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INDIAN EVIDENCE ACT

(BY SHAVETA SAROHA)

The law of evidence is procedural and doesn’t affect the substantive right

of parties. It is the law of the forum (or court) or the lex fori. This is purely

a matter of convenience. The rules of law of evidence for civil and criminal

cases are in general the same. But there are certain sections of the act which

apply exclusively to civil cases, and some to criminal cases.

BRIEF HISTORY OF LAW OF EVIDENCE

In order to trace the history of the Law of Evidence in our country, we have to see three different periods: Ancient Hindu Period, Ancient Muslim Period and British Period.

THE ANCIENT HINDU PERIOD: It was that period when Hindu Raj was there, and the source of information relating to Law of Evidence was derived from DHARMA SHASTRAS. At that time when Ancient Hindu Period was there, kings were the judges of the court and the court were situated in the royal palaces in the capital city. King was the judgment maker with the advice of their adviser and the king’s judgment was the final

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The Indian Evidence Act is the act number 1 of 1872. The whole act comprises of total 167 section and 11 Chapters. The Evidence act came into force from 1st^ September 1872. All the definitions, methods related to evidence and how the Law of evidence in consolidated is included in this Act. It is applicable to all over India except the state of Jammu and Kashmir. This act is not applicable to army law, naval law, disciplinary act and all the affidavits which are presented in front of officers or the courts. This act is applicable to only the court proceedings.

Law of evidence is Procedural Law but it also has some part of Substantial Law. For Example Doctrine of Estoppel.

The Act has been divided into 3 parts-

PART 1- Relevancy of Facts:

1. CHAPTER 1- PRELIMINARY (SECTION 1-4). This chapter gives provision regarding application and applicability.
2. CHAPTER 2- OF THE RELEVANCY OF FACTS (SECTION 5-55). This chapter gives provision regarding that in which all situation evidence shall be taken. PART 2- On Proof:

1. CHAPTER 3- FACTS WHICH NEED NOT BE PROVED (SECTION 56-58).

This chapter gives provision regarding those facts which need not be proved in front of the court. Any fact which court already knows or there is no requirement to acknowledge court about these facts.

2. CHAPTER 4- OF ORAL EVIDENCE (SECTION 59-60).
3. CHAPTER 5- OF DOCUMENTARY EVIDENCE (SECTION 61-90).
4. CHAPTER 6- OF THE EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE (SECTION 91-100). Where oral or documentary evidence can be excluded. PART 3- Production and effect of evidence:

1. CHAPTER 7- OF THE BURDEN OF PROOF (SECTION 101-114).

2. CHAPTER 8- ESTOPPEL (SECTION 115-117).

3. CHAPTER 9- OF WITNESSES (SECTION 118-134).

4. CHAPTER 10- OF THE EXAMINATION OF WITNESS (SECTION 135-166).

5. CHAPTER 11- OF THE IMPROPER ADMISSION AND REJECTION OF

EVIDENCE (SECTION 167).

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One great object of the Evidence Act is to prevent laxity in the admissibility of Evidence Act and to introduce a more correct and uniform rule of practice than was previously in vogue. This article is about the important definitions of the Indian Evidence Act, 1872 which help in analyzing how legal terms in the evidence act are to be interpreted for the better understanding of the sections.

Courts:

“Court includes all Judges and Magistrates, and all persons, except arbitrators, legally authorized to take evidence.”

Court, as mentioned in section 3 of the evidence act 1872 includes judges, magistrates and all persons except arbitrators are legally authorized to take evidence. The definition is not exhaustive in itself. In a trial by jury, the court does not exclude the jury. In such a case it means to include both the judge and the jury. Where the authorities under the M.P. Madhyasthan Adhikaran Adhiniyam are empowered to examine witnesses after administering the oath to them, they are a court within the meaning of Evidence Act. A district magistrate hearing an appeal under section 163 of the Municipalities Act is not legally authorized to take evidence and so it is not a court. An SDO hearing election petition under Panchayat Raj Act is not a court. Commissioner appointed under Public Servant Act is a court under the Contempt Of Courts Act. Industrial Tribunal under Industrial Disputes Act is not a court in the technical sense.

Fact:

“Fact means and includes-

of any right, liability, or disability, asserted or denied on any suit or proceeding, necessarily follows.

Explanation – Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.”

These are those facts which are alleged by one party and denied by the other in the pleading in a civil case or alleged by the prosecution and denied by the accused in a criminal case. These are the facts of which existence or the non-existence is disputed by the parties. The expression means the matter which is in dispute or which form the subject of investigation.

