Relevant provisions of Law of Evidence - A discussion:
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
S. ABDUL NAZEER; J., B.R. GAVAI; J., A.S. BOPANNA; J., V. RAMASUBRAMANIAN; J.,
B. V. NAGARATHNA; J.
CRIMINAL APPEAL NO. 1669 OF 2009; 15 December, 2022
NEERAJ DUTTA versus STATE (GOVT. OF N.C.T. OF DELHI)
Relevant provisions of Law of Evidence - A discussion:
29. Since the main thrust of this case is on the quality of evidence for proof of demand
and acceptance of an illegal gratification before a public servant can be held guilty of an
offence under Section 7 and/or Section 13(1)(d) of the Act, it would be appropriate to
discuss the salient principles of law of evidence relevant to the question under
consideration.
In this context, it would be necessary to refer to Sections 3, 4, 59, 60, 61, 62, 63,
64, 65 and 154 of the Evidence Act.
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30. Congruent to the principle of res gestae, a fact includes a state of things or events
as well as the mental state i.e. intention or animus. A fact in law of evidence includes the
factum probandum i.e., the principal fact to be proved and the factum probans, i.e., the
evidentiary fact from which the principal fact follows immediately or by inference. On the
other hand, the expression “fact in issue” means the matters which are in dispute or which
form the subject of investigation. (vide Section 3 of Evidence Act).
31. It is well settled that evidence is upon facts pleaded in a case and hence, the
principal facts are sometimes the facts in issue. Facts relevant to the issue are evidentiary
facts which render probable the existence or non-existence of a fact in issue or some
relevant fact.
32. In criminal cases, the facts in issue are constituted in the charge, or acquisition, in
cases of warrant or summon cases. The proof of facts in issue could be oral and
documentary evidence. Evidence is the medium through which the court is convinced of
the truth or otherwise of the matter under enquiry, i.e., the actual words of witnesses, or
documents produced and not the facts which have to be proved by oral and documentary
evidence. Of course, the term evidence is not restricted to only oral and documentary
evidence but also to other things like material objects, the demeanour of the witnesses,
facts of which judicial notice could be taken, admissions of parties, local inspection made
and answers given by the accused to questions put forth by the Magistrate or Judge under
Section 313 of the Criminal Procedure Code (CrPC).
33. Further, according to Sarkar on Law of Evidence, 20th Edition, Volume 1, “direct” or
“original” evidence means that evidence which establishes the existence of a thing or fact
either by actual production or by testimony or demonstrable declaration of someone who
has himself perceived it, and believed that it established a fact in issue. Direct evidence
proves the existence of a fact in issue without any inference of presumption. On the other
hand, “indirect evidence” or “substantial evidence” gives rise to the logical inference that
such a fact exists, either conclusively or presumptively. The effect of substantial evidence
under consideration must be such as not to admit more than one solution and must be
inconsistent with any explanation that the fact is not proved. By direct or presumptive
evidence (circumstantial evidence), one may say that other facts are proved from which,
existence of a given fact may be logically inferred.
34. Again, oral evidence can be classified as original and hearsay evidence. Original
evidence is that which a witness reports himself to have seen or heard through the medium
of his own senses. Hearsay evidence is also called derivative, transmitted, or secondhand evidence in which a witness is merely reporting not what he himself saw or heard,
and not what has come under the immediate observation of his own bodily senses, but
what he has learnt in respect of the fact through the medium of a third person. Normally,
a hearsay witness would be inadmissible, but when it is corroborated by substantive
evidence of other witnesses, it would be admissible vide
Mukhtiar Singh.
35. Evidence that does not establish the fact in issue directly but throws light on the
circumstances in which the fact in issue did not occur is circumstantial evidence (also
called inferential or presumptive evidence). Circumstantial evidence means facts from
which another fact is inferred. Although circumstantial evidence does not go to prove
directly the fact in issue, it is equally direct. Circumstantial evidence has also to be proved
by direct evidence of the circumstances.
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Further, letting in evidence should be in accordance with the provision of the
Evidence Act by the examination of witnesses, i.e., examination-in-chief, crossexamination, and re-examination.
36. Section 59 of the Evidence Act states that all facts, except the contents of
documents or electronic records, may be proved by oral evidence. Oral evidence means
the testimony of living persons examined in the presence of the court or commissioners
appointed by the court, deaf and dumb persons may also adduce evidence by signs or
through interpretation or by writing, if they are literate.
37. Documentary evidences, on the other hand, are to be proved by the production of
the documents themselves or, in their absence, by secondary evidence under Section 65
of the Act. Further, facts showing the existence of any state of mind, such as intention,
knowledge, good faith, negligence, or ill will need not be proved by direct testimony. It may
be proved inferentially from conduct, surrounding circumstances, etc. (See Sections 8 and
14 of Evidence Act).
