INTRODUCTION

CHAPTER 1
 EVIDENCE
◻ The word ‘Evidence’ in its general sense is very different
from what it means under the law of evidence.

◻ The word ‘evidence’ is originated from a Latin term

‘evidentia’ or ‘evidere’ which means to ‘show clearly’, to
make clear to the sight to discover clearly certain, to
ascertain or to prove.

◻ Thus, evidence is something, which serves to prove or

disprove the existence or non-existence of an alleged fact.
◻ The party who alleges the existence of a certain fact has to
prove its existence and
◻ the party who denies it, has to disprove its existence or prove
its non-existence.
◻ However, all facts traditionally considered, as
evidence may not be evidence in the eyes of
evidence law. For eg: hearsay evidence

◻ Rather, evidence is something presented before

the court for the purpose of proving or
disproving an issue under question.
 THE LAW OF EVIDENCE – WHAT CAN
YOU BRING INTO COURT TO PROVE
YOUR CASE?
◻ The law of evidence or the rules of evidence - encompasses the rules
and legal principles that govern the proof of facts in a legal
proceeding.
◻ These rules determine what evidence must or must not be
considered by the trier of fact in reaching its decision. The trier of
fact is a judge in bench trials, or the jury in any cases involving a
jury.

◻ The law of evidence does not mean only the rules concerning
whether a given piece of information is admissible or not, but also
such questions as -
◻ What happens if there is no evidence on a given point?
◻ How much evidence, if any must a party introduce to prevent a
court from ruling against him on factual proposition?
◻ What is the role of the judge in evaluating the evidence and the
like.
◻ The law of evidence is also concerned with the quantum (amount),
quality, and type of proof needed to prevail in litigation.

◻ The rules vary depending upon whether the venue is a criminal court,
civil court, or family court, and they vary by jurisdiction. The quantum of
evidence is the amount of evidence needed; the quality of proof is how
reliable such evidence should be considered.

◻ 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.
◻ Important rules that govern admissibility concern –
hearsay, authentication, privilege, witnesses, opinion,
expert testimony, identification and rules of physical
evidence.

◻ There are various standards of evidence or standards

showing how strong the evidence must be to meet
the legal burden of proof in a given situation, ranging
from
◻ reasonable suspicion to preponderance of the evidence,
◻ clear and convincing evidence, or
◻ beyond a reasonable doubt.
◻ There are several types of evidence, depending on the
form or source.

◻ Evidence governs the use of

◻ testimony (e.g., oral or written statements, such as
an affidavit),
◻ exhibits (e.g., physical or material objects),
◻ documentary material, or demonstrative evidence, which
are 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).
 NATURE OF EVIDENCE LAW
◻ Where is the place of evidence law in relation to other laws?
◻ All laws may be divided into two groups:
◻ (a) Substantive law and (b) Adjective or Procedural law.

◻ Substantive law
◻ Substantive laws are “the part of the law that creates, defines, and
regulates the rights, duties, and powers of parties.” Substantive
laws govern people and organizations in their daily
interactions—they are the “laws” that non-lawyers usually think
of when they think about what law is.
◻ For example:
◻ The substantive law of torts says an uninvited guest cannot intrude
upon another person’s land;
◻ The substantive law of corporations dictates how a limited-liability
corporation must be formed.
◻ However the rights, privileges and duties that exist
under such law will mean nothing unless they can be
enforced. This is why procedural law is just as
important as the substantive law.

◻ Procedural law
◻ The procedural law, they are the door to litigation.
They set forth “the rules that prescribe the steps for
having a right or duty judicially enforced, as
opposed to the law that defines the specific rights or
duties themselves.
◻ It may be easier to think of procedural laws as the “rules”
that govern litigation — the rules the parties must follow as
they bring their case and the rules for the courts’
administration. These rules prescribe such things as :

◻ who gets to bring cases,

◻ which courts those cases are brought before,
◻ how the cases proceed through the judicial process,
◻ the rules of proof,
◻ the available remedies, and
◻ the manner in which the judgment is enforced etc.
◻ Procedural law is created either by the legislature,
or by the judiciary, or by a combination of the two.

◻ Procedural laws have three major purposes.

