History of the Evidence Act, 1872

Before the introduction of the Evidence Act, 1872 there was a hegemony regarding
the rules of evidence and their application in the courts of Indian Subcontinent.
Enactments on evidence were incomplete and were nowhere near satisfactory.
Different rules of evidence were applied in different courts.

Law in the Presidency towns

The courts established by the Royal Charter in the Presidency towns of Calcutta
(Kolkata), Bombay (Mumbai) and Madras followed the English rules of Evidence.
It must be noted that the entire English law on the subject was never declared to be
applicable to India by any statute. Portions of English Law of Evidence were from
time to time introduced by the Acts mentioned in the Table. Act 2 of 1855 was
however the most important of these fragmentary enactments and embodied many
of the reforms that were introduced in England.

Law in the mofussil courts

There were no complete and fixed rules of evidence in the mofussil courts. The law
was vague and indefinite. The mofussil courts were used to be guided by
occasional directions and a few rules regarding evidence and procedure contained
in the old Regulations made between 1793-1834. Act 19 of 1853 and Act 2 of 1855
introduced some English rules of Evidence in mofussil courts.

Vague customary law also prevailed in some part of the country, but they did not
assume any definite form.
There being no definite and fixed rules of evidence, the administration of the law
of evidence in the mofussil was far from being satisfactory. There was much laxity
regarding the admission or rejection of evidence.

The unsatisfactory state of the law was also commented on by judges in their
judgments. [See Gujju Lal v Fateh Lal, 6 C 193; Unide Rajah v Pemaswamy, 7
MIA 128, 137; Hurreehur V Churn Manjhee, 22 WR 355, 356.]

According to Field:
The whole of the Indian law of evidence might then have been divided into three
portions, viz., one portion settled by the express enactments of the Legislature; a
second portion settled by judicial decisions; and a third or unsettled portion—and
this by far the largest of the three, which remained to be incorporated with either of
the preceding portions.
[Field’s Evidence, 6th Edition, Introduction, p 10.]
Gradually the mofussil courts gained ground to believe that it was their duty to
administer the English law of evidence and a tendency towards a capricious
administration of that law prevailed. This was thought undesirable for two reasons:
 the English law of evidence based as it is on the social and legal
institutions of England was not applicable here in its entirety, owing to
the peculiar circumstances of this country.
 a competent knowledge of the English law could then be hardly
expected from the judges, and so a strict application of that law would
result in miscarriage of justice.

In R v Khairulla, 6 WR Cr 21 decided in 1866, Peacock, C.J., laid down that the

English Law of Evidence was not the law of the mofussil courts and it was further
held that the rules of evidence contained in the Hindu and Muhammadan laws were
also not applicable to those courts.

Attempts for reform

The first attempt towards reform was Act 10 of 1835 which was applicable to all
Courts in British India and dealt with the proof of the Acts of the Governor-
General in Council.
Between 1835 and 1853, a series of Acts were passed by the Indian Legislature,
introducing some reforms for the improvement of the Law of Evidence.

Important Reforms
Act 19 of 1837: abolished incompetency by reason of a conviction for criminal
offence
Act 9 of 1840: swept away the restriction as to interested witnesses [Section 1]
Act 7 of 1844: declared that no witness should be excluded from giving evidence
either in person or by deposition. by reason of incapacity for crime or interest in
the Presidency Towns;
Act 15 of 1852: declared parties to the proceeding, their wives and all other
persons, competent as witnesses - declared the parties and the person on whose
behalf any suit, action or proceeding might be brought or defended, competent and
compellable to give evidence in any court of justice
Act 19 of 1853: many of these reforms were extended to the civil courts of the East
India Company in the Bengal Presidency.
Act 2 of 1855: It was passed for further improvement of the Law of Evidence and
was the most important enactment of all the Acts passed for the improvement of
Law of Evidence. It contained many valuable provisions. This Act reproduced with
some additions all the reforms advocated by Bentham and carried out in England
by Lords Denham and Brougham. Though it did not contain a complete body of
rules, it was designed as supplementary to and corrective of:
 the English Law, and
 customary law of evidence prevailing in those parts of British India where
the English Law was not administered.

Need for change

As a result of the unsatisfactory state of the law of evidence, formal legislation on
the subject was contemplated. What was needed, was the introduction in this
country of the English law of evidence, which was the outcome of the experience
and wisdom of ages, with such modifications as were rendered necessary by the
peculiar circumstances of India.

