Indian Evidence Act, 1872 : an overview | Criminal Law - CLAT PG PDF Download

Introduction

• The term “law” can refer to any rule or standard that people must follow. Laws are divided into two main categories: substantive laws and adjective laws.
• The law of evidence is considered part of adjective law. It deals with how substantive laws are applied in legal proceedings.

Key Concepts in the Law of Evidence

• Relevancy: This refers to whether a piece of evidence is related to the case and helps to prove or disprove a fact in question.
• Admissibility: This refers to whether a piece of evidence can be accepted in court. Not all relevant evidence is admissible, as there are rules about what can be presented to the judge or jury.

Difference between Relevancy and Admissibility

• Relevancy is concerned with the relationship between the evidence and the facts of the case, while admissibility deals with whether the evidence can be legally presented in court.
• Evidence can be relevant but not admissible if it violates legal rules, such as being hearsay or obtained illegally.
• For example, a witness's testimony about seeing the defendant at the scene of the crime is relevant, but if the witness was not allowed to testify for legal reasons, the evidence would not be admissible.

Importance of Relevancy and Admissibility

• Determining what evidence can be presented in court is crucial for a fair trial and the pursuit of truth.
• Judges decide on the relevancy and admissibility of evidence based on legal standards and rules.

Types of Evidence

• Direct Evidence: Evidence that directly proves a fact, such as eyewitness testimony or a video recording.
• Circumstantial Evidence: Evidence that suggests a fact by implication, such as fingerprints found at a crime scene.
• Documentary Evidence: Written documents, such as contracts or emails, used to prove a point in court.
• Expert Evidence: Testimony from an expert in a specific field, such as a doctor or forensic scientist, to explain complex issues to the court.

Presumptions in Evidence Law

• Presumptions are legal assumptions made by the court regarding certain facts, which can be rebutted by evidence to the contrary.
• There are two types of presumptions:
• Rebuttable Presumptions: Can be challenged and overturned with evidence. For example, a presumption of innocence in criminal cases.
• Irrebuttable Presumptions: Cannot be disputed, such as the presumption of a person's age based on their birth certificate.

Burden of Proof

• The burden of proof refers to the obligation of a party to prove their claims in a legal dispute.
• In criminal cases, the prosecution must prove the defendant's guilt beyond a reasonable doubt.
• In civil cases, the burden is usually on the plaintiff to prove their case by a preponderance of the evidence.

Best Evidence Rule

• The best evidence rule requires that the original document or evidence be presented in court unless there is a valid reason for not doing so.
• If the original is unavailable, a copy may be used, but the party must explain why the original is not being presented.

Witness Testimony

• Witnesses play a crucial role in providing evidence through their testimony.
• Witnesses must be competent to testify, meaning they have the capacity to understand and communicate their observations.
• Witnesses can be challenged on their credibility and reliability during cross-examination.

Concept of Evidence Law

Before understanding "evidence law," it's important to clarify what "evidence" means. The word evidence comes from the Latin term 'Evidera,' which signifies clarity, transparency, and the ability to prove facts.

Meaning of Evidence

• In its basic sense, evidence refers to something that is clear, obvious, or well-known. It is used to indicate something that helps prove a point. The main fact that needs to be proven is called the principal fact, while the supporting fact that helps establish it is called the evidentiary fact. In simple terms, evidence serves as the eyes and ears of the court.
• Familiar definitions of evidence include:
• Sir William Blackstone: Evidence shows or confirms the truth of the facts in question.
• Faylor: Evidence includes all means that help prove or disprove a matter under judicial investigation.
• Dr. Johnson's Dictionary: Evidence means the state of being clear or obvious.
• Bentham: Evidence is any matter of fact that influences the mind about the existence of another matter of fact.
• Wigmore: Evidence is any knowable fact or group of facts presented before a legal tribunal to persuade it about the truth of a proposition.
• Stephen: Evidence can refer to words and things presented by witnesses in court or the facts inferred from those words or things.

