TYPES OR KINDS OF EVIDENCE

ADV. USHA ANDEWAR

The term ‘Evidence’ originates from the Latin ‘Evidens’ and ‘Evidere,’
signifying clarity and noteworthiness in proof. Various types of evidence
hold paramount significance in legal proceedings as it substantiates claims
and allegations in court. Without evidence, assertions lack substance.

Importance of evidence

 Supports the argument that backs your case. Evidence acts as the
ammunition for a legal argument.
 Refutes the statement of the opposing side.
 Allows the defendant to move beyond mere statements.
 One of the primary reasons why evidence is crucial in court is its role in
ensuring fairness and justice.
 Evidence is like the backbone of a court case. It provides the support
and strength needed to prove or disprove a legal claim. Without it, the
case may crumble like a house of cards.

Section 2 (1) (e) of the Bharatiya Sakshya Adhiniyam, 2023, defines the
types of evidence in the Adhiniyam and legal proceedings, encompassing
two primary categories :-

(1) Oral evidence, which includes statements made by witnesses relevant

to the matter under inquiry and presented with court authorization.
(2) Documentary evidence, comprising documents, whether physical or
electronic, submitted to the court for examination.

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Types of Evidence in Adhiniyam

I. Oral Evidence
Oral evidence pertains to spoken statements and can stand alone as
proof without the need for supporting documents, provided it is
deemed credible. The BSA allows for oral evidence to be given
electronically, meaning witnesses, accused persons, and victims can
testify through electronic means.

Direct oral evidence is firsthand, acquired through a witness’s own

sensory perception, making it direct evidence according to Section
55 of the Adhiniyam (Oral evidence to be direct).
That is ;
• It refers to a witness who says he saw it;
• It refers to a witness who says he heard it;
• It refers to a witness who says he perceived it by that sense or in
that manner;
• It refers to a person who holds that opinion on those grounds:

Oral evidence gets the authority to be presented in court through

Section 54 of the Adhiniyam (Proof of facts by oral evidence).
Anything said in the court would be considered as oral evidence. The
law has a provision for those types of witnesses who cannot
communicate orally; anything they communicate through writing or
any other way in the court would be considered oral evidence
(Section 125 of Adhiniyam).

Oral is a different form of the word Verbal. In Queen Empress Vs.

Abdullah, (27th February 1885) - (1885) ILR 7 All 385; where the throat
of the deceased girl was cut and she being unable to speak indicated
the name of the accused by the signs of her hand. In this judgment -
difference between Verbal and Oral is explained. Verbal means by the

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 word, it is not necessary that the words should be spoken. If the term
used in the section were oral, it might be that the statement must be
confined to words spoken by the mouth. But the meaning of Verbal is
something Wider as given in section 60 of Adhiniyam.

Indirect or hearsay evidence, which involves a person reporting

facts they did not directly witness, is generally inadmissible in court.
However, exceptions exist, allowing the admission of hearsay evidence
under specific circumstances, as outlined in Sections 26 and Section
27 of the Adhiniyam i.e. statements made by person who is dead or
cannot be found or called as witness.

It is considered second-hand information. It is not direct evidence;

the witness or the person using it uses the information from a person
who has the firsthand knowledge of the matter. The hearsay
evidence is not admissible in a court of law.

Exceptions to the hearsay evidence

(ii) Admissions
(iii) Res Gestae
(iv) Dying Declarations
(v) Confessions
(vi) Evidence that was given in former proceedings

2. Documentary Evidence

Document – Section 2 (1) (d) - means any matter expressed or

described or otherwise recorded upon any substance by means of
letters, figures or marks or any other means or by more than one of
those means, intended to be used, or which may be used, for the
purpose of recording that matter and includes electronic and digital
records.

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Documentary evidence encompasses any material that conveys
information through writing, symbols, or other means of recording. It is
presented in the form of documents to substantiate contested facts in
a legal proceeding.

Documentary evidence largely can be understood as a piece of

evidence that is written or documented. The law deems documentary
evidence to be having a superior evidentiary position as opposed to
the oral evidence. All documents including digital documents would
be considered documentary evidence.

In order to keep pace with the digital era, electronic and digital records
have been specifically brought under the ambit of ‘documentary
evidence’ in the BSA. This includes electronic records on emails, server
logs, documents on computers, laptops or smartphones, messages,
websites, locational evidence, and voice mail messages stored on
digital devices.

