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introduction
The “evidence” in lieu of any offence or dispute, is the eye and ear of a court. A proper
decision in any case before a court is not possible without knowledge of true facts
involved in a dispute. Through the evidence the facts alleged by one party, and denied by
the other require the Court to ascertain whose contentions are true and for that purpose,
the judge has to weigh the ‘evidence’ available in support of or contradiction to those
contentions. Now the question arises, what does the term ‘evidence’ mean?
The term ‘evidence’ is derived from the Latin word ‘evident’ or ‘evidere’, which means “to
show clearly, to discover clearly, to ascertain, to prove”.
“Evidence is something, including testimony, documents and tangible objects that tends
to prove or disprove the existence of an alleged act.”2
“Evidence is something which ascertains the truth of the fact or print in question”. 3
Evidence under the Indian law means, “all statements which the Court permits or require
to be made before it by witnesses, in relation to matters of fact under enquiry. Such
statements are called oral evidence, all documents produced for the inspection of Court,
are called documentary evidence”.4 The object of rules of evidence is to help the Courts
to ascertain the truth and to avoid the confusion in the minds of judges, which may result
from the admission of evidence in excess. Thus, the Indian Evidence Act, 1872 was
passed with the main object of preventing indiscipline in the admission of evidence by
enacting a correct and uniform rule of practice. The law of evidence is the lex fori which
govern the Courts; whether a writer 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; Brain v. White Raven and
Furnem Junction Ry., (1850) 3 HLC 1 (19).
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The early history of law of evidence in India can be traced back in Dharma
Shastra as well as in Muslim and English systems of law. It was always recognized
by Dharma Shastra that the purpose of any trial is the desire to ascertain truth.
The early lawmakers recognised that trial often involved suppression of facts and
appreciation of falsehood. Therefore, Law of Evidence took every possible
precaution, consistent with times to secure the discovery of truth. The Indian law
of evidence had attained by the time of the ancient Dharma Shastra, a
considerable degree of perfection and embedding many modern concepts.
The modern law of evidence, like many branches of our legal system, owes its
inception to English Common Law. Till the beginning of the 18th century most of
the rules remained contained in rulings and dicta. A sort of uncertainty was
prevailing which was not only in the field of law of evidence but also in the other
fields of law. The first book on evidence was written by Chief Court Baron, Gibert
which was published in 1756 after thirty years of his death. Along with the
reforms in English Law, in India too, after 1833 various legal reforms were
introduced. Between 1835 and 1853, a series of Acts 2 were passed by the Indian
legislature which introduced some stray reforms in Indian law of evidence. Finally,
after a lot of twists and turns a draft prepared by Sir James Stiphen was
introduced in the Council in Governor-General in India in 1871 and was duly
enacted in 1872 which is the present Indian Evidence Act.
The Evidence Act extends to whole of India, except the State of Jammu and
Kashmir. Such Act also have some other limitations like, it applies to all judicial
proceedings in or before any court including the Courts Martial, other than Courts
Martial under Army Act, Naval Discipline Act and Air Force Act.
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2. Act X of 1835; Act XIX of 1837; Act IX of 1840; Act VII of 1844; Act XV of
1852; Act XIX of 1853; Acts II and X of 1855.
Most importantly such, Evidence Act, does not apply to AFFIDAVITS presented to
any Court or officer and it also does not apply to arbitral proceeding.
Following two fundamental axis can be said to be the basis on which the rules of
evidence are framed:
(i) No facts other than those having some connection with the matter in controversy
should be looked into by the court however interesting it may be; and
(ii) All facts having rational probative value i.e., which helps the Court to come to a
conclusion upon the existence or non-existence of the matter in controversy, are
admissible in evidence, unless excluded by some rule of paramount importance.
(i) The sole object and end of evidence is to ascertain the truth of several disputed facts
and points in issue and no evidence ought to be admitted which is not relevant to the
issues; Hales v. Kerr, (1908) 2 KB 601; Butterley Co. v. New Hucknall Colliery Co.,
(1909) 1 Ch 37.
(ii) The point in issue is to be proved by the party who asserts the affirmative according
to maxim “affirmanti non neganti incumbit probatio.”
(iii) The evidence must be sufficient to prove the substance of the issue
(iv) The best evidence must be given of which the nature of the thing is capable.
(v) Hearsay evidence of a fact is not admissible with some slight exceptions.