In summary, evidence is anything that helps confirm or deny the existence of a stated fact. The party making a claim must prove the existence of the fact, while the party denying it must disprove its existence or prove its non-existence.

Definition of Evidence under the Indian Evidence Act

As per Section 3 of the Indian Evidence Act, 1872

• ‘Evidence’ means and includes the following:
• All statements made before the Court by witnesses about matters of fact under investigation, which the Court permits or requires; such statements are referred to as oral evidence;
• All documents (including electronic records) presented for the inspection of the Court; such materials are referred to as documentary evidence.

In the case of Kalyan Kumar Gogoi v. Ashutosh Agnihotri and Anr, AIR 2011

• The Supreme Court made the following observations on evidence, the word ‘evidence’ has been used in common parlance in three different senses:
• As equivalent to relevant
• As equivalent to proof
• As equivalent to the material, based on which Courts conclude the existence or non-existence of disputed facts.

Historical Background of Law of Evidence in India

The history of the law of evidence in India is closely linked to the British colonial period when the British introduced legal reforms in the country. Here’s a brief overview of its historical background:

1. Pre-Colonial Period

• Before British rule, India had various customary practices and local laws governing evidence and its admissibility in courts.
• Different regions had their own traditions regarding what constituted acceptable evidence in legal disputes.

2. British Colonial Era

• In the 19th century, the British colonial administration sought to standardize and codify legal practices across India.
• In 1855, the British introduced the Indian Evidence Act as part of a broader effort to systematize the legal framework.
• The Act aimed to bring uniformity in the rules governing evidence and its admissibility in courts throughout India.

3. Adoption of the Indian Evidence Act

• The Indian Evidence Act, 1872, was enacted by the British Parliament and came into force in India.
• The Act was influenced by English common law but was tailored to suit the Indian context.
• It laid down clear guidelines on what constitutes evidence, how it should be presented, and the rules governing its admissibility in legal proceedings.

4. Post-Independence Period

• After India gained independence in 1947, the Indian Evidence Act continued to be in force.
• However, certain amendments and modifications were made to align it with the changing needs of the Indian legal system.
• The Act remains a crucial part of the Indian legal framework, governing the admissibility and presentation of evidence in courts across the country.

5. Contemporary Relevance

• Today, the law of evidence in India plays a vital role in ensuring fair and just legal proceedings.
• The Indian Evidence Act serves as a foundational legal document, guiding judges, lawyers, and litigants in matters related to evidence and its presentation in courts.

Hindu Period

• The Hindu Dharmashastras provide valuable insights into the law of evidence, emphasizing the importance of distinguishing truth from falsehood in legal proceedings.
• Similar to how a surgeon skillfully removes an arrow from the body, the trial process aimed to extract the truth from the evidence presented.

Categories of Evidence in Dharmashastras

Lekhya (Documentary Evidence)

Documentary evidence, or Lekhya, was sometimes considered less reliable than oral evidence (Sakshi) due to its potential flaws. To address these issues, the Dharmashastris devised measures to mitigate the shortcomings of Lekhya Sakshya.

For instance, documents produced or attested by corrupt individuals were deemed invalid. Similarly, documents authored by women, minors, or dependent individuals were also considered unlawful.

Sakshi (Oral Evidence)

Oral evidence, or Sakshi, was sometimes favored over documentary evidence (Lekhya) despite its imperfections. The Dharmashastris recognized the need to address the flaws associated with oral evidence.

For example, documents produced or attested by corrupt individuals were deemed invalid. Similarly, documents authored by women, minors, or dependent individuals were considered unlawful.

Lekhya-Praman (Documentary Evidence)

Lekhya-Praman, as defined in texts like the Narada, Vishnu Dharmashastra, and Katyayan, refers to documentary evidence that is written in accordance with established rules, beyond doubt, and meaningful.

Typically, documents required the attestation of two witnesses, although more important documents necessitated the attestation of more than two witnesses.

