Cheat Sheet: Indian Evidence Act, 1872 : An Overview

1. Preliminary Provisions

1.1 Short Title, Extent and Commencement

• Short Title: Indian Evidence Act, 1872
• Extent: Whole of India except Jammu & Kashmir (applicable post-reorganization)
• Commencement: 1st September 1872
• Comprises 167 sections divided into 3 Parts and 11 Chapters

1.2 Key Definitions (Section 3)

2. Relevancy of Facts

2.1 General Principles (Sections 5-11)

2.2 Admissions (Sections 17-23)

2.3 Confessions (Sections 24-30)

2.4 Statements by Persons Who Cannot Be Called as Witnesses (Sections 32-33)

2.4.1 Section 32 - Dying Declaration and Other Statements

• When person making statement is dead/cannot be found/incapable/attendance cannot be procured without unreasonable delay
• Statement made by deceased: (1) as to cause of death (dying declaration); (2) in ordinary course of business; (3) against pecuniary interest; (4) as to public right or custom; (5) as to relationship; (6) in will or deed about family affairs; (7) in document about fact of public or general interest; (8) stating existence of relationship
• Dying declaration must relate to circumstances of transaction resulting in death

2.4.2 Section 33 - Evidence in Former Proceeding

• Evidence given in former judicial proceeding is relevant when witness is dead/cannot be found/incapable/attendance cannot be procured/adverse party prevented attendance
• Same parties and their representatives must be involved, and adverse party must have had opportunity to cross-examine

2.5 Statements Under Special Circumstances (Sections 34-39)

2.6 Judgments (Sections 40-43)

2.7 Character (Sections 52-55)

• Section 52: In civil cases, character is irrelevant except when it is itself a fact in issue
• Section 53: In criminal cases, accused's good character is relevant; prosecution cannot prove bad character unless accused puts his character in issue or gives evidence of good character
• Section 54: Previous bad character relevant when it is fact in issue or relevant under Sections 14-15
• Section 55: Character of victim is irrelevant except in defamation cases and where victim's character is fact in issue

3. Doctrine of Estoppel (Sections 115-117)

3.1 Estoppel (Section 115)

• When person by declaration, act or omission intentionally causes another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed to deny truth of that thing in any suit or proceeding
• Essentials: (1) representation/declaration/act/omission; (2) made intentionally; (3) other party believed it and acted on it; (4) that party would suffer if first person is allowed to deny

3.2 Estoppel Against Tenant and Licensee (Sections 116-117)

4. Witnesses

4.1 Competency and Compellability (Sections 118-120)

4.2 Number of Witnesses (Section 134)

• No particular number of witnesses required in any case
• Single witness may suffice if credible and reliable

4.3 Examination of Witnesses (Sections 135-166)

4.3.1 Order of Examination

4.3.2 Leading Questions (Section 141-143)

• Section 141: Leading question is one that suggests answer
• Section 142: Leading questions not allowed in examination-in-chief or re-examination except with court permission or on introductory matters or undisputed facts
• Section 143: Leading questions allowed in cross-examination

4.3.3 Impeachment of Witness (Section 155)

• Credit of witness may be impeached by adverse party by: (1) proof of former inconsistent statement; (2) proof of bias; (3) shaking credit by cross-examination
• Witness cannot be asked questions tending to criminate him except to test veracity

4.3.4 Hostile Witness (Section 154)

• Court may permit party who calls witness to put any question to witness as in cross-examination if witness appears hostile

5. Documentary Evidence

5.1 Primary and Secondary Evidence (Sections 60-65)

5.2 Cases When Secondary Evidence Admissible (Section 65)

• When original shown/appears to be in possession of adverse party who fails to produce after notice
• When original in possession of person not legally bound to produce and who cannot be compelled
• When original has been destroyed or lost (party seeking to give secondary evidence must prove search)
• When original is of such nature as not to be easily movable
• When original is a public document
• When original is certified copy with right to give secondary evidence
• When originals consist of numerous documents which cannot conveniently be examined

5.3 Electronic Records (Sections 65A-65B)

5.4 Public Documents (Sections 74-78)

5.5 Proof of Documents (Sections 67-73)

• Section 67: Proof of signature and handwriting - by person who saw it written, expert opinion, comparison with admitted writings
• Section 68: Proof of execution of attested documents - at least one attesting witness must be called if alive, subject to jurisdiction and capable
• Section 69: Proof where no attesting witness found - execution must be proved by other evidence
• Section 73: Court may compare disputed writing with admitted/proved writing to determine genuineness

6. Burden of Proof and Presumptions

6.1 Burden of Proof (Sections 101-104)

6.2 Presumptions

6.2.1 May Presume (Sections 86-88)

6.2.2 Shall Presume (Sections 79-85)

6.2.3 Conclusive Proof (Sections 41, 112-113)

7. Privilege and Protection

7.1 Professional Communications (Sections 126-129)

7.2 Official Communications (Sections 123-125)

7.3 Protection from Self-Incrimination (Section 132)

• Witness not excused from answering question on ground that answer will incriminate him, except no such answer can be used against him in criminal proceeding (other than for giving false evidence)
• Based on Article 20(3) Constitutional protection

8. Examination and Cross-Examination Rules

8.1 Cross-Examination Scope (Section 146)

• Witness may be cross-examined as to previous statements in writing or reduced to writing relevant to matters in question without such writing being shown
• If witness denies making statement, writing may be proved before witness can be contradicted

8.2 Questions About Prior Convictions (Section 145)

• Witness may be asked whether he has been previously convicted of any offence
• If denied, opposite party may prove conviction

8.3 Refreshing Memory (Sections 159-161)

8.4 Corroboration (Section 157)

• Former consistent statements of witness may be proved to corroborate later testimony if witness is impeached
• Mere consistency does not make earlier statement relevant unless credit has been impeached

9. Opinion Evidence (Sections 45-51)

9.1 Expert Opinion (Section 45)

• When court has to form opinion on foreign law, science, art, handwriting identity, finger impressions, opinions of experts are relevant
• Expert defined as person with special skill in that field
• Expert opinion is opinion evidence, not conclusive; court not bound to accept

9.2 Specific Expert Opinions

9.3 Non-Expert Opinion (Section 51)

• Grounds of opinion when relevant: When opinion expressed by person not expert, grounds on which opinion based are relevant

10. Improper Admission and Rejection of Evidence (Sections 167)

10.1 Section 167 Provisions

• No judgment shall be reversed or substantially varied on account of improper admission/rejection of evidence unless such improper admission/rejection has occasioned failure of justice
• Court must examine whether error has caused prejudice
• Mere irregularity without prejudice does not vitiate judgment

11. Key Judicial Interpretations and Principles

11.1 Evidence Classification

11.2 Standard of Proof

11.3 Important Maxims

• Ei qui affirmat non ei qui negat incumbit probatio: Burden of proof on person who affirms, not who denies
• Res gestae: Facts forming part of same transaction
• Res judicata: Matter already judged cannot be relitigated
• Falsus in uno, falsus in omnibus: False in one thing, false in everything (not absolute rule)

12. Special Provisions for Criminal Cases

12.1 Accused as Witness (Section 315 CrPC read with Evidence Act)

• Accused competent witness for defense but cannot be compelled
• If accused gives evidence, can be cross-examined
• Failure to enter witness box cannot be used as evidence against accused

12.2 Similar Fact Evidence (Sections 14-15)

12.3 Prosecution's Duty

• Prosecution must prove guilt beyond reasonable doubt
• Benefit of doubt goes to accused
• Each circumstance in chain of circumstances must be proved beyond reasonable doubt