Basics of Law of Evidence

June 27, 2019

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This article is written by Sparsh Mali, a fourth-year law student at the School of Law, UPES, Dehradun. The article defines and explains about different terminologies used under Law of Evidence. 


The Law of Evidence is a significant part of any branch of the judicial system irrespective of any nation, which means the role of evidence is very important statute in every country. But talking specifically about India the enactment of Indian Evidence Act has changed our judicial system completely as there were no codified laws relating to evidence which enriched our judicial system by providing rules and regulations for ascertaining the shreds of evidence. Although the India Evidence Act is based on English law still it is not fully comprehensive and also it is a ‘Lex Fori’ law which means law of the land where court proceedings are taken. The term ‘evidence’ is derived from Latin word i.e., ‘Evident’ or ‘Evidere’ which means ‘to show clearly, or to discover, or to ascertain or to prove.’

The Evidence act came into force from 1st September 1872 applies to all over India except the state of Jammu and Kashmir. The limitation of this act does not end here, as it is not applicable to army & naval law, disciplinary acts and all the affidavits. It is well known that the Law of evidence is Procedural Law and it only applies to court proceedings but it also has a feature in its some part which makes it as Substantial Law like Doctrine of Estoppel.

The primary objective of any Judicial System irrespective of any state is to administer justice and protect the rights of the citizens. For administering justice, every judicial system has to consider the facts of the cases and has to extract the correct facts for complete justice; and there the importance of procedural law comes into existence which laws different rules in checking the value of the facts produced by the law offender and by the victim.

The complete ‘corpus juris i.e, a body of laws, is divided into two categories:

But the law of evidence neither comes under substantive law nor under procedural law, rather it is a subject matter of ‘adjective law’, which defines the pleading, evidencing and procedure with respect to substantive laws. The general meaning of ‘Evidence’ is ‘a body of facts and information indicating or adjudicating the values of any facts or evidence’.


Evidence is classified into different categories such as:

Oral Evidence- Section 60 deals with the oral evidence, where oral evidence is those evidence which the witness has either personally seen or heard any such facts or information which has the capability of proving or establishing the facts in issues. The only condition with these types of evidence is that they must be direct or positive for establishing the fact in issues.

Eg. If the original paper document is lost then its photocopies can be used as secondary evidence to prove the ownership.

The Need for Evidence Law

Evidence is the only possible way by which the court can make inferences to render a decision. The definition of evidence explains that evidence is the proof of any fact in issues so without evidence there will be no possibilities to prove any fact in issues or even to establish any facts in the cases. It is very obvious that it is not much difficult task to obtain trust through violating the basic structure of law but in the course of protecting those rights Evidence, Law comes into the picture. Evidence Law tells the basic principles and rules regarding collection. So the process of evidencing any facts or proof should be governed by a well-established law in order to achieve speedy and fair justice.

The law of evidence is not just a fundamental principle governing the process of proof rather it also has a multidimensional purpose of governing the rules relating to the process of proof in court proceedings. While it’s moral dimension is a special asset in criminal trials as it endeavours in protecting the innocent and highlighting the guilty person to administer complete and fair justice. On the other hand, the evidence rules also have the capability to hide and prevent the truth to be disclosed in the public domain to protect the mass public interest.

Basic Legal Terms


A is the owner of a shop- it is a fact.

A is accused of robbery- now whether A committed robbery or not is a fact in issue.


A is accused of Murder of B in Agra (Fact)

A was in Canada for his business meetings at the time of the murder (Relevant fact)

The general definition of Conclusive Proof is a condition when one fact is established, then the other facts or conditions become conclusive proof of another as declared by this Act. The Court in its consideration shall regard all other facts to be proved, only if one fact of the case is proven without any reasonable doubt. And if the other facts are proved on the basis of proving of one fact that the court shall not allow any evidence contrary to other facts which are presumed as conclusive proofs

Illustration- A and B married on June 1 and the husband left home to his work for 6 months later he discovered that her wife is pregnant he divorced the wife and challenges that he is not liable for paying damages either to his wife or to his illegitimate son. And also explains that he never consumed his marriage as just after one day of marriage he left his home for his work. But in this case, the court will conclusively presumed that the son born out of his wife is legitimate because he was with his wife for at least 1 day and shall not allow any proof contrary to the conclusive proof even if he provides probative evidence.

