Law of Evidence

Admissibility

Unit- 4
Introduction to Forensic Science
Indian Evidence Act, 1872
Evidence: Indian Evidence Act
• 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”.

• Evidence- Evidence means and includes-

• All statements which the court permits or requires to be made before it by
the witnesses, in relation to matters of fact under inquiry; such statements are
called oral evidence;
• All documents including electronic records produced for the inspection of
the Court, such documents are called documentary evidence.
•The term Evidence covers (a) the evidence of witnesses, and (b) Documentary
evidence. Evidence can both be oral and documentary and electronic records can be
produced as evidence. The word ‘evidence’ does not includes everything that is before
a Court. There are other medium of proof as well. For e.g.-
•The statement of parties,
•The result of investigations held,
•Any real or personal property been inspected in determining the question at issue,
such as weapons, tools or stolen property.
• Evidence refers to anything that is necessary to prove a certain fact. Thus, Evidence
is a means of proof. Facts have to be proved before the relevant laws and its provisions
can be applied. It is evidence that leads to authentication of facts and in the process,
helps in rationalising an opinion of the judicial authorities.
• Further, the law of evidence helps prevent long drawn inquiries and prevents
admission of excess evidence than needed.
• The main principle which underlie the law of evidence are:
(1) evidence must be confined to the matter in issue;
(2) hearsay evidence must not be admitted; and
(3) best evidence must be given in all cases.

• The law of evidence is part of the law of procedure, i.e. the procedure court has to
follow. This is expressed by saying that it is law of the forum (or court) or the lex
fori.
The law of evidence is the same in civil and criminal proceedings
THE LAW OF EVIDENCE IS THE LEX FORI

• Law of evidence is part of the law of procedure. That why it is called the lex
fori or the law of the court or forum. It means that Indian courts know and
apply only the Indian law of evidence. Thus, the competency of a witness,
whether a fact is proved or not is determined by the law of the country where
the question arose, where the remedy is sought to be enforced and where
the court sits to enforce it. For example, if a legal proceeding is going on in Sri
Lanka and evidence is taken in India for the said proceeding whether by
commission or by assistance of courts in India, the law which will be applied
during such recording of evidence will Sri Lankan Law of Evidence.
 Evidence
• Two types
• Testimonial evidence
• Physical Evidence

• Testimonial evidence is the statement made under oath. [also called

“direct” evidence or “prima facie” evidence]

• Physical evidence is any object or material relevant in a crime [also

called “Real” evidence]
What is testimony?

• In the law, testimony is a form of evidence that is obtained from a

witness who makes a solemn statement or declaration of fact.
• Testimony may be oral or written, and it is usually made by oath or
affirmation under penalty of perjury.
Problems with eyewitness testimony
• errors in memory
• crime scene too dark
• encounter too brief
• stress factors
• time between crime and questioning
• new info clouds memory age of witness
• mental state of witness
• leading questioning techniques
• relationship between witness and accused
Physical Evidence
We look for physical and chemical properties in the physical evidence

Physical properties: color, density, solubility, refractive index

things that help identify something without changing the object

chemical properties: formation of bubbles, color change, pH change, etc

 Physical Evidence
• Some evidence is fleeting, or transient
• odor—putrefaction, perfume, gasoline, urine, burning, explosives,
cigarette or cigar smoke
• temperature—surroundings, car hood, coffee, water in a bathtub,
cadaver
• imprints and indentations— footprints, teeth marks in perishable
foods, tire marks on certain surfaces
• Pattern evidence is produced by direct contact between a person and an
object or between two objects.
• mostly in the form of imprints, indentations, striations, markings, fractures, or
deposits

• Blood spatter
• Glass fracture
• Fire burn pattern
• Furniture position
• Projectile trajectory
• Tire marks or skid marks
• Clothing or article distribution
• Gunpowder residue
• Material damage
• Body position
• Toolmarks
Types of evidence:
(a)Best and oral evidence,

(b) Circumstantial evidence, (c ) Direct evidence,

(d) Hearsay evidence,

(e) Corroborative evidence,

(f) Documentary evidence,

(g) Primary and secondary evidence,

(h) Real evidence

Best and Oral Evidence (sec.60)
•Act requires in oral evidence that person who has actually perceived something by that
sense by which it is capable of perception, should make the statement about it and no one else.

