Evidence Act

1. Date of Enforcement – 1st Sept, 1872

2. Date of Enactment – 15th March, 1872
3. Parts = 3
Chapter – 11
Sections – 167

4. It is an adjective (Both procedural and Substantive)

5. Evidence Act was enacted on the recommendation of 6+9th Law Report
6. It is based on English Law of Evidence
7. Father of IEA – James Stephens
8. Object of IEA – Preventing indiscipline
9. IEA is not applicable on affidavits, nor
10. To proceedings before an arbitrator
11. IEA is applicable on proceedings before commissions issued in jail or under Section 271 and
284 of crpc.
12. Section 2 was repealed by repealing Act, 1938.
13. Court under IEA includes all Judges, and magistrate and all persons legally authorised to take
evidence.
14. Court does not includes arbitrators
15. Facts includes both physical and mental facts.
16. Fact includes any mental condition of which any person is conscious.
17. Arrangement of certain objects in certain order is a fact.
18. A man holding a certain opinion is a fact.
19. A person using a particular word in particular sense is a fact.
20. On quasi-judicial proceeding, IEA does not applies rather principles of evidence applies.
21. Any matter expressed or described upon any substance is document.
22. Under IEA, document may be used for the purpose of recording the mater expressed or
described upon any substance.
23. An inscription on metal plate or stone is a document.
24. Words lithographed is document.
25. 25. Any obscene gestures made in air and recorded is a document.
26. Last seen theory requires corroboration
27. A fact is said to be proved when it is neither proved nor disproved.
28. Affidavits are not included within the purview of definition of evidence.
29. Tape records of speeches are documents as defined in section 3.
30. Identification by photo is admissible in evidence.
31. Falsus in uno, falsus in omnibus is not rule of applicable under English Law.
32. Rejection of the testimony of hostile witness wholly is improper.
33. Evidence Act is not applicable or non-judicial proceedings. For example – proceedings under
Income Tax or Inquiry under Land Acquisition Act.

34. (R.M. Malkani u/s State of Maharashtra) is related to admissibility of contempo – raneous
tape-record.
35. In civil cases, balance of convenience of pre-ponderance of probability is required whereas
in criminal cases, prosecution has to prove case without reasonable doubt.
36. Standard of proof is more under criminal cases.
37. Contents of memory card or pen drive in relation to crime amount to a document.
38. Related witness like brother, mother are natural witnesses, and their evidence is admissible.
Also known as partis and witness.
39. Doctrine of Res Gestae is enumerated under Section 6.
40. Res Gestae literally means things done.
41. Document includes only letter, figures and marks.
42. RV Dgye – Document should be explained.
43. Court includes Revenue Tribunals, Industrial Tribunal, Registrar, Jury and Commissions.
44. Ravinder Preakash mittle V St of UP circumstantial evidence should have a proper chain for
proving legal connection.
45. Any fact showing or constituting a motive is relevant under section 8.
46. Qui facit per allium facit perse means he who acts through another does the act himself.
47. Conducting ‘Test Identification Parade” after lapse of reasonable time from the incident will
stand useless.
48. TIP (Test Identification Parade) is not substantive piece of evidence.
49. TIP is a rule of prudence.
50. Plea of Alibi is incorporated under section
51. In suits for damages, facts tending to enable court to determine amount are relevant under
section
52. Conclusive Proof is always irrebutable presumptions of Law. (As a General Rule).
53. The test under Section is proximity of time, continuity of Action and community of purpose
or design. Landmark Judgment (R.M. Malkani v/s State of Maharashtra) (profula B. Desai v/s
State of Maharastra) (R. v/s foster)
54. The rule of Res Gestae first appeared in year 1693 in (Thompson v/s Trevanion).
55. Generally, definition of Evidence is not exhaustive as it also includes.
- Weapone
- Demenus
- Confessions
- Judicially/noticeable facts.
56. Expert evidence is founded on doctrine of necessity.
57. Police officers under Custom Act, Excise Act, FERA, Railway are not police officers under
Section 25.
