credibility of such a witness depends on the reasons stated in support of his
conclusions and the data furnished which form the basis of his conclusions.
(4) Eye Witness- A witness who gives testimony to facts seen by him is
called an eye witness, an eye witness is a person who saw the act, fact or
transaction to which he testifies. An eye witness must be competent (legally
fit) and qualified to testify in court. A witness who was intoxicated or insane
at the time the event occurred will be prevented from testifying, regardless of
whether he or she was the only eyewitness to the occurrence. Identification
of an accused in Court by an Eye witness is a serious matter and the
chances of a false identification are very high. Where a case hangs on the
evidence of a single eye witness it may be enough to sustain the conviction
given sterling testimony of a competent, honest man although as a rule of
prudence courts call for corroboration. It is a platitude to say that
witnesses have to be weighed and not counted since quality matters more
than quantity in human affairs.
Indeed, conviction can be based on the testimony of a single eye
witness and there is no rule of law or evidence which says to the contrary
provided the sole witness passes the test of reliability. So long as the single
eye-witness is a wholly reliable witness the courts have no difficulty in
basing conviction on his testimony alone. However, where the single eye
witness is not found to be a wholly reliable witness, in the sense that there
are some circumstances which may show that he could have an interest in
the prosecution, then the courts generally insist upon some independent
corroboration of his testimony, in material particulars, before recording
conviction. It is only when the courts find that the single eye witness is a

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wholly unreliable witness that his testimony is discarded in toto and no

amount of corroboration can cure that defect.
On a conspectus of these decisions, it clearly comes out that there has
been no departure from the principles laid down in Vadivelu Thevar case
and, therefore, conviction can be recorded on the basis of the statement of a
single eye witness provided his credibility is not shaken by any adverse
circumstance appearing on the record against him and the court, at the
same time, is convinced that he is a truthful witness. The court will not then
insist on corroboration by any other eye witness particularly as the incident
might have occurred at a time or place when there was no possibility of any
other eye witness being present. Indeed, the courts insist on the quality,
and, not on the quantity of evidence.
(5) Hostile Witness-The witness who makes statements adverse to the
party calling and examining him and who may with the permission of the
court, be cross examined by that party. Now it is true that in Coles v. Coles,
and it may be in other cases, a hostile witness has been described as a
witness who from the manner in which he gives his evidence shows that he
is not desirous of telling the truth to the Court. This is not a very good
-definition of a hostile witness and the Indian Evidence Act is most careful in
Section 154 not to restrict the right of cross-examination even by
committing itself to the word hostile.
This Court in Bhagwan Singh v. State of Haryana [AIR 1976 SC 202]
held that merely because the Court gave permission to the Public Prosecutor
to cross- examine his own witness describing him as hostile witness does
not completely efface his evidence. The evidence remains admissible in the
trial and there is no legal bar to base conviction upon the testimony of such

15

witness. In State of U.P. v, Ramesh Prasad Misra (2 supra) the Supreme

Court held that the evidence of a hostile witness would not be totally
rejected if spoken in favour of the prosecution or accused, but it can be
subjected to close scrutiny and that portion of the evidence which is
consistent with the case of the prosecution or defense may be accepted. In
Balu Sonba Shinde v. State of Maharashtra 2003 SCC (Crl.) 112 the
Supreme Court held that the declaration of a witness to be hostile does not
ipso facto reject the evidence. The portion of evidence being advantageous to
the parties may be taken advantage of, but the Court should be extremely
cautious and circumspect in such acceptance. The testimony of hostile
witness has to be tested, weighed and considered in the same manner in
which the evidence of any other witness in the case.

