UNIVERSITY INSTITUTE OF LEGAL STUDIES

Central Conceptions in Law

of Evidence

Submitted by:-
Submitted to:-

Dr. ANJU CHAUDHARY

Dishant Mittal

PROFESSOR 130/15 (13754)

Section C

B.com L.L.B

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 Acknowledgement

Success is a blend of multiple efforts. The final import of this project is also a
result of the sheer hard work and constant support of many people. I would like to
take this opportunity to thank all of them.

To begin with, I would like to express my humble gratitude to my teacher, Dr.

ANJU CHAUDHARY, for her able guidance and mentoring. The meticulous manner
in which she teaches has paid significantly in the completion of this project.

Secondly, I would like to thank my department, University Institute of Legal

Studies, Panjab University, Chandigarh, for providing such an expansive library
which provided me all the relevant material required for this project.

Last but not the least, I would like to express my profound gratitude to my
parents and my friends who have constantly supported and motivated me
throughout this project.

Dishant Mittal

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 Table of Contents
Acknowledgement .......................................................................................................................... 2

Table of Contents ............................................................................................................................ 3

INTRODUCTION .......................................................................................................................... 4

Nature and Function of Law Evidence ........................................................................................... 5

Section 3 of Indian Evidence Act, 1872 ......................................................................................... 6

Court ............................................................................................................................................... 8

Facts ................................................................................................................................................ 9

Facts in Issue ................................................................................................................................. 10

Relevant Facts ............................................................................................................................... 11

Difference between Facts in Issue and Relevant Facts ............................................................. 13

Evidence ........................................................................................................................................ 14

Different Kinds of evidences:- .................................................................................................. 14

Distinction between Oral and Documentary evidence.............................................................. 16

Difference between Direct Evidence and Circumstantial Evidence ......................................... 16

Witness.......................................................................................................................................... 18

Appreciation of Evidence ............................................................................................................. 20

Proof.............................................................................................................................................. 22

Section 4 of Indian Evidence Act, 1872 ....................................................................................... 24

Bibliography ................................................................................................................................. 27

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 INTRODUCTION
The Indian Evidence Act is very unique in nature. This is because it was introduced some 141
years ago. The mere fact that it was introduced so many years ago does not make it unique, it is
unique because in such a long time it has not been amended many times. To stay unchanged for
such a long time is a very special achievement indeed because it is not considered obsolete by
any means. It was introduced by Sir James Stephen who was vested with this responsibility back
in the year 1871. The Indian Evidence is very important for our country. This is because our
country follows the Due Process Model, which opposite of the crime control model where the
police and court play an active role in solving the veracity of the allegations made. In the Due
Process Model it is the parties of the suit on whom the burden of proof is vested. Thus it is very
important to have a guideline for the submission of evidence. In the later section of the project it
will be seen how important role the Evidence Act plays in our justice system. The Act not only
regulates the procedure for the admission of the evidence it also looks after which evidence will
not be admissible under Indian Evidence Act. The fact that India follows the due process model
means that theoretically the discretionary powers of the judge is very large. To prevent the judge
from being arbitrary in nature while admitting evidence of a case, it is imperative that the judge
is made subject to a standard set of guidelines which is to be followed across the board. This fact
of denying the judge the misuse of his discretionary powers is all the more important in the
present times when corruption is rampant in our country. This Indian Evidence Act is objectively
used to give true justice and so that corrupt elements cannot subvert the justice system. A very
important fact also that needs to be brought to the forefront is that the Indian Evidence Act deals
with two important terms that are, evidence and admissibility. The admissibility has not been
defined but it is based on the factor of relevancy which has been defined. The relevancy is based
on the section 5 and section 7 of the Indian Evidence Act. The procedural side of the law is the
law that lays down the guidelines for the courts to search for the truth by examining the evidence
produced before it1.

