14 Appreciation of Evidence

1. Introduction

In a criminal case, court determines the guilt of an accused on the basis of evidences produced before it. Indian Evidence Act provides the facts on which evidence can be produced before the court. It also provides admissibility and inadmissibility of evidence. Once the evidence is proved then comes the question of evidentiary value of the evidence produced before the court. If the evidential value of the evidences against the accused are strong enough to prove the guilt of an accused beyond reasonable doubt then only court can convict a person. Before understanding how different evidences are appreciated by court, it is necessary to understand some basic concepts of evidence law like what is an evidence, Facts on which evidence can be given, basic rules of evidence and appreciation of evidence.

As per Section 3 of evidence act, evidence means and includes both oral and written evidence. Oral evidence includes all the statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry. Documentary evidence includes all documents including electronic records produces for the inspection of court.

After understanding the meaning and scope of evidence, the next concept which needs to be looked upon is about the facts of which evidence can be given. Section 5 of Indian evidence act provides that evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and relevant fact. Fact in issue means 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. Relevant fact means 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.

There are certain rules of evidence act which plays very important role in appreciation of evidence, conviction and acquittal of accused person. First and foremost rule of evidence is that an accused person can be convicted only if his guilt could be proved beyond reasonable doubt. Benefit of doubt is always given to the accused person. Next important rule is rule of probability. Section 3 of evidence act defines three ingredients of rule of probability i.e. proved, disproved and not proved. A fact is said to be proved when after considering a matter before it, the court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exist. A fact is said to be disproved when, after considering the matter before it, the court either believes that it does not exist or consider its existence so probable that a man of ordinary prudence ought under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said not to be proved when it is neither proved nor disproved.

Another rule of evidence is rule of presumption. Section 3 of evidence act defines the ingredients of rule of presumption i.e. may presume, shall presume and conclusive proof. Where 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. Similarly when ever 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. 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.

“Falsus in uno falsus in omnibus” means false in one particular thing, false in all. This rule is a rule of caution and has not acquired the status of rule of law in India. Evidence to be weigh not to be counted is a rule which provides that its the quality of the evidence or the evidentiary value of the evidence which matter and not the quantity of the evidence. Best evidence rule provides that best evidence of the content of the document is the document itself . This is the rule provided under section 91 of the Act.

Another important aspect needs to be understood before knowing the evidentiary value of different evidences is the basic rules of appreciation of evidence. Statutes like Evidence Act and Code of Criminal Procedure have laid down the basic rules for the appreciation of various evidences. Judiciary has also played vital role in clarifying the rules of appreciation of evidences on the points where statutes were silent. These rules of appreciation of evidences laid down by judiciary does not have universal application but needs to be applied in the light of facts and circumstances of the case. Courts have been granted sufficient discretion in appreciation of evidences to do justice in the case pending before them.

2. Admission:

It’s a statement made orally or in writing suggesting an inference as to fact in issue or relevant fact by any of the following persons:

1. party to proceeding
2. agent to party to suit or
3. suitor in representative suit or
4. party interested in subject matter or
5. person from whom parties have derived their interest or
6. person whose position is relevant or
7. person referred for information

2.1 Evidentiary Value of Admission:

Indian Evidence Act under Section 31 deals with the evidential value of admission. Admission is not the conclusive proof of the matter admitted. It is good evidence against the maker but maker not bound by it and can disprove it on following grounds:

1. mistake of fact
2. made under threat, inducement or fraud

But if on the admission, the other party has altered his position then admission can’t be disprove and it may operate as an estoppel against its maker.

3. Confession:

Confession must either admit in terms the offence or at any rate substantially all the facts which constitute offence 1 . For example if an accused person says that he committed theft or he dishonestly without the permission of owner of car took away his car then it amounts to confession as in both the statements he either admitted the offence of theft expressly or all the ingredients of the offence of the theft.