38. Insofar as oral evidence is concerned, this Court in State of Rajasthan vs. Babu
Meena (2013) 4 SCC 206 (“Babu Meena”) has classified the same into three categories
:–(i) wholly reliable; (ii) wholly unreliable, and; (iii) neither wholly reliable nor wholly
unreliable. While an accused can be convicted on the sole testimony of a wholly reliable
witness, the uncorroborated evidence of a wholly unreliable testimony of a witness must
result in an acquittal.
39. Section 60 of the Evidence Act requires that oral evidence must be direct or positive.
Direct evidence is when it goes straight to establish the main fact in issue. The word
“direct” is used in juxtaposition to derivative or hearsay evidence where a witness gives
evidence that he received information from some other person. If that person does not,
himself, state such information, such evidence would be inadmissible being hearsay
evidence. On the other hand, forensic procedure as circumstantial or inferential evidence
or presumptive evidence (Section 3) is indirect evidence. It means proof of other facts
from which the existence of the fact in issue may be logically inferred. In this context, the
expression “circumstantial evidence” is used in a loose sense as, sometimes,
circumstantial evidence may also be direct.
40. Although the expression “hearsay evidence” is not defined under the Evidence Act,
it is, nevertheless, in constant use in the courts. However, hearsay evidence is
inadmissible to prove a fact which is deposed to on hearsay, but it does not necessarily
preclude evidence as to a statement having been made upon which certain action was
taken or certain results followed such as evidence of an informant of the crime.
41. At this stage, it must be distinguished that even with regard to oral evidence, there
are sub-categories – primary evidence and secondary evidence. Primary evidence is an
oral account of the original evidence i.e., of a person who saw what happened and gives
an account of it recorded by the court, or the original document itself, or the original thing
when produced in court. Secondary evidence is a report or an oral account of the original
evidence or a copy of a document or a model of the original thing.
42. Section 61 deals with proof of contents of documents which is by either primary or
by secondary evidence. When a document is produced as primary evidence, it will have
to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act. Mere
production and marking of a document as an exhibit by the court cannot be held to be due
proof of its contents. Its execution has to be proved by admissible evidence. On the other
hand, when a document is produced and admitted by the opposite party and is marked as
an exhibit by the court, the contents of the document must be proved either by the
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production of the original document i.e., primary evidence or by copies of the same as per
Section 65 as secondary evidence. So long as an original document is in existence and is
available, its contents must be proved by primary evidence. It is only when the primary
evidence is lost, in the interest of justice, the secondary evidence must be allowed.
Primary evidence is the best evidence and it affords the greatest certainty of the fact in
question. Thus, when a particular fact is to be established by production of documentary
evidence, there is no scope for leading oral evidence. What is to be produced is the
primary evidence i.e., document itself. It is only when the absence of the primary source
has been satisfactorily explained that secondary evidence is permissible to prove the
contents of documents. Secondary evidence, therefore, should not be accepted without a
sufficient reason being given for non-production of the original.
43. Section 62 of the Evidence Act defines primary evidence to mean the documents
itself produced for the inspection of the court. If primary evidence is available, it would
exclude secondary evidence. Section 63 of the Evidence Act deals with secondary
evidence and defines what it means and includes. Section 63 mentions five kinds of
secondary evidence, namely, -
(i) Certified copies given under the provisions hereinafter contained;
(ii) Copies made from the original by mechanical processes which in themselves
ensure the accuracy of the copy, and copies compared with such copies;
(iii) Copies made from or compared with the original;
(iv) Counterparts of documents as against the parties who did not execute them;
(v) Oral accounts of the contents of a document given by some person who has himself
seen it.
44. Section 64 of the Evidence Act states that documents must be proved by primary
evidence except in certain cases mentioned above. Once a document is admitted, the
contents of that document are also admitted in evidence, though those contents may not
be conclusive evidence. Moreover, once certain evidence is conclusive it shuts out any
other evidence which would detract from the conclusiveness of that evidence. There is a
prohibition for any other evidence to be led which may detract from the conclusiveness of
that evidence and the court has no option to hold the existence of the fact otherwise when
such evidence is made conclusive. Thus, once a document has been properly admitted,
the contents of the documents would stand admitted in evidence, and if no objection has
been raised with regard to its mode of proof at the stage of tendering in evidence of such
a document, no such objection could be allowed to be raised at any later stage of the case
or in appeal vide Amarjit Singh vs. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit
Singh”). But the documents can be impeached in any other manner, though the
admissibility cannot be challenged subsequently when the document is bound in
evidence.
45. The cases in which secondary evidence relating to documents may be given are
stated in Section 65 of the Evidence Act read with Section 66, Section 67(2), Section 78.
Proof of documents, whether public or private, including execution of such documents etc.