Document:

“Documents” means any matter expressed of described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.”

Document means any matter expressed or described upon any substance, paper, stone or anything by means of letter or marks. Computer database recorded in backups and files is a document. Television films are document. A tape record is a document. The electronic record produced for the inspection of the court is documentary evidence under section 3 of the Indian Evidence Act, 1872.

For example; a musical composition, a savage tattooed with words intelligible to himself, letters or marks imprinted on trees and intended to be used as evidence that the trees have been passed for removal by a ranger, are documents.

Evidence:

“Evidence means and includes

(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) All document including electronic records produced for the inspection of the Court, such statements are called documentary evidence.”

The word evidence signifies only the instruments by means of which relevant facts are brought before the court. For this purpose, the instruments adopted are witnesses and documents. It includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true or were themselves proven via evidence. Under this definition, evidence can be divided into two types:

Oral evidence: It means statements made by a witness before a court in relation to matter of fact under inquiry. Thus the oral evidence is the evidence that is given before the court.

Documentary evidence: When a document is produced in a case in support of the case of the party producing it, the document becomes the documentary evidence in the case. All electronic evidence produced for the inspection of the court are included in the document and therefore they are also documentary evidence. A document is an evidence only when it is produced for the inspection of the court.

Proved:

“A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

It means such evidence as would induce a reasonable man to come to conclusion. A fact is considered to be a proved fact when after considering all the matter and the evidence, the court believes the statement to exist so much so that a prudent man under normal circumstances will believe that the statement exists. In the case of M. Narsingha Rao v. State of Andhra Pradesh the Supreme Court held that a fact is said to be proved when after considering the matter before it the court believes it to be true. The standard of proof required is proving beyond reasonable doubt, yet it need not be absolute.

Disproved:

“A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.”

A fact is said to be disproved when after considering all the matter and the evidence, the court does not believe the statement to exist or highly doubts its existence so much so that a prudent man under normal circumstances will not believe it to be true. For proving a fact, the burden is always on the person who alleges that the fact is not true.

Not Proved:

“A fact is said not to be proved when it is neither proved nor disproved.”

The expression not proved indicates a state of mind in between proved and disproved; when one cannot say whether a fact has been proved or disproved. It is a situation where. Merely because a fact has not been proved does not mean that it is false. Its falseness can be established only when it is disproved. A fact which is not proved may be true or may be false. A doubt lingers upon its truthfulness. 8

B is legally married wife of A. Now that B is legally married wife of A is a conclusive proof of the fact that she is not the wife of C, therefore after the judgment mentioned above have been filed, court cannot allow B to adduce evidence to prove that she is wife of C and not of A.

Res Gestae:

Res Gestae means “things done”. It is a declaration that is uttered closely to the occurrence of an event that it can be used to prove that the event actually happened. It is automatic and undersigned incidents of a particular litigated act and which are admissible when illustrative of such an act. There incidents may be separated from the act by a lapse of time more or less appreciable. It is made at an event that proves that the event happened because the words were uttered upon witnessing the event. No uniformity exists in the length of time over which the transaction shall properly be held to extend. There is no limit as to the territorial boundaries within which the transaction must occur. For example, Res Gestae would exist if a person yelled ‘FIRE’ upon noticing that a fire had broken out in a crowded movie theatre.

Res Gestae is an exception to the principle that hearsay evidence is no evidence. In R v. Foster, the deceased has been killed in an accident by the speeding truck. The witness had not seen the incident but only the speeding truck. The deceased stated to him the incident. The court held the statement as a witness and admissible as evidence.

TOPIC 1 - RELEVANCY OF FACTS

Not everything holds value in the court of law, only certain events, and physical or abstract that are brought to court’s notice, through legal means, hold relevancy. Every event is a fact in itself and is made up of a number of facts. The law of Evidence was developed to chalk out the rule and principles to prove “facts.” The legal meaning of fact, as under The Indian Evidence Act:

(1) Anything, state of things, or relation of things, capable of being perceived by the senses;

(2) Any mental condition of which any person is conscious.

The second chapter in the law of evidence, ‘relevancy of facts’ can be considered as a tool to identify facts, appropriate to the case, from a plethora of them. These facts are called ‘Facts in Issue’ and help in steering the case towards a justifiable judgment. Only through evidence can they be proved and evidence has been defined as:

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(1)All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence

(2)All documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.