Dying declaration
(i) There is neither rule of law nor of prudence that dying declaration cannot
be acted upon without corroboration. (Munnu Raja v. State of M.P.,(1976) 3
SCC 104)

(ii) If the Court is satisfied that the dying declaration is true and voluntary it
can base conviction on it, without corroboration. ( State of U.P. v. Ram Sagar
Yadav, (1985) 1 SCC 552 and Ramawati Devi v. State of Bihar,(1983) 1 SCC
211)

(iii) The Court has to scrutinise the dying declaration carefully and must
ensure that the declaration is not the result of tutoring, prompting or
imagination. The deceased had an opportunity to observe and identify the

16

assailants and was in a fit state to make the declaration. (K. Ramachandra
Reddy v. Public Prosecutor, (1976) 3 SCC 618)

(iv) Where dying declaration is suspicious, it should not be acted upon

without corroborative evidence. (Rasheed Beg v. State of M.P.,(1974) 4 SCC
264)

(v) Where the deceased was unconscious and could never make any dying
declaration the evidence with regard to it is to be rejected. (Kake Singh v.
State of M.P., 1981 Supp SCC 25)

(vi) A dying declaration which suffers from infirmity cannot form the basis of
conviction. (Ram Manorath v. State of U.P.,(1981) 2 SCC 654)

(vii) Merely because a dying declaration does contain the details as to the
occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti
Laxmipati Naidu, 1980 Supp SCC 455)
(viii) Equally, merely because it is a brief statement, it is not to be discarded.
On the contrary, the shortness of the statement itself guarantees truth.
(Surajdeo Ojha v. State of Bihar, 1980 Supp SCC 769)

(ix) Normally the court in order to satisfy whether the deceased was in a fit
mental condition to make the dying declaration look up to the medical
opinion. But where the eyewitness has said that the deceased was in a fit
and conscious state to make the dying declaration, the medical opinion
cannot prevail. (Nanhau Ram v. State of M.P.,1988 Supp SCC 152)

17

(x) Where the prosecution version differs from the version as given in the
dying declaration, the said declaration cannot be acted upon. (State of U.P.
v. Madan Mohan, (1989) 3 SCC 390)

(xi) Where there are more than one statement in the nature of dying
declaration, one first in point of time must be preferred. Of course, if the
plurality of dying declaration could be held to be trustworthy and reliable, it
has to be accepted. (Mohanlal Gangaram Gehani v. State of Maharashtra,
(1982) 1 SCC 700)"

(ii) In Puran Chand vs. State of Haryana, (2010) 6 SCC 566, this Court once
again reiterated the abovementioned principles.

(iii) In Panneerselvam vs. State of Tamil Nadu, (2008) 17 SCC 190, a Bench
of three Judges of this Court reiterating various principles mentioned above
held that it cannot be laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of the conviction unless it is
corroborated and the rule requiring corroboration is merely a rule of
prudence.

E-records to be admissible as documentary evidence:

S.65A. Special provisions as to evidence relating to electronic record
The contents of electronic records may be proved in accordance with the
provisions of section 65B.

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S.65B. Admissibility of electronic records

(1) Notwithstanding anything contained in this Act, any information
contained in an electronic record which is printed on a paper, stored,
recorded or copied in optical or magnetic media produced by a computer
(hereinafter referred to as the computer output) shall be deemed to be also a
document, if the conditions mentioned in this section are satisfied in
relation to the information and computer in question and shall be
admissible in any proceedings, without further proof or production of the
original, as evidence of any contents of the original or of any fact stated
therein or which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer

output shall be the following, namely :-

(a) the computer output containing the information was produced by

the computer during the period over which the computer was used
regularly to store or process information for the purposes of any
activities regularly carried on over that period by the person having
lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the
electronic record or of the kind from which the information so
contained is derived was regularly fed into the computer in the
ordinary course of the said activities;

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(c) throughout the materiel part of the said period, the computer was
operating properly or, if not, then in respect of any period in which it
was not operating properly or was out of operation during that part of
the period, was not such as to affect the electronic record or the
accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is

derived from such information fed into the computer in the ordinary
course of the said activities.

