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THE INDIAN EVIDENCE ACT,1872

September 27, 2023by canonsphere0
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This blog is written by Shivani Sehrawat, a second year law student at Faculty of Law, University of Delhi

INTRODUCTION

The Indian Evidence Act of 1872 is an essential piece of substantive and procedural law for the administration of justice in the country and for ensuring the applicability of other laws. The law of evidence governs the rules and methods which direct  the relevancy, admissibility and credibility of evidence and the standard of proof required in judicial proceedings for arriving at a decision. The Act holds a significant amount of value in the judicial system as it seeks to contemplate the balance between the different objectives of protecting the rights of individuals while safeguarding the interest of the community and preventing the abuse of process of court while maintaining the fairness of trial.

LEGISLATIVE HISTORY

The Indian Evidence Act, of 1872 was introduced by the Law Minister Sir James Fitzjames Stephen on March 31, 1871, in the Imperial Legislative Council of British India. The bill was passed by the Council and simultaneously assented by the Governor-General on March 15, 1872. Thereafter, it came into force on September 1, 1872.

OBJECT & NEED OF THE ACT

The Act was enacted to consolidate, define and amend the law of evidence for providing assistance to Courts for establishing the truth in judicial matters across the territory of India. Though a couple of Acts were in force before the 1872 enactment such as the Acts of 1835 and 1855, which were the reproduction of English Laws, however, due to their limited territorial application, unsuitability to Indian situations and inadequacy of crucial legal provisions, there arose a need of a more comprehensive code which was opposite both to the circumstances of the country and its people in uniformity.

EXTENT OF APPLICATION OF THE ACT

  • APPLICATION 

The Act is applicable to all the judicial proceedings in or before any Court in the territory of India.

  • NON-APPLICATION 

The Act is neither applicable to proceedings before an Arbitrator nor to affidavits presented in any Court or before an Officer.

Further, it is inapplicable to Court-martials convened under the Army Act, the Naval Discipline Act and the Air Force Act.

STRUCTURE OF THE ACT

The Act is primarily divided into three Parts comprising 11 Chapters and 167 Sections.

PART/CHAPTERNAMESECTIONS
PART – IRELEVANCY OF FACTS1 to 55
Chapter – 1Preliminary1 to 4
Chapter – 2Of the Relevancy of Facts5 to 55
PART – IION PROOF56 to 100
Chapter – 3Facts which need not be proved56 to 58
Chapter – 4Of Oral Evidence59 to 60
Chapter – 5Of Documentary Evidence61 to 90A
Chapter – 6Of the Exclusion of Oral by Documentary Evidence91 to 100
PART – IIIPRODUCTION AND EFFECT OF EVIDENCE101 to 167
Chapter – 7Of the Burden of Proof101 to 114A
Chapter – 8Estoppel115 to 117
Chapter – 9Of Witnesses118 to 134
Chapter – 10Of the Examination of Witnesses135 to 166
Chapter – 11Of Improper Admission and Rejection of Evidence167

PROVISIONS & SALIENT FEATURES OF THE ACT

The below-mentioned concepts constitute the basic features and principles on which the entire statute is construed.

  • DEFINITION OF EVIDENCE

The term “evidence” is used in the sense as equivalent to the material such as statements and documents placed before the Court on the basis of which it comes to a conclusion as to the existence or non-existence of a disputed fact. The definition as mentioned in the Interpretation Clause of Section 3 is exhaustive and includes both Oral and Documentary Evidence.

  • TYPES OF EVIDENCE
  1. Oral Evidence is those statements that the Courts permit or require to be made before it by Witnesses in relation to matters of fact under an inquiry. Any fact can be proved by oral evidence except the contents of documents or electronic records. Further, oral evidence is direct evidence as the Act requires that only that person who has actually perceived something by that sense by which it is capable of perception, should make the statement about it and no one else .
  2. Documentary Evidence includes all the documents and electronic records that are produced for inspection of their content in the Court. The Act mandates that documents must be proved by primary evidence which means that the original document itself should be produced. The rationale for the compulsion is that a copy might contain omissions or mistakes of a deliberate or accidental nature. Although, in some specified cases, a copy might be produced to prove the contents of the document, it would be secondary evidence.
  3. Direct Evidence means original evidence is given of the very fact in issue or of the matter in controversy.  
  4. Circumstantial Evidence means evidence of circumstances or relevant facts from which an inference may be drawn about the fact in issue, and, therefore they are sometimes referred to as presumptive evidence. However, circumstantial evidence needs to be given cautiously so that they all inevitably and exclusively prove the alleged fact.
  5. Substantive Evidence includes specific evidence which clearly establishes the fact in the issue or the relevant fact.
  6. Corroborative Evidence is the evidence that strengthens or confirms the already existing substantive evidence. Corroboration can either be provided by direct evidence or through circumstantial evidence.
  7. Judicial Evidence includes all those evidences that are recorded, produced or documented in Court proceedings to prove or disprove a fact, and by their very nature are admissible.
  8. Non-judicial Evidence constitutes all the evidence which is recorded and found during an investigation by Police authorities outside courts. This evidence is usually inadmissible due to unreliability and usage of coercive methods by investigative agencies for collecting them.
  9. Expert Evidence is those statements of opinion presented by an Expert Witness in the Court on any concerning matter requiring special knowledge or skill to deal with a fact in issue. Although, it is admissible evidence, nevertheless, of a weak type.
  10. Hearsay Evidence refers to a statement of a person that is conveyed on the basis of what someone else has stated, although it is neither relevant nor admissible due to lack of confirmation and authenticity.
  • RELEVANCY & ADMISSIBILITY

