Law of Evidence

Unit – 1

Introduction to the Law of Evidence

Dr. Sumanta Meher

Assistant Professor
Teaching Objective, Learning Outcome and
Methods
• Teaching Objective
• To give a overview of the law of evidence and to make aware the purpose of
law of evidence and different doctrine associated with it.
• Learning Outcome
• The Students will come to know the objectives, General Principles of the Law
of Evidence. Apart from that, they will learn the key definitions of eh Indian
Evidence Act.
• Teaching Methods
• Questions answer method
• Classroom discussion
Introduction to the Law of Evidence

What is Evidence?

Where to produce
Questions
Evidence?

Who can give

Evidence?
What is Evidence?

Evidence - Latin term “evidentia”

• to show clearly
• to make clear
• It will simply mean the state of being evident

Dictionary - The available body of facts or information indicating whether a

belief or proposition is true or valid.

Taylor - all facts except arguments, which tend to prove or disprove any
matter, which under inquiry in judicial proceedings.
Conti…

According to Stephen, the word ‘evidence’ as generally

employed, is ambiguous:-
• It sometimes means the words uttered in and things exhibited by
witnesses before the court of justice;
• At other times it means the facts proved to exist by those words or
things and regarded as the ground work of inference as to other facts
in issue not so proved;
• It is sometimes used as meaning to assert that a particular fact is
relevant to the matter in the inquiry.
Conti…

Section 3 of the Evidence Act,1872, defined as, “evidence”

means and includes:
• All statements which the court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry; such statements are
called oral evidence;
• All documents [including electronics record] produced for the inspection of
the court; such documents are called documentary evidence.

Oral evidence and Documentary evidence – Various type of

evidences
Where to produce Evidence?

Where to produce Evidence?

• All judicial proceedings in or before any Court (Section 1 of IEA)

Court - “Court” includes all Judges and Magistrates and all persons, except
arbitrators, legally authorized to take evidence. (Section 3 of IEA)

Judicial proceedings - “judicial proceeding” includes any proceeding in the course

of which evidence is or may be legally taken on oath. [Section 2(i) of IEA]
Who can give Evidence?

Any prudent persons – who can give rational answer to a question

Persons associated in a dispute – Parties, Witness, Experts (if the court

need).

Best Evidence
• Oral Evidence – not Hearsay Evidence
• Document – Primary and Secondary
Which kind of law is this? (Nature of Law)
law that creates or defines rights,
Substantive Law duties, obligations, and causes of
action that can be enforced by law
Law
law that prescribes the procedures
Procedural Law/adjective law and methods for enforcing rights and
duties and for obtaining redress
Indian Penal Code, 1860,
Indian Contract Act, 1872
etc..
The Code of Criminal
Procedure, 1973, The Code of
Civil Procedure, 1908, The
Indian Evidence Act, 1872,
etc.
Conti..

Kinds of law

Lex Loci Lex Fori

The law of the place

The law of the court in
where an act is done
which a proceeding is
or a transaction takes
brought
place
 Purpose of the Law of Evidence
Prove or Disprove the dispute or claim

Assist the Judge – in the adjudication

Law of Evidence – Judge separates the wheat from the chaff among the mass of facts
• Decide upon just and mutual bearing of those fact
• To weigh the value of direct testimony
• Draw correct inference from circumstance

Main principle of law of evidence

• Evidence must be confined to the matter in issue
• Hearsay evidence must not be admitted
• Best evidence must be given in all cases.
Conti…

Preamble – Indian Evidence Act 1872

• WHEREAS it is expedient to consolidate, define and amend
the law of Evidence; It is hereby enacted as follows
History of Law of Evidence

History of Law of
Evidence

The Ancient/ Medieval/

British Period
Hindu Period Muslim Period
The Ancient Hindu Period

Hindu Dharma Shastra

• “the purpose of any trial is the desire to find out the truth”

Sage Yajnavalkya – “Discarding what is fraudulent, the King should give decisions
in accordance with the true facts.

Manu says:
• “the King presiding over the tribunal shall ascertain the truth and determine the correctness of the
testimonies of the witness, the description, time and place of the transaction or incident giving rise
to the case as well as the usages of the country, and pronounce the true judgment”.
Conti…

Three kinds of evidences has be laid down by Sage Vasistha which

are:
• Likhitam Sakshino Bukhti ----- Parmanam Trividham Smritham i.e.
• Lekhya (Document),
• Sakshi (Witnesses) and
• Bukhthi (Possession).
 Medieval/Muslim Period
Law of evidence was discussed in the book MUSLIM JURISPRUDENCE written by SIR ABDUL RAHIM

Al – quran stresses more on justice

• Justice is considered as one of the attributes of god

Evidence under Muslim law is divided

• Oral
• Direct and hearsay 
• Documentary

Oral evidence > preferred > documentary.

Documents executed by certain class of people were not accepted by the court like
• women, children, drunkard, criminals etc.

