In this blog post, Amoolya Narayan, an Associate at Economic Laws Practice (ELP) and a former student of West Bengal National University of Juridical Sciences, gives us a brief view of the Indian Evidence Act, 1872. Amoolya has included several exercises that test our understanding of the Act while helping us understand the nitty-gritty of the Act.

 

Why do we need Evidence Laws?

Finding proof is a challenging task. Criminals work hard to remove all traces of evidence, and some of it may come to light much after the case has been decided. If there are no laws governing evidence, anything may be passed off as such.

If there are no laws governing evidence, it becomes nearly impossible to know when a case has been definitively solved and closed. Therefore, there are strict rules that regulate the nature of evidence, the quality and the authenticity of the evidence.

 What role does Evidence play in the legal system?

Criminal charges lead to serious consequences for the accused. Therefore, in criminal cases, the level of proof required to resolve a case is very high. It is a strict requirement and the party alleging the crime must prove the claim beyond all reasonable doubt. Therefore, a case that goes to trial must be robust in its legal submissions and be able to prove the claim being made by the party.

The laws have declared that certain types of documents and certain articles of evidence have more weight than others, and would prove the claim convincingly. This can be done by producing relevant documents, or eye-witnesses to the offending incident or circumstantial evidence that increases the probability of the incident.

What is Proof? How does it differ from Evidence?

Anything that can make a person believe that an assertion is true or false. It is distinguishable from evidence such that proof is a broad term comprehending everything that may be adduced at a trial, whereas evidence is a narrow term describing certain types of proof that can be admitted at trial.

A case that goes to trial must be strong in its legal submission and satisfy the Court of the claims made by producing evidence. To do this, there are certain documents and objects that are taken into consideration while deciding on a matter of evidence. The Law of Evidence governs this aspect of criminal proceedings.

The level of proof in a criminal case is a strict requirement and the party alleging the crime must prove the claim beyond all reasonable doubt. This standard is examined by looking at whether a reasonable man would be convinced by the allegations levelled in the face of evidence to the contrary.

This can be done by producing relevant documents, or eye-witnesses to the offending incident or circumstantial evidence that increases the probability of the incident.

Try being a Judge!

In Agatha Christie’s Witness for the Prosecution: the accused was the last person to have been with the old woman who was murdered, and the accused’s wife testified that the accused had confessed to murdering the old woman and there was blood on his shirtsleeves. Do you think this amounts to proof beyond all reasonable doubt that he was the murderer?

The Act has provided definitions to certain words which play an important part in delineating the kind of evidence that may be put forth by either party.

Definitions include:

• Admissibility
• Fact
• Relevant
• Fact in Issue

Admissibility/Admission of Evidence

This lays down the boundaries of what may be admitted as evidence. The Courts consider the evidence gathered by the parties and decides which of them would be eligible for consideration.

An admission is a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances provided for in the Act.

When any person makes an ‘admission’ of a statement in Court, they are stating that it is a fact to be noted for the record, and that it has some relevance to the case in issue.

Fact

We all know what a fact is, but many times in a case, disputes arises over the versions of facts that are put forward by the parties. The most important tool that the Court can use to reconstruct a case and deliver justice is a fact. The definition of a fact is provided in the Evidence Act. For this purpose, fact broadly includes anything in the real or abstract sense that is capable of being perceived by the senses.

For example, if it was proved that a man had lunch at a particular restaurant, then it is a fact that he was at the place before sundown.

This could mean that a mental condition of which any person is conscious could be defined as ‘Fact’. Under this definition, a person’s opinion or his reputation may be considered as ‘fact’ for purposes of the case.

For example, Ashok and Hasan were roommates for 4 years during college. If Ashok opined that Hasan was very disciplined and pious, it would be an opinion considered as fact for this purpose.

Of course, with such a broad definition, even the fact that the sun shines in the sky may be submitted to the court in furtherance of admissible evidence and therefore, there is a requirement that the facts be relevant to the case.

