Kinds of Evidence as a Logical Division

The old numbering: sections 59, 60 and 61 respectively of the 1872 Act.

Test the division against the rules.

One fundamentum? Yes, the mode of proof.

Mutually exclusive? Yes, in the statute's own scheme, and section 54 makes it so expressly: everything except the contents of documents may be proved orally, so the contents of documents are the documentary side and everything else the oral side.

Exhaustive? On the statute's own definition, yes, since section 2(1)(e) recognises these two and no third.

And here is the interesting part. A material object produced for inspection, a weapon, a garment, a damaged machine, is neither a statement nor a document. On the face of the definition it falls outside both classes, and the division has a gap. The Adhiniyam deals with it obliquely: the second proviso to section 55 lets the Court require the production of a material thing referred to in oral evidence, which brings the object in as an adjunct of the testimony rather than as a third kind.

That is a real defect of exhaustiveness, cured by a device rather than by the division. It is exactly the kind of thing MU's topic is asking a student to notice.

Division two: primary and secondary

The fundamentum divisionis is proximity to the original: whether what is produced is the document itself or something standing in for it.

Section 57, primary evidence, means the document itself produced for the inspection of the Court. Its three Explanations settle the hard cases: where a document is executed in several parts, each part is primary evidence of it; where it is executed in counterpart, each counterpart is primary as against the parties executing it; and where a number of documents are made by one uniform process, as in printing, lithography or photography, each is primary evidence of the contents of the rest, but where they are all copies of a common original they are not primary evidence of the contents of the original.

Section 58, secondary evidence, is defined denotatively, by a list of what it includes: certified copies; copies made from the original by mechanical processes ensuring accuracy, and copies compared with such copies; copies made from or compared with the original; counterparts as against the parties who did not execute them; oral accounts of the contents given by a person who has himself seen the document; oral admissions; and written admissions.

The old numbering: sections 62 and 63 of the 1872 Act, with sections 64 and 65 providing that documents must be proved by primary evidence and setting out the cases in which secondary evidence may be given.

Test this division against the rules.

One fundamentum? Yes.

Exhaustive and exclusive? Very nearly, and the third Explanation to section 57 is where it is not. A copy made by a uniform process is primary as to its fellows and not primary as to the common original, so the same piece of paper is primary evidence for one purpose and secondary for another. That is not a defect: it is what happens when the fundamentum is a relation rather than a property, since a document is primary or secondary in relation to something.

And notice the technique. Section 57 defines connotatively, by an attribute, and section 58 defines denotatively, by a list. The two halves of one division are defined by the two families of method at sequence 580, which is worth a sentence in an answer.

Division three: direct and circumstantial

The fundamentum divisionis is what the evidence establishes: the fact in issue itself, or a fact from which the fact in issue is inferred.

This division is not in the statute. Neither Act defines direct or circumstantial evidence, and both are terms of the case law, worked at sequence 230.

Test it.

One fundamentum? Yes.

Exhaustive and exclusive? Yes, and it is a genuine dichotomy in the sense of sequence 650: evidence either establishes the fact in issue itself or it does not, and if it does not, the inference the court draws is what makes it circumstantial.

And it cuts across the other two. Testimony can be direct or circumstantial; so can a document. Three divisions, three principles, and none of them a subdivision of another. A student who tries to arrange all the kinds of evidence in one tree has made the cross-division error of sequence 640, and seeing that is the point of the topic.

Two further divisions worth naming

Real and personal evidence, by the source: a thing inspected against a person examined. This is the division that gives the material object a home, and it is one reason the older writers preferred it.

Original and hearsay, by whether the witness perceived the fact himself or is repeating what another said. Section 55 builds this into the statute without naming it, by requiring oral evidence to be direct in the sense set out there.

A worked example

A prosecution for causing death by a defective machine relies on: the testimony of a fitter who says he saw the guard raised; the maintenance register; a photograph of the machine taken after the accident; the guard itself, produced in court; and a certified copy of the factory licence.

Sort each by all three divisions.

The fitter's testimony. Oral, by section 54. Not primary or secondary, since that division applies to the contents of documents. Direct as to the position of the guard, which he saw, and circumstantial as to the cause of death, which he did not.

The maintenance register. Documentary. Primary if the register itself is produced, by section 57. Circumstantial: it proves an absence of inspection, from which neglect is inferred.

The photograph. Documentary, as a document under section 2(1)(d), whose illustrations include words photographed. Primary as to itself; whether it is primary evidence of the state of the machine is a different question. Circumstantial.

