Kinds of evidence and analysis of the best evidence rule
Year: 2025
Type: article
Abstract: IntroductionEvidence is the cornerstone of every system of law that strives to administer justicefairly. The courts must rely on material that is reliable and admissible. In India, the law ofevidence is codified in the Indian Evidence Act (IEA), 1872,1 a comprehensive statute, preparedby Sir James Fitzjames Stephen,2 aimed to introduce certainty and uniformity in the rules ofproof. Now, the IEA has been superseded by the Bhartiya Sakshya Adhiniyam (BSA), 20233that brings clarity, especially in the context of electronic evidence.Within this context, the types of evidence are critical. Also important is the doctrine ofBest Evidence Rule, which requires that the most authentic and original form of evidence beproduced. This research paper discusses the type of evidence recognised in Indian law andrelevant case laws. It further examines the Best Evidence Rule in India, following it throughfrom English common law, codification under the Act and the subsequent interpretation byIndian courts. Concept and Definition of EvidenceThe word evidence is derived from the Latin word evidentia, meaning “that which isobvious.”4 Section 3 of the IEA defines evidence to mean and include:51. All statements which the court permits or requires to be made before it by witnesses inrelation to matters of fact under inquiry, commonly referred to as oral evidence; and2. All documents including electronic records produced for the inspection of the court,which are termed as documentary evidence.Under the BSA, 2023, the corresponding definition is found in Section 2(1)(e) which alsoclearly covers electronic record and digital formats.6 However, the term evidence does not include all that is produced in court; it refers only to that material which is admissible by law.7This conceptual clarity provides the basis for a systematic classification of the types ofevidence that have been recognised in Indian law. Kinds of Evidence:1. Direct EvidenceDirect evidence establishes a fact in issue without any inference or presumption. Hence,it is the strongest type of evidence. For instance, an eyewitness to a crime is direct evidence.Section 60 of the IEA provides that oral evidence shall be direct, that is, it shall be perceivedby the person through his own senses. The same is reaffirmed in Section 58 of BSA.9 However,courts are careful, because eyewitness testimony can be prone to error or bias. In State of U.P.v. Krishna Gopal (1988),the Supreme Court noted that direct evidence of eyewitnesses is sufficient to establish guilt if it stands the test of cross-examination. 2. Indirect or Circumstantial EvidenceCircumstantial evidence does not directly prove the fact in issue, but is a series ofcircumstances from which the court can infer the existence of that fact. Section 3 of the IEAand Section 2 of BSA11 acknowledges such evidence. Unlike direct evidence, it must use logicalreasoning and connect the facts to form a conclusion. It is frequently used as the determiningfactor in criminal trials in which direct evidence is not available. The Supreme Court inHanumant Govind Nargundkar v. State of M.P. (1952)12 laid down that the chain ofcircumstances must be complete and must not leave any other hypothesis other than the guiltof the accused. 3. Primary EvidencePrimary evidence is the original document itself that is brought to the court forinspection. Section 62 of IEA defines primary evidence as the document itself, in its originalform.13 It can now be found in Section 61 of the BSA,14 and is expanded to include electronic records as well. For example, the original sale deed is the primary evidence in a propertydispute. The significance of primary evidence is associated with the "best evidence rule" thatthe best available source of evidence must be presented in front of the court. In the case of J.Yashoda v. K. Shobha Rani (2007), the Court opined that primary evidence must be produced unless secondary evidence is admissible under the Act. 4. Secondary EvidenceSecondary evidence is an alternative to primary evidence and can be admissible onlyunder the conditions laid down in Section 63 and 65 of the IEA.16 The relevant sections areSections 62 and 64 of the BSA.17 It is important where primary documents are missing ordestroyed and when they are with the other party. However, the onus of proof of why relyingon secondary evidence is necessary falls on the party that wishes to rely on it. In H. Siddiqui v.A. Ramalingam (2011), Supreme Court made it clear that secondary evidence can be admitted only if the non-production of primary evidence is justified under Section 65 of IEA. 5. Personal EvidencePersonal evidence occurs when a witness testifies to the facts he has personallywitnessed. It is discussed in Sections 118-134 of the IEA,19 whereas BSA protects theseprinciples under Sections 124-136.20 It is considered reliable based on the credibility of thewitness, his ability to correctly perceive events, and the extent to which his testimony isresilient to cross-examination. In Vadivelu Thevar v. State of Madras (1957), the SupremeCourt categorized oral evidence into three classes: wholly reliable, wholly unreliable and partlyreliable, and emphasized the importance of corroboration in the case of partly reliablewitnesses. 