LAW OF

EVIDENCE
ASSIGNMENT
TOPIC
:
SUBMITTED BY:

BURDE
SHIFA HANEEFA M

BBA, LLB
N OF
5TH SEMESTER

PROOF
MCT COLLEGE OF LEGAL STUDIES

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 ACKNOWLEDGMENT

First of all thank god. I would like to earnestly acknowledge the sincere efforts and valuable
time given by my teacher Lakshmi Mam. Your valuable guidance and feedback has helped me in
completing this assignment.

Also, I would like to mention the support system and consideration of my parents who have
always been there in my life.

Last but not the least my friends, who have always been there with my side.

Without them I could never had completed this task.

Sincerely

Shifa Haneefa

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 INDEX
SERIAL TITLES PAGE NO.
NO.

INTRODUCTION TO
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 LAW OF EVIDENCE
This article is all about an introduction to law of evidence and to know
about witnesses much wider. Law of evidence is a category that falls under adjective laws but it’s a
Procedural Law and it only applies to court proceedings. In simple way, evidence can be said the
important part of a case. It helps in identifying the percentage and the depth of the fact of a
particular situation. It’s a significant part of judicial system. It’s something that proves or
disapproves the fact of a situation in short.

Sir James Fitzjames Stephen is considered as the father of

evidence law. He wa appointed as high court judge in
1879. He had hopes on evidence act to bring to the
parliament. According to Stephen’s definition, “Evidence”
means and includes—(1) all statements which the Court
permits or requires to be made before it by witnesses; such
statements are called oral evidence (2) all documents
produced for the inspection of the Court; all such
documents are called documentary evidence.

Sir James Fitzjames Stephan

The term ‘Evidence’ is derived from Latin word ‘Evident’ or ‘Evidere’ this means ‘to show
clearly, or to discover, or to ascertain or to prove.’

The Evidence act came into force from 1st September 1872 applies to all over India except the
state of Jammu and Kashmir and it is also not applicable to army & naval law, disciplinary acts and
all the affidavits.

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Basically evidence can be divided into two categories;

1. Oral evidence
2. Documentary evidence

But it’s also further classified into;

1. Direct or indirect evidence which is also known as circumstantial evidence;

2. Real or personal;
3. Original or unoriginal;

4. Oral or documentary evidence; and

5. Primary or Secondary evidence.

Case laws

 Bharpur Singh V. Parshotam Das In this case, the Court described the scope
of sections 52 and 54 of the Indian Evidence Act. This case was filed to resist an action
for recovery brought on a promissory note. While deciding the scope of Section 52, the
Court observed that this section refers to a situation where evidence of character is
relevant in a civil case. Normally any evidence of character cannot render the probability
or improbability of any conduct and is irrelevant in civil cases. If the character is a fact in
issue then evidence of character is relevant. 

 Section 54 observed that previous bad character can be relevant only in case of rebuttal to
good character evidence or when the character is a fact in issue.

 Sardar Sardul Singh Caveeshar v. State of Maharashtra This case is

also referred to as the Empire Conspiracy Case. The Court answered the question of what
is the evidentiary value of the character of an accused in a criminal case. It observed that

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 Section 53 mentions that the good character of the accused is relevant in cases of criminal
nature. 

 Section 55 of the Act makes it clear that general reputation and general disposition in
criminal cases are relevant. The Court also explained the difference between reputation
and disposition. It stated that disposition is ‘inherent qualities of a person’ whereas
reputation is ‘general credit of the person amongst the public’. A man may have a good
reputation but in reality, may have a bad disposition. The value of evidence depends on
the cleverness of the person to hide his real traits, and the witness’s opportunity to
observe the accused. 
 The court quoted Wigmore’s proposition which stated that evidence can be used in a
doubtful case to tilt in favor of the accused but it can’t outweigh a piece of evidence
which shows the guilt of the accused. Evidence of good character is weak evidence but
can be used in criminal cases.

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 INTRODUCTION TO
BURDEN OF PROOF
The burden of evidence is a critical detail in debating the existence of God. The issue of the
burden of proof is the question of who is obligated to provide evidence for his or her role in a
debate. If theists fail to proportion the load of proof with atheists, the talk will stop before it ever
even begins. For example, believe if a person flipped a coin and blanketed it with their hand. Just
remember if this person then
stated, “Its tails… however you
want to prove to me that it’s
heads!” This wouldn’t be a fair
beginning to the debate,
wouldn't it? Of course not! Both
people would share the burden
of proving their case.