Relevancy of Facts

  1. Doctrine of Res- gestae: The doctrine of Res gestae is expressed under section 6 of the Indian Evidence Act, 1872 in the following words- “Facts which though not in issue are so connected with the facts in issue so as to form a part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places”

Res gestae was originally used by the Romans which means to ‘acts done or actus’. The most important principle of this doctrine is that all the facts must be described in the same transaction. Whereas transaction means a group of facts which are so connected to each other that they can be considered as a single fact. In Layman’s language, a transaction may be considered as a series of certain acts and when all the actions are carried in the same situations at the same point of time then such situation or condition be called as the act of the same transaction. Circumstantial or indirect facts are also considered under the doctrine of res gestae as they are also forming a part of the same transaction.

To know more about the doctrine of Res Gestae in brief, please refer to the video below:

Essentials of Doctrine of Res Gestae-


If a person is dying of poison and before dying, he tells the name of the accused.

If a person is about to die as the accused is in front of him holding a gun and he asks for help.

If an injured person is crying for help.

In, Ratten V. Queen[1] the victim (wife) called the police for help as her husband was holding the gun and was about to kill her but before the operator could get connected to the call and report the statements of the victim, the call disconnected. Later the police found her dead body in her house from where she called the police for help. Later the police found that the time of the call and time of death was almost the same so the call by the victim comes under the principle of res gestae. Hence the court found the husband guilty of murder and quashed his reasoning that he shot accidentally without any intention.

In, Sukhar V. State of UP [2] the victim tried to alarm that the accused will shoot him in a few minutes. On hearing the alarm the witness almost reached the place of incident. However, the victim survived and the accused was charged under section 307 of IPC (Punishment for Attempt to Murder). Despite the circumstances, in this case, being hearsay evidence, but still, the court recognised the act in the same part of the transaction and explained it to be a case of section 6 of the Indian Evidence Act. Therefore the statements of the witnesses were admissible as it formed a part of the same transaction.

In Uttam Singh vs. State of Madhya Pradesh[3]the child and the victim were sleeping together at the time of the incident and he suddenly awakened due to the voice of axe and screamed for help by taking the name of the accused. Just after the call for help his mother, sister and other witness come there. The court found this evidence to be admissible as the act of the child and the accused was of the same part of the single transaction.

  1. Motive Preparation and Conduct

Section 8 of the Indian Evidence Act talks about the importance and of motive, preparation, conduct(previous & subsequent) in various cases. And it is a well-known fact that Motive & Preparation are among the first act before any conduct. Therefore Section 8 explains the importance of motive, preparation and conduct where there are no direct evidence and the facts are proven on the basis of circumstantial.

Motive- The general meaning of ‘Motive a purpose, or objective to obtain something. The Supreme Court of India defined motive is something which induces or activates a person to make an intention and knowledge, with respect to awareness of consequences of the act.

                  Click Above

The relevance of Motive under the Act: As in the above discussion we have already seen that Motive is the main inducing force which induces a person to do some act. It is expressed that if the offence has been commenced voluntarily then could be no possibility of the absence of motive. Although it is very difficult to obtain the evidence of motive still evidence of motive becomes very important in the case of circumstantial evidence. The Supreme Court in the reference of motive said that ‘if the witnesses of any case are trustworthy and have enough credibility then the motive of any act done by the offender has no such importance’.

Although motive and intention are the same there is a thin line of difference between them that intention is the pre-calculation or knowledge of ascertained consequences in the mind of the offender. In some cases, it is observed that sometimes motive behind the execution of a crime may be good but the intention is always bad or guilt-oriented.

