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Introduction To Indian Evidence Act 1872

The evidence An act which was passed by the British parliament in the year 1972 contains a set of rules and regulations regarding admissibility of the evidence in the court of law. These provisions speak about both procedure and rights, as it provides the procedure as to how to proceed to the court or how to establish our claim before the court.

The Evidence Act, identified as Act no. 1 of 1872, and called as the Indian Evidence Act, 1872, has eleven chapters and 167 sections, and came into force on 1st September 1872 applies to all over India except the state of Jammu and Kashmir. Spread Over a period of approximately 140 years since its enactment, the Evidence Act has predominantly retained its original form except for certain amendments from time to time. To trace the history of the law of evidence of our country, three different periods have to be referred to:
  1. firstly, the ancient Hindu period:
  2. Secondly, the ancient Muslim period; and
  3. Lastly, The British period.

The Law of Evidence is a significant part of any branch of the judicial system irrespective of any nation. But talking specifically about India the enactment of the Indian Evidence Act has changed our judicial system completely as there were no codified laws relating to evidence which enriched our judicial system by providing rules and regulations for ascertaining the shreds of evidence. Although the India Evidence Act is based on English law still it is not fully comprehensive.

The limitation of this act does not end here, as it does not apply to army & naval law, disciplinary acts, and all the affidavits. It is well known that the Law of evidence is Procedural Law and it only applies to court proceedings but it also has a feature in its some part that makes it as Substantial Law.

The primary objective of any Judicial System irrespective of any state is to administer justice and protect the rights of the citizens.

The complete �corpus jurist i.e, a body of laws, is divided into two categories:

  • Substantive laws:
    a set of rules and regulations that govern the society.
  • Adjective laws:
    set of rules and regulations that deal with the law governing procedural aspects such as evidencing, pleading, etc.

But the law of evidence neither comes under substantive law nor under procedural law, rather it is a subject matter of �adjective law�, which defines the pleading, evidencing, and procedure concerning substantive laws. The general meaning of �Evidence� is �a body of facts and information indicating or adjudicating the values of any facts or evidence.


The Ancient Hindu Period:

It has been laid down in the Hindu Dharma Shastras that:
the purpose of any trial is the desire to find out the truth. To discover the truth from the contradictory claims made by two parties in a case the Hindu lawgiver took every possible precaution. The Shastras commands, that the parties coming into the court must be persuaded to admit the truth.

Manu says:
the King presiding over the tribunal shall ascertain the truth and determine the correctness of the testimonies of the witness, the description, time and place of the transaction or incident giving rise to the case as well as the usages of the country, and pronounce the true judgment�.

Three kinds of evidence have been laid down by Vasistha which are:

  1. Likhitam (Document),
  2. Sakshino (Witnesses)
  3. Bukhthi (Possession).

The Ancient Muslim Period:

It is often said that there is no real concept regarding any highly developed Muslim rules of evidence. Al � Quran stresses more on justice, as justice is considered as one of the attributes of God. Therefore, the rules of evidence are advance and modern. Evidence under Muslim law is divided under the heads of oral and documentary.

The oral evidence is further sub-divided into direct and hearsay. Furthermore, the lawgivers followed the following order of merit, viz., full corroboration, the testimony of a single individual, and admission including confession. Documentary evidence was also recognized by the Ancient Muslim law. However, Oral evidence appears to have been referred to documentary.

Documents executed by a certain class of people were not accepted by the court like women, children, drunkards, criminals, etc. Besides, when documents were produced, courts insisted upon examining the party which produced them.

The British Period:

Before this time present enactment governing evidence�s admissibility in the court of law is a result of the British period. Before this time, the rules of evidence were based upon the local and traditional legal systems of different social groups residing in India. These rules were different for almost every social group, caste, community, etc which created chaos in the legal prevalent legal system of that time. After the advent of the British East India Company in the dominion of India was granted a royal charter by King George I in 1726 to establish Mayor�s courts in Bombay, Madras, and Calcutta. These courts followed the English rules of evidence law.

On the other hand, outside these towns in mufassil courts, there was no definite law relating to evidence. Hence, Muffasil courts were having unfettered power concerning evidence laws. This difference in laws resulted in chaos in the Muffasil courts. CJ Peacock observed in the case of R v. Khairulla that:
English Law of Evidence was not the law of the mufassil courts and it was further held that Hindu and Muslim laws were also not applicable to those courts. There being no fixed and definite rules of evidence, the administration of the law of evidence was far from being satisfactory.