Lekhya (Document)

• Lekhya was further divided into three categories:
• Rajya Sakshayak: A document written in court by the King’s clerk, akin to a registered document.
• Sakhshyak: A document signed by witnesses and written by a private individual.
• Asakhshyak: A handwritten paper produced by the parties themselves.

Sakshi (Oral Evidence)

The rules governing Sakshi, or oral evidence, exhibited significant differences between civil and criminal matters. Ancient legal traditions played a crucial role in shaping norms regarding the competency of witnesses.

Nyayadhish (Judges) would interrogate witnesses and scrutinize their expressions while responding to questions before determining their credibility.

Bhukti or Bhog

• Bhukti or Bhog, meaning possession, was a crucial legal concept in ancient India, particularly concerning land disputes.
• Agriculture was the main source of income, and disputes over land possession were known as Bhukti.
• There were two types of Bhukti:Bhukti Sagma(with right) and Anagama Agam(origin), which referred to the source of ownership, such as purchase, gift, or inheritance.
• The concepts of Agam and prescription, or use of the property, were weighed against each other.
• Narada stated that a person proving only the use of property without Agam could be punished as a thief, even after long-term use.
• Different legal scholars had varying views on the impact of property usage on ownership.
• Some authors suggested a short period of Bhukti after which ownership could end, emphasizing the need for prompt reclamation of property.

Divya i.e. Divine Tests or Ordeals

• Divya, meaning divine tests or ordeals, was used in ancient India to resolve disputes when evidence was insufficient.
• These tests appealed to supernatural powers to determine a person's guilt or innocence.
• For instance, a person who survived fire, water, or poison was considered innocent.
• Over time, Divya was applied in exceptional circumstances where regular evidence was unavailable.
• In minor financial disputes,'Kosh' Divya was accepted.
• Prominent figures like Yajnavalkya, Narada, and Brahaspati recommended Divya only when other forms of evidence were lacking.
• Different types of Divya were assigned to various social classes, with Brahmins exempt from certain ordeals.

Islamic Period: Rules of Evidence

Types of Evidence

• Oral Evidence: Subdivided into direct and hearsay evidence. Oral evidence was preferred over documentary evidence.
• Documented Evidence: Written records presented as evidence.

Quranic Guidance on Oral Evidence

• The Quran emphasizes the importance of being a just witness, even against oneself or close relatives.
• Sura 5:8: Believers are urged to stand firm for justice and not be influenced by hatred.
• Sura 4:135: Believers are reminded to uphold justice impartially, regardless of personal feelings or circumstances.

Modern Period

Introduction to English Law

The Charter of 1726 established English common law and statutory law in the Presidency Towns of Calcutta, Madras, and Bombay. The Courts created by the Royal Charter in these towns were responsible for enforcing English law. In the Mofussil territories, outside the Presidency Towns, customs and usages governed the laws of evidence. The courts had complete discretion in admitting evidence, leading to chaos in the administration of justice.

Enactment of the Indian Evidence Act, 1872

The first Act related to rules of evidence was established by the Governor-General in 1835. Between 1835 and 1855, several Acts were passed to incorporate reforms proposed by Jeremy Bentham. Although Acts 10 of 1855, 8 of 1859, 25 of 1861, and 15 of 1869 were passed, Indian courts followed English law of evidence, leading to an unsatisfactory situation.

• Chief Justice Richard Garth emphasized the importance of a well-established law of evidence for achieving speedy and fair justice.
• He criticized the strict rules of evidence and advocated for the discretion of courts in attributing weight to judgments.
• Garth expressed concern about leaving such discretion to subordinate courts in India.

Maine Commission

• In 1868, a commission was formed under Sir Henry Maine to codify the Law of Evidence.
• Maine’s bill was rejected as it did not meet the necessary requirements.