1
Ram Jas vs Surendra Nath. AIR 1990 All 385

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 Nature and Function of Law Evidence
Every case that comes before a court of law has a fact story behind it facts out of which cases
arise keep happening in the ordinary course of life. There is a crowded road for example people
are moving, vehicle are moving. Everyone is running at unmitigated speed suddenly two vehicles
run against each other. One of them being loaded with dynamite the accident produce an
explosion with a shocking noise as a result of which a noise in a near by hospital drops a child
from hands injuring the child cases arising out of the accident with flow into the courts. In each
case the nature and cause of the accident would be in question. The facts which led up to the
climax will have to reconstruct before the court. So that judge is able consider the real
happening. Only then he will be in position to apply the appropriate law to the fact to arrived at a
just solution about the right and liabilities of the parties. Thus, whenever a judge is called upon
to pronounce upon the right and liabilities of parties arising out of fact certain information about
the facts involved in his mind as to what the real facts are facts must be proved in the first
instances and the only the matter is rife for application of relevant laws.
The practical reality is that the truth or merits of a case are worth less unless they can be proved
to be acceptance of the judge and there to enable him to act on them. The means by which facts
are proved are governed by the law of evidence. The function of the law of evidence is lay down
rules according to which the facts of case can be proved or disproved before a court of law. The
means which can be used to prove a fact are all control by the rules and principles laid down by
the law of evidence. The law of evidence does not affect substantive right of parties but only lays
down the law for facilitating the rules of evidence for the purposes of the guidance of the court.
The evidence means any things by which any alleged matter of facts is either establish or
disproved. Anything that makes the thing in question evidence to the court evidence. Where the
question is whether an explosion took place before a fire occurred evidence can be both oral and
documentary and electronic records can be produced as evidence. Even in criminal matter also
there can be evidence by means of electronic records including video-conferencing. The noise of
the explosion and its flash are evidence of it. Persons who can the flash or heard the noise can
give evidence of the fact of the explosion. If the happening of the fact is recorded on anything
apart from human meaning, that record is also an evidence of happening thus, evidence can be
defined as any material which tends to persuade the court of the truth or probability of some fact
asserted before.

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 Section 3 of Indian Evidence Act, 1872
"Section 3. Interpretation-clause.––In this Act the following words and expressions are used in
the following senses, unless a contrary intention appears from the context: ––

Court:-Court includes all Judges8 and Magistrates9 and all persons, except arbitrators, legally
authorized to take evidence.

Fact:- Fact means and includes –– (1) anything, state of things, or relation of things, capable of
being perceived by the senses;
(2) any mental condition of which any person is conscious.

Illustrations

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular
word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact. (e) That a
man has a certain reputation, is a fact.

Relevant:- One fact is said to be relevant to another when the one is connected with the other in
any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

Facts in issue:- The expression "facts in issue" means and includes:-

any fact from which, either by itself or in connection with other facts, the existence, non-
existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or
proceeding, necessarily follows.

Explanation. ––Whenever, under the provisions of the law for the time being in force relating to
Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer
to such issue, is a fact in issue.

Illustrations

A is accused of the murder of B.

At his trial the following facts may be in issue: ––
That A caused B’s death;
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That A intended to cause B’s death;
That A had received grave and sudden provocation from B;
That A, at the time of doing the act which caused B’s death, was, by reason of unsoundness of
mind, incapable of knowing its nature.

Document:- Document means any matter expressed or described upon any substance by means
of letters, figures or marks, or by more than one of those means, intended to be used, or which
may be used, for the purpose of recording that matter.

Illustrations

A writing is a document;
Words printed lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.

Evidence:- Evidence‖ means and includes ––

(1) All statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry such statements are called oral evidence;

(2) All documents including electronic records produced for the inspection of the Court such
documents are called documentary evidence.

Proved:- A fact is said to be proved when, after considering the matters before it, the Court
either believes it to exist, or considers its existence so probable that a prudent man ought, under
the circumstances of the particular case, to act upon the supposition that it exists.

Disproved:- A fact is said to be disproved when, after considering the matters before it, the
Court either believes that it does not exist, or considers its non-existence so probable that a
prudent man ought, under the circumstances of the particular case, to act upon the supposition
that it does not exist.

Not proved:- A fact is said not to be proved when it is neither proved nor disproved.

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India:- India means the territory of India excluding the State of Jammu and Kashmir.

The expressions ―Certifying Authority, electronic signature, Electronic Signature Certificate,

electronic form, electronic records, information, secure electronic record, secure digital signature
and subscriber shall have the meanings respectively assigned to them in the Information
Technology Act, 2000 (21 of 2000)."

Court
Court includes all Judges and Magistrates, and all persons except Arbitrators, legally authorized
to take evidence. A Court is a governmental institution with the authority to decide legal disputes
between the parties. All kinds of persons are free to bring thier disputes to the court and seek a
fair judgment. The Judiciary is the system who interprets and applies the Law. The place where
the court sits is known as a venue. The room where the court proceedings are held is known as a
Court room.