Besides, when documents were produced, courts insisted upon examining the party which produced them.
 British Period

Before the British Period

• Rules of evidence were based upon the local and traditional legal systems of different social groups
• Different for every social group, caste, community

King George I - Presidency Courts/Mayor’s Courts had been established in 1726 - Royal
Charter
• Bombay, Madras and Calcutta
• These courts followed the English rules of evidence law

Outside these towns there were Mufassil Courts,

• There were no definite law relating to evidence
• Muffasil courts were having unfettered power in relation to evidence laws
Conti...

CJ Peacock observed in the case of R v. Khairulla that,

• “ English Law of Evidence was not the law of the mufassil courts and it was
further held that Hindu and Muslim laws were also not applicable to those
courts. There being no fixed and definite rules of evidence, the administration
of the law of evidence was far from being satisfactory”.
Conti...
The situation demand for the codification of laws related to evidence

British government took the first step – to bring uniform law of evidence
• In the year 1835 - the Act of 1835
• Between 1835 and 1853 - Eleven enactments were passed - none passed the test adequacy
test

In 1868, a commission was formed to frame a draft code of the law of evidence
• Headed by Sir Henry Summer Maine
• 39 sections were included in this draft code
• The commissioners admitted that most of the English laws were not suitable for the Indian
conditions.
Conti..

Draft code was introduced by Sir Henry Summer Maine, and referred to a
Select Committee
• Drafts were circulated for opinion to local governments
• The predominant objection to it was not suitable for the officers for whose use it was designed
In the year 1870, a new bill containing 163 sections in a form different from
the present Evidence Act of 1872 was prepared by James Fitzjames
Stephen

Criticism from the local government.

 Conti...
James Fitzjames Stephen re-casted it and it was referred to the selection
committee and also to High Courts and members of Bar to elicit the opinion

It ultimately passed by legislature 

• Indian Evidence Act, 1872.
• 1st September 1872

After Independence
• Evidence Act, 1872 continue in India and Pakistan
• In 1971- Bangladesh
• It was repealed in Pakistan in 1984 by the Evidence Order 1984 (also known as the “Qanun-e-
Shahadat”)
Indian Evidence act ,1872
The Indian Evidence Act 1872 is divided into three parts, 11 chapters and comprises of
167 sections.
• Part I of the act deals with the Relevancy of facts,
• Part ll deals with proof and the vaious kinds of evidence and
• Part lll deals with the Production and Effect of evidence.

The Indian Evidence Act ,1872 applies to both civil and criminal proceedings.
• Criminal cases (e.g. Ss. 24-30 dealing with relevancy of confessions).
• Civil cases (e.g. Ss.115 -117 dealing with estoppel)

The Act came into force on September 1, 1872.

The salient features of the IEA ,1872

Preamble, Interpretation
Relevancy of Facts Proof of relevant facts
clause and presumptions

Manner of proof, burden

Facts that need not be Different types of
of proof , presumption
proved evidence
without calling for proof

Competency,
Estoppel Examination of witness
compellability of witness

Impeachment of credit of
Admissibility of evidence
witness
 Scheme of the Indian Evidence Act, 1872
Indian Evidence
Act, 1872

Relevancy of Facts Mode of Proof Production and Effect of Evidence

Relevant Other facts in issues and

Facts in issues (Sec 5) Fact need not be proved Who should adduce evidence
facts relevant facts may be proved by

Fact connected with facts in

Oral evidence Documentary evidence Who should not be allowed to adduce evidence
issue

Admission of confession Primary or secondary Evidence how to be adduced

Statements by persons who can’t Attested or unattested

Consequences of mistake
be called as witness documents

Statement made under special

Public and private
circumstances

Judgements of Courts Document presume to be genuine

Opinions Exclusion of oral evidence or documentary evidence

Character
Conti...

Beyond all
Criminal Case
reasonable doubt
Burden of proof is
Method of Proving on the prosecution
/plaintiff
Preponderance of
Civil Case
probability
Extent of Indian Evidence Act, 1872

The Act applies to all judicial proceedings in a court including court martials other than
courts martial convened under the Amry Act, the Naval Discipline Act, the Air force Act.

It does not apply on affidavits presented to any Court or Officer and arbitration.

The Act is not exhaustive. There are many other law which supplement the Evidence Act
Some of them are-
• Common Law, Cr.PC, CPC, Bankers book evidence act, Stamp act, Indian Limitation Act

The Act is dynamic in nature and has evolved with time.

 Definition
Section 3 of IEA
Court
• “Court” includes all Judges and Magistrates, and all persons, except
arbitrators, legally authorized to take evidence.

• Not a Court : Magistrate - holding a preliminary inquiry.