Relevant

The word relevant is used in the Act to mean both (i) admissible, and (ii) connected with the case. One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

If admissibility and nexus are the two criteria for relevance, a submission may be rejected for its irrelevance if

1. the connection between the main facts and the evidentiary facts is too remote, or if
2. the evidence is rendered superfluous due to an admission by the opposite party, or
3. it is rendered superfluous by the admissions of the parties.

For example, if a person’s house has been robbed, then the fact that his maid has an extra key is a relevant fact.

For example, if a Majid has been murdered, the fact that he received a death threat is a relevant fact.

Fact in Issue

A “fact in issue” forms the core of the case. It is the essence of the dispute at hand and it consists of all the facts, due to which or connected to which, there is disagreement between the parties.

It includes any fact from which, either by itself or in connection with another fact, there may be a disagreement about the existence, nature and extent of any right or liability.

For example, Niteshwar Prasad was brought before a Court on the charge of murder of Venkatesh. He pleaded that he committed it upon grave provocation because he had caught Venkatesh committing adultery with his wife. The Court held that determining whether adultery was committed was a fact in issue.

Levels of Proof

Courts require different levels of proof, depending on the merits of the case at hand. Sometimes a court:

1. May presume: Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it.

For example, Courts may presume that any message that was sent from a telegraph office was the same message that reached whoever the message was intended for.

2. Shall presume: Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

For example, if certified copies of official documents have been produced in support of the party’s submission, the court shall presume the authenticity of these documents.

3. Conclusive proof: Where one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

For example, birth of a child during a couple’s marriage, shall be conclusive proof of the legitimacy of the child unless it can be shown that the couple did not have access to each other at the time that the child was conceived.

Once we know a little about the way criminal proceedings are conducted in court, we find out that the rules regarding evidence apply for the entire length of the proceedings, from the manner of gathering or extracting evidence, to the methods of construing evidence, to the procedure for submitting evidence.

Sources of Evidence

There are two main sources of evidence: a. Primary and b. Secondary. Primary evidence is direct evidence or original copies of a document, secondary evidence is copies of those documents, books of account, etc.

Primary evidence is given greater weight than secondary evidence in matters of deciding a case.

Primary Evidence

For example, when two parties enter into a contract, each copy of the contract is primary evidence against the party executing it.

For example, in a continuing contract, that is periodically renewed, each renewal contract is evidence of the contract itself.

Secondary Evidence

For example, a photograph of an original document is secondary proof of the document.

For example, an oral account of a document by a person who has herself seen it is secondary proof of the document.

Adversary Procedure

This refers to the manner in which court proceedings are conducted. In any adversary trial, the opposing sides present evidence, examine witnesses and conduct cross-examinations, each in an effort to produce information beneficial to its side of the case.

Lawyering skills would amount to a lot at this stage, and some exemplary lawyers often produce testimony that can lead to many ambiguities. What seemed absolute in direct testimony can raise doubts under cross-examination.

Under the adversary system, each side is responsible for conducting its own investigation. In criminal proceedings, the prosecution represents the people at large and has at its disposal the police department with its investigators and laboratories, while the defence must find its own investigative resources and finances.

Point to be noted, milord!

Best Evidence Rule: If there exists a dilemma about the quality of evidence to produce and the depth of investigation, there is a simple rule of evidence law which declares that, in order to prove something that is said or pictured in a piece of writing, recording it, or photographing the original must be provided unless the original is lost, destroyed, or otherwise unobtainable.

When judges decide a case, they are basically weighing the evidence from both sides and adding them up according to the values assigned to them, to arrive at a verdict of guilty or not guilty.

For instance, the prosecution is required to provide a lot of evidence to establish a case, while the defence merely has to show an ambiguity or a doubt that may destroy the case.

Typically, in a criminal case, the burden of proof on the prosecution is greater.