◻ First, they help courts conduct their business.
◻ Second, they establish uniform procedures within the
courts.
◻ Finally, they provide information and instruction to
those appearing before the courts, whether they are
attorneys or the parties themselves.
Partly substantive and partly
procedural
◻ It is not always easy to distinguish substantive law from
procedure. Sometimes courts deem the rules that seem
procedural to be of substantive importance.
◻ For example, in Bolton v. Travelers Insurance Co., the
court held that a statute of limitations was
substantive, but rules governing the time for answer
and appearance were procedural.

◻ The law of evidence

◻ Law of evidence is basically a procedural law but some
of its provisions do come also under the substantive
law.
◻ There are certain issues procedural laws never address and are
left to evidence law.
◻ For instance,
◻ In the procedural law you did not study about the burden of
proof, facts to be proved or facts that need not be proved,
estoppel etc., These are left to evidence law therefore evidence
law is not strictly speaking procedural law.

◻ In Halsbury’s Laws of England, “estoppel” has been treated

as a substantive rule of law. It is said: “estoppel is often
described as a rule of evidence, but the whole concept is more
correctly viewed as a substantive rule of law. The law of
evidence shares the commonality with procedural laws in the
sense that both are means to the enforcement of the substantive
law.
PURPOSE OR SIGNIFICANCE OF
EVIDENCE LAW
◻ Before a fact is accepted and acted upon it must be
proved or otherwise established. Evidence is the
“key” which a court needs, to render a decision.

◻ Without evidence there can be no proof.

◻ Proof leads to a conclusion as to truth or falsity

of the alleged facts which are the subject of inquiry.
Contd..
◻ Evidence provides the court with information. Proving facts
through the presentation of evidence means convincing court to
accept a particular version of events.

◻ Of course, one can search truth even through violating the

constitutional rights of the parties. However, evidences obtained
through unlawful means could not contribute for the
maintenance of justice in the future.

◻ So the process of proof should be regulated by evidentiary

rules and principles in order to achieve accelerated, fair and
economic justice.
◻ Eg: confession obtained by police from accused etc
Contd..
◻ Law of evidence is applicable to both criminal and
civil procedure. In both criminal and civil proceedings,
the law of evidence has a number of purposes.

◻ In short, the law of evidence regulates the process of

proof. The rule of civil and criminal evidence, in
conjunction with the rules of procedure, establish the
frame work for the process of proof and the conduct of
litigation, so that a lawyer advising his client or
preparing his case for trial or presenting it to the court
or tribunal will know what issues his client must prove
in order to succeed.
LAW OF EVIDENCE IS lex fori
◻ That is to say that all questions of evidence must
be decided by the laws of the forum or court in
which the action is tried.

◻ It has to be determined by the law of the country,

where, the questions arise, where the remedy is
sought to be enforced and where the court sits to
enforce it.
CONCEPT AND HISTORICAL
BACKGROUND OF EVIDENCE
◻ From times immemorial, in every society, whether large or
small, rich or poor, advanced or backward, there have
always been disputes between man and man which
required determination and decision by a third person
after weighing and examining the claims of the
contesting parties.

◻ This exercise on the part of the third person can be

considered as the most elementary stage of administration of
justice. Since the creation of man-kind the concept of
administration of justice, of which evidence is an integral
part, has always been intimately connected with the social
aspect of human life and which, by a process of evolution,
has developed into the present complex and intricate system
of administration of civil and criminal justice.
◻ In order to trace the history of the law of evidence
in our country we have to look at three different
periods:

◻ The ancient Hindu period;

◻ The ancient Muslim period; and
◻ The British period.
The Ancient Hindu period
◻ The sources of information relating to law of evidence
prevailing in India emanate from the Hindu dharma
shastras.
◻ According to Hindu dharma shastras the purpose of
any trial is the desire to ascertain the truth.

◻ Vasista recognised three types of evidence:

◻ 1. Lekhya
◻ 2. Sakshi
◻ 3. Bhukthi
1. Lekhya (documentary evidence)
◻ Lekhya or documentary evidence was further classified into
three categories, namely, Rajasaksika, Sasaksika and Asaksika.
◻ i) Rajasaksika - Rajasaksika is a document which is executed in
the King’s Court by the King’s clerk and attested by the presiding
officer affixing the seal which resembles to a modern registered
document.
◻ ii) Sasaksika - Sasaksika is purely a private document written
by anyone and in their own hands by witness.
◻ iii) Asaksika - Asaksika is a document which has been written
by the parties itself and hence admissible.