Section 5

This serves as a section to exclude the irrelevant facts. For example, if ‘A’ were to beat ‘B,’ with a club and an intention to cause his death, the following would form the facts in issue:

• A’s beating B with the club
• A’s causing B’s death by such beating
• A’s intention to cause B’s death

The concerned facts in issue are to be only dealt with, during the trials and the rest are not relevant to the court. If a suitor were to bring any new unrelated issue, it would neither be accepted nor be heard in the later stage of the case.

Res Gestae

This Latin term means, ‘things done.’ It is adopted from the English doctrine of res gestae, though the term is not used directly in Section 6 of the act, it is applied in Indian law. As Peter Murphy puts it, “To state a fact or event in isolation without reference to its antecedents in time, place or surrounding circumstances, may render the fact, difficult or even impossible to comprehend.” Hence, supporting facts are used to prove or give meaning to the facts in issue and these form the part of res gestae. It is an exception to hearsay evidence (Hearsay evidence is what one has heard and not seen).

Relevant facts could include both acts and omissions, and they could be isolated or contiguous but they should form a part of the transaction in question. In Milne v Leisler (7 H.&N. 796: 126 RR 704),the fact that the contractor wrote a letter to his broker to make enquiries was held to be a part of res gestae ; in deciding whether a contract was made as an agent or in a personal capacity.

Uncertainty regarding instant statements and a false narrative of a detached prior event was cleared in the case of Ratten v Reginam (3 All ER 801), where Lord Wilberforce said that it should be up to the Judge to satisfy himself that whether the statement was made in spontaneity and instantly or is a constructed narrative and hence, shall be excluded.

The Environment of Facts

Guilty mind begets guilty conduct. Conduct is taken as evidence because it is always guided, before or after, by what one has done. The conduct should be such which is affected by the facts or affects the facts. It doesn’t include statements until these statements are associated with conduct. Considering the leading case of Queen- Empress v Abdullah (1885 7 All 385 FB), the facts of which are: Abdullah had murdered a prostitute, aged between 15 and 20 years. He had slit her throat with a razor but the girl helped identify him by her conduct which was her hand gestures agreeing to questions asked. The defendant pleaded that this amounted to a statement but the learned judge held it to be subsequent conduct and prosecuted Abdullah for her murder.

Subsequent conduct includes activities done after the incident whereas previous conduct includes actions before the crime/incident. In Vikramjit Singh v State of Punjab (2006 12 SCC 306), it was held that if there is a nexus between conduct and crime, it doesn’t matter whether the conduct was subsequent or preceding, it will be relevant.

Section 9

Facts will help in supporting, rebutting, explaining or introducing relevant facts are also relevant under this chapter, for example, if a person is absconding soon after being accused of a crime, it is relevant as conduct subsequent and affected by facts in issue. In Sainudeen v State of Kerala (1992 Cr LJ 1644 Kerala), identification of the accused through his voice was relevant under this section.

This section also covers test identification parades (TI parades). Its utility was explained by the Supreme Court in Ramanathan v State of TN (AIR 1978 SC

1201. stating that the common and old practice of lining-up suspects for identification by eye-witnesses or by the victim becomes essential where the identity of the perpetrator is unknown.

Evidence to Prove Conspiracy

This part covers the following sections:

Section 10

This section states that whenever there is a reasonable ground to believe that two or more persons have conspired and a co-conspirator says, does or writes something, the evidence is relevant on a condition that the act must have a reference to their common intention. It is important to have a reasonable ground because conspiring against the government or nation is itself a crime.

Section 11

It gives relevancy to those facts which are irrelevant as such but become relevant because they are inconsistent with relevant facts and their existence in themselves or in connection with other facts make some fact in issue or a relevant fact highly probable or improbable. In Dudh Nath Pandey v State of UP (1981 2 SCC 166), the Supreme Court said that the plea of alibi must be proved with absolute certainty, so as to make the presence of accused at the crime scene, impossible. In Baij Lal v Ram Pratap (AIR 1982 Delhi 149), a seller divided his land in two and sold it in two different transactions to two different persons. The court held that the first sale deed will be considered and it was highly probable that the rest of the land was intended to be sold to the second buyer.

Section 12

As civil cases are not dealt with as seriously as the criminal cases, this section gives relevancy to any fact which will enable the court to determine the amount of damages to be awarded.

Section 13

This section was laid out to consider facts when a custom or a right is in question. Facts and evidence regarding the origin, modification, assertion, claiming or denial of a custom and those instances where the custom or right was practiced, recognized, claimed or denied are admissible.

