All India lectures series by MJ Sir
Subject Evidence Act -1872
INTRODUCTION TO THE LAW
Topic OF EVIDENCE
Medium English
INTRODUCTION TO THE LAW OF EVIDENCE
Law may be broadly categorized under two heads namely:
(1) Substantive Law; and
(2) Procedural Law or Adjectival Law.
The substantive law' (whether statue law or common law) defines what facts go to
constitute a right or liability.
E.g. The Indian Penal Code, 1.860; The Indian Contract Act, 1872, Law of Torts
etc.
Adjectival law on the other hand is one by which substantive law is applied to
particular cases. It is also known as the ‗Law of Procedure'. It is concerned with the
enforcement of rights, duties and liabilities determined in accordance with the rules
of substantive law.
E.g. The Code of Civil Procedure, 1908; the Code of Criminal Procedure, 1973
etc. The present subject ―Law of Evidence‖ is one of the significant branches of
procedural law.
Evidence Means: — The expression ―evidence is derived from the Latin word
'Evidentia‘. Evidentia means being clear' or 'plain' or ‗apparent clear. The Latin term
'evidens evidare' means, ―to show clearly". According to Phispon, evidence means
the testimony, whether oral, documentary, or a real, which may be legally received,
in order to prove or disprove some fact in dispute.
Evidence Defined: — The Law of Evidence may be defined as a system of rules
for ascertaining controverted questions of fact in judicial inquiries.
According to Taylor, evidence means and includes all facts except arguments, which
tend to prove or disprove any matter, which is under inquiry in judicial proceedings.
Under Section 3 of the Indian Evidence Act, evidence is an instrument of proof
regarding a fact in issue. It means and includes -
1. all statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry;
2. all documents (including electronics record] produced for the inspection of the
court.
The word evidence as defined in Sec.3 of the Evidence Act signifies only the
instruments by means of which relevant facts are brought before the Court. The
instruments adopted for this purpose is witnesses and documents (Govarayya vs.
Emperor, AIR 1930 Nag. 242).
Historical Background :-
Earlier, the principles relating to law of evidence were not clear both under English
and Indian (Hindu and Muslim) legal Systems. In the early English law, ordeals,
compurgation or sager of law and trial by battle were used as modes of proof. Under
Hindu system of jurisprudence, sometimes divine tests were used (Sen. Priya Nath:
General Principles of Hindu Jurisprudence, p.371). The modern law of evidence
owes its origin from English Common Law. Certain areas/parts of law of evidence
may be traced back to the period of Middle Ages. However, the real beginning for
the main outstanding features of evidence was made in the sixteenth and seventeenth
centuries, when jury started deciding cases on the evidence of witnesses
(Holdsworth: Sources of Literature of English Law). For the first time, a book on
Evidence, was written by Chief Baron Gilbert, who died in 1726. The book was
published in 1756 i.e. after his death.
As the time passed, many reforms were introduced and series of Acts were passed
by the Indian legislature between 1835 and 1853. For the first time, the need for
codification of law of Evidence was felt by the reformers. The third Law
commission in its Fifth Report submitted in 1868, placed/ presented Draft
Evidence Bill. The draft was very short as it contained only 39 clauses. The draft
bill was introduced in the Legislative Council and was referred to Select
Committee in 1868. But the Bill was not passed on the ground that it was
incomplete, ill arranged and unsuitable to Indian conditions. Later, another draft
prepared by Sir James Stephen was introduced in the Council in 1871 and was
passed in the year 1872 entitled, the Indian Evidence Act, 1872.
Applicability of the act : In India, the law relating to the principles of Evidence
is governed by the Indian Evidence Act, 1872, which owes its origin from the
English law of Evidence. It came into force from 1st September 1872. It extends
to the whole of India except the State of Jammu and Kashmir and applies to all
judicial proceedings in or before any Court, including Courts-martial, other than
Courts-martial convened under the Army Act (44 and 45 Vic. C. 58), the Naval
Discipline Act or the Indian Navy (Discipline) Act, 1934 (34 of 1934), or the Air
Force Act (7 Geo.5, c.51) but not to affidavits presented to any Court or Officer,
nor to proceedings before an arbitrator;
Three Golden Rules of Law of Evidence :
The Main principles are:
1. Evidence should be confined to the matter/facts in issue
2. Hearsay evidence should not be admitted (Hearsay Evidence is not
evidence); and
3. Best Evidence Rule or Best Evidence must be given in all cases.
1. Evidence should be confined to the matter/facts in issue :
According to this rule, evidence can be given only on those facts,
which might be asserted by one party and denied by the other party.
