Lawwatch

Indian Evidence Act in a Nutshell

Evidence: What it means

The term evidence is a bit ambiguous one. It refers to what is adduced
by a party in a court in order to establish a fact or its truth.

Evidence essentially refers to those things that make the truth of a
disputed matter quite evident to a court.

About Indian Evidence Act, 1872

Indian Evidence Act, 1872 is a procedural law. It governs the use of
evidence in a judicial proceeding in a court. It covers the relevance,
admissibility, burden of proof, mode of proof, weight and sufficiency of
evidence in a legal proceeding.

The act consists of three parts

Indian evidence act has three major parts.

The first one describes the relevancy and admissibility of evidence. The
second part focuses mostly on the types of evidence. The third part
deals with the burden of providing evidence.

Basic concepts & the Concepts of relevancy & admissibility

The Part I of the act - Sections 1 to 55 - describes the definition of
terms, and the concepts of relevancy and admissibility of evidence
in a judicial proceeding.

Basic concepts relating to evidence

The act stipulates that evidence in a court must be given of facts in
issue
and relevant facts alone.

The term fact in issue is a fact about which any right is asserted
or denied in a suit in a proceeding of a court, by the contesting
parties. That means a fact in issue is a fact about which a dispute
exists.

The term relevant fact refers to the connection of a fact with the
fact in issue being disputed in the court. When one says one fact is
relevant to some other fact, it means that the former fact is
somehow connected to the latter.

Evidence is adduced in the form of either oral statement (deposition
of a witness) or as a document (a sale deed). A third kind of evidence
is the material object such as a knife or gun or rod used as a tool in
a criminal action.

The term document includes a range of things. It differs from a sale
deed
to a statement of an expert to some inscriptions on stone to
an electronic text. It is a piece of recorded information. It
expresses some meaning.

Oral evidence includes the vocal statements made by the witness or the
expert during the trial before the court.

The term proved means the court believes in the existence of the fact.
The term disproved means the court does not believe its existence. The
term not proved means the existence of a fact is neither proved nor
disproved.

Therefore proving a fact means persuading a court to believe a fact
in a dispute contested in a court exists.

Similarly, the term may presume, whenever it appears in a statute or
any other legal document, means that the court either may believe or
may not believe it. The term shall presume when it occurs means the
court definitely believes it.

Concept of relevancy in the Act

During a trial or proceeding in a court, no evidence is required on any
fact which is not related to the fact in issue.

However, if a fact is an integral part of a transaction closely
connected with a fact in issue, the court can consider it as
relevant, even if it is not relevant to the fact in issue.

Concepts of relevance & admissibility

The concept of relevance governs the admission and use of evidence. If
the evidence does not relate directly or indirectly to the issue at
hand, it should not be admitted as proof.

The term relevance** *in this context means that the evidence in
question is closely connected or logically related to the matter at
hand.
Relevant evidence* is the evidence that is logically connected to
the fact that is being established.

The term relevance refers to the degree of connection between a fact
that is given in evidence and the issue to be proved. A fact is
relevant only when it is related to the fact in issue.

The term admissibility refers to the process whereby the court
determines whether the law of evidence permits that relevant evidence,
to be received by the court or not.

An irrelevant fact is normally not admissible in the court. However,
in certain cases, evidence, which is not relevant, may still be
admissible. The evidence act delineates a distinct line between relevant
& irrelevant facts, and admissible & inadmissible facts.

All the facts which provide some sort of evidence to the
circumstance (occasion), cause and effect of the fact in issue
can be taken as relevant in a case.

Circumstantial evidence is the type of evidence which tends to prove a
fact
by proving the events from which the fact basically evolved.

If a motive or preparation is present in any fact relating to a
fact in issue, that fact can be taken as relevant. Any fact which is
necessary to explain any fact in issue is relevant in a proceeding.
Similarly, anything said or done as part of a conspiracy in reference to
a common design is also a relevant fact.