Burden of Proof: The burden of producing evidence means that, in general, the party that makes the claim also has the burden of producing the evidence to prove these facts. However, in some exceptional cases, there may be laws that say that the defendant has to prove that he did not perform the wrongful act. This is known as shifting the burden of proof.

For example, under Environmental Law, under the precautionary principle, the burden is on the hazardous industry to prove that it has not violated any environmental norms when it undertakes a project.

For example, under the Dowry Prohibition Law, if a woman who succumbed to burns under mysterious circumstances, had been married for less than 7 years and it can be proved that she was being harassed by her husband or in-laws for dowry, the burden of proving that dowry death was not committed falls on the husband and his family.

Circumstantial Evidence

When a case is reconstructed, it is not possible to count on finding exact proof of events that took place in the past. Many cases have been built and decided on the strength of circumstances surrounding the case.

Circumstantial evidence is not considered to be proof that something happened but it is often useful as a guide for further investigation.

For example, Ram and Shyam were always at loggerheads and constantly fighting. One day, Shyam was found murdered, with a knife in his hand which contained a few bloodstains. The fact that Ram had some gashes on his arms would be circumstantial evidence.

Circumstantial evidence is used in criminal courts to establish guilt or innocence through reasoning. They also play an important role in civil courts to establish or deny liability. However, it is not so much a type of evidence as it is a logical principle of deduction. Deduction is reasoning from general known principles to a specific proposition.

Circumstantial evidence is the basket of unrelated facts that, when considered together, can be used to infer a conclusion about something unknown. Information and testimony presented by a party in a civil or criminal action that permit conclusions that indirectly establish the existence or nonexistence of a fact or event that the party seeks to prove.

An example of circumstantial evidence is the behaviour of a person around the time of an alleged offence. If someone was charged with theft of money and was then seen on a shopping spree purchasing expensive items, the shopping spree might be regarded as circumstantial evidence of the individual’s guilt.

Point of Interest!

In two famous criminal cases that rocked the Courts, the Jessica Lall case and the Priyadarshini Mattoo case, the accused (Manu Sharma and Santosh Kumar, respectively) were convicted over the strength of the circumstantial evidence.

Confession

A confession made by an accused person is irrelevant as regards admissible evidence, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, by the person in authority. If the Court considers that the threat or inducement made is sufficient to make the accused person believe that he would gain any advantage or avoid any evil in reference to the proceeding against him.
Obtaining an honest confession is tricky business. And while it is highly important for an honest admission to be obtained, the accused possesses all his rights until he is convicted, and even then, he retains many rights. Therefore, in the interest of conducting a criminal proceeding properly, confessions must be got according to the law. For that, the confession has to be made when the authority has not induced him to make that confession through a threat or a promise, in relation to the trial at hand.

For example, when the accused was in police custody, the police threatened to harm his family by planting false charges on them if he did not confess. The accused gave a confession under coercion. This is not a valid confession.

EXAMINATION OF WITNESSES

In a typical criminal proceeding, when the police get notice of a crime, they appear on the crime scene and try to reconstruct the sequence of events that took place. For this, they need to make certain educated deductions, gather evidence and question any witnesses as to their version of the events.

The questioning of witnesses takes place during the trial and is conducted by the counsels for the parties. The version of events that a witness provides is known as a testimony, and it must be a very honest deposition.

Point to be noted, milord!

Giving a false deposition to the court amounts to an offence in itself, known as ‘perjury’ or ‘lying under oath’ and is punishable by law.

There may be witnesses for the prosecution and for the defence. The examination of a witness by the party who calls him is called his examination-in-chief, and when he is examined by the counsel for the opposing side is known as a cross-examination.
Witness examination must be done tactfully, and especially for the defence, it is a golden opportunity to uncover doubts and expose holes in the prosecution’s case. In a criminal proceeding, the prosecution’s job is harder than that of the defence, because the defence must merely cast doubts on the case that the prosecution has made. After one round of examination and cross-examination, the party that called the witness is allowed to re-examine his witness to set some records straight and clarify the final testimony.