(3) Where over any period, the functions of storing or processing information
for the purposes of any activities of any regularly carried on over that period
as mentioned in clause (a) of sub-section (2) was regularly performed by
computer, whether-

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession
over that period; or
(d) in any other manner involving the successive operation over that
period, in whatever order, of one or more computers and one or more

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combinations of computers. All the computers used for that purpose

during that period shall be treated for the purposes of this section as
constituting a single computer; and references in this section to a
computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by

virtue of this section, a certificate doing any of the following things, that is
to say,(a) identifying the electronic record containing the statement and
describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of
that electronic record as may be appropriate for the purpose of
showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned
in sub-section (2) relate, and purporting to be signed by a person
occupying a responsible official position in relation to the operation of
the relevant device or the management of the relevant activities
(whichever is appropriate) shall be evidence of any matter stated in the
certificate; and for the purpose of this sub-section it shall be sufficient
for a matter to be stated to the best of the knowledge and belief of the
person stating it.

(5) For the purposes of this section,-

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(a) information shall be taken to be supplied to a computer if it is

supplied thereto in any appropriate form and whether it is so supplied
directly or (with or without human intervention) by means of any
appropriate equipment;

(b) whether in the course of activities carried on by any official,

information is supplied with a view to its being stored or processed for
the purposes of those activities by a computer operated otherwise
than in the course of those activities, that information, if duly
supplied to that computer, shall be taken to be supplied to it in the
course of those activities;

(c) a computer output shall be taken to have been produced by a

computer whether it was produced by it directly or (with or without
human intervention) by means of any appropriate equipment.

Explanation.- For the purposes of this section any reference to information

being derived from other information shall be a reference to its being derived
there from by calculation, comparison or any other process.]

The Burden Of Proof

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S.104. Burden of proving fact to be proved to make evidence admissible

The burden of proving any fact necessary to be proved in order to
enable any person to give evidence of any other fact is on the person who
wishes to give such evidence.
Illustrations:
(a) A wishes to prove a dying declaration by B. A must prove Bs death.
(b) A wishes to prove, by secondary evidence, the contents of a lost
document.
A must prove that the document has been lost.

The Examination Of Witnesses

S.136. Judge to decide as to admissibility of evidence
When either party proposes to give evidence of any fact, the Judge
may ask the party proposing to give the evidence in what manner the alleged
fact, if proved, would be relevant; and the Judge shall admit the evidence if
he thinks that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible
only upon proof of some other fact, such last-mentioned fact must be proved
before evidence is given of the fact first mentioned, unless the party
undertakes to give proof of such fact, and the Court is satisfied with such
undertaking.

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If the relevancy of one alleged fact depends upon another alleged fact
being first proved, the Judge may, in his discretion, either permit evidence of
the first fact to be given before the second fact is proved, or require evidence
to be given of the second fact before evidence is given of the first fact.

Illustration:
It is proposed to prove a statement about a relevant fact by a person
alleged to be dead, which statement is relevant under section 32.
The fact that the person is dead must be proved by the person proposing to
prove the statement, before evidence is given of the statement.

156. Questions tending to corroborate evidence of relevant fact,

admissible
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.
Illustration

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A, an accomplice, gives an account of a robbery in which he took part.

He describes various incidents unconnected with the robbery which
occurred on his way to and from the place where it was committed.
Independent evidence of these facts may be given in order to corroborate his
evidence as to the robbery itself.
153. Exclusion of evidence to contradict answers to questions testing
veracity
When a witness has been asked and has answered any question which
is relevant to the inquiry only in so far as it tends to shake his credit by
injuring his character, no evidence shall be given to contradict him; but, if
he answers falsely, he may afterwards be charged with giving false evidence.
Exception -1 If a witness is asked whether he has been previously
convicted of any crime and denies it, evidence may be given of his previous
conviction.
Exception 2- If a witness is asked any question tending to impeach his
impartiality, and answers it by denying the facts suggested, he may be
contradicted.
Illustration:
(a) A claim against an underwriter is resisted on the ground of fraud. The
claimant is asked whether, in a former transaction, he had not made a
fraudulent claim. He denies it, Evidence is offered to show that he did make
such a claim. The evidence is inadmissible.

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S.162. Productions of documents

A witness summoned to produce a document shall, if it is in his
possession or power, bring it to Court, notwithstanding any objection which
there may be to its production or to its admissibility. The validity of any such
objection shall be decided on by the Court.

