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Law of Evidence : Introduction

The dynamic changing society fails to believe in the words of mouth, rather they prefer written, documented statements to believe the facts of the same. Thus, evidence plays a very important role in establishing the occurrence of events that had taken place or which gradually would be taking place. Therefore, in order to establish the happening or non-happening of events, evidence also plays a very important role in the Court of Law.

The law of evidence is, therefore, based on reasoning and logic. Without a proper piece of evidence to determine the merit of the case in the Court of the Law, there will be much delay in trial to ascertain and give justice to the people. Thus, the very idea of the formation of the Indian Evidence Act is to give power to the judiciary and help them to decide the case and give a verdict of conviction and acquittal depending on the facts and evidence brought before it. Therefore, the Indian Evidence Act, 1872 is a mode or an instrument through which the court upheld its functions by reaching the truth of each case. The Indian Evidence Act, 1872 was passed on 15th March 1872 and enforced on 1 st September 1872. The Indian Evidence Act is divided into three main Parts:

  1. Relevancy of Facts (Chapter I containing Section 1-4 deals with ‘Preliminary points’; Chapter II containing Section 5-55 deals with ‘Relevancy of facts’).
  2. Mode of Proof (Chapters III containing Section 56-58 deals with ‘Facts which need not be proved’; Chapter IV containing Section 59-60 deals with ‘Oral evidence’; Chapter V containing Section 61-90A deals with ‘Documentary evidence’; Chapter VI containing Section 91-100 deals with ‘Exclusion of oral by documentary evidence’).
  3. Production and Effect of Evidence (Chapters VII containing Section 101-114A deals with ‘Burden of proof’; Chapter VIII containing Section 115-117 deals with ‘Estoppel’; Chapter IX containing Section 118-134 deals with ‘Witnesses’; Chapter X containing Section 135-166 deals with ‘Examination of witnesses’; and Chapter XI containing Section 167 deals with ‘Improper admission & rejection of evidence’).

Law of Evidence - Meaning

Sir James Stephen define Law of Evidence as- “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, it decides:

  1. What facts may and what may not be proved in such cases.
  2. 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 is proved.”

Law Evidence is “Lex fory”:- Maxim “Lex fory” means the law of place of the action. The law of evidence is ‘lex fory’. Whether certain evidence proves a certain fact or not is to be determined by law of the country where the question arises, where the remedy is sought to be enforced and court sits to enforce it.

So, law of evidence deal with modes of Leading evidence as well as regulating that evidence of which fact can be given in court. The main object of the law of evidence is to assist the court in judging what facts are relevant to ascertain the truth and to avoid the confusion and how such relevant facts will be proved in courts by lawfully leading the evidence.

The complete ‘corpus juris’ i.e, a body of laws, is divided into two categories:

  • Subjective Law
  • Adjective Law.

Law of Evidence is law of procedure i.e. adjective law. Evidence Act does not define rights or liabilities under the law but only prescribe the mode by which rights or liabilities of parties is as curtained. Therefore it is adjective law and helps in implementing the substantive law.

The Indian Evidence Act, 1872 is mainly based on the English law of evidence. The Act consolidates, defines and amends the law of evidence. The Act, however, is not exhaustive, i.e. it does not purport to contain all the rules of evidence. For the interpretation of the sections of the Act, the courts can look to the relevant English common law. However, the courts cannot import any principle of English law which is inconsistent with what is laid down by the Act.

The Need of Evidence Law

Evidence is the only possible way by which the court can make inferences to render a decision. The definition of evidence explains that evidence is the proof of any fact in issues so without evidence there will be no possibilities to prove any fact in issues or even to establish any facts in the cases. It is very obvious that it is not much difficult task to obtain trust through violating the basic structure of law but in the course of protecting those rights Evidence, Law comes into the picture. Evidence Law tells the basic principles and rules regarding collection. So the process of evidencing any facts or proof should be governed by a well-established law in order to achieve speedy and fair justice.

The law of evidence is not just a fundamental principle governing the process of proof rather it also has a multidimensional purpose of governing the rules relating to the process of proof in court proceedings. While it’s moral dimension is a special asset in criminal trials as it endeavors in protecting the innocent and highlighting the guilty person to administer complete and fair justice. On the other hand, the evidence rules also have the capability to hide and prevent the truth to be disclosed in the public domain to protect the mass public interest.

Extend & Applicability

Section 1 of the Indian Evidence Act, 1872 speaks about, “Short title, extent, commencement”. This section says that the Indian Evidence Act, 1872 came into force on 1st September, 1872.

  • It applies to the whole of India including the territory of Jammu & Kashmir.
  • It applies to all JUDICIAL PROCEEDINGS in or before a court, including court Martials under the Army Act, 1950, The Navy Act, 1957 and the Air Force Act, 1950-
    • The term Judicial Proceeding is defined under this Act. However, it had been held by Justice Spankie in the case of “R v. Gholam (1875) ILR 1” All that judicial proceeding can be expressed as any procedure over the course of which evidence is or might be taken, or in which any judgment, sentence or final order is passed on recorded evidence.
    • The Court has to perform administrative or executive and legal obligations all together so that in a judicial proceeding, the adjudicator or the magistrate must act in a judicial capacity.
    • It had been held in the case of ”Munna Lal v. State of U.P AIR 1991, 1893 Cr LJ of 1991”, that a Family Court also falls inside the ambit of the significance and articulation of Court.