58. Under section 26, the custody has to be proper custody.
59. Cheque drawn by person against him is primary evidence.
60. Modes of proving is known as Modus probandi.
61. Law of evidence is Lex fori i.e. Law of the forum.
62. Section 21 provides the exceptions where admissions can be relevant when make in favour
of the makes.
63. When eye witness affirm that the deceased was not in a fit state to make declaration,
medical opinion cannot prevail.
64. An admission is not relevant in a civil case if it is made under circumstances from the court
can infer that the parties agreed together that evidence of it should not be given.
65. Opinions of an expert expressed in a book commonly offered for sale cannot be proved by
the production of such book if the author has gone abroad on vacation.
66. Hearsay evidence is admissible if it explains any conduct of the witness.
67. Evidence may be given of relevant facts and facts in issue and such evidence is admissible
under section 136
68. No person is entitled to give evidence which he is entitled to prove by any provision of the
law.
69. Evidence may be given of existence or non-existence of every fact-in-issue.
70. Facts not connected with fact-in-issue are relevant as form of part of same transaction
occurred at same time and place or at different times and places.
71. Rss Gestar is applicable on both civil and criminal cases.
72. Section 6-55 is confined to parties only (As General Rule) and not talk about the witnesses
but only section 6 talks about witnesses.
73. Natural events fall under section 6.
74. Res Gestae is a concept of English Law.
75. Res Gestae does not define same transaction.
76. (Sawal Das v/s state of Bihar) 1974 SC landmark on Sec. 6.
77. Last seen principle is enumerated under section 7.
78. Section 7 is based on inductive login.
79. Section 7 is only circumstantial evidence
80. Under Section 8, Conduct of parties to suits or proceedings, agents and victim is relevant.
81. Conduct of co-accused is irrelevant under section 8. When he appears as approves.
82. Conduct of co-accused is relevant under section 8 when he appears as defence witness.
83. Conduct under section 8 can either be previous or subsequent.
84. Absconding after commission of crime is subsequent conduct.
85. Destruction of relevant document or non-production of document is conduct of the party.
86. Any fact by which the relation of the parties can be determined is a relevant fact under
Section 9.
87. T.I.P. will be conducted of the accused despite the fact of devial by the accused by an order
made by magistrate under section 54A of code of criminal Procedure, 1973.
88. Document recorded after T.I.P is a presumed document under Section 80.
89. If the earlier identification was done and later on there is a retraction in the court, then if
the identification is established properly, it can be used by the court irrespective of the fact
of retraction.
90. Section 10 is base upon the “Principle of Agency” i.e. theory of Representation.
91. There must be prime-facie evidence regarding the existence of conspiracy before the
application of Section 10.
92. The conspiracy ceased to exist.
(a) When the object of conspiracy has been obtained
(b) When the conspiracy has been ceased or discovered.
(c) When all the conspirators totally abandoned the plan.

93. Anything said or done by the conspirator after separation from conspiracy or before joining
conspiracy is not relevant under section 10.
94. Section 11 is a residuary section on relevancy.
95. The Burden of proving the plea of Alibi lies upon the accused.
96. Mere probability or improbability will not make a fact relevant under section 11.
97. Court has to examine the degree of probability or improbability under Section 11.
98. A history sheet of an accused person kept in the police station is not a man’s character as it
is based on hearsay.
99. Constituting or containing a libel is known as libellous character.
100. Dying declaration is admissible when it made either before a Magistrate or a police officer or
a doctor or a private person.
101. Proof of a fact depends upon the probability of its existence and not upon the accuracy of the
statement.
102. Presumptions under the Law of evidence are presumptions of facts and presumption of
Law.