This created a dire necessity for the codification of laws related to evidence. So, in the light of this whole episode British government took the first step in this respect in the year 1835 bypassing the act of 1835. A total number of eleven enactments were passed dealing with the law of evidence but none passed the test adequacy test. In 1868, a commission was formed to frame a draft code of the law of evidence. 39 sections were included in this draft code.

In the fifth report on the draft code of evidence in 1868, the commissioners admitted that most of the English laws were not suitable for Indian society. In October 1868, after adding two more sections, this draft code was introduced by Sir Henry Summer Maine and referred to a Select Committee. It was circulated for opinion to local governments and was pronounced by every legal authority to which it was submitted to be unfit to the wants of the country. The predominant objection to it was not suitable for the officers for whose use it was designed.

In the year 1870, a new bill containing 163 sections in a form different from the present Evidence Act of 1872 was prepared by Fitzjames Stephen. It is not clear if it was criticized by the people of the country for whom the law was to be passed most of whom, even the elites did not know English. Fitzjames Stephen recast it and it ultimately passed as Indian Evidence Act, 1872. When Pakistan and India gained independence on 14th and 15th August 1947 respectively, the Act continued to be in force throughout the Republic of Pakistan and India except the state of Jammu and Kashmir.

After the Independence of Bangladesh in 1971, the Act continues to be in force in Bangladesh, however, it was repealed in Pakistan in 1984 by the Evidence Order 1984 (also known as the Qanun-e-Shahadat). It applies to all judicial proceedings in the court, including the court-martial as well. However, it does not apply to affidavits and arbitration


Evidence is classified into different categories such as:

  1. Oral Evidence:

    Section 60 deals with the oral evidence, where oral evidence is the evidence which the witness has either personally seen or heard any such facts or information which has the capability of proving or establishing the facts in issues. The only condition with these types of evidence is that they must be direct or positive for establishing the fact in issues
  2. Documentary Evidence:

    Section 3 talks about the documentary evidence, where those facts or information in the form of the document can be witnessed directly by the court of law for establishing the facts in issues.
  3. Primary Evidence:

    Section 62 deals with primary evidence, these are those facts or the information which by any means has a great capability of proving or disproving any fact in issues then such information is considered as primary evidence like a paper document of any vehicle is primary evidence to prove the ownership of the vehicles.
  4. Secondary Evidence:

    Section 63 deals with secondary evidence, these are those evidence which is given in the absence of primary evidence like when there is no primary evidence than secondary evidence can be used to prove a fact in issue. Eg. If the original paper document is lost then its photocopies can be used as secondary evidence to prove the ownership.
  5. Real Evidence:

    Real evidence means material evidence where the court can inspect the evidence directly and requires no further knowledge.
  6. Direct Evidence:

    It is one of the most powerful types of evidence as the court need not make any inference because this evidence shows the direct impact and has great value to establish or prove any fact in issues.
  7. Indirect/ Circumstantial Evidence:

    When there is no sufficient direct evidence to prove any fact in issue then the court can assume on the availability of existing evidence and construct a link between the existing evidence and the inference. And if the constructive link is completely beyond any reasonable doubt then the court can establish any fact.
  8. Hearsay Evidence:

    Hearsay evidence is very weak evidence or no evidence as to the witness, himself is not the actual witness of the fact in issues because whatever he is reporting is not what he saw or heard rather the reporting facts are the facts that are narrated by another person. Hence the court believes that the narrated facts by the third person has not much credibility in establishing any facts.
  9. Judicial Evidence:

    Statements of witnesses, documentary evidence, facts established during the examination of a witness in the court, self-incrimination is some kind of evidence which the court receives itself, and such evidence is known as judicial evidence.
  10. Non- Judicial Evidence:

    Confession made by the witness or accused or victim outside the court are considered as non-judicial evidence.
  11. Prima Facie Evidence:

    The concept of �on the face of it concerning evidence is a principle when the court presumes any facts and considered them proved until they are disproved, then such evidence is known as prima facie evidence.

The Need for 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 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.

Relevancy of Facts
  1. Doctrine of Res- gestae:
    The doctrine of Res gestae is expressed under section 6 of the Indian Evidence Act, 1872 in the following words- �Facts which though not in issue are so connected with the facts in issue to form a part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places�

    Res gestae was originally used by the Romans which means to �acts are done or actus�. The most important principle of this doctrine is that all the facts must be described in the same transaction. Whereas transaction means a group of facts which are so connected that they can be considered as a single fact. In Layman�s language, a transaction may be considered as a series of certain acts and when all the actions are carried in the same situations at the same point of time then such situation or condition be called as the act of the same transaction. Circumstantial or indirect facts are also considered under the doctrine of res gestae as they are also forming a part of the same transaction.