On the other hand, any fact that remains inconsistent with a fact in
issue
is a relevant fact even if it is irrelevant otherwise. An
irrelevant fact will become a relevant one if it makes the existence
or nonexistence of any fact in issue a reality. In deciding a
compensatory claim for damages, any fact including the irrelevant one
which is helpful in arriving at the damage, becomes relevant. When a
right or custom is being contested in a case, the related things that
created such a right or custom become relevant.

The facts relating to the state of bodily feeling - such as a state of
mind - are relevant ones. Similarly, so as to know whether something
done is quite accidental or intentional, or done with a particular
intention or knowledge, it must be examined if it forms part of a
natural series of closely connected or related events. If any act forms
part of a natural transaction of events, one cannot attribute a
particular intention in its occurrence. Likewise, the course of a
business, such as an instance of sale or an act of mortgage, is relevant
if a fact in issue forms part of such a course in a business.

Concepts of admission & confession

The concept of admission is quite important in law of evidence. The
term admission refers to a statement made by a party or his agent who
has admitted some sort of liability in a matter in issue, in a court
during its proceedings.

Admission is a voluntary acceptance of liability. Oral admission in
regard to a matter that is heard or seen is relevant. But in regard to
the contents of a document including electronic document, oral admission
has no relevance at all. That means oral admission regarding the
contents of a document cannot be made admissible as evidence to the
court. Therefore in order to prove the contents of a document, the
document itself need to be produced as evidence.

Confession is yet another term in the law of evidence. An instance of
confession made under any sort of coercion, threat or promise is not
relevant. But when the threat or promise is removed, the confession then
made is relevant.

Extra judicial confession made before a Police Officer or when the
accused is in custody is not relevant in a judicial proceeding. A case
of confession made by a person under a fair trial for some offence is
applicable to all other accused persons involved in the case.

Admission itself is not considered a conclusive proof. But it may
operate as estoppel.

Statement of a person who is dead is relevant. Likewise, evidence in one
judicial proceeding is relevant in another proceeding.

The entries naturally made in a book of account in the course of a
business are relevant. The statements in legislative acts or
notifications are relevant. The statement that contains in an
authoritative book is relevant. Only statements that are relevant to a
fact in issue are needed when they form part of a series of
transactions.

Any previous judgment is relevant to a subsequent suit. Judgments on a
matter of public importance are relevant but on probate, insolvency
etc., they are not relevant.

However, when a judgment is not related to a fact in issue, it is not
relevant to the case. And a collusive judgment is also not relevant if
the collusion is proved by the other party.

Relevance of expert opinion

Expert opinion is relevant in a judicial proceeding. But irrelevant
facts become relevant, if they are consistent with the expert opinion.
Opinion on handwriting is relevant when the court has to find out
whether any person has written or signed in a disputed document produced
in a case. Opinion of a person knowing the custom is relevant if the
disputed issue is the existence or non-existence of a custom. Opinion of
a person knowing the relation is relevant when such a relation is a fact
in issue.

The ground of an opinion in an expert opinion is relevant in a
proceeding. In civil cases, character is wholly irrelevant except when
in deciding damages. In criminal cases, previous good character is
relevant but previous bad character is not.

Whether a fact is relevant or not is more or less a question of fact to
be decided by the judge based on his/her discretion. But whether it is
admissible or not is a question of law, mostly dependent on the statute
in force.

All relevant facts may not be admissible, but all admissible facts are
relevant. Relevancy is based on logic, but admissibility relies on
the laws in force then. A fact may be logically relevant to a particular
case. But that fact must be legally admissible if it has to be admitted
as evidence in a court. So the items of evidence that would come before
the court must be both logically relevant and legally admissible.

On poving facts by oral & documentary evidence

The Part II of the Indian Evidence Act (Sections 56 to 100) deals with
proving facts by oral and documentary methods in a judicial
proceeding.

