The Indian Evidence Act, 1872

Module 1
 Introduction:
- Law is used in different senses
- A command of the sovereign to a course of conduct
- The entire corpus juris is broadly divided into
- Substantive laws - define rights, duties & liabilities
- Adjective laws – define the procedure by which
substantive laws are enforced
- Evidence Act is an adjective law which steps in for the
enforcement of substantive law
- The law of evidence may be defined as a system of
rules for ascertaining controverted questions of fact in
judicial inquiries.
- The law of evidence is the foundation on which the
entire structure of judiciary is based.
Growth & development of the Law of Evidence in India :
- Ancient Hindu Period:
- The purpose of any trail according to Hindu Dharma
Shastras is to ascertain the truth
 Manu & Yagnavalkya say – the king should give decisions in
accordance with true facts by discarding what is
fraudulent.
 Vasista - recognises three kinds of evidence. Namely
i. Lekhya – documents
a. Rajasaksika - executed in the kings court comparable to
modern registered documents
b. Sasaksika - private mostly by witness)
c. Asaksika - by the party itself
i. Sakshi – witness
ii. Bukthi – possession
 Care was taken to eliminate forged documents
 A document by children, dependents, women, lunatic
& persons under fear was vitiated.
iv Divya: Ordeal
 Is one more kind of evidence recognised
 Administering poison, fire, combat were some of the
examples of divya – Lord Rama asked Sita
 Ancient Muslim Period:
 In Islam the administration of justice is believed as a
divine disposition
 The Muslim law givers deal with evidence as
 Oral- direct & hearsay – preference is given
 Documentary – courts insist upon examining the party
producing it
 Fear God, for God is fully acquainted with what you do
 While examining, the courts were to pay great attention to
the demeanour of the parties & witnesses –to ensure
credibility. – Emperor Shahjehan
 Documents executed by women, children, drunkards,
gamblers, criminals etc. were considered as vitiated & not
admissible in evidence
Development in British India:
- In British India the presidency courts established in
Bombay, Madras & Calcutta followed English rules of law of
Evidence
- In Mofussil courts there were no definite rules &
- They enjoyed unfettered liberty in the matter of admission
of evidence
 Thus, there was dire necessity for the codification of
the rules of law of evidence
 The Act of 1835 was the first attempt
 Between 1835 & 1853 some 11 enactments were made
 All of them were found to be inadequate
 In 1868 a Commission under the chairmanship of Sir
Henry Mayne submitted a draft Bill
 but rejected as unsuitable to Indian Conditions
 In 1870 the task was entrusted to Sir James Fitz James
Stephen
 Stephen’s draft was referred to the Select Committee & also
to the High Courts & members of the Bar for opinion
 The Indian Evidence Act, 1872 was passed
 It came into force from 1st September, 1872
 But prior to independence there were about 600 princely
states to which the Act was not applied
 By & large they followed the Act of 1872
 After independence & with the merger of princely states
the Act uniformly applied to all the States
 Scheme of the Indian Evidence Act, 1872
 It comprises of 167 Sections spread into XI Chapters &
three Parts
 Part I – Chapters I & II
- Chapter I - Sections 1 to 4 – preliminary
- Chapter II - Sections 5 to 55 – Facts in issue &
relevancy of facts
 Part II – Chapters III, IV, V & VI
- Chapter III – Sections 56, 57 & 58 – Facts need not be
proved
- Chapter IV – Sections 59 & 60 – oral evidence
- Chapter V – Sections 61 to 90 – documentary evidence
- Chapter VI – Sections 91 t0 100 – exclusion of oral by
documentary evidence
 Part III - Chapters VII, VIII, IX, X & XI
- Chapter VII – Sections 101 t0 114A – burden of proof
- Chapter VIII – Sections 115, 116 & 117 – estoppel
- Chapter IX – Sections 118 to 134 – witnesses
- Chapter X – Sections 135 to 166 – examination of witnesses
- Chapter XI – Section 167 – improper admission & rejection
evidence of
 Preamble to the Act which declares
- “Whereas it is expedient to consolidate, define and
amend the law of evidence” - explains the purpose
- However, the Act is not exhaustive
- In addition to the general rules provided in the Act,
there are other rules of evidence relating to special