The Supreme Court has observed that the court in Section 3 is not exhaustive. A forum though
named as an Arbitral Tribunal, which was empowered to examine witness on oath, record
evidence, summon records, award costs, etc. was held to be a court .A labour court was regarded
to be an exception which is not treated as court in its technical sense. In State of M.P. v.
Anshuman Shukla2, it was held that the authorities constituted under M.P. Madhyastham
Adhikaran Adhimiyam, 1983, though named as Arbitral Tribunal were courts.

The definition of the word ‘Court’ as given in the Act is meant for the purposes of this act and it
can not be said as a general rule of law that every officer who is entitled to take the evidence is
necessarily a court, within the meaning of Contempt of Courts Act. But the commissioner
appointed under the Public Service Act is a court under Contempt of Courts Act.3

2
2008 7 SCC 487
3
Jotinarain v. Brijnandan, AIR 1954 Patna 281

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 Facts
Facts means anything or state of things or relations of thing which can be perceived by senses
(see, touch, taste, hear, and smell). Particular ‘state of mind’ is also a fact. We all know what a
fact is, but many times in a case, disputes arise over the versions of facts that are put forward by
the parties. The most important tool that the Court can use to reconstruct a case and deliver
justice is a fact. The definition of a fact is provided in the Evidence Act. For this purpose, fact
broadly includes anything in the real or abstract sense that is capable of being perceived by the
senses.

Examples of facts:

1. Knife which is used for murder is a fact (things)

2. The blood of the victim on the sport or over the knife is facts (relation with the things i.e.
knife)
3. Presence of victim and accused at the sport immediately before occurrence is also fact (state
of things)
4. In case of murder through poisoning, pre-poisoning state condition of body and after
poisoning condition of body of the victim is fact (State of things & relation of things) etc.

External and Internal Facts

Law has not merely to deal with things physically but also with things which are so hidden as to
be beyond physical observation such as state or condition of a person's mind. Thus, intention,
fraud, good faith, negligence, etc. are facts. It has been said that "a state of man's mind is as
much a fact as the state of his digestion". Facts of which a person is only mentally conscious and
which cannot be physically observed are known as mental or internal facts. The state of person's
health is a fact. The psychological facts can only be proved by circumstantial evidence4.

The fact sought to be proved (factum probandum) is called "principal facts", the facts which lead
to establish it are called 'evidentiary facts' (factum prabans).

4
Dr. Avtar Singh, Principles of The Law of Evidence ( edition- 23rd) 2018.

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 Facts in Issue
Facts in issue are the central contentions upon which a dispute is centered. They are the crux of
the argument, the focal point of the dispute, the hole in the doughnut. A “fact in issue” forms the
core of the case. These are the facts that a plaintiff will base his claim on or which the defendant
denies the claim on.5 It includes any fact from which, either by itself or in connection with
another fact, there may be a disagreement about the existence, nature and extent of any right or
liability. In other words, fact in issues means the matter which is in dispute or which forms the
subject of investigation.

Elements of fact in Issue

The requirement that a fact in dispute will be regarded as a fact in issue only if the fact is such
that by itself or in connection with other facts it is crucial to the question of right or liability
shows that there are two things to a fact in issue.

1. That the fact should be in dispute between the parties.

2. That the fact should touch the question of right or liability6.

The fact in issue depend upon the ingredients of the offence and state of the parties pleadings. In
criminal matters, the allegations in the charge sheet constitute the facts in issue. In civil matters
the process of ascertaining facts in issue is known as settlement of Issues under order 14 Rules 1-
7 of Cpc, 1908.

Thus, in a dispute relating to possession of house, ownership would be fact in issue, since once
the ownership is decided, who should have possession can easily be decided just by application
of law. In criminal law, ingredients of an offence are ‘facts in issue’. Example, in case of murder,
whether death is caused or not, whether death was caused with same intention as required by
section 300 IPC or not? Whether accused is entitled for any right of private defense or not?
These are ‘facts in issue’.

5
https://thelawdictionary.org/facts-in-issue/
6
Dr. Avtar Singh, Principles of The Law of Evidence ( edition- 23rd) 2018)

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Example: Niteshwar Prasad was brought before a Court on the charge of murder of Venkatesh.
He pleaded that he committed it upon grave provocation because he had caught Venkatesh
committing adultery with his wife. The Court held that determining whether adultery was
committed was a fact in issue.

