20/10/2021, 10:48 The Law of Evidence: An Introduction

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The Law of Evidence: An Introduction

By Tejas Vasani
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November 16, 2019 1 Comment

This article on ‘The Law of Evidence: An Introduction’ is written by Tejas Vasani and focuses on a
brief introduction to the Law of Evidence. Privacy - Terms

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20/10/2021, 10:48 The Law of Evidence: An Introduction

I. Introduction

The corpus juris or body of laws is generally divided into two types of laws- Substantive
laws and Adjective laws. Simply put, substantive laws are those laws that define certain
rights and liabilities and adjective laws are those which facilitate the realization of those
rights and liabilities. Adjective laws are further divided into procedural laws and the law of
Evidence. 

Law of Evidence has been recognized as a distinct category because it consists of elements
of both substantive as well as procedural law.

II. Meaning and definition

In simple terms, ‘Evidence’ can be said to be something that either proves or disproves the
existence of a particular fact. Legal argumentation generally involves the assertion of the
existence of certain facts by either or both the parties to the dispute and subsequently
proving or disproving of the same.

Thus, it is imperative for the legal system of any State to determine as to what constitutes
evidence and whatnot.   Several scholars and jurists have attempted to define the term
‘Evidence’.

Indian Evidence Act in 15 Minutes | Evidence Lectur…

Lectur…

Taylor’s definition recognizes evidence as a ‘legal means’, apart from simple arguments,
which has the potential to determine the truth of a disputed fact. Bentham’s definition has
restricted evidence as something that produces a mere ‘persuasion’, which may or may not
be affirmative, regarding the existence of a fact. Thus, Bentham has clearly ignored the
fact that evidence may even be of a conclusive nature. However, his definition highlighted
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20/10/2021, 10:48 The Law of Evidence: An Introduction

one important element of the law of evidence- that an undisputed fact or facts may serve
as evidence to prove or disprove some other disputed fact.

The Black’s Law Dictionary defines ‘Evidence’ as “any species of proof, or probative
matter, legally presented at the trial of an issue, by the act of the parties and
through the medium of witnesses, records, documents, exhibits, concrete objects,
etc. for the purpose of inducing belief in the minds of the court or jury as to their
contention.”

A modern and exhaustive definition of the term can be found in the Indian Evidence Act,
1872. Section 3 of the Indian Evidence Act, 1872 defines Evidence as – “––“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 documents including electronic records produced for the
inspection of the Court; such documents are called documentary evidence.”

III. History

1. During ancient India (Hindu Law of Evidence)

According to the Hindu Law of Evidence, proof may be divine or human. While the former
refers to trial by ordeals, the latter consisted of witness testimonies, documentary
evidence, circumstantial evidence, etc. The importance of the various kinds of evidence
depends upon the cause of action as well as the overall subject matter of the litigation.

A trial by ordeal may be of five types:

1. By balance
2. By Fire
3. By water
4. By poison
5. By consecrated water

As far as a normal trial is concerned, the rules of evidence may be summarized briefly as
follows-

1. Witnesses- Oral evidence is supposed to be directly subject to the exception that

a witness may communicate what he heard an actual witness say who was either
going abroad or was on his deathbed. The competency of witnesses is determined
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20/10/2021, 10:48 The Law of Evidence: An Introduction

on the basis of their honesty and ability to resist temptation. Based on these
parameters certain classes of people such as those practising religion or are of
noble birth, etc. are listed as competent witnesses in the dharma sastras. No
specific provision regarding the requirement for a specific number of witnesses in
any case. The king was a privileged witness who could not be compelled to testify
in any case. He had the option to waive the privilege and testify if he finds it
necessary to do so in a case.
2. Confessions- According to Kautilya, accused persons may be tortured in order to
extract the truth from them. However, a conviction which is based on such
admission or confession is highly unjust.
3. Circumstantial Evidence- The Hindus strongly believed in the importance of
circumstantial evidence. However, recognizing the chances of errors, they insisted
upon a thorough investigation of surrounding circumstances as well.

2. Rules of Evidence under Muslim rulers

The non-muslims (including Hindus) were allowed to follow the tenets of their own religion
matters of personal law. However, in criminal matters, Islamic Law was applicable to
everyone irrespective of their religious identity. Trial by ordeal was not supported by strict
Islamic Law practitioners.

The Hanafi Law understood evidence as:

1. Towatur- Fully corroborating evidence

2. Ehad- Testimony of a single individual
3. Iqrar- admission or confessions

These may be deduced from the testimony of the various witnesses, documents as well as
circumstantial evidence which was known as Karinah. Reliance could be placed on
circumstantial evidence only if it was conclusive in nature.

3. British India

During the initial years of the British Raj, the mofussil courts did not follow any particular
law on evidence due to the absence of any codified law. However, the presidency courts
were following the English rules of the Law of Evidence. The prevailing situation of chaos
led to the birth of the Indian Evidence Act, 1872 which came into force on 1st September
1872.

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20/10/2021, 10:48 The Law of Evidence: An Introduction

The legislative intent of the Act has been highlighted in its preamble which reads,
“Whereas it is expedient to consolidate, define and amend the law of Evidence, it is
hereby enacted as follows”.

Edited by- Akriti

1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
2. Legal Bites Academy – Ultimate Test Prep Destination

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Law of Evidence

Author: Tejas Vasani

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On whom does the burden of proving good faith in transactions where one party is in the
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One thought on “The Law of Evidence: An Introduction”

This is very sufficient, clear and good notes for the study of evidence. Reply↓
language used in this notes is understandable and explanation is too
good and I think it is the plus point of this notes
Komal Pagar
October 9, 2021

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