When a fact is proved

A fact, being contested in a case before a court, is considered to be
proved only when the judge tends to believe its existence. If the
judge disbelieves its existence, it remains disproved.

However when the fact is either proved or disproved then it means
that the fact is not proved at all. In other words, the term not
proved
means neither proved nor disproved.

Whose responsibility is to provide evidence?

The existence of a fact should be proved in a court by the party who
wants the court to believe that it exists.

However such proving of facts is unnecessary when:

  • the fact is admitted, even in an implied manner, by the other party

  • the court can take judicial notice of the fact

  • there is some judicial presumption regarding the fact

Admitted facts need not be proved

Admitted facts need not be proved. The admission of facts is done by
admitting it either in the written pleadings or in oral statements
during the hearing, by the parties.

An admission is a statement (either in oral form or documentary
form) made by any party to a proceeding. It refers to the admissibility
of any fact in issue or a relevant fact in a case. Any admission
is a substantive piece of evidence. But it is not a conclusive proof.

No proof needed for judicially noticeable facts

Any fact, which a court can take judicial notice of, need not be proved.
Judicial notice is the cognizance the court itself can take on matters,
which are well established or publicly known, without any particular
proof. A thing, which is repeatedly recognized by the court and formed
part of the law of the land, requires no specific proof.

Certain items which the court is bound to take judicial notice are
listed in the act, under its Section 57, in an indicative manner. It is
not an exhaustive list.

As per the Section 57, the laws or rules in force, the proceedings in
the legislative bodies, names, functions & signs of public officers, the
geographical distinction of territories, the specialized knowledge in
history, art or science, the name & address of judicial functionaries,
etc which can be taken notice of by the court itself, need not be proved
by the parties. The court can use appropriate books or documents to take
notice of them.

Manner of proving facts

Two methods of proving facts are by oral evidence and by documentary
evidence
. A third method is production of material objects such as
knife, gun or iron rod used in a criminal action.

Oral evidence

Oral evidence can be used to prove any fact, except the contents of a
document. The contents of a document must be proved by producing the
document itself.

The oral evidence adduced must be direct evidence from persons with
firsthand knowledge of the fact. Hearsay evidence obtainable from
persons with second hand knowledge must be excluded.

Direct oral evidence means the evidence that is provided by the person
who has seen it, heard it or perceived it though the senses, in a
judicial proceeding.

If any oral statement refers to the existence or condition of a
material object the court may require the production of the object
itself.

Documentary evidence

Documentary evidence is the type of evidence in which a matter is
expressed on any substance in the form of letters, figures or marks
which constitutes some inference or meaning.

The contents of a document may be proved either by primary evidence or
secondary evidence during the court proceedings.

Admitting a document during a proceeding means admission of its
contents
but not the truth of its contents. The truth of the contents
of a document needs to be established during the trial proceedings.

Primary evidence means the original document itself is produced
before the court. When multiple copies of a document are brought out
using a uniform printing process each copy of such a document is primary
evidence in regard to the contents of each one. But a copy thus produced
is not a primary evidence of the contents of the master copy of the
document.

As far as possible, the contents of the document must be proved by
primary evidence. But the act specifically permits proving of some other
types of document by secondary evidence as well.

Secondary evidence is any derivative proof such as copies, extracts
etc of a primary document. The Secondary evidence includes:

  • Certified copies of the document

  • Copies made from the original

  • Counter parts of documents

  • Oral accounts of contents of documents by some persons who have seen
    it

A certified copy is a copy of the original document signed and
certified as correct by the official who has the custody of the
original. The contents of a document cannot be proved by secondary
evidence
unless there is reason for receiving it. If a piece of
secondary evidence is admitted in a proceeding with no objection in
the trial court, then any objection regarding its admissibility cannot
be raised by that party in the appellate court. However, irrelevance
of a piece of evidence already admitted at the trial, can be raised at
the appellate stage

If any original document itself is inadmissible due to deficiencies like
non-registration or insufficiency of stamping, then its copy cannot be
admitted as secondary evidence. Existence of relevant primary
evidence
is a pre-requisite for admitting any piece of secondary
evidence
in regard to it. In other words, any secondary evidence
relating to inadmissible primary evidence is not admissible.

