Basic Principles and Rules of Law of Evidence

'' The objective of codification to secure uniformity

Our Law of Evidence is totally based on The English Law of Evidence. The great mass of
rules and principles of the English Law of Evidence are codified. In the case, Parasram vs
Mewa Kunwar, it was held that '' Rules of Evidence are retrospective in their operation.''
That too, another view observed in Gardner's case is that '' the Law of Evidence is law of
mere procedure and does not affect substantive rights and therefore '' alteration in form
of procedure are always retrospective, unless there is some good reason or other why
they
should
not
be''.
Judge should decide a case only on accepted principles of law. The precepts of law is to
live honorably, not to injure another. According to Spencer's formula of justice, '' The
liberty of each limited only by the like liberties of all''. Wards formula is '' The
satisfaction everyone's wants so far as they are not outweighed by other's wants''. In
order to attain ''certainty'' in judgments, it is very essential to know about principles of
Law of evidence. The 185th Report of The Law Commission of India opines that
Principles of evidence which are applicable to criminal law have to necessarily satisfy
the basic requirements both Art.20 (3) and Art,21 of ourConstitution. And submitted its
185th Report on Review of the Indian Evidence Act,1872 along with a draft Bill. In this
Report, it was observed as '' We had to differ totally from the recommendation in the
69th Report to incorporation of sec.26 A to make all confessions to senior police officers
admissible irrespective of the nature of the offences, a recommendation which
according to us, goes contrary to the views of the Supreme Court and in particular, the
views
expressed
in
Kehar
Singh's
case.
185th The Law Commission Report proposed amendment to section 27 to conform to
the several judgments of the Courts. It was further observed that Sarkar in his
commentary on the Evidence Act,1872 (15th Ed., 1999,p.534) has stated that while
sec.27 requires to be amended, only a person of the eminence of Sir James Stephen can
make an attempt. Such was the magnitude of the task under section 27. Sec.27 is now
proposed to be an exception to sections 24 to 26. it was also recommended that
Compulsorily calling an attestor to prove document required to be attested is proposed
to be dispensed with as done in UK in 1938, except in the case of Wills. Sections
123,124, and 162 are proposed to be amended and sections 68 to 71 are proposed to
be modified and made applicable to Wills only. It is also proposed to apply sec.90, to
documents 20 years old rather than 30 years old as done in other countries. Sec.90 A is
proposed, as done in Uttar Pradesh in 1954, in respect of registered documents, the
originals of which are less than twenty years old, to raise only a presumption of
execution.

Law of evidence is lex fori. It means evidence is one of those matters which are
governed by the law of the country in which the proceedings take place (lex fori) .
Evidence is means of proof. Proof is the effect of evidence. The Indian Evidence
Act,1872 came into force on 01-09-1872. Sir James Fitz James Stephen is author of our
Evidence Act. It was divided into 3 (three) parts, 11 (eleven) Chapters and 167 (one
hundred
and
sixty
seven)
sections.
Synopsis
of
The
Indian
Evidence
Act,
1872:
Sec.1.
is
dealt
with
Short,
title,
and
Commencement.
Sec.
2
is
dealt
with
Repeal
of
enactments
(repealed)
sec.
3
is
dealt
with
interpretation
clause
sec.4 is dealt with ''May presume'', ''Shall presume'', ''Conclusive proof''.
Sections
5-55
are
dealt
with
''
relevancy
of
facts''.
-secs
5-16
are
dealt
with
''
connected
with
issues''
-secs
17-31
are
dealt
with
''
admissions''
-secs 32-33 are dealt with '' statements by persons that those persons who can not be
called
as
witnesses.''
-secs 34-39 are dealt with ''statements under specified circumstances''.
-secs
40-44
are
dealt
with
'' Judgments in
other
cases''.
-secs
4551
are
dealt
with
''Opinions''
-secs
52
-55
are
dealt
with
''Character''
-secs 56-58 are dealt with '' certain facts that need not be proved''.
-secs
59,60
are
dealt
with
''oral
evidence''
secs
61-90
are
dealt
with
''
documentary
evidence''.
-secs 61 to 66 are dealt with '' Primary or Secondary evidence''
-secs
67
t0
73
are
dealt
with
''
attested
or
unattested''.
-secs
74
to
78
are
dealt
with
''
Public
or
Private
documents''
-secs 91-100 are dealt with '' rules as to the exclusion of oral by documentary
evidence.''
-secs 79 to 90 are dealt with '' presumptions as to documentary''. In certain
circumstances,
some
documents
are
presumed
to
be
genuine.
-secs
101-114
are
dealt
with
Burden
of
proof
and
presumptions.
-secs
115-117
are
dealt
with
Estoppel.
-secs 118 134 are dealt with '' the persons who are competent to testify as
witnesses''.
-secs
135