◻ Just like present days the Ancient Hindu Law of Evidence also
preferred documentary evidence over oral evidence. The Hindu
law givers, however, were probably aware of the weaknesses of
the documentary evidence as against possible forgery. They have
provided elaborate rules to ensure the genuineness of the
document.
2. Sakshi (witnesses)
◻ The Dharma Shastras go into great details as to the
time at which and the ways in which witnesses are
to be examined and how they are to be tested.

◻ The law-givers lay down that, in disputed case, the

truth shall be established by means of witnesses.
3. Bukhthi (possession)
◻ In an agricultural economy existing in ancient Hindu India,
disputes regarding possession of landed property constituted
the bulk of litigation.
◻ Possession was recognized as evidence of right and title
and one of the modes of proving along with the
documents and witnesses.
◻ In the present Evidence Act also there is a presumption that
the possessor of anything is the lawful owner of that thing. It
was open to the opponent to bring to the notice of the court
circumstances disqualifying or discrediting a witness. But
this was to be done when the witness was giving evidence.
Then the Judge would elicit witness's answer to the
objections.
The Ancient Muslim period
◻ In regard to the law of evidence discussed in the book
“Muslim Jurisprudence” written by the Sir Abdul
Rahim, evidence is dealt under the heads of oral and
documentary.
◻ Oral evidence is further sub-classified into direct and
hearsay evidence as in present day. Evidence outside of
these two types takes the form of evidentiary
presumptions.

◻ Under Islamic law, evidence must be persuasive enough to

overcome the presumption of innocence, and the primary
modes for receiving evidence are through witness testimony
and the defendant's confession.
◻ The presumption of the accused's innocence is fundamental in
Islamic law. To support a conviction, evidence must explicitly
prove the occurrence of the offense without any need for complex
and questionable explanations or interpretations.
◻ Conclusiveness of evidence requires that the time and place of the
crime be specified and that each item of evidence be consistent
with other evidence presented.
◻ The prompt presentation of evidence is also a matter at issue in
Islamic law. Some jurists hold that any delay in the presentation
of a confession or testimony creates sufficient doubt so as to
invalidate it as evidence in serious crimes. Others, however,
maintain that delay in the presentation of evidence does not
necessarily preclude its reliability. How delayed evidence is
handled is under the judge's discretion. The primary modes of
criminal evidence are witness testimony and defendant confessions.
◻ The number of witnesses required to prove particular crimes is
specified.

◻ For testimony to be received, the witness must be

◻ an adult,
◻ be mentally sound,
◻ have sufficient memory (capability to record and retain
observations),
◻ have the use of sight and hearing,
◻ be able to speak,
◻ have good character, and
◻ be a Muslim.
◻ For a confession to be accepted as evidence
◻ it must be voluntary,
◻ unequivocal (clear),
◻ occur during a legal hearing,
◻ be repeated the same number of times as the
number of witnesses required, and
◻ be corroborated by other evidence.
In the British Era
◻ In British India, the Presidency courts by virtue of a
Royal Charter established in Bombay, Madras and
Calcutta were following English rules of the law of
evidence.

◻ In Mofussil courts, outside the presidency towns,

there were no definite rules relating to law of
evidence. The courts enjoyed unfettered liberty in the
matter of admission of evidence. The entire
administration of justice in the Mofussil courts, in the
absence of any definite rules regarding the law of
evidence, was in total chaos.
◻ There was a dire necessity for the codification of the rules of law
evidence.
◻ In 1835, the first attempt was made to codify the rules of evidence by
passing the Act X of 1835 (as it was called).
◻ Between 1835 and 1853 about eleven enactments were passed dealing
with the law of evidence. But all these enactments were found inadequate.
◻ In the year 1868 a Commission was set up under the Chairmanship of Sir
Henry Maine, he submitted the draft, but it was found unsuitable to Indian
conditions.
◻ Later in the year 1870, this task of codification of the rules of law of
evidence was entrusted to Sir James Fitz James Stephen. Stephen
submitted his draft and it was referred to the select committee and also to
High Courts and members of Bar to elicit the opinion, and, after gathering
opinion, the draft was placed before the legislature and it was enacted in
1872 as Act I of 1872, it came into force on 1stSeptember, 1872. He could
be called the ‘founding father’ of this comprehensive piece of legislation.
◻ Prior to Independence there was as many as 600
princely States in India, which were not within the
jurisdiction of British system of justice. Each of these
states had its own rules of law of evidence. But by and
large followed the Indian Evidence Act 1872.