Not applicable to

Proceedings u/s 176 Cr.P.C./ Proceedings of preparation of inquest report by public officer

Disciplinary Proceeding in Military

Proceedings under The Army Act, The Naval Discipline Act, 1934 and the Air Force Act passed by the British Parliament.


  • The definition of evidence is excluded from the meaning of evidence under Sections 3 of the Indian Evidence Act and is also explicitly avoided under Sections 1 of the said Act. In this manner, affidavit is a personal oath or affirmation which is based on a person’s own knowledge.
  • Affidavits per se don’t become evidence in suits, however, it can become evidence just by the assent of the parties or where it is exceptionally approved by any provisions of law.
  • However, in the case of “Shamsunder v. Bharat Oil Mills AIR 1964 Bom 38”, it had been held that affidavits can be used as evidence if, for sufficient reasons, the Court passes an order under Order 19, rule 1,2 of the Code Of Civil Procedure 1908. It, therefore,stated that an affidavit cannot be treated as evidence unless an order has been passed under Order 19 of the Code of Civil Procedure.
  • In the case of “Radhakrishnan v. Navoraton Mal Jain A 1990 Raj 127”, it had been held that when there was no order of the court under Order 19 rule 1, affidavits filed by the parties without giving them the opportunity of cross-examining the deponents, cannot be treated as evidence.
  • An affidavit that is recorded suo moto by a party without having any direction from the Court can’t be named as false evidence. But it had been held in the case of “Delhi Lotteries v. Rajesh Agarwal AIR 1998 Del 332”, that no action under the Indian Penal Code can be taken against the deponent.

Arbitration proceedings

  • The Act in clear terms doesn’t have any significant bearing to the arbitral method. As a result of which arbitrator isn’t limited by the specialized standards of evidence except, if the fundamental principles of fairness and well-established principles of evidence are not disregarded.
  • Thus, it had been held in the case of “Haralal v. State Industrial Court A 1967 B 174”, that the rules of Act don’t apply to the procedures before an arbitrator. The very object of submission to an arbitrator is to have an expeditious dispute solving without getting into the tedious and elaborate procedure of a regular trial or technicalities.
  • Even if the Indian Evidence Act doesn’t apply to the arbitration procedure still it had been held in the case of “Jatan Builders v. Army Welfare Housing Organization, 2009 AIHC 2475 ( 2485) (Del.)” that arbitrator can evolve a procedure, which complies with the principle of natural justice for conduct of the proceeding. However, even if the provisions of the Evidence Act are not taken into consideration, still the parties and the arbitrators cannot override or ignore the contractual terms and act contrary to it.

Departmental Inquiries/ Domestic Inquiries/ Commissions of Inquiries

  • In the case of “State of Haryana v. Rattan Singh AIR 1977 SC 1512”, it had been held that the rule of evidence under the Evidence Act may not apply to the domestic enquiry. Similarly in the case of “K.L. Shinda v. State of Mysore AIR 1976 SC 1080”, the rule of evidence doesn’t apply to departmental proceeding as well.
  • However, again there is a contradictory view in the case of “Balkrishna Mesra v. Presiding Officer, Orissa (1977) 35 Fac LR 11 (SC)”, that there is no bar on the part of the competent authority to rely on evidence in disciplinary proceedings.
  • The Evidence Act doesn’t strictly apply to enquiries conducted by domestic Tribunals. This had been held in the case of “Ahmed v. Chief Commissioner AIR 1966 Mani 18”.
  • However, a Commission appointed by Code of Civil Procedure and Code of Criminal Procedure has the power to summon the witness and evidence, and the rules of evidence apply to the proceedings before him.
  • Income tax authorities are strictly not bound by the rules of evidence. This view had also been laid down in the case of “Commissioner of Income-tax v. East Coast AIR 1967 SC 768”.

Contempt of Court

  • The provisions of the Evidence Act also do not apply to the reception of materials against the contemnor in a contempt proceeding. This had been established in the case of “Basanta Chandra Ghosh, in the matter of AIR 1960 Pat 430”.

Tribunals/ Labour Court

  • All the technicalities of the Evidence Act are not strictly applicable to Labour Courts and Tribunals, except in so far as Sections 11 of the Industrial Disputes Act 1947 and the rules therein are permitted. This had been held in the case of “Bareilly Electricity v. Workmen AIR 1972 SC 330”.
  • However, it had also been held in the case of “Leonard Biermans v. Second Industrial Tribunal AIR 1962 Cal 375” that a proceeding before an Industrial Tribunal is merely a quasi-judicial proceeding and the evidence is not applicable to such proceedings.
  • Even in some cases, there have been contradictory views. In the case of “Raghu v. Burrakur Coal Co. Ltd AIR 1966 Cal 504”, it had been held that it is a Court under Sections 3 of the Indian Evidence Act, and therefore it must observe the rules of evidence and natural justice.

Repeal of Enactments

Section 2(1) repealed all rules of evidence which were not contained in any Statute, Act or Regulation in force in any part of British India. Before passing of the Indian Evidence Act, the rules of evidence were governed by the rules of English Common Law, Hindu and Mohammedan Laws, and the rules of Equity, Justice and Good Conscience. Section 2(1) repealed all those rules of evidence. The Repealing Act, 1938, has repealed Section 2 and Schedule.

About the Author

  • Adv. Abhishek Gupta (Natraj Legal Solutions)
  • Advocate Delhi High Court.
  • Ph: 9999052336,8700521407
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