First Evidence Bill of 1868

In 1868, the Indian Law Commissioners prepared a Draft Bill which was circulated
to the Local Governments for opinion. Mr. Maine (afterwards Sir Henry Sumner
Maine) in introducing the Draft Bill said:
No doubt much evidence is received by the mofussil courts which the English
courts would not strictly regard as admissible. But I would appeal to members of
Council, who have had more experience in the mofussil than myself whether the
judges of those courts do not, as a matter of fact believe that it is their duty to
administer the English law of evidence as modified by the Evidence Acts. In
particular I am informed that when a case is argued by a barrister before a mofussil
judge and when the English rules of evidence are pressed on his attention, he does
practically accept those rules, and admit or reject evidence according to his
construction of them. I cannot help regarding this state of things as eminently
unsatisfactory. I entirely agree with the Commissioners that there are parts of the
English law of evidence which are wholly unsuited to this country. We have heard
much of the laxity with which evidence is admitted in the mofussil courts, but the
truth is that this laxity is to a considerable extent justifiable. The evil, it appears to
me, lies less in admitting evidence, which under strict rules of admissibility should
be rejected, than in admitting and rejecting evidence without fixed rules to govern
admission and rejection. Anything like a capricious administration of the law of
evidence is an evil, but it would be an equal evil or perhaps even a greater evil, that
such strict rules of evidence should be enforced as practically to leave the court
without the materials for a decision.

Dropping of the First Bill and its reasons

The first bill did not proceed beyond the first reading. It was pronounced by every
legal authority to which it was submitted, to be unsuitable to the wants of the
country. The principal reasons, in the words of Sir James Fits-James Stephen were:
• the Bill was not sufficiently elementary;
• it was in several respects incomplete,
• if it became law, it would not supersede the necessity under which judicial
officers under this country are at present placed, of acquainting themselves by
means of English hand-books with the English law upon the subject. The
Commissioners’ draft indeed, would be hardly intelligible to a person who did not
enter upon the study of it with Considerable knowledge of the English law.
[Stephen’s Speech on presenting the Report of the Select Committee.]

Evidence Act of 1872

Two years later, Mr. Stephen (afterwards Sir James) prepared a new Bill, which
was finally passed into law in 1872, as Act I of 1872. The general object kept in
view, says the author of the Act, in framing it, has been to produce something from
which a student might derive a clear, comprehensive and distinct knowledge of the
subject, with necessary labours but not, of course, without that degree of careful
and sustained attention which is necessary in order to master any important and
intricate matter.
[Stephen’s Speech on presenting the Report of the Select Committee.]

Some features of the Act

 The Act is based entirely on the English law of Evidence.
 The industry and care with which the great mass of principles and rules of
English law have been codified within a very narrow compass must need
excite the admiration and wonder of all.
 As the subject is a vast one, and as everything has been compressed within
the four corners of the Code which comprises only 167 sections, the charge
has often been made regarding the abstruse and intricate character as also of
its incompleteness.
 The sections are crabbed and not easy of comprehension.
 As the Act is drawn chiefly from the English law, a study of the text books
on the subject accords great help towards a thorough grasp of the principles
and rules underlying the sections, and is to some extent indispensable. For,
the sections being only statements of rules in the form of express
propositions, they can be best understood by first enquiring into the reasons
of those rules. And this can be only achieved by a previous study of English
and American text books on the subject.
However, studying and handling the Evidence Act is much easier now due to a vast
number of case-laws on the subject. The eminent judges have always taken care to
explain the sections with commendable energy. The commentators have also
rendered valuable service in this direction.

Relevancy of Facts

Section 5
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.

Section 5 is the key section of the Evidence Act.

Section 5 lays down the general rule of relevancy.
Section 3 defines relevant facts:
One fact is said to be relevant to another when the one is connected with the
other in any of the ways referred to in the provisions of this Act relating to the
relevancy of facts.
According to Section 5, there are three types of facts:
 Facts in issue
 Relevant facts
 No other facts.

Relevancy/Admissibility
Relevancy and admissibility should not be misunderstood as same things.
Relevancy is a matter of logic and admissibility is a matter of law.
Relevancy depends on reasoning and admissibility depends on judges discretion.
Discretion does not mean arbitrariness.

Section 6
Facts which, though not in issue, are so connected with a fact in issue as to
form part of the same transaction, are relevant, whether they occurred at the
same time and place or at different times and places.

What is admissible under section 6 are facts which are connected with the fact in
issue as “part of the transaction” under investigation.
In order that different acts may constitute the same transaction they must be
connected by proximity of time, unity or proximity of place, continuity of action
and community of purpose or design.
Whether the connection is sufficient to make a fact or facts part of the transaction
or is too remote must always depend on the circumstances of each case.
The rule formulated in s. 6 is expounded and illustrated in sections 7, 8, 9, and they
should be read together.