Stephen Commission

• Established in 1871 to draft the Law of Evidence.
• On March 31, 1871, Stephen presented a draft Bill to the Council.
• The draft was sent for review to local governments, High Courts, and Advocates.
• Following feedback, the Bill was revised by the Select Committee and enacted as The Indian Evidence Act, 1872 on January 1, 1872.
• The Act has undergone multiple amendments since its inception.

Features of the Indian Evidence Act, 1872

• Based on English evidence law but adapted to Indian circumstances.
• Despite criticisms, it is considered well-drafted and continues to be applicable with minimal amendments over 140 years.
• The Act consolidates, defines, and amends the law of evidence in India, extending to the whole of India.

Scope of the Indian Evidence Act, 1872

• The Act applies to all judicial proceedings in India, including Courts-martial (with certain exceptions).
• However, it does not apply to affidavits presented to any Court or officer, or proceedings before an arbitrator.

Important Provisions under the Indian Evidence Act, 1872

The “Law of Evidence” is a set of principles used to determine disputed facts in court proceedings.

Introduction

The Indian Evidence Act was enacted in 1872, and it provides a comprehensive framework for the admissibility and relevance of evidence in legal proceedings in India. The Act is divided into various parts, each dealing with specific aspects of evidence law. Let's explore the key features and provisions of the Indian Evidence Act.

Preamble, Interpretation Clause, and Presumptions

The first part includes the preamble of the Act and Chapter One, which provides definitions for the terms used in the Act. This section is known as the Preliminary.

Relevancy of Facts

The second part of the Act is titled "Relevancy of Facts" and contains 51 sections, ranging from Section 5 to Section 55. Here are the key sections discussed in this part:

• Section 6: The relevance of facts that are part of the same transaction.
• Section 7: Facts that constitute the occasion, cause, or effect of the facts in issue.
• Section 8: Facts showing motive, preparation, and conduct, previous and subsequent.
• Section 9: Facts required to establish the facts in issue.
• Section 10: Things said or done by conspirators regarding a common design.
• Section 11: Facts not otherwise relevant.
• Section 12: Facts that allow the court to determine damages.
• Section 13: Facts that establish a right or custom.
• Section 14: Facts showing the existence of a state of mind, body, or bodily feeling.
• Section 15: Facts bearing on the question of whether an act was accidental or intentional.
• Section 16: Facts illustrating the course of business.
• Sections 17 to 23 and 31: Facts that amount to admission.
• Sections 24 to 30: Facts which are confessions of the accused persons.
• Sections 32 and 33: Facts made by people who cannot be called as witnesses in certain circumstances.
• Sections 34 to 38: Facts that are statements under certain circumstances.
• Section 39: Evidence of only necessary portions of statements, conversations, documents, electronic records, books, or series of letters or papers.
• Sections 40 to 44: Judgments of courts.
• Sections 45 to 51: Relevance of third-party opinions (expert opinions).
• Sections 52 to 55: Characteristics of the parties to a lawsuit.

Different Types of Evidence

• Section 59: If evidence is to be given, it must be either oral or documentary.
• Section 60: Direct oral evidence is required.
• Section 61: The contents of a document may be proven using primary or secondary evidence.
• Sections 62 to 66: Deal with primary and secondary evidence, specifying when secondary evidence may be given.
• Sections 67, 67-A, 68, 69, 71, and 72: Provisions for submitting oral evidence to prove the authenticity of a document.
• Sections 73 and 73-A: Deal with determining the term of a deed.
• Section 100: Forbids the Chapter from being applied to the provisions of the Indian Succession Act dealing with the drafting of wills.