103. The relevant fact must be legally relevant.
104. Section 13 applies to both corporeal and incorporeal rights.
105. Admissions can be either formal or informal.
106. Admissions are not conclusive proof of the matters admitted but operate as estoppel.
107. Necessity rule as to the admissibility of evidence is contained in Section 32.
108. Dying declaration is admissible in both civil and criminal proceedings.
109. Section 27 is reflection of Doctrine of confirmation by subsequent facts.
110. A Court has no discretion regarding a proof of fact in context of conclusive proof.
111. Admission may be made orally or in witing or in electronic from.
112. Confession made to police officer is irrelevant under section 25.
113. Custom officers are not police officers.
114. The object of Section 25 is to ensure that the person accused of offence would not be
make a confessional statement.
115. Definition of confession Lord Atkin was used by Supreme Court for 1st time in (Palvinder
kaur v/s State of Punjab)
116. Section 29 is the clash between law and morality.
117. Acknowledgement is also branch of admissions.
118. Statements made by persons to whom a party to the suit has expressly referred for
information in reference to a matter in dispute are admissions.
119. In order to be admissible as a confession, the confession must be true and voluntary.
120. Confession to police officer is relevant under English Law.
121. Section 35 relating to relevancy of entry in public record, or an electronic record would be
attracted both in civil and criminal proceedings.
122. Statements in maps, charts and plans are relevant under section 36.
123. Judgments constituting Res Judicata are relevant under Section 40.
124. Judgment deciding one’s status or right in exercise of probate, matrimonial, admiralty or
insolvency jurisdiction are judgment in rem and relevant under Section 41.
125. Admissibility is not based on login but on law and strict rules.
126. The terms relevancy and admissibility are not co-extensive.
127. Relevancy is a genus of which admissibility is a species.
128. Section 13 applies to all kinds of rights – public or private, right of full ownership or
corporeal or incorporeal right.
129. A judgment in which the illegitimacy of a person was recognized is admissible under
Section 13.
130. Admissions can be broadly classified into judicial and extra judicial admission.
131. An admission made to a strange is relevant.
132. Admission of an agent is admissible when made in the course of his business.
133. The acknowledgment of a debt by a partner is an admission against the firm.
134. The self-favouring admissions are not permissible.
135. Section 23 gives effect to maxun interest rei publical ut finis litium which means it is in the
interest of the state that these should be an end to litigation.
136. Section 23 applies only to civil cases.
137. The admission made by a person in Plaint signed and verified by him may be used as
evidence against him in other suits.
138. The term confession is nowhere defined in the Evidence Act.
139. A confession is a statement made by the accused admitting his guilt.
140. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in
itself a confession.
141. A confession must either be accepted as whole or rejected as a whole.
142. Confession may be made to court itself (judicial) or to anybody outside the court (extra-
judicial).
143. A confession made to a person, while in police custody, overheard by police officer is
irrelevant under section 26.
144. A confession to fellow-prisoners, while in jail is irrelevant.
145. The statements admissible under Section 27 are not admissible against persons other than
the makes of the statement.
146. The scope of section 27 is explained by Privy Council in Pullukuri kottaya v/s Emperor.
147. Section 28 deals with the validity of confession which is made after the effect of
inducement is already over.
148. Section 32 is an exception to the hearsay rule.
149. In India, Dying declaration is admissible in both civil and criminal proceedings.
150. Under English Law, dying declaration is admissible only in the single instance of homicide
i.e murder.
151. Under Indian Law, cases of suicide are also covered.
152. Under Indian Law, it is not necessary that dying declaration must have been made in
expectation of death.
153. There is no particular form of statement required to be recorded in the dying declaration.
154. A complaint made to a police could be taken as a dying declaration.
155. If the person making the declaration chances to live, his statement is inadmissible as a
‘dying declaration’ but it might be relied on Section 157 to corroborate his testimony.
156. The fact that the person is dead must be proved by the person proposing to give evidence
of his statement.
157. The evidence given by experts is of advisory character.
158. Opinion as to digital signature are relevant under section 47A
159. Handwriting can be proved by the evidence of the writer himself or
By opinion of an expert (Section 45) or
By the evidence of a person who is acquainted with the handwriting of the person in
question (Section 47) or
By the court itself comparing the handwriting (Section 73)
160. The right of the village of a particular village to use the water of particular well is a general
right under Section 48.
