INDIAN EVIDENCE ACT NOTES, Exams of Law

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Indian Evidence Act

(Semester VII)

UNIT 1: LAW OF EVIDENCE

1.1: History and Development

Background of the Indian Evidence Act

1. In the ancient period, there has been elaborate discussion of the rules of evidence in Sanskrit books. However, not much information is available in the Muslim period in respect of the Law of Evidence.
2. In 1726, the rules of evidence prevailing in England under Common law and statute law were introduced in India.
3. During 1835-1855 at least 11 enactments in this area of law were dealt with. In 1868, a draft prepared by Sir Henry Sommer Maine which was found unsuitable for the country.
4. Sir James Stephen in 1872 prepared the Bill for the Act as in present day, who was entrusted with the same work in 1871.
5. Most States had already adopted this Act before even the Constitution came into force. The Law of Evidence which came into force in 1872 continues to be applicable to this day with least changes being made in the past.

1.2 Object and Scope of Study AND 1.4 Appreciation of Evidence

Relevance and Function of the Law of Evidence

1. In the process of delivering justice, Courts not only have to go into the facts of the case but also ascertain the truthfulness of such assertions made by the parties. To ascertain these facts, the Law of Evidence plays an important role, being the procedural law in this aspect
2. It is this procedural law that provides in itself how fats are to be proved and when the same will be regarded as relevant by the Court in the administration of justice.
3. It helps judges in deciding the rights and liabilities of the parties arising out of the facts presented to him for further application of the relevant laws.
4. Thus, the law of evidence lays down the principles and rules according to which the facts of a case may be proved or disproved in the Court of Law.
5. It helps the Courts in preventing the wastage of time upon irrelevant issues.
6. In the case of Ram Jas v. Surendra Nath, it was held that, the law of evidence does not affect the substantive rights of the parties but facilitates the course of justice. It lays down rules of guidance for the Courts. It is procedural in nature, proving how a fact can be proved

another country, the law applicable to the recording of evidence would be the law prevailing in the country where the proceeding is going on.

Scope of the Evidence Act

1. The Act is a complete code in itself repealing all those rules of evidence except those as explicitly mentioned in the proviso to Section 2. There are many statues which supplement the Evidence Act. Some of them are as follows:

i. Bankers Book Evidence Act

ii. CPC

iii. CrPC

iv. TOPA

v. Divorce Act

vi. Stamp Act

vii. Succession Act

viii. Commercial Documents Evidence Act, etc

2. The Act, deals particularly with the subject of evidence and its admissibility. It is a special law. Hence, no rule as stated in the Act is affected by any other statute unless otherwise specifically mentioned.
3. Evidence excluded by the Act is inadmissible and should not be admitted merely because it may be essential in the ascertainment of truth.
4. Parties cannot contract themselves out of the provisions of the Act.
5. If evidence is tendered, Courts are to check whether such evidence is admissible under the Act.

1.3: Evidence and Proof

S. No. Basis of Distinction

Evidence Proof

1. (^) Meaning All the legal means exclusive of the mere arguments which tend to prove or disprove a fact.

Anything which serves to convince the mind of the court regarding any truths or propositions to come to a certain conclusion.

2. (^) Nature It is the medium of proof.

It is the effect or result.

3. (^) Relationship It is the foundation of proof.

It is what is constructed on basis

of evidence.

4. (^) Necessity Without the foundation of various facts or evidence, there cannot be proof.

Without evidence there cannot be proof. It is only the basis of proof can a case is decided by a Court.

5. (^) Kinds There are various kinds of evidence.

HORN SSC: Hearsay, Oral, Real, Non- Judicial, Secondary, Substative, Conclusive

There is only one collective proof and there are no various kinds of proof.

6. (^) Mathematical Analogy

E1+ E 2 +... E 4 +E 5 =Proof

7. (^) Examples In case of murder, the knife, weapons, clothes, finger prints etc.

Collection of all these evidences becomes proof when such evidence leads us to the murderer.

8. (^) Scope It is the material over which the foundation of truth is based

Proof is the establishment of facts in issue by proper legal means to the satisfaction of the Court.