166
are
dealt
with
''
Examination
of
witnesses''.
-secs 167 is dealt with '' consequences of improper admission and as to rejection of
evidence''. ( The improper admission or rejection of evidence is not ipso facto ground for
new
trial...)
.
Key
underlying
principles
and
rules
of
Law
of
Evidence:
- ''Fact'' may be physical, psychological, positive and negative. Anything capable of
being
perceived
by
sense
is
fact.
Sec.3
Connection
of
events
as
cause
and
effect
is
relevancy.
- A fact which has a certain degree of ''probative force'' is known as ''Relevant fact''.
''Falsus
in
uno
falsus
in
omnibus''
is
no
application
in
India.
Circumstantial
evidence
must
be
in
conclusive
in
nature.
- Three presumptions. first is rebuttable, second is irrebuttable, third is Mixed

presumption. However, Indian evidence made presumption of fact and of law. Mixed
presumption
is
confined
to
English
law.
- Evidence may be given of 1. facts in issue and 2. relevant facts.(Sec.5 relevant facts)
- in drawing up the evidence Act, the principle of exclusion has been followed.
- The doctrine that all facts in issue are relevant to the issue, and no others may be
proved, is the unexplained principle which forms the centre of and gives unity to all
these
express
negative
rules
(Stephen
Dig
Introduction)
- law of evidence of negative rules declaring what is not evidence.
- The particular ways of connection which the law regards as '' relevancy'' have been
describe
in
secs
655
of
the
Indian
Evidence
Act.
Relevant
facts
forming
part
of
the
same
transaction.(sec.
6)
- Sec 7 makes connected relevant by embracing a large area of facts.
There
is
hardly
any
action
without
a
motive.(sec.8)
secs 7 and 8 are based upon the theory of causation as a test of
relevancy.
All
explanation
or
introductory
facts
are
relevant.
(sec.9)
- The principle of admissibility is that the ''thing'' done, written,or spoken
was
something
done
in
carry
out
the
common
intention.
(sec
10)
- There should be ''reasonable grounds to believe'' in criminal cases to made a person
responsible
for
the
acts.
The
principles
on
which
sec
10
is
based
is
that
of
'agency'.
All
the
conspirators
need
not
be
convicted
or
acquitted.
All
evidence
must
be
logically
relevant.
(sec
11)
.
To
claim
Alibi
his
presence
should
be
elsewhere.
.
Alibi
should
be
established
by
cogent
evidence.
.
Burden
of
proof
of
Alibi
is
on
accused.
-Any fact which enables the Court of law to determine amount of damage is relevant in
civil
case.(Sec.12)
-The facts that are relevant which any '' right or custom'' is in question. (sec.13)
-Relevancy of facts should the existence of a person's state of mind, or of body or bodily
feeling, facts it has been seen, are either physical or psychological. (sec.14)
-A single similar act is admissible to prove knowledge or intent, or to rebut the
suggestion of accident, but a single similar act is not necessarily admissible without
further
evidence.
(sec.
15)
- to determine where there is sufficient and reasonable connection between the factum
probans (fact to be proved) offered and the factum probondum (evidenciary fact) or
whether they are too remote from each other for the factum probans to be received.
-A general course of business or office,according to which it naturally would have been
done,
is
a
relevant
fact
and
proof;
or
it
is
admissible.
(sec.16)
-Admissions are either formal or informal '' proof of admissions shifts the onus'' (sec.17)
-Admission of several persons jointly interested. Where the reality of that interest is the
point
in
controversy.
(sec.18)
-Generally statements by strangers are inadmissible (sec.19)

