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Report No. 69

XIX. Evidence

6.38. Section.-"Evidence".-

The next definition to be considered is of "evidence". "Evidence", as defined in section 3, 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 produced for the inspection of the Court; such documents are called documentary evidence.

The definition is not exhaustive of all matters which a Court can consider in determining questions of fact. The expression "matters before it", in the definition of the expression "proved", obviously includes matters which do not fall within the definition of "evidence". This is pointed out in a Calcutta case1.

1. Joy Comar v. Bindu Lai, 1882 ILR 9 Cal 363 (366).

6.39. Objection to incompleteness of the definition.-

The definition of evidence has been objected1 to for incompleteness, in so far as, by its terms, it does not include the whole material on which the decision of the Court may rest. Thus, in so far as a statement by a witness only is "evidence", the following are not "evidence" according to it, (a) the oral statements of parties and the accused in Court by way of admission or confession or in answer to questions by the Judge2, (b) a confession by an accused person affecting himself and his co-accused3, (c) "real evidence4", and (d) the presumptions to be draWn by reason of the absence of producible witness or evidence5.

But it should be pointed out that this clause is an interpretation clause, and is only meant to indicate what is intended to denote whenever the word "evidence" is used in the Act6. The definition must be considered together with the definition of "proved7". When it is so considered, we haVe a certain measure of elasticity and the apparent incompleteness becomes immaterial.

As Jackson J. has observed8, "it seems to follow therefore that if a relevant fact is proved and the law expressly authorises its being taken into consideration, that is considered for a certain purposes or against certain persons, in a certain situation, the fact in question is 'evidence' for that purpose, or against such persons, although the result has not been expressed in these words by the Legislature: and, being evidence, it must be used in the same way as everything else that is 'evidence'.

Thus, an oral admission in Court is a matter before the Court which may be taken into consideration9". The confession of a prisoner affecting himself and another person charged with the same offence is10, when duly proved, also one of such matters, as the law now stands11, although in actual practice courts are reluctant to rely on it.

1. Thayer's Preliminary Treatise on Evidence (1898), 263, referred to by Woodroffe.

2. Section 165.

3. Section 30.

4. See infra.

5. Section 114, illustration (g).

6. R. v. Ashootosh, 1877 ILR 4 Cal 492 (FB).

7. Joy v. Bundhoolall, 1882 ILR 9 Cal 366.

8. R. v. Ashootosh, 1877 ILR 4 Cal 492 (FB).

9 Joy v. Bundhoolall, (1882) 9 Cal 366.

10 (a) R. v. Ashootosh, ILR 4 Cal 483. '

(b) R. v. Krishna Bhat, 1885 ILR 12 Born 386.

(c) R. v. Dada, 1889 ILR 15 Born 459.

11. Section 30.

6.40. Use of the expression.-

The expression "evidence" is used in several sections, including section 5 (evidence of facts in issue and relevant facts), 59, 60 (oral), 60 (evidence must be direct), 61-100 (documentary), 91-100 (exclusion of oral by documentary), 114(g), (producible but not produced), 100-116 (production and effect of), 118-166 (witnesses), 167 (improper admission and rejection of evidence).

6.41. Real or material evidence.-

It may be of interest to note that the Bill, as originally drafted, contained a third sub-division included in the definition of "evidence", namely-

"(3) All material things other than documents produced for the inspection of the Court; such things are called material evidence."

However, this part of the definition did not find a place in the Act as enacted. Stephen1, regarded the definition as unnecessary, on the ground that material objects will, in any case, have to be produced by witnesses who give oral evidence.

1. Stephen Introduction to Indian Evidence Act, (1872), p. 11. See G.D. Nokes Real Evidence, (1949) 65 LQR 57.

6.42. Academic discussion.-

There is considerable academic discussion about real evidence. Phipson1, in an article in the Yale Law Journal, defined real evidence as "material objects other than documents provided for the inspection of the court". It may be noted that the name "real evidence" was adopted by Best, though the division of evidence into personal and real dates from the time of Bentham.

1. Phipson Real Evidence, (1920) 29 Yale LJ 717.

6.43. Categories of real evidence.-

Certain writers include, in the category of real evidence, (a) evidence from things as distinct from persons, (b) material objects produced for the inspection of the Court, (c) perception by the court as distinct from the facts perceived, and (d) the behaviour of witnesses.

6.44. Inspection.-

There are, in the two procedural Codes1, appropriate provisions for the inspection of premises of property; but these provisions are usually interpreted not as furnishing a fresh species of evidence, but as useful for appreciating evidence already given. However, if the view of the place is accompanied by a demonstration by the witness, it is regarded as a part of the evidence2. The witness, if taken to the spot, to make his evidence intelligible, may start to give his evidence all over again. As Shakespeare said3; "Old man forget, yet all shall be forgot; but hell remember with advantages what feats he did that day"-that is to say, if he is taken to the place.

1. (a) Order 18, rule 18, Code of Civil Procedure, 1908. (b) Section 310, Code of Criminal Procedure, 1973.

2. See discussion in Tameshwar v. R., (1957) 2 All ER 683 (686) (PC), following Karamat v. Reg., (1956) 1 All ER 415.

3. Shakespeare Henry the Fifth, Act 4, Part 3.

6.45. Photograph of object.-

Sometimes, the real object is not produced in Court and only its photograph is produced. In Lucas v. Williams, Act 4, Part 3 the production of the photograph of an engraving of a picture was admitted as evidence, in an action infringing the copyright of the picture by selling the photograph. Again, the appearance of a person who is not a witness may have value as evidence when identity or age or physique is in issue. Thus, the resemblance of an infant to an alleged parent may be relevant (though not cogent) evidence of paternity1, and the alleged similarity or dissimilarity2 may be observed by as comparison of the child and the adult in court3.

1. (a) Burnaby v. Bailie, (1889) 42 Ch D 282 (290, 297, 298).

(b) Russell v. Russell, (1923) 129 LT 151 (153) [this point was not discussed in the appellate courts; see 1924 AC 687 (705, 749)].

2. See Kenny Physical Resemblance as Evidence of Consanguinity, (1923) 39 LQR 297.

3. See note in 102 Law Times Journal 188.

6.46. No Changes needed.-

We are mentioning this species of real evidence or matters analogous thereto, in order to facilitate an examination of the question whether it is necessary to include such evidence in the definition in the Act. After careful consideration, we have come to the conclusion that it is not necessary to do so. Such material can be produced for the inspection of the court and is, in that sense, not unknown to the scheme of our law. This is, in a sufficient measure, established by the provisions for production of the material objects before the court which are contained in the two procedural Codes and which are also indirectly referred to in section 60.

The extent to which the courts can rely on such real or material evidence or local inspection and the like is a matter not dealt with in the Act and would, in fact, seem to be a topic rather difficult of legislative codification. Moreover, the fact that a court can, in coming to a conclusion, have regard not only to what is strictly speaking "evidence" as defined in the Act, but also to matters which are properly for its consideration is, as already stated, a proposition implicit in the definition of the expressions relating to proof. In the circumstances, we do not consider it necessary to recommend any change on this point.

Indian Evidence Act, 1872 Back

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