The Court, if it sees fit, may inspect the document, unless it refers to
matters of State, or take other evidence to enable it to determine on its
admissibility.

Translation of documents If for such a purpose it is necessary to

cause any document to be translated, the Court may, if it thinks fit, direct
the translator to keep the contents secret, unless the document is to be
given in evidence : and, if the interpreter disobeys such direction , he shall
be held to have committed an offence under section 166 of the Indian Penal
Code (45 of 1860).

Improper Admission and Rejection of Evidence

167. No new trial for improper admission or rejection or evidence
This improper admission or rejection of evidence shall not be ground
of itself for a new trial or reversal of any decision in any case, if it shall
appear

to

the

court

before

which

such

objection

is

raised

that,

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independently of the evidence objected to and admitted, there was sufficient

evidence to justify the decision, or that, if the rejected evidence had been
received, it ought not to have varied the decision.

ADMISSIBILITY AND INADMISSIBILITY OF EVIDENCE IN ENGLAND:

High Court decisions on admissibility of opinion evidence
In two recent decisions, the High Court has considered the
circumstances in which opinion evidence contained in third party reports or
articles is admissible in civil proceedings. In Rogers v Hoyle [2013] EWHC
1409 (QB), the court had to consider whether a report produced by the Air
Accident Investigation Branch of the Department for Transport (the AAIB)
was admissible in a negligence claim against the pilot of the airplane
involved in the crash. In Interflora Inc v Marks and Spencer PLC [2013]
EWHC 936 (Ch), the question was whether academic journal articles relating
to internet literacy were admissible in a trade mark infringement claim.

In Rogers, the court considered whether the AAIB report had to be

excluded as a result of the substantial body of authority demonstrating that
findings of tribunals and inquiries are not generally admissible in
subsequent proceedings the so-called rule in Hollington v Hewthorn [1943]
KB 587. The judge distinguished this line of authority on the basis that it
applies only to judicial findings (which must be based solely on the evidence
adduced by the parties) rather than those of an expert investigator (which
are based on the experts own technical knowledge and experience). The

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AAIB report fell into the latter category and therefore did not have to be
excluded under that rule.

In both cases, the court held that although the evidence in question
was expert evidence in a general sense, it did not fall within Part 35 of the
Civil Procedure Rules and therefore the courts permission was not required
to adduce it. Each judge concluded that Part 35 controls only the giving of
evidence by an expert as defined in that part, i.e. a person who has been
instructed to give or prepare expert evidence for the purposes of
proceedings.
The key points arising from these first instance decisions are:

Judicial findings, based solely on the evidence adduced by the parties,

are not admissible in subsequent civil proceedings (subject to a
statutory exception for evidence of criminal convictions). This rule does
not however apply to the findings of an expert who is entitled to draw
on his own knowledge and experience in reaching his or her
conclusions.

The courts permission is not required to adduce pre-existing evidence

containing expert opinion, such as a third party report or article.
Permission is only required where the expert has been instructed for
the purposes of the proceedings.

The court does however have a discretion to exclude such evidence,

and may do so for example if the evidence is of a sort that the court
would have difficulty understanding and evaluating without an experts
assistance.

Legal background

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It is a long-standing rule of evidence that a persons opinion is not

generally admissible to prove the truth of the opinion held. This is often said
to be because opinion evidence is irrelevant; it is the judges role to evaluate
the evidence before the court, and he or she must not defer to the opinion of
anyone else.
There are exceptions to this principle, however, where the opinion is
held by a person who is better placed to form that opinion than the judge
most obviously an expert opinion on a subject requiring specialist
knowledge, or where a person has observed the relevant events first-hand.
There is also a long-standing rule that findings of tribunals and
inquiries are not admissible in subsequent proceedings (unless they give rise
to an issue estoppel). The leading authority is Hollington v Hewthorn [1943]
1 KB 587, in which the Court of Appeal ruled that a defendants conviction
for careless driving in a collision was inadmissible in a negligence claim
brought against him by those injured in the collision. The Court of Appeal
described the opinion of the criminal court as irrelevant in the trial of the
issue in the civil court.

