Chapter I Introduction 1. The object of the study of the law of evidence The first question that ought to suggest itself to anyone taking up @ book to study will be: “Why am I reading this book?"—for reading without a purpose is useless. The answer to that question when it is put to a student studying the Law of Evidence is, “to become qualified as a lawyer I must pass an examination in it”. But why in this subject? There are many branches of the law. Why choose a few and ask the student to take an examination in them? The reason is that the subjects chosen are of a fundamental nature, A mastery 0” these will help the practical lawyer to meet any situation in any branch of law. If you consider all human activity you will find that in all democratic countries it falls into three groups (in dictatorial countries there are only two groups, because, as one wit put it, all acts which are not compulsory are prohibited): (/) things which shculd not be done, (ii) things which may or may not be done, and (iii) things which ought to be done. The law tries to define with precision the accivities which go into the first and third groups; and, as regards things which ought to be done, and in the field of non-obligatory activity with respect of certain matters, also prescribes the manner in which they should be done. The law makes the choice so as to ensure: (i) the greatest benefit to the greatest number of people, and (if) the least harm to the smallest number of people. An example of the first group is “thou shalt not maliciously kill another”. An example of the second group is “there is no obligation to execute a will but if you do, you must follow certain rules, otherwise it will be just a scrap of paper”. An example of the third is “a husband must maintain his wife”. The law, to be fully effective, has to go further. If a thing which ought not to be done is done, or when a particular mode was not followed, the law lays down the consequences of such failure; and how the consequences are to be enforced. Suppose A agrees with B that B should furnish A with a certain commodity at a certain rate, on or before a particular date. If B fails to supply, A will have to buy the commodity elsewhere, at perhaps a higher price. Since he is out of pocket to the extent of the difference between the price paid and the price agreed. A, if possible, would like to get this difference from B. So he goes to an (1)Law of Evidence 2 (Chap advocate, tells him the facts and asks him hia him. The advoca looks up the rule covering the sionals ae oa either in A passed by a competent legislature, or, in th "i of the Supreme Com of India and, in its absence, in a decision “ the High Court, The Tle of law says that if certain conditions are satis! ied me Person has got celia rights and that another is subject to certain Fabilities. The advooge yt now see if all the conditions are satisfied, and, for this purpose, rn nll ask for additional information from A. If the conditions are satisfeg has got the right and B is subject to the liability. Having satisfied ting that he has got the right, A would ask the advocate to take the neces steps. These consist in filing a suit against B. This is done by crating” plaint containing all the necessary allegations stating that the condition, of the rule of law are all satisfied, and filing it in a competent cour Thereafter, notice would go from the court to B, and B would go toh, advocate to give an appropriate answer. The answer which is called the written statement, may take one of four forms: (i) admitting B's liably, (i) admitting A’s allegations in the plaint but denying B's liability in ag, (ii) denying some or all the allegations in the plaint, and (iy) alleging new facts in the written statement to avoid liability while admitting, o¢ denying, the allegations in the plaint. In the first case, the court has to give merely a judgment in A’s favour. In the second case, the rule of law is interpreted by B’s advocate in a different manner. According to him the conditions to be satisfied before A can enforce his right and subject B to a liability are different from those alleged by A. B’s advocate says to A: “All that you say may be true, but you cannot succeed in law, because, before you succeed, these are the conditions which must be satisfied, and, it is not your case that these conditions exist.” In such a situation, the court has to decide what is the true meaning of the rule of law, i. what conditions “must be satisfied. If the court agrees with the interpretation of A's advocate, since the allegations are admitted by B. judgment will be given in favour of A; if it agrees with B, then A’s suit will be dismissed. In the third and fourth cases, however, the decision of the court will depend upon whether it believes A’s story ot 8's Story—because there is affirmation on one side and denial on the other. f A wants to succeed, he will have to prove the existence of the conditios laid down