Manner of Proof, Burden of Proof, and Presumption without Calling for Proof

Part II of the Act focuses on factual proof, while Part III addresses how proof is to be generated. This section is divided into five chapters (Chapters VII-XI). Here are the key provisions:

• Sections 101 to 114-A (Chapter VII): Address the issue of burden of proof, stating that in certain cases, the burden of establishing a fact falls on a specific person.
• Sections 112 and 113: Deal with cases involving conclusive evidence.
• Section 114: Allows the court to presume the existence of certain facts that typically occur in the normal course of natural phenomena, human action, and public and private business without requiring proof.
• Section 111-A: Establishes a presumption of guilt for certain offenses.
• Section 113-A: Provides for a presumption of suicide abetment if a married woman commits suicide within 7 years of her marriage and has been subjected to abuse by her husband or his relatives.
• Section 113-B: Establishes a presumption of dowry death.
• Section 114-A: Provides for a presumption of lack of consent in some rape prosecutions.

Estoppel

Sections 115 to 117 of Chapter VIII deal with the issue of estoppel, which is another rule of leading evidence. These provisions aim to prevent a person from giving false evidence by prohibiting them from making contradictory statements in a court of law.

Estoppel is a legal principle that prevents a party from asserting something contrary to what is implied by a previous action or statement. In the context of the Indian Evidence Act, estoppel serves to uphold the integrity of evidence presented in court by disallowing contradictory claims.

For example, if a party has previously made a statement or taken a position in a legal matter, they may be estopped from later making a contradictory claim that undermines their earlier position. This principle is important in ensuring fairness and consistency in legal proceedings.

Competency, Comparability, Examination, and Cross-examination of Witnesses, Impeachment of Witness Credibility

Chapters IX and X focus on the following key aspects:

• Competency and comparability of witnesses.
• Examination and cross-examination of witnesses.
• Impeachment of witness credibility.
• Use of previous writings to refresh memory.
• Corroboration of witness statements with prior statements.

Competency of Witnesses

• A witness is considered competent if there are no legal barriers preventing them from testifying in court.
• The witness's ability to understand and respond rationally to questions determines their competency.

Sections 118, 119, 120, and 133 of the law cover who can testify as witnesses. A witness may be competent but not compellable, meaning the court cannot force them to testify. For example, foreign ambassadors and sovereigns cannot be compelled to appear in court as witnesses.

• A witness might be competent and compellable, but the law may not require them to answer specific questions. This situation is known as restricted comparability or privilege, addressed in Sections 122–132.
• Section 134 deals with the quantum of evidence.

Examination and Cross-examination of Witnesses

• Sections 135 to 139 cover the examination, cross-examination, and re-examination-in-chief of witnesses.
• Sections 140 to 153 outline the types of questions that can and cannot be asked during cross-examination.
• Section 153 prohibits evidence contradicting a witness's cross-examination answers.

Impeachment of Witness Credibility

• Section 155 addresses the impeachment of a witness.
• Section 158 deals with evidence to contradict, impeach, or corroborate the credibility of someone who gave evidence under Sections 32 and 33 of the Act.
• Sections 159 to 161 allow a witness to refresh their memory by reviewing previously produced records.
• Sections 165 and 166 define the rights of judges and juries to examine witnesses.

Admissibility of Evidence

• The admissibility of evidence is outlined in Chapter XI, specifically in Section 167.
• This section states that there will be no new trial due to the improper admission or rejection of evidence.

Evolution of the Act

• The Indian Evidence Act has evolved over the years through various amendments.
• Recent significant amendments include the Information Technology Act of 2000, the Criminal Law (Amendment) Act of 2013, and the Criminal Law (Amendment) Act of 2018.

Judicial Pronouncements Related to the Indian Evidence Act, 1872

1. State Bank of India v. Om Narain Agarwal, AIR 2011

• The Court emphasized that the rule of evidence aims to limit disputes to facts with logical evidentiary value.
• It prevents judgments based on illogical conclusions, prejudices, and aids in administration of justice.

2. Vijendra v. State (NCT of Delhi), 1997

• The Supreme Court ruled that the prosecution cannot record the accused's statement as it violates Cr. P.C. provisions.
• A statement made before a police officer during an investigation is inadmissible unless it falls under sections 27 or 32 (1) of the Evidence Act.