Secondary evidence cannot be admitted except on the ground mentioned
in Section 65 of the act. The law does not make any distinction between
the classes of secondary evidence in regard to validity.

Public and private documents

The documents are of two types - public documents and private
documents
.

A public document is a document generated by a public authority or
public officer during the course of some public duties. It includes
public records relating to private documents kept by any authority or
body of the State.

A private document which is kept by a public officer is not a public
document
. But entries relating to private documents made in the records
kept by the public office are public records.

Registration of a document does not make the registered document a
public document. A registered sale deed is not a public document.
Its execution, contents etc have to be proved in the manner a private
document is proved.

Admission of any document amounts to admission of its contents, but not
the truth of its contents. The truth needs to be proved separately.

Certified copies of documents

When a document is a public document and it can be inspected by a
person then he is entitled to obtain a certified copy of it on paying a
required fee.

When the law prescribes that the terms and conditions of a contract,
grant or other disposition of property have to be in written form, then
written document alone can be given in evidence in regard to such
execution. When a set of oral transactions has been reduced to writing
the set of transactions itself will become a piece of documentary
evidence. In such a case, no oral evidence can be admitted to contradict
such transcripts.

Law presumes that every certified copy of public document is a genuine
document.

Attesting witness must give evidence

When a document, except a Will, is registered it is not necessary to
call an attesting witness unless there is denial of execution by the
person who had executed it. In the case of a registered Will, the
attesting witnesses need to be called for giving evidence.

When there is an allegation that a document is signed or has been
written by a particular person, the person’s sign or hand writing need
to be proved.

If a document is to be attested as per law, such a document cannot be
used as evidence unless one attesting witness has been called for. The
endorsement made by a Sub-Registrar before a court that the executants
of the document had admitted the execution of the document while
registering it before him amounts to attestation. If a document is
attested, then the attesting witness must be called for testimony as to
the validity of the signature in it.

Clearing the ambiguities in documents

In general, it is not possible to prove the contents of a document by
external oral testimony. But if the intention expressed in a document is
basically clear but leaves some confusion due to lack of specificity or
ambiguous use of language, external oral testimony is admissible. If the
ambiguity is apparent, then the contents cannot be proved by oral
testimony.

That means extrinsic oral evidence may be admitted to bring in clarity
in a document which leaves some confusion due to equivocation - use of
vague or ambiguous language. However when the language of a written
instrument is perfectly plain, no construction is permissible to
contradict the writing.

Burden of Providing Evidence

The part III of the evidence act - Section 101 to 167 - deals with
burden of proof and witness examination.

Which contesting party in a judicial proceeding has the duty to provide
evidence is determined on the basis of some judicial principles. They
are laid down in Part III of the evidence act itself.

Who holds the burden of providing evidence?

First of all, the burden of providing evidence rests on the person who
asserts anything in the court. It is not on the party who denies it.
This burden remains constant and never shifts to the other party.

Then the burden of providing evidence in a suit or proceeding lies on
the person who would fail if no evidence is given on both sides. This
burden shifts from one side to another at every instance in the course
of the proceedings.

Then the burden of providing evidence lies on the person who wants the
court to believe something, unless law has prescribed something
different.

In order to make some evidence admissible, it is quite necessary to
prove beforehand that the person providing evidence is entitled to give
that evidence.

The burden of proving an exceptional circumstance in an offence, such as
unsoundness of mind of the accused or grave and sudden provocation,
rests upon the accused.

Whenever any fact is within the knowledge of a person, the burden of
proving the fact rests upon that person.