- Sec.20 deals with another class of admission of persons other than the parties.
Admissions
not
generally
evidence
for
the
maker.
(sec.21)
- Where there has been a document, nobody can be allowed to prove oral admission
about
the
contents
of
such
document.
Sec.22
- sec.23: Generally admissions made with conditions are inadmissible.
- In civil cases if an admission of liability is made by a party upon an express condition
that
evidence
of
such
admission
should
not
be
given.
(sec.23)
- Confession must be perfectly voluntary, in criminal cases. Prosecution to show
voluntariness
of
confession.
(sec.24)
Admissions
or
statements...
not
amounting
to
confession.
- confession of accused before police officer is inadmissible. (Sec.25) ( To know more see
rulings
AIR
1994
SC
610,
1996(2)
SCC
409)
- All confessions are admissions but all admissions are not confessions.
- Confession caused by threat, inducement, or promise is inadmissible.(sec.27).
Admissions
may
operate
as
estoppels.
Admission
to
be
taken
as
whole.
(sec.31)
- If the word '' Shall'' is used in a statute, prima facie, it is mandatory; If the word ''May''
is used in a statute, ordinarily, it is used in a permissive sense. Yet, sometimes, '' May''
is equivalent to the word '' Shall''. (However, the intention of Legislature is to be
ascertained
to
understand
meanings
of
''May''
and
''Shall'').
- Evidence an be given only of those facts which are declared relevant .
- Evidence has to be produced to prove or disprove fact in issue or relevant fact.
Only
best
evidence
is
to
be
produced.
- Secs 17 to 21 deal with '' admissions''. Admissions are applicable civil and criminal
cases.
- Hearsay evidence is no evidence (sec.60). Yet, there are some exceptions to this rule.
For
example.
Sec.6.
- In civil cases, a person can be compelled to be a witness. Yet, in criminal cases,
accused
can
not
be
compelled
to
be
a
witness.
- In civil cases, admissions alone relevant but not confessions. But, in criminal cases,
admissions
as
well
as
confessions
are
relevant.
Benefit
of
doubt
is
available
to
accused
in
criminal
cases.
In
criminal
cases,
accused
is
always
presumed
to
be
innocent.
- Two kind of presumptions: one is rebuttable and another is irrebutable presumption.
Rebuttable presumption can be overthrown by evidence to the contrary. But,
irrebuttable presumption is conclusive presumption of law. ( Note: Secs 41,112,113 deal
with
conclusive
presumption).
- May presume: 1) Court has discretion to raise or not to raise presumption of fact. 2)
court
may
call
for
proof
of
it.
- Shall presume: 1) court has no discretion as to ''shall presume''. 2) court is bound to
raise
presumption,
unless
and
until
it
is
disproved.
Hearsay
evidence
is
no
evidence.
- Res gestae is an exception to the rule of '' Hearsay evidence is no evidence''. Sec.6.
- Generally, no person can be made liable for the acts of another. Yet persons who take
part
in
''conspiracy''
are
deemed
to
be
conspirators.
sec
10.
In
civil
cases,
party
succeeds
on
his
own
strength.
Character
of
party,
in
civil
cases,
is
irrelevant.
- There should be clear proof corpus delict (commission of offence)
- The prosecution must show the guilt of accused , in criminal cases, '' beyond all

