This article is written by Astitva Kumar, an advocate. The purpose of this article is to examine the nature of the Indian Evidence Act, 1872. The author, through this article, has attempted to elaborate on the definition of evidence law, as well as the scope and features of the Indian Evidence Act.
This article has been published by Sneha Mahawar.
The term “law” is used in various ways. In its most basic sense, it refers to any rule, law, norm, doctrine, or standard to which human beings must adhere. The entire corpus juris (body of laws) is divided into two broad categories:
- Substantive laws,
- Adjective laws.
The law of evidence does not fall under substantive or procedural law, but rather under the ‘adjective law,’ which describes the pleading and method by which substantive laws are put into operation.
In litigation, the opposing parties produce proof to disprove each other’s allegations. In legal systems, the law of evidence governs this sphere. This is a significant piece of legislation. It applies to both civil and criminal law. The law of evidence is a prerequisite for any criminal or civil trial. The role of evidence law is to scientifically reconstruct the past events on which the disputing parties disagree. The goal of evidence law is to seek the truth and to be an effective tool in the fact-finding process. The law of evidence has established two fundamental concepts, i) relevancy, and ii) admissibility. In legal terminology, relevance and admissibility are frequently used and both are frequently used interchangeably by legal practitioners in the court of law. Both principles are at the essence of the law of evidence.
Concept of Evidence Law
Before diving into the concept of “evidence law,” it is necessary to first explore the definition of “evidence” in general. The term evidence was derived from the Latin word ‘Evidera,’ which means lucidity, clarity in presentation, and the ability to prove the facts in question.
In its original sense, the word “evidence” refers to the state of being evident, i.e. plain, obvious, or well-known. However, it is used to describe something that tends to produce evidence or proof. The principal fact is the one that needs to be proven, and the evidentiary fact is the one that tends to establish it. To put it another way, it can be said that, evidence acts as the eyes and ears of the court
In the words of Sir William Blackstone, evidence “Signifies that which demonstrates, makes clear or ascertains the truth of the facts or points in issue.” Faylor describes evidence as “all means which tend to prove or disprove any matter, fact, the truth of which is submitted to judicial investigation.”
According to Dr. Johnson’s Dictionary, the word evidence signifies “the state of being evident, that is plain apparent or notorious”. Bentham defined “evidence” as “any matter of fact, the effect, tendency or design of which is to produce in the mind a persuasion affirmative or disaffirmative, of the existence of some other matter of fact.”
Wigmore defined ‘evidence’ as representing “Any knowable fact or group of facts, not a legal or logical principle, considered with a view to its being offered before a legal Tribunal to produce a persuasion, positive or negative, on the part of the Tribunal, as to the truth of a proposition, not of law, or of logic, on which the determination of the Tribunal is to be asked.”
According to Stephen, “It sometimes means words uttered and things exhibited by witnesses before a Court of Justice. At other times, it means the facts proved to exist by those words or things and regarded as grand work of inference as to other facts not so proved. Again, it is sometimes used as meaning to assert that a particular fact is relevant to the matter under inquiry.”
Thus, evidence is defined as anything that tends to verify or deny the existence or nonexistence of a stated fact. The party who claims the presence of a fact must prove its existence, whereas the party who denies it must disprove its existence or establish its non-existence.
Definition of evidence under the Indian Evidence Act
‘Evidence’ means and includes the following:
- All statements made before the Court by witnesses about matters of fact under investigation, which the Court permits or requires; such statements are referred to as oral evidence;
- All documents (including electronic records) presented for the inspection of the Court; such materials are referred to as documentary evidence.
In the case of Kalyan Kumar Gogoi v. Ashutosh Agnihotri and Anr, AIR 2011
The Supreme Court made the following observations on evidence, the word ‘evidence’ has been used in common parlance in three different senses: as
- Equivalent to relevant,
- As equivalent to proof, and
- As equivalent to the material, based on which Courts conclude the existence or non-existence of disputed facts.
Historical background of law of evidence in India
The Hindu Dharmashastras contains a piece of rich information on the law of evidence. The purpose of the trial was to separate the true from the false in the same way that a surgeon removes an iron arrow from the body using his tools. The Dharmashastras acknowledged four categories of evidence.
