Evidence

This article is written by Gitika Jain pursuing BBA.LLB (Hons) from Amity University, Kolkata. This article deals exhaustively with the concept and importance of evidence in the Hindu, Muslim and British era.

Introduction

The word law can be used in different senses. In a simple sentence, the law means any regulation, rules, canon, or a norm to which most of the people are required to act accordingly. However, the entire body of law i.e. Corpus Juris has probably been classified into two categories-

  • Substantive laws
  • Adjective laws.

For that purpose, if we talk about the law of evidence it does not come under the purview of substantive or procedural law but instead, it is an adjective law that lays down the procedure through which substantive laws are brought into practice. Evidence law deals with the rights as well as the procedure. The literal meaning of evidence is that any available information makes us believe a part that is true. Section 3 of the Indian Evidence Act, 1872 defines evidence as to the statement which is permitted by the court and which is required to be made by witnesses before the court in relation to any matter which is in question; these statements are often called oral evidence. Evidence also means all the documents that are produced before the court for inspection. Such documents are called documentary evidence. The Evidence Act takes us back to the year 1972 which was passed by the British Parliament and which contains rules and regulations of evidence in the court of law. The provisions under the Evidence Act provide us with the procedure of how to approach the court and claim before it. The Evidence Act which is called the Indian Evidence Act 1872, has 11 chapters and 167 sections and it officially came into force on 1st September 1872. It has been 140 years since the Evidence Act has been enacted, still, it retains its original form except for a few amendments that took place from time to time. The history of the law of evidence is based on three different periods

  • Firstly, the ancient Hindu period
  • Secondly, the ancient Muslim period
  • Lastly, the British period.

Law of evidence in ancient India (Hindu period)

The ancient Hindu period had the origin of the concept of evidence and for that matter, Hindu Dharma Shastra had to be referred. Hindu Dharma Shastra states that the aim of any trial is to find out the truth. Yajnavalkya also states that the king must always give preference to the true facts and discard what is fraudulent. The Hindu law (Manusmriti) giver took every precaution in the case where the two parties have any contradictory claims. It is written in the shastras that whichever party is coming in the court must admit the truth. Manu said that one who presides over the tribunal that is the king must always find out the truth and determine if the testimonies of the witness, the description, time, and place of the incident provided in the tribunal are correct and thereafter pronounce the true judgment. Vashishtha lays down three kinds of evidence that are Likhitam, Sakshino, Bhukti, Parmanam, Trividham, Smritham that Lekhya documents, Sakshi (witness) and Bhukti (possession). In ancient Hindu law, there was a court where the king presided and it was the highest court in ancient India. The court was situated in the capital city at the Royal Palace. The king (Rajah), the judges (Sabhyas), and the Chief Justice (Pradvivaka) were the officers of the court. The king at that time had the power to pass the final decree in consultation with the final opinion of the chief justice and the duty of the judge was to look into the merits of each case.

In ancient India, there were no technical procedures to provide justice to the aggrieved person in the court. The base on which the judgement was pronounced was Dharma. Soon after filing the complaint, a summon was given to the opposite party to hear them as well. The rules were set for admission, denial, confession, avoidance, and res judicata. The witnesses and documents produced by them in support of the charges were conducted at the trial session and the parties themselves had to produce witnesses. The king was not to delay any examination of witnesses and he, along with the members of the court present, was supposed to examine the witnesses and statements made by them.

Dharmanikarana is the position by witnesses inside the hall of justice and not anywhere else. The evidence given by the witnesses must be in the presence of the plaintiff and of the defendant depending on the case and before giving any kind of evidence, an oath must be taken by the witness after taking off shoes, turban, stretching out the right hand and taking in his hand, cow dung or any sacred grass as the case may be and then speaking the truth. In case any false evidence has been presented in the court, the highest punishment given should be capital punishment. Each witness should be questioned by the judge separately and the words of the witness must be taken down as narrated and no changes could be made in the statements of the witnesses. Dharma Shastra and Manusmriti were among them which were written between 200 BC and 100 AD. 