9. (^) Conclusion Once the evidence comes before the Court and stands the test of legal scrutiny, then it becomes proof.

such that it should establish that the accused and only the accused must have committed the crime.

6. The Supreme Court in the case of Birdichand Sarda v. State of Maharashtra, laid down the 5 Golden Principles of Circumstantial Evidence:

i. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

ii. The facts so established must be consistent only with the hypothesis of the guilt of the accused i.e. it should only explain the hypothesis of the guilt of the accused.

iii. The circumstances should be of a conclusive nature.

iv. They should exclude every possibility of any other hypothesis than the one to be proved.

v. There must be a claim of evidence so complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all possibility that the act must have been done by the accused.

7. In the case of Caestanco Fernandez v. Union Territory of Goa, a test was laid down for the acceptance of circumstantial evidence which is as follows: if 2 inferences are possible at the same time, one about the innocence and the other the guilt of the accused, the evidence indicating towards the innocence of the accused shall be used.
8. When a case squarely rests on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused.
9. It is a well settled principle now that if at all a case rests primarily or wholly on circumstantial evidence, the links in the chain of events must be proved completely.

Real Evidence/ Material Evidence and Personal Evidence

1. Real Evidence is that which is brought to the knowledge of the Court by inspection of an object and not by way of a witness or a document produced.
2. Personal Evidence is that which is afforded by a human agent by voluntary signs.

Original Evidence and Hearsay or Unoriginal Evidence

1. Original Evidence is that which a witness reports himself to have heard or seen by way of his own senses.

2. Unoriginal or Hearsay Evidence is that which a witness is merely reporting what he himself saw or heard but through the medium of a third person. Such kind of evidence is not admissible at all.

Primary and Secondary Evidence

1. Primary evidence is when a document is produced before the court for inspection or proof of an admission of the contents by the parties.
2. Secondary evidence is inferior which itself indicates that the existence of a fact is taken from the original source.

Oral and Documentary Evidence

1. Oral Evidence is that which is brought to the knowledge of the Court by verbal statements of the witness, qualified to speak on point under enquiry. [S. 59 & S. 60]
2. Documentary evidence is that evidence of a fact brought to the knowledge of the Court by inspection of any document produced. A documents means any matter expressed or described upon any substance by means of letters or figures intended to be used. [S. 61- S. 90]

UNIT 3: INDIAN EVIDENCE ACT

3.1 Schematic Arrangement

3.1.1: Interpretation Clause

1. COURT: includes all Judges and magistrates and all persons legally authorised to take evidence other than arbitrators.
2. Court has been defined for the purpose of this Act only and cannot be extended beyond its limited scope. The definition is thus not exhaustive but explicitly excludes arbitrators. Therefore, by virtue of this definition, in a jury trial, both the jury and the Judge will be regarded as Court.
3. It was held in the case of State of MP v. Anshuman Shukla that the authorities constituted under the M.P Madhyastham Adhikaran Adhiniyam, though named as Arbitral Tribunals were courts as they were empowered to take evidence and examine witnesses.
4. FACT: As defined means and includes anything that can be perceived by ones senses and any mental condition of which any person is conscious.
5. A fact need not be a tangible or visible object; it may be statements, feelings, opinions or a state of mind. EX: A man heard or saw something; a man said certain words, a man having a certain reputation, having a certain intention, etc. are all facts.
6. Facts may be divided into the following kind: (1) External and Internal Facts; and (2) Positive and Negative Facts.
7. External Fact Internal Fact It is considered to have its seat in some animate or inanimate being, not by virtue of it being considered as animate but what it has in common with the inanimate being. EX: horse, man etc. It is a perception of the five senses

It is considered to have its seat in an animate being and by virtue of the same quality being considered animate. EX: a certain opinion, an intention. It is a subject of consciousness, good faith etc.

2. Positive Fact Negative Fact The existence of certain things is a positive fact

The non existence of certain things is a negative fact.

7. Matter of Fact and Matter in law: Matter of fact is anything which is the subject of testimony which can be proved by way of evidence; matter of

law is the general law of land of which the court will take judicial notice. It does not have to be proved by evidence.

