Substantial and Auxiliary Documents Used in Evidence

Saji Koduvath, Advocate, Kottayam.

Evidence – Three  Classes

On a broad classification, ‘evidence’ can be arrayed into following three classes –

  • 1.  Oral evidence
  • 2. Documentary evidence (including electronic records)
  • 3. Opinions of experts including views of persons specially skilled in foreign law, science or art, or in questions as to identify of handwriting or finger-impressions. It may also be termed as scientific evidence.

Documentary Evidence

Documentary Evidence can be classified into following categories –

  • 1.  substantive evidence
  • 2. documents used for contradicting
  • 3. documents used for corroboration
  • 4. documents used for refreshing memory.

Substantive Evidence

Substantive evidence is direct and admissible evidence. The courts adjudicate the matters before it on the basis of the substantive evidence. Order 13 Rule 3 CPC speaks as to rejection of irrelevant and inadmissible documents,  at any stage of the suit. Inadmissible evidence includes hearsay evidence.

Relevancy of Evidence

Sec. 5 and 136 of the Evidence Act stipulate that evidence can be given only on ‘facts in issue’ or ‘relevant facts’. Relevant facts are enumerated in Sec. 6 onwards.

Section 5 of the Indian Evidence Act, 1872 deals with relevancy. It reads as under:

  • “5. Evidence may be given of facts in issue and relevant facts—Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
  • Explanation—This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure

Documents used for Contradicting

Credit of a witness can be impeached under Sec. 155 (3) of the Evidence Act with reference to his previous statements. Sec. 145 is the provision to cross examine a witness with regard to his previous writing. Sec. 145 reads as under:

  • “145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

Sec. 145 Enables to Contradict Witnesses with his previous statements:

  1. Without such the writing being shown to him
  2. Without such (previous) writing being proved.
  3. Even when the writing is used to contradict the witness by the writing and his attention is called to those parts of it which are to be used for the purpose of contradicting him, it need not be shown to the counsel of the witness (or other side) for his perusal.
  4. The writing need not be one that is admissible in evidence (it can be unstamped, even if it requires stamp; or unregistered, even if it requires registration).
  5. Material ‘omissions’ (in the previous writings) may amount to contradiction.

Conditions for invoking Sec. 145:

  1. The writing must be a ‘previous’ one.
  2. The (previous) writing must be of that witness himself.
  3. It must be relevant to matters in question
  4. If it is intended to contradict the witness by the writing, his attention must be called to those parts of it which are to be used for the purpose of contradicting him.
  5. If the writing is not ‘ready with’ the cross examiner while the attention of the witness is called to those parts used for the purpose of contradicting him, the cross examiner must have undertaken to prove the document, and the Court must have given the permission as envisaged in Sec. 136 of the Evidence Act.
  6. If the witness denies such previous statement it can be proved, subsequently (for impeaching the credit of the witness).
  7. When it is to be proved, original or other admissible copy must be produced.
  8. This provision being a statutory one, the courts will allow to prove it , even if the ‘right to give evidence’ of that party ‘is over’.

Important points to be noted while invoking Sec. 145:

  1. If the witness admits the previous statement, no question as to proving the same arises for consideration.
  2. The purpose of invoking sec. 145 is only testing the veracity of the witness, under Sec. 155 (3); such writing will not be a substantive evidence.
  3. Even if the document or the contradicting part is marked, and it is proved, for the purpose of contradicting him, it cannot be read in evidence (as the purpose of this provision is only impeaching the credit of the witness).
  4. The court has to allow the cross examiner to produce and prove the previous statement (if the witness denies such previous statement) even if technically his ‘evidence is over’ (it being statutory right).

A ‘Certificate’ is not Per Se Admissible

A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. Unless presumption can be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate can be taken as proved unless its contents are proved in a formal manner.

This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.

Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’.

Documents used for Corroboration

Courts adjudicate the issues before it based on substantive evidence. In several cases it may be unusual that no direct evidence comes forth; for example, sexual offences, conspiracy, etc. In some cases certain corroborative evidence, to the already placed substantive evidence, may assure confidence to the minds of judges.  Section 156 of the Evidence Act lays down that such testimonies can be brought into evidence. It is beyond doubt that such an evidence should also be an admissible one.

Section 156 of the Evidence Act reads as under:

  • “156. Questions tending to corroborate evidence of relevant fact, admissible. When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
  • Illustration A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.”