Manusmriti was the landmark in the history of Hindu law. After Manusmriti, Yajnavalkya, Narada, and Katyayana included the law of evidence in their smritis. According to the Manusmriti, once the answers are submitted by the parties, the evidence must be produced before the court. In order to systematize Manu’s rule, Yajnavalkya made it compulsory to add three proofs, that are documents, witnesses, and possessions. Narada also repeats the three kinds of proofs specified by Yajnavalkya. Narada also explained the views of Manu on witnesses and divided them into 11 classes. The two broad headings of proof by Narada for human and divine-human comprised documentary and oral evidence and divine included ordeal by balance and the rest. The formula of four feet of legal proceedings explained by Brihaspati and Narada was followed by Katyayana. The four stages were Purvapaksha (plaint), Uttara (reply), Pratyakalita (deliberation as to burden of proof), and Kriyapada (adducing of proof). After submission of the evidence, the court was to deliver its judgment. The three pieces of evidence namely documents (likhita), witnesses (sakshi) and possession (bhukti) were prescribed by Yajnavalkya and Katyayana.

Witnesses (Sakshi)

  • Manu believed that the men who knew their duty were admissible as witnesses in the court of law irrespective of the caste while other persons were not admissible as witnesses.
  • Women, Sudras, twice-born men and men of lower caste can only produce evidence on behalf of the person of the same class.
  • The person who had knowledge of the murder case or acts inside a house or a forest can be called a witness.
  • If regular witnesses are not present, anyone can be summoned to provide evidence. For example women, pupils, slaves, relations, infants, or hired servants. In cases of adultery, defamation, assault, and violence, the witness should not be examined too closely.
  • In case false evidence is provided before the court, the witnesses could be provided with severe penalties. 
  • Another important aspect of the legal position of witness is character. According to Manu where there is a conflict of witnesses the king is bound to accept the evidence which the majority provides but in the case where the evidence is produced before the king or equal number, the king must distinguish between the right and the wrong. 
  • Back at the time when there were no witnesses, the rule of both came in. Ascertainment of the truth could be borne by the judge through oath or an ordeal. An oath was regarded as a sacred medium which could never be false. 
  • The witnesses who did not speak the truth were provided with penalties.
  • The character of the witness was also taken into consideration. In case the character of the witness was highly dubious, he was not regarded as a competent witness to provide evidence in the court of law. 
  • According to Gautama, the witness must be a trustworthy person who knows all the facts of the case and he must be examined by the king or the judge. 

Documentary evidence (lekhya)

Documentary evidence came at the time of Vashishtha. It was regarded as a less important form of evidence than the testimony of witnesses. There are three types of documents according to Vishnu; Rajasaksika, Saksika, Asaksika. 

  • The first was a document that was executed by the king’s clerk in the king’s court and was attested by the presiding officer.
  • The second was private evidence that was attested in his own hands by witnesses. 
  • The last one was a document that was admissible entirely in the hands of the party themselves.

Any other document outside the purview of these three categories was not regarded as admissible in the court of law. According to Brihaspati, there are three classes of documents:-

  • Rajalekhya
  • Svayamkrita
  • Svahastalikhita

Since documentary evidence was less preferred than oral evidence because of the possible chances of forgery, the ancient lawgivers introduced few rules in order to determine the genuineness of the documents. A document was only considered to be valid when it was not written by children, dependent, lunatics, women, or any person under fear. A comparison of the handwriting was also done in order to check the genuineness of the document in the case where the party is dead. In a contract between the debtor and creditor, certain requirements were laid down by Yajnavalkya. In cases where such contracts have been written by another hand, the contract must contain the name of the parties along with the caste and the gotra names and the name of the father. It must also mention the witness’ details. The document must be signed by the debtor and the witness underwriter in the prescribed manner. If the document is written by the same hand but is attested by the witness, it will be accepted valid but in the case where it is written by another hand, it will not be considered a valid one. Any forgery of documents will lead to proof of oral evidence. 

                    

Possession (bhukti)

In case of a dispute of landed property, the right to the property and the title must be mentioned along with the documents and witnesses as possession and evidence according to Vasistha. But Gautam does not support possession as a witness. He laid preference to the title by prescription. 

Ordeals (Divya)

Any trials that happened in the ancient courts were with the help of witnesses and documents provided before the court. Wherever oral evidence or documentary evidence is not provided by the parties of the case before the court of law, it was allowed to the parties to prove their case through ordeals or divine tests. Ancient people used to believe that divine tests were the method to derive the truth of the case. It all depended on the superstitious belief of the people. Agni Purana consists of details of the ordeal. Ordeal method was only used in case of serious offences. Except for cases of serious offences, cases were proved just by taking an oath. 

According to Yajnavalkya, there were five kinds of ordeals:-

  • Ordeals by balance
  • By fire
  • By water
  • By poison
  • By sacred libation.