Section 14

Section 14 is of importance as it accepts mental or bodily feelings as relevant. Mens rea or intention forms an important ingredient of a crime and hence, plays a vital role in determining the extent of liability of an accused. It leaves the finding out of mental or bodily feeling at the discretion of the court since it is impossible to find out what a man is thinking. It could be found out by other related facts and could help in proving intention, negligence or innocence. In Emperor v Wahiddin Hamiddin (1929 32 Bombay LR 324), the Bombay high court held that tendency to commit thefts could not prove an intention to commit dacoity or conspiring to commit dacoity. Previous convictions are excluded as evidence under Section 54 of the act but if the same offence is repeated, again and again, it may lay a ground for clearing the intention of the accused, as was held in Emperor v Allcomiya Husan (1903 ILR 28 Bombay 129).

Evidence of Similar Facts

The general principle is to exclude the evidence of similar facts or past prosecution (as stated above), this principle is applied as an exception, only in those cases where there

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“An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances hereinafter mentioned.”

The definition states that evidence can either be oral, documentary or be contained in electronic form (inserted by Information Technology Act, 2000). Its relevancy is depended on whether if, it satisfies the conditions mentioned in sections 18 to 23 of The Indian Evidence Act, 1872. Surprisingly, in common parlance, ‘confession’ is used to refer to adverse statements made by a competent party but it comes under the purview of admission. Admission is a broader term and includes confessional statements. Confession is nowhere defined in the act but the conditions for its relevancy are given in sections 24 to 30.

ADMISSIONS

As already defined above, admissions are statements that attach a liability, as inferred from the facts in issue or relevant facts, to the party who made such statements; the statement, denouncing any right, should be conclusive and clear, there should not be any doubt or ambiguity. This was held by the Supreme Court in Chikham Koteswara Rao v C Subbarao (AIR 1981 SC 1542). They are only prima facie proof and not conclusive proof.

Admissions can be either formal or informal. The former also called judicial admission is made during the proceedings, while the latter is made during the normal course of life. Judicial admissions are admissible under Section 58 of the act and are substantive. They are a waiver of proof, that is, no further proof is needed to prove them unless the court asks the same. The Supreme Court in Nagindas Ramdas v Dalpatram Ichharam (1974 1 SCC 242) explained the effect of it, stating that if admissions are true and clear, they are the best proof of the facts admitted. Through informal or casual admission, the act brings in every written or oral statement regarding the facts of the case (by the party), under admission.

A person’s conduct may also be taken as an admission. In an Australian case, Mayo v Mayo (1949 P 172), a woman registered the birth of her child but did not enter the name of the father or his profession. The court said that either she did not know who the father was or she was admitting that the child is illegitimate. In either case, there is an admission of adultery and an admissible evidence of adultery.

Before any admission becomes relevant, it should meet certain conditions, which are explained further down below.

Section 18, 19 & 20

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These sections lay down the list of persons whose admission will be relevant. Section 18 lays down the rules for parties to the suit and sections19 & 20 lay down rules regarding relevancy for third parties. They are:

1. PARTIES TO THE SUIT: All statements made by parties to the suit that makes an inference as to a relevant fact or fact in issue is relevant. In case of defendants, a defendant’s admission does not bind his co-defendants as, then, the plaintiff would defeat the case of all defendants through the mouth of one. In case of the plaintiff, since they all share some common interest, the admission of one plaintiff is bound on co-plaintiffs (Kashmira Singh v State of MP AIR 1952 SC 159).
2. AGENTS OF PARTIES: As the law of agency dictates, anything done by an agent, in the normal course of business, is deemed to have been done by the principal himself (qui facit per alium, facit per se). Hence, if an agent is impliedly or expressly been asked to make an adverse statement, the same shall be relevant. A lawyer does not come under this section.
3. STATEMENTS IN REPRESENTATIVE CHARACTER: A person who sues or is sued in a representative character. These refer to people such as trustees, administrators, executors, etc. Nothing said in their personal capacity is taken as admission but if said in the representative capacity, it counts as an admission.
4. STATEMENT OF THIRD PARTIES: These include:

• Persons having proprietary or pecuniary interest in subject matter, provided, their statements are in the character of their interest.
• A predecessor-in-title, that is, from whom the parties have derived their interest in the subject-matter of the suit. This is applicable only if the parties to the suit continue holding their title. The previous owner of the title to the property can make admissions regarding the property and not the parties or the new owner.

