Kinds of Evidence as a Logical Division

In one line

The kinds of evidence are several different divisions of one class, each on its own principle, and the statute carries out two of them itself.

In the wording a student can write in an examination: evidence is divided into oral and documentary by the mode of proof; into primary and secondary by the degree of proximity to the original; and into direct and circumstantial by whether it establishes the fact in issue itself or a fact from which it is inferred. The first two divisions are made by the statute and the third by the courts.

The class being divided

Section 2(1)(e) of the Bharatiya Sakshya Adhiniyam 2023 defines "evidence" and carries out a division in the definition itself. Evidence means and includes all statements, including statements given electronically, which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry, and such statements are called oral evidence; and all documents, including electronic or digital records, produced for the inspection of the Court, and such documents are called documentary evidence.

Read that as a logician and it is remarkable. The definition does not first define evidence and then divide it. It defines the class by listing the two subclasses, which is the denotative technique of sequence 580 applied to a definition clause, and it names the two members as it goes.

The old numbering. The same definition stood in section 3 of the Indian Evidence Act 1872, in the interpretation clause, and every textbook cites it as "section 3, definition of evidence".

Division one: oral and documentary

The fundamentum divisionis is the mode of proof: whether the fact is brought to the court by a person speaking or by a thing produced for inspection.

The statutory scheme. Section 54 provides that all facts, except the contents of documents, may be proved by oral evidence. Section 55 provides that oral evidence shall in all cases whatever be direct, and specifies what that means for each sense: a fact which could be seen must be the evidence of a witness who says he saw it; heard, who says he heard it; perceived by any other sense or manner, who says he perceived it in that manner; and an opinion, or the grounds of an opinion, must be the evidence of the person who holds that opinion on those grounds. It has two provisos, one for the opinions of experts in a treatise where the author is dead, untraceable, incapable or unreasonably expensive to call, and one allowing the Court to require the production of a material thing referred to in oral evidence. Section 56 provides that the contents of documents may be proved either by primary or by secondary evidence.