To determine who bears the

burden of proof, we need to
identify who is making a positive truth-claim. In case you are not making any type of claim, then
your opponent needs to endure the burden of proof, within the case of the coin flipping, each
human being are creating a claim about the coin; consequently, they both want to provide
arguments for his or her position. In the same way, whilst debating the existence of God, both
atheists and theists are making a claim about God. This is the most elevated lawful standard
ordinarily present in criminal prosecutions. It involves building up that no other sensible
clarification exists other than the proof displayed to the court, or that the guilt of the defendant is
past all sensible questions.

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 Section 101 - Indian Evidence Act,1872

101. Burden of proof.—whoever desires any Court to give judgment as to any legal right or
liability dependent on the existence of facts which he asserts, must prove that those facts
exist. When a person is bound to prove the existence of any fact, it is said that the burden of
proof lies on that person.

Illustrations
(a) A desire a Court to give judgment that B shall be punished for a crime which A says B
has committed. A must prove that B has committed the crime.
(b) A desire a Court to give judgment that he is entitled to certain land in the possession of B,
by reason of facts which he asserts, and
which B denies, to be true. A must
prove the existence of those facts.

Joint family property Merely because some of

properties continue to stand in the name of
plaintiff that by itself cannot lead to any
conclusion that the property purchased by any
one member of the family would necessarily
be a part of joint family property and when
evidence shows that the person who has
purchased property had been engaged in an independent business for a sufficient long period;
Baban Girju v. Namdeo Girju Bangar, AIR 1999 Bom 46. Reasonable proof of ownership In
absence of any reasonable proof that defendant was the actual owner of the property, and
plaintiff was only a name given does not prove that respondent was owner and plaint maker was
only a name given to the property; Rama Kanta Jain v. M.S. Jain, AIR 1999 Del 281. What to
be proved by prosecution It is well settled that the prosecution can succeed by substantially
proving the very story it alleges. It must stand on its own legs. It cannot take advantage of the
weakness of the defense. Nor can the court on its own make out a new case for the prosecution

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and convict the
accused on that
basis; Narain
Singh v. State,
(1997) 2 Crimes
464 (Del).
Section 101
characterize
burden of proof.
This section says
on whom burden
of proof untruths.
While as section
102 places it in negative terms. The burden of proof lies on the party who considerably states the
agreed of the issue and not upon the party who denies it. This standard of accommodation has
been embraced in practice, not on the grounds that it is difficult to demonstrate a negative, yet
since the negative doesn't concede to the immediate and straightforward proof of the presence of
a reality ought to be called upon to demonstrate his own case. The party on whom burden of
proof untruths must, in request to succeed, build up an at first sight case. He can't, on inability to
do as such, exploit the shortcoming of his enemy's case. He should prevail by the strength of his
own right and the clearness of his own proof.

The expression burden of proof has 2 implications: 1) the lawful burden i.e., the burden of
building up case.2) the evidential burden, i.e., the burden of driving proof. In criminal cases
burden of building up the charge against the denounced lies on the arraignment. Here it isn't the
blame that needs to demonstrate his guiltlessness since he is dared to be honest till his blame is
demonstrated. That is the reason indictment needs to demonstrate his case and section 101 comes
into activity. In common cases burden of proof is on the party who affirms. Be that as it may, the
norm of proof needed in common cases isn't that the offended party should demonstrate a reality
past any shadow of uncertainty.

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Case laws

 KUMAR VERMA V/S NANDAN KUMAR & ORS. IN NARAYAN GOVIND

GAVATE ETC VS STATE OF MAHARASHTRA ON 11 OCTOBER, 1977
court said, the result of a trial or proceeding is determined by a weighing of the
totality of facts and circumstances and presumptions operating in favor of one party
as against those which may tilt the, balance in favor of another. Such weighment
always takes place at the end of a trial or proceeding which cannot, for purposes of
this final weighment, be split up into disjointed and disconnected parts simply
because the requirements of procedural regularity and logic, embodied in
procedural law, prescribe a sequence, a stage, and a mode of proof for each party
tendering its evidence. What is weighed at the end is one totality against another
and not selected bits or scraps of evidence against each other.

 RAMA KANTA JAIN V. M.S. JAIN, AIR 1999 DEL 281.

What to be proved by prosecution is well settled that the prosecution can succeed
by substantially proving the very story it alleges. It must stand on its own legs. It
cannot take advantage of the weakness of the defense. Nor can the court on its own
make out a new case for the prosecution and convict the accused on that basis.

 NARAIN SINGH V. STATE, (1997) 2 CRIMES 464 (DEL)

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 Section 102 - Indian Evidence Act, 1872

102. On whom burden of proof lies.—The burden of proof in a suit or proceeding lies on
that person who would fail if no evidence at all were given on either side.

Illustrations

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by
the will of C, B’s father. If no evidence were given on either side, B would be entitled to
retain his possession. Therefore the burden of proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that
it was obtained by fraud, which A denies. If no evidence were given on either side, A
would succeed, as the bond is not disputed and the fraud is not proved. Therefore the
burden of proof is on B.