A well-known dicta has been laid down not only by the apex Court of
our country but also by the Privy Council that a man may lie but a
document will never lie.

Primary documentary evidence pertains to original documents, as

defined in Section 57 of the Adhiniyam. In contrast, secondary
documentary evidence involves copies of documents admissible in
court under specific conditions, as stipulated in Sections 58 and 60
of the Adhiniyam.

Documentary evidence also includes information in electronic records

that have been printed or stored in optical or magnetic media from a
computer. This information might be stored or processed by one or
multiple computers. The BSA states that electronic or digital records

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will have the same legal effect as paper records. It expands the
definition of electronic records to include information stored in
semiconductor memory or any communication devices like
smartphones and laptops. This includes records like emails, server
logs, locational evidence, and voicemails.

Primary evidence

Primary evidence, also known as best evidence, refers to the actual

documents produced for the court’s inspection. Primary evidence is
considered as a superior class of evidence. These are those matters,
documents, and facts which can be produced in the court for further
assessment and inspection. As the name primarily suggests, these
are the original documents. Section 59 clearly states that
documents shall be proved by primary evidence except in the cases
mentioned in section 60.

The primary shreds of evidence supersede the secondary evidence.

The first instance of production should be primary evidence. These
are the actual items of evidence.

Various types of primary evidence -

 Original documents
 Government records
 Letters
 Photographs
 Emails
 Memoirs

Admissibility of carbon copy of documents - The postmortem report is

to be prepared in triplicate by pen-carbon and in the instant case also,
the post-mortem report was 6 prepared by pen-carbon in one uniform

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process and as such, such carbon copy is primary evidence. Md. Yakub
Ali vs. State of Tripura, 2004 Cri. LJ 3315 (Guj).

Secondary evidence

Secondary evidence is defined in Section 58 of the Adhiniyam. They

cannot supersede the primary evidence and can be presented after
the primary evidence. Secondary evidence can only be introduced if
primary evidence is not available and the reason for its absence must
be explained.

Examples of secondary evidence -

 Certified Copies
 Compared copies with the original documents.
 Oral accounts of the contents by the person who has witnessed
the act.

Section 60 of the Adhiniyam shares when the secondary evidence

can be produced in the court of law ;
 When the original documents are in possession of -
(i) A person against whom it is to be proved.
(ii) A person who is not reachable.
(iii) A person who is under the legal obligation to produce the
documents.
 When the original document has been destroyed.
 When the original document has been lost.
 When the original document cannot be produced in a reasonable
time.
 When the original cannot be easily moveable.
 When the original is a public document etc.

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Documentary evidences are divided into two categories, namely :-

1. Public Documents – Section 74 (1)

2. Private Documents – Section 74 (2)

Public documents are those matter that is present in some public register,
record or book. The relevant copies of documents can be presented in
court. Some examples of public documents are ;
 Birth Certificates
 FIR
 Marriage Certificate
 Electricity Bill
 Business Records
 Water Bill, etc.

As the name suggests, private documents are those documents that are
exchanged between the parties such as letters, emails, postcards, etc.

The court prefers public documents more as compared to private

documents. Authenticity is one of the main reasons, as the court believes
that the risk of tampering with the public documents is far less than with
private documents.
The law allows the documents to be presented in court, but there are
various rules that determine their admissibility.

Section 61, 62 and 63 explains what is electronic or digital record, its special
provision as to evidence and admissibility of electronic records.

In legal proceedings, oral and documentary evidence falls into two

main categories - Direct and Indirect

I. Real Evidence (also known as Physical / Material Evidence)

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When the evidence is brought to the knowledge of the court by
inspection of a physical or material object and is not derived from
witness or document, then it is called Real Evidence.

Real Evidence often called physical evidence, consists of material

items involved in a case, objects and things the Court can physically
hold and inspect. Examples of real evidence include fingerprints, blood
samples, DNA, a knife, a gun, and other physical objects. Real
evidence is usually admitted because it tends to prove or disprove an
issue of fact in a trial. Real evidence is usually involved in an event
central to the case, such as a murder weapon, clothing of a victim,
narcotics or fingerprints. In order to be used at trial, real evidence
must be relevant, material, and authentic. The process whereby a
lawyer establishes these basic prerequisites is called laying a
foundation, accomplished by calling witnesses who establish the item’s
chain of custody.