Section 21

This section is regarding the proof of admissions. It states that, since an admission is an evidence against the party who has made it; it cannot be proved by the party but has to be proved against the party. It is better explained by Crompton J in R v Petcherini (1855 7 Cox CC 70): If a man makes a declaration accompanying an act it is evidence, but declarations made two or three days, or a week, previous to the transaction in question cannot be evidence, otherwise it would be easy for a man to lay grounds for escaping the consequences of this wrongful acts by making such declarations.

It can, though, be proved in favour of the party, if, the party who made the statement, originally, died. This comes under Section-32 of the Indian Evidence Act and the

killing his own daughter which was overheard by the witness. This was held to be confession relevant in evidence.

Section 24

This section makes those confessions irrelevant which are:

• A result of inducement, threat or promise;
• Inducement, etc be made from a person in authority;
• It should relate to a charge in question; and
• It should hold out some worldly benefit or advantage.

The law considers confessions, which are not made freely, as false. A government official is considered to be a person in authority as they are deemed to be capable of influencing the course of prosecution (R v Middleton, 1974 QB 191 CA). The benefit promised should be reasonable and make the accused believe that he would gain an advantage from it and an evil which the accused is threatened with should be of a temporal nature.

Confession to Police

Section 25 to 30 talks about confessions to police.

1. SECTION 25: It provides that no confession made to a police officer shall be provable or relevant. This is to protect the accused who might be tortured to extract out a false confession. If a person is confessing in front of someone else, it will not be irrelevant just because of the presence of a policeman around. This section only applies to confessional statements, orally or in FIR; other admissions can be taken as evidence to prove facts or facts in issue.
2. SECTION 26: This section is similar to the preceding one and states that no confession of a person, in police custody, is provable. It applies the same context that a false confession could be extracted out through fear or torture. It not only applies to confessions to a policeman but to any other person. Police custody does not only mean within the four walls of a police station, but it could also mean police control in a home, a car or a public place. The only exception to this rule is that if the confession is made by the person in presence of a Magistrate, it will be admissible.
3. SECTION 27: If a statement leads to a discovery of a fact related to the crime, it becomes admissible, even if it was extorted out of the accused. This acts as an exception to Section 26. To certify the genuineness of the recoveries, they should be made in presence of witnesses. In Mohan Lal v Ajit Singh (AIR 1978 SC 1183), the accused, on arrest, indicated where he had kept the stolen goods

and the same were found within six days. The court held that his liability can be inferred from the statement and was held liable for murder and robbery. A statement made cannot be used against other co-accused, as was held in Satish Chandra Seal v Emperor (AIR 1943 Cal 137).

4. SECTION 28: If the inducement, threat or promise, as defined in section 24 is removed, a confession afterwards, becomes relevant. Here, the confession is free and voluntary.
5. SECTION 29: Unlike admissions, where a ‘without prejudice’ statement is inadmissible, a confession that is made by a promise of secrecy is admissible. The law is only concerned with the confession being free and voluntary, hence, even if deception or fraud is being employed or the person is inebriated or if he is made to answer questions, he was not supposed to, the confession made through all these methods is admissible. In R v Maqsud Ali (1966 1 QB 688), two accused were left alone in a room where they thought they were all alone but secret tape recorders had been implanted in the room. The confessions thus, recorded were held to be relevant.
6. SECTION 30: This section comes into play when more than one person is jointly accused of the same offence. Here, if one of the co-accused makes a confession regarding himself and some other such persons, the court will take that confession into account against the accused and his co-accused. In Kashmira Singh v State of MP (AIR 1952 SC159), a person named Gurbachan, along with 3 others was accused of the murder of a child. Through his confession, the prosecution was able to give shape to the story and he, with Kashmira Singh was held liable and sentenced to death. Kashmira was acquitted by the Supreme Court on an appeal as uncorroborated confession was not deemed enough to deprive a person of the right to life.

DIFFERENCE BETWEEN ADMISSION &

CONFESSION

In the end, it shall be important to discuss some differences between admission and confession as they are not essentially the same. As the definition of admission is also applicable to that of confession and confession comes under the topic of ‘admission,’ it can be inferred that admission is a broader term and it covers confessions. Hence, all confessions are admissions but not all admissions are confessions.

Confessions, usually, refer to admissions made in a criminal case whereas an admission is a relevant statement made in a civil case. As was held in cases Pakala Narayan Swami v Emperor andPalvinder Kaur v State of Punjab (cited above), that a confession must go further and admit the guilt in terms or substantially the facts from

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