in the rule and which, according to him, exist, but wi according to B, do not exist; or show the non-existence of facts alles by B and denied by A. That is to say, the existence or non-exisene® certain facts will have to be proved to the satisfaction of the cou Generally, whether the facts exist or not is known to the partes aL y Introduction 3 litigati = eee oe other Persons. These other persons will be called as Ce Wey a te chiietes Si ah enebee of the facts in the Gout When parties or their witnesses speak of the existence or pon existence of facts in court they are said to give evidence in court This lence is tested by the opposite side by cross-examination, and after arguments are addressed by the advocates as to why the witnesses should or should not be believed, the court comes to the conclusion as to whether the facts exist or not, i.e., whether the conditions of the rule of law are satisfied or not, and gives judgment accordingly. Since the admission of liability or an argument only upon the interpretation of the law on admitted facts are not the usual phenomena in courts, and what happens usually in courts is the assertion and denial of the existence of facts, it becomes apparent that the law of evidence is important, because it is according to that law that the evidence is placed before the court to show the existence or non-existence of facts. The position is the same in a criminal case. A complains to the police that B has committed an offence. The police investigate and if they come to the conclusion that B has committed an offence, they file a charge- sheet against B in the competent Magistrate's court. Notice goes to B who comes before the court voluntarily or under arrest, and he is asked to plead to the charge as to whether he committed the particular offence or not. If he pleads guilty, generally the plea is accepted and the court gives appropriate punishment. If he pleads not guilty, the prosecution has to prove his guilt by calling various witresses who speak to the existence of the ingredients which make up the offence. After they are cross- examined, and, if the court is satisfied that they are speaking the truth, and the ingredients of the offence exist, the court proceeds to punish the accused. Otherwise, it acquits him of the charge. Thave given a very rough summary of a civil and criminal trial. In fact, they are very complicated, and the elaborate rules of procedure are set out in the Civil and Criminal Procedure Codes. But, for the purpose of understanding the place of the law of evidence, what is set out above is sufficient. Of what matters witnesses can speak, who are competent witnesses, on whom does the burden of proving the case lie, is it on the person asserting the existence of facts or on the person denying their existence, how is the knowledge of the witness to be placed before the court, how is his story tested by the adverse party, how is the genuiness of documents established, can copies of documents be relied upon, and similar otherA Law of Evidence (Chap, S answering questions necessarily arise, and there must be precise rule: these questions. The Indian Evidence Act contains all suc} h and oth connected rules. a 2. Are such rules necessary? There are two views regarding the necessi evidence, One view is that, since the object of the ¢ truth, i.e., the existence or non-existence of a fac hears about it, the greater the chances of arriving al The court ought to hear everyone who can say any) To exclude certain matters would be hampering the court from arriving at a just conclusion and therefore all rules laying down testeetione on matters to be placed before the court are fetters to justice and the box rule of evidence is that there should be no rule of evidence. The last is Proposition with which every student would agree (though for dfferert reasons), but a little thought would show that if there are no rules at all then no case will ever be decided. It would take years before the simplest case is decided and justice would become a mockery. Further, if you leave it to the court to decide on each occasion what matters are connected with the matter in controversy and, therefore, should be looked into by the court, there will be great uncertainty as to relevant matters, depending upon the patience of the Judge, And, as it is well- known that that system of jurisprudence is the best which leaves least to the Judge and that Judge is the best who relies least upon himself, rules become absolutely necessary, both from the point of view of time as well as of certainty. As in all matters rules should not be pedantic nor should discretion be too wide. In my opinion, the Indian Evidence Act, 1872, maintains this just proportion. ty for the rules of Ourt is to arrive at the , the more the cour a correct conclusion, thing about the matter, 3. The law of evidence is the lex fori We have seen that rules with Tespect to the law of evidence are necessary. We have