1st Lecture Evidence

Introduction to the Indian Evidence Act, 1872 Click to edit Master subtitle style By Rajan Raj Advocate Jharkhand High Court

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What is Evidence?  Evidence is anything which tends to persuade

an inquirer of the existence or non-existence of some fact or situation he is inquiring about.

The inquirer may disbelieve the evidence or

prefer other contrary evidence which he finds more persuasive. Thus, evidence need not in fact persuade the inquirer, it is enough that it tends to persuade him.

Evidence

may offer an answer which is rejected or one which, although accepted, is wrong; but if logically it offers an answer or an 3/29/12

What is law of evidence? We all act on evidence in making various

decisions in our day-to-day life. There are no rules imposed on us from outside telling us what evidence we can act on in ordering our private life where we can be as capricious or illogical as we wish.

However, in course of settling a dispute, a

court has to decide on questions of fact by following a body of rules. These rules stipulate as to what ‘judicial’ evidence is acceptable to determine such questions of fact. These rules make up the law of evidence.

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The Indian Evidence Act, 1872

The Indian Evidence Act is a consolidation of

the English law of evidence by Sir James Fitzjames Stephen in the form of express propositions arranged in their natural order, with some modifications rendered necessary by the peculiar circumstances of India.

In case of gaps or ambiguities in the Indian

Evidence Act, contemporaneous decisions can serve as external interpretation.

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English aids of

Applicability of Indian Evidence Act

The Indian Evidence Act applies to judicial

proceedings in or before any court.

s. 4(m), CrPC defines judicial proceedings as

“any proceeding in the course of which evidence is or may be legally taken on oath.” An enquiry is judicial if the object is to determine a jural relationship between persons on the basis of evidence recorded in course of such enquiry. 

Thus, judicial proceedings have to be distinguished from administrative/quasi3/29/12

What is a fact? “Fact” means and includesa) Any thing ,state of things, or relation of

things, capable of being perceived by the senses (physical fact)

b) Any mental condition of which any person is

conscious (psychological fact)

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What is a fact in issue? A fact in issue is one which is directly in

contention between the parties, i.e. one which the plaintiff (or prosecutor) must establish to win his case, or which the defendant must establish to succeed in some defense which is open to him.

A fact in issue is determined by

(a)substantive law : Thus, in an action in tort, it is the law of tort which prescribes the elements of tort which the plaintiff must prove if he is to win. 3/29/12

What is relevant fact? Relevance is the relationship between one

fact and another wherein, according to the rules of logic and common experience, the existence of one renders probable the existence or non-existence of the other.

A fact which is not actually in issue but is in

this relationship with a fact in issue is a relevant fact.

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What is proof? Proof is the establishment of the existence or

non-existence of some fact to the satisfaction of the tribunal charged with the duty of trying fact. (Proved..Disproved….Not proved)

The commonest means of proof is evidence,

although there are others namely admissions, judicial notice and presumptions.

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What is admissible fact? A fact is admissible if the law allows it to be

proved by evidence. It is only allowed to be proved if it is either in issue or has some degree of relevance to the facts in issue.

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Relevance vis-à-vis admissibility

Relevance is not a legal concept being rather

one of logic and common sense whereas admissibility is a legal concept.

Relevance finds its way in law by virtue of the

reason that inadmissible.

all

irrelevant

facts

are

Though all admissible facts are relevant but

all relevant fact are not admissible as there are many rules excluding evidence of relevant facts on some ground or other.

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Evidence in legal sense. Evidence in a legal context, is used in at least

two senses :-

a) Evidence is the means of proof, how things

are proved i.e. by testimony of witnesses, oral or written, but it may also take a form of production of things, including documents (real evidence); b) The term evidence is also applied to facts

which are allowed to be proved (i.e. are admissible) because relevant. Thus, a fact is said to be “evidence” of a second fact if the 3/29/12

Direct evidence vis-à-vis circumstantial evidence Direct

evidence consists either of the testimony of a witness who perceived the fact to be proved or the production of a document or thing which constitutes the fact to be proved.

 Circumstantial evidence of a fact to be

proved is the testimony of a witness who perceived, not the fact to be proved, but another fact from which the existence or nonexistence of the fact can be deduced, or the production of a document or thing from which 3/29/12 the fact to be proved can be deduced.

Original evidence vis-àvis hearsay evidence

Original evidence is the evidence of a witness

who deposes to facts of his own knowledge.

 If his information is derived from other

persons and he himself has no personal knowledge of the facts to which he deposes then his evidence is said to be hearsay. The general rule is that hearsay evidence is

not admissible. The person who saw or heard or otherwise perceived the fact must be produced and not someone to whom he gave or wrote an account of what happened. 3/29/12

The Best Evidence Rule Inferior Evidence is that which suggests that

better evidence might be available, e.g. a copy of a document which suggests that somewhere the original exists.

The so-called best evidence rule precludes

the production of inferior evidence if the best could be produced. The rule today largely applies to documentary

evidence precluding secondary evidence when primary evidence could be produced. (See ss. 64 and 65, Indian Evidence Act). 3/29/12

Admissibility vis-à-vis Weight of Evidence

Admissibility refers to whether a piece of

evidence is permitted to be given.

Weight refers to the evidence’s cogency, i.e.