Of course, the cross-examination and the re-examination are a prerogative of the parties and are not a necessary part of the procedure. The examination and cross – examination must relate to relevant facts but the cross –examination need not be confined to the facts to which the witness testified on his examination–in-Chief.

What is re-examination?

The re-examination may be done for a clarification or explanation of matters referred to in cross-examination. If new matter is introduced in re-examination, the adverse party may further cross-examine upon that matter. 

Leading Questions

Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

For example, Where did you leave the weapon after committing the murder?

Leading questions must not be asked in an examination-in-chief or in a re-examination if objected to by the adverse party – unless the counsel has the permission of the Court.

This provision of the law has been enshrined in most Bollywood film court scenes with a thunderous “I object, Your Honour!”

The Court shall permit leading questions as to matters which are considered as conclusively proved, or not requiring any evidence. And leading questions may be asked in cross- examination.

Dying Declaration

It essentially means a statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death.

Point of Interest

The legal maxim “nemo moriturus proesumitur mentiri” translates to “a man will not meet his maker with a lie in his mouth.”

Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. This is the reason Court also insists that dying declaration should be of such a nature as to inspire the full confidence of the Court in its correctness.

It cannot be laid down as an absolute rule of law that dying declaration cannot form the sole basis of conviction unless it is corroborated.

For example, if a man declares to a doctor, just before his death, that he was pushed from the top floor of a building to his demise, it is a dying declaration.

For example, if a newly married bride confides in her mother that her in-laws are ill-treating her very badly and she dies under mysterious circumstances a few days later, it is not a dying declaration.

Expert evidence

When the Court requires the assistance of persons skilled in foreign law, science, art or in the analysis of handwriting to provide their expert opinion on any of those matters, their testimony is known as expert evidence.

For example, a forensic scientist providing his opinion on the time of death of the deceased would be expert evidence.

For example, a handwriting expert providing his opinion on the handwriting on a suicide note would amount to expert evidence.

Hearsay

Hearsay is an out of court statement, made by someone other than the witness testifying at trial. If a statement is a hearsay, the statement is inadmissible as evidence. However, there exist certain exceptions where the rule against hearsay does not apply.

Generally, the material submitted as evidence will be evaluated as to how material it is to the case, and how relevant it is to the facts at hand. The rules regarding hearsay evaluate the manner in which the evidence is offered. The purpose of the rule against hearsay is to ensure that the adverse party is afforded an opportunity to cross-examine the declarant to test whether his testimony is accurate.

There are some statements, that although hearsay, are deemed to be trustworthy and therefore admissible as exceptions to the hearsay rule. Some of these exceptions require a declarant to be unavailable.

A declarant is unavailable if he is exempted from testifying by a court ruling, if he:

1. refuses to testify despite a court ruling
2. lacks memory to testify
3. cannot testify due to death or illness
4. cannot attend the trial

For example, if a man who has witnessed a murder suffers a stroke and cannot speak anymore, anyone who has heard an account of the event from him will be able to submit hearsay evidence.

For example, if a woman whose daughter was raped has lost faith in the judicial system and does not want to be involved in the trial, the trial may be held with hearsay evidence being submitted on her behalf.

Oral testimony

Oral evidence must, in all cases, be direct, i.e., If the evidence is a fact that was seen, it must be given by the person who saw it. Similarly, if the evidence is of a fact that was heard or perceived in any other sense, it must be affirmed by the person who heard it or perceived it in any other sense or manner.

If it refers to opinions or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

For example, if a woman sitting in her apartment heard a gunshot in the next room, she must give oral evidence in court that she heard it.

Witness

A witness is someone who has firsthand knowledge about a crime or significant event through their senses (e.g. seeing, hearing, smelling, touching), and can help certify important considerations to the crime or event. A witness who has seen the event first hand is known as an “eye-witness”. Witnesses are often called before a court of law to testify in trials.