In, Kundula Bala Vs State of A.P[4]: The son-in-law before his marriage demanded a piece of land from the deceased. But after the marriage, the deceased refused to transfer the ownership of the property and expressed that he would give this property to his daughter. Such inferences of the father in law induced the accused in committing a crime and after some time the crime commenced. The court observed that there is a strong motive with the accused of committing the crime as the father in law refused to transfer the property in the accused name.

In, Gurmej Singh Vs State of Punjab[5]: The deceased has won the election against the accused. It is also seen that they don’t have good relations between and they have always had a quarrel with each other. The reason behind frequent quarrels was that the accused diverted dirty water stream towards the house of the deceased. The court observed that there were pending litigation between them and dirty water stream induced the frustration between them. After the death of the deceased, the Court concluded that dispute related to the passage of dirty water could be the motive of the murder.

In, Rajendra Kumar Vs State of Punjab[6]: The Court held that the accused can only be convicted if the prosecution completely proves the motive and provide the supporting evidence to establish the commission of the offence by the accused.


The Supreme Court of India interpreted ‘preparation’ as a word which denotes the action or preparation of any act and also those components which are prepared. Preparation includes arranging the essentials objects for the commission of a crime/offence.

Evidence tending to show that the accused had prepared for the crime is always admissible. Preparation does not express the whole scenario of the case rather preparation is only subjected to the arrangements made in respect of committing any act. Further, there is no mandate that preparation is always carried out but it is more or less likely to be carried out. It is very difficult to prove preparation as there is no mandate that preparation is always carried out for the purpose of committing any crime. It is mostly observed that the Court draw inference with certain facts in establishing or ascertaining the preparation of crime committed.

In, Mohan Lal Vs Emperor[7]: The accused was charged for cheating as he was importing goods in Karachi port from Okha port without paying the proper custom duty as he made some arrangements with the customs department. The prosecution showed enough evidence to prove the preparation by the accused in avoiding the import duties. The Court held that the act by the accused was completely wrongful and are prohibited by the law hence the accused is liable for preparation.

In, Appu Vs State[8]: The four accused arranged a meeting to make essentials arrangements for commencing crime. Certain facts related to the objective of the scheduled meeting were admitted which showed preparation on their part. The preparation was administered clearly that it is an intention to commit burglary and the accused were waiting for the right time to get the best opportunity to execute their preparation.

Conduct- Section 8 of The Indian Evidence Act also defines ‘conduct’, conduct here means an external behaviour of a person. To check if the conduct of a person is relevant to the incident then the court must establish a link between the conduct of a person who committed the crime and the conduct of incident. The most important role of this part is that the relevant conduct must bring the court to a conclusion of the dispute. If the Court came to a conclusion then the conduct was previous or subsequent, it shall be checked properly by the Court. It is very clear that conduct is one of the very important evidence explained under Section 8 and such importance is only considered when this conduct is in direct form, otherwise, if the conduct is recognised indirectly then it will lose its importance.

In, Bhamara Vs State of M.P[9]: a person X was farming on his land, on seeing another person standing near to his place he called the person for some conversation. After a few moments, the conversation turned into arguments and ended up into a fight. On seeing such activity other people came to the place of incident to stop the fight but subsequently, the offender tried escaping. But the offender was caught by some other person. The Court found that the conduct of escaping of the offender was relevant subsequent conduct.

In, Nagesha V. State of Bihar [10], it was held by the Court if the first information is given by the accused himself, the fact of his giving information is admissible against him as evidence of his conduct.

Conspiracy- Conspiracy means few people come together to do an act with common intention. So in the same context, a criminal conspiracy is the act of at least two or more persons to do an act which is not authorised by the law i.e., an illegal act, or to do a legal act by illegal means. Criminal Conspiracy is a kind of partnership in crime, and every member of such partnership must join the partnership by mutual agreement for executing a common plan.

There are two relevant provisions which deal with the criminal conspiracy i.e., Section 120(A) of the Indian Penal Code and Section 10 of the Indian Evidence Act talks about the things said or done by a conspirator.