subjects contained in other enactments
- For example, S. 4 of the PC Act, 1947 &
- S. 66 (2 ) of the Bombay Prohibition Act, 1949 -
created new presumption against the accused
 The Act is mainly based on English law of evidence –
Taylor’s evidence
 Lex fory / Rule of the place of trial –
- Even where evidence is taken from abroad its
admissibility is determined by the law of evidence of
the country where the action is tried
 Preliminary:
 Extent & Scope:
- The Act extends to the whole of India except to J & K
- It applies to all judicial proceedings before
- 1. any Court or
- 2. a Court Martial & Indian Marine Courts
- However, it does not apply to
1. Affidavits
2. Arbitration proceedings
3. Proceedings under the Income Tax Act
4. Proceedings before a court martial established under, the
Army, Naval Discipline & Air Force Acts
 Judicial Proceeding: A proceeding in the course of
which evidence is or may be legally taken on oath is a
judicial proceeding – S. 2 (1) Cr P C
 Interpretation Clause: S. 3 of IEA
 Court – includes all Judges, Magistrates & all persons
legally authorised to take evidence - except arbitrators
 All persons include Commissioner, Rent Controller,
Election Tribunal & Coroner before whom evidence
can be adduced
 So also a Tribunal & Asst. Registrars appointed under
Cooperative Societies Acts are court
 Fact:
- Fact means & includes
- Any thing , state of things or relation of things capable of
being perceived by the senses;
- Any mental condition of which any person is conscious
- Illustrations:
a. That there are certain objects arranged in a certain order
in a certain place - is a fact
b. The man heard or saw something - is a fact
c. The man said certain words - is a fact
d. The man holds certain opinion, has a certain intention,
acts in good faith or fraudulently - is a fact
e. The man has a certain reputation - is a fact
- The Act adopts Bentham’s classification of facts into
- Physical – which can be perceived by the human senses- a,
b & c in the above illustrations
- Psychological – which exist only in the mind – illustrations
d&e
 Relevant:
- Relevancy means connection between one fact & another
- “one fact is said to be relevant to another when the one is
connected with the other in any of the ways referred to in
the provisions of the Act ……” (Ss. 5 to 55)
- There are two kinds of relevancy
1. Logical relevancy – not provable – ex. Where a husband
confesses to his wife that he has committed a murder.
Though, wife’s evidence is logically relevant, it can’t be
proved because of S. 122 of the Evidence Act
2. Legal relevancy – when it is expressly declared as relevant
 Facts in issue:
- Facts in issue are the set of facts from which
- Some legal right, liability or disability which is the
subject matter of the inquiry , necessarily arises and
upon which a decision must be arrived at.
- In a civil case facts in issue are determined by the
process of framing issues of fact– Order XIV, Rule 1 of
CPC
- In a criminal case the charge itself constitute the facts
in issue
 Illustration:
- A is accused of the murder of B
- At A’s trail the following facts may be in issue –
- That A caused B’s death
- That A intended to cause B’s death
- That A received grave & sudden provocation from B
- That A at the time of doing the act which caused B’s
death, was by reason of unsoundness of mind,
incapable of knowing its nature.
- Facts in issue are the facts within court’s discretion
 Document:
- Document in the popular sense means ‘written papers’
- But under the Act it means & includes matters
expressed or described on all material substances by
means of letters, figures , marks, photographs,
lithographs, etc.
- For example – writing, inscription on a metal plate or
stone, writing on a wall , numbers given on fixed tables
- Documents are in animated proofs while
witnesses are animated proofs
 Evidence: S. 3
- Evidence means & includes –
i. 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
ii. All documents including electronic record
produced for the inspection of the court – called
documentary evidence
 The word ‘evidence’ is derived from the Latin
expression ‘ Evidens Evidera’ – the state of being
evident, ie. plain, apparent, notorious.
 Taylor – evidence means & includes all facts except
arguments, which tend to prove or disprove any
matter, which is under inquiry in judicial proceedings.