•If it refers to a fact which could be seen, it must be the evidence of a witness 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 opinions or to the grounds in which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds.
Real Evidence:
• It is covered under second proviso to Sec 60 – “Provided also that, If oral
evidence refers to the existence or condition of any material things other than
a document, the court may, if it thinks fit, require the production of such
material thing for its inspection.” For e.g. weapons, scar of wounds or other
injury like loss of leg or hand.
Circumstantial evidence:
Circumstantial evidence means the evidence of circumstances and is
sometimes referred to presumptive evidence:

A is charged with the murder of B. At the trial a witness C , on behalf of the

prosecution, gives evidence that he saw A running away from the murder
place, with blood stained knife in his hand, evidence given by C will be called
circumstantial evidence.
Hearsay evidence:
The reasons why hearsay evidence is not received as relevant evidence are: (a)
the person giving such evidence does not feel any responsibility. If he is
concerned he has line of escape by saying” I do not know, but so and so told
me.” (b) Truth is diluted and diminished with each repetition: and , (c ) if
permitted, gives ample scope for playing fraud by saying,” some one told me
that..” It would be attaching importance to a false rumor flying from one foul lip
to another..
Corroborative evidence:
Sec 156 and 157 says: 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 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. A sees B hit by a car and run over. The
car does not stop but A notes the number He lodges a complaint to police. Police arrests
driver and put him for trial rash and negligent driving A is the principle witness, when
he gives oral evidence but at the end, the complaint given by him to the police, shown to
him regarding accident and if he says yes, it is marked as exhibit, it is corroborative
evidence.
Documentary evidence:
Documentary evidence is defined in the Act as: All documents produced for the
inspection of the court. The purpose of producing document, is to rely upon the
truth of the statement contained therein. This involves, When the document
produced in the court, the examination of three questions: (i) is the document
genuine, (ii) what are its contents, and (iii) are the statement in the document
true?

Documents are divided into two categories, public and private:

Primary and secondary Evidence:
There is an original document; a photograph is taken and a manuscript is made from the
photograph, and compare either with the original or photograph. The original is primary
evidence. The photograph and copy is secondary evidence coming under Sec 63(2). That
requires that the first copy should have been made by a mechanical process ensuring the
accuracy of the copy.

Section 65 specifies in what cases secondary evidence will be received. Example- when a
original is shown or appear to be in 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 sec 66, such person does not produce it. When the original document is lost or destroyed then
secondary evidence of the contents of the document is admissible.
Direct Evidence:
Direct evidence is referred to sometimes as original. A is charged with the
murder of B by stabbing him. C,D,E,F,G and H are witnesses. At the trial a
witness C says he saw A stab B. D says he heard B cry out that A was stabbing
him. E says that A saw running with blood stained knife. F says he saw A
washing blood stained clothes. G, who is doctor says that the knife found in
A’s possession might be caused the wound. H says he heard from. C’s
evidence is direct evidence
Dying Declaration
Under sec 32(1), statements, written or verbal, of relevant facts made by
a person who is dead are themselves relevant facts in the following
cases- when the statement is made by a person as to the cause of his
death, or as to any of the circumstances of the transaction which resulted
in his death, in cases in which the cause of that person’s death comes
into question.
•Such statement are relevant whether the person who made them was or was
not, at the time when they were made, under expectation of death, and
whatever may be the nature of the proceedings in which the cause of his death
comes into question

• This is an obvious exception to the rule that hearsay evidence should not be
permitted.

• The word “verbal” has been interpreted to mean not necessarily 'oral ', but also
as including gestures made by a dying man, unable to speak, in answer to
questions put to him.
Autopsy:
• Autopsy is the systematic examination of a cadaver for study or for determining
the cause of death.
• Autopsy means "see for yourself".
• It is a special surgical operation, performed by specially trained physicians, on a
dead body.
• Its purpose is to learn the truth about the person's health during life, and how the
person really died.
• Autopsies, also known as necropsies, postmortems, or postmortem examinations, use
many methodical procedures to determine the etiology and pathogenesis of diseases, for
epidemiologic purposes, for establishment of genetic causes, and for family counsel.
• Post-mortems may be performed at the request of the authorities in cases of
unexplained and suspicious death or where a physician did not attend death.
• In other circumstances post-mortem examination may be performed only with the
consent of the deceased's family or with permission granted by the person himself
before death.
Court of Law
• 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 their 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. A Court is constituted by a minimum of three parties-

• The Plaintiff-is a person who complains for an injury caused to him.

