Author: Yashvee Singhal, BBA LLB (H), 5th Semester, Amity Law School, Amity University Rajasthan
Evidence is the main aspect of a criminal trial as it helps to prove the guilt of an accused in the court. Whenever the charges are framed against the accused the public prosecutor need to prove those charges with the help of evidence beyond a reasonable doubt while the defendant has to challenge the evidences presented by the state, thereby evidence playing an important role for the attainment of the object of the criminal trial: to do justice by convicting the guilty and protecting the innocent one. The court is shouldered with the responsibility to look at the truth of the evidence. Hence, evidence plays a very important role and recording of it in a fair manner assumes a great importance. In India statues like Indian Evidence Act, 1872 (hereinafter referred as IEA, 1872) and provisions of Code of Criminal Procedure, 1973 (hereinafter referred as CrPC, 1973) tells about the evidence: its admissibility, modes to record, etc.
Section 3, IEA 1872 defines evidence as; “‘Evidence’ means and includes— all statements or the documents which the Court permits, in relation to matters of fact under inquiry.” Evidence is a fact or any matter of fact which the parties in a suit use so as to prove a question or an issue in the lawsuit. These are the facts which parties use so as to convince the Judge about an issue in a particular case. These can include oral testimony of the witness, document proof, or opinions of experts on technical and many more. It also includes “circumstantial evidence” which is inferred from the conclusion of a fact. Basically evidence is of two types which are as follows:-
Section 3, IEA, 1872 defines the oral evidence as, “all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry”. It can be a person who actually saw the thing or perceived something, etc. It becomes more clear from the Section 60, IEA, 1872. The first part of section 60 refers to fact which had been seen by a person i.e. eye-witness. Second part of section 60 refers to the fact which had been heard i.e. hearsay evidence. Although this hearsay evidence is not admissible but sometimes it is admitted by the court. Like in the case of Balram Prasad Agrawal v. State of Bihar & others, the apex court held that, “Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proved to establish by the evidence, not the truth of the statement but the fact that it was made.”
The third part deals with that evidence which is perceived by a person himself through any sense (means by smell, gait, touch, etc.). Fourth part of section 60 deals with opinion or the grounds on which the opinion of that person is held. For example, like when I reach to my house I saw a person with knife in his hand and his t shirt stained with blood spots, so in this case I will form my opinion regarding that person to be a murder on the basis of the circumstances, so this what the fourth part of section 60 deals with.
Section 3, IEA 1872, defines a document as any 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. For example a writing, a photo, map, a caricature, printing, or something written on a metal plate or on a stone etc. The genuineness of the content written in these documents are proved under section 61, IEA, 1872 by proving them either primary evidence (defined under Section 62, IEA, 1872) or the secondary evidence (defined under Section 63, IEA, 1872). And the execution of documents can be proved by admissible evidence like by signatory to a document (Section 67, IEA, 1872) or by examination of attesting witness, (Section 67 and 68, IEA, 1872) i.e. the person who has attested to a document, the opponent counsel can cross examine the witness to check the credibility for the same, and many more provisions mentioned in the Evidence Act. Even the honourable Bombay High Court held that, “a document is required to be proved in accordance with the provisions of the Evidence Act and merely for administrative convenience of locating or identifying the document, it is given an exhibit number by the Court” in the case of Bama Kathari Patil v. Rohidas Arjun Madhavi.
PROCEDURE IN MAKING AND RECORDING EVIDENCE
The procedure in making and recording evidence is mentioned under Chapter XXIII of Code of Criminal Procedure, 1973. Sections 272 to 283 deals with mode to take and record the evidence in the criminal cases.
Section 272- Language of Courts
This section states that the state government may determine the language to use in the court within the state other than the High Court for the purpose of this code.
Various ways to make and record evidences:
- Section 273: It mandates to record all the evidence in the presence of the accused or, when his personal attendance is dispensed with, the same must be recorded in the presence of his pleader. However the Criminal Law (Amendment) Act, 2013 provides that in the case of the evidence of a woman below the 18 years, who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures. In the case of State of Maharashtra v. Dr. Prafulla Desai, the Apex Court held that recording of evidence by video conferencing is permissible.
- Section 274: It provides that the Magistrate shall record the memorandum of substance of evidence of a witness in the open court while dealing with the summons cases, and such memorandum must be signed by the Magistrate and shall form part of the record.
- Section 275: It provides the Magistrate shall record the evidence of the witnesses by taking down by himself or cause it to be taken down in the narrative form in the case of warrant cases. However, Section 275(3) of the Code permits the Magistrate to record the evidence in the form of question and answers. The evidence of the witness in this Section may also be recorded by audio video electronic means in the presence of the Advocate of the accused as per the proviso of Section 275(1), for example we see in the most of the rape cases.
- Section 276: The recording of the evidence in a trial before the Sessions Court should be in the narrative form, however the presiding Judge at his discretion can take down any part of the evidence in the question and answer form and it must be signed by him.
- Section 280: It empowers the Presiding Judge to record remarks, if any, as he thinks material in respect to the demeanour of a witness i.e. if a witness wishes to add some more thing in his/her examination he can do the same by asking permission from the presiding judge for the same, and those additions will be added as remarks in the statement of witness.