3. Emperor v. Aftab Mohd. Khan, 1939

• The court explained the objective of Section 162 of the Indian Evidence Act.
• It protects the accused from false statements made by witnesses during the investigation.
• Admitting such statements as evidence could be prejudicial to the accused.

4. Suresh Budharmal Kalani Alias Papppu Kalani v. State of Karnataka, AIR 1998

• The Supreme Court ruled that a confession made by an accused is inadmissible as evidence.
• Presumptions must be established from facts, not from other presumptions, through probable and logical reasoning.

5. Kishore Chand v. State of H.P, AIR 1990

• The burden of proof in a murder case relying on circumstantial evidence is strict.
• All circumstances leading to guilt must be fully established, and any circumstance suggesting the accused's innocence grants them the benefit of the doubt.
• Confessions made in violation of sections 25 to 27 of the Evidence Act are unreliable.

6. Adambhai Sulemanbhai Ajmeri v. State of Gujarat 2014

• The Supreme Court ruled that subsequent statements recorded after the accused's detention are insufficient for prosecution.
• Such material cannot be considered adequate for arrest.

7. SK. Yusuf v. State of West Bengal, 2011

• The accused was charged with the murder of a girl and burying her body.
• The trial court convicted him based on extrajudicial confession, absconding, and being last seen at the incident location.
• The appellant argued that being last seen and absconding did not imply guilt, and the extrajudicial confession was unreliable.
• The court found no evidence of the deceased being last seen with the accused before her death.
• Presence at the scene alone did not imply guilt, and extrajudicial confessions had discrepancies.
• The appellant was acquitted due to an incomplete chain of circumstantial evidence.

List of Amendments to the Indian Evidence Act, 1872

• The Indian Evidence (Amendment) Act, 1872 (18 of 1872).
• The Indian Evidence Act, 1872 Amendment Act, 1887 (3 of 1887).
• The Indian Evidence Act, 1872 Amendment Act, 1891 (3 of 1891).
• The General Clauses Act, 1897 (10 of 1897).
• The Indian Evidence Act, 1899 (5 of 1899).
• The Repealing and Amending Act, 1914 (10 of 1914).
• The Repealing and Amending Act, 1919 (18 of 1919).
• The Indian Evidence (Amendment) Act, 1926 (31 of 1926).
• The Repealing and Amending Act, 1927 (10 of 1927).
• The Repealing Act, 1927 (12 of 1927).
• The Amending Act, 1934 (35 of 1934).
• The Government of India (Adaptation of Indian Laws) Order, 1937.
• The Repealing Act, 1938 (1 of 1938).
• The Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948.
• The Repealing and Amending Act, 1949 (40 of 1949).
• The Adaptation of Laws Order, 1950.
• The Part B States (Laws) Act, 1951 (3 of 1951).
• The Criminal Law (Amendment) Act, 1983 (43 of 1983).
• The Criminal Law (Second Amendment) Act, 1983 (46 of 1983).
• The Terrorist Affected Areas (Special Courts) Act, 1984 (61 of 1984).
• The Dowry Prohibition (Amendment) Act, 1986 (43 of 1986).
• The Information Technology Act, 2000 (21 of 2000).
• The Indian Evidence (Amendment) Act, 2002 (4 of 2003).
• The Criminal Law (Amendment) Act, 2005 (2 of 2006).
• The Information Technology (Amendment) Act, 2008 (10 of 2009).
• The Criminal Law (Amendment) Act, 2013 (13 of 2013).
• The Criminal Law (Amendment) Act, 2018 (22 of 2018).
• The Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019).

Conclusion

• Evidence refers to something that is clear and obvious, and it is used to describe something that can prove a point. It involves both the right and the procedures.
• The Indian Evidence Act includes rules about how evidence is examined, what is relevant, what can be accepted as evidence, and how facts are proven. It covers topics like confessions, the importance of a person's character, the burden of proof in criminal cases, dying declarations, expert opinions, and different stages of witness examination.