Law of Evidence

History of law of Evindence in India

The origin of the concept of evidence can be traced back to
the Ancient Hindu Period, for that Hindu Dharma Shastra
has to be referred. It has been laid down in the Hindu
Dharma Shastras that “the purpose of any trial is the
desire to find out the truth”. Yajnavalkya says: “Discarding
what is fraudulent; the King should give decisions in
accordance with the true facts
Three kinds of evidences has be laid down by Vasistha which
are, Likhitam Sakshino Bukhti Parmanam Trividham
Smritham i.e. Lekhya (Document), Sakshi (Witnesses) and
Bukhthi (Possession).
 History of law of Evidence
• Evidence under Muslim law is divided under the heads of oral
and documentary. The oral evidence is further sub-divided into
direct and hearsay .Furthermore, the law givers followed the
following order of merit, viz., full corroboration, testimony of a
single individual and admission including confession.
Documentary evidences were also recognised by the Ancient
Muslim law. However, Oral evidence appears to have been
preferred to 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.
 History of law of Evidence
• The present enactment governing evidence’s admissibility in the court
of law is a result of British period. Before this time, the rules of
evidence were based upon the local and traditional legal systems of
different social groups residing in India. These rules were different for
almost every social group, caste, community etc which created chaos
in the legal prevalent legal system of that time. After the advent of
British East India Company in the dominion of India, it was granted
royal charter by King George I in 1726 to establish Mayor’s courts in
Bombay, Madras and Calcutta.  These courts followed the English rules
of evidence law. On the other hand, outside these towns in mufassil
courts, there were no definite law relating to evidence. Hence,
Muffasil courts were having unfettered power in relation to evidence
laws. This difference in laws resulted in chaos in the Muffasil courts
 History of law of Evidence
• There was a dire necessity for the codification of the rules of law. In 1835
the first attempt was made to codify the rules of evidence by passing the
Act, 1835. Between 1835 and 1853 about eleven enactments were
passed dealing with the law of evidence. But all these enactments were
found inadequate.
• In the year 1868, a commission was set up under the chairmanship
of Sir Henry Mayne. He submitted the draft, which was later found
unsuitable to Indian conditions. Later in the year 1870, this task of
codification of the rules of law of evidence was entrusted to Sir James Fitz
James Stephen. Stephen submitted his draft and it was referred to the
select committee and also to High Courts and members of Bar to elicit the
opinion, and, after gathering opinion, the draft was placed before the
legislature and it was enacted. And at last, “The evidence Act ” came in to
force on 1st September, 1872.
 History of law of Evidence
• The Evidence Act, identified as Act no. 1 of
1872, and called as the Indian Evidence Act,
1872, has eleven chapters and 167 sections,
and came into force on 1st September 1872
• Spread Over a period of approximately 148
years since its enactment, the Evidence Act has
predominantly retained its original form except
certain amendments from time to time. 
 Course: Law of Evidence
 

 
Syllabus
•Unit I:
•Introduction to Law of Evidence:
•Purpose of the Law of Evidence, History of the Law of Evidence, The British Principles of Evidence , Salient Features of the Indian Evidence Act, 1872 , Kinds of Evidence.
•Unit II:
•Theory of Relevancy:
•Presumptions, Facts in Issue, Relevant Facts, Admissibility and Relevancy.
•Unit III:
•Facts, Relevancy (Section 6-16):
•Doctrine of Res Gestae, Proof of Conspiracy, Problems of Relevancy of Facts not Otherwise Relevant, Proof of Custom, Facts Concerning State of Mind and Body.
•Unit IV:
•Admissions and Confessions(Section 17-31):
•General Principles Concerning Admissions, Involuntary Confessions made by “Inducement, Threat or Promise, Confession made to Police Officer , ‘Custodial’ Confessions, Statements Leading to Discovery of Facts, Confession by Co-accused.
•Unit V:
•Statements by Persons who cannot be called as Witnesses:

•Persons who cannot be called as Witnesses, Dying Declaration, Other Statements, Statements made in Judicial Proceedings, Statements made under Special Circumstances.
•Unit VI:
•Relevancy of Judgments(Section 52-55):

•Relevance of Previous Judgments, Judgments as Conclusive Proof, Judgments When Irrelevant, Fraud or Collusion in Obtaining Judgment.
•Unit VII:
•Relevancy of Opinion and Character:
•Expert Evidence, Opinion in Other Cases when Relevant, Relevance of Character.
•Unit VIII:
•Oral and Documentary Evidence:
•Primary and Secondary Evidence, Circumstances under which the secondary evidence is allowed, Oral Evidence, Documentary Evidence, Public and Private Documents, Exclusion of Oral Evidence by Documentary Evidence, Rules for Interpretation or Construction of Documents.
•Unit IX:
•Presumptions(Section 79-88 and 111-A-114-A):
•Presumption as to Documents, Presumption as to Public Documents, Presumption as to Ancient Documents.
•Unit X:
•Burden of Proof and Onus of Proof (Section 101-114-A):
•Facts which need not be proved, Principles of Burden of Proof, Standard of Proof in Civil and Criminal Proceedings, Presumptions.
•Unit XI:
•Estoppel (Section 115-117)
•Doctrine of Estoppel , Classification of Estoppel , Estoppel, Res Judicata and Waiver, Promisory Estoppel and Equitable Estoppel.
•Unit XII:
•Competency and Compellability of Witnesses (Section 133, 114):
•Competency of Witnesses, Compellability of Witnesses (Privileged Communications), Accomplice Evidence, Hostile Witness.
•Unit XIII:
•Examination of Witnesses:
•Kinds of Examination of Witnesses, Cross-examination of Witnesses, Contradictory and Corroborative Evidence, Powers of Judges regarding Witnesses, Improper Admission and Rejection of Evidence, Leading Questions, when it can/can not be asked.
• 
•Suggested Readings:
•1. Lal Batuk, The Law of Evidence, 13th Edition, Central Law Agency, Allahabad, 1998.
•2. Munir M., Principles and Digest of the Law of Evidence, 10th Edition (in 2 vols), Universal Book Agency, Allahabad, 1994.
•3. SaradhiVepa P., Law of Evidence, 4th Edn. Eastern Book Co., Lucknow, 1989.
•4. Singh Avtar, Principles of the Law of Evidence, 11th Edn. Central Law Publications.
•5. Chary V. Krishnama, The Law of Evidence, 4th Edn. S.Gogia& Company.
• 6. Woodroffe and Ali Amir, Law of Evidence, 20th Edition 4 Vol. Set,Lexis Nexis, 2017
• 7.Phipson, on evidence
• 8.Wigmore, on Evidence
Salient features of law of evidence in India

• Based on common law

• It is procedural law
• It is not exhaustive
• Applies to judicial proceedings
• Discretion of the court
• Both oral and documentary evidence
• Protection and privileges of witnesses
• The object is to find out truth
 Evindence

• Evidence Means – To show clearly or to

discover , to ascertain , to prove
• Law of evidence is a system of rules for
ascertaining the controverted questions of
facts in judicial enquiries.
• The word evidence is derived from the latin
word evident or Evidere .
 Object of Law of evidence in India

- To help the courts to ascertain the truth.