161. Opinion of Relationship under section 50 includes relation by blood, marriage or adoption.
162. In criminal cases, the fact that the person accused is of a good character is relevant.
163. Whenever the opinion of a living person become relevant, then the grounds on which his
opinions is based also becomes relevant.
164. Evidence of good character is always admissible.
165. Evidence of good character of a person is irrelevant if he is charged for committing any
sexual offences.
166. Previous conviction of a person is relevant under section 14 (Explanation II).
167. All facts may be proved by oral evidence except the contents of documents or electronic
records.
168. The document itself produced for the inspection of the court is called Primary evidence.
169. Where document is executed in several parts, then each part is primary evidence /
Explanation II to Section 62.
170. Documents made in one uniform process like in case of printing, lit hography or
photography are primary evidence of contents of the rest / Explanation II to Section 62).
171. All copies of common original are not primary evidence of the original / Explanation II to
Section 62.
172. When the document is registered, the ordinary copy is not admissible as secondary
evidence.
173. A deaf testifying by signs or writing is oral evidence.
174. According to Section 60, only direct evidence of a fact which can be perceived by sense can
be given.
175. Documents must be proved by the primary evidence except where secondary evidence is
allowed by the Act (Section 64).
176. A photo copy of a document can be permitted to be given in evidence as secondary
evidence when it is proved that the original document was in possession of adversary.
177. The counterparts of a document are secondary evidence against the person who did not
execute it. For example – patta and Qabriliat.
178. The document which is otherwise inadmissible cannot be taken in evidence only because
no objection to the admissibility thereof was taken.
179. Secondary evidence of the contents of a document are allowed under Section 65.
180. Objection to the mode of proof should be raised at the time when it is being roved and not
afterwards.
181. Section 68 only applies to case where a document required by law to be attested, is tried
to be proved.
182. Section 69 applies t a case where the attesting witness is either dead or out of the
jurisdiction of the court or kept out of the way by the adverse party or cannot be traced
despite diligent search.
183. The admission of the execution under Section 70 means not only admission of signature
but also the attestation of the signature as required by Law.
184. Section 71 is in the nature of safeguard to mandatory provision of section 68 of Evidence
Act to meet the situation where it is not possible to prove the execution of will by calling
attestation witness.
185. Section 73 authorised the court to compare the disputed document with an undisputed
one for purpose of deciding as to whether a particular document was written or signed by a
person by whom it is supposed to be written.
186. According to section 74, a document which is the act or record of the acts of a sovereign
authority, official bodies and tribunals, public officer, Legislation judicial and execute is a
public document.
187. The statement recorded by a court during some proceedings is a public document.
188. The waqf document which is kept in office of sub-registrar is public document under
(Section 74(2))
189. The electoral will is a public document.
190. School leaving certificate is within the ambit of Section 74.
191. Section 80 merely gives sanction to the maxim omnia praesumuntus vitesse acta. Which
means all acts presumed to have been done rightly and regularly with regard to document
taken in the course of judicial proceeding.
192. Evidence Act comes under concurrent List of Indian Constitution/Schedule VII, List III (Entry
12).
193. Section 91 deals with production and only after section 91, section 92 becomes operative.
194. Section 91 is rule of Exclusion.
195. Section 91 is applicable whether evidence has to come from party or from stranger.
196. Section 91 is subject to section 64 and 65 of Evidence Act and section 49 of Registration
Act.
197. Section 91 applies to both unilateral and bilateral document and Section 92 applies to
bilateral documents only.
198. Burden of proof on the basis of pleading is under Section 101.
199. Section 101 applies on civil/criminal/ matrimonial or other matters.
200. The burden under section 101 is called legal burden and fixed at initial stage and it doesn’t
shift.