The actual decision in Hollington v Hewthorn that a criminal

conviction is not admissible in civil proceedings has been reversed by
statute (section 11 of the Civil Evidence Act 1968). But that does not affect
the application of the rule to findings made in earlier civil proceedings. The
rule was referred to by the House of Lords in Three Rivers District Council v
Bank of England (No 3) [2003] AC 1, in agreeing that the report of the
Bingham inquiry into the collapse of BCCI would not be admissible at the
trial of the action.
Rogers v Hoyle

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As noted above, the question in Rogers was whether an AAIB report of

its investigation into an air accident was admissible in a negligence claim
against the airplane pilot. The claimants had given notice of their intention
to rely on the report as hearsay evidence at trial, as required by the Civil
Evidence Act 1995, and the defendant contested its admissibility on the
basis that it consisted of inadmissible opinion evidence.
The judge (Leggatt J) held that the report was admissible. It
contained, the judge said, a wealth of relevant and potentially important
evidence which bore directly on the issues in the action. Although much of
the evidence could, in principle, be obtained from other sources, the fact
that the AAIB investigation was carried out immediately after the accident
when the evidence was fresh gave it an advantage that no subsequent
investigation could replicate. The judge commented: If any non-lawyer was
told that the law does not permit a court to have regard to the AAIB report
when deciding how the accident was caused, I am sure that he or she would
express astonishment at the suggestion. Unless the court is prevented from
doing so, it would be foolish and blinkered to ignore such a valuable
resource. The judge also referred to a number of cases in which AAIB
reports had been relied on without any challenge.
The judge agreed that the report contained opinion evidence. These
were not, however, opinions of a lay person but rather of AAIB inspectors
with particular knowledge and experience in the relevant area. They were
not therefore inadmissible on that basis.
Nor

were

they

inadmissible

under

the

rule

in Hollington

Hewthorn. The judge reviewed the authorities in which that rule has been
applied, noting that although the rule has been much criticised it has never
been over-ruled and therefore remains good law (except in so far as reversed

30

by statute). He explored the justification for the rule, finding that it lies in
the requirements for a fair trial: it is the judges responsibility to make an
independent assessment of the evidence and therefore weight ought not to
be attached to conclusions reached by another judge not least because in
civil proceedings it is up to the parties what material they place before the
court, and a party to a subsequent action out not to be prejudiced by the
way a party to the first action conducted its case.
Leggatt J distinguished judicial findings from expert opinions, finding
that the rule applies only to the former. Judicial findings are those based
solely on the evidence before the court, where the judge is neither expected
nor permitted to use technical knowledge of the subject matter of the case.
In contrast, an experts conclusions are based at least in part on the experts
own knowledge and experience. The AAIB report was a report of an expert
investigator, and so the rule inHollington v Hewthorn did not apply.
The judge also found that the claimant did not require permission to
adduce the report, as it was not expert evidence for the purposes of CPR
Part 35. Although the court had a discretion to exclude it, under the courts
inherent jurisdiction and under CPR Part 32 which gives the court express
powers to exclude evidence that would otherwise be admissible, it was not
appropriate to do so. The question of what weight to give the contents of the
report (for example because it is an anonymised document with opinions
and findings that are not attributed to any individual) was a matter for the
trial judge.
Interflora Inc v Marks and Spencer PLC
In Interflora, the question was whether academic articles which the
claimants sought to adduce as hearsay evidence were admissible. The
defendant objected primarily on the basis that they contained expert