3.1 Evidentiary Value of Confession of Accused:

Judicial confession to magistrate during investigation u/s 164 CrPC or during trial when charges framed, is reliable evidence and it can be a sole basis of conviction. Extra-judicial confession means confession to any person other than magistrate. It’s a weak piece of evidence. It can be a sole basis of conviction if proved to be voluntarily made. 2 Retracted Confession means confession made before trial begins and repudiated at trial. It’s a very weak piece of evidence. It can lead to conviction if proved to be made voluntarily & corroborated by an independent witness.3

3.2 Evidentiary value of confession of co-accused:

It has been provided under section 30 of Indian Evidence Act. When more than one person jointly tried for same offence confesses affecting himself and other, if Proved, may be taken into consideration. It’s a week evidence of corroborating value only. It can’t be sole basis of conviction.4

3.3 Evidentiary Value of Confession to Police:

Confession made to police by virtue of section 25 cannot be proved so no evidential value. If confession made in police custody in immediate presence of magistrate then it can be proved and has evidentiary value of judicial confession. So confession to magistrate in police custody can lead to conviction if proved to be made voluntarily.

3.4 Evidentiary Value of Discovery Statement:

If deposition whether amounting to confession or not by accused while in police custody leads to discovery is a relevant fact against accused. It can’t be a sole basis of conviction. It has only corroborating value.

Evidentiary value of FIR:

FIR is not considered a substantive piece of evidence. It can be relevant under following sections of Indian Evidence Act:

i. As conduct u/s 8, if made by accused or victim

ii. As admission u/s 21

iii. As discovery statement u/s 27 if made by accused in custody and leads to discovery on such information

iv. As corroborating statement u/s 157

v. As contradictory statement u/s 1455

4.1 Evidentiary value of Confessional FIR

When accused makes an FIR i.e. gives first information of commission of an offence to police and states that he committed the offence, if accused in police custody while making confessional FIR then confessional part of FIR can’t be proved as per section 25 of Indian Evidence Act. Only non-confessional part of FIR leading to discovery may be proved under section 27 of Indian Evidence Act. Discovery statement has only corroborative evidential value so can’t lead to conviction.

If accused not in police custody while making confessional FIR then confessional part of FIR can’t be proved as per section Sec 25 of the Indian Evidence Act. Whole of non confession part of FIR may be proved and it has only contradictory or corroborative value so cannot lead to conviction.

5. Evidentiary Value of Statement to police:

Statement to police u/s 161 CrPC can’t be used for any purpose as per sec. 162 but there are certain exceptions to it which are as follows:

Statement to police by prosecution witness can be used for contradicting under section 145 of Indian Evidence Act

Statement made while in police custody leading to discovery can be used under section 27 of Indian Evidence Act

Statement to police by a person who is dead can be used as his dying declaration under section 32 of Indian Evidence Act

6. Evidential Value of Dying Declaration:

It is dealt with under section 32(1) of Indian Evidence Act. It’s a statement as to cause of his death and circumstances leading to his death. It’s an exception to general rule that oral evidence must be direct. As it is not recorded on oath so there is no scope of cross examination. It is relied on only after careful scrutiny. Out of caution court seeks corroboration from other circumstances. But it can be a sole ground of conviction if recorded with all precautions & made in fit state of mind.6

6.1 Evidential Value of dying declaration if its maker survives:

Dying Declaration to magistrate can be used if its maker survives for corroboration u/s 157 and for contradiction u/s 145 of Indian Evidence Act. Dying Declaration to police can’t be used if its maker survives for corroboration u/s 157 due to bar of section 162 CrPC but can be used for contradiction u/s 145 Indian Evidence Act due to exception of 162 CrPC.