Essentials of Criminal Conspiracy u/s 10 of the Indian Evidence Laws:

In, State of Tamil Nadu v. Nalini[11], the court held that once any of the participants of conspiracy execute the conspiracy then his statements made by him cannot be used against other conspirators according to Section 10 of the Indian Evidence Act.

In Subramaniam Swamy v. A Raja[12], the court in its judgments showed that anything which is doubtful cannot be considered as legal proof and such proofs are insufficient to prove any criminal conspiracy.

Alibi- The word ‘Alibi’ is derived from the Latin word, which means ‘elsewhere’. Section 11 of the Indian Evidence Acts explains the concept of ‘Facts not otherwise relevant become relevant’ and makes the provision as a defending ground for the accused. The simplest meaning of this section is a condition when the incident took place and the accused is charged for the incident then he may make defend him on explaining that at the time of the incident he was not present at the location. Although previously it was not relevant for the court to know that where he was as the investigation showed that he committed the crime but his explanation that he was not at the place of incident make the irrelevant facts a relevant fact. The important part of Section 11 of the Evidence Act is that this rule is only accepted in the course of admission of the evidence and no other statute provides such rule.

The plea of alibi has to be taken on the very first stage of the trial and must be proved without any reasonable doubt as the burden of proof is on the person who is taking advantage of Section 10 i.e., Plea of Alibi.

Essentials of Plea of Alibi:

In, Lakhan Singh @ Pappu vs The State of NCT of Delhi[13] A plea of alibi cannot be compared with a plea of self-defence although both the plea is to be taken on the very first instance of the court proceedings.

In, Sahabuddin & Anr vs the State of Assam[14] Once the court is in doubt with respect to plea of alibi and the accused does not give any substantive explanation to support his statement under Section 313 CrPC, then the Court is authorised to conclude a negative or not a positive inference against the accused.

In, Jitender Kumar v State of Haryana[15] the Court not believing the plea of alibi as the accused did not provide the sufficient supportive evidence for establishing the defence. And the Court supported the case from the prosecution side.

Confession- Section 23 of the Indian Evidence Act defines the word “confession” is an admission of crime by a criminal or suggesting the inferences that he committed a wrongful act, confession can be made at any time during the trial.

In, Palvinder Kaur v State of Punjab the Supreme Court observed two aspects which are: Firstly, the definition of confession is that the accused must either admit the guilt or admit subsequently all or few facts which constitute the offence. On the other side, a mixed statement which also contains some confessional statement will still lead to an acquittal, is no confession. Thus, a statement that contains self-exculpatory matter which if true would negate the matter or offence, cannot amount to a confession.

In, Nishi Kant Jha v State of Bihar the Supreme Court opined and substantiated its arguments on the support of English authorities that it the discretion of the court and there is nothing wrong with relying on some specific part of the confession and rejecting the other part.

Magistrate duty of recording the confession- A Judicial Confession is made to the Magistrate during the judicial proceeding or at the time of court trial. Judicial Confessions are very relevant and are considered as one the most important type of confession as they are directly recorded by the court. Section 164 of CrPC empowers a magistrate to record a confession in his presence and such confession will hold enough evidentiary value that the confessor can be held guilty. Rajasthan High Court has also held that the confession of an accused must be free, voluntary and genuine that nothing is left with the prosecution to prove any fact then only the person can be convicted on the basis of confession.

Dying Declaration

The word “Dying Declaration” means any statement is written or verbal of relevant facts made by a person, who is dead or it is the statement of a person who had died explaining the circumstances of his death.

The concept of dying declaration was evolved from a legal maxim, nemo mariturus presumuntur mentri’ i.e. a man will not meet his maker with a lie in his mouth. Although it may sound impractical but our law has adopted this concept and functions accordingly. Section 32(1) specifically deals with the concept of dying declaration in respect of a cause of death and it is assumed that such statements are relevant even whether the person who made them was not at the time when they were made.