reasonable
doubt''.
But,
only
reasonable
doubt
goes
to
accused.
- The prosecution cannot take advantage of the weakness of the defence.
- The prosecution must stand on its own legs basing on the evidence that has been let
in.
- Burden of proving that any transaction has been effected by fraud, misrepresentation,
intimidation,coercion or undue influence, etc, lies upon the person alleging that.
- In criminal cases suspicion however strong can never take the place of proof.
- The proof should be in the nature of ''preponderance of probabilities'' in civil cases.
- Proof should be placed by the party on whom the burden of proof rests, unless he is
estopped.
- If evidence is given by witness, he should testify, subject to rules relating to
examination.
Admission
must
be
certain,
and
clear.
- Admission must be taken as a whole. Partial admission cannot be accepted.
Admission
is
substantive
piece
of
evidence.
- A statement of admission made by any partner should be binding against other
partners
in
a
partnership.
- Admission may be either in oral form, or documentary form, or signs or gestures form,
or
informal.
- Self harming statement in civil case can be called as ''admission''.
- Self harming statement in criminal case can be called as ''confession''.
- Admission is not conclusive proof yet it may operate as estoppel.
All
Confessions
are
admissions.
All
admissions
are
not
confessions.
Admissions
can
be
proved
by
hearsay
evidence.
Confession
must
be
clear,cogent,whole.
Involuntary
confession
is
inadmissible
in
evidence.
Confessions
is
made
in
presence
of
Magistrate
is
admissible.
A
person
who
is
about
to
die
would
not
lie.
Trust
sits
on
the
lips
of
a
person
who
is
about
to
die.
''Leterm
Mortem''
means
''Words
said
before
Death''.
Dying
declaration
should
be
complete
in
nature.
- The person who is making dying declaration need not be under expectation of death.
There
is
no
particular
form
for
dying
declaration.
- Previous good character is relevant in criminal cases but evidence of bad character is
irrelevant.
- Character evidence is relevant in civil case if such evidence itself is fact in issue.
Fact
admitted
need
not
be
proved.
Oral
evidence
must
be
direct.
- Evidence which carries on its face no indication that the better remains behind, is
primary.
- In a case of malicious prosecution even though as generally understood absence of
reasonable and probable cause is a negative assertion,still the burden of proving it lies
on
the
plaintiff.
- The contents of a document may be proved either by primary or secondary evidence.
Sec.64
- Document must be proved by primary evidence except in exceptional case provided
for
in
that.
Sec
65.
- Mere filing of document is not enough to make the document a part of record.

The
person
who
makes
an
allegation
should
prove
it.
Sec.67.
- Execution consists in signing a document written out, read over and understood the
contents
of
document.
Sec.
68.
If
witness
dies
the
provision
of
section
69
comes
into
play.
- Mere admission of signature or thumb impression on blank sheet of paper does not
mean
an
admission
of
execution.
- Handwriting and signature of a person can be proved by an expert. Sec.45
Court
may
compare
the
disputed
document.
sec.73.
- A judgment,a decree or order, order sheet of Court are public documents. (see AIR
1934
PC
157;
1978
ALJ
1141;
AIR
1931
All
364)
- When the contents of a public document are to be proved before Court, the original
need
not
be
produced.
Sec
77.
- All acts are presumed to be rightly done. (See maxim '' Omiria praesummuntur rite
esse
acta'').
Sec.79
Presumption
under
section
90
is
rebuttable.
- It is after the document has been produced to its terms u/sec 91, that the provisions of
section 92 come into operation, for purpose of excluding evidence of any oral argument
or statement, for the purpose of contradicting,varying,adding,subtracting from its
terms.
- When terms of a document have been proved by producing the document, oral
agreement cannot be proved to contradict the same. (Sec.92 and sec 100 as to know
some
exceptions
to
this
rule)
- Sec 93 to 98 lay down rules regarding interpretation of documents with the aid of
extrinsic
evidence.
- If a language of a document is plain, yet it turns out that there are more than one
person or thing to which the description applies, oral evidence can be given to facts
which show to which person or thing it is intended to apply. sec.96.
- Experts may be called to explain the meaning of terms of a document. Sec.98
- The person who is not a party to document can lead evidence of any facts tending to
show contemporaneous agreement varying the terms of the document. Sec. 99
- Documents unmeaning in reference to existing fact evidence may be given to explain
it.
Sec.95.
- When the language of a document may apply to only one of many facts evidence may
be
given
as
to
which
it
applies.
Sec.96.
- When the language applies partly to one existing fact and partly to another, evidence
may
be
given
as
to
which
it
applies.
Sec.97.
- Evidence may be given to show the meaning of illegible or not commonly intelligible
character.
Sec.
98.
- Evidence may not be given to remove the ambiguity of the language. Sec.93.
- Generally, he who asserts or claims, he must prove it. Sec 101.
- Burden of proof rests on the person who who substantially asserts the affirmative of
the
issue
not
upon
the
person
who
denies
it.
Sec
104.
- The burden that arises from the pleadings depends upon the facts asserted or denied
and is determined by the rules of substantive and statutory law or by presumption of
law
and
fact.
- Onus of proof in its primary means the duty of establishing a case. In its secondary
sense the onus means no more than the duty of adducing evidence.
It
is
the
duty
of
accused
to
prove
the
plea
of
alibi.
- Accused is under no obligation to substantiate his defence version.