Expert Evidence:

When court has to form an opinion on foreign law, science, art or as to identity of handwriting or finger impression, opinion of person especially skilled in such matters is relevant. It is not conclusive of a fact. Court not bound to rely on it, as there are chances of expert favouring party who call him or mistake in the opinion of expert. 7 Expert opinion on the field of science fully developed can be relied completely e.g. DNA test report.8

Evidential Value of Circumstantial Evidence:

It’s a direct evidence. It is not to be confused with hearsay and secondary evidence. It is generally used when no eye witness available. It can be sole basis of conviction provided the circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent with the hypothesis of the guilt of the accused. Circumstances should be of conclusive nature and tendency. They should exclude every possible hypothesis except the one to be proved. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion constant with the innocence of the accused and must show that in all human probability the act must have been done by the accused.9

9.Electronic/Digital Evidence:

The issue of admissibility of electronic evidence came before the Supreme Court way back in 1975, before the Information Technology Act, 2000 or the Prevention of Corruption Act came into being. The issue in controversy was whether telephonic recorded conversations or evidence such as phone tapping were admissible or not. A judgment pronounced by the Constitution Bench of the Hon’ble Apex Court in the matter of S. Pratap Singh v. State of Punjab 10 categorically laid down the proposition that telephonic evidence, or phone tapping cassettes which were a type of electronic evidence were very much admissible as evidence in a Court of Law.

The mere possibility that they were susceptible to tampering could not be a ground to reject the evidence itself. It was further held that they are in the nature of primary evidence and therefore are admissible. The Court also laid down elaborate rules for the admissibility of electronic evidence. It was later on account of the growing need of an effective cyber provision, Sections 22 A, 45 A, 59, 65 A and 65 B of the Indian Evidence Act, 1872 were incorporated to deal with the issue of admissibility of electronic records as evidence in a court of law.

9.1 Recent Trends on Electronic Record:

The Supreme Court, in the recent case of Ansar P.V. v. P.K. Basheer & Ors.11 clarified the position of law for the proof of electronic record. General rule of secondary evidence provided under section 65 of Evidence Act is not applicable to proof of electronic record. Any electronic record can be proved only as per the Section 65B. The section 65 B is not subjected to any other provision of evidence Act as it starts with a non obstante clause. So, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned in section 65 B are satisfied in relation to information and computer in question, without further proof or production of the original. Such output of electronic record is called computer output.

The  specified  conditions  regarding  electronic    information  and   computer  as  per Section 65(2) of the Evidence Act are as follows:

i. It should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

ii.Information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity during the said period,

iii.The computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents throughout the material part of the said period and

iv.The information contained in the electronic record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

Computer output to be given as proof of electronic record must be accompanied by certificate complying with following conditions as provided under Sec. 65B (4)

i.It must identifies the electronic record containing the statement and describe the manner in which the electronic record was produced;

ii.It must furnish the particulars of the device involved in the production of that record for the purpose of showing that the electronic record was produced by a computer;

iii.It must deal with the conditions mentioned Under Section 65B(2) of the Evidence Act; and

iv.It must be signed by a person occupying a responsible official position in relation to the operation of the relevant device or management of relevant activity

With the inception of the Information Technology Act, 2000, and its subsequent amendments in the year 2005 and 2008, a host of new offences have come into the domain of “cyber-crimes”, which require different standards of proof. The nature of evidence required to prove electronic document is a substantial departure from the traditional way of appreciation and leading of such evidence.

It is on account of the above mentioned infirmities, that the Legislature amended the Indian Evidence Act to include the admissibility of every electronic record, which it may include and is not restricted to floppy, hard disc drives, Compact Disc, Electronic Mails, Messenger or Chat Conversations, Computer Internal or External Storage Drive, Network or any other components of Hardware, or software etc., which may be used either independently or conjointly 

If genuineness of electronic record in question then resort can be made to opinion of examiner of electronic evidence as provided under Section 45A.When oral admission as to contents of electronic records are also relevant under section 22A .

10. Summary:

Rules of Appreciation of evidence have been clearly laid down but there can’t be straight jacket formula for its implementation. Certain degree of discretion has been provided to courts for appreciation of evidence which they are required to exercise without any arbitrariness, depending on the facts and circumstances of the case so that justice could actually be delivered.