Introduction to the Indian Evidence Act, 1872

ByRajan RajAdvocate

Jharkhand High Court

What is Evidence?Evidence is anything which tends to persuade an

inquirer of the existence or non-existence of some fact or situation he is inquiring about.

The inquirer may disbelieve the evidence or prefer other contrary evidence which he finds more persuasive. Thus, evidence need not in fact persuade the inquirer, it is enough that it tends to persuade him.

Evidence may offer an answer which is rejected or one which, although accepted, is wrong; but if logically it offers an answer or an inference can reasonably be drawn from it about the existence of the fact under inquiry, it is evidence.

What is law of evidence?We all act on evidence in making various decisions in our day-to-day

life. There are no rules imposed on us from outside telling us what evidence we can act on in ordering our private life where we can be as capricious or illogical as we wish.

However, in course of settling a dispute, a court has to decide on questions of fact by following a body of rules. These rules stipulate as to what ‘judicial’ evidence is acceptable to determine such questions of fact. These rules make up the law of evidence.

Many of the rules of evidence are rules of exclusion as to what kind of evidence can not be taken account of. The historical reason of such exclusionary rules is that until recently the only judges of fact were jurymen who were untrained and assumed to be prone to over value certain types of misleadingly attractive evidence.

Though juries have been abolished, the reform of law of evidence is over due on account of being sometimes complicated and excluding logically probative evidence.

The Indian Evidence Act, 1872The Indian Evidence Act is a consolidation of

the English law of evidence by Sir James Fitzjames Stephen in the form of express propositions arranged in their natural order, with some modifications rendered necessary by the peculiar circumstances of India.

In case of gaps or ambiguities in the Indian Evidence Act, contemporaneous English decisions can serve as external aids of interpretation.

Applicability of Indian Evidence Act The Indian Evidence Act applies to judicial proceedings in or before any

court. s. 4(m), CrPC defines judicial proceedings as “any proceeding in the

course of which evidence is or may be legally taken on oath.” An enquiry is judicial if the object is to determine a jural relationship between persons on the basis of evidence recorded in course of such enquiry.

Thus, judicial proceedings have to be distinguished from administrative/quasi-judicial proceedings which are less formal and governed by strict rules of evidence. In practice, often the distinction between judicial and administrative/quasi-judicial is blurred.

“Court” includes all judges and magistrates and all persons, except arbitrators, legally authorised to take evidence.

Thus, tribunals constituted under various statutes like Administrative Tribunals, Income Tax or Industrial Tribunals are thus not bound by strict rules of evidence as their parent statutes declare the proceedings before them to be judicial for limited purpose like power of contempt etc.

What is a fact?“Fact” means and includes-a) Any thing ,state of things, or relation of

things, capable of being perceived by the senses (physical fact)

b) Any mental condition of which any person is conscious (psychological fact)

What is a fact in issue?A fact in issue is one which is directly in contention between

the parties, i.e. one which the plaintiff (or prosecutor) must establish to win his case, or which the defendant must establish to succeed in some defense which is open to him.

A fact in issue is determined by (a)substantive law : Thus, in an action in tort, it is the law of

tort which prescribes the elements of tort which the plaintiff must prove if he is to win.

(b)by the proceedings : For example, the pleadings determine the facts in issue in civil proceedings. The pleadings are formal assertions and formal denials which are made before trial in order to narrow and focus the issues between the parties.

What is relevant fact?Relevance is the relationship between one

fact and another wherein, according to the rules of logic and common experience, the existence of one renders probable the existence or non-existence of the other.

A fact which is not actually in issue but is in this relationship with a fact in issue is a relevant fact.

What is proof?Proof is the establishment of the existence or

non-existence of some fact to the satisfaction of the tribunal charged with the duty of trying fact. (Proved..Disproved….Not proved)

The commonest means of proof is evidence, although there are others namely admissions, judicial notice and presumptions.

What is admissible fact?A fact is admissible if the law allows it to be

proved by evidence. It is only allowed to be proved if it is either in issue or has some degree of relevance to the facts in issue.

Relevance vis-à-vis admissibilityRelevance is not a legal concept being rather

one of logic and common sense whereas admissibility is a legal concept.

Relevance finds its way in law by virtue of the reason that all irrelevant facts are inadmissible.

Though all admissible facts are relevant but all relevant fact are not admissible as there are many rules excluding evidence of relevant facts on some ground or other.

Evidence in legal sense.Evidence in a legal context, is used in at least two

senses :-a) Evidence is the means of proof, how things are proved

i.e. by testimony of witnesses, oral or written, but it may also take a form of production of things, including documents (real evidence);

b) The term evidence is also applied to facts which are allowed to be proved (i.e. are admissible) because relevant. Thus, a fact is said to be “evidence” of a second fact if the law allows the first fact to be proved in order to establish the second fact. For example, the possession of goods which have been recently stolen is “evidence” of guilty knowledge.

Direct evidence vis-à-vis circumstantial evidenceDirect evidence consists either of the testimony of a witness

who perceived the fact to be proved or the production of a document or thing which constitutes the fact to be proved.

Circumstantial evidence of a fact to be proved is the testimony of a witness who perceived, not the fact to be proved, but another fact from which the existence or non-existence of the fact can be deduced, or the production of a document or thing from which the fact to be proved can be deduced.

The fact to be proved can either a fact in issue or a fact relevant to the issue.

Relevant facts constitute circumstantial evidence, e.g. “Possession of recently stolen goods is circumstantial evidence of guilty knowledge.”

Original evidence vis-à-vis hearsay evidenceOriginal evidence is the evidence of a witness who deposes to facts of

his own knowledge. If his information is derived from other persons and he himself has

no personal knowledge of the facts to which he deposes then his evidence is said to be hearsay.

The general rule is that hearsay evidence is not admissible. The person who saw or heard or otherwise perceived the fact must be produced and not someone to whom he gave or wrote an account of what happened.

There are numerous exceptions where hearsay evidence is allowed. Viz. dying declaration u/s 32 Indian Evidence Act.

The fact of B’s saying the words might be a fact in issue, as if B is being sued for slander, and if so A is giving original evidence of that fact. It is only when the object of A’s testimony is to persuade the court that some fact is as B said it was that A’s evidence is hearsay.

The Best Evidence RuleInferior Evidence is that which suggests that

better evidence might be available, e.g. a copy of a document which suggests that somewhere the original exists.

The so-called best evidence rule precludes the production of inferior evidence if the best could be produced.

The rule today largely applies to documentary evidence precluding secondary evidence when primary evidence could be produced. (See ss. 64 and 65, Indian Evidence Act).

Admissibility vis-à-vis Weight of Evidence Admissibility refers to whether a piece of

evidence is permitted to be given.Weight refers to the evidence’s cogency, i.e.

the degree of persuasiveness it exhibits (its proximity to the fact in issue).

The credibility of evidence refers to the question whether it is worthy of belief, e.g. if it comes from a trustworthy source. Thus, credibility has to be distinguished from weight of evidence.