    Essentials of Doctrine of Res Gestae:
    • The statement made should not be an opinion and must be a statement
    • The statements should be made by the participants of the transaction.
    • The statements should have enough information to explain or brief about the incident.
    • The statements made by the person or act of the person should be spontaneous and simultaneous to the main transaction.

    • If a person is dying of poison and before dying, he tells the name of the accused.
    • If a person is about to die as the accused is in front of him holding a gun and he asks for help.
    • If an injured person is crying for help.

    In, Ratten V. Queen [1]
    the victim (wife) called the police for help as her husband was holding the gun and was about to kill her but before the operator could get connected to the call and report the statements of the victim, the call disconnected. Later the police found her dead body in her house from where she called the police for help. Later the police found that the time of the call and time of death was almost the same so the call by the victim comes under the principle of res gestae. Hence the court found the husband guilty of murder and quashed his reasoning that he shot accidentally without any intention.

    In, Sukhar V. State of UP [2][i]
    the victim tried to alarm that the accused will shoot him in a few minutes. On hearing the alarm the witness almost reached the place of the incident. However, the victim survived and the accused was charged under section 307 of IPC (Punishment for Attempt to Murder). Despite the circumstances, in this case, being hearsay evidence, but still, the court recognized the act in the same part of the transaction and explained it to be a case of section 6 of the Indian Evidence Act. Therefore the statements of the witnesses were admissible as they formed a part of the same transaction.

    In Uttam Singh vs. State of Madhya Pradesh[3]the child and the victim were sleeping together at the time of the incident and he suddenly awakened due to the voice of the ax and screamed for help by taking the name of the accused. Just after the call for help his mother, sister, and other witness come there. The court found this evidence to be admissible as the act of the child and the accused was of the same part of the single transaction
  2. Motive Preparation and Conduct:
    Section 8 of the Indian Evidence Act talks about the importance and of motive, preparation, conduct(previous & subsequent) in various cases. And it is a well-known fact that Motive & Preparation are among the first act before any conduct. Therefore Section 8 explains the importance of motive, preparation, and conduct, where there are no direct evidence and the facts, are proven based on circumstantial.
The relevance of Motive under the Act: As in the above discussion we have already seen that Motive is the main inducing force that induces a person to do some act. It is expressed that if the offense has been commenced voluntarily then could be no possibility of the absence of motive. Although it is very difficult to obtain the evidence of motive still evidence of motive becomes very important in the case of circumstantial evidence. The Supreme Court about motive said that �if the witnesses of any case are trustworthy and have enough credibility then the motive of any act done by the offender has no such importance�.

Although motive and intention are the same there is a thin line of difference between them that intention is the pre-calculation or knowledge of ascertained consequences in the mind of the offender. In some cases, it is observed that sometimes motive behind the execution of a crime may be good but the intention is always bad or guilt-oriented.

In, Kundula Bala Vs State of A.P[4]: The son-in-law before his marriage demanded a piece of land from the deceased. But after the marriage, the deceased refused to transfer the ownership of the property and expressed that he would give this property to his daughter. Such inferences of the father-in-law induced the accused in committing a crime and after some time the crime commenced. The court observed that there is a strong motive with the accused of committing the crime as the father in law refused to transfer the property in the accused name.

In, Gurmej Singh Vs State of Punjab[5]: The deceased has won the election against the accused. It is also seen that they don�t have good relations and they have always had a quarrel with each other. The reason behind frequent quarrels was that the accused diverted a dirty water stream towards the house of the deceased. The court observed that there was pending litigation between them and the dirty water stream induced frustration between them. After the death of the deceased, the Court concluded that disputes related to the passage of dirty water could be the motive of the murder.

In, Rajendra Kumar Vs State of Punjab[6]: The Court held that the accused can only be convicted if the prosecution completely proves the motive and provide the supporting evidence to establish the commission of the offence by the accused.

The Supreme Court of India interpreted �preparation� as a word that denotes the action or preparation of any act and also those components which are prepared. Preparation includes arranging the essentials objects for the commission of a crime/offence.

Evidence tending to show that the accused had prepared for the crime is always admissible. Preparation does not express the whole scenario of the case rather preparation is only subjected to the arrangements made in respect of committing any act. Further, there is no mandate that preparation is always carried out but it is more or less likely to be carried out. It is very difficult to prove preparation as there is no mandate that preparation is always carried out to commit any crime. It is mostly observed that the Court draws inference with certain facts in establishing or ascertaining the preparation of crime committed.