Relevant Facts

The word 'relevant' has two meanings. in one sense, it means "connected" and another sense
"admissible". One fact is said to be relevant to another when the one is connected with the other,
in any of the way referred to in the provisions of the Evidence Act relating to the relevancy of
facts Section 5 to 55 of Indian Evidence Act, 1872. Categories of relevant facts are:

1. Facts forming part of same transactions

2. Certain Statements like admission, confession or dying declarations
3. Earlier judgment pertaining to the said cause of action
4. Opinion of expert of facts disputed
5. Character of parties.

Sir James Stephen in his Digest defines ‘relevant’ as “any two facts, to which it is applied are
so related to each other that according to the common course of vents one either taken by itself or
in connection with other facts prove or renders probable the past, present, or future existence or
non-existence of the other.”

If admissibility and nexus are the two criteria for relevance, a submission may be rejected for its
irrelevance if

1. the connection between the main facts and the evidentiary facts is too remote, or if
2. the evidence is rendered superfluous due to an admission by the opposite party, or
3. it is rendered superfluous by the admissions of the parties.

For example, if a person’s house has been robbed, then the fact that his maid has an extra key is a
relevant fact.

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Relevancy of a fact is important to ensure that evidence is admissible. The relevancy of evidence
will render an evidence to be admissible even though it was obtained by illegal manners.

Relevancy implies a relationship and such relationship with the facts in issue as convinces or has
tendency to convince the judge as to the existence or otherwise of the facts in issue. There are
two kinds of relevancy -

(i) Logical Relevancy - A fact is said to be logically relevant to another when by application of
our logic it appears that one fact has a bearing on another fact. Every fact that is legally relevant
is also logically relevant but every logical fact may not be legally relevant.

(ii) Legal Relevancy - A fact is said to be legally relevant when it is expressed as relevant under
Section 5 to 55 (Relevancy of Fact).

In Ram Bihari Yadav v. State of Bihar7, court held that the probative value of the evidence is
the weight which is to be attached to it. It wholly depends upon the facts and circumstances of
each case.

Relevancy and Admissibility

In the recent case of Ram Bihari Yadav v. State of Bihar8, the Supreme Court observed that
“More often the expressions ‘relevancy and admissibility’ are used as synonyms but their legal
implications are distinct and different from for more often than not facts which are relevant are
not admissible; so also facts which are admissible may not be relevant, for example questions
permitted to put in cross examination to test the veracity or impeach the credit of witnesses,
though not relevant are admissible. The probative value of the evidence is the weight to be given
to it which has to be judged having regards to the fact and circumstances of each case.”

7
1998 4 SCC 517
8
1998 4 SCC 517

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Difference between Facts in Issue and Relevant Facts

1. A fact in issue is a necessary ingredient of right or liability.

But a relevant fact in not a necessary ingredient of right or liability. It merely renders
probable the existence or non-existence of any ingredient of a right or liability.
2. A fact in issue is called the principal factor factum probandum.
A relevant fact is called the evidentiary fact or factum probans.
3. Facts in issue are the matters which are in dispute. These are the facts out of which some
legal right or liability necessarily arises and upon which a decision must be arrived at.
They are matters which are affirmed by one party and denied by the other.
But Relevant facts are not themselves in issue, but they are the foundation of the
inference regarding them.
4. Fact in issue are affirmed by one party and denied by other party.
Relevant facts are the foundation of inference.

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 Evidence

Bentham defines evidence as “any matter of fact, the effect, tendency or design of which, when
presented to the mind, is to produce in the mind, a persuasion concerning the existence of some
other matter of fact — a persuasion either affirmative or disaffirmative of its existence.”

The word , evidence is derived from the Latin word ‘evidens’ or ‘evidere’, which means “ to
show clearly; to make clear to the sight; to discover clearly; to make plainly certain; to ascertain;
to prove. The expression “judicial evidence” may be defined as evidence received by Courts in
proof or disproof of facts, the existence of which comes into question before such Courts. It will
thus be seen that judicial evidence is a species of the genus “evidence” and is mainly natural
evidence as refined and modified by rules of positive law.