In Uka Ram v. State of Rajasthan, the Apex Court defined dying declaration in a way that, “when a statement is made by a person in the threat of his death or as to any circumstances which cause threat or results into his death, and when the cause of his death comes in question the statements made by him are admissible as evidence, such statement in law are compendiously called dying declaration.”

The Supreme Court in deciding P.V. Radhakrishna v. State of Karnataka, Appeal held that ‘the principle on which a dying declaration is admitted in evidence is indicated in the Latin maxim, nemo morturus procsumitur mentri’, which means that a man will not meet his maker with a lie in his mouth. Information lodged by a person who died subsequently relating to the cause of his death is admissible in evidence under this clause.

In K.R. Reddy v. Public Prosecutor the evidentiary value of dying declaration was observed as:

“The dying declaration is admissible under Section 32 & because the statement not made on oath so that its truth could be tested by cross-examination, the court has to observe the closest inspection of the statement before acting upon it. And it is also assumed that the words of a dying man are of very serious nature because a person on the verge of death is not likely to tell lies or to connect a case to a malice prosecution of an innocent person. Once the court is satisfied that the dying declaration is true & voluntary and are not influenced, then the statements can be sufficient to prove the conviction even without further corroboration.”

The evidentiary value of FIR in the circumstances of dying declaration comes from the concept that- A dying declaration can also be recorded by public servants, or by a doctor as well, where the victim is hospitalized and is badly burnt or injured and wants to make a statement, the doctor can also record the same and make a note of that statement. Although, it is advisable that the dying declaration should be made to the magistrate itself or in the presence of magistrate but if there is a condition where no such possibility is seen then the dying declaration can also be recorded by the police officers, although the court discourages such declaration to the police officer but if the condition and circumstances are of such a nature that no other possibilities are seen, then the dying declarations written by the police officers are also considered by the courts.

In, Kapoor Singh V. Emperor [16] the court observed that the FIR lodged by the deceased person can be admissible as a piece of evidence in the court if the FIR is relating and explaining the circumstances of his death. Also in the case of Sukhar V. State of UP [17], it was observed that if the dying declaration in the FIR is not sufficient to ascertain the facts and reasons for the cause of his death, even though the FIR has enough information related to the accused and details of the incident. Then the information cannot be considered as dying declaration.

In the case of Maniram V. State of Madhya Pradesh, the dying declaration was recorded by the doctor but the doctor did not attest the consciousness report of the deceased and also there was no thumb signature on the dying declaration, in that case, the FIR has lost its credibility and it was difficult to rely on the dying declaration.

Expert Advice 

Section 45 to 51 of the Indian Evidence Act deals with the provision of admissibility of opinions of third persons, which is also known as ‘expert’s opinion’. Although it is a general rule that evidence can only be obtained on the basis of facts which are within the knowledge of a witness. The exception of ‘expert opinion’ is based on the principle that sometimes the court can’t conclude all the matters of the cases which are technically complicated and professionally sophisticated, as these cases are required to deal by such experts who have special knowledge and skills on those matters. The Section 45 of the Indian Evidence Act defines the meaning of ‘expert’ as a person who has special knowledge or skills or has a great experience either in foreign law or in science or in art or in handwriting or in finger impression; and such knowledge is gathered by him in the course of practising in the specific field or through observation or through proper studies in the specific field.

When can an expert opinion be called?

The expert opinion can be called when there is:

  1. a) A dispute which can’t be resolved without expert opinion; and
  2. b) Such a situation that the witness expressing the opinion is a subject matter related to expert.

In, Arshad v. State of A.P. [18] and S. Gopal Reddy v. State of A.P[19], in both the cases the court observed that expert evidence are just a mere opinion and not the substantive or a probative evidence; according to the procedural rule the opinion or the inference of the expert is not safe as they don’t have any independent value so they must be corroborated with the circumstantial evidence.

In, Piara Singh v. the State of Punjab[20] the Court state that whenever there is a contradiction between the opinion of two experts, then the court must refer only those opinions which are supported by the direct evidence of the fact of the cases.


