The dynamic changing society fails to believe in the words of mouth, rather they prefer written, documented statements to believe the facts of the same. Thus, evidence plays a very important role in establishing the occurrence of events that had taken place or which gradually would be taking place. Therefore, in order to establish the happening or non-happening of events, evidence also plays a very important role in the Court of Law.

 

The law of evidence is, therefore, based on reasoning and logic. Without a proper piece of evidence to determine the merit of the case in the Court of the Law, there will be much delay in trial to ascertain and give justice to the people. Thus, the very idea of the formation of the Indian Evidence Act is to give power to the judiciary and help them to decide the case and give a verdict of conviction and acquittal depending on the facts and evidence brought before it. Therefore, the Indian Evidence Act, 1872 is a mode or an instrument through which the court upheld its functions by reaching the truth of each case.

The Indian Evidence Act, 1872 was passed on 15th March 1872 and enforced on 1 st September 1872. The Indian Evidence Act is divided into three main Parts:

 

Relevancy of Facts (Chapter I containing Section 1-4 deals with ‘Preliminary points’; Chapter II containing Section 5-55 deals with ‘Relevancy of facts’).

 

Mode of Proof (Chapters III containing Section 56-58 deals with ‘Facts which need not be proved’; Chapter IV containing Section 59-60 deals with ‘Oral evidence’; Chapter V containing Section 61-90A deals with ‘Documentary evidence’; Chapter VI containing Section 91-100 deals with ‘Exclusion of oral by documentary evidence’).

 

Production and Effect of Evidence (Chapters VII containing Section 101-114A deals with ‘Burden of proof’; Chapter VIII containing Section 115-117 deals with ‘Estoppel’; Chapter IX containing Section 118-134 deals with ‘Witnesses’; Chapter X containing Section 135-166 deals with ‘Examination of witnesses’; and Chapter XI containing Section 167 deals with ‘Improper admission & rejection of evidence’).

 

Sir James Stephen define Law of Evidence as- “The law of evidence is that part of the law of procedure, which with a view to ascertain individual rights and liabilities in individual cases, it decides:

 

What sort of evidence must be given to a fact which may be proved and By whom and in what manner the evidence must be given by which any fact is proved.”

Law Evidence is “Lex fory”:- Maxim “Lex fory” means the law of place of the action. The law of evidence is ‘lex fory’. Whether certain evidence proves a certain fact or not is to be determined by law of the country where the question arises, where the remedy is sought to be enforced and court sits to enforce it.

 

So, law of evidence deal with modes of Leading evidence as well as regulating that evidence of which fact can be given in court. The main object of the law of evidence is to assist the court in judging what facts are relevant to ascertain the truth and to avoid the confusion and how such relevant facts will be proved in courts by lawfully leading the evidence.

 

 

Subjective Law

Adjective Law.

 

Law of Evidence is law of procedure i.e. adjective law. Evidence Act does not define rights or liabilities under the law but only prescribe the mode by which rights or liabilities of parties is as curtained. Therefore it is adjective law and helps in implementing the substantive law.

 

The Indian Evidence Act, 1872 is mainly based on the English law of evidence. The Act consolidates, defines and amends the law of evidence. The Act, however, is not exhaustive, i.e. it does not purport to contain all the rules of evidence. For the interpretation of the sections of the Act, the courts can look to the relevant English common law. However, the courts cannot import any principle of English law which is inconsistent with what is laid down by the Act.

 

Sections 3 of the Indian Evidence Act 1872, defines certain important terms which must be understood in order to facilitate a better interpretation of the provisions of the Act.

 

The term “Court” is inclusive of the following:

 

All Judges;

All Magistrate; and

All persons legally authorized to take evidence, except arbitrators.

 

The term “fact” means “an existing thing?. But under the Evidence Act, the meaning of the word is not limited to only what is tangible and visible or, is any way, the object of sense.

 

The word “relevant? has two meanings. In one sense, it means, “Connected” and in another sense “admissible”. One fact is said to be relevant to another, when the one is connected 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 the Evidence Act relating to the relevancy of facts (Sections 5-55). In other/ simple words, a fact is said to be relevant to another, if it is connected there with under the provision of the Evidence Act. The expression “relevancy? means “connection between one fact and another”.

 

The expression “Facts in issue” refers to facts out of which a legal right, liability or disability arises and such legal right, liability, or disability is involved in the inquiry and upon which the Court has to give the decision. The question as to what facts may be “facts in issue” must be determined by substantive law or the branch of procedural law which deals with pleadings. Generally, in criminal cases the charge constitutes the facts in issue whereas in civil cases the facts in issue are determined by the process of framing of issues (Order 14 of CPC).