In the matter of Marada Venkateswara Rao Vs. Oleti Vana Laxmi - AIR
2008 AP 195, the property in dispute was self-acquired property of the
mother. The suit for partition was filed by the plaintiff (Daughter). The
son was the defendant. He stated that the plaintiff and her brother
were destitute and not born to his mother. As such, they had no right
of inheritance. The Court said that the maternity of the parties was
thus disputed. The Court directed both the parties to undergo a DNA
test.

Illustration
A deposes that he saw B pursue C with threats. C is found killed and
B's bloody knife is found nearby. A's testimony is oral evidence; the
knife is real evidence. 'Real' technically signifies a thing".

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II. Direct Evidence : This type of evidence offers clear and conclusive
proof of a fact without the need for interpretation. It is referred to as a
fact that does not draw its inference from any other statement. And
can be established on its own. Direct evidence works immediately
supporting the truth without needing any further clarification or
assistance.
For example, eyewitness testimony is direct evidence.

Direct evidence refers to firsthand information that an individual

acquires through their senses or personal perception.

III. Indirect Evidence : Indirect evidence establishes facts by presenting

related but not directly conclusive facts. It relies on inference and
deduction to support a conclusion.

Example is evidence indicating motive, opportunity, and actions

surrounding a crime.

IV. Circumstantial evidence : Circumstantial evidence doesn’t directly

prove the primary issue; instead, it relies on deduction or inference. It
refers to that statement that helps in establishing the circumstances
that are related to a particular piece of evidence.

These circumstances should be fully proven and must be conclusive

in nature. The concerned circumstances should be totally complete
and should not have any gap in the evidence.

Essential components of the circumstantial evidence

1. The circumstance should be fully established.
2. The facts/ information should be compatible with the theory.
3. The circumstances must be convincing.

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For instance, evidence suggesting a person had a motive to commit
murder, was seen with a weapon near the crime scene, and was later
discovered with blood-stained clothing constitutes circumstantial
evidence.

In Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4

SCC 116, the bench of S. Murtaza Fazal Ali, A. Varadarajan and
Sabyasachi Mukherjee, JJ laid down the following five golden principles
i.e. the panchsheel of the proof of a case based on circumstantial
evidence:
(1) The circumstances from which the conclusion of guilt is to be
drawn should be fully established.
(2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty.
(3) The circumstances should be of a conclusive nature and
tendency.
(4) They should exclude every possible hypothesis except the one to
be proved.
(5) There must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.

In the matter of Nalini Singh Vs. State of Tamilnadu and 25 others,

it was held that the well-known rule governing circumstantial evidence
is that each and every incriminating circumstance must be clearly
established by reliable evidence. “The circumstance proved must form
a chain of event” from which the only irresistible conclusion about the

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 guilt of the accused can be safely drawn and no other hypothesis is
possible.

Anant Chintaman Lagu vs

The State Of Bombay on 14
December, 1959
Equivalent citations: 1960
AIR 500, 1960 SCR (2) 460
Anant Chintaman Lagu vs
The State Of Bombay on 14
December, 1959
Equivalent citations: 1960
AIR 500, 1960 SCR (2) 460
Anant Chintaman Lagu Vs. The State of Bombay (14 December
1959)

At the trial of a person for murder by alleged poisoning, the fact of

death by poisoning is provable by circumstantial evidence,
notwithstanding that the autopsy as well as the chemical analysis fail
to disclose any poison; though the cause of death may not appear to
be established by direct evidence, the medical evidence of experts and
the circumstances of the case may be sufficient to infer that the death
must be the result of the administration to the victim of some

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 unrecognised poison or drug which acts as a poison, and a conviction
can be rested on circumstantial evidence provided that it is so decisive
that the court can unhesitatingly hold that the death was not a natural
one.

TYPES OF
EVIDENCES

ORAL DOCUMENTARY
EVIDENCE EVIDENCE

DIRECT INDIRECT /
PRIMARY SECONDARY PUBLIC PRIVATE
ORAL HEARSAY
EVIDENCE EVIDENCE DOCUMENTS DOCUMENTS
EVIDENCE EVIDENCE

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