In, Mohan Lal Vs Emperor[7]: The accused was charged for cheating as he was importing goods in Karachi port from Okha port without paying the proper custom duty as he made some arrangements with the customs department. The prosecution showed enough evidence to prove the preparation by the accused in avoiding the import duties. The Court held that the act by the accused was completely wrongful and are prohibited by the law hence the accused is liable for prepara n, appu vs state[8]: The four accused arranged a meeting to make essentials arrangements for commencing the crime. Certain facts related to the objective of the scheduled meeting were admitted which showed preparation on their part. The preparation was administered clearly that it is an intention to commit burglary and the accused were waiting for the right time to get the best opportunity to execute their preparation.

Section 8 of The Indian Evidence Act also defines conduct, conduct here means an external behavior of a person. To check if the conduct of a person is relevant to the incident then the court must establish a link between the conduct of a person who committed the crime and the conduct of the incident. The most important role of this part is that the relevant conduct must bring the court to a conclusion of the dispute. If the Court concluded then the conduct was previous or subsequent, it shall be checked properly by the Court.

Conduct is one of the very important pieces of evidence explained under Section 8 and such importance is only considered when this conduct is indirect form, otherwise, if the conduct is recognized indirectly then it will lose its importance.

In, Bhamara Vs State of M.P [9]: a person X was farming on his land, on seeing another person standing near to his place he called the person for some conversation. After a few moments, the conversation turned into arguments and ended up in a fight. On seeing such activity other people came to the place of the incident to stop the fight but subsequently, the offender tried escaping. But the offender was caught by some other person.

The Court found that the conduct of escaping of the offender was relevant subsequent conduct.
In, Nagesha V. State of Bihar[10]it was held by the Court if the first information is given by the accused himself, the fact of his giving information is admissible against him as evidence of his conduct.

Conspiracy means few people come together to do an act with common intention. So in the same context, a criminal conspiracy is the act of at least two or more persons to do an act that is not authorized by the law i.e., an illegal act, or to do a legal act by illegal means. Criminal Conspiracy is a kind of partnership in crime, and every member of such partnership must join the partnership by mutual agreement for executing a common plan.

There are two relevant provisions which deal with the criminal conspiracy i.e., Section 120(A) of the Indian Penal Code and Section 10 of the Indian Evidence Act talks about the things said or done by a conspirator.

Essentials of Criminal Conspiracy u/s 10 of the Indian Evidence Laws:

  • There should be reasonable grounds to establish a conspiracy
  • There should be at least two or more persons to form a conspiracy.
  • There should be a common intention of all the conspirators.
  • Acts or Statement of the conspirators.
  • The acts or statements of the conspirators must be about common intention.

In, State of Tamil Nadu v. Nalini[11], the court held that once any of the participants of conspiracy execute the conspiracy then his statements made by him cannot be used against other conspirators according to Section 10 of the Indian Evidence Act.

In Subramaniam Swamy v. A Raja[12]the court in its judgments showed that anything doubtful cannot be considered as legal proof and such proofs are insufficient to prove any criminal conspiracy.

Magistrate duty of recording the confession- A Judicial Confession is made to the Magistrate during the judicial proceeding or at the time of court trial. Judicial Confessions are very relevant and are considered as one the most important type of confession as they are directly recorded by the court. Section 164 of CrPC empowers a magistrate to record a confession in his presence and such confession will hold enough evidentiary value that the confessor can be held guilty.

Rajasthan High Court has also held that the confession of an accused must be free, voluntary, and genuine that nothing is left with the prosecution to prove any fact then only the person can be convicted based on confession.

The Law of Evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision. The trier of fact is a judge in bench trials, or the jury in any cases involving a jury.[1] The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation. The rules vary depending upon whether the venue is a criminal court, civil court, or family court, and they vary by jurisdiction.

  1. [1972] A.C. 378, [1971] UKPC 23, [1971] 3 All ER 801, (1972) 56 Cr App R 18, [1971] 3 WLR 930
  2. (1999) 9 SCC 507
  3. 2002 INDLAW MP 79
  4. 1993 Cr LJ 1635 SC
  5. AIR 1992 SC 214
  6. AIR 1966 SC 1322
  7. AIR 1937 Sind 293
  8. AIR 1971 Mad 194
  9. AIR 1953 Bhopal 1
  10. AIR, 1996 SC11
  11. AIR 1999 SC 2640 or 1999 5 SCC 253
  12. (2012) 9 SCC 257
Written By: Tanya Khan

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