The Basics Of “Criminal Trial” For The Novices In The Bench And The Bar [Q and A-Part-IX]

P R O S E C U T I O N E V I D E N C E

Q.37 When is the case posted for prosecution evidence ?

Ans. Ordinarily when the accused “pleads not guilty”, the case is posted for prosecution evidence.

Q.38 What is meant by “evidence” ?

Ans. As per Section 3 of the Indian Evidence Act the expression “evidence” means –

1. Oral evidence of witnesses

AND

2. Documentary evidence including electronic records produced for the inspection of the Court.

Q.39 Can a criminal court rely on anything other than “oral and documentary evidence”?

Ans. Yes. The Court can also rely on the following:-

1. Judicial confession (i.e. pleading guilty) by the accused.
2. Extra judicial confession by the accused
3. Statements under Section 313 Cr.P.C. made by the accused. (These unsworn statements are really not evidence but can only constitute some links in the chain of circumstantial evidence.)
4. Demeanour of the witnesses under examination before Court. (Eg. 1. “witness takes time”, 2. “witness avoids the question”, 3. “witness turns nervous”, 4. “witness gives evasive answers” etc. recorded by the Magistrate/ Judge in the deposition.)
5. Result of “local inspection” conducted by a Magistrate or Judge under Section 310 Cr.P.C.
6. Material objects. (MOs)

Q.40 If the above 6 items are not “evidence”, where can they be located under the Evidence Act ?

Ans. The above 6 items fall under the expression “matters” occurring in the definition of the word “proved” in Section 3 of the Evidence Act.

The definition of the word “proved” reads as follows:-

“Proved” – A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

MOs may also fall under the expression “material thing” in the last proviso to Section 60 of the Evidence Act.

Q.41 In a Civil or Criminal trial “evidence” can be given of what all matters ?

Ans. Section 5 of the Evidence Act permits “evidence” to be given only of “facts in issue” (as defined under Section 3 of the Evidence Act) and “relevant facts” (covered by Sections 6 to 55 of the Evidence Act).

Q.42 What are the main rules of evidence to be observed while admitting “oral evidence” and “documentary evidence” ?

Ans. Based on the burden of proof in Chapter VII of Part III of the Evidence Act oral evidence of witnesses who are competent to testify under Section 118 of the Evidence Act may be admitted by the Court bearing in mind the rules under Chapter IV of Part II and Chapters IX and X of Part III of the Evidence Act. Likewise, documentary evidence also can be admitted by the Court following the rules in Chapters V and VI of Part II of the Evidence Act.

In the case of prosecution witnesses in cases instituted on a Police Report, the extent to which the statements of witnesses given to a police officer during investigation, can be used under the proviso to Section 162 (1) Cr.P.C. read with Section 145 of the Evidence Act, should also be borne in mind.

Part 7: The Basics Of “Criminal Trial” For The Novices In The Bench And The Bar [Q and A-Part-VII]

Part 8: The Basics Of “Criminal Trial” For The Novices In The Bench And The Bar [Q and A-Part-VIII]