The guard itself. Neither oral nor documentary on the face of section 2(1)(e), which is the gap identified above. It comes in under the second proviso to section 55, on the Court requiring production of a material thing referred to in oral evidence. Real evidence, on the older division. Direct as to the condition of the guard.

The certified copy of the licence. Documentary. Secondary, by section 58(i). Circumstantial as to everything in the case.

What the exercise shows. Five items, three independent divisions, and every item has a position in each. The three are not levels of one classification and they cannot be drawn as one tree. That is the answer to MU's question, and it is a point about division rather than about evidence.

Distinctions that carry marks

What this does not mean

The three divisions are not levels of one classification. They are three independent divisions of the same class on three different principles, and drawing them as one tree is a cross-division.

Circumstantial evidence is not weaker evidence. Sequence 230 dealt with this: what it requires is a stricter method, supplied by the five conditions in Sarda.

Secondary evidence is not inadmissible. It is admissible in the cases the Act allows, and the division tells you which rule applies rather than whether the evidence is any good.

Quick revision

Section 2(1)(e) BSA 2023 defines evidence by naming its two subclasses: statements by witnesses, called oral evidence, and documents produced for inspection, called documentary evidence. Formerly section 3, Indian Evidence Act 1872.

Oral and documentary, by the mode of proof: ss.54, 55, 56, formerly 59, 60, 61. Gap: a material object is neither, and comes in under the second proviso to s.55.

Primary and secondary, by proximity to the original: s.57 defines primary connotatively with three Explanations, s.58 defines secondary denotatively by a list. Formerly ss.62 and 63, with 64 and 65.

Direct and circumstantial, by what is established: not in the statute at all, and a true dichotomy.

Also: real and personal, by the source; original and hearsay, by whether the witness perceived the fact himself.

The three principal divisions cut across one another and cannot be drawn as one tree.

Test yourself

1. How does the statute define evidence, and why is the definition of interest to a logician?

Section 2(1)(e) of the Bharatiya Sakshya Adhiniyam 2023 provides that evidence means and includes all statements, including those given electronically, which the Court permits or requires witnesses to make before it about matters of fact under inquiry, called oral evidence, and all documents, including electronic and digital records, produced for the inspection of the Court, called documentary evidence. It is of interest because it defines the class by listing its two subclasses and naming them as it goes, which is a denotative definition carrying out a division inside a definition clause.

2. Name the three principal divisions of evidence and the fundamentum of each.

Oral and documentary, on the mode of proof, that is whether the fact reaches the court through a person speaking or a thing produced. Primary and secondary, on proximity to the original, that is whether the document itself or a substitute is produced. Direct and circumstantial, on what the evidence establishes, that is whether it proves the fact in issue itself or a fact from which the fact in issue must be inferred.

3. Where does the oral and documentary division fail the rules, and how is the failure met?

On exhaustiveness. A material object produced for inspection, such as a weapon or a damaged machine, is neither a statement by a witness nor a document, so on the face of section 2(1)(e) it falls into neither class. The Adhiniyam meets this obliquely rather than by mending the division: the second proviso to section 55 allows the Court to require the production of a material thing referred to in oral evidence, bringing the object in as an adjunct of testimony rather than as a third kind of evidence.

4. Why can the same document be both primary and secondary evidence?

Because the fundamentum is a relation and not a property. Explanation 3 to section 57 provides that where a number of documents are made by one uniform process, such as printing or photography, each is primary evidence of the contents of the rest, but where they are all copies of a common original they are not primary evidence of the contents of that original. The same sheet is therefore primary in relation to its fellows and secondary in relation to the original, which is not a defect but a consequence of dividing by a relation.

5. What is notable about how sections 57 and 58 are drafted?

That the two halves of one division are defined by the two different families of method. Section 57 defines primary evidence connotatively, by an attribute, as the document itself produced for inspection, and then settles hard cases by three Explanations. Section 58 defines secondary evidence denotatively, by a list of seven things it includes, from certified copies to oral and written admissions. One division, two techniques, on facing pages.

6. Why can the kinds of evidence not be arranged in a single tree?

Because the three divisions are made on three independent principles and cut across one another. A witness's testimony is oral and may be direct or circumstantial; a document is documentary, is primary or secondary, and may also be direct or circumstantial. None of the three is a subdivision of another, so arranging them in one scheme requires more than one fundamentum at a time, which is the fallacy of cross-division.