Law as a system of rules has been divided into Substantive and Procedural Law,
depending on its nature and purpose. Substantive law defines rights, duties, obligations
and liabilities. For example, Law of Contract, Hindu Marriage Act, 1955, Indian
Succession Act, Indian Penal Code.
The laws which prescribe the mode by which the application of the substantive law is
regulated are known as procedural laws, e.g., Cr. P.C. is an excellent example of
procedural law dealing with procedures for seizure, arrest, search; etc. The procedural
laws can be further divided into two parts; firstly, there are rules dealing with various
procedures to be followed in a court of law; Secondly, there are rules dealing with the
mode of the proof of the existence or otherwise of rights, duties and liabilities e.g.,
Evidence Act.
The rules of law of evidence for Civil and Criminal Cases are, in general, the same for
example the method of proving that a particular person is dead in respect of Civil Case
(person executing the Will, died or not on a particular date) or of Criminal Case (a person
charged with murder). But there are certain sections of Evidence Act, which apply only to
Civil Cases (sections 115-117 dealing with estoppel) and some only to the Criminal Case
(sections 24-30 dealing with confessions). The burden of proof is on the prosecution in
criminal cases and on the plaintiff in civil matters. There is a marked difference as to the
effect of evidence in civil & criminal matters. In criminal proceedings, law presumes the
accused as innocent unless and until he is proved guilty. In civil cases, principles of res
ipsa loquiture is followed.
Types of Evidence.--
Direct evidence is the evidence directly about the real point in issue.
It is the testimony of the witnesses as to principal fact to be proved,
e.g., the evidence of a person who says that he saw the
commissions of the act which constitutes the alleged crime. It also
includes the production of an original document. Direct evidence is
generally of a superior cogency.
(i) The facts alleged as the basis of any legal inference from
circumstantial evidence must be clearly proved beyond any
reasonable doubt. It if conviction rests solely on circumstantial
evidence, it must create a network from which there is no escape
for the accused. The facts evolving out of such circumstantial
evidence must be such as not to admit of any inference except that
of guilt of the accused; Raghav Prapanna Tripathi v. State of Uttar
Pradesh, MANU/SC/0127/1962 : AIR 1963 SC 74: (1963) 1 Cr LJ
70: (1963) 3 SCR 239.
(ii) All the link in the chain of evidence must be proved beyond
reasonable doubt and they exclude the evidence of guilt of any
other person than the accused; State of Uttar Pradesh v. Ravindra
Prakash Mittal, 1992 Cr LJ 3693: MANU/SC/0402/1992 : AIR 1992
SC 2045: 1992 AIR SCW 2417: 1992 (2) Cr CJ 85: 1992 (2) Crimes
664: 1992 (2) Cur Cr R 71: JT 1992 (3) SC 114: (1992) 3 SCC 300:
1992 (2) SCJ 549: (1992) 2 SCR 815: 1992 Scc (Cri) 642 (SC).
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1. Best on Evidence
The evidence of person who does not see the occurrence or accused
persons, but learns from the eye-witnesses about such occurrence
and sends information to the police station, his evidence about such
information though is hearsay if corroborates with the substantive
evidence of eye witnesses then, it is admissible; Muktiar Singh v.
State of Punjab, MANU/SC/0047/2009 : AIR 2009 SC 1854: 2009
Cr LJ 1744: 2009 AIR SCW 1475: 2009 (64) All Cr C 694: 2009
(74) All Ind Cas 22: 2009 (1) Cal LJ 304: 2009 (1) Chand Cr C 286:
2009 (2) Cur Cr R 239: 2009 (2) Mad LJ (Cri) 956: (2009) 1 Scale
655.
Where the original has been destroyed or lost, and when party has
made diligent search for it and exhausted all sources and means
available for its production then the secondary evidence is
admissible; Sattamma v. Ch. Bhikshapati Goud,
MANU/AP/0360/2010 : AIR 2010 AP 166.
“Oral evidence” includes not only the one adduced by examining the
witnesses, on behalf of such party, but also the cross-examination
of witness by the opposite party, in relation to it; Nandam
Mohanamma v. Markonda Narasimha Rao, MANU/AP/0447/2005
AIR 2006 AP 8: 2006 AIHC 662: 2006 (1) ALJ (NOC) 145: 2005 (5)
Andh LD 296: 2006 (1) Rent LR 510.
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(iii) how far and in what cases the oral evidence is excluded
by documentary evidence
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