201. The Burden of Proof on the basis of evidence is called onus of proof under section 102.
202. Onus of proof under section 102 constantly shifts.
203. The word estoppel is derived from the French word ‘ESTOPE’ which means to stop.
204. Rule of Estoppel is a substantive rule of law.
205. Section 115 ‘allegans contraria non est audindus’. Which means person alleging contrary
facts will not be heard.
206. Principle of estopoel is found on English Law (Pickard v/s Sears).
207. Types of estoppel are estoppel by record, estoppel by deed, estoppel by pias or conduct,
estoppel by silence.
208. Res judicate is the example of estoppel by record.
209. Lunatu person, dumb person, child witness are competent witness.
210. Child is a competent witness if he can understand the questions and give rational answers
to such questions.
211. Accomplice is competent witness under section 133.
212. Accused is a competent witness but he cannot be compelled to be witness against himself
as per Article 20(3) of constitution.
213. Husband and wife are competent witness under section 120.
214. Judges and Magistrates are competent witness under section 121.
215. Section 122 deals with the communications made during marriage.
216. Under section 122, marriage can be void, voidable or valid.
217. Section 123 is based on maxim ‘sales populi est supreme les’. Which means public welfare
is the highest law.
218. Section 126 applies on barrister, vakil, pleades, attorney. This bar is not applicable on
clients.
219. Evidence of communication can be given by third person when the Communication was
made in his presence or was over heard by him.
220. Evidence as to affairs of state can be given only with the consent of Head of Department,
who if refuses, disentitles the court take evidence of such records even in its inherent
power.
221. Section 116 and 117 are illustrative of the principle of estoppel laid down in section 115.
222. Section 116 provides that a tenant/licensee is not permitted to deny the title of his
landlord/licensor.
223. Section 114 lays down the rules of prudence.
224. The evidence of prosecutor/victim of rape/cannot be treated as the evidence of are
accomplice requiring corroboration.
225. One execution of document more than thirty years old coming from proper custody is a
presumption of fact.
226. Oral evidence of a fact invalidating the document is admissible under Proviso 1 to section
92.
227. Section 106 is applicable to such matters of defence which are supposed to be especially
within the knowledge of the defendant.
228. For presumption under section 107, the person is to be shown to be alive within 30 years.
229. For presumption of death under section 108 the person is shown to be not heard for a
period of 7 years.
230. The presumption under section 109 as to certain human relationship is obligatory and
arises irrespective of the lapse of time.
231. The principle that possession is prima proof of ownership is contained in section 110.
232. The possession contemplated under section 110 is actual physical possession.
233. Section 110 in its operation is not limited to immovable property and applies to movable
property as well.
234. Section 112 contains an irrebuttable presumption of law.
235. Presumption under section 112 is raised when a child is born within 280 days of dissolution
of marriage, the mother remaining unmarried.
236. The suicide must be committed within a period of 7 years from the date of her marriage in
case of presumption as to Abetment of suicide by a married woman under section 113-A.
237. If it is not a case of suicide, but of accidental death, the presumption of abetment does not
arise under section 113-A.
238. Presumption as to dowry death begins to operate if prosecution is able to establish
circumstances set out in section 304-B.
239. Evidence of dumb witness shall be regarded as oral evidence under section 119.
240. As per section 128, if the party making the communication under section 126 gives
evidence of the matter covered by the communication, that does not amount to a waiver of
privilege.
241. Section 126 does not protect communications made in furtherance of an illegal purpose as
per proviso No. 1.
242. Leading question may be asked in cross-examination.
243. Any question suggesting the answer which the person putting it wishes or expects to
receive is called leading question.
244. Leading question must not, if objected to by the adverse party, be asked in an
examination-in-chief or in a re-examination except with the permission of the court.
245. Section 152 enables the court to forbid questions which are asked only to insult or annoy
the witness.
246. Section 154 is based on the principle that a witness whether of one party or another
should not be given more credit than he really deserves.
247. A witness who is essential to the unfolding of the narrative on which the prosecution is
based is known as ‘material witness’.
248. Where the wife of a partner was called upon to produce a deed of dissolution of the firm,
she was not permitted to be examined as a witness.