 

The word “Document? in the general parlance is understood to mean any matter written upon a paper in some language such as English, Hindi, Urdu and so on. Under the Evidence Act it means “any matter expressed or described upon any substance, paper, stone, or anything by means of letters or marks. According to Section 3 of the Indian Evidence Act, 1872, “Document” means any matter expressed or described on 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 recoding that matter.

 

Illustrations: Writing is a document. Words printed, lithographed or photographed are document: A map or plan is a.document: an inscription on a metal plate or stone is a document: A caricature is a document. The word “Documents? literally means “written papers”.

 

“Evidence? means and includes–

 

All statements which the Court permits or requires to be made before it by Witnesses, in relation to matter of facts under inquiry; such statements are called oral evidence;

All document (including electronic records produced for the inspection of the Court; such documents are called documentary evidence”.

 

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.

 

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 ma ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. The definition of the expression disproved is converse of the definition of the expression proved.

 

A fact is said to be proved when it is neither proved nor disproved. A fact is said to be not proved when neither its existence nor its non-existence is proved. In other words, the man of ordinary prudence neither believes that the fact exists nor he believes that the fact does not exist.

 

Section 4 of the Indian Evidence Act; 1872 provides for three types of presumptions namely, May Presume, Shall Presume and conclusive Proof. It runs as follows:

 

May Presume:– Whether 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 the 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.

 

Presumptions may be classified as follows:

 

Presumption of Fact or Natural Presumption or May Presume (Section 86–88, 90, 113A and 114)

Presumption of Law or Artificial Presumption–

Rebuttable Presumptions of Law or Shall Presume (Section 79–85, 105, 111A, 113B and 114A)

Irrebuttable Presumptions of Law or Conclusive Proof (Section 41, 112 and 113)

 

Section 86–88, 90, 113A and 114 lay down the provision relating to Presumption of Fact or Natural Presumption or May Presume as stated below:

 

Section 86 “Presumption as to certified copies of foreign judicial records”

Section 87 “Presumption as to books, maps and charts”

Section 88 “Presumption as to telegraphic messages”

Section 90 “Presumption as to documents thirty years old”

Section 113A “Presumption as to abetment of suicide by a married woman”

Section 114 “Court may presume existence of certain facts”

 

Section 79–85, 89, 105, 111A, 113B and 114A lay down the provisions relating to “Rebuttable Presumptions or Shall Presume” as stated below: | Section 79 | “Presumption as to genuineness of certified copies” |

 

Section 80 “Presumption as to documents produced as record of evidence”

Section 81 “Presumption as to Gazettes, newspapers, private Acts or Parliament and other documents”

Section 82 “Presumption as to document admissible in England without proof of seal or signature”

Section 83 “Presumption as to maps or plans made by authority of Government”

Section 84 “Presumption as to collection of laws and reports and decisions”.

Section 85 “Presumption as to powers-of-attorney”

Section 89 “Presumption as to due execution, etc., of documents not produced”

Section 105 “Burden of proving that cause of accused comes within exceptions”

Section 111A “Presumption as to certain offences”

Section 113B “Presumption as to dowry death”

Section 114A “Presumption as to absence of consent in certain prosecution for rape”

 

Section 41, 112 and 113 of the Indian Evidence Act, 1872 lay down the provisions relating to “Conclusive Proof or Irrebuttable of Law” as stated below:

 

Section 41 “Relevancy of certain judgments in probate, etc. Jurisdiction”

Section 112 “Birth during marriage, conclusive proof of legitimacy”

Section 113 “Proof of cession of territory”

 

 

Relevancy is the ultimate touchstone for determination of the admissibility of evidence. It is due to this fundamental rule of the Law of Evidence that the terms ‘relevancy’ and ‘admissibility’ are often used interchangeably. It must be noted that both the concepts are quite distinct from each other. For instance, a confession made by an accused to his wife may be relevant but is inadmissible since it falls within the purview of ‘Privileged Communications’ under the Indian Evidence Act, 1872. It may be stated that all that is admissible is relevant but all that is relevant may not be admissible. Let us further evaluate the difference between relevancy and admissibility.

 

Admissibility refers to the question as to whether the court must consider a relevant fact in deciding upon the issue or not. A fact is admissible only if it does not infringe any of the rules of exclusivity provided by law. Thus, logically relevant facts are relevant but may not be admissible whereas legally relevant facts are relevant as well as admissible. Relevancy is a question pertaining to the tendering of evidence before a court of law and is for the lawyers to decide. 