31

evidence, so were admissible under CPR Part 35 (i.e. with the courts
permission) or not at all. The judge (Arnold J) concluded that the articles did
not constitute expert evidence for the purposes of CPR Part 35, which
applied only to the evidence of an expert instructed for the purposes of
proceedings. The courts permission was therefore not required to adduce
the evidence.
The court also declined to exercise its discretion to exclude the
evidence. The court agreed with the defendant that the court should be
astute to attempts to turn the court itself into its own expert, saying he felt
discomfort at the proposition that scientific literature can be put before
courts without the benefit of an experts report to put the literature into
context and an expert to be cross-examined. However, the crucial question
was whether the court could understand and evaluate the material in
question without the assistance of an expert. Whatever might be the position
in other cases, here the judge had seen nothing which led him to believe he
would have difficulties.
ADMISSIBILITY AND INADMISSIBILITY OF EVIDENCE IN USA:
RULE 402. GENERAL ADMISSIBILITY OF RELEVANT EVIDENCE
Relevant evidence is admissible unless any of the following provides
otherwise:

the United States Constitution;

a federal statute;

these rules; or

other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

32

NOTES

OF

ADVISORY COMMITTEE

ON

PROPOSED RULES

The provisions that all relevant evidence is admissible, with certain

exceptions, and that evidence which is not relevant is not admissible are a
presupposition involved in the very conception of a rational system of
evidence. Thayer,Preliminary Treatise on Evidence 264 (1898). They
constitute the foundation upon which the structure of admission and
exclusion rests. For similar provisions see California Evidence Code 350,
351. Provisions that all relevant evidence is admissible are found in Uniform
Rule 7(f); Kansas Code of Civil Procedure 60407(f); and New Jersey
Evidence Rule 7(f); but the exclusion of evidence which is not relevant is left
to implication.
Not all relevant evidence is admissible. The exclusion of relevant evidence
occurs in a variety of situations and may be called for by these rules, by the
Rules of Civil and Criminal Procedure, by Bankruptcy Rules, by Act of
Congress, or by constitutional considerations.
Succeeding rules in the present article, in response to the demands of
particular policies, require the exclusion of evidence despite its relevancy. In
addition, Article V recognizes a number of privileges; Article VI imposes
limitations upon witnesses and the manner of dealing with them; Article VII
specifies requirements with respect to opinions and expert testimony; Article
VIII excludes hearsay not falling within an exception; Article IX spells out the
handling of authentication and identification; and Article X restricts the
manner of proving the contents of writings and recordings.
The Rules of Civil and Criminal Procedure in some instances require the
exclusion of relevant evidence. For example, Rules 30(b) and 32(a)(3) of the

33

Rules of Civil Procedure, by imposing requirements of notice and

unavailability of the deponent, place limits on the use of relevant
depositions. Similarly, Rule 15 of the Rules of Criminal Procedure restricts
the use of depositions in criminal cases, even though relevant. And the
effective enforcement of the command, originally statutory and now found in
Rule 5(a) of the Rules of Criminal Procedure, that an arrested person be
taken without unnecessary delay before a commissioner of other similar
officer is held to require the exclusion of statements elicited during detention
in violation thereof. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1
L.Ed.2d 1479 (1957); 18 U.S.C. 3501(c).
While congressional enactments in the field of evidence have generally
tended to expand admissibility beyond the scope of the common law rules,
in some particular situations they have restricted the admissibility of
relevant evidence. Most of this legislation has consisted of the formulation of
a privilege or of a prohibition against disclosure. 8 U.S.C. 1202(f), records
of refusal of visas or permits to enter United States confidential, subject to
discretion of Secretary of State to make available to court upon certification
of need; 10 U.S.C. 3693, replacement certificate of honorable discharge
from Army not admissible in evidence; 10 U.S.C. 8693, same as to Air
Force; 11

U.S.C.

25(a) (10),

testimony

given

by

bankrupt

on

his

examination not admissible in criminal proceedings against him, except that

given in hearing upon objection to discharge; 11 U.S.C. 205(a), railroad
reorganization petition, if dismissed, not admissible in evidence;11 U.S.C.
403(a), list of creditors filed with municipal composition plan not an
admission;13 U.S.C. 9(a), census information confidential, retained copies
of reports privileged; 47 U.S.C. 605, interception and divulgence of wire or

34

radio communications prohibited unless authorized by sender. These

statutory provisions would remain undisturbed by the rules.
The rule recognizes but makes no attempt to spell out the constitutional
considerations which impose basic limitations upon the admissibility of
relevant evidence. Examples are evidence obtained by unlawful search and
seizure, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652
(1914); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967); incriminating statement elicited from an accused in violation of right
to counsel, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12
L.Ed.2d 246 (1964).
NOTES

