ABSTRACT
JF Stephen, The Indian Evidence Act (1872) The ambiguity of the word ‘evidence’ is the cause of a great deal of obscurity … In scientific inquiries, and for popular and general purposes, it is no doubt convenient to have one word which includes: (1) the testimony on which a given fact is believed (2) the facts so believed, and (3) the arguments founded upon them. For instance, in the title of Paley’s Evidences of Christianity, the word is used in this sense. The nature of the work was not such as to give much importance to the distinction which the word overlooks. So, in scientific inquiries, it is seldom necessary ... to lay stress upon the difference between the testimony on which a fact is believed, and the fact itself. In judicial inquiries, however, the distinction is most important, and the neglect to observe it has thrown the whole subject into confusion by causing English lawyers to overlook the leading distinction which ought to form the principle on which the whole law should be classified. I mean the distinction between the relevancy of facts and the mode of proving relevant facts. The use of the one name ‘evidence’ for the fact to be proved, and the means by which it is to be proved, has given a double meaning to every phrase in which the word occurs. Thus, for instance, the phrase ‘primary evidence’ sometimes means a relevant fact, and sometimes the original of the document as opposed to a copy. ‘Circumstantial evidence’ is opposed to ‘direct evidence’. But ‘circumstantial evidence’ usually means a fact, from which some other fact is inferred, whereas ‘direct evidence’ means testimony given by a man as to what he has himself perceived by his own senses. It would thus be correct to say that circumstantial evidence must be proved by direct evidence – a clumsy mode of expression, which is in itself a mark of confusion of thought.4