◻ After independence there was merger of princely

states into the Indian Union. Both the substantive as
well procedural laws have since been made uniformly
applicable to all states, whether British province or
native States. So much so, the law of evidence is now
applicable to all states constituting the Union of India.
EVIDENCE and CUSTOMARY LAW
SYSTEM
◻ Law has primarily evolved from customs and religious
prescriptions to the current constitutional and legal system we
have today.

◻ ‘Custom’ means the established way of life of a particular set of

people. The unrecorded tradition and history of the people,
which has grown with the growth of the people to stability and
eventually become an intrinsic part of their culture.

◻ It is a usage or practice of the people which by common

adoption, agreement and by long and regular habit has
become compulsory and has acquired the force of law with
respect to the place or subject matter to which it relates.
Essentials of customary law
◻ It must be in existence.
◻ It must be a custom as well as a law.
◻ It must be acceptable.
◻ It is largely unwritten, and related to its unwritten
nature, is its flexibility.
◻ It should be universally applicable within the area
of acceptability.
◻ Rules of evidence are developed over centuries and
have their roots in the common law tradition. It has
been laid down in the Hindu Dharma Shastras
that “the purpose of any trial is the desire to find
out the truth”.
◻ Vyavahara under the Dharamsastras, is the law on
legal procedures. They include the Rajadharma or the
duties of the king to organise court, listen and
examine witnesses, decide and enforce punishment
and pursue justice.
◻ Purposes of Rules of Evidence
◻ Rules of evidence have two broad purposes.
◻ Firstly, Rules of Evidence are supposed to be just to both
parties. They are supposed to be non-prejudicial towards either
of the parties to the proceeding and are supposed to achieve a just
result by harmonizing competing interests before the court.

◻ Secondly, Rules of Evidence are developed to ensure certainty

and uniformity to the case. With different cases of different
nature under different statutes popping up before the courts daily,
it is these rules of evidence that remains the same. They are
supposed to be generally followed in usual circumstances.
◻ All available evidence indicates that in ancient India,
bearing false witness was viewed with great abhorrence.

◻ All foreign travelers like Megasthenas in the 3rd century to

Huan Tsiang in the 7th century testified that truthfulness
was practised by Indians in their worldly relations. A
virtue practised for a thousand years became a tradition.

◻ Katyayana enjoined that there should be no delay in

examining witnesses, obviously because delay dims the
memory and stimulates imagination.
◻ EXAMPLES
◻ 1. The Burden of Proof
◻ The rule on the burden of proof essentially states, which of
the parties before the court has the burden to prove their
claim.

◻ 2. The Rule against Hearsay

◻ It is a general rule that any Oral Evidence must be direct and
must be presented before the court by a witness who has
perceived it by his senses and not heard it from someone else.
The court excludes hearsay evidence and categorizes it as an
inadmissible piece of evidence. Hearsay evidence is
regarded as weak and often can restrict legal investigation.
◻ 3. The best evidence rule
◻ In the medieval period, the pre-Roman inhabitants thought that originally written
documents are not a mere indicia of rights but the rights themselves.
◻ The doctrine of profert in curia (he produces in court) is closely related to the
best evidence rule. In case of profert in curia if the party is unable to provide for
the original written documents then he will lose all the rights created by the
document. The best evidence rule is also called the ‘original document rule’, it says
that the party has to produce the original document and in case he is not able to
provide for the original document he has to account for the same. If the proponent
cannot show the original document nor can he account for the non-production
he was not allowed to give evidence through secondary sources such as a
handwritten copy.
◻ The best evidence rule was first known to have enunciated in the case of Ford v.
Hopkins in 1700 and Omychund v Barker in 1745 where Lord Hardwicke said
that “no evidence will be admissible unless it is the best evidence that nature will
allow”. The rule originated because in that period document copying was done by
the court clerks manually and there was always a significant chance of error in the
copied.
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Drawback
◻ Customary law varies from place to place and there are many customary
laws as there are independent communities. This diversity of customary
law is a major obstacle to the uniformity of customary law systems in
various places.

◻ The codification and legal recognition of these customs is important. The

co-existence of customary practices and formal law is not peaceful but
subject to conflicts and contradictions with adverse impact not only on
the societal relations but also the working of the legislature in the
effective implementation of the laws.

◻ This is because law in action may be quite different from law in books.
Customs are not clearly defined and are not universally applicable
and in their actual operation adapt themselves to the socio-political
contours of society.
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