The above definition of the term “evidence” is not a complete definition. Evidence, thus defined, is not the only medium of proof; in addition to it, there are a number of other matters like the demeanour of a witness, which the Court has to take into consideration when forming its conclusion. The definition of ‘evidence’ has to be read with word “proved” (see below) when determining what is ‘evidence’ within the Act.
Bentham defines evidence as “any matter of fact, the effect, tendency or design of which, when presented to the mind, is to produce in the mind, a persuasion concerning the existence of some other matter of fact — a persuasion either affirmative or disaffirmative of its existence.” Taylor uses the word evidence to mean “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”. The confession of an accused person is not evidence in the ordinary sense of the term, as defined in this section, though it has to be given due consideration in deciding a case. Similarly, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though a confession may be regarded as evidence in that generic sense, the fact remains that it is not evidence as defined by S. 3 of the Act. (Haricharan Kurmiv.
State of Bihar, A.I.R. 1964 S. C. 1184) What evidence means and includes is described in S. 3 of the Evidence Act, but affidavits are not included within that description. Rather, affidavits have been expressly excluded by S.
1 from the applicability of the Act. That means that affidavits cannot be used as evidence under any of the provisions of the Indian Evidence Act. (Firm S. Rajkumar v. Bharat Oil Mills, A.I.R. 1964 Bom.
38) Judicial Evidence: The expression “judicial evidence” may be defined as evidence received by Courts in proof or disproof of facts, the existence of which comes into question before such Courts. It will thus be seen that judicial evidence is a species of the genus “evidence” and is mainly natural evidence as refined and modified by rules of positive law.