The Code has set out certain parameters for a witness to be eligible to testify. Logically, there is a need to exclude those who cannot, whether due to age or health conditions, understand the questions posed to them while making their testimony.

All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body and mind or any other cause of the same kind.

For example, a man of 80 who is hard of hearing but has a reliable memory with regard to the events of which he has to provide his testimony will not be prevented from testifying, as he can read the questions put to him and answer accordingly.

For example, a woman who is at the final stages of her pregnancy who may go into labour very soon will not be prevented from testifying, although the court will consider her condition and postpone the date of her giving testimony.

For example, a boy of 14 with a rare medical condition that causes him to go into hysterics when addressed by strangers will be considered to be unable to understand the question put to them or to provide rational answers to the same, and hence prevented from testifying.

Privileged Communication

If every divulgence and confession may be taken as evidence, secrets would not be safe anymore. For professional purposes or other reasons, confidential information may have been divulged to certain individuals. In the absence of any protection by the Act, these individuals may have been obligated to give evidence using that information or based upon it, to attest to the truth or falsity of any allegation.

In India, Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privileged that is attached to professional communication between a legal adviser and the client. Section 126 and 128 mention circumstances under which the legal adviser can give evidence of such professional communication. Section 127 provides that interpreters, clerks or servants of the legal adviser are restrained similarly. Section 129 says when a legal adviser can be compelled to disclose the confidential communication which has taken place between him and his client.

Section 126 states that no barrister, attorney, pleader or Vakil shall at any time be permitted to:

1. Disclose

• any communication made to him by or on behalf of his client, or
• any advice given by him to his client in the course and for the purpose of his employment;

2. To state the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his employment.

There are certain exceptions to this rule. This Section does not protect from disclosure:

1. any communication made in furtherance of any illegal purpose
2. any fact observed in the course of employment showing that any crime or fraud has been committed since the commencement of the employment

Questions and Answers

Principle: The first rule is of Experts educational background. That means even the doctor is examined and is subjected to scrutiny and cross-examination. And if his opinion and observations contained in his statement are supported then the report can be looked at otherwise not. So even the examination of Doctor becomes essential.

If a person does not have the necessary educational background to qualify as a doctor, but still proffers an expert opinion as other people refer to him as an expert – will his opinion be counted as such?

(a) Yes, as long as he is aware of medical procedures to be able to offer an opinion.

(b) No, it is essential that the expert opinion be delivered by someone who is a qualified doctor.

(c) Yes, as long as the judge is convinced that he is an expert.

(d) None of the above.

Ans: (b). As stated in the principle, the qualification of a doctor to give the opinion carries as much weight as the opinion itself.

Principle: When the language used in a document is plain in itself but is not clear with reference to the facts, evidence may be given to clarify the reference made.

Mr Chatterjee had signed a deed pledging ‘his property in Kolkata’ to Mr Banerjee. It was found that he did not have property in Kolkata but in Howrah. Can Mr Chatterjee be allowed to provide more evidence to show that he was referring to the Howrah property?

(a) No, the words of a document should be read as to give effect to their natural meaning.

(b) Yes, because although the words make sense by themselves, the reference to the property in Kolkata is ambiguous as Mr Chatterjee does not have property in Kolkata.

(c) Since there is no ambiguity in the statement, there need not be any additional clarification provided.

(d) Yes, because his property in Howrah does not have the same description as his property in Kolkata.

Ans: (b). Following from the principle, if the document brings out an uncertainty with reference to the facts of the case, additional evidence may be provided to clarify the facts with reference to the case.

Principle: When the Court ‘may’ presume a certain fact, it is open for rebuttal by either of the parties by providing evidence as it is only a provisional acceptance of the statements.

Upon examination of witnesses and the circumstantial evidence, the Court provisionally presumed that the accused was present at the crime scene. However, after the results of the forensic tests came back, they were negative and thus, brought the presumption of the Court under threat. Can the accused give rebuttal evidence using the forensic results?

(a) No, as circumstantial evidence carries more weight than forensic evidence.