If the Evidence Act prescribes a particular manner in which evidence is to be given, evidence
must be given in that manner, and in no other manner. If under the Act, two alternative modes of
giving evidence are permitted, and if before the second mode can be utilised, certain conditions
must be fulfilled it is open to the parties to admit that those conditions are fulfilled, in which case
the second manner of leading evidences is permitted under the Evidence Act. But the parties
cannot, by consent, admit irrelevant evidence as relevant9.

The SC in Pushpadevi M. Jatia v M.L Wadhwan10, held that where evidence offered come within
the meaning of its definition, the court can act on it and need not concern itself with the method
by which the evidence in question was obtained.

Different Kinds of evidences:-

1. Oral evidence: Oral evidence is evidence of a fact brought to the knowledge of the Court
by the verbal statement of a witness qualified to speak on the point he testifies to. It
includes all statements which the Court permits or requires to be made before it by
witness with regard to matters of fact under inquiry.
2. Documentary evidence: Documentary evidence is evidence of a fact brought to the
knowledge of the Court by inspection of a document produced before the Court.

9
Nathubhai v. Chhotubhai, A.I.R. 1962 Guj. 68
10
AIR 1987 SC 1748

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 Document means any matter expressed or described upon any substance by means of
letters, figures or marks or by more than one of those means intended to be used or which
may be used for the purpose of recording that matter.
3. Primary Evidence: Section 62 of the Indian Evidence Act defines Primary Evidence.
Primary evidences are the most superior class of evidences. These are those evidences
which are expected by the law and admissible and permissible at the first place. These are
those evidences 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 by
the court.
4. Secondary Evidences: are defined under section 63 of the Act. These are those
evidences which are entertained by the court in the absence of the Primary evidences.
Therefore it is known as secondary evidences.
5. Real Evidences: Real evidences are those evidences which are real or material
evidences. Real evidence or proof of a fact is brought to the knowledge of the court by
an inspection of a physical object rather than by deriving an information by a witness or a
document.
6. Hearsay Evidences: Hearsay evidences are the ones which the witness has neither
personally seen nor heard, nor has he percieved through his senses, but are those which
have come to his knowledge through some other person. These are the most weak
category of evidences.
7. Judicial Evidence: Judicial evidences are those which are given before the magistrate in
the court. For example: a confession made by the accused before the magistrate in the
court is an Judicial Evidence.
8. Non- Judicial Evidence: Any confession made by the accused outside the court and not
in front of the magistrate but in the presence of some other person are termed as Non-
Judicial evidences.
9. Direct Evidence: Direct evidences are those evidences which establishes a fact. The best
example of a direct evidence would be statement or confessions made by the witnesses.
10. Indirect or Circumstantial Evidence: Circumstantial or indirect evidence are the ones
which attempts to prove the facts in dispute by providing other facts. Circumstantial

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 evidences are not definite proof. They only provide a general idea as to what occured at
the crime scene. For proof by circumstantial evidence four things are essential:-
I. That the circumstances from which the conclusion is drawn be fully established.
II. That all the facts should be consistent with the hypothesis.
III. That the circumstances should be of a conclusive nature and tendency.
IV. That the circumstances, should, to moral certainty actually exclude every hypothesis
but the one proposed to be proved.

Distinction between Oral and Documentary evidence.

Following are the difference between oral and documentary evidence :-

1. Oral evidence is the verbal testimony of a witness who is a man or woman. Documentary
evidence is the written or scribed testimony of a witness which is a document or thing.
2. In case of oral evidence, the witness must be competent to adduce evidence. In case of
documentary evidence, the document or thing must be admissible in evidence.
3. Oral evidence is adduced, documentary evidence is proved before it is admitted.
4. In oral evidence competency is proved by a legal presumption. In documentary evidence
the competency must be proved by actual testimony.
5. In oral evidence the credit of the witness is tested by his own cross-examination, while in
documentary evidence the credit of the witness is tested by the cross-examination of
those who must be called to have the competency.

Difference between Direct Evidence and Circumstantial Evidence

1. Direct evidence is that which goes expressly to the very point in question and which, if
believed, proves the point in question without aid from inference or reasoning, e.g., the
testimony of an eye-witness to murder. Indirect or circumstantial evidence, on the other
hand, does not prove the point in question directly, but establishes it only by inference.
eg:- if A were tried for the murder of B, evidence of the fact A had a motive to murder
Band that, at the time B was murdered A, with a drawn sword, was seen going towards
the place where B was murdered and, shortly afterwards, was seen returning from the
place with his clothes stained with blood, would be indirect or circumstantial evidence.