Relevancy has been described in sections 6-11 and Stephen says:

Sections 6-11 are by far the most important and original part of the Act as they
affirm positively what facts may be proved, whereas the English law assumes this
to be known, and merely declares negatively that certain facts shall not be
proved.

Res gestae
The subject matter of sections 6, 7, 8, 9 and also of 14 are treated in English and
American books under the head of Res gestae.
The term is frequently found in all books on Evidence and is freely used in
judgments.
Acts, declarations and incidents accompanying or explaining the transaction or
facts in issue or which themselves constitute the facts or transaction in issue are
considered as part of the res gestae and admitted as original evidence -and not
hearsay.
Thus, the exclamations, statements and complaints of an injured party or the
complaint of a raped woman [see s 8 illus (j)] immediately before, during or after
the occurrence are relevant. These spontaneous declarations accompanying an act
are sometimes called “verbal acts”.

Section 7
Facts which are the occasion, cause or effect, immediate or otherwise, of
relevant facts, or facts in issue, or which constitute the state of things under
which they happened, or which afforded an opportunity for their occurrence
or transaction, are relevant.

Section 8
The conduct of any party, or of any agent to any party, to any suit or proceeding, in
reference to such suit or proceeding, or in reference to any fact in issue therein or
relevant thereto, and the conduct of any person an offence against whom is the
subject of any proceeding, is relevant, if such conduct influences or is influenced
by any fact in issue or relevant fact, and whether it was previous or subsequent
thereto.

Section 8
Explanation 1.—The word “conduct” in this section does not include statements,
unless those statements accompany and explain acts other than statements; but this
explanation is not to affect the relevancy of statements under any other section of
this Act.

Explanation 2.—When the conduct of any person is relevant, any statement made
to him or in his presence and hearing, which affects such conduct, is relevant.

Section 9
Facts necessary to explain or introduce a fact in issue or relevant fact, or which
support or rebut an inference suggested by a fact in issue or relevant fact, or which
establish the identity of any thing or person whose identity is relevant, or fix the
time or place at which any fact in issue or relevant fact happened, or which show
the relation of parties by whom any such fact was transacted, are relevant in so far
as they are necessary for that purpose.

Section 10
Where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything said,
done or written by any one of such persons in reference to their common
intention, after the time when such intention was first entertained by any one of
them, is a relevant fact as against each of the persons believed to be so conspiring,
as well for the purpose of proving the existence of the conspiracy as for the
purpose of showing that any such person was a party to it.

Section 11
Facts not otherwise relevant are relevant—
 
 if they are inconsistent with any fact in issue or relevant fact;
 if by themselves or in connection with other facts they make the existence or
non-existence of any fact in issue or relevant fact highly probable or
improbable.

Section 12
In suits in which damages are claimed, any fact tending to enable any fact which
will enable the Court to determine the amount of damages which ought to be
awarded, is relevant.
Section 13
Where the question is as to the existence of any right or custom, the following facts
are, relevant:—
 
(a) any transaction by which the right or custom in question was created,
claimed, modified, recognized, asserted or denied, or which was
inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognized or
exercised, or in which its exercise was disputed, asserted or departed from.

When there is a question, whether a particular act was accidental or intentional,

or done with a particular knowledge or intention, the fact that such act formed
part of a series of similar occurences, in each of which the person doing

Section 16
When there is a question whether a particular act was done, the existence of any
course of business, according to which it naturally would have been done, is a
relevant fact.

Sections 6-11 define relevancy in the sense of connection of events as cause and
effect has been fully defined.
Sections 12-55 give instances of relevant facts. According to Stephen:

These sections enumerate specifically the different instances of the connection

between cause and effect which occur most frequently in judicial proceedings.

Facts determining damages

 The class of suits in which damages are claimable and the amount of
damages that are appropriate in different kinds of suits, are regulated by the laws
under which such suits are brought.
 The damages awarded upon violation of a right are a remedy prescribed by
the substantive law.
 The kind of facts admissible in actions for damages vary according to the
nature of the actions, e.g., breach of contract, breach of promise to marry, libel,
assault, trespass, etc.
 Damages are normally claimed either in an action on tort, or on a contract
for its breach.
 [Relevant provisions of the Contract Act and SR Act]

 Injury to feelings is totally irrelevant in an action on a contract as an element

of damages; but in actions on tort, heavy damages may be given. For example in
actions for defamations the injury to the feelings is always an element of
consideration. In Hamlin v Great N Ry Co. 1 H & N 408, it was observed:

in the case of a wrong, the damages are entirely with the jury, and they are at
liberty to take into consideration the injury to the party’s feelings and the pain he
has experienced, as for instance, the extent of violence in an action of assault
and many topics, and many elements of damage find place in an action for tort
or wrong of any kind, which certainly have no place whatever in an ordinary
action on contract.