• Court: Magistrate committing a case to the Court of Session.
• An Industrial Tribunal set up under section 7 of the Industrial Disputes
Act is a "Court” (Raghu Singh v Burrakur Coal Co Ltd, AIR 1966 Cal
504)
Fact
Fact
• “Fact” means and includes ––
• (1) anything, state of things, or relation of things, capable of being
perceived by the senses; (illustration a, b, and c)
• (2) any mental condition of which any person is conscious. (illustration
d and e)
• Factum
• factum probandum (principal facts) - fact that needs to be proved
• factum probans (evidentiary facts) - fact offered in evidence as proof of
another fact
Conti...
• Physical and psychological fact
• Positive fact and Negative fact
• Matter of fact and matter of law
Relevant
Relevant

Section 3 of IEA

Relevant

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.
Conti…

Logical Relevancy Relevancy

and and
Legal Relevancy Admissibility
Facts in Issue
Facts in Issue
• Focal point of the dispute
• Central contentions upon which a dispute is centered
• crux of the argument in a Court
Facts in issue
• The expression “facts in issue” means and includes ––
• any fact from which, either by itself or in connection with other facts,
the existence, non-existence, nature or extent of any right, liability, or
disability, asserted or denied in any suit or proceeding, necessarily
follows.
• Explanation. ––Whenever, under the provisions of the law for the
time being in force relating to Civil Procedure, any Court records an
issue of fact, the fact to be asserted or denied in the answer to such
issue is a fact in issue.
Document
Document
• “Document” means any matter expressed or described upon any
substance by means of letters, figures or marks, or by more than one
of those means, intended to be used, or which may be used, for the
purpose of recording that matter.
Evidence
• “Evidence” means and includes ––
• (1) all statements which the Court permits or requires to be made
before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
• (2) all documents including electronic records produced for the
inspection of the Court;
such documents are called documentary evidence.
Kinds of Evidence
Oral evidence
Oral evidence

Witness

Witness in Witness in
favour of favour of Expert opinions
claimant defendant

Co-accused

Independent
Inculpatory evidence and exculpatory
evidence
Type of
evidence

Exculpatory evidence Inculpatory evidence

to clear from alleged

tending to incriminate
fault or guilt

Accused (to prove not Against self-

guilty) incrimination

Relevant against co-accused

(Section 30 of IEA)
Documentary Evidence
All documents including electronic records produced
for the inspection of the Court (Section 3 of IEA)

Primary Evidence (Section 62 of IEA) Secondary Evidence (Section 63 of IEA)

Document itself certified copies,

copies made from the original

by mechanical processes,

counterparts of documents,

Oral accounts of the contents of a document

Real and Personal Evidence

physical evidence,
Real Evidence
consists of material items
Type of evidence
It is afforded by human
Personal Evidence
agents
Judicial and Extra-Judicial Evidence

Extra-Judicial
Judicial Evidence
Evidence

Evidence which is
Confession made
Evidence received given outside the Confession made
by the accused in
by court of justice judicial to police
the court
proceeding
Direct and Circumstantial Evidence

Direct Evidence
• It is a testimony which is goes direct without any inference or deductive logic
• Witness given direct testimony

Circumstantial Evidence
• It is an indirect evidence
• a fact or set of facts from which one could infer the facts in issue
• Umedbhai v State of Gujarat AIR 1978 SC 424
• In the absence of any direct evidence, a person can be convicted on the basis
of circumstantial evidence alone (on satisfaction of certain condition).
Hearsay Evidence
Hearsay Evidence

Hearsay evidence is evidence which is made other than by a immediate experienced witness
while testifying at the hearing and that is offered to prove the truth of the matter stated.

Information given by him is not deriving from the original source.

The person giving evidence does not take responsibility of it veracity.

It is not admissible in the court of law

Hearsay Evidence

Exception

Res Gestae (Section 6 of IEA)

• A is accused of the murder of B – Previously A quarrel with B where A
threaten to kill B, B has narrated the incident to C.
• Kapoor Singh Rana v State of Delhi 1 (2006) CCR 558 (DB)

Admission or Confessions (Section 17 to 31)

• A sues B on a loan, which B denies and B makes a statement to C, a third
person, that he had taken the loan, B's statement is an admission and C
may give evidence of it although C was not present at the time of the
loan and had only heard B admit the fact of the loan
• UOI v Mokshi Builders, AIR 1977 SC 409
Conti...

Dying Declaration (Section 32 of IEA)

• X tell Y the reasons of his death
• Umakant v State of Chhattisgarh, AIR 2014 SC 2943

Evidence Given in Former Proceedings

• The deposition of a person in the previous proceeding is relevant if he cannot be
produced before the court to give evidence. (Section 33 of IEA)
Entries in books of account/Register kept in the course of business
Proved
• A fact is said to be proved when, after considering the matters before
it, the Court; either believes it to exist, or considers its existence so
probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists.
Disproved
• A fact is said to be disproved when, after considering the matters
before it, the Court either believes that it does not exist, or considers
its non-existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that
it does not exist.
Not proved
• A fact is said not to be proved when it is neither proved nor
disproved.
Presumption

Presumption
• an attitude or belief dictated by probability
• an act of accepting that something is true until it is proved not true.

Presumption of fact and Presumption of law

• Presumption of fact - presumption established from another fact or group
of facts.
• Presumption of law - a legal presumption that a court is required to arrive
at if certain facts are established and no contradictory evidence is
produced.
Conti…

Presumption

Irrebuttable or
Rebuttable
Conclusive
Presumption
Presumption
Section 4 of IEA

Presumption

May Shall Conclusive

presume presume proof