(b) Yes, as forensic evidence carries more weight than circumstantial evidence.

(c) Yes, as the presumption could be rebutted by providing convincing evidence of the opposing view.

(d) No, as any presumption of the Court will be binding upon the parties.

Ans: (c)

Principle: Judgements in rem are those that are pronounced as regards the legal character of a person or certain property and the entitlement of such person or to such property shall be against the rest of the world, and these shall be taken as conclusive evidence as to the legal status of the properties.

In which of the following cases would the judgement be taken as conclusive evidence?

(a) Probate on a Will is conclusive evidence of the title of the executors and the validity of the Will.

(b) A gets a decree against B for a right of easement over a particular piece of land.

(c) A judgement on possession of property that was never enforced as the property was acquired by the State.

(d) S gets a decree of judicial separation from T and is now living separately.

Ans: (a) and (d). (a) discusses the legal status of certain properties and as to the legal character of the executors of the Will. (b) is as to A’s right of easement which is only against B. (c) is a judgement that does not carry any weight. (d) is as to the legal character of S and T.

In the following two questions, there will be an assertion and a reason provided. You have to decide whether the assertion is right, and then decide whether the reason provided for it is valid.

Assertion: Hearsay information from a person who is now dead is not admissible as evidence, except if the information relates to the circumstances of his death.

Reason: If a person provides clear and accurate information as to the circumstances of his death, at the time of his death, it is admissible  as conclusive evidence of dying declaration.

(a) Both assertion and reason are right, but the assertion is not an effect of the reason.

(b) The assertion is not valid, but the reason provided is a valid statement.

(c) The assertion and reason are both false and invalid.

(d) The assertion and reason are both right, and the assertion is a natural consequence of the reason.

Ans: (d). One of the exceptions to the hearsay rule is the law on dying declarations. A declaration by a person on his death bed as to the nature and circumstances of his death is taken to be conclusive evidence because of a rule of evidence that states that a person does not meet his maker with a lie in his mouth.

Assertion: Electronic evidence is now acceptable on the same terms as documentary evidence.

Reasoning: Documentary evidence can amount to either primary or secondary evidence.

(a) Both assertion and reason are right, but the assertion is not an effect of the reason.

(b) The assertion is not valid, but the reason provided is a valid statement.

(c) The assertion and reason are both false and invalid.

(d) The assertion and reason are both right, and the assertion is a natural consequence of the reason.

Ans: (a). Through some amendments to the Evidence Act, electronic evidence is being treated on par with documentary evidence, in terms of admissibility, as long as the digital signature and authorisation are present.

Birth of a child during marriage leads to the presumption of the child’s legitimacy. Vidya and Krishna had a son after they were married, which proves that Vidya did not have extra-marital affairs. The logical structure of the argument above is most similar to which one of the following?

(a) If Lucy were in the school, I would not be able to call her. Therefore, the fact that I can call her shows that she is not in school.

(b) If Bhatt were rich, he would not spend his vacation in India. Therefore, his spending his vacation in the Europe shows that he is rich.

(c) If Sita were sociable, she would not avoid her friends. Therefore, the fact that she is sociable shows that she does not avoid her friends.

(d) None of the above.

Ans: (b). (a) and (c) both presume what they set out to prove. The logical structure and the point of fallacy is the same in both the question and (b), as both situations presume that only one factor is needed to determine a certain fact.

Which of the following fall under the head of facts that need not be proved i.e., (a) can be judicially noticed (b) have been admitted?

(a) The plaintiff’s accusation which the defendant first admits and then denies.

(b) The fact that a certain area has been attacked by terrorists and requires utmost attention.

(c) The accusation that a helpless woman was gang raped by her drunk acquaintances.

Ans: Since (a) consists of an admission which is subsequently redacted, and (c) requires proof beyond reasonable doubt to convict the alleged rapists, only (b) remains a fact that does not need to be proved because the Court can take judicial notice of the apparent state of affairs.

 

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