- Lekhya, i.e. document,
- Sakshi i.c., oral evidence,
- Bhukti or Bhog, i.e., use in other words possession, and
- Divya i.e., Divine tests or ordeals.
Lekhya, i.e. document
Sakshi, i.e. oral evidence, was chosen over Lekhya because of its flaws, and Dharmashastris, keeping in mind the flaws of Lekhya Sakshya, created arrangements for their removal. For example, it was stated that a document produced or attested by a corrupt person would be void. Similarly, documents written by women, minors, or dependent people would also be deemed unlawful.
According to Narada, Vishnu Dharmashastra, and Katyayan (even Section 91 of the Indian Evidence Act, 1872 states that documentary evidence is superior to oral evidence), Lekhya-Praman (documentary evidence) is defined as proof that is written in accordance with the rules, beyond doubt, and meaningful. Typically, the attestation by two witnesses was necessary on the Lekhya Praman, but the most important documents required the attestation of more than two witnesses.
Lekliya (Document).-Lekhya was further divided into three.
- Rajya Sakshayak: It was a document written in the court by the King’s clerk. It was similar to a registered document.
- Sakhshyak: It was a document signed by witnesses and written by a private person.
- Asakhshyak: It was a handwritten paper produced by the parties themselves.
The rules of Sakshi or oral evidence had a vast difference in civil and criminal matters. Ancient laws contributed a lot to create the norms for governing the capacity of witnesses. Nyayadhish (Judges) used to interrogate the witnesses and examine their expressions while they answered their questions before deciding their credibility.
Bhukti or Bhog
Bhukti or Bhog, i.e., use in other words possession. Agriculture was the primary source of income in ancient India, and the disputes relating to the possession of the land were known as Bhuktii. Even in ancient India, the law relating to possession was a well-established legal concept. There were two kinds of Bhukti. Bhukti Sagma (with right) and Anagama Agam mean Udgam (origin), which refers to the source of ownership or the basis of the right, such as whether the property was purchased, or received as a gift, or inherited.
The Agam and prescription, i.e., the use of the property, both weigh each other. According to Narada, a man who only proves the use of the property without Agam, i.e., if the property is Anagama but underutilized, will be punished as a thief, even though he was using the property for over 100 years. Aprask (P. 631-632), Kulluk, and Raghunandan have stated that using a property for 20 years degrades ownership. However, according to Mitakshara which is acknowledged by Vyavaharmayukh and Mitramishra, the usage of the property damages the outcome rather than the ownership. If the property owner sees someone else using his property for twenty years and then disputes it, he will receive his property but not the earnings. Some authors have mandated a relatively short period of bhukti, or use of the property, after which ownership of the moveable and immovable property may end. The explanation has been given that the owner should reclaim his property as quickly as possible unless there are compelling reasons for doing so.
Divya i.e. Divine tests or ordeals
Divya means divine tests or ordeals. Where a man’s evidence fails to lead to a decision, Divya, or divine tests (ordeal), assists in reaching a decision. Such tests were common in ancient India, where the appeal was made to supernatural power to prove the guilt or innocence of a man.
For example: If a man entered a burning fire or deep water and escaped unharmed, he was either innocent in the eyes of the law. Similarly, if a man who consumed the poison did not die, he was declared innocent. Gradually, Divya was limited to extraordinary circumstances where common types of evidence were unavailable.
In small pecuniary disputes, ‘Kosh’ Divya was recognized. According to Yajnavalkya (2/22), Narada (2/29, 4/239), Brahaspati, Katyayan, and Pitamah Divya should be used only when Manushya Praman i.e., Sakshi, Lekhya, Bhog, or Paristhitijanya Praman (circumstantial evidence) are not available. Different types of Divya were also prescribed for different Varnas. Brahmina was exempt from Vish Divya (ordeal by poison).
‘Kosh’ Divya was acknowledged In small pecuniary disputes. According to Yajnavalkya (2/22), Narada (2/29, 4/239), Brahaspati, Katyayan, and Pitamah Divya should be utilized only when Manushya Praman (circumstantial proof) is not accessible, i.e., Sakshi, Lekhya, Bhog, or Paristhitijanya Praman. For each Varna, a different type of Divya was prescribed. Vish Divya (ordeal by poison) did not apply to Brahmins.