 Kinds of Evidence:
- Oral Evidence may be classified into direct & indirect
- Direct Evidence – is the testimony of witnesses as to
any matter of fact, which they have perceived
themselves
 Hearsay Evidence (indirect)
- Signifies the evidence heard & said
- Also described as second hand or unoriginal evidence
- S. 60 prohibits hearsay evidence from being offered in
judicial proceedings subject to certain exceptions
 Circumstantial Evidence:
- Is the testimony by witnesses as to the circumstances
from which an inference is to be drawn as to the fact in
issue
- There is not much difference between direct &
circumstantial evidence
- In the absence of direct evidence, circumstantial
evidence can be resorted to
- But circumstances leading to the conclusion of guilt of
the accused must be fully established
- There should be no missing link or reasonable doubt
- The circumstances should exclude every possible
hypothesis except the one to be proved
 Example:
- A is accused of committing murder of B by stabbing
- C is an eye witness who has seen A stabbing B – direct
- D who is a neighbour of B heard B shouting oh A is
stabbing me
- E has seen A running from the house of B with a blood
stained knife & blood stained shirt
- F has seen A washing blood stained shirt
- G an expert, gives his opinion that the knife recovered from
A was the weapon with which B’s murder was caused
- H a witness says that C informed him that he has seen
A stabbing B
 Here, evidence given by C is direct
 Whereas, evidence given by D, E, F, & G is
circumstantial &
 That of H is hearsay & not admissible
 The scope & significance of circumstantial evidence
can be better understood with the help of one or two
cases
 In Anant Chintaman Lagu V. Bombay (1960)
- A, the family doctor of one Laksmi bai, an elderly &
moderately rich widow, was tried for her murder.
- She was a chronic TB & diabetes patient
- A fixed an appointment with a specialist in Bombay for
her treatment &
- arranged for their travel by a passenger train from
Poona to Bombay on the night of 12th Feb. 1956
- On the next morning when the train arrived at
Bombay, she was in a state of unconsciousness
- She was admitted in GT Hospital, Bombay for
treatment, then A gave a wrong Address
- She did not respond to the treatment & died around
11.30 am on 13th Feb. 1956
- As nobody claimed, her dead body remained in the
hospital till 14th &
- under the orders of the City Coroner the dead body
was handed over to JJ Hospital for the benefit of
medical students
- A peon of JJ Hospital noticed certain scratches on the
body & suspected foul play
- A post-mortem was conducted on 19th but no signs of
poison was detected.
- The body of LB was cremated on 24th by the Hindu
Relief Society as an unclaimed body
- A did not communicate the death of Laksmi bai to any
one & started systematic embezzlement of her
property by forged signatures to the tune of Rs 26,000/
- Due to continued disappearance, the friends &
relatives of the deceased LB lodged a police
complaint after 14 months in Feb. 1958
- The police after investigation arrested A & prosecuted on
the charge of murder of LB by poisoning.
- The trail court convicted A & sentenced him to death u/s
302 IPC
- The Bombay HC & the SC upheld it.
- The evidence in this case against A was totally
circumstantial.
 Medical evidence did not support her death due to diabetic
coma but due to some poison which could not be identified
due to lapse of time
 Evidence as to the conduct of A in respect of the deceased
& her property both before & after her death
 In Father Bennidict V. Kerala (1967) KLT
- B was tried under Ss. 364 & 302 IPC for the abduction &
murder of a woman by name Maria Kutty
- The prosecution case was that B, the accused had immoral
connections with the deceased MK
- On account of which she bore him a child two years ago &
she used to frequently visit B for money
- B got fed up with the kind of blackmailing & decided to kill
her to save himself from the risk of exposure
- On the pretext of making love, he took her to a place called
Manna Maruthy 32 miles away from his residence
 B stabbed MK to death & left her naked body on the road,
wrapped in a bed sheet
 There were no eye witnesses to the occurrence
 The prosecution relied on circumstantial evidence
 The sessions court convicted the accused relying on
- The accused had strong motive
- The deceased was last seen alive with the accused by some
witnesses on their way to Manna Maruthy
- The accused was seen alone at about mid night while
returning from MM
- The bed sheet wrapped around the body of the
deceased had the dhobi mark of the accused
- Certain material objects like the knife & the blood
stained blue bag were recovered at the instance of the
accused
 Whereas the HC acquitted the accused on appeal for
the following reasons
- The evidence of the three witnesses as to the immoral
connections is only hearsay therefore inadmissible
 The evidence of the witnesses who saw the accused
along with the deceased on their way to MM & the
accused returning alone is suspicious
 Identification of dhobi mark on the bed sheet was
done only after the arrest of the accused weeks after
the incident
 The alleged confession & recovery of the blood stained
blue bag along with the knife is inadmissible because
of Art. 20 (3)
 The HC therefore was of the opinion that the evidence
was not sufficient enough to sustain the conviction.
