INTRODUCTION
Things which makes things clear is called evidence. It is derived from the Latin word ‘evidera’ which means to discover clearly, to ascertain or to prove. It is a medium to proof.
– It is divided into three parts
Part-1 relevancy of facts (s 1-55)
Part-2 on proof (s 56- 100)
Part-3 production and effect of evidence (s 101-167)
– This Act contains 167 sections
– It has 11 chapters
The law of evidence is lex fori (law of the place of the action)
Types of evidence:
(a) Best and oral evidence, (sec. 59-60)
(b) Circumstantial evidence,
(c) Direct evidence, (testimony of witnesses)
(d) Hearsay evidence, (sec. 6)
(e) Corroborative evidence,
(f) Documentary evidence, (sec.61-73-A)
(g) Primary and secondary evidence,
(h) Real evidence
Preamble- whereas it is expedient to consolidate, define and amend the law of evidence.
Section1- Short title, extent and commencement- this act may be called THE INDIAN EVIDENCE ACT,1872. It extends to whole of India except state of Jammu and Kashmir and applies to all judicial proceedings in or before any court, including court martial except – army act, the naval discipline act, the Indian navy (discipline) act,1934, and the air force act. Indian Evidence Act also not apply to affidavits and arbitrators.
Applies on-
– all judicial proceedings
defined under sec. 2(i) CrPC (object of it to determine jural relation between one person and another or a group of persons or between him and the community generally, evidence is or may be legally taken on oath) non judicial proceeding are those an enquiry about the fact where no there is no discretion to be exercised and no judgement to be formed, but something is to be done in a certain event, as a duty, is not judicial but administrative enquiry.
– Court martial
– J & K also
Does not applies on
– Indian Navy Act
– Naval Discipline Act
– Army Act
– Air force Act
– Affidavits (given under order 19 rule 1,2,3 of cpc and sec. 295, 296 and 297(1) of crpc. Affidavit can only be included in definition of evidence when court has passed order under Order19 rule 1 & 2on sufficient ground.
– Arbitrators
Affidavits are confined to such facts as the deponent is able of his own knowledge to prove. A declaration in the shape of an affidavit cannot be received as evidence of the facts stated in it. [Re Iswar Chunder Guha, (1887) 14 Cal 653]
The provision of the Evidence Act do not apply to proceedings before an Arbitrator. Arbitrators are bound to conform to the rules of natural justice. They are unfettered by technical rules of evidence [Suppu v. Govindaryar (1887) 11 Mad 85, 87]
The arbitrators are not bound by the strict rules or technical rules of evidence the object of submission to arbitrator is to avoid the elaborate procedure of regular trial.
Tribunals- the provisions of the evidence Act do not apply proceeding before tribunals.
SECTION 3- Interpretation clause –
Court- it includes all judges and magistrate, and all persons except arbitrators, legally authorised to take evidence.
The arbitrator is not a court besides it consumer forum commission is also not a court further definition of court is not complete because this definition is applied to Indian Evidence not CrPC.
CASE-
Brajnandan Sinha v. Jyoti Narain [AIR 1956 SC 66:1956 SCJ 155:(1955) 2 SCR 955] it has been held that any tribunal or authority whose decision is final and binding between the parties is a court. In view of this the Court further held that a Court of enquiry is not a court.
Fact– fact means and includes –
(1) anything, state of things, or relation of things, capable of being perceived by senses.
(2) any mental condition of which any person is conscious. (psychological thing)
According to Paton- a fact is a raw material on the basis of which law creates certain rights and duties.
A misrepresentation as to the intention of a person is a misrepresentation of a “fact” [Re Jaladu (1911 36 Mad 453)]
Fact may be classified as
(a) physical and psychological facts
The existence of visible object are physical Subject of perception by the five senses and the mind of individuals, sensation, conscious, desires, intention are psychological fact.
(b) positive and negative fact
Existence of certain state of thing is a positive fact, the non- existence of it is a negative fact.
Matter of fact – anything which is subject to testimony which can be proved by evidence; matter of law is generally law of land of which the court will take judicial notice. It is not proved by evidence.
Relevant- one fact is said to be relevant to another when the one is connected with other facts in any of the ways referred to in the provisions of this Act relating to relevancy of this facts. (Connected must fall in any of the definition 5 to 55)
Questions which may be put in cross-examination may not always be determinative of the suit of the accused person, but they may be relevant to the guilt in question. [Jesu Aeir Singh v. State, AIR 2007 SC 3015:(2007)12 SCC 19]
The word relevant have two meanings connected and admissible. The connection may be traced either from cause to effector from effect to cause.