8. Relevant: one fact is said to be relevant to another when one is

connected with the other in any way as referred to in sections 5 to 55. It must be connected to the facts in issue or other relevant facts. A fact not connected as in the sections mentioned, is not relevant. All relevant facts are admissible.

9. Relevant has 2 meanings, in one sense it means connected and in

another it refers to admissibility.

10. According to Stephen, relevancy means connection of events as in a

cause and effect relationship. A relevant fact is a fact that has a certain degree of probative force.

11. Facts in Issue: it means and includes any fact from which, either by itself

or in connection with other facts, the existence or non-existence, nature or extent of rights, liability or disability, asserted or denied in any suit or proceeding.

12. Facts in issue are those facts which are alleged by one party and denied by another in the pleading in a civil case (i.e. the issues framed under CPC) ; or alleged by the prosecution and denied by the accused in a criminal case (i.e. the Charges under Chapter XVII of the CrPC).
13. When a case is before the Court, two types of facts play an important role in determining whether or not the alleged offence has been committed, they are facts in issue and relevant facts.

Facts in issue + Relevant Facts = Proof

14. The evidence in a particular case is confined to the facts of the case

before any court. The Court must ascertain the area of controversy between the parties and the facts which are in dispute are the facts in issue. It is on basis of the evidence that is brought before the court on the facts of a case that fact in issue is decided giving some right or liability to a party.

15. Facts in issue may be proved either by direct evidence or circumstantial evidence. For example, in a road accident or rape cases, the courts have to depend on circumstantial evidence where direct evidence is unavailable.
16. Relevant facts are facts which themselves are not in issue but may help in

proving facts in issue. They act as foundations from which inferences are drawn in respect of the facts in issue. For example, if witnesses depose

DISTINCTION BETWEEN FACTS IN ISSUE AND RELEVANT FACTS

Sl. No. Basis of Distinction

Facts in Issue Relevant Facts

1. Nature of Fact It is the relevant fact arising out of issues/ charges framed by the Court in a suit or proceeding.

It is also called ‘Factum Probandom’.

It is the evidentiary fact and is also known as the ‘Factum Probandi’

2. Relation with Substantive Law

In a case, a fact in issue is a question of law which will be determined by the substantive or procedural law regulating the pleadings

It is a fact so connected with the facts to prove or disprove facts in issue.

3. Judicial Value They are facts out of which some legal rights, liability/ disability can arise and upon which the court formulates its opinion

It is not necessary ingredient of a right or a liability. It merely renders probability to the existence or non- existence of the right or liability.

4. Essentiality These are facts which are matters which are in dispute affirmed by one party and denied by the other party.

These facts are not in issue themselves but are very essential in deciding the dispute.

5. Examples A is accused of murdering B on S.B. Road, the facts in issue will be:

i. Whether A caused B’s death; and

ii. Whether A intended to cause B’s death

As regards this allegation, A sets a plea of an alibi that at the time of the occurrence of the crime he was in Pashaan. It will depend on other facts such as whether he was at another place and if he was at such place at the time of commission of the crime.

6. Cases

Babri-Masjid/ Ayodhya Case

In this case, a fact in issue was whether or not it was the land where Lord Ram was born or where the Mosque was erected?

The relevant facts would be whether such mosque had been constructed at all, whether the architectural evidence showed the same and what stands at such site in the present day.

18. Document: In general parlance, a document is any matter written upon a paper in some language. However, as per Section 3, it means any matter expressed or described upon any substance, paper, stone or anything by means of letter or marks. It includes ‘milkman’s score’; ‘exchequer’s tallies’ a ring or banner with an inscription, a musical composition, a savage tattooed with words intelligible to himself. It also includes letters or marks imprinted on trees. With technological advancement a video recording, a tape recording, electronic mails are all considered to be documents.
19. Evidence: The word evidence is derived from the Latin word evedei

meaning evident, clear, apparent or straight. Thus under S. 3 of the Act, Evidence 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. It also includes all kinds of documents (i.e. electronic records also) produced for inspection before the Court.