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According to section 5 of the Act, evidence may be given in a proceeding of the existence or
non-existence of facts in issue and of such other facts as are declared to be relevant by the Act. If
the evidence relates directly to the existence or non-existence of a fact in issue, the evidence is
direct; but if it relates to the existence or non-existence of only a relevant fact, it is indirect or
circumstantial.

2. Circumstantial evidence cannot be regarded as satisfactory as direct evidence. The

circumstances may lead to particular inferences and the relationship to true facts may be
more apparent than real. The value of circumstantial evidence has to be assessed on
consideration that it must be such as not to admit of more than one solution, and that it
must be inconsistent with every proposition or explanation that is not true.

In the case of Kallu v. State Of Uttar Pradesh11, the accused was tried for the murder of the
deceased by shooting him with a country made pistol. A cartridge was found near the bed of the
deceased. The accused was arrested at a distance of 14 miles from the village which was the
place of occurrence. He produced a pistol from his house which indicated that he could have
alone have known of its existence there. The fire-arms expert proved that it was the same pistol
from which the shot was fired and deceased was killed. The Hon’ble Supreme Court while
convicting the accused held "Circumstantial Evidence has established that the death of the
deceased was caused by the accused and no one else."

11
1990 AIR 477

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 Witness
Majorly witnesses are of two types: a) Eye Witness ; b) Circumstantial Witness

Witnesses can further divided into following categories:-

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 prosecutor’s 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 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

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 witnesses have to be weighed and not counted since quality matters more than quantity in
human affairs."
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 is called hostile witness. . It is a settled principle of law that the statement of a hostile
witness can be relied upon by the court to the extent it supports the case of the prosecution12.
The evidence of hostile witness is not to be rejected en bloc. It has to be considered with
caution and should preferably be corroborated13.
6. Independent Witness: An independent witness means that the person seeing the situation
does not know any of the parties involved or who is not interested in the outcome or success
of the case. Mere no-examination of a witness is not disastrous to the prosecution case when
there is no lacuna in the evidences given by prosecution witnesses14. Evidence can be
accepted without corroboration, particularly where several of the prosecution witnesses were
completely independent and there was no to disbelieve their testimony15.

12
Mrinal Das v State of Tripura, AIR 2011 SC 3753
13
Paramjeet Singh v State of Uttarakhand, AIR 2011 SC 280
14
Kulwinder Singh v state of Punjab, AIR 2011 SC 567
15
Nandayala Venkataramana v. state of A.P., AIR 2015 SC 2488

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 Appreciation of Evidence
Appreciation of evidence is a term used in Indian law to refer to the consideration or examination
of the evidence by the court. It involves weighing the credibility and reliability of the evidence
presented in the case16. Appreciation of evidence is a matter of experience and knowledge of
human affairs. It is a delicate task to be carried out by Judges for weighing evidence and drawing
inferences. Each case presents its own peculiarities. Common sense and dexterity are also part of
the tools.

Evidence is required to be appreciated to find out what part out of it represents the true and
correct state of things. It is the function of separating the grain from chaff17.

While appreciating evidence in respect of any fact, relevant fact and fact in issue the Court has to
give its anxious consideration towards the peculiar facts of the case. There may be several facts
in a case before Court and among it some may be relevant or some may be fact in issue. The
Court has to first ascertain the facts, then it has to find out whether they are relevant and then
whether they are actually in issue. After ascertaining this, the Court shall examine the fact and
later by applying rules of evidence Court has to see that whether those facts are proved, disprove
or not proved.

The evidence of any injured eye witness can not be discarded in toto on the ground of inimical
disposition towards the accused particularly where his evidence, when tested in the light of broad
probabilities, it can be concluded that he was a natural eye witness, and had no reasons to
concoct a case against the accused18.

When independent evidence is not available for any reason, the Court will have to examine the
evidence of the police witnesses carefully on scrutinize the same and, if found reliable,
conviction can be based on such evidence. Mere fact that the police personnel belong to the
police department can not be a ground to reject their testimony if otherwise inspires confidence
and no hostility of the police with the accused is shown. Where weapons of assault were
recovered pursuant to the statement of the accused and there was no animosity between the

16
https://definitions.uslegal.com/
17
Ganesh K. Gulve v. State of Maharashtra, AIR 2002 SC 3068
18
Suresh Sitaram Surve V. State of Maharashtra AIR 2003 S.C. 344

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accused and the police nor any suggestion was made that the police foisted the recoveries, it was
held that it would be safe to believe uncorroborated statement of the Police Inspector, the solitary
witness, in respect of recoveries19.