also seen that they play an important part in the course of the trial, whether of a civil or a criminal case. Since it deals with the procedure, it is part of the adjective law, in contrast (0 substantive law, which deals with rights and liabilities, ic., ander what conditions a certain right exists in a certain person; under what conditions is a person subject to a specific liability. The law of evidence, however part of the law of procedure, i.e., the procedure which a court has follow. This is expressed by saying that it is the law of the forum (or cou!Res wecuee 1 d Introduction 5 oe ee This is purely a matter of convenience. If foreigners FOr fllowed a oe they cannot insist upon their law of evidence being ee knows only the Indian law of evidenes and will COs if the foreigners before the Indian court are a Frenchman ‘a German, whose law of evidence should the Indian court follow? 4, The law of evidence is the same in civil and eriminal proceedings ‘A question as to whether a person is dead may arise in @ civil case thus: an item of property is claimed under a will of a certain person The will does not operate till the person executing the will is dead. The fact of his death may be disputed by the other side. That the person execune the will died on a particular date, will then have to be proved by the person laying a claim to the property Similarly, the same question may prise in a criminal case. A person is charged with the murder of another. The prosecution will have to show that such a person died, that it was @ case of culpable homicide and the accused was the person who caused the death. The method of proving that a particular person is dead, whether the question arises in a civil or & criminal proceeding, is the same. But there are certain sections of the Act which apply exclusively to civil cases and, some to criminal cases. Sections 24 to 30 dealing with confessions, Sections 53 and 54 dealing with the cl aracter of an accused person, Section 120 dealing w th the competency of a spouse as a witness for the other spouse, and Section 155 dealing with the character of the vosecutrix in cases of rape or attempt 10 ravish, are sections exclusively be exirolaad cease. (iid prowinint Han See been deleted) 5 and 55 dealing with the character of parties, and Sections 7 dealing with estoppel. apply exclusively to civil cases. In ht of evidence also, there is a fundamental |] and criminal cases. ‘A mere preponderance of ivil cases, whereas, in a criminal case, before ted, the evidence adduced by the prosecution should tof the accused highly probable, but any fiternative hypothesis in favour of the accused must be extremely improbable, or as it is commonly expressed, “the prosecution must prove jts case beyond all reasonable doubt”. 1 established rule in criminal jurisprudence that circumstantial evidence can be made the basis of conviction of an cased person if itis of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. applicabl Sections 115 to 11 appreciating the weig difference between civil evidence is sufficient in ¢ the accused is convic not only make the guilt tate6 Law of Evidence (Chap, The incriminating circumstances for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. In a case of circumstantial evidence, the endeavour and effort of the court should be to find out whether the crime was committed by the accused and the circumstance ag proved form themselves into a complete chain unerringly Pointing to the Built of the accused. If the circumstances proved against the accused in « particular case are consistent either with the innocence of the accused or with his guilt, he will be entitled to the benefit of doubt. It is true that under our jurisprudence, in a criminal matter, we have to start with the presumption of innocence of the accused but that presumption is to be on the basis of conceptions of a reasonable, prudent man. Sniffing out doubts for the sake of giving the benefit of the doubt is not at all a law of the land. In our country, infested with terrorist activities, if arms and ammunitions are recovered at the instance of or on the disclosure by an accused, it can be inferred that the presumption of innocence would not thereafter exist and it would be for the accused to explain his knowledge and the discovery and recovery. It would depend upon the facts of each case which are to be appreciated hy the use of common sense of a prudent man having the capacity to separate the chaff from the grain. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. In the Present case merely because the arms and ammunition which were recovered at the instance of the accused were deposited at the police headquarters it could not be said that the recovery was vitiated when the deposit was explained by the prosecution as being necessitated because of want of space and the large quantity of the material recovered.! (It is respectfully submitted that the approach to circumstantial evidence is most brilliantly and accurately stated in this case. High probability of guilt and no reasonable possibility of innocence is the test of guilt.) The fundamental and basic presumption in the administration of criminal law and justice is the innocence of the alleged accused and that till the charges are proved beyond reasonable doubt on the basis of clear, Cogent, credible or unimpeachable evidence, the question of punishing an accused does not arise. The court should not be carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong it may ae ile a ane oh 1; Munshi Prasad v. State of Bihar, (2002) 1 SCC 351: 2002 SCC (Cti) 175.PREM: Das} Introduction 1 be, is no effective substitute fi for legal proof. greater should be the standard of proof eal een arpapeele The mor i i si a a the offence, the stricter the degree of proof since a gree of assurance is required to convict the accused.? 5. History of the law of evidence _ baa Z the basis on which the rules of evidence are framed? If we the rules of evidence of all civilized countries we find two fundamental axioms: (a) no facts other than those having some connection with the matter in controversy should be looked into by the cour. for the court will not waste its time in examining any material, however interesting it may be, if it has no bearing upon the matter in controversy and (b) all facts having rational probative value, ie., which help 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, for example, a confession made by a client to his counsel (see Section 126). While this is the present position, one might cone as to the evolution ofthese rules and see how tials were conducted in the past. If one looks back, far from being based upon the two rational Tales set out above, all possible irrational methods have been used for ascertaining the guilt of a person, or the right of a person to property ‘There were trials by battle—where the contestants in litigation fought it out in pattle, in the hope that Divinity would interfere on the side of the right (Shakespeare's Richard Il, Act 1, Sc. D. In feet trial by battle was abrogated in English law by statute only in 1817. In Serville v. Constance* the question was which of two pusiliss had the right to use the title, re demveight Champion of Trinidad”. Harman, } observed that “it veeurred to me forthe frst time during the hearing Yo regret the desuetude Be ordeal by battle as 2 method of tial". There Eo the hot iron and boiling water method. These trials by ordeal were believed in with superstitious credulity, that the innocent Pert would not be burt or seed, The priests issuing passports t0 paradise who officiated at these sermonial tesis, must have practised several tricks to save persons in caret they were interested; for, otherwise, once ® PEC ot was subjected to the teat, the only possible conclusion would be that he is guilty. (2002) 7 SCC 317. 2003) 12 SCC 377. of Mi State of W.B.,( 2. Ashis Batham v. State 3, Mousam Singha Roy ¥ 4, (1954) 1 WLR 487.8 Law of Evidence (Chap, Gibbon, in the Decline and Fall of the Roman Empire, Vo), 6 Chapter LXIL, gives an amusing instance: : “The archbishop urged Palaeologus to accept the judgment of God in the fiery proof of the ordeal. ‘I am a soldier’, said he, ang will boldly enter the lists with my accusers; but a layman, a sinney like myself is not endowed with the gift of miracles. Your piety mos holy prelate, may deserve the interposition of Heaven, and from your hands I will receive the fiery globe, the pledge of my innocence’ The archbishop started and the emperor smiled.” As late as the 18th century the corpse-touching method was in vogue in some countries (see Sir Walter Scott: Fair Maid of Perth). The theory here was that, when the guilty person touched the corpse, the corpse would show some reaction—and evidence had been given in the past of corpses reacting in several ways, such as opening an eye, pointing a finger, oozing blood, etc. This method however has one effect if the guilty person is superstitious. Such a person, thinking such a reaction would be produced in the corpse, would refuse to touch it, and thus point the finger of accusation at himself. But then, the reason why a person would not touch a corpse may be, not because he is guilty, but because it is dirty. In the witchcraft trials many horrors were practised. The victims usually were old women. It was a terrible accusation and the sixteenth century form of social boycott. I believe the test was to tie up the suspect and throw her into a pond. If she floated, she was a witch and was burnt alive. What did a few moments of terrestrial agony matter, when the soul was saved from eternal damnation and the fires of hell! If she sank, then she was not a witch, but of course she died proving to everyone that she was innocent. Such were the horrors of trial in the past, and the most serious—and we have not got out of it yet—is the practice of torture. The confession of an accused person is the best evidence if it is voluntary; but forgetting the latter portion, the accused were tortured till they confessed, and the confession was used as evidence of guilt. Today, no court would act upon a confession if there is the slightest suspicion of torture having been employed, but that does not prevent persons entrusted with investigation from resorting to such methods for gathering evidence. The remedy lies elsewhere, and not in courts. Mechanical aids like lie-detectors and truth drugs are being used, but no court would think of acting upon such mechanical aids only.