 

Doctrine of Res- gestae: The doctrine of Res gestae is expressed under section 6 of the Indian Evidence Act, 1872 in the following words- “Facts which though not in issue are so connected with the facts in issue so as to form a part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places”

 

Section 8 of the Indian Evidence Act talks about the importance and of motive, preparation, conduct(previous & subsequent) in various cases. And it is a well-known fact that Motive & Preparation are among the first act before any conduct. Therefore Section 8 explains the importance of motive, preparation and conduct where there are no direct evidence and the facts are proven on the basis of circumstantial.

 

 

The Supreme Court of India interpreted ‘preparation’ as a word which denotes the action or preparation of any act and also those components which are prepared. Preparation includes arranging the essentials objects for the commission of a crime/offence.

 

Conduct- Section 8 of The Indian Evidence Act also defines ‘conduct’, conduct here means an external behaviour of a person. To check if the conduct of a person is relevant to the incident then the court must establish a link between the conduct of a person who committed the crime and the conduct of incident.

 

Conspiracy- Conspiracy means few people come together to do an act with common intention. So in the same context, a criminal conspiracy is the act of at least two or more persons to do an act which is not authorised by the law i.e., an illegal act, or to do a legal act by illegal means.

 

Alibi- The word ‘Alibi’ is derived from the Latin word, which means ‘elsewhere’. Section 11 of the Indian Evidence Acts explains the concept of ‘Facts not otherwise relevant become relevant’ and makes the provision as a defending ground for the accused. The simplest meaning of this section is a condition when the incident took place and the accused is charged for the incident then he may make defend him on explaining that at the time of the incident he was not present at the location. Although previously it was not relevant for the court to know that where he was as the investigation showed that he committed the crime but his explanation that he was not at the place of incident make the irrelevant facts a relevant fact. The important part of Section 11 of the Evidence Act is that this rule is only accepted in the course of admission of the evidence and no other statute provides such rule.

 

Confession- Section 23 of the Indian Evidence Act defines the word “confession” is an admission of crime by a criminal or suggesting the inferences that he committed a wrongful act, confession can be made at any time during the trial.

 

Magistrate duty of recording the confession- A Judicial Confession is made to the Magistrate during the judicial proceeding or at the time of court trial. Judicial Confessions are very relevant and are considered as one the most important type of confession as they are directly recorded by the court. Section 164 of CrPC empowers a magistrate to record a confession in his presence and such confession will hold enough evidentiary value that the confessor can be held guilty. Rajasthan High Court has also held that the confession of an accused must be free, voluntary and genuine that nothing is left with the prosecution to prove any fact then only the person can be convicted on the basis of confession.

 

The word “Dying Declaration” means any statement is written or verbal of relevant facts made by a person, who is dead or it is the statement of a person who had died explaining the circumstances of his death.

 

The concept of dying declaration was evolved from a legal maxim, ‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his maker with a lie in his mouth. Although it may sound impractical but our law has adopted this concept and functions accordingly. Section 32(1) specifically deals with the concept of dying declaration in respect of a cause of death and it is assumed that such statements are relevant even whether the person who made them was not at the time when they were made.

 

Bentham, explains the ‘witnesses’ as the eyes and ears of justice. But the general definition of ‘witness’ is- A witness is a person who voluntarily provides evidence to clarify or to help the court in determining the rights and liabilities of the parties in the case. Witnesses can either be the person related or experts with valuable input for the case. 

 

Section 118 of the Indian Evidence Act lays down certain rules that ‘who may testify’ the rule expresses the provisions that all personnel shall be competent to testify by the court unless the witnesses are protected by some other provision that they cannot understand the question presented before them to testify any facts and such exceptions can be related to extreme old age, chronic disease, being legally unsound etc

 

Section 135 specifically talks about the order of production and examination of witnesses. It lays down certain rules which specify that the witness can be produced in a particular order only, and shall be examined according to the rules. It also gives discretionary powers to the Court that when there is an absence of law then the order of witness and examination of witnesses will be carried out in the prescribed manner as the Court dictates.

 

Section 136 empowers a discretionary power to the Court that it is up to the Court who accept the evidence or not.

 

 

Examination In Chief: When the advocate itself introduces his witness and examines them, no matter whether they are the plaintiff or the defendant, then such examination is known as ‘Chief Examination’. It is always preferable that the questions should be properly ordered to maintain the structure of the information. It is advised that only relevant questions should be asked and no leading questions should be asked.

 

Cross Examination: The other name of cross-examination is ‘examination exadverso’. Such examinations are utilised to testify or impeach the credibility of a witness produced by the other party.

 

Re-Examination: Re-examination is the process of second and subsequent examination by the suffering party. When the council thinks that there is a need of examining his witness again because new facts are availed by the defence party in the course of cross-examination then he may with the permission of the court re-examine his own witness to testify the new facts.