Introduction to Evidence Act

Introduction to Evidence Act

When a dispute, whether relating to a civil or criminal matter, reaches the court there will always be a number of issues which one party will have to prove in order to persuade the court to find in his or her favour. The law must ensure certain guidelines are set out in order to ensure that evidence presented to the court can be regarded as trustworthy. The law of evidence governs the use of testimony (e.g., oral or written statements, such as an affidavit) and exhibits (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by the trier of fact, such as jury) in a judicial or administrative proceeding (e.g., a court of law).

According to Chief Justice Monir Law of Evidence can be defined, ‘ as a system of rules for ascertaining controversial questions of fact in judicial enquiries. It bears the same relation to a judicial investigation as logic to reasoning

Law of evidence is basically a procedural law but some of its provisions do come also under the substantive law. According to Sir James Stephen, ‘the Law of Evidence is that part of the law of procedure which, with a view to ascertain individual rights and liabilities in individual cases, decides

what facts may, and what may not be proved in such case

what sort of evidence must be given to a fact which may be proved and

by whom and in what manner the evidence must be given by which any fact may be proved.

Substantive law

Adjective law

Objective of Evidence Act

One great object of the Evidence Act is to prevent laxity in the admissibility of evidence, and to introduce a more correct and uniform law of practice than that was previously in vogue.

It is elementary that each case must be decided on the evidence recorded in it and the evidence recorded in another case cannot be taken into account in arriving at a decision. Even in civil cases this cannot be done unless the parties agree that the evidence in one case may be treated as evidence in the other. In criminal cases courts are more reluctant to permit an evidence recorded in one case be considered in another case. It is doubtful whether the evidence recorded in one criminal case can be treated as evidence in the other, even with the consent of the accused.

Scope of the Evidence Act

Preamble

Whereas it is expedient to consolidate, define and amend the law of Evidence; it is hereby enacted as follows

The short title in section 1 identifies that the Act may be called the Evidence Act, 1872.

section 1 further gives description that  it applies to all judicial proceedings in or before any Court, including Courts martial, other than those convened under the Army Act, 1952, the Naval Discipline Ordinance,1961, and  the Air Force Act, 1953.  It shall not apply to any affidavits presented to any Court or officer nor shall it apply to proceedings before an arbitrator.

The Evidence Act is divided into three parts, eleven chapters and 167 sections.

Part I on Relevancy of Facts contains Chapters I (Ss. 1-4) and II  ( Ss. 5-55)

Part II contains on Proof contains Chapters III (Ss. 56-58), IV (Ss. 59-60), V ( Ss. 61-90) and  VI (Ss. 91-100)

Part III on Production and Effect of Evidence contains Chapters VII (Ss 101-114), VIII (Ss. 115- 117), IX Ss. 118- 134),  X (Ss. 135- 166 and  XI ( S. 167)

FACTS
In Issue (S.3)	Relevant Facts (S.3)
Facts relevant to the issue may be
a. connected with the issue (Ss 5-16)
b. admissions (Ss. 17-31)
c. Statements made by persons who cannot be called as witnesses (Ss. 32-33)
d. Statements made under special circumstances Ss. 34-39)
e. judgments of courts (Ss. 40-44)
f. opinions  (Ss. 45-51)
g. character (Ss. 52-55)

Fact in issue and relevant facts may be ---
a. judicially noticed (Ss. 56-58)
b. proved by oral evidence  (Ss. 59-60)
c. proved by documentary evidence (Ss. 61- 100)
Primary or Secondary Ss. 61-66	Attested or Unattested (Ss. 67-73)	Public or Private (Ss. 74-78)	Sometimes Presumed to be Genuine (Ss. 79-90)	Exclusive or not of Oral Evidence (Ss. 91-100)

Proof must be produced by the party on whom the burden of proof lies (Ss. 101-114)

unless he is estopped (Ss. 115-117)

If proof is given by witness (Ss. 118-134)

they must testify subject to rules of examination (Ss. 135-166)

consequence of any mistake is within the domain of the Court (S. 167)

Principles of Law of Evidence

the following are the main principles which underlie the law of evidence

Evidence must be confined to matter in issue

hearsay evidence must not be admitted and

best evidence must be given in all cases

Evidence excluded by the Evidence Act as inadmissible, should not be admitted merely because it may be essential for ascertainment of truth.

The uncontestable rule in regard to evidence is that the party who is to prove any fact must do it by the highest evidence of which the evidence, the introduction whereof raises the presumption nature of things is capable.

The Act is not exhaustive.

Generally speaking, rules of evidence are the same in civil and criminal proceedings. In both , it is a rule that hearsay evidence is excluded and best evidence must be given.

Civil	Criminal
preponderance of probability	proof beyond reasonable doubt
admission	confession
estoppel	dying declaration
document	competency of witness
rules of evidence may be relaxed with consent of the parties or order of the court	not possible
parties place the case	State place the case

Lex Fori

The Law of Evidence is lex fori meaning the law of the place of action.  Al questions relating to the admission or rejection of evidence shall be determined by the law of the country where the question arises, where the remedy is sought to be enforced and where the court sits to enforce it.

Where evidence  is taken in one country in aid of a suit or action in another country, either on ordinary commission or with assistance of local courts, the law appliocable to the recording of the evidence would be the law prevailing in the country where the proceeding is going on.

