The Indian Evidence Act of 1872 stands as a pillar of the country's legal
system, defining the rules and principles governing the admissibility and
evaluation of evidence in Indian courts. An essential legislation that has
withstood the test of time, this comprehensive law lays the foundation for fair
and just trials by ensuring that facts and evidence are scrutinized through a
structured and reliable framework.
In this introductory guide, we delve into Sections 1 to 4 of the Indian Evidence
Act, shedding light on the fundamental principles and definitions that form the
bedrock of this pivotal legal enactment. Through this exploration, we aim to
unravel the essence of these initial provisions, unveiling their significance
and impact on the Indian legal landscape. Whether you are a legal professional,
a student of law, or an individual seeking to comprehend the workings of the
Indian judicial system, this article serves as an enlightening starting point
for your journey into the realm of the Indian Evidence Act of 1872.
According to Sir James Fitz James Stephen, who drafted the Indian Evidence Act,
the Act primarily laid down the following rules:
- What is law and what are its types?
Laws can be defined as the rules that determine our relations and regulate
our behaviour, and they can be divided into substantive and procedural laws.
- Substantive Laws
The laws which prescribe our rights and duties are called substantive laws�for
example Indian penal code and the Indian contract act.
- Procedural Laws
These laws help in the application of substantive law, for example, the code of
criminal procedure and the code of civil procedure.
- Whether Indian Evidence Act is substantive law or procedural law?
The law of evidence is primarily based on the English law of evidence. Still,
the Act is retrospective and not exhaustive since the procedure related to the
testimony of the witnesses can be found in Banker's book of evidence, Chapter 37
of CRPC, and Order 20 of CPC.
What facts can be given as evidence in a court of law
- how such facts are to be proved
- by whom and in what manner are they to be proved
So, the law of evidence is an adjective law. That is, it does not fix the rights
and liabilities of individuals but lays down rules concerning how such rights
and duties can be proved.
Is the law of evidence lex fori or lex loci?
The evidence law is lex fori, that is, the court proceedings are governed by the
rule of evidence of that place where the proceedings are taking place and not
where the cause of action has arisen.
Where does the Evidence Act apply?
Sec.2 of the Evidence Act (hereinafter referred to as Act) applies to all
judicial proceedings which happen in or before any court, including
court-martial proceedings, except those court martial proceedings which are
convened under Army Act, Air force, Indian Navy Act and Naval Discipline Act.
What are non-judicial proceedings?
- What are Judicial Proceedings?
The term judicial proceeding is not defined under the Act, so its definition has
to be imported into sec2(i) of CRPC. These are the proceedings where evidence is
legally taken on oath. For example, maintenance and execution proceedings
Queen Empress V Tulja
In this case, it was held that judicial proceedings help determine the legal
relationship between two individuals or between one person and society in
Union of India v TR Verma
In this case, it was held that enquires conducted by tribunals, even though they
are judicial in character, do not attract the application of the Act because, by
law, they are required to follow the rules of natural justice.
Non-Judicial Proceedings are those proceedings where no judgment has to be
given; the court does not have to apply its judicial mind. Something has to be
done as a matter of duty or administrative inquiry, for example, departmental
An affidavit can't be admitted as evidence in a court of law; in the case of
Ayub Khan v State of Maharashtra, it was helpful that in a situation where the
deponent is available for cross-examination and an opportunity is given to the
other party to cross-examine in that case affidavit can be admitted as evidence.
Haralal v State industrial court
, in this case, it was held that the law of
evidence does not apply to arbitration proceedings.
Various important definitions under Evidence Act
How is the relevant fact different from the fact in an issue?
The term court includes judges, magistrates, and everyone except arbitrators
legally authorized to take evidence.
This term means and includes:
- anything, state of things, the relation of things which is capable of
being perceived by senses (physical fact)
- any mental condition of which any person is conscious (psychological
Sec. 3 of the Act gives us the definition of relevant fact and fact in issue as
Difference between relevant fact and fact in issue:
- A fact is said to be relevant to another when it is connected with another in
any of the ways referred to in the provisions of the Act relating to the
relevancy of fact.
- In a nutshell, relevant facts are certain evidentiary facts that help prove or
disprove facts in issue.
- On the other hand, fact in issue means and includes any fact from which, either
by itself or in connection with another fact, the existence, nonexistence,
nature, and extent of any right, liability, or disability asserted or denied by
parties to the suit or proceeding necessarily follows.
- In a nutshell, they are certain disputed facts asserted by one party and denied
by another party in a suit or proceeding.
- Other Name
The other name of relevant fact is factum probantia, and fact in issue is factum
- Assertion and Denial
While fact in issue is asserted or denied by parties to the suit or proceeding,
Revelant fact are the facts based on which certain inferences are drawn.
- Determination of liability
Relevant facts are not cardinal in determining liability, while facts in issue
are cardinal in determining liability.
In a trial where A is accused of B's murder following facts may be in issue,
that A caused B's death, that A intended to cause B's death.
On the other hand, where the question is whether the goods ordered by A from B
reached A, the fact that goods were delivered to several intermediate persons is
Documents mean any matter expressed and described upon any substance by means of
letters, figures, and marks intended to be used or used for the purpose of
For example, writing is a document. A caricature is a document.
