“Law Master’s Publications
The Law of Evidence
Prof.S.D.Bhosale
1
(..1..)
THE LAW OF EVIDENCE
Commented [v1]:
SHOT NOTES
1.
2.
3.
4.
Applicability of Evidence Act.
Nature of the Law of Evidence.
Kinds of Evidence.
Law of Evidence is Lea Foxi.
SYNOPSIS
I
Adjective (Procedural) Law
II. Historical background of The Law of Evidence.
III. Nature of the Law of Evidence
IV. Structure of The Law of Evidence:
V. Law of the Evidence is lex foxi
VI. Applicability of The Law of Evidence (S.1)
I
Adjective (Procedural) Law: -
All Laws may be classified into (1) substantive Laws.; and (ii) Adjective
(Procedural) Laws.
Substantive Laws are those which define the rights, duties, and liabilities of the
parties. Indian Penal Code, Indian Contract Act, the Transfer of Property Act, etc., are
instances of substantive law.
Adjective laws define the pleading and procedure by which substantive laws are
applied in practice. Civil Procedure Code, Criminal Procedure Code and the Indian
“Law Master’s Publications
The Law of Evidence
Prof.S.D.Bhosale
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Evidence Acts are the Adjectives or Procedural Laws.
E.g. 1) A is prosecuted for murder. Here, the punishment provided by the Indian
Penal Code in S.302 is either death or imprisonment for life (Substantive Law determining
the liability of A and the right of the State to prosecute A).
However, A cannot directly be hanged or sentenced to life imprisonment unless the
commission of murder by A is proved. The commission of murder needs to be proved
before the Court with the help of Adjective Laws. Thus, the facts that C saw A beating B,
D saw A and B moving towards the place, etc., where B's murder took place, need to be
established before the Court. On such established facts, the Court either will convict A for
B's murder or acquit him thereby. Thus, the Court would establish the State’s right of
prosecution and liability for 'A' for murder or establish the right of A of acquittal.
(2) Similarly, X enters into a contract with Y, promising to sell his house to Y, and
Y promises to pay Rs.2,00,000/- to X. On breach of contract by either party, the aggrieved
party comes to a Court to get his right established. The rights of the aggrieved party and
liability of defaulting party and remedies thereto for breach of contract are provided in the
Indian Contract Act (substantive law). However, the Court cannot decide the rights and
liabilities of the parties unless the 'existence of contract' between X and Y is proved by the
procedure prescribed by the procedural law.
(3) If A prosecutes B for defamation, the right and liability and punishment thereto
are provided under the Indian Penal Code. However, the Court cannot determine A's right
and B's liability unless evidence proves that B has defamed A. Similarly, the answers to
the questions as to who should offer evidence? and in what manner is evidence to be
offered? is provided in the Indian Evidence Act (Adjective Law).
Rules regarding evidence in the administration of justice are very important.
Substantive Law can only be enforced with the help of the rules of the Law of Evidence.
The Law of Evidence can be called the foundation on which the entire structure of
adjudication (judiciary) is based.
II.
Historical background of The Law of Evidence.-
Before the passing of the Indian Evidence Act of 1872, the principles of the English
law of Evidence were followed by the courts in the Presidency Towns of India. Initially,
the Mofussil Mohammedan Law of Evidence was followed. Subsequently, various
regulations regarding principles of evidence were passed for the guidance of Mofussil
Courts.
In 1855, Act II was passed practically to codify the principles of the Law of
Evidence. However, it did not modify the vogue practice of principles of the Law of
Evidence in Mofussil Courts. Therefore, in 1868, Sir Henry Maine prepared a Draft Bill of
“Law Master’s Publications
The Law of Evidence
Prof.S.D.Bhosale
3
the Law of Evidence, but the bill was abandoned, being not suited to the Indian
circumstances. Eventually, in 1871, Mr James Stephen prepared a new draft, which was
passed as the Indian Evidence Act in 1872.
III.
Nature of the Law of Evidence: -
In Adjective Laws, the Law of Evidence occupies a significant place. In all
adjudications (Civil or Criminal) Court -
i)
ascertain the existence or non-existence of certain facts and
apply substantive law to those ascertained facts and
ii)
iii)
declares the rights and liabilities of parties.
The means by which the Courts get informed of the existence of the fact is termed
as ‘evidence’. A very important stage in adjudication for the Court is to ascertain correct
facts, which can be done through evidence.
Thus, in a petition filed by the wife for divorce on the ground of cruelty, the Court
would like to ascertain the following facts correctly, viz-
a.
b.
c.
Whether the petitioner is the wife of the respondent's husband.
Whether the respondent is exercising cruelty to petitioner
Whether cruelty is of such a nature to justify divorce.
The court will ascertain these facts from the deposition of the petitioner's wife,
Police complaint (if she has lodged), letters eliciting cruelty (if she has written to her
parents), depositions of her parents, neighbours, etc.
If the Court, after pursuing evidence on record, comes to the conclusion that cruelty
is exercised against the petitioner, it would apply the substantive law of divorce to the facts
and declare the right of divorce to the petitioner, imposing relative responsibility on the
respondent.