Neither all the pieces of evidence are admissible nor relevant. Only those evidence which are necessary to decide a fact in issue are relevant and then only the question of their admissibility arises. Thus, admissibility presupposes relevancy. Admissible evidence is required to be received by the court unless there is a legal reason for its exclusion such as offensive to public policy, contrary to a particular rule of law and subject to a recognized exception.

  • EVIDENCE OF FACTS EITHER RELEVANT OR IN ISSUE

Section 5 of the Act mandates that evidence can be given in a proceeding either of existence or of non-existence of a fact in issue or of a relevant fact only and of nothing else.

Fact as defined by the Act means and includes – anything, state of things, or relation of things, capable of being perceived by the senses; and any mental condition of which any person is conscious.

Thus, it includes both physical and psychological facts, although the latter can be proved by direct evidence only.

Relevant Fact means when one fact is connected with the other that belief in one fact helps the court to come to a conclusion upon the existence of another fact, then the former is relevant to the latter, however, the relevancy is admissible only when the connection is in the way as provided by the provisions of the Act.

Fact in Issue means when a fact, either independently or in connection with other facts, is necessary to be decided for determining the rights, liabilities or disabilities of parties in a suit or proceeding.

Hence, evidence is given for the purpose of establishing the existence of a fact that is asserted by one party and denied by another, therefore, creating an issue regarding its subsistence, or for a matter in controversy.

Chapter 2 of the Act provides the circumstances when a fact becomes relevant and admissible which can be proved or disproved by giving evidence. It includes all the facts that are connected with or the statements about the facts in issues such as relevant facts, admissions, confessions, dying declarations, opinions of experts and judgments of courts.

  • PRESUMPTIONS

The Act prescribes three types of presumptions that are binding on the Court to presume in specified circumstances. A presumption is an inference of a fact drawn from other facts and remains final until disturbed or disproved.

The “May” and “Shall” presumptions are rebuttable presumptions, meaning thereby that, on the proof of certain facts by one side, the court would presume other facts unless rebutted or disproved by the other side. Although, the Court has discretion in the may presumption  the shall presumption is binding. Further, the “Conclusion Proof” is an irrebuttable presumption wherein the Court on proof of one fact regards other facts as proved and does not allow the other party to disprove it by presenting evidence.

  • ORAL EVIDENCES BY WITNESSES

A statement made by a Witness in the Court is called testimony. The Act provides that all persons are competent to testify unless they are incapable of understanding the questions put to them by reason of extreme young or old age, or disease of either body or mind.

Chapter 9 further provides that in what circumstances a person can be and cannot be a witness in regard to particular facts, such as spouses cannot testify for a fact which is communicated during marriage between them, Judges and Magistrates cannot be witnesses except on being compelled by a special order of a superior court; Public Officer cannot testify for official communications; professional communication between an attorney and a client is also exempted among others.

Generally, Witnesses are free to testify or not, however, under specific situations they can be compelled to answer certain questions.

There is a chronological order that is followed during the examination of witnesses in the trial Court which includes three stages of Chief, Cross and Re-examination, wherein, the cross-examination is performed by the opposite party and the Chief and Re-examination is done by the party who calls the witness.

There are certain restrictions as well regarding what kind of questions can be asked during each of the stages such as leading questions can be asked during the Cross-examination, however, they cannot be asked during the Chief or Re-examination if objected to by the opposition unless permitted by the Court due to the reason that a witness is always favorable to the party who is calling it.

In an adversary system like ours, the Counsels usually ask questions to Witnesses, although, in some special circumstances even Judges can ask questions to witnesses.

The examination of witnesses is the most crucial stage in a trial as facts are proved and disproved while establishing the credibility of witnesses by asking them questions, and their answers not only signify their reliability but also set the matter in controversy.

  • DOCUMENTARY EVIDENCES

The contents of a document can only be proved by the document itself or its certified copy and by nothing else. Further, with the advancement of technology, electronic records have been included in the Act as admissible evidence and any information contained in them can be produced in Court either by printing the information on  paper or by storing it in a computer media.