OF

COMMITTEE

ON THE

JUDICIARY, HOUSE REPORT NO. 93650

Rule 402 as submitted to the Congress contained the phrase or by other

rules adopted by the Supreme Court. To accommodate the view that the
Congress should not appear to acquiesce in the Court's judgment that it has
authority under the existing Rules Enabling Acts to promulgate Rules of
Evidence, the Committee amended the above phrase to read or by other
rules prescribed by the Supreme Court pursuant to statutory authority in
this and other Rules where the reference appears.
COMMITTEE NOTES

ON

RULES2011 AMENDMENT

The language of Rule 402 has been amended as part of the restyling of the
Evidence Rules to make them more easily understood and to make style and
terminology consistent throughout the rules. These changes are intended to
be stylistic only. There is no intent to change any result in any ruling on
evidence admissibility.

35

Rule 401. Test for Relevant Evidence up Rule 403. Excluding Relevant
Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
Case Laws :
Shalimar Chemical Works /vs/ Surendra Oil, (2010)8SCC423 is the
Supreme Courts yet another ruling by another two-judge Bench decided on
August 27, 2010. In it, plaintiff filed photocopies of a document which the
trial judge marked subject to proof and admissibility. The Supreme Court
faulted this procedure holding that he should have declined to exhibit it as
well as shouldnt have left its admissibility open and hanging. For the view,
the Court relied on Venkatachalas case. Shalimar Chemicals thus, espouses
Venkatachalas ratio. So confining the analysis to the two rulings cited in the
preceding paragraph. And before examining their ratio-worthiness, forming
the subject of this article, summarising their highpoints.
Highlights / Bipins Case
When an objection is raised, in the course of recording evidence in a trial,
to a documents admissibility, the court can make a note of the objection
and exhibit the objected document tentatively.
If the objection relates to any piece of oral evidence, the court can similarly
record the objected part of the evidence with a note of it.
The note must stipulate that the objection shall be decided at the last
stage/final judgment. If its sustained, the court can exclude such evidence
from consideration. No illegality in adopting such a course.
The procedure suggested has twin advantages. Firstly, the trial courts time
is saved at the evidence stage. And, it can continue examination of witnesses
obviating the need for their waiting for long hours.

36

Secondly, when the same objection is re-argued in Appeal/Revision against

the trial courts judgment, the superior court can decide the correctness of
the trial courts view with ease. For, the objected document/evidence is on
record.
The Supreme Court makes the above points as a procedure for trial courts
to follow whenever the situation arises. However, If the objection is to stamp
duty deficiency of a document, the court has to decide it before proceeding
further.

(4) Highlights / Venkatachalas Case

Objection to admissibility of evidence should ordinarily be made, when its
tendered, not subsequently. A document inadmissible in evidence, though
brought on record, must be excluded from consideration.
Objection to a documents admissibility may be classified into two classes.
One, the document itself is inadmissible in evidence. Two, the mode of proof
is irregular.
Just because a document has been exhibited, objection to its admissibility
is not excluded; and it can be raised even in Appeal/Revision. No dispute
over this proposition of law laid down in The Roman Catholic Mission /vs/
The State (1966) 3 SCR 283.
When the objection pertains to the mode of proof, it should be raised before
the evidence is tendered. Once the document is exhibited, objection to its
mode of proof cant be raised at subsequent stage. Its a rule of fair play.
The omission to make such objection is fatal because by his failure the
party entitled to object allows the opposite party to presume that hes not
serious about the mode of proof.
A prompt objection enables the court to apply its mind and pronounce its
decision on admissibility then and there.