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 Section 103 - Indian Evidence Act, 1872

103. Burden of proof as to particular fact.—The burden of proof as to any particular fact
lies on that person who wishes the Court to believe in its existence, unless it is provided by
any law that the proof of that fact shall lie on any particular person.

Illustration

(a) A prosecutes B for theft, and wishes the Court to

believe that B admitted the theft to C. A must
prove the admission. B wishes the Court to
believe that, at the time in question, he was
elsewhere. He must prove it . When accused
takes Plea of alibi it is he who has to prove it. In
Ramadhar And Anr. vs Raj Narain And Ors.
On 16 July, 1929 court held that.
Under Section 93, Evidence Act, evidence may
not be produced to show what the meaning of the
parties was. The clause therefore remains ineffectual, so far as its application to the
interest is concerned. The defendant bases his plea of limitation on this clause, alleging
that owing to a breach of the covenant for the payment of interest the cause of action
arose more than twelve years before the date of suit. Under Section 103, Evidence Act,
the burden of proof that this was a term of the contract lay on the defendant. The
defendant has failed to discharge that burden of proof. His plea of limitation therefore
fails. The lower appellate Court has dismissed the appeal of the plaintiff on the ground

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 of limitation only. Accordingly the decree of the lower appellate Court should be set
aside and the appeal remanded for disposal.

Section 104 - Indian Evidence Act, 1872

SECTION 104: Burden of proving fact to be proved to make evidence admissible.—the
burden of proving any fact necessary to be proved in order to enable any person to give
evidence of any other fact is on the person who wishes to give such evidence.

Illustrations

(a) A wishes to prove a dying declaration by B. A must prove B’s death.

(b) A wishes to prove, by secondary evidence, the contents of a lost document. A must
prove that the document has been lost.

Whenever it is necessary to prove any fact, in order to render evidence of any other fact
admissible, the burden of proving that fact is on the person who wants to give such evidence. In
illustration a dying declaration of deceased to be proved but before that death of victim is to be
established/proved. Section 104 of Evidence Act mandates that the burden is on the person who
takes up the plea of adverse possession as that plea goes to the root of the title of the plaintiffs. It
is to be remembered that a person who takes up a plea of adverse possession must necessarily
admit the title of the adversary. Without there being an admission of the title of the adversary,
there cannot be a plea of adverse possession.

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 Section 105 - Indian Evidence Act, 1872
105. Burden of proving that case of accused comes within exceptions.—When a person is
accused of any offence, the burden of proving the existence of circumstances bringing the
case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within
any special exception or proviso contained in any other part of the same Code, or in any
law defining the offence, is upon him, and the Court shall presume the absence of such
circumstances.
Illustrations
(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the
nature of the act. The burden of proof is on A.
(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of
the power of self-control. The burden of proof is on A.
(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the
case provided for by section 335, voluntarily causes grievous hurt, shall be subject to
certain punishments. A is charged with voluntarily causing grievous hurt under section
325. The burden of proving the circumstances bringing the case under section 335 lies on
A. Plea of self-defense When the prosecution has established its case, it is incumbent upon
the accused, under section 105 to establish the case of his private defense by showing
probability; Samuthram alias Samudra Rajan v. State of Tamil Nadu, (1997) 2 Crimes 185
(Mad). The burden of establishing the plea of self-defense is on the accused and the
burden stands discharged by showing preponderance of probabilities in favor of that plea
on the basis of material on record; Rizan v. State of Chhattisgarh, AIR 2003 SC 976.

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 Section 106 - Indian Evidence Act, 1872
106. Burden of proving fact especially within knowledge.—when any fact is especially
within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations
(a) When a person does an act with some intention other than that which the character and
circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he
had a ticket is on him.
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 PRIMARY STANDARDS OF PROOF32
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 Preponderance of the Evidence: the greater weight of evidence, not necessarily established by
the greater number of witnesses testifying to a fact but by evidence that has the most
convincing force; superior evidentiary weight that, though not sufficient to free the mind
wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one
side of the issue rather than the other.

 Clear and convincing evidence: Evidence indicating that the thing to be proved is highly
probable or probably certain. This is a greater burden than preponderance of the evidence, the
standard applied in most civil trials, but less than evidence beyond a reasonable doubt, the
normal in criminal trials.

 Reasonable doubt: The doubt that prevents one from being firmly convinced of a defendant’s
guilt, or the belief that there is a real possibility that the defendant is not guilty. ‘Beyond a
reasonable doubt’ is the standard used by a jury to determine whether a criminal defendant is
guilty. In determining whether guilt has been proved beyond a reasonable doubt, the jury
must begin with the presumption that the defendant is innocent.
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