The rules of evidence were well defined during the Islamic period. The evidence consisted of two types: oral and documented. The oral evidence was further subdivided between direct and hearsay evidence. It indicates that oral evidence was preferred above documentary evidence. Addressing oral evidence, the Quran enjoins as follows:
“O You who believe! Stand out firmly for Allah, as a just witness for just (and fair) dealing, and do not let the hatred of others make you lean towards wrong and go away from Justice. Be just: That is next to Piety: And fear Allah, because Allah is Well-Acquainted with all that You do.” (Sura 5-8).
“O You who believe! stand out firmly for justice, as a witness to Allah, even against yourselves, or your parents or your kin, and whether it be (against) rich or poor: Allah protects you both (much) better. So follow not the desires (of your hearts), because you may swerve and if you distort justice, or decline to do justice. Surely, Allah is Well-Acquainted with all that you do.” (Sura 4-135)
Introduction to English Law
The Charter of 1726 established english common law and statutory law in the Presidency Towns of Calcutta, Madras, and Bombay. The Courts created by the Royal Charter in these Presidency towns were responsible for enforcing English law. There was no definite law of evidence in the Mofussil territories, i.e. the areas following outside the Presidency Towns. Customs and usages governed the laws of evidence. In terms of admitting evidence, the courts had complete discretion. In the lack of any specific standards governing the law of evidence, the entire administration of justice in the mofussil courts was in complete chaos.
Enactment of the Indian Evidence Act, 1872
The Governor-General established the first Act pertaining to rules of evidence in 1835. 1835 and 1855, a series of Acts were passed to successfully incorporate the reforms proposed by Jeremy Bentham.
Acts 10 of 1855, Act 8 of 1859, Act 25 of 1861, and Act 15 of 1869 were also passed, however, the courts in India followed English law of evidence when delivering judgment, though only a portion of English law was applicable in the Mofussil area and Presidency Towns. As a result, the position was rather unsatisfactory, and the Judges made comments about it in their judgments in the case of Gajju Lal v. Fattehlal, ILR 6 Cal 171
In the words of Richard Garth, C.J.” 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. So the process of evidencing any facts or proof should be governed by a well-established law to achieve speedy and fair justice…instead of binding the Courts of this country by the strict rules of evidence, it would be more desirable and was in fact the intention of the Evidence Act to render all decrees admissible in evidence “as facts” or “transactions,” leaving it to the discretion of the Courts to attribute to each judgment its due weight. But to my thinking this liberty of action would be extremely unsafe; and I certainly am not surprised to find that the Legislature here was unwilling to leave to the subordinate Courts in this country a discretion, which it has not been thought safe or right to entrust to English Judges”.
The Law of Evidence was in desperate need of codification. In 1868, a commission was formed to create the Law of Evidence under the chairmanship of Sir Henry Maine, the then-Law Member. But Maine’s bill was rejected since it did not meet all of the requirements at the time.
The Stephen Commission was established in 1871 to write the Law of Evidence. On March 31, 1871, Stephen delivered the Council a draft of the Bill, which was then forwarded to the local governments, High Courts, and Advocates for their review. After receiving their feedback, the Bill was submitted to the Select Committee, which made the required changes before presenting it to the Council, which enacted it as The Indian Evidence Act, 1872. (Act No. 1 of 1872). The Act has been amended multiple times since it was enacted.
The Indian Evidence Act of 1872 is based on English evidence law, but it includes several provisions adapted to the Indian realities and needs. Even though flaws in the Act have been pointed out from time to time, the Act’s drafting is an example of the best draftsmanship skill. It is very important to note that the Law of Evidence, which was enacted in 1872, continues to be applicable with the least amendments possible over more than 140 years.
Scope of Indian Evidence Act, 1872
The Indian Evidence Act of 1872 consolidates, defines, and amends the law of evidence in India. It extends to the whole of India. The Act applies to all judicial proceedings in or before any Court in India, including Courts-martial (except those convened under the Army Act, the Naval Discipline Act, or the Indian Navy Discipline Act, 1934, or the Air Force Act), but not to affidavits presented to any Court or officer, or proceedings before an arbitrator.