37

If the objection to mode of proof is raised immediately, the opposite party

may mark the document through correct mode with the courts permission.
This practice is fair to both parties.
(5) From the highlights the cleavage between the two rulings is patent. Put
simply, Bipins case articulates marking the documents tentatively and
deciding their admissibility at the final stage; but Venkatachalas case
instructs to decide the objection then and there. Although the problem is
procedural, its of extreme importance; for, the trial judge has to manage this
mid-trial crisis effectively, if at all hes to bring the trial process to an end as
quickly as possible.
. Bipins case highlight advantages of deciding objections to admissibility at
a later stage. In fact, the procedure suggested by them ensures against delay
in completing trial, scuttling the scope for appeals on Interlocutory orders
when trial progresses.
In both Venkatachala and Shalimar, the Honble Judges had no
opportunity to consider Bipins case, as it was not cited before them. So they
couldnt factor Bipins line of reasoning into their thought process.
Order 13 Rule 3 CPC enables the court to reject any irrelevant or
inadmissible document at any stage of the suit recording the grounds for the
rejection. The phrase at any stage of the suit is a clear indication that the
court need not reject inadmissible documents at the threshold. Bipins case
is, thus, in keeping with this rule.
Section 136 of the Indian Evidence Act, 1872 empowers the judge to
question relevancy of evidence. U/s 165 the Judge may ask any question at
any time about any fact relevant or irrelevant. Which is meant to discover or
to obtain proper proof of relevant facts. These provisions dont prescribe that
objections to admissibility should be decided immediately.

38

In it, the Supreme Court did not prescribe any procedure about the
time and manner of handling objections to admissibility of evidence. The
highpoint of that ruling was that although an inadmissible document is
exhibited, objection thereto is not excluded and it can be raised even in
appeal. So, for its reliance on the Roman Catholic Mission case,
Venkatachalas case cant be understood to have a dominating effect over
what Bipins case lays down.
1 (1966) 3 SCR 283 = AIR 1966 SC 1457, para(8)
Bipin and Venkatachala are cases on admissibility of evidence.

What about relevancy?

Admissibility and relevancy are not one and the same. The court has
to determine relevancy of a particular fact keeping in view the fact-in-issue.
To become a relevant fact, the particular fact must be connected with the
fact-in-issue in any of the ways referred to in the provisions of the Indian
Evidence Act, 1872 relating to the relevancy of facts. Its so as per Section 3
of the Act. Admissibility pre-supposes relevancy. A fact may logically as well
as legally be relevant to the fact-in-issue. Yet, it may be inadmissible.
Example: Confession made to a police officer. This may be relevant to the
point-in-issue but Section 25 of the Act bars its admissibility. So
admissibility is a question of law while relevancy a mixed question of fact
and law. Whenever admissibility or relevancy is not contested, no problem
for the trial judge. When either of the two is objected to, the ideal procedure
for him, in my considered opinion, is the one that Bipins case sets out. No
matter, whether civil trial or criminal trial.

39

As noted, the subject is in the realm of procedural law. For that

reason one cant be dismissive of it. The trial judge, in particular, is expected
to have a good amount of knowledge of procedural law, because it enables
him to steer the case clear of all impediments as it moves from stage to
stage. Besides, this will cut down delay and save human effort at every
stage. Certainly, a sure way to speedy disposal as well as towards making
the adjudicating process user lovely.

Conclusion:
Thus we can finally conclude that in order to provide justice Evidence
and witnesses are very necessary and they hold a very important place in
the Law. With the help of Evidence the judge reaches a verdict. The evidence
heard by the court is the most important factor in determining whether the
judgment will be in favour of Prosecution side or Defense side.

BIBLIOGRAPHY:
Text books Refered:

Indian Evidence Act, Ratanlal & Dhirajlal, Lexis Nexis Butterworths

Wadhwa, 21st Edition, Nagpur

R.Ramachadran (Advocate),
H.K.Saharay & M.S.Saharay,
Basu, revised by P. M. Bakshi,
Dr. V.Nageswara Rao, M.C.Sarkar

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Websites:
www.lawcommissionofindia.nic.in/reports/185thReport-PartII.pdf
www.indiankanoon.org/doc/731516/
www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.html
www.en.wikipedia.org/wiki/Indian_Evidence_Act
www.advocatekhoj.com/.../bareacts/indianevidence/index.php?...Indian.

www.lawnotes.in