While recording under section 275 or section 276, firstly, the evidence of the witness must be taken down in the language of the court but if the witness gave in other than the language of the court than a true translation of the evidence in the language of the Court shall be prepared (Section 277). Secondly the evidence of a witness should be read over to him in the presence of the accused or his pleader after his evidence is completed. And if some changes are there then the same shall be added as remarks (Section 278). Moreover as a general when evidence is given in the language of court not understood by the accused then it should be interpreted in the language to which the accused is aware of. This shows the nature to extend, our lawmakers had thought of; no one should be punished till the offence has been established.
Evidences in the electronic form like CD, VCD, chips, etc., are also permitted however at the same time they should be able to comply with the conditions mentioned in Section 65B, IEA, 1872, and the same was held in the case of Anvar PV v. PK Basheer.
RECORDING THE EVIDENCE IN CERTAIN CLASS OF CASES
While recording the evidence in certain classes of the cases some more precautions are required to be taken care of. These classes are as follows:-
- Recording evidence of Deaf and dumb witnesses
Section 119 provides that a witness who is unable to speak can give the evidence in any other manner in which he can make it intelligible as by writing or by signs and the same must be recorded. But in the case of who cannot speak but can hear, recording his evidence can be done by the answers given by him.
- Recording the evidence of child witness
Greater precaution and sensitivity is required while taking the evidence of a child witness, particularly a child Victim. It has to be recorded in such a way that a child is able to understand the questions and answer the same as rationally required under section 118, IEA, 1872.
SPECIAL CIRCUMSTANCES PERMITTING EVIDENCES
Some of the special cases permitting evidences as mentioned in CrPC, 1973 can be used in any inquiry or trial or any other proceeding in this code, are as follows:-
- Deposition of Medical Witness: – Under Section 291, the evidence given by a civil surgeon or medical witness taken and attested by Magistrate can be used as evidence.
- Identification Report by the Magistrate: – Section 291A, provides that any document which is claimed to be a report of identification undersigned by the Executive Magistrate can be used as evidence.
- Evidence of Officers of the Mint: – Section 292, provides that any document which is claimed to be a report under the authority of any officer of the, upon any matter or thing duly submitted to him for examination and report in the course can be used as evidence.
- Report of Certain Government Scientific Experts:- Section 293, Any document which is to be a report under the Government scientific experts to whom this section applies, upon any matter or thing which is submitted to him for examination or analysis and report in the course can be used as evidence.
- Evidence of the Formal Character of an Affidavit: – Section 296 any evidence given by the person whose evidence is of formal character may be given by affidavit, can be used as evidence.
- Procedure for recording evidence in absence of the accused:-Section 299 provides that when the accused is absconding and there is no immediate prospect of securing his presence, the Court can record evidence of witnesses in his absence. And if the accused of an offence punishable with death or imprisonment of life is absconding, the High Court or the Court of Sessions may direct the Magistrate of First Class to hold an inquiry and to examine the witnesses.
MAKING OF EXHIBITS
Prosecution submitting the evidence has to be marked with the number in the order in which they are admitted, for example: Ext.1, 2, 3 etc. The evidence presented on the behalf shall be marked with alphabets in capital letters, for example: Ext. A, B,C etc. if none of the party is ready to accept them as evidence then it shall be marked as: Ext C-I , C-II etc. And if the number of the documents is of the same nature, then we will add a small number or a letter to distinguish the documents.
The procedure mentioned in The Code of Criminal Procedure, 1973 and The Indian Evidence Act, 1872 is quite elaborative and its implications and interpretations are wide. The applicability of them depends upon the statutory provisions but however they differ as per the prevailing circumstances, and nature of the lawsuit. The modes of taking and recording the evidence are mentioned under chapter XXIII of CrPC, 1973; Section 272 to 283 covering the general sense, and the Sections 291- 299 covering the special cases where evidence are admissible. There should be proper examination of the evidence; it can be done by properly examining all the witnesses, physical examination of all the objects and crime scene. Evidence can be collected from time, place, relationships, circumstances, and many more. This shows how vital evidence is in a criminal trial. As there is a very famous saying used in Anglo-American common law, “Fruit of the Poisonous Tree”. It means that if the foundation of the evidence (the tree) is spoiled, then anything deriving from it (the fruit) bears the same flaw.
Therefore, evidence can be in any form. What is required is that it supports your claim and is valid in the eyes of law. Thus, the law of evidence in India does not put limitations or restricts the parties but rather it acts as a guide to them in the court of law.
 Section 3, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872, (India).
 Section 3, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872, (India).
 Balram Prasad Agrawal v. State of Bihar & others, AIR 1997 SC 1830 (India).
 Bama Kathari Patil v. Rohidas Arjun Madhavi, 2004 (2) Mh.L.J. 752 (India).
 Section 272, the Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1973, (India).
 Section 273, the Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1973, (India).
 Supra note.6 .
 State of Maharashtra v. Dr. Prafulla Desai, AIR 2003 SC 2053 (India).
 Section 274, the Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1973, (India).
 Section 275, the Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1973, (India).
 Section 276, the Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1973, (India).
 Section 280, the Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1973, (India).
 Section 277, the Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1973, (India).
 Anvar PV v PK Basheer, 2014 10 SCC 473 (India).
 Section 119, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872, (India).
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