After Yajnavalkya classified the kind of ordeals, Narada increased those 5 kinds into 7 by adding the ordeal of a hot piece of gold and the rice ordeal. Some of the important types of ordeals were:

By balance 

In this type of ordeal, a wooden balance was prepared out of the wood of a sacred tree. While chanting the Vedic mantras, a few set up was done on which the accused was weighed against some weight on the other end. The accused was then allowed to get down from the balance. After this, a general procedure by informing the judge about the truth was followed and it was all written down on the forehead of the accused and the accused was again put to sit on the balance. If the side went beyond the original mark the accused was found innocent but if it happened the other way, he was found guilty.

Ordeal by fire

In this process, in a flat ground, some cow dung was spread. Keeping the fire in the centre, nine circles were drawn, each of diameter 16, and were situated sixteen angulas apart on the ground. Asvatha leaves were placed on the hands of the accused with some rice and curd on it. After the accused is done worshipping the fire God, an iron ball of 66 tolas was placed on the hands of the accused. The accused was made to walk seven steps across the circle with the iron ball in his hands and then throw it away. If the hands of the accused were not found to be burnt he was found innocent. However, there was an alternative to figure out the innocent and the guilty. The accused was required to walk in the fire for a specific time period. If he was successful without harming himself he was proven innocent otherwise guilty. 

By water

In this process, the accused was required to take a dive underwater where he had to take hold of the knees of the person standing beside him in the water and another man had to shoot three arrows at a distance of hundred and fifty cubits away. The man who stood beside the target had to pick up the arrows. Till that time, if the accused was able to hold himself in the water he was proven innocent otherwise guilty. Another method was also used to find out the guilty person, which involved the accused drinking the water with which the idol of God was washed. If the water didn’t do any harm to the accused for the 14 days he was proven innocent. 

By poison

In this method, the accused was observed for a few days where he was given some kind of poison in small quantities which was extracted from plants and was mixed with ghee after some rituals. If the poison had a bad effect on the body of the accused, he was declared guilty otherwise innocent. 

Ordeal of lot

This was a process where a white image of Dharma and a black image of Adharma were made and placed on the cloth of the plaintiff over a lump of cow dung. The whole thing was then put into an earthen pot and was observed when the accused was asked to put his hand into the pot and pick any of the images without looking at it. If the image picked by the accused was that of Dharma, he was declared innocent otherwise guilty.

Ordeal by kosa

In this, the accused was made to worship Rudra and Aditya. The images of these were put into water. Some general formalities were done and usually, people used to wait for two weeks. If during that time no mishappening occurred in the life of the accused or any of his relatives he was declared innocent. 

Law of evidence in medieval India (Muslim period)

The Muslim kings began to invade India since the beginning of the 12th century. The Muslim kings established a dispute resolution system according to Islamic law which was based upon the holy Quran in medieval India. This concept of justice in Islam was then introduced. There was a book written by Sir Abdul Rahim in regard to the law of evidence called Muslim jurisprudence. There was no real concept, in highly developed Muslim, of rules of evidence. Al Quran has been one of the attributes of God’s decree more on Justice. 

The rules of evidence have become more advanced and modern. Under Muslim law, the evidence is divided into two parts, oral and documentary. Oral evidence is divided into two parts: direct and hearsay. Ancient Muslim law also recognised documentary evidence. Oral evidence was preferred more than documentary evidence because certain documents from people like women, children, drunkards, and criminals were not accepted in the court of law. Also, when the documents were produced before the court it was preferred by the court to examine the party which produces the document. Quajis was consulted to resolve the disputes. The interpretation of the substantive and procedural laws was done according to the tenets of the Quran, sunnah, ijma, and qiyas. In case of any wrongful act, the plaintiff was required to go to the Quazi. During the trial, the presence of both the parties was required and the Quazi was not allowed to pass an ex parte decree. The trial procedure was followed by questions and answers that were asked by Quazi. Preference was given to eyewitnesses than hearsay evidence. The evidence was given by at least two men and one or two women were essential in Islamic law. Evidence provided by Hindu was not admissible against the Muslims. 

Law of evidence in British India (Evidence law’s historical background)

The current enactment that governs the admissibility of evidence in the court of law was given by the British back at that time. But before the British period, the rules governing evidence were based on traditional and local legal systems of people residing in India. These rules were different for different groups, castes, and communities. When the British East India Company came into place, it was granted the Royal Charter by King George I in 1726 to establish a court in Bombay, Madras, and Calcutta. Those courts at that time followed the English rule of evidence law. But in muffasil courts, there were no such laws related to evidence. Therefore, the difference of opinion created a huge chaos in muffasil courts.