The relevancy of facts in case of circumstantial evidence can be explained by illustration of R v. Richard.
According to Stephen- relevancy means connection of events as cause and effect thing connection should be in accordance with sec.5 to 55 of the Act.
All relevant fact are admissible.
Fact in issue- any fact from which either by itself or in connection with other facts, the existence, non- existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily follows. (assertion/denial in suit or proceeding- existence, non-existence, nature, extent of any right, liability or disability.)
– A fact which is in dispute on the basis of which judgement of case is based.
– A fact which is necessary element of any right and liability.
– It is called as main facts and they are the backbone of legal proceedings and are formed by the court on the basis of proceedings.
Facts in issue are those facts which are alleged by one party and denied by the other in the pleading.
document- any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for purpose of recording that matter.
Have been defined under sec 29 of IPC and clause 5 of IEA.
evidence- (1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; (oral evidence). Statement made by witness before the court in relation to matter of fact under inquiry.
(2) all documents including electronic records (by the information technology Act, 2000) produced for the inspection of the court.
It is a instrument trough which relevant facts are brought before the courts.
The definition of evidence given in the ACT is too narrow it does not includes-
– Material things other than document
– Statements made out of court or before the court by the parties
– A thing like struggle in the case of murder
– The result of local inquiry or inspection
– Identification proceedings
Evidence is wider than testimony because evidence includes oral as well as documentary evidence but testimony is the oral evidence given by the witness in the court.
Nirmala v. Hari singh
When a court does not direct to prove a fact by an affidavit it is not affidavit.
Sudha Devi v. Ram P Naryanam SC1988
Under section.3 of evidence Act statement in affidavits are not evidence.
State of Maharashtra v. Dr. Praful B. Desai
SC held that recording of evidence by way of video conferencing might be done in cases where the attendance of the witness cannot be ensured without delay, expense and inconvenience.
[1] Malkani v. State of Maharashtra 1973 SC
The tape recording is admissible the tape recording is a document as defined in sec.3 of IEA which stood on no different footing in photography by satisfying following conditions-
– The voice of person is alleged to be speaking must be identified by the maker of record or other persons who know him.
– Accuracy of what was actually recorded has to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, should be there so as to rule out the possibility of tempering with the record.
– The subject matter recorded has to be showed to be relevant according to rule of relevancy IEA.
It may be used as evidence or it may also be used for contradiction and collaboration (145 & 157) of IEA.
Judge’s personal knowledge and observation not comes under evidence because he become a witness without cross- examined.
Accused makes a statement in answer to questions from the court it does not fall within the term evidence.
Proved – fact is said to be proved, after considering the matters before it, court either believes it to exist, or its existence is highly probable.
State of West Bangal v. Ori lal jalurial SC
Proof does not mean proof of rigid mathematical demonstration, because that is impossible. It means such evidence as would induce a reasonable man to come to a conclusion.
Probative force– the extent to which a particular evidence aids in proving the fact in controversy is called as probative force.
Disproved– court either believes it does not exist or non- existence is highly probable.
Not proved– when neither proved nor disproved. Neither believes that the fact exists nor he believes that the fact does not exist.
Section 4
May presume– court may either regard such fact to be proved unless and until it is disproved, or may call for proof of it. Sections- 86,87,88,90,90a,114 ill. a,b.
Shall presume– court shall regard such fact to be proved unless and until it is disproved. Sec. 79-85,89,104,105,107,108,112.
Conclusive proof– on proof of one fact regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it. Sec. 41,112,113,115,116,117.
Kinds of presumption: –
(1) presumption of fact or natural presumption
Inference that is drawn from observation of course of nature and the constitution of human mind. E.g- sec 114, 86,87,88 and 90.
(2) presumption of law (rebuttable and irebuttable)
Rebuttable e.g- a man is proved innocent until he is proved guilty, a child if born in wedlock shall be presumed to be legitimate, section 107,108,112.
Irrebuttable e.g- section 82 IPC, 115,116,117 IEA
(3) mixed presumption or presumption of law and fact
May presume- court has discretion to presume a fact or not to presume it. E.g- 88,90.
Shall presume- court cannot exercise its discretion. It is compelled to take the fact as proved and also give the opposite party to disprove it and if the opposite party is successful then court shall not presume the fact. E.g sec 89.
Conclusive proof – court has no discretion at all. It can not call upon a perty to prove that fact nor can it allow the opposite party to adduce evidence to disprove the fact. E.g sec 41.
– Vaibhav Sanchar
Central University of South Bihar