If a person is shown to be alive within 30 years, the burden of proving
that he is not alive is on the person who affirms it.

On the other hand, if a person has not been heard of for seven years, by
those who would naturally have heard of him, the burden of proving that
he is alive is on the person who affirms that he is alive.

Some judicial presumptions

If some relationship like that of partners in a partnership, landlord
and tenant in a tenancy relation, principal and agent in a contractual
relation etc is in question, then there is a judicial presumption that
such a relationship continues to exist, till the contrary is proved by
the person who affirms it.

When a person is in possession of a property, the burden of proving that
he is not the owner of it is on the person who affirms that the
possessor is not its owner.

The good faith in a transaction, such as a sale, between parties has to
be proved by the person who stands to the other in a position of active
confidence in a bonafide transaction.

If a child is born within 280 days after the divorce of the spouses, it
is a conclusive proof that it is a legitimate child. But this
presumption will not hold good if it can be proved that the husband and
wife had no access to each other in those days.

In the case of some offences like terrorists attack, abetment of suicide
by a married woman, dowry death of a woman, and absence of consent in a
rape case, coming under sections 111A, 113A, 113B & 114A of the Indian
Evidence Act respectively, the burden of proving lies on the accused.

Estoppel not acceptable

Estoppel means barring a party to take a stand about a thing at one time
and just its opposite at another time.

That means a party in a judicial proceeding shall not be allowed to say
one thing at a time and the opposite of it at a later time. Therefore
when a person makes others believe one thing in a proceeding, he cannot
deny it at a later stage.

Different types of estoppels

When a matter is settled by consent in a competent court, the parties
are precluded from re-agitating it afresh, by taking a new stand. This
is called res judicata or estoppel by record.

Therefore a person who stated something in a deed cannot deny it later
and assert something else. This is called estoppel by deed.

A person who claims as a tenant cannot later deny that the landlord had
no title at the time of the tenant’s entry when a tenancy related
licence is in question.

Similarly, the acceptor of a bill of exchange cannot say later that the
drawer had no authority either to draw the bill or endorse it.

Competency of a witness

In general, any person is legally competent to give evidence. But in the
case of a child or a lunatic person the court will conduct a precursor
test to identify whether the witness has competency to give evidence.
The preliminary enquiry is called voire dire test. In this test, the
judge will put some general questions to the individual so as to test
the witness’s competency.

Compelling a witness to provide evidence

Any person is competent to testify as a witness unless he/she, being so
young or quite old in age, or unsoundness of mind, suffers from problems
like inability to understand the questions.

Any witness can be compelled by the court to answer any question put to
him. However a witness cannot be compelled to answer some questions
which are privileged. For example a husband and wife are generally
competent witnesses. But they cannot be asked to disclose the
communication in a matrimonial relation between them, which is
privileged, except in any suit or proceeding between them. No
communication of whatsoever nature made between them shall be compelled
to be disclosed without consent of the concerned party in any other kind
of suit or proceeding. This privilege exists even after divorce.

Similarly, a judge cannot be compelled to answer any question regarding
anything which came to his knowledge as a judge, without an order of a
superior court to which he is subordinate. But he can be questioned
about something he witnessed while he was acting as a judge.

Ban on disclosing official records

No officer is allowed to give evidence regarding unpublished official
records relating to any affairs of the State, without obtaining
permission of the Head of the Department.

An officer shall not be compelled to disclose any communication made to
him in official confidence, if he considers such disclosure would go
against public interest.

A magistrate or officer shall not be compelled to answer the source of
his information regarding the commission of any offence. Similarly, a
revenue officer should not be asked to disclose the source of
information regarding the offence against public revenue.

Professional communication between the lawyer and the client is
insulated from disclosure. But any communication pertaining to any
illegal action between them is not precluded from disclosure.
Information on any crime committed by the legal counsel during his
engagement as an advocate is not protected.