There was a case of Khairullah where Chief Justice Peacock observed that the English law of evidence was not followed by muffasil courts and Hindu and Muslim laws were also not applicable to those courts. Because of all these confusions created with regard to the law of evidence, the rules related to evidence were not satisfactory at all. In order to bring proper laws related to evidence, the codification of laws was desired and the British government took the first step in 1835 by passing the Act of 1835 where there were 11 enactments in total that were passed to deal with the law of evidence. In 1868, another draft was made by a commission that included 39 sections. The fifth report of the draft was admitted by most of the English laws but it was not suitable for the Indian society. In October 1882, more sections were added in the draft by Sir Henry Summer Maine, which was referred to as a select committee. It was again held to be unfit for the want of the country. Again in the year 1871, a new bill was introduced that consisted of 163 sections that were similar to the present Evidence Act of 1872 and it was prepared by Fitzjames Stephen. A minor issue was there in the Bill of 1870 that most of the Indians did not understand English. It was again passed as the Indian Evidence Act 1872. The Act continued to be in force even when Pakistan and India gained independence on 14 and 15 August 1947 respectively except for the state of Jammu and Kashmir. When Bangladesh became independent in 1971, the Act continued to be in force in Bangladesh but was repealed in Pakistan in 1984 by evidence order 1984 which was known as qanun-e-shahadat. 

Cases

  1. In the case of Commissioner of Income-Tax v. East India Coast AIR 1967 SC 768, it was laid down that Income Tax authorities are not strictly bound by the rules of evidence. 
  2. In the case of Basanta Chandra Ghosh AIR 1960 Pat 430, it had been established that the provisions of the Evidence Act do not apply to the reception materials against the contemnor in a contempt proceeding.
  3. In the case of Bareilly Electricity v. Workmen 1972 SC 330 it was held that the labour courts and tribunals are not bound strictly by the technicalities of the Indian Evidence Act except for Section 11 of Industrial Dispute Act 1947. 
  4. In the case of Raghu v. Burrakur coal Company limited 1966 Calcutta 504 it was held by the court that under section 3 of the Evidence Act, industrial tribunal proceedings are not merely quasi-judicial proceedings.
  5. In the case of Ahmed v Chief Commissioner AIR 1966 Mani 18, it was held that the domestic tribunals need not strictly comply with the provisions of the evidence act. 
  6. In the case of Central Bank vs PC Jain 1969 SC 983, it was laid down that the standards of Evidence Act do not make any difference to the residential enquiry but the principle of natural justice must be followed and it cannot be discarded in Domestic Tribunals. 

                   

Conclusion

So vast are the provisions, implications, and interpretations of the Indian Evidence Act 1872 that the application of the same depends upon the circumstances and nature of each case, along with the principle of natural justice. Thus, we can conclude that the very objective of the Evidence Act is to find out the truth in the court based upon the facts presented by both parties and resolve the matter as expeditiously as possible. The Indian Evidence Act does not aim to put any sort of bar or limitations and restrictions on the parties present in the court of law but it acts as a guiding factor for the courts to announce judgment based on the evidence. The term evidence deals with the process, right, and procedure. It is something which is referred to as a state of being evident i.e. plane, notorious apparent. It is the most important branch of the concept of trial and without evidence, the trial will only be prolonged for a greater time period. Some of the additional suggestions as regards evidence can be:-

  • The accomplished must go through the test of competency. 
  • A test of objective and scientific nature must be conducted related to the facts and circumstances of each. 
  • An absolutely supportive and strengthening piece of evidence must be attached with every case which connects the dots of crime and also helps to get a clearer version which helps in moving forward with the case. 
  • In order to achieve as much evidence as possible, it is important to exercise the power of pardon and besides this, there must also be a program conducted to provide protection to the person giving evidence. such protection will help encourage misguided persons and come forward and provide evidence to some serious criminal cases. The more the power of pardon increases the more the guarantee of the witness to provide evidence in the court of law increases. 
  • With the tremendous rise of crime in a modern society like murder extortion tradition and white-collar crimes behind closed doors it is becoming more and more difficult to find out an absolute independent witness. In order to expose the rackets in today’s modern society, there needs to be properly laid down laws and punishment attached to it. 

References


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