The requirement of corroboration in certain cases is described by our Apex Court as under in Khema v. The State of Uttar Pradesh, AIR 2022 SC 3765, as under:

  • “21. This Court, in the celebrated case of Vadivelu Thevar v. State of Madras, (1957) SCR 981, has observed thus:
    • ‘…….Hence, in our opinion, it is a sound and well­established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
    • Wholly reliable.
    • Wholly unreliable.
    • Neither wholly reliable nor wholly unreliable.
    • In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial..……’
  • 22. We find that the testimony of Inder (PW­2) would fall under the 3rd category i.e. his evidence can be said to be ‘neither wholly reliable nor wholly unreliable’. As such, it will be necessary that there is some corroboration to his ocular testimony.”

Expert Evidence is only Corroborative; Not Substantive

In case of a conflict between oral evidence and scientific evidence, which will prevail? The answer is that it depends upon the nature of the subject matter. In everyday practice we see that trustworthy and credible oral evidence get primacy status over the scientific evidence. It is on the principle that the scientific evidence always renders an ‘opinion’ or ‘possibility’ only. By the advent of scientific techniques in the field of judicial investigation and enquiry, our judicial process began to assign due importance to scientific evidence. Still, the oral evidence has primacy over the scientific evidence.  

It is important that Section 45 of the Evidence Act does not say anything as to the weight to be attached to the expert evidence. This Section only says that expert’s evidence is admissible. The expert-evidence is not substantive evidence; and it is generally used as a piece of evidence for corroboration or conflict with oral evidence. The evidence of an expert only aids and helps the Court as advisory material. The expert being not a witness of fact, his opinion is to be analysed objectively by the court. The decision making process is never delegated to the expert; the expert only helps and assists the Court to decide. Courts always give due importance to the opinion of the experts. But, it will not substitute proof. Court is said to be the expert of experts.

In Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, it was held that the evidence of eyewitnesses should be preferred unless the medical evidence completely rules it out. It was held as under:

  • “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.”

In State of Haryana v. Bhagirath, (1999) 5 SCC 96, the Supreme Court held as under:

  • “15. The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.”

The blood group on the dress of the accused and the dress of the deceased matched. It corroborates the prosecution story. However that by itself is not conclusive proof of the culpability of the accused (Binder Munda v. State, 1992 Cr.L.J. 3508 (Ori. -DB).

In Surinder Singh v. State of Punjab, 1989 SCC (Cri) 649, it is observed that it would not be helpful to the prosecution if it was not shown that the blood-stains on the weapon recovered from the possession of the accused were of the same group as the blood of the deceased. (See also: Kansa Behera. v. State of Orissa.AIR 1987 SC 1507).

In State of U.P. v. Krishna Gopal, AIR 1988 SC 2154, the eye-witnesses were found credible and trustworthy. Therefore, the medical opinion pointing to alternative possibilities was not accepted as conclusive. The Apex Court pointed out that witnesses, as Bantham said, were the eyes and ears of justice. Hence the importance and primacy of the orality of the trial process. Eyewitnesses’ account would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged making any other evidence, including medical evidence as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent improbabilities.

Substantive Evidence and Evidence used for Refreshing Memory.

Section 157 in the Evidence Act reads as under:

  • “157. Former statements of witness may be proved to corroborate later testimony as to same fact. In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.”

Post-Mortem Report, Wound Certificate, Commission Report in a former case etc. are not a substantive evidence.  Doctor or Commissioner can refresh memory (Sec. 159, Evid. Act) with reference to the document. Similarly, mere marking of a Scene Mahazar, without examining the Investigating Officer who prepared it, will not render substantive aid to the prosecution case.

In Rameshwar Dayal v. State of U.P., AIR 1978 SC 1558, referring to Inquest Report, Site Plans etc., it is held by the Supreme Court, as follows:

  • “That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section.”
    • See also: Munshi Prasad v. State of Bihar,(2002) 1SCC 351;
    • State of Haryana v. Ram Singh,  (2002) 2SCC 426;
    • Vijay Paul v. State of Delhi: 2015 SC 1495;
    • Mohanan v. State of Kerala: 2011(4) KLT 59.

Ante litem motam documents The Supreme Court had said in Harihar Prasad Singh v. Must. of Munshi Nath Prasadand, AIR 1956 SC 305, that ante litem motam documents that extend over a considerable period of time, form cogent and strong evidence that the lands were private lands.

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