For example, A lends money to B in England. they enter into a contract according to the English law. A brings an action against B in a court in Bangladesh. A tenders evidence  to prove his debt which is admissible under the law of England but is inadmissible under the law of Bangladesh. The evidence is admissible so it cannot be adduced.

Section 2is repealed by the Repealing Act, 1938 (S.2 and Sch of 1 of 1938)

Repealed Section 2 stood thus

2. Repeal of enactments - On and from that day the following laws shall be repealed;

(1) all rules of evidence not contained in any Statute, Act or Regulation in force in any part of British India;

(2) all such rules, laws and regulations as have acquired the force of law under the 25th section of the Indian Councils Act, 1861 (24 & 25 Vict.c.67), in so far as they relate to any matter herein provided for; and

(3) the enactments mentioned in the schedule hereto to the extent specified in the third column of the said schedule.

But nothing herein contained shall be deemed to affect any provision of any Statute, Act or Regulation in force in any part of British India and not hereby expressly repealed.

Section three presents interpretation clause.

Court (S.3)

Court includes all Judges and Magistrates and all persons, except arbitrators, legally authorised to take evidence.

Fact  (S.3)

Fact means and includes

anything, state of things, or relation of things, capable of being perceived by the senses (physical)

any mental condition of which any person is conscious (psychological)

Relevant (S.3)

One fact is said to be  relevant to another when the one is connected with the other an any of the ways referred to in the provisions of this Act relating to relevancy of facts

Relevant facts are facts so connected with each other as to prove or disprove the fact in issue. Relevant facts are not themselves issue, but are foundations of inferences regarding them.

The word relevant has two meanings.

In one sense it means connected and in the other admissible.

Facts in Issue (S.3)

The expression “fact in issue” means and includes any fact from which either by itself or in connection with other facts, the existence, non existence, nature or extent of any right, liability or disability, asserted or denied in 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 courts records an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.

Facts in issue 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.

Two things are relevant for determining whether a fact is in issue or not.

The fact should be in dispute between the parties

The fact should touch the question of right or liability.

The existence of facts in issue has to be proved before the Court to its satisfaction, before a Court pronounces its judgment on the basis of those facts.  

Facts in issue	Relevant fact
a necessary ingredient of a right or a liability	Renders probable the existence or non existence of any ingredient of a right or liability
principal fact or fact probandum	Evidentiary fact or factum probandi
matters which are in dispute	foundations of inference regarding them

Document (S.3)

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

Document may be proved by primary or secondary evidence or even real evidence.

Evidence

The word evidence is derived from the Latin word evidens or evidere which means to show clearly, to make clear to the sight, to discover claerly, to make plainly certain, to ascertain, to prove.

Evidence may be oral and documentary.

Evidence means

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

All documents produced for the inspection of the court, such documents are called documentary evidence.

The definition  of the word evidence includes only the statements of witnesses and documents produced, but does not include the whole material on which a judge or a Magistrate depends for his position; for instance, a Magistrate or Sessions Judge may question the prisoner, and the prisoner’s answer to the Magistrate may be used against him, but they are not evidence. There may be on record inquiry and inspection report which was carried out by the Magistrate himself.

Object like photographs, weapons, bloodstained clothes etc. can be regarded as documents.

Different Kinds of Evidence

Oral evidence (direct or indirect)

Direct Evidence or positive evidence or personal evidence  (testimony of evidence)

Indirect evidence or Hearsay evidence (testimony of witness who is not directly involved)

Documentary evidence ( primary or secondary)

Primary evidence (document, best evidence)

Secondary evidence (document  substitute for primary)

Real evidence (instrument)

Circumstantial evidence  ( series of facts; conclusive or presumptive)

Conclusive evidence (connection between principal and evidentiary fact is a necessary consequence of the law of nature)

Proved (S.3)

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.

Proof does not mean to rigid mathematical demonstration, because that is impossible. It means such evidence as would induce a reasonable man to come to a conclusion.

Best says, Proof is the effect or result of evidence, while evidence is the medium of proof.

The word proof means anything which serves to convince the mind about the truth or falsehood of a proposition.

Disproved (S.3)

A fact is said to be disproved when, after considering the matters before it, the court either believes 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.

Disprove is converse to proved. When both the parties or even one party have or has given evidence to prove a fact but the court considers the fact is not established, the fact is said to be disproved.

Not Proved (S.3)

A fact is said not  to be proved when it is neither proved or disproved.

It indicates a state of mind in between the two that is, when one cannot say whether a fact is proved or disproved. It negatives both proof and disproof.

May Presume (S.4)

Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

Shall Presume (S.4)

Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

Conclusive Proof (S.4)

When one fat is declared by this Act to be conclusive of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

The word evidence and proof are not synonymous

Evidence	Proof
serves either immediately or mediately to convince of the truth or falsehood of a fact or proposition	establishment of facts in issue by proper legal means to the satisfaction of the court
material over which the foundation of proof is based	final stage
foundation of house	house

The word presumption means things taken for granted. In the law of evidence the word presumption is used to designate an inference, affirmative or negative, of the existence of some fact, drawn by a tribunal, by a process of probable reasoning.

Presumption may be

Presumption of Fact

Presumption of Law and

Mixed Presumptions

Presumption of law are of two kinds rebuttable or irrebuttable

May presume is rebuttable

Shall Presume is irrebuttable

Reason for Rule of Presumption

These rules have been adopted from motives of public and for the promotion of the general good of the society. These cases generally occur where it is against the public policy of the Government or the interests of the society that a matter should be further open to dispute.

1.10. 2011