Bentham, explains the ‘witnesses’ as the eyes and ears of justice. But the general definition of ‘witness’ is- A witness is a person who voluntarily provides evidence to clarify or to help the court in determining the rights and liabilities of the parties in the case. Witnesses can either be the person related or experts with valuable input for the case. Pieces of Evidence are placed in the court on the basis of witness and even the genesis can be proved of the documents can be proved in the court. Therefore, the law has to be very precise with regards witness and has to check the credibility of the witness, there are some certain issues to the court before the admission of the witness’s statements such as- How many witnesses are needed to prove a fact? Who is competing to be a witness of the issues? How to check the witness credibility?

Section 118 of the Indian Evidence Act lays down certain rules that ‘who may testify’ the rule expresses the provisions that all personnel shall be competent to testify by the court unless the witnesses are protected by some other provision that they cannot understand the question presented before them to testify any facts and such exceptions can be related to extreme old age, chronic disease, being legally unsound etc.

Prima facie, Section 118 of the same Act expresses that other than all person who are incompetent to testify any facts in issues are the competent witnesses. The basic structure to test the competency of a witness is to check whether a witness can understand the questions and can answer reasonably or not.

In Rameshwar vs. State of Rajasthan[21], the Court held that a witness administering an oath only shows the credibility of the witness and not the competency.

Section 135 specifically talks about the order of production and examination of witnesses. It lays down certain rules which specify that the witness can be produced in a particular order only, and shall be examined according to the rules. It also gives discretionary powers to the Court that when there is an absence of law then the order of witness and examination of witnesses will be carried out in the prescribed manner as the Court dictates.

Section 136 empowers a discretionary power to the Court that it is up to the Court who accept the evidence or not.

Three basic stages can be laid down in the examination of witnesses:

Examination In Chief: When the advocate itself introduces his witness and examines them, no matter whether they are the plaintiff or the defendant, then such examination is known as ‘Chief Examination’. It is always preferable that the questions should be properly ordered to maintain the structure of the information. It is advised that only relevant questions should be asked and no leading questions should be asked.

Cross Examination: The other name of cross-examination is ‘examination exadverso’. Such examinations are utilised to testify or impeach the credibility of a witness produced by the other party.

In, Ganesh Jadhav v State of Assam[22] If the defence fails to challenge and impugned the relevant facts stated by the prosecution in the course of examination the witness in chief, then the Court can believe that facts produced by the prosecution are true facts.

Re-Examination: Re-examination is the process of second and subsequent examination by the suffering party. When the council thinks that there is a need of examining his witness again because new facts are availed by the defence party in the course of cross-examination then he may with the permission of the court re-examine his own witness to testify the new facts. Though re-examination is not a matter of right still the Court does not disturb the court proceedings as re-examination may explain the new facts in the case and to administer the justice these facts are necessary.


  1. [1972] A.C. 378, [1971] UKPC 23, [1971] 3 All ER 801, (1972) 56 Cr App R 18, [1971] 3 WLR 930]
  2. (1999) 9 SCC 507
  3. 2002 INDLAW MP 79
  4. 1993 Cr LJ 1635 SC
  5. AIR 1992 SC 214
  6. AIR 1966 SC 1322
  7. AIR 1937 Sind 293
  8. AIR 1971 Mad 194
  9. AIR 1953 Bhopal 1.
  10. AIR, 1996 SC119
  11. AIR 1999 SC 2640 or 1999 5 SCC 253
  12. (2012) 9 SCC 257
  13. Delhi HC Crl Appeal No. 166/1999
  14. Criminal Appeal No. 629 of 2010
  15. (2012) 6 SSC 2014
  16. (AIR 1930 Lah. 450)
  17. (1999) 9 SCC 507
  18. 1996 CrLJ 2893 AP
  19. AIR 1996 SC2184
  20. AIR 1977 SC 2274
  21. AIR 1952 SC 54
  22. 1995 1 CR LJ 111





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