Important provisions under the Indian Evidence Act, 1872
In nutshell, the “Law of Evidence” can be defined as a set of principles for determining disputed facts in court proceedings
Preamble- Interpretation clause and presumptions
The first part comprises the preamble of the act and chapter one. It provides definitions for the terms used in the Act. This section is known as Preliminary.
Relevancy of facts
The sections that have been discussed in the second part are listed below:
- The relevance of facts that are part of the same transaction (Section 6);
- Facts that constitute the occasion, cause, or effect of the facts in issue (Section 7);
- Facts showing motive, preparation, and conduct, previous and subsequent (Section 8):
- Facts required establishing the facts in issue, etc. (Section 9);
- Things that are said or done by conspirators in regard to a common design (Section 10);
- Facts not otherwise relevant (Section 11);
- Facts that allow the Court to determine damages (Section 12);
- Facts that establish a right or custom (Section 13);
- Facts showing the existence of the state of mind, or of the body or bodily feeling (Section 14);
- Facts bearing on the question of whether an act was accidental or intentional (Section 15);
- The facts illustrating the course of business (Section 16);
- facts that amount to admission (Sections 17 to 23 and 31);
- Facts which are confessions of the accused persons (Sections 24 to 30);
- Facts made by people who cannot be called as witnesses in certain circumstances (Sections 32 and 33);
- Facts are statements, under certain circumstances (Sections 34 to 38). When any statement for which evidence is given is part of a longer statement, a conversation, or a portion of an isolated document, or is contained in a document that is part of a book, or is contained in part of an electronic record, or is contained in part of a connected series of letters or papers, evidence shall be given of only that portion of the statement, conversation, document, electronic record, book, or series of letters or papers that the Court considers necessary in that particular case. (Section 39);
- Judgments of Courts (Sections 40 to 44);
- It is based on the following two Latin maxims:
Nemo Debet Bis Vexari Pro Una Et Eadem Causa: States that no one can be punished twice for the same offense.
Interest Republicae Sit Finis Litium : Says that it is in the best interests of the state to put an end to litigation. It is based on public policy and ensures that lawsuits do not go on for too long.
- Establishes the relevance of third-party opinions, which is usually referred to in day-to-day activity as an expert’s opinion (Sections 45 to 51);
- Characteristics of the parties to a lawsuit (Sections 52 to 55).
Different Types of Evidence
Section 59 states that if evidence of any is to be given, it must be either oral or documentary. Section 60 requires direct oral evidence. Section 61 specifies that the contents of a document may be proven using either primary or secondary evidence. Sections 62 to 66 deal with primary and secondary evidence and specify that primary evidence of documents must be provided before mentioning the cases in which secondary evidence may be given. Then there are provisions for submitting oral evidence to prove the authenticity of a document (Sections 67, 67-A, 68, 69, 71, and 72). Sections 73 and 73-A deal with determining the term of a deed. Section 100 forbids the Chapter from being applied to the provisions of the Indian Succession Act dealing with the drafting of wills.
Manner of proof-Burden of proof- Presumption without calling for proof
Part II dealt with the issue of factual proof; Part III of the Act addresses how the proof is to be generated. This section is divided into five chapters. Chapters VII-XI. Sections 101 to 114-A of Chapter VII addresses the issue of burden of proof. They state that in certain cases, the burden of establishing a fact falls on a certain person. Sections 112 and 113 deal with cases involving conclusive evidence. Section 114 provides that the Court may presume the existence of certain facts that should occur in the normal course of natural phenomena, human action, and public and private business without requiring proof.
Section 111-A establishes a presumption of guilt for certain offenses. Section 113-A provides for a presumption of suicide abetment if a married woman commits suicide within 7 years of her marriage and has been subjected to abuse by her husband or his relatives. Section 113-B establishes a presumption of dowry death. Section 114-A provides for a presumption of lack of consent in some rape prosecutions.
Sections 115 to 117 of Chapter VIII deal with the issue of estoppel, another rule of leading evidence. These provisions prohibit a person from giving false evidence by preventing them from making contradicting statements in a Court of Law.
Competency, comparability, examination, and cross-examination of witnesses and impeachment of witness credibility
Chapters IX and X deal with competency, comparability, examination and cross-examination of witnesses, impeachment of the credit of testimony of the witnesses, and the use of previous writings of witnesses for refreshing their memory and also using their previous statements for corroboration of their statement in Court.
A witness is considered competent when there is nothing in the law that prevents him/her from appearing in Court and presenting evidence. The capacity of a witness to understand and respond rationally to the questions posed to him determines whether or not he is competent.
The competency of those who can testify as witnesses are covered under Sections 118, 119, 120, and 133. A witness may be competent but not compellable, which means that the Court cannot compel him to testify. A court cannot compel foreign ambassadors and sovereigns to appear before it to testify. A court cannot compel foreign ambassadors or sovereigns to attend the court to testify. A witness may be competent and compellable, but the law may not compel him to respond to specific questions. Restricted comparability, often known as a privilege, is the term used to describe this situation. This privilege is addressed in Sections 122–132. The quantum of evidence is covered in Section 134. The examination, cross-examination, and re-examination-in-chief of witnesses are covered in Sections 135 to 139. Sections 140 to 153 cover the types of questions that can and cannot be asked during cross-examination of witnesses. Evidence contradicting a witness’s cross-examination replies is not allowed under Section 153. Under Section 154, the Court may, at its discretion, allow the person who calls a witness to ask him any question that the other party might ask during cross-examination. Section 155 talks about the impeachment of a witness. Section 158 of the Act deals with giving evidence to contradict, impeach, or corroborate the credibility of someone who gave evidence under Sections 32 and 33 of the Act. Sections 159 to 161 allow a witness to recall his memory by reviewing the previously produced record. Sections 165 and 166 define the scope of the Judges and jury’s rights to examine witnesses.
Admissibility of evidence
There is only one section in Chapter XI, Section 167, which states that there will be no new trial for the improper admission or rejection of evidence.
- The Act is dynamic and has evolved over the years. Three of the most recent amendments to the statute were the Information Technology Act of 2000, the Criminal Law (Amendment) Act of 2013, and the Criminal Law (Amendment) Act of 2018.
Judicial pronouncements with respect to the Indian Evidence Act, 1872
State Bank of India v. Om Narain Agarwal, AIR 2011
In the above case, the Court highlighted that the main feature of the rule of evidence is to limit the scope of the dispute before the Court to those facts that have logical evidentiary value in determining a fact and to prevent giving judgments based on illogical conclusions or prejudices, as well as to aid in the administration of justice.
Vijendra v. State (NCT of Delhi), 1997
In the light of the above case, the Hon’ble Supreme Court ruled that the prosecution cannot record the accused’s statement since it violates the provisions of Cr. P.C., which states that a statement made before a police officer during an investigation cannot be used for any purpose unless it falls under the provisions of section 27 of 32 (1) of the Evidence Act.
Emperor v. Aftab Mohd. Khan, 1939
In this particular case, the learned court explained the objective of Section 162 of the Indian Evidence Act. The purpose of the provision and its proviso is to protect the accused from false statements made by witnesses during the investigation. The Court reasoned that the remarks provided by witnesses may have been influenced by the police officers investigating the case and that admitting such statements as evidence would be prejudicial to the accused.
Suresh Budharmal Kalani Alias Papppu Kalani v. State of Karnataka, AIR 1998
The Supreme Court has ruled that a confession made by an accused is inadmissible as evidence and that a presumption can only be established from the facts, not from other presumptions, through a process of probable and logical reasoning.
Kishore Chand v. State of H.P, AIR 1990
The burden of proof in a murder case is strict when it has to rely on circumstantial evidence, and all circumstances from which a conclusion of guilt is to be drawn must be fully established, and any circumstance consistent with the accused’s innocence will entitle him to the benefit of the doubt, and confessions made in violation of sections 25 to 27 of the Evidence Act cannot be relied upon.
Adambhai Sulemanbhai Ajmeri v. State of Gujarat 2014
In the above case, the Hon’ble Supreme Court has clearly ruled that when the prosecution relies on a subsequent statement recorded after the accused was detained, such material cannot be considered sufficient material on record even for arresting a person.
SK. Yusuf v. State of West Bengal, 2011
The accused was charged with murdering a girl and later burying her body – The trial court convicted him based on his extrajudicial confession, absconding for a few days after the occurrence, and the fact that he was last seen at the location of the incident. While the appellant argued that his last scene at the place of occurrence and abundance would not raise any presumption of guilt and that the extrajudicial confession could not be trusted.
The court determined that there was no evidence that the deceased was last seen with the accused right before her death. His sheer presence at the place of occurrence at the likely time of occurrence would not raise any adverse presumption. Extrajudicial confessions were also corroborated, and there were substantial discrepancies. The mere fact of agreement could not be construed as a negative element against the appellant. The appellant was acquitted because the chain of circumstantial evidence was not complete.
List of amendments
- The Indian Evidence (Amendment) Act, 1872 (18 of 1872)
- The Indian Evidence Act, 1872 Amendment Act, 1887 (3 of 1887).
- The Indian Evidence Act, 1872 Amendment Act, 1891 (3 of 1891)
- The General Clauses Act, 1897 (10 of 1897).
- The Indian Evidence Act, 1899 (5 of 1899).
- The Repealing and Amending Act, 1914 (10 of 1914).
- The Repealing and Amending Act, 1919 (18 of 1919).
- The Indian Evidence (Amendment) Act, 1926 (31 of 1926).
- The Repealing and Amending Act, 1927 (10 of 1927).
- The Repealing Act, 1927 (12 of 1927).
- The Amending Act, 1934 (35 of 1934).
- The Government of India (Adaptation of Indian Laws) Order, 1937
- The Repealing Act, 1938 (1 of 1938)
- The Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948.
- The Repealing and Amending Act, 1949 (40 of 1949).
- The Adaptation of Laws Order, 1950.
- The Part B States (Laws) Act, 1951 (3 of 1951) (w.e.f. 1-4-1951).
- The Criminal Law (Amendment) Act, 1983 (43 of 1983) (w.e.f. 25-12-1983)
- The Criminal Law (Second Amendment) Act, 1983 (46 of 1983) (w.e.f. 25-12-1983).
- The Terrorist Affected Areas (Special Courts) Act, 1984 (61 of 1984) (w.e.f. 14-7-1984).
- The Dowry Prohibition (Amendment) Act, 1986 (43 of 1986) (w.e.f. 19-11-1986)
- The Information Technology Act, 2000 (21 of 2000) (w.e.f. 17-10-2000),
- The Indian Evidence (Amendment) Act, 2002 (4 of 2003) (w.e.f. 31-12-2002).
(This Act was repealed by the Repealing and Amending Act, 2015 (17 of 2015), (w.e.f. 13-5-2015). The Repeal of this Act shall not affect the validity, invalidity, effect, or consequences of anything already done or suffered, or any right, title, obligation, or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand or any indemnity already granted, or the proof of any past act or thing.)
- The Criminal Law (Amendment) Act, 2005 (2 of 2006) (w.e.f. 16-4-2006 & 5-7-2006).
(This Act was repealed by the Repealing and Amending (Second) Act, 2015 (19 of 2015 (w.e.f. 14-5-2015). The Repeal of this Act shall not affect the validity, invalidity, effect, or consequences of anything already done or suffered, or any right, title. obligation or liability already acquired, accrued or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand, or any indemnity already granted, or the proof of any past act or thing)
- The Information Technology (Amendment) Act, 2008 (10 of 2009) (w.ef 27-10-2009).
- The Criminal Law (Amendment) Act, 2013 (13 of 2013) (w.r.e.f. 3-2-2013).
- The Criminal Law (Amendment) Act, 2018 (22 of 2018) (w.r.e.f. 21-4-2018).
- The Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019) (w.e.f. 31-10-2019).
The term ‘evidence’ refers to the state of being evident, i.e., plain, evident, or notorious. However, it is used to describe something that tends to produce evidence or proof. We can define evidence as a process that deals with both the right and the procedures.
The Indian Evidence Act contains a number of provisions governing, examination, relevancy, admissibility, and evidence of facts. Confessions, character relevance, the burden of proof in criminal trials, dying declarations, expert opinions and various stages in the witness examination.
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