249. Any writing can be made use of for the purpose of refreshing the memory of a witness.
 250. It is not necessary that the document or writing used for refreshing the memory should be
relevant or admissible in evidence, but facts tried to be proved must be admissible under
section 159.
251. Sections 162-164 lay down the rules as to production and translation of documents.
252. Section 162 makes it obligatory on the witness to produce the document summoned by
the court and he has no right to decide whether the document shall be produced.
253. Under section 159, the document is not in itself evidence, nor it tendered.
254. Under section 160, the document itself is tendered and is evidence.
255. If it is necessary for the document to be translated, the court may direct the translator to
keep the contents secret, unless the document is to be given in evidence. (Section 162)
256. If the translator disobeys the instruction, he may be held to have committed an offence
under Section 166 IPC.
257. Section 164 does not enable a party to seek actual production of the document.
258. Section 164 may not perhaps apply to criminal proceedings.
259. No party or his agent shall be entitled to raise any objection to any question or order under
section 165, nor without the court’s permission, the witness shall be cross-examined as to
any answer that he may give.
260. Section 165 confess vast and unrestricted powers on the court.
261. The answers given by the witness in reply to questioning by the judge can be subjected t
cross-examination only with the permission of the judge.
262. A Judge is empowered under Section 165 to put irrelevant questions to a witness, but he
cannot base his Judgment on irrelevant facts.
263. Section 166 does not now prevail in India dealing with trial by jury or assessors.
264. Documents u/s 90 must be under proper custody and it must be free from any kind of
suspicion.
265. Presumption u/s 90 is available only to original documents, not to copies of document.
266. Presumption u/s 90 relates to signature writing only does not includes truth of contents of
document.
267. Section 90 does not applies in case where signature of particular person not in question or
sought to be established.
268. Court has discretion to presume such document as ancient document which was written
long ago.
- Presumption gives it evidentiary weightage.
269. Party presenting such document must make an application with the essential requirement
for the court to presume.
270. BOP lies upon the party who wants to rely upon such document.
271. ‘Proper Custody’ means custody if they are in the place in which they would naturally
under care of person with whom they would naturally be.
272. Presumption u/s 90 is applicable to all kinds of documents – public or private requiring
attestation or not.
273. For examples – Deeds, Family settlements, receipts, etc.
274. It does not extend to a will. Even an unregistered or unstamped document 30 years old
comes within ambit of Sec. 90 provided duly executed in proper custody.
275. Period of 30 years is to be reckoned not from the date when it is filed in the court but from
the date on which it having been tendered in evidence or would have been tendered in
evidence.
276. If there is unsigned paper or document, then presumption of section 90 would not apply.
277. (Om Prakash v/s. Shanti Devi) 2015 SC
- No presumption as to correctness of contents of documents.
278. (Surender Krishna Roy v/s. Mirza Mohd Mutawali) 1936 PC
- Period of 30 days to be reckoned from the date it having been tendered in evidence.
279. (M.B. Ramesh v/s K.M. Viraje) 2013 SC
- Presumption regarding documents 30 years old does not apply to a will because will has to
be proved in terms of section 63(c) of Indian succession Act, 1925 read with 68 of Indian
Evidence Act, 1872.
280. Burden of proof is not exempted in case admissions u/s 31 but exempted u/s 58.
281. Sec. 58 – Post trial statements.
- Rule of procedure and applicable on judicial confessions.
282. Section 31 is applicable on extra-judicial confession.
283. Section 59 and 60 depends upon senses of witnesses who gives oral evidence.
284. Oral evidence must be based on any one of the senses of human.
285. Oral evidence must be direct.
286. Hearsay evidence is not admissible –
Reasons 1. Irresponsibility of the person who is giving hearsay evidence
2. Depreciation of truth in the process of repetition
3. Fraud can be committed
4. Tendency to distract legal inquiries.

287. Hearsay evidence is also called second hand or derivative or unoriginated evidence.