20. The following cannot be construed as evidence before the Court:

i. (^) Statement before the police

ii. Comments before the court under S. 313 of the CrPC as not under the oath.

iii. Any statement made in the presence of a police officer under section 25 shall not be recorded as evidence as not under oath.

iv. (^) Statements made by the accused cannot be considered as evidence as the section clearly provides that only the statement of witnesses shall be regarded as evidence. For an accused to be allowed to give evidence before the court, he needs to make an application to the Court and be under an oath. However, this is rarely done as the accused will have to face a cross-examination if he wishes to testify.

21. Instruments of Evidence:

i. Oral evidence as stated by the witnesses

ii. Documents

iii. Real Evidence or A Topic Evidence: where the Judge himself perceives in the course of the trial on the basis of demeanour of the witnesses, visiting the site at which the offence was committed, in respect of the injuries etc.

iv. Video recordings, etc.

22. In the case of N. Jayarman v. State of TN & Harischandra v. State of Delhi

it was held that the maxim ‘ falsus in uno falsus in omnibus’ which means

DIFFERENCE BETWEEN PROVED, DISPROVED AND NOT PROVED

S. No. Basis of Distinction

Proved Disproved Not Proved

1. Nature It is a positive term which the court takes into consideration to come to a certain conclusion to its satisfaction

It is a negative term and is the converse of proved i.e. it is not to the satisfaction of the Court. It is akin to being false.

It is in between proved and disproved depending on the facts and circumstances of the case.

2. Judgment by Court

When a fact is proved, the Court gives the judgment in favour of the person who proves the facts on basis of some oral or documentary evidence.

When a certain fact is disproved no further question arises about its further proof.

Chances of providing further evidence to prove such a fact is possible.

3. Illustration:

A is accused of murdering B on F.C. Road.

A states that at the time of the commission of the offence he was taking a medical test at Ratna Hospital and provided medical reports.

The Court believes this circumstantial evidence and acquits A.

The Court checks the same with the hospital, which has no records of such patient. The alibi is disproved

A takes the plea of taking a medical test but does not produce any evidence to substantiate the same.

Thus, the statement of the accused is still not proved but may be proved in due course.

3.1.2: Probability Test: Presumptions

1. The law of evidence provides that a court can take into consideration facts even without calling for proof i.e. they may presume some facts.
2. In the law of evidence presumption means an inference, affirmative or negative, of the existence of some fact, drawn by judicial tribunal, by a

process of possible reasoning from some matter of fact which is judicially noticed or admitted or established by legal evidence to the satisfaction of the court.

3. The inferences or presumptions drawn are based on the wide experience or the existence of some nexus between the facts.
4. Presumptions may be drawn from the course of nature, the course of human affairs, from the usage in society and transaction in business. For example, from the fact that a letter has been posted, a presumption may be made that it reached the addressee OR A owns a watch which is stolen and B has possession of the same watch. It may be presumed that either B stole it or received it from a thief knowing it to be stolen.
5. Presumption is of 3 kinds: (1) Presumption of fact or natural presumption; (2) presumption of law (Irrebuttable or rebuttable); (3) Mixed presumptions or presumptions of fact and law.
6. Presumptions of fact are inferences which are drawn naturally from the

observation of the course of nature and the constitution of the human mind. EX: Certified copies of foreign documents or maps; books, maps or documents of public usage when published the court shall presume that the person who published did the same.

7. Presumptions of law are of 2 kinds: (1) Irrebuttable or Conclusive; and (2)

Rebuttable.

i. Irrebuttable Presumptions: They are those legal rules which are not overcome by any evidence that the fact is otherwise. This kind of presumption of law is conclusive. EX: In a criminal case, a child below the age of 7 years shall be presumed to be innocent. No evidence to prove he was guilty shall be allowed before the court.

ii. Rebuttable Presumptions: They are certain legal rules which require a certain amount of evidence to support the allegation. Such presumptions may be rebutted by evidence of facts to the contrary. Such presumptions are conclusive in absence of such evidence. EX: a man is presumed to be innocent until he is proven guilty; a child when born in legal wedlock shall be presumed to be legitimate.