Similarly, if A is accused of causing the murder of B, the facts for ascertainment
before the Court would be -
a)
b)
c)
d)
e)
Whether there was a quarrel between A and B on the ground of land distribution?
Whether before the day of the murder, there was a serious quarrel between them?
Did A purchase a knife from C's shop?
Did D see A moving towards B's farm where B was working?
Did E see A stabbing B?
The court will ascertain the existence of these facts from the evidence of C, D, E,
etc., and if it comes to the conclusion that A has caused the death of B by stabbing with a
knife. The court will apply substantive law, i.e. Indian Penal Code (S.302), and order him
punishment for imprisonment for life or death (determining the liability of A for
punishment)
“Law Master’s Publications
The Law of Evidence
Prof.S.D.Bhosale
4
The following are the fundamental rules of evidence -
i)
Evidence should be confined to the facts in the issue.
Hearsay evidence should not be admitted.
Best evidence must be given in all cases.
Structure of The Law of Evidence: -
ii)
iii)
IV.
The Law of Evidence consists of 167 sections.
The provisions of the Act have been divided into three parts: -
Part I –
It contains two chapters, Chapter I deals with preliminary definitions. (S.1 to 4) Chapter
II deals with the relevancy of facts and shows how various relevant facts are
connected (Ss. 5 to 55).
FACTS WHICH MAY BE PROVED
Facts in Issue (S.5)
Relevant Facts (S.3)
Facts relevant to the issue may be -
a) Connected with the issue(Ss.5 to 6)
b) Admissions (Ss.17 to 31)
c) Statement made by the witness who
cannot be called as a witness. (Ss.32 and
33)
d) Statements
made
under
certain
circumstances (Ss.34 and 39)
e) Judgments in other cases(Ss.40 and 41)
f) Opinion (S.45 to 51)
g) Character (Ss.52 to 55)
Part II -
It consists of four chapters, i.e. III, IV, V, and VI.
Chapter III - deals with facts that need not be proved (Ss.56 to 58). These are the
facts of which the Court takes judicial notice.
Chapter IV - deals with oral evidence (Ss.59 to 60)
Chapter V - deals with documentary evidence (S.61 to 90)
Chapter VI- lays down the rules regarding the exclusion of oral by documentary
evidence (Ss.91 to 100)
TYPES OF EVIDENCE TO BE GIVEN
“Law Master’s Publications
The Law of Evidence
Prof.S.D.Bhosale
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Facts which need not be proved
Other facts if in issue or relevant may be
proved by
Facts Judicially
noticeable
Facts
Admitted
(S.58)
Oral Evidence
(Ss.59 and 60)
Documentary
Evidence
Documentary evidence may be -
a)
b)
c)
d)
e)
Primary or Secondary (Ss.61 to 66)
Attested or Unattested (Ss.67 to 73)
Public and Private documents (Ss.74 to 78)
Sometimes presumed to be genuine (Ss.79 to 90)
Excludes oral evidence (Ss.91 to 100)
Part III -
This consists of five chapters, viz. VII, VIII, IX, X, and XI.
Chapter VII deals with the 'burden of proof' and 'presumption' (S.101 - 114)
Chapter VIII deals with the 'estoppel' (Ss.115 to 117)
Chapter IX deals with the witnesses who are competent to testify. (Ss.118 to 134)
Chapter X deals with the examination of a witness. (S.135 to 166)
Chapter XI deals with the effect of improper admission and rejection of evidence.
(S.167)
PRODUCTION AND EFFECT OF EVIDENCE
Who shall adduce
Who shall not be
allowed to adduce
evidence (Estoppel
Ss.115 to 117)
How evidence is to
be adduced (Ss.118
to 166)
Consequence of
mistake (S.167)
evidence (Burden
of
Proof) (Ss.101 to
114)
Information Technology Act, 2000 has also caused some changes and amendments
in the Evidence Act.
V. Law of the Evidence is ‘lex fori’: -
The Law of Evidence is lex fori, i.e. the law of the forum or Court in which a case
is being tried.
Whether the witness is competent or not, whether certain evidence proves specific
“Law Master’s Publications
The Law of Evidence
Prof.S.D.Bhosale
6
facts or not, is to be determined by the Law of the country where the remedy is sought to
be enforced and where the Court sits to enforce it. Thus, where the question before the
Indian Court was about the proper method of proving an event occurred in England, the
Law of Evidence was applicable in India and not in English. (In Niharendu D. Majumdar
Applicability of The Law of Evidence (S.1): -
The Indian Evidence Act of 1872 applies to all judicial proceedings in or before any
Court, including court-martials before Indian Marine Courts and Native court-martials.
However, it does not apply to: -
i)
Affidavits presented to any Court or officer, or
ii)
iii)
Proceedings before an arbitrator.
Court Martial covered under the Army Act, The Naval Discipline Act, The Indian
Navy (Discipline) Act, 1934, or The Air Force Act.
*****
1 A.I.R. 1942 F.C. 2