> 5. Nathu v. State of U.P., AIR 1956 SC 56 admissibility of dog-tracking evidence.Introduction 2 _In India, there are in our ancient Sanskrit books dealing with law, elaborate Fulés of evidence, but how far they were actually followed in practice one cannot say, as the material available at present is scanty.) In the Muslim period also, there is no sufficient isterical material fo what rules of evidence were followed in the trials) In the British period the first step was taken in 1726, when by a Charter of that year, rules” contained in the common and statute law which prevailed in England, were introduced into India. By Act X of 1835 which applied to all the courts in British India, was dealt the proof of Acts of the Governor- General-in-Council. In 1837, Act XIX was passed, by which the rule that a person once convicted could not give evidence was abrogated. In 1852 was passed Act XV, by which parties to a civil litigation could be witnesses on théir respective sides. The older theory was that a party would naturally support his own case and therefore would not be a truthful witness and hence was not competent) It is to expose the absurdity of this rule that Charles Dickens lesefibed with ridicule the trial of Bardell and Pickwick in The Pickwick Papers. I have given only the more important enactments/ In fact, between 1835 and_1855. there were eleven enactments touching the-law of evidence and by Act II of T8s9all the cha is were consolidated.In 1868, Sir Henry Sumner Maine, the then law-member ‘of the Governor-General’s Council, was~ Jsked to prepare an Indian Evidence Act; but his draft was found unsuitable for Indian conditions. Mr Whitley Stokes in his Anglo-Indian_ Codes states: ay all “jt_was far from complete: it was ill-arranged: it was not elementary enough for the officers for whose use it was designed: and it assumed an acquaintance with the law of England which could scarcely be expected from them. rofessor Alan Gledhill in Republic of India (2nd Edn., p. 241) ——e ae say: “In the draft on evidence produced by the Third Indian Law Commission in 1868, there was no marked anxiety to impose on Indians the English rules, which the Commissioners regarded as peculiar to England and open to criticism of excluding much useful 6. See Abbe Dubois: Hindu Manners, Customs and Ceremonies, App. VI for Hindu methods of trial by ordeal; and “Historical Background of the Indian Evidence Act, 1872" by Vepa P. Sarathi in the Journal of the Indian Law Institute, 1872, Special Issue to commemorate the centenary of the Indian Evidence Act, 1872 and the Indian Contract Act, 1872.. Law of Evidence material and of permitting publication of facts at least a8 dangerous as those excluded. They believed it more important in India to ensure that the Court was sufficiently informed than to exclude material which might prejudice the Court: they proposed to admit anything bearing on the issue unless specifically excluded, and they relaxed the English rules of exclusion, particularly with regard to hearsay. The Commissioners’ draft, however, found no favour in India, and experience suggests that in India, more than in England, it is important to have rules which exclude matters only remotely hearing on the points for determination, ensure judgment of the cause and not the litigant, and curtail the duration and expense of trials.” There is thus a contradiction between Mr Whitely Stokes and Professor Alan Gledhill as to the content of the draft code. Be that as it may, it fell tof Sir James Fitzjames Stephen to bring about a brilliant compromise intthe present Evidence Act. The task was entrusted to him in 1871 when he took up the office of law member. His Bill was approved, and_became_Act I-of 1872, which came into force on Ist September, 1872, and contains the Law of Evidence in India. Before India attained Independence, the various princely States had adopted this ‘Act as the law in their respective States, and after Independence, the people of India gave themselves the Constitution of India and the Indian Evidence Act is the law relating to evidence in all the courts in India. So far, the interpretation of one section, namely, Section 27 of the Act was tested against the provisions of the Constitution of Indiavand found to be intra copes 7. State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125: 1960 Cri LI 1504.