8. Mixed Presumptions: of law and fact are chiefly confined to English law of real property and the same is not provided for in Indian law.

i. It declares that in a suit or proceeding evidence may be given of the existence or non-existence of (1) facts in issue, and (2) of such other facts as are declared to be relevant in S. 6- 55 and of no others.

ii. Thus, it explicitly excludes all that which is not mentioned in Ss. 6 to 55. A party trying to adduce evidence has to show that such evidence adduced is relevant under any of the sections as mentioned. All evidence excluded by the Act shall be inadmissible even if it helps in the ascertainment of truth.

iii. The Court must thus come to a conclusion by confining and considering itself strictly to the provisions of the Act and come to the conclusion of the relevancy of a fact on basis of the Act and not by way of common sense or otherwise.

iv. A court cannot on the basis of public policy exclude evidence relevant under the Act.

v. Relevancy is a question of law to be decided by the Judge and shall be decided when raised and not when the judgment is being given. If there is a doubt with regard to the relevancy, the Court must declare in favour of the relevancy rather than irrelevancy.

vi. Evidence that is partly relevant and partly irrelevant, if inseparable shall be declared as wholly inadmissible. If separable on the other hand, the relevant evidence can be separated from the irrelevant evidence, then only the relevant evidence shall be admissible.

vii. If the evidence is irrelevant and admitted it can be objected to at any stage even in the highest appellate court. However, if the evidence is relevant and the proof is improper and the evidence is admitted, no objection can be raised.

viii. The question of relevancy being a question of law may be raised at any stage, however the question of proof being a question of procedure can be waived.

ix. In case of a document, if it is admitted as an exhibit, no objection can be raised. Any objection shall be raised before the marking of a document as an exhibit. Thus a document cannot be de-exhibited at a later stage on the ground that it is not legally proved.

x. In the explanation to S. 5 it is clearly stated that a person has the right to present evidence in a Court of law if that evidence is relevant under S. 6- S. 55; however, if some provision of the CPC disentitles a person to give evidence with respect to a particular fact, he will not be entitled as of right to adduce evidence in that court. For example, a document which has not been submitted to the Court at the time of filing of the suit cannot be brought before the Court at any later stage.

DISTINCTION BETWEEN ADMISSIBILITY AND RELEVANCY

S. NO. ADMISSIBILITY RELEVANCY

1. It is not based on logic but strict rules of law

It is based on logic and probability

2. The rules of admissibility are described after S. 56 of the Act

The rules for relevancy are described in Ss. 6 to 55.

3. The rules of admissibility are to declare whether certain type of relevant evidence is to be admissible or not.

The rules of relevancy declares what is relevant.

4. Admissibility is means and of modes for admissibility of relevant evidence.

Rules of relevancy are where evidence is admissible.

5. The facts which are admissible are necessarily relevant.

The facts which are relevant are not necessarily admissible.

2. Section 6: Principle of Res Gestae

i. It states that the facts which are so connected with the facts in issue that they form a part of the same transaction are relevant facts. Ss. 6-9 lay down the various ways by which the facts are connected to principal facts thereby making them relevant. Hearsay evidence under this section shall be relevant if it forms a part of the same transaction. Thus res gestae is an exception to the rule of hearsay evidence not being admissible. (Gentala Rao v. State of AP)

ii. Same transaction has not been defined anywhere in the act but Stephens states that a transaction is a group of facts, connected together to be referred to by a single legal name whose subject of enquiry is an issue.

iii. The test to determine whether a fact forms a part of the same transaction depends on whether they are related to each other in point of purpose, cause and effect, as probable or subsidiary acts to constitute one continuous action.

iv. To ascertain whether a series of acts are parts of the same transaction, it is essential to see whether they are linked together in such a way to form a continuous whole.

v. This section is based on the principle of res gestae.

vi. The latin word ‘res’ means thing and ‘res gestae’ means things done, transaction or essential circumstance surrounding the subject.

vii. This has been used in 2 senses. In the restricted sense it means world’s happenings out of which the right or liability in question arises. Thus it should be so connected to the transaction to form a part of such transaction. In the wider sense, it covers all the