Taylor defines evidence as “all the legal means, exclusive of mere argument, which tend to prove or disprove any fact, the truth of which is submitted to judicial investigation.”
When one fact is said to be evidence of another, the former is called evidential fact, and the latter principal fact.
A fact is said to be proved when the court is satisfied as to its truth, and the evidence by which that result produced is called the proof.
The terms proof and evidence are not synonymous. Proof is the effect of evidence. Proof is that which either immediately or immediately tends to convince the mind of the truth or falsehood of a fact or proposition. In other words, proof is the effect or result of evidence, while evidence is only the medium of proof.
(a) Primary and Secondary Evidence:
Primary evidence is immediate evidence of the principal fact. It is the evidence which itself suggests that it is the best evidence. The law requires that it should be given in its original form. Under the Indian Evidence Act, primary evidence means in the case of oral evidence the evidence of a person who has seen or felt the particular fact and in the case of documentary evidence the production of the document itself.
Secondary evidence means substitutionary evidence and is inferior to primary evidence. It is not permissible unless the primary evidence is out of the party’s power to produce. It is the evidence which itself suggests the existence of better evidence.
Secondary evidence means certified copies, copies made from the original by mechanical processes, copies made from or compared with the original, counterparts of documents and oral accounts of the contents of a document given by some person who has himself seen it.
(b) Real and Personal Evidence:
Real evidence is that which is directly addressed to the senses of the court. It is evidence supplied by material object, other than documents, produced for the inspection of the court. Thus, the production of the instrument of the murder is real evidence.
Personal evidence is the testimony of witnesses. Testimony may be cither oral or written, and judicial or extra-judicial.
(c) Direct and Circumstantial Evidence:
Direct evidence is testimony of a witness relating to the precise point at issue or the principal fact. It is the evidence of a fact actually in issue or evidence of a fact provided by a witness with his own senses. Thus, the testimony of A that he saw B commit the murder constitutes direct evidence.
Circumstantial evidence is that evidence which relates to a series of other facts than the fact in issue but which is closely connected with that fact as to lead to some definite and irresistible conclusion. It is evidence of a fact not actually in issue, but legally relevant to a fact in issue. Thus, if A swears that he saw B leaving the place where C was stabbed and B then had a dagger in his hand, the evidence of A is circumstantial evidence.
Direct evidence is also known as positive evidence and circumstantial evidence as presumptive evidence.
(d) Judicial and Extra-judicial Evidence:
Judicial evidence consists of the testimony given by witnesses in the court or the documents produced into and read by the court. These are the facts brought to the personal knowledge of the court.
Extra-judicial evidence consists of facts not directly proved in courts, but which serves as a link between judicial evidence and the fact requiring proof.
Thus, the confession of guilt by an accused in the court is judicial evidence, while his confession to his friend or relation and known to the court through his relation or friend who heard the accuser’s words constituting the confession is extra-judicial evidence.
(e) Original and Hearsay evidence:
Original evidence is evidence which has an independent probative force of its own. It is that evidence which a witness reports himself to have seen or heard through the medium of his own senses.
Hearsay evidence is evidence of a fact not actually perceived by a witness with his own senses, but proved by him to have been stated by another person.
It is that evidence which a witness is merely reporting not what he himself saw or heard, not what has come under the immediate observation of his own sense but which he has learnt respecting the facts through the medium of a third person. Subject to certain exceptions the law rejects hearsay evidence altogether.