The testimony of witness which is cogent, credible and trustworthy, was not allowed to be wiped
out only because there was an accusation against him in a counter case20.

Statements of witnesses are not to be read in parts or in isolation. They have to be read alongwith
statements of other witnesses to arrive at a reasonable conclusion21.

19
Bhimsha Subanna Pawar Vs State of Maharashtra, 1996 AIHC 1 Bombay
20
Raj Kishore Jha v State of Bihar, AIR 2003 SC 4664
21
Shaymal Ghosh v State of WB, AIR 2012 SC 3539

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 Proof
These provisions of the Act deal with the degree or standard of proof. What and how much proof
is necessary to convince the judge of existence of a fact in issue? In civil cases, for example, a
matter is taken to be proved when the balance of probability suggests it, nut in criminal cases the
court requires a proof beyond reasonable doubt22. Proof means such evidence as would induce a
reasonable man to come to the conclusion. Suspicion cannot take the place of proof, nor moral
belief of the judge in the guilt of the accused. All that can be done is to adduce such evidence as
that the mind of the tribunal is satisfied that the fact is so. In the ordinary affairs of life courts do
not require demonstrative evidence. Absolute certainty amounting to demonstration is seldom to
be had in the affairs of life and we are frequently obliged to act on degrees of probabilities which
fall very short of it indeed.

Supreme Court held that in Criminal cases there has to be a proof which leaves behind no
reasonable doubt about the prosecution version. The victim's dying declaration which left many
uncovered points and also narrated an unnatural story. Because of these doubts the evidence was
rejected23.

In Naval Kishore Somani v. Poonam Somani,24 Andhra Pradesh High Court observed that a
fact which is not proved does not necessarily mean it is a false one. The expression ‘proved’ is
followed by expression ‘disproved’. A fact is said to be ‘not proved’ when it is neither proved
nor disproved. The word ‘disproved’ is normally said to be a false thing. It will thus be seen that
a fact not proved is not necessarily a fact disproved. A fact which is not proved may be true or
may be false. A doubt lingers about the truth. Merely because it is not proved one may not jump
to the conclusion that it is disproved. A fact is disproved normally by the person who claims that
the alleged fact is not true. For disproving a fact, the burden of proof is always upon the person
who alleges that the fact is not true.

Not Proved where the fact is deemed to be not proved from the standard of a person of ordinary
prudence. The phrase NOT PROVED means neither the fact is proved with certainty nor the fact
is believed to exist. The phrase NOT PROVED is between the phrase proved and disproved. And

22
Iqbal Singh v Meenakshi Marwah, (2005) 4 SCC 370
23
Jagga Singh v State of Punjab, AIR 1995 SC 135
24
AIR 1999 AP 1

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the phrase not proved is the result of careful scrutiny of the person of ordinary-prudence that the
fact either exists with certainty nor its non-existence is proved with certainty. It is provision
between existence and non-existence of the fact in the mind of a man of ordinary prudence.

S. no Proved Disproved Not Proved

1 The term ‘proved’ is The term ‘disproved’ is The term ‘Not Proved’ is a
positive negative mean between the terms
proved and disproved
2 When fact is proved the When a fact is disproved When a fact is not proved, it
court gives judgment in no further question arises implies further evidence
favour of the person, who as to its proof. either to prove or disprove
has proved it. the fact.

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 Section 4 of Indian Evidence Act, 1872
Section 4 "May Presume” - Whenever it is provided by this Act that the Court may presume a
fact, it may either regard such fact as proved, unless and until it is disproved, or may call
for proof of it.

"Shall Presume"- Whenever it is directed by this Act that the Court shall presume a fact, it shall
regard such fact as proved, unless and until it is disproved

"Conclusive Proof"- When one fact is declared by this Act to be conclusive proof of another,
the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence
to be given for the purpose of disproving it.