Generally,
there
is
no
presumption
of
advancement.
The
burden
of
mala
fides
lies
on
the
person
who
alleges
it.
The
burden
of
collusion
lies
on
the
person
who
alleges
it.
- In suit for specific performance of contract, burden lies on the defendant to prove that
he
is
bona
fide
purchaser
for
value.
- When the facts prima facie prove negligence, the burden lies on the defendant to
prove
that
he
was
negligent.
(Res
ipsa
loquitur)
In
suit
for
damages
the
burden
lies
on
the
plaintiff.
- When the defendant pleads that suit of plaintiff is time-barred, the burden lies on the
plaintiff to prove the facts which would bring the suit within time.
- He who claims any exceptions, he has to prove the same. Sec.105.
- If it is proved that a person has not been heard of for 7 (seven) years or more by those
who would naturally have heard of him if he had been alive, law presumes that he is
dead.
Sec.
108.
Doctrine
of
'Estoppel'
applies
only
to
Civil
cases.
Rule
of
Estoppel
does
not
apply
to
''
Minor''.
- Rule of Estoppel is which stops a person from taking up different positions from what
he
stated
earlier.
- On issue of a fact or law which has been determined in previous proceedings cannot
be
raised
in
subsequent
proceedings.
- Every person is competent to give evidence unless the Court considers that he is
unable to understand the question put to him and is unable to give rational answer.
Sec.118.
- Dumb witness may give evidence by writing, or by signs or by gestures. Sec.119.
- Law protects all information between wife and husband and hence no person can
compel them to reveal what the other spouse communicated. sec.122.
- Lawyers cannot be compelled to disclose the contents of any document with which
they
came
to
know
in
the
course
of
their
job.
- Judge has no power to excuse a witness from answering if the question is relevant to
the
matter
in
issue.
Sec.
132
Accomplice
is
competent
witness
against
accused.
Sec
133.
''Evidence
has
to
be
weighed
and
not
counted''.
Sec.134
- The testimony of a single witness is sufficient, if it is reliable, to prove a fact. Sec.134
- Order in which are to be produced shall be regulated by law and practice for the time
being relating to C.P.C and Cr. P.C. Sec.135. (see Order 18 of Code of Civil
Procedure,1908 and Chapters XVIII, XIX, XXI, XXIII, & XXIV of Code of Criminal
Procedure,1973
)
Judge
has
to
decide
as
to
admissibility
of
evidence.
Sec.
136
- No leading questions can be asked in Examination-in-Chief. Sec.137; However, with
permission of court, leading question may be asked in examination-in-Chief. Sec 142.
Leading
questions
can
be
asked
in
cross-examination.
- The questions in cross-examination must be related to relevant facts and facts in
issue.
- Object of re-examination is to remove any doubt arose in cross examination and to
enable
the
witness
to
clarify
any
contradiction.
New
matter
should
not
be
introduced
in
re-cross
examination.
- In re examination the questions should be confined only to the matters arisen out of
cross examination; leading questions cannot be asked in re-examination.
- If any witness gives inconsistent or contradictory statement, he should not be declared