6. Real EvidenceReal or material evidence is physical evidence that is introduced into court to beexamined, such as weapons, bloodstained clothing, or fingerprints. The BSA, like the IEA,implicitly acknowledges such evidence through provisions dealing with facts, inspection, and expert testimony. It needs proper chain of custody and forensic analysis. For instance, in amurder trial, a murder weapon with the accused's fingerprints on it is real evidence. In PulukuriKottaya v. King Emperor (1947), recovery of a weapon based upon disclosure statement was considered important material/real evidence. 7. Judicial EvidenceJudicial evidence is received by the court during the trial and becomes part of thejudicial record. This includes evidence offered on oath, documentary evidence tendered in courtand facts judicially noticed under Section 57 of the IEA.23 The BSA, through Sections 52-55,24still considers it as a category of evidence. For instance, certified copies of public documents,once admitted, constitute a part of the judicial evidence. In Sat Paul v. Delhi Administration(1976), where testimonial evidence in the court was found more trustworthy than extra-judicial statements in the past. 8. Extra-Judicial EvidenceExtra-judicial evidence is any evidence procured outside the courtroom which may thenbe presented before the court. For example, this includes confessions made to non-officialindividuals, or evidence obtained during a police investigation, but not yet tendered in judicial proceedings. In State of Punjab v. Bhajan Singh (2011),26 the Supreme Court noted that extra-judicial confessions, although weak evidence, may still be resorted to if they are voluntary, truthful and corroborated by other evidence. Courts, however, exercise great caution beforeconvicting an accused based only on the extra-judicial evidence. 9. Oral EvidenceOral evidence, as defined in Section 59 of the IEA,27 means all evidence by witnessesgiven in court, except where documentary evidence is required by law. Section 60 also requiresoral testimony to be direct at all times. Sections 57-58 of the BSA deal with oral evidence.28 Itis widely recognized that oral evidence is critical particularly to criminal trials where witnesstestimony is key. However, the courts are aware of the inherent limitations of oral evidence, such as human error, lapses in memory, or outright lies. In State of Maharashtra v. SukhdevSingh (1992),29 oral evidence was taken to be reliable only when it was supported by materialevidence. 10. Documentary EvidenceDocumentary evidence means all the documents presented to the court for inspectionunder Section 3 of the Evidence Act. In the BSA, documentary evidence is defined in section2(1)(d) and explicitly covers electronic records.30 It is split into public documents and privatedocuments. Examples are contracts, deeds, government paper, and letters. In Kaliya v. State ofMadhya Pradesh (2013),31 the Supreme Court ruled that documentary evidence has a greaterevidentiary value than oral testimony, if both are available, as documents are less prone tohuman error. 11. Hearsay EvidenceHearsay evidence is not directly perceived by the witness, but obtained from anotherperson. Generally, it is not acceptable under Indian law. In Subramaniam v. Public Prosecutor(1956), the Privy Council explained that hearsay evidence is inadmissible unless it is notrelevant for the truth of its contents but to show that the statement was made. Indian courtshave always held that the admission of hearsay would erode trust in the judicial process.Exceptions are available under sections 6, 32 and 33 of the IEA,33 such as dying declarationsand statements in the course of business. The BSA takes the same view in Sections 6, 26 and27. 12. Electronic EvidenceElectronic or digital evidence has become prominent with the increasing use oftechnology. Section 65B of the IEA contains the framework for admissibility of electronicrecords and requires a certificate under Section 65B (4).35 This is more fully addressed underthe BSA in Section 63. Electronic evidence is essential today with emails, CCTV footage, callrecords and digital contracts all playing a key role in the outcome of many modern cases. In Tomaso Bruno v. State of UP (2015), Court encouraged the use of modern technology and failure to produce available electronic evidence can weaken the prosecution. The Best Evidence RuleThe Best Evidence Rule is a cardinal rule of evidence law that demands that the bestavailable evidence be brought before the court. The rule evolved from English common law,37and was intended to reduce the risk of fraud and misrepresentation by ensuring that courts areguided by the most accurate ma
Author: Yuvika Garg
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W7089644279
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