- To prevent protracted inquiries.
- To avoid confusion in the minds of judges which
may result from the admission of evidence in
access.
- To prevent indiscipline in the admission of
evidence by enacting a correct and uniform rule
of practice.
• There are 167 section and 3 parts in indian evidence
act.
• The law of evidence is the lex fori - which governs
the court – whether witness is competent or not;
whether a certain fact requries to be proved by
writing or not ; whether certain evidence proves a
fact or not ; that is to be determined by the law of
the country where question arises,where the
remedy is sought to be enforced and where the
court sits to enforce it.
 Section 3
• Interpretation clause. —In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:—
• 
• “Court”. —“Court” includes all Judges  and Magistrates,  and all persons, except arbitrators, legally authorized to take evidence.
• 
• “Fact”. —“Fact” means and includes—
• (1) any thing, state of things, or relation of things, capable of being perceived by the senses;
• (2) any mental condition of which any person is conscious.
• 
• Illustrations
• (a) That there are certain objects arranged in a certain order in a certain place, is a fact.
• (b) That a man heard or saw something, is a fact.
• (c) That a man said certain words, is a fact.
• (d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
• (e) That a man has a certain reputation, is a fact.
• 
• “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.
• 
• “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.
• Illustrations
• A is accused of the murder of B. At his trial the following facts may be in issue:—
• That A caused B's death;
• That A intended to cause B's death;
• That A had received grave and sudden provocation from B;
• That A at the time of doing the act which caused B's death, was, by reason of unsoundness of mind, incapable of knowing its nature.
• 
• “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. Illustrations A
writing  is a document; Words printed, lithographed or photographed are documents; A map or plan is a document; An inscription on a metal plate or stone is a document; A caricature is a document. “
• 
• Evidence” .— “ Evidence” means and includes—
• 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 electronic records produced for the inspection of the Court], such documents are called documentary evidence.
• “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. 
• 
• Principal facts(factum probandum)
• Evidentary facts(factum probans)

• Types of evidences

• Direct evidence – it is testimony of the witnesses as to the principal fact to be proved. It also includes production
of an original document. The fact of the marriage between certain person may be proved by producing the
wedding photograph.
• Circumstantial evidence-
• Real evidence
• Hearsay evidence
• Primary evidence
• Secondary evidence
• Oral evidence
• Documenatary evidence
• Conclusive evidence

• In Criminal case the degree of proof is beyond reasonable doubt.

• In civil case the degree of proof is preponderance of probablities .
 Section 4 - presumption
• May Presume. Shall presume .Conclusive proof
• "May presume". -- Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may
call for proof of it.

• "Shall presume". -- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.
•
"Conclusive proof". -- When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and
shall not allow evidence to be given for the purpose of disproving it.

Presumption is an inference of fact drawn from other known or proved facts

• presumption 1 --- Presumption of fact
2--- presumption of law
1- Presumption of fact or Natural presumption---
They are always permissive ,rebuttable and do not constitute a branch of jurisprudence. Inference is drawn from logic.
They are indicated in the act by the expression “may presume “ example section 6,7,8,9, 86,87,88,114
2- Presumption of law or Artificial presumption-
They are always obligatory ,may be rebuttable or irrebuttable and constitute a branch of juriprudence. There is no application of logic.
Presumption of law is of two type 1---Rebuttable presumption of law
2- Irrebuttable presumtion of law
1-Rebuttable presumption of law - They are indicated in the act by the expression “shall presume “ example section 79 to 85, 89 to 105 ,107,108,
A man is presumed innocent until he is proven guilty.
2- Irrebuttable presumption of law - They are indicated in the act by the expression
Conclusive proof example section – 41( final decree)
Section 82 of IPC – Nothing is an offence which is done by a child under seven years of age
 Section 5,6
• Section – 5 Evidence may be given of facts in issue and relevant facts
• Evidence may be given in any suit or proceeding of the existence of non-existence of every fact in issue and of such other
facts as are hereinafter declared to be relevant, and of no others.
Explanation.-- This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any
provision of the law for the time being in force relating to Civil Procedure 1.
Illustrations
(a) A is tried for the murder of B by beating him with a club with the intention of causing his death.
At A's trial the following facts are in issue:--
A's beating B with the club;
A's causing Bs death by such beating;
A's intention to cause Bs death.
(b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which
he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the
proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure 1.

• Difference between adimisibility and relevancy

•  
1)Relevancy is based on logic and probability

Admissibility is not based on logic but on strict rules of law.

• 2)The rules of relevancy are described from Section 5 to Section 55 of Evidence Act, 1872.

The rules of admissibility is described after Section 56 of Evidence Act, 1872

• .3)
• The rules of relevancy declare what is relevant.
• Res gestae – things said or done in the course
of transaction .