as
hostile.
- No particular number of witnesses is needed to prove any fact. Sec.134.
- Court empowers to compel a witness to answer to a relevant question. sec.147.
- Court to decided if the witness has to answer a question. sec.148.
- Question not to be asked in cross examination without reasonable grounds. Sec.149.
- If Court opines that question is put by a counsel without reasonable ground, the court
may
make
a
report
as
to
the
matter
to High
Court.
sec.150.
- Court shall forbid any question or inquiry which it regards as indecent or scandalous.
Sec
151.
- Court shall forbid any question which appears to be intended to insult or annoy a
witness.
Sec.152.
- If a witness has answered at his credit, no evidence shall be given to contradict him.
Yet if he answers falsely, he may afterwards be charged with giving false evidence.
Sec.153
Evidence
of
hostile
witness
cannot
be
rejected
wholesale.
- Credit of a witness may be impeached in any way as provided u/sec 155.
- Witnesses may refresh their memory, while examination. Sec. 159.
- When witness is summoned to produce any document, he shall produce the document
before court; if any objection is raised as to its production, it should be decided by the
court.
sec.162
- Section 163 of Act is applicable to criminal cases as well as civil cases.
- The party calling for document is bound to give it as evidence,if required to do so.
Sec.163.
Section
164
does
not
apply
to
criminal
proceedings.
- Judge can ask any question he pleases to witness, at any time, whether it is relevant or
irrelevant.
Sec.165.
- Though the section uses the word ''Judge'' but it must be construed to include even a
Magistrate
or
any
court
authorised
to
take
evidence.
Sec.165.
- Any question put by Judge must be so as not to frighten,coerce, confuse, intimidate
the
witness.
Sec,165.
In this context, I deem that it is apt to remember a famous observation: ''Rules of
procedure without rules of content are empty, while rules of content without rules of
procedure are blind''. I, therefore, hope this article is useful to judicial officers, lawyers,
law students and others who seek information as to the principles and rules of law of
evidence.
---------***---------#
Macauly,
House
of
Commons,
10th
July,1833
# See the essay '' Judgment Writing: Form and Function By Honourable Dennis Mahoney
AO
QC
#
A
1930
A
561
#
Gardner
vs
Lucas,
1878,3
AC
582
# Do No.6(3)(70)/2001-LC (LS) 13th March,2003. 185th Report of The Law Commission
of
India
#
Sarkar's
Law
of
Evidence
Act,1872
#
Gajadhar'
case,
AIR
1934
Pat
55
# See the rulings as to sec.20 AIR 1985 SC 998. AIR 1992 SC 1356.
# (To know more see rulings reported in AIR 1969 SC 422; AIR 1991 SC 37, AIR 1982 SC
1595;AIR 1978 SC 1183;AIR 1996 (4) SCC 259; AIR 1994 SC 214; AIR 1985 SC 1678)

# See rulings to know more AIR 1961 SC 751, AIR 1959 J&K 110
#
Narsingh
Murthi's
case,
AIR
1941
Madras
690
#
Sarwan
Singh's
case,
AIR
1957
SC
637
# Vija Nath's case, AIR 1971 ALL 109. see also (to know more) Buddu singh case, 1971
AWR
445.
#
Ganga
Din
vs
Bahoran
lal,
AIR
1937
Nag
230
# Jagannath Giri VS State of Bihar, 1992 Cr L J 648 (657) (pat)
#
AIR
1963
SC
1150
# G & N.I.T Co.'s case, AIR 1955 MB 214; Indian Airlines's case, AIR 1965 Cal 252
#
L.J.Leach
&
Co
Ltd'
case,
AIR
1957
SC
357
#
Bansori
Lal's
case,
AIR
1943
Cal
131.
#
Govt
of
Bengal
vs
Shanti
Ram
Mandal,
AIR
1930
Cal
370
#
Shyam
Das
Kapoor's
case,
AIR
1933
Cal
33
#
Alana
Umar's
case,
AIR
1965
ALL
131
# Ramachandra's case, AIR 1981 SC 1036