Concept and Historical

Background of Evidence
 What is Law
• The term “law” is used in different senses.
In the plain sense it means any rule,
regulation or canon, a dogma or a norm to
which the human actions are required to
conform.
• The entire corpus juris (body of laws) is
broadly classified into two categories:
• Substantive laws
• Adjective laws
 Law of Evidence
• The law of evidence come under the
purview of neither substantive nor
procedural law but come under adjective
law.

• It is the machinery by which substantive

laws are set and kept in motion.
• Section-3 Defined 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 electronics
record] produced for the inspection of the
court;
Such documents are called documentary
evidence.
 History of Evidence Law in India
• Prior to IEA, the rules of Evidence were
not universal rather subjective in nature.
• It were varying with the
– Different social groups
– Communities of India,
– As well as his or her caste, religion and social
faith.
 Trial by Battle
• Initially at many places and in many
beliefs, Trial by battle used as a tool to
extract the truth.
• Belief was that divine help will come to the
rightful party.
• Trial by battle has been abrogated only in
1817.
 Trial by Ordeal
• Trial where the guilt or innocence of the
accused was determined by subjecting them
to:
– A painful, or
– At least an unpleasant,
– Usually dangerous experience.
• It included a person on bed of hot coals or
putting ones hand in boiling water.
• Anyone who suffered injury was held to be
impure and guilty.
• Criticise due to the role of prreast in these
 Trial by Touch
• Belief was that if a guilty man touches the
corpse it would show a reaction and then
the man should be punished.
• Accordingly refusal to touch a corpse was
also admission of guilt by the accused.
 Weird Evidence System of the Europe
• The most cruel evidence law existed in
Europe with respect to witch hunts and
witch craft.
• The woman suspected of being a witch
was tied up and thrown into a pond.
• If she floated up, she was a witch and was
burned alive at stake.
• If the woman were to sink to the bottom of
the pond, she was not a witch.
• Confessions due to torture are not
unknown today either.
• English rule of evidence was followed by
the presidency towns of Calcutta, Madras
and Bombay.
• The Mofussil courts were governed by
Mohammendan and English rules of
evidence.
 Historical Background
• In order to traced the history of the law of
evidence in our country we have to visit
three different periods:
• The ancient Hindu period;
• The ancient Muslim period; and
• The British period.
Ancient Hindu period
• Law of evidence prevailing in Hindu India
emanate from the Hindu dharma Shastras.
• According to Hindu dharma shastras the
purpose of any trial is the desire to
ascertain the truth.
• This emphasized that
– a judge by using his skill should extricate the
deceit like a physician taking out from the
body an iron dart with the help of the surgical
instruments.
• Vasista recognised three type of evidence:
– Lekhya (documentary evidence)
– Sakshi (witnesses)
– Bukhthi (possession)
– Divya (Ordeals)
 Ancient Muslim period
• The Mohammendan law givers deals with
evidence under the heads of oral and
documentary.
• Oral evidence is further sub-classified into
(a) direct and
(b) hearsay evidence as in present day
 British Era
• As Sarkar Points out, “before the introduction of
the Indian Evidence Act, there was no complete
or systematic enactment on the subject”.
• In Presidency Town the courts established by the
Royal Charter used to follow the English Rules of
Evidence.
• Outside the Presidency the application of Law of
Evidence was vague.
• Mofussil Court were also not bound to follow the
English law of evidence.
• There was a certain amount of caprice and
arbitrariness in the administration of law of
evidence.
• This anarchy paved a way for the
enactment of Indian Evidence Act
premised on line of English Evidence Law.
• Certain efforts have been made in 1835
and in 1853 but same were desultory.
• Curtain raiser was the Draft bill on
Evidence of 1868 perpared by the Indian
Law Commissioner in the Chairmanship of
Henry Maine..
• According to Maine the state of judicial
anarchy in the administration of evidence
was highly unsatisfactory.
• Moreover, wholesale importation of
English Law of Evidence in India is not
feasible as per need and status of Indian
Society.
• Draft bill did not pass the even first stage
of reading and same was criticized for its
complexity and paucity of expertise of
Indian Judges in applying the said law.
• Sir James Fitzjames Stephan who became
the law member in 1871 to come up with
the Indian Evidence Act.
• His draft bill was approved and came into
being as the Indian Evidence Act, 1872
• It came into force from 1st September
1872.
• Before independence, many states had
already accepted this law as the law in
their respective state.
• After independence, the Indian evidence
Act was held to be the law for all Indian
courts.