• The Defendant-is a person who defenses himself against the complaint made by
the plaintiff against the defendant.
• The Judicial power-who is to examine the truth of the fact and deliver a
judgment.
• Besides this Advocates of both the parties.
 Fact
• FACT- The term ‘’fact’’ means and includes-
• Any thing, state of things, or relation of things, capable of being perceived
by the senses;
• Any mental condition of which any person is conscious.
Example-
• That man heard or saw something, is a fact.
• That women has a certain reputation, is a fact.
• The jar kept on the table, is a fact.
• That a man holds a certain opinion, has a certain intention, acts in good
faith, acts fraudulently, or uses a word in a particular sense, or is or was at a
specified time conscious of a particular sensation, is a fact.
• That girl has so and so name, is a fact.
Relevant Fact: Indian Evidence Act
• Relevant fact-
• A fact is said to be relevant to another when one fact is connected
with the other fact in any ways referred to in the provisions of this act in
the chapter of relevancy of facts.
• Relevant fact-The word ‘relevant’ means that any two facts to which
it is applied are in such a way related to each other that, one, either
taken by itself or in connection with the other facts, proves or renders
probability of the past, present or future existence or non-existence of
the other.
• ‘relevant’ means admissible in evidence. Of all the rules in evidence
the most important is that the evidence adduced should be confined
only to the matters which are in dispute, or which form the subject of
investigation.
Fact in Issue: Indian Evidence Act
• Facts in issue-
• The expression ‘fact 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.
Example- A is accused for the murder of B. At his trial in the court
the following facts may be in issue-
• That A caused B’s death;
• That A intended to cause B’s death;
• That A, at the time of doing the act which caused B’s death, was by
reason, of unsound mind or incapable of knowing its nature.
Document: Indian Evidence Act
• Document-
• The term ‘’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. Example-
• 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.
Admissibility of Scientific Evidence
• Daubert vs Merill Dow case
• The Daubert standard governs the admissibility of expert witness
testimony during all U.S. federal legal proceedings and over half of state
proceedings.
• It allows for the legal challenge of any expert witness testimony.
• In essence, the expert scientific witness has the burden of proof
relative to the validity and acceptability of his or her scientific
conclusions.
• Daubert standard: provides a rule of evidence regarding the
admissibility of expert witnesses' testimony during United States
federal legal proceedings.
Admissibility of Scientific Evidence
• Frye standard, Frye test, or general acceptance test is a test to
determine the admissibility of scientific evidence. It provides that expert
opinion based on a scientific technique is admissible only where the
technique is generally accepted as reliable in the relevant scientific
community.
• But, Daubert requirement has defined the scientific methodology:
 Admissibility of Scientific Evidence
• Factors relevant: The Court defined "scientific methodology" as the process of
formulating hypotheses and then conducting experiments to prove or falsify the
hypothesis, and provided a nondispositive, nonexclusive, "flexible" set of "general
observations" that it considered relevant for establishing the "validity" of scientific
testimony:
• Basic facts:
1. Empirical testing: whether the theory or technique is falsifiable, refutable,
and/or testable.
2. Whether it has been subjected to peer review and publication.
3. The known or potential error rate.
4. The existence and maintenance of standards and controls concerning its
operation.
5. The degree to which the theory and technique is generally accepted by a
relevant scientific community.
 ‘Cognizable’ and ‘Non-cognizable’ Offences in
India
• Cognizable offence means an offence for which a Police Officer may (in accordance with
Schedule I of the Code or under any law for the time being in force) arrest without a
warrant.
• A non-cognizable offence is one where a Police Officer has no such authority to arrest
without a warrant.
• Non-cognizable offences are thus more trivial and less serious than cognizable ones. In
the former, the Police will not interfere or arrest the offender without a warrant; in the
latter, the Police is authorised to arrest without a warrant, as the offender might escape
by the time the Police obtain a warrant.
‘Cognizable’ and ‘Non-cognizable’ Offences in India: IPC
(Indian Penal Code)
• under Schedule I of the Code, the following are examples of offences
under the Indian Penal Code which are cognizable offences:

• S. 121: Waging war against the Government of India

• S. 124: Assaulting the President of India or the Governor of a State, with intent to
compel or restrain the exercise of any lawful power
• S. 302: Murder
• S. 304: Culpable homicide not amounting to murder
• S. 304-A: Causing death by rash or negligent act
• S. 304-B: Causing dowry death
• S. 379: Theft
• S. 384: Extortion.
 ‘Cognizable’ and ‘Non-cognizable’ Offences in
India
• under Schedule I, the following are instances of offences under the Indian Penal Code
which are classified as non- cognizable:
• S. 168: Public officer unlawfully engaging in any trade
• S. 172: Absconding to avoid service of summons
• S. 177: Knowingly furnishing false information to a public servant
• S.186: Obstructing a public servant in discharge of his public functions
• S. 278: Making atmosphere obnoxious to health
• S. 494-A: Keeping a lottery office
• S. 426: Mischief
• T. 477-A: Falsification of accounts.
 F.I.R
• A First Information Report (FIR) is a written document prepared by police organizations in
they receive information about the commission of a cognizable offence.
• It is generally a complaint lodged with the police by the victim of a cognizable offense or by
someone on his on her behalf, but anyone can make such a report either orally or in writing to
the police.
• An FIR is an important document because it sets the process of criminal justice in motion.
• It is only after the FIR is registered in the police station that the police take up
investigation of the case.
• Anyone who knows about the commission of a cognizable offence, including police
officers, can file an FIR.
• As described in law,
• When information about the commission of a cognizable offence is given orally, the police
must write it down.
• The person giving information or making a complaint has a right to demand that the
information recorded by the police be read to him or her.
• Once the information has been recorded by the police, it must be signed by the person
giving the information.
First Information Report (F.I.R) – Section 154 of Code of
Criminal Procedure (CrPC)

• Section 154 of the Code of Criminal Procedure deals with what is commonly known
as a First Information Report. It provides that every information relating to the
commission of a cognizable offence, if given orally to an Officer-in-charge of a Police
Station, must be reduced in writing by him, and read over to the informant.
• The information should also be signed by the person giving it, and the substance
thereof must be entered in the book which is to be kept by such Officer in the
prescribed form. A copy of the information recorded, as above, is also to be given
free of cost to the informant.
• It may, however, be noted that the condition that such information must be
signed by the person giving it, is merely a procedural matter, and failure to observe
this procedure does not make the information, which is reduced into writing,
inadmissible.
 Deposition by Child Witnesses
• Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that
every witness is competent to depose unless the court considers that he is prevented from
understanding the question put to him, or from giving rational answers by reason of
tender age, extreme old age, disease whether of body or mind or any other cause of the
same kind. There is always competency in fact unless the Court considers otherwise.
• ".....It is desirable that Judges and magistrates should always record their opinion that
the child understands the duty of speaking the truth and state why they think that,
otherwise the credibility of the witness may be seriously affected, so much so, that in some
cases it may be necessary to reject the evidence altogether. But whether the Magistrate or
Judge really was of that opinion can, I think, be gathered from the circumstances when
there is no formal certificate....“
 Deposition by Child Witnesses
• Section 4 in The Oaths Act, 1969
• 4. Oaths or affirmations to be made by witnesses, interpreters and jurors.—(1) Oaths or affirmations
shall be made by the following persons, namely:—(a) all witnesses, that is to say, all persons who may
lawfully be examined or give, or be required to give, evidence by or before any court or person having by
law or consent of parties authority to examine such persons or to receive evidence;
• (b) interpreters of questions put to, and evidence given by, witnesses; and
• (c) jurors: Provided that where the witness is a child under twelve years of age, and the court or person
having authority to examine such witness is of opinion that, though the witness understands the duty of
speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions
of this section and the provisions of section 5 shall not apply to such witness; but in any such case the
absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor
affect the obligation of the witness to state the truth.
• (2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or
affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to
administer to the official interpreter of any court, after he has entered on the execution of the duties of
his office, an oath or affirmation that he will faithfully discharge those duties.
Witnesses
Section 118. Who may testify?
• All persons shall be competent to testify unless the Court considers that they are
prevented from understanding the question put to them, or from giving rational answer to
those questions, by tender years, extreme old age, disease, whether of body and mind, or
any other cause of the same kind.
Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy
from understanding the question put to him and giving rational answers to him.

Section 119. Dumb witnesses

• A witness who is unable to speak may give his evidence in any other manner in which he
can make it intelligible, as by writing or by signs; but such writing must be written and the
signs made in open Court. Evidence so given shall be deemed to be oral evidence.