 Documentary Evidence:
- All documents produced before the court for its
inspection
- They may be i. primary or ii. secondary evidence
- Primary evidence is the very document itself produced
before the court for its inspection – S. 62
- Secondary evidence can be permitted after
satisfactory explanation for non production of the
primary evidence Ss. 61 t0 90
 Proved, Disproved & Not proved:
 Proved:
- A fact is said to be proved when, after considering the
matters before it, the court either believes it to exist or
considers its existence so probable that a prudent man
ought , under the circumstances of the particular case, to
act upon the supposition that it exists
- Proof here does not mean proof to a mathematical
demonstration because that is impossible – the standard
required is proof beyond reasonable doubt
- It means such evidence as would induce a reasonable man
to come to a conclusion
 Disproved:
- A fact is said to be disproved when, after considering
the matters before it, the court either believes that it
does not exist, or considers its non existence so
probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that it does not exist.
 Not proved:
- A fact is said to be not proved when it is neither proved
nor disproved – it is a state of mind between the two –
it negatives both proof & disproof
 May Presume, Shall Presume & Conclusive Proof: S. 4
- Presumption means things taken for granted
- A presumption is an inference drawn by the court as to the
truth of a particular fact from other known or proved facts
- Presumptions are devices by the use of which the courts are
enabled & entitled to pronounce on an issue
notwithstanding that there is no evidence or insufficient
evidence
- Presumptions may be classified into
i. Presumptions of fact ( Natural presumptions/ May
presume )
ii. Presumptions of law (Artificial presumptions)
a. Rebuttable presumptions of law ( Shall presume )
b. Irrefutable presumptions of law(Conclusive proof)
- Presumptions of facts are drawn spontaneously by
operation of our reasoning
- Presumptions of law are drawn by the courts from
experience & observation
 May Presume:
- Whenever it is provided by the Evidence Act that the court
may presume a fact – Ss. 79 to 90A, -s. 113A abetment of
suicide by a married woman & - s. 114 court may presume
certain facts
- The court has discretionary power either to presume that
fact & regard it as ‘proved’ until it is disproved or
- Refuse to presume that fact & call for the proof of it
- For example,
- illustration A u/s 114- presumption as to certain facts
- The court may presume that a man who is found in
possession of stolen goods soon after the theft
- Is either a thief or
- Has received such goods with the knowledge that they are
stolen or
- May refuse to presume the guilt of the accused & ask the
prosecution to prove the guilt of the accused.
 Shall presume: Ss79-85 & 89 (presumption as to
documents), 105 , 111A, 113B –presumption as to dowry
death, & 114A – absence of consent in case of rape
- Whenever it is directed by the Evidence Act, that the
court shall presume a fact
- The court shall regard such fact as proved, unless &
until it is disproved
- The court has no discretionary power in drawing a
presumption
- there is express direction, which is mandatory on the
court
- For example:
- Where A is accused of committing a murder,
- He pleads the exercise of the right of private defence u/s 96
IPC
- The court in such cases shall presume that there are no
such circumstances & shall regard non existence of the
circumstances pleaded by the accused
 The distinction between may & shall is
 In may the court has option & in shall no option to
presume – once the option is exercised the distinction goes
& the fact shall remain presumed till disproved.
 Conclusive Proof: -
- When one fact is declared by the Evidence Act to be conclusive proof of
another
- The court shall, on proof of the one fact, regard the other as proved &
- The court shall not allow evidence to be given for disproving that fact
 For example: where the question is whether A & B are husband & wife
 When a divorce decree is produced, the court shall conclusively
presume that they are no longer husband & wife from the date of such
divorce decree
 The court shall not permit any kind of evidence in that regard
- Similarly, S. 112 - birth during marriage - conclusive proof of legitimacy,
DNA test exception.