Section 4 of the Indian Evidence Act deals with three categories of presumptions:-

1. Discretionary Presumptions known as "May Presume"

A court has discretion to presume a fact as proved, or to call for confirmatory evidence as the
circumstances require. In such cases the presumption is not a hard and fast rule. The presumption
is juris et de jure. The court is free to presume any fact or not as the presumptions are about the
question of facts. It may regard such fact as proved, unless and until it is disproved or may call
for the proof of it. The Sections of the Indian Evidence Act which deal with Discretionary
Presumptions relating to documents are sections 86, 87, 88, 90 and 90-A. These Presumptions
are those in which the words may presume are used in the sections and the words may presume is
used signifies that the courts of law have discretion to decide as to whether a presumption is
allowed to be raised or not. In the case of such presumptions the courts of law will presume that
a fact is proved unless and until it is said to be disproved before the court of law or it may call for
proof of a fact brought before it.

If in a case the court has an option to raise the presumption and raises the presumption, the
distinction between two categories of presumptions ceases and the fact is presumed, unless and
until it is disproved. It is open to the Court upon proof of a marriage on a certain date, either to
regard as proved the subsistence of the marriage on a subsequent date unless and until it should
be disproved or else to call for proof of it.

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Example:- Under section 90 of the Evidence Act when a document of thirty years old is
produced before the court, it may be presumed that the document was signed and written by a
person by whom it was presumed to have been written and signed. Similarly, Section 88 of this
Act deals with presumption (may presume in nature) such as to telegraphic message.

2. Mandatory Presumption known as "Shall Presume"

The court is bound to presume a fact as proved. The presumption is rebuttable presumption as it
is presumption of law. Whenever there is provision to the effect, “that the court shall presume a
fact,” the court cannot exercise its discretion, but in such circumstance the court shall have
liberty to allow opposite party to adduce evidence to disprove the fact so presumed. If the party
is successful in disproving it the court shall not presume the fact. The expression “shall presume”
is to be understood as in terroren i.e. having some import of compulsion. The Sections of the
Indian Evidence Act which deal with Mandatory Presumptions are Section 79, 80, 80-A, 81, 82,
83, 85 and 89. These Presumptions are those in which the words shall presume is used. In case of
such presumptions the courts of law will presume that a fact before it is proved until and unless it
is disproved. The words shall presume signify that the courts have to mandatorily raise a
presumption and such a presumption which is raised shall be considered to be proved unless and
until the presumption is said to be disproved and there is no discretion left to the court therefore
there is no need for call of proof in this case. It is like command of the legislature to the court to
raise a presumption and the court has no choice but to do it. The similarity between discretionary
and mandatory presumptions is that both are rebuttable presumptions.

Example:- Under section 89 of the Evidence Act “the court shall presume that every document,
called for and not produced after notice to produce attested, stamped and executed in the manner
required by law.

3. Conclusive Proof

When a fact is a ‘conclusive proof’ of another fact the court has no discretion to disprove it. It is
irrebuttable presumption and the court shall not allow evidence to be given for the purpose of
disproving it. “Conclusive proof’ gives an artificial probative effect by the law to certain facts.
No evidence is allowed to be produced with a view to combating that effect. In this sense it is
irrebutable presumption. “Conclusive proof is also within the realm of the Evidence Act. Where

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a statute makes certain facts as final and conclusive, evidence to disprove such facts is not to be
allowed. This is the strongest of all presumptions. Conclusive Proof is also known as Conclusive
Evidence. It gives certain facts an artificial probative effect by law and no evidence shall be
allowed to be produced which will combat that effect. It gives finality to the existence of a fact
which is sought to be established. This generally occurs in cases where it is in the larger interest
of society or it is against the governmental policy. When any person signs a document is
presumed that he has read the document properly and understood it and only them he has affixed
his signature thereon, otherwise no signature on a document can ever be accepted. “In particular,
businessman, seeing careful people (since their money is involved) would have ordinarily read
and understood a document before signing it. Hence the presumption would be even stranger in
their case.”

Example:- Birth during marriage, a final judgment of the court, or a degree conferred by the
University.

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 Bibliography
BOOKS

1. Dr. Avtar Singh, Principles of The Law of Evidence ( edition- 23rd) 2018).
2. Batuk Lal, The Law of Evidence
3. Mr.Rattan Lal & Dhiraj Lal, The Law of Evidence
4. P.M. Bakshi, Basu's Law of Evidence

Websites
1. http://www.legalserviceindia.com
2. http://www.scconline.com/
3. https://indiankanoon.org
4. https://legal-dictionary.thefreedictionary.com
5. https://definitions.uslegal.com/

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