Basic Principles and Rules of Law of Evidence
'' The objective of codification to secure uniformity where you can have it, diversity where you must have it, but in all cases, certainty''. - Macauly
''The Judgment should refer to the principles of law relevant to the determination of the dispute. If this is not done, then on an appeal it may be argued that the judge did not know what the principles of were or,indeed,did not know what he was deciding'' -- Honourable Dennis Mahony
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 our Constitution. 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 45- 51 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 6- 55 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 authorized 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