What is evidence, and what are the various types of evidence?
The term evidence, as defined under sec 3 of the Act, means and includes:
Types of evidence:
- any statement the court permits or requires to be made by the witnesses
in relation to matter of fact under inquiry. (Oral evidence)
- all the documents, including an electronic record, are produced in front
of the court for inspection. (Documentary evidence)
- Oral evidence and documentary evidence
In the case of oral evidence, the Act requires only that person who has actually
perceived something by his own senses.
If it is documentary evidence, the original document should ordinarily be
produced. A copy of the document may contain omissions or mistakes of deliberate
and accidental nature.
Whenever a document is produced in the court, the court has to examine three
Primary and Secondary evidence
- Is the document genuine?
- what are the contents of the document?
- Are the statements mentioned in the document true?
Primary evidence is the original document itself produced in front of the court.
Secondary evidence means and includes:
- Certified copies.
- Copies made from the original by a mechanical process.
- Copies made from the original in any other way and compared with the original
and oral accounts of the document's content who has seen it.
This type of evidence is covered under the proviso of sec. 60 of the Act, when
oral evidence refers to the existence of any material other than a document, the
court may require the production of the same for inspection, such as
It is a type of evidence in which the witness does not perceive the fact by his
senses, but the information is gained from someone else.
The term primary evidence can be interpreted in two ways.-
It is evidence which goes expressly to the point in question and proves it.
It is evidence that is perceived by the witness by his own senses.
State of Maharashtra v Praful B Desai
In this case, it was held that recording the primary evidence was unnecessary.
The witness should be physically present in the court. It can be recorded by way
of video conferencing as well.
Example: Eyewitness to a murder.
It is an indirect or derivative type of evidence. Circumstantial evidence
attempts to prove the fact in dispute by proving the surrounding circumstances
of the case, it can not be taken as hard and full proof of the fact in dispute,
but it can be taken as a guiding factor in proving those facts that can be taken
as hard and full proof of the fact�for example, fingerprints on a crime scene.
Sharad Birdhi Chand Sarda v State of Maharashtra
In this case, the supreme court laid down five principles for the admissibility
of circumstantial evidence.
State of UP v Ashok Kumar
- The facts from which the guilt of the person is drawn should be fully
- The facts so established should be conclusive in nature.
- The facts should be consistent with the hypothesis of the guilt of the
- The facts should exclude every other hypothesis
- The facts should suggest that, in all possibility, the accused committed
In this case, it was held that if a person is being convicted based on
circumstantial evidence and it points towards two inferences, then one in favor
of the accused should be taken into consideration.
A fact is said to be proved when the court, after considering the matters before
it, believes it to exist or considers its existence so probable that a prudent
man ought, under the circumstances of the case, will act upon a supposition that
it does exist.
A fact is said to be disproved when the court, after considering matters before
it, either believes it does not exist or considers its existence so improbable
that a prudent man ought, under the circumstances of the case, act upon a
supposition that it does not exist.
A fact is said to be not proved when it is neither proved nor disproved.
The term presumption is not defined in Act, so its definition must be gathered
from judicial decisions.
Ms Narayana v State of Kerela
In this case, the court held that presumptions are certain inferences that are
drawn by the court from a proved fact by the process of probable reasoning.
Three types of presumptions are laid down in the Act, which can be categorized
as presumptions of fact and law.
Shall presume (Presumption of law)
- May Presume (Presumption of fact)
This is a natural and rebuttable presumption laid down in the Act. This
presumption provides that whenever the Act provides that the court may presume
of fact, then the court may.
- either regard such fact as proved or
- may call for proof it, for example, sec. 114
This is an artificial and rebuttable presumption laid down in the Act. This
presumption provides, whenever this Act directs that the court shall presume a
fact, the court shall regard such a fact as proved unless and until disproved.
For example, sec 113B
Conclusive Proof (Presumption of Law)
This is an artificial and irrebuttable presumption laid down in the Act. This
presumption provides that whenever this Act declares one fact to be conclusive
proof of the other, the court, on the proof of one fact, shall regard the other
fact as proved and shall not allow any evidence to be given to disprove it.
for example, Sec. 41, 112, 113
Kameshwar Singh v State of Bihar
- Can statements made in a departmental inquiry be taken as evidence?
- Can illegally obtained evidence be admitted?
Yes, provided it is relevant. (Umesh Kumar v State of UP)
- Is FIR a substantive piece of evidence?
No FIR is not a substantive piece of evidence, but it can corroborate or
complement the complainant's story. (Utpal Das v State of West Bengal)
- What is the meaning of the appreciation of evidence?
Ans- It is a process by which the court ascertains the reliability and
genuineness of the evidence.
- What is the meaning of maxim falus in uno falsus in omnibus?
Ans- The meaning of the above-mentioned maxim is that false in respect of
one thing means false in respect of all others, i.e., if a part of the
evidence given by the witness is false, then the whole testimony should be
discarded. Still, this maxim is not applicable in India.
In this case, it was held that minor contradictions and omissions in the
witness's evidence should be ignored if there is a ring of truth in the