  • BURDEN OF PROOF

Chapter 7 of the Act provides that the burden of proof would lie on the person who asserts the fact. It means that whosoever asserts a fact must prove that it exists if that person is desirous of a judgment as to any legal right or liability depending on the existence of that particular fact.

However, there are some special circumstances under which the burden of proof shifts to the other party for disproving a fact due to the existence of a legal presumption such as there is a legal presumption that a person is innocent until proven guilty, thus, the Prosecution needs to prove its case first, instead of the Accused to defend himself, similarly, there is a rebuttable presumption that a child born during the subsistence of a marriage belongs to the husband of the mother thus, herein, the husband would have to disprove the presumption first instead of the mother to prove the claim.

Also, there is a difference between the required degree of proof in criminal and civil cases. As, in a criminal trial, the prosecution needs to establish the guilt of the accused beyond reasonable doubt, thus, requiring a higher degree of proof  contrary to civil matters, wherein, only a belief in regard to the existence of fact needs to be shown thus, the preponderance of probabilities is enough.

  • CRIMINAL AND CIVIL MATTERS

There are numerous provisions of the Act which are applicable to both civil and criminal matters, however, certain provisions are either only applicable to civil cases for instance provisions related to the character of parties and estoppel or to criminal matters including provisions dealing with confessions, the character of an accused person, the character of prosecutrix in rape cases

  • COMPREHENSIVE THOUGH NOT EXHAUSTIVE

The Act was enacted to consolidate laws relating to the manner of usage of evidence in judicial proceedings, therefore, it was farmed as a comprehensive piece of legislation consisting of old laws along with new provisions, as evident from its preamble, thus, it is not an exhaustive law as it does not lay down all the rules of evidence. Consequently, other laws like the CrPC and CPC supplement its provisions.

Further, the Courts have used English laws whenever they have deemed it necessary to interpret and apply the provisions of the Act with full effect .

SIGNIFICANCE AND SCOPE OF THE ACT

The Indian Evidence Act has been a crucial and prominent enactment since its inception. It was way ahead of its time, which is evident from the very fact, that it has been  in existence for over hundred and fifty years and there have  been very few amendments to its provisions just to extend its application to the new evolving circumstances of the present era, and despite that, it has retained its predominant original from.

The Act was a progressive milestone as it set aside all the ambiguities prevalent in the application of rules of proof in the country as before 1872 either English laws were made applicable or customary rules were applied which were vague, indefinite and unsuitable for the Indian situations. Since its enactment, there has been a uniform and static pattern of procedure in judicial proceedings across the spectrum, therefore, securing the rights of individuals and maintaining the equilibrium of interests.

The primary purpose of any judicial system is to administer justice and the purpose cannot be achieved unless the rules of evidence are ascertained which outlines the procedure of establishing and deciding a claim in the Court, as evidencing is the sole mechanism that helps the court in rendering its decisions with respect to rights and liabilities of individuals. Henceforth, ensuring a fair trial and systematized justice.

Similarly, the definite provisions of the Act ensure the effective implementation of its object of providing assistance to Courts in establishing the truth by limiting the extent of investigation and restricting the admittance of different kinds of evidence  in proceedings, thus leading to the public convenience.

Additionally, the Act distinctly prescribes what evidence exactly means and includes, and the procedure of their collection, production and limitations of usage in the proceedings. This approach remarks that only evidence which is related to the subject of the dispute must be admitted with a rational evidentiary value. Likewise, the method of collection also affects not only the value but the admissibility of evidence   for instance admissions made to Police are inadmissible but those that are recorded by Magistrates are admissible with a higher degree of evidentiary value due to reliability on the Judicial Officer as compare to Police which is prima facie known for its coercive tactics.

Further, the Act is neither completely a procedural law nor a substantive law. Rather, the Act is partially substantive and partially procedural in its nature as in the former, it determines the rights and obligations of the parties in respect to evidence and, in the latter, it seeks to govern the machinery of Courts and methods by which parties can enforce their rights through the legal mechanism. Thus, it is a significant procedural law to enforce the substantive provisions of not only other laws but also of its own.

CONCLUDING REMARKS

The Indian Evidence Act is a milestone of its own nature as it is a prerequisite for the functioning of the entire judicial system, including the administration of justice and fair trial to each and every concerned individual through legal methods while safeguarding the interest of the community at large.

The Act is not just a fundamental piece of legislation rather also has a multi-dimensional purpose of prescribing a uniform set of rules and regulations that govern the quantity, quality, type, relevancy and admissibility of evidence and standard of proof required for the establishment of claims by parties in all sorts of judicial proceedings. It also aims at ensuring the justness and fairness of the process of court for securing a balanced trial and rendering a decision that is based on the rationale of the applicable rules and laws.

Henceforth, the Act is comprehensive in assuring the systematic procedures and adaptable rules of finding the accuracy of facts through legal methodology for implementing its purpose of providing the mechanism for discovering the truth in the larger interest of people.

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