Examination of witnesses

The party on whom the burden of proof lies should begin examination of
witnesses by calling his witnesses - this is called
Examination-in-Chief.

Then, the opposite party should examine the witness - this is called
Cross Examination.

Thereafter, the party who called him for Examination-in-Chief can
re-examine the witness on answers given in Cross Examination.

Examination-in-Chief

In Examination-in-Chief, a witness may be asked questions relating to
relevant facts and facts in issue. Leading questions are not usually
allowed in Examination-in-Chief. Questions that are irrelevant can also
be asked if they are useful in corroborating the testimony of the
witness.

When the witness gives answer on any fact, he can be questioned as to
any circumstance which occurred around such time or place of occurrence
of the fact. This is permitted only when the court is of the opinion
that such circumstances would help in corroborating the testimony of the
witness to the fact in issue. However, a statement of witness made to
a police officer shall not be used for such corroboration.

No leading question is allowed in Examination-in-Chief if the other
party objects to it. But it can be asked when the court permits it. The
court usually permits leading questions in matters of introductory
nature or of already proved facts. But in re-examination, no leading
question is allowed.

A party calling a witness can cross examine him when he turns hostile. A
witness can be allowed to refresh his memory by looking at the records
made by him at the time of the transaction in question. The other party
should be shown the record if the other party demands.

Cross Examination

Cross Examination is the most fruitful test to discover the truth. But
relevant facts alone must be enquired into, in the process.

In cross examination, a witness can be asked questions regarding his
previous statements in writing, by showing or without showing the
record. The scope of cross examination is limited generally to relevant
facts alone, but some other facts may also be asked to test his
credibility.

Harassing the witness

The court can direct the witness not to answer any question asked by the
counsel exclusively to harass him or injure his character. The court can
forbid any question which is needlessly offensive, even if the question
is a proper one.

However the credibility of any witness can be impeached by proving that
the witness is bribed or his statement is inconsistent with the former.

Re-examination

The purpose of re-examination is to afford the party an opportunity to
explain the inconsistencies made in the cross examination.

If any new matter is asked in re-examination, the adverse party has a
right to cross examine him again on that particular point.

Judge’s power to ask questions

At any stage of the proceeding, the judge has the power to ask any
question on relevant or irrelevant facts to the party about anything, in
any form so as to obtain proof of any relevant fact.

He can also order the production of any document or thing. The parties
can neither object nor cross examine the witness, on such questions.
However, the judge cannot compel a party to answer a particular question
or produce a particular document which he refuses to answer or produce,
when it is a privileged one.

A trial judge is not a mute or blind spectator, nor is he a dynamic
functionary. He asks questions so as to get evidence in a detached and
dispassionate manner with the object of ascertaining truth of the
disputed matter. It is an extraordinary power, but the judge should not
usurp the power of a counsel.

Every trial is a voyage in search of truth. If prosecution fails to do
its duty, the trial court should be vigilant enough to put such
questions to discharge its duty.

No criminal action on witness

No criminal action can be taken on any witness for any answer he gave in
a witness deposition, except for the offence of giving false evidence.
Therefore, a witness cannot be excused from answering any relevant
question, fearing incrimination for telling anything during witness
examination.

A person, who is not a party to suit, cannot be compelled to produce any
document that would incriminate him, unless he has agreed to produce it.

Improper admission & rejection of evidence

A court of appeal or revision should not disturb a decision of the lower
court on the sole ground that there was improper admission or rejection
of proper evidence at the trial stage, if there are sufficient other
independent materials to prove the decision in the judgment.

That means, improper admission or rejection of evidence alone is not a
sufficient ground to allow a new trial or reversal of any judgment by
the appeal court.

Conclusion

The law of evidence plays a great role in administration of justice. For
that it is essential to provide reliable, relevant and admissible
evidence to establish the substantive rights of the contesting parties
in a court of law. The law makes the job of providing and proving
evidence foolproof.