Section 5 of the Indian Evidence Act, 1872 provides that evidence
may be given in any suit or proceeding of the existence or non-
existence of every fact in issue and of such other facts as are
hereinafter declared to be relevant and of no others.
2. Hearsay Evidence should not be admitted :
Hearsay evidence signifies the evidence heard and said, it Is also known as
second hand or unoriginal evidence. It is learnt by witnesses not through the
medium of their senses, but through the medium of some third persons. Evidence
given by a witness may be oral or documentary. According to Section 60 of the
Indian Evidence Act, 1872, oral evidence to be admissible, it must be direct. In
other words, hearsay evidence is no evidence.
E.g. 'A' is being tried for stealing B's cycle. 'C' as witness says that he (C) heard
'D' saying that he (D) saw 'A' with B's cycle. Such evidence given by 'C' is not
admissible on the ground that the testimony of 'C' is hearsay evidence.
Exceptions :
The Indian Evidence Act, provides for certain exceptions to this general rule,
hearsay evidence is no evidence in other words, hearsay evidence is admissible in
the following cases.
1. Res gestae (statements for part of same transaction: S. 6)
2. Admissions and Confessions (Ss. 17-23 & Ss. 24-30)
3. Statement by a person who cannot be called as witness (Dying Declaration:
S.32(1).
4. Evidence given in the former proceeding (S.33).
5. Statements in public documents (S.35).
6. Opinions of Experts (Ss.45-51); and
7. Entries in books of Accounts (S.34).
3. Best Evidence Rule :
It is well established that the best means of evidence must be given in all
cases. This rule is based on the principle that if any body wants to know
about a fact, the best proof is what he perceives through his own senses. This
principle is used in connection with documentary evidence to prefer primary
evidence to secondary evidence and in connection with oral evidence to
exclude hearsay evidence.
SCHEME OF THE ACT. AT A GLANCE :-
Part I – Relevancy - Facts which may be proved are
Facts in issue (Section 5) Relevant facts which may be
- Facts connected with the facts in issue (Ss.6-16)
- Admissions and confessions (Ss. 17-31)
- Statements by persons who cannot be called as witnesses (Ss.32-33)
- Statements made under special circumstances (Ss.34.39)
- Judgments in other cases (Ss.40-44)
– Opinions (Ss.45-51)
- Character (Ss.52-55)
Part II – On Proof - Type of evidence to be given
Facts which need not Other facts if in issue or relevant
be proved may be proved by
Facts Judicially Facts admitted Oral Evidence or Documentary
Noticeable (S.58) (Ss.59&60) evidence
(Ss.56&57) Which may be
— Primary or Secondary (Ss.61-66)
— Attested or unattested (Ss.67-73)
— Public and Private Me Documents (Ss. 74-78)
— Sometimes presumed to be Genuine (Ss.79-90)
— Exclusion of oral evidence (Ss.91-100)
Part III - Production and effect of evidence
Who should Who should not How to be Consequences
adduced be allowed to adduced of mistake
evidence adduce evidence (Ss. 118-166) (S.167)
(Burden of (Estoppel)
Proof)
(Ss. 101-114)
LAW OF EVIDENCE IS LEX FORI :-
The phrase 'Lex fori' means "the law of the place of the action". The law of
evidence is the lex fory, which governs the Courts.
Explaining the place of evidence as early as 1850, the House of Lords (in Bain
vs. White Raven and Furness Junction Ry., (1850) 3 H.C.L. 1 at p.19) observed -
―The law of evidence is the lex fori which governs the courts; whether a witness
is competent or not; whether a certain fact requires to be proved by writing or
not; whether a certain evidence proves a fact or not; that is to be determined by
the law of the country where the question arises, where the remedy is sought to
be enforced and where the court sits to enforce it.'
The law of evidence is lex fori. Matters relating to method of providing an event,
i.e., whether a witness is competent or not, whether a certain matter requires to be
proved by writing or not and whether certain evidence proves a certain fact or not
are to be determined by the law of the country where the remedy is sought to be
enforced and where the Court sits to enforce it. (Bain vs. Whilehaven and Furness
Rly. Co. (1850), 10 E.R.I).
In Niharendu Duit Majumdar vs. Emperor (A.I.R. 1942 F.C. 22), it was held that
where the question was one of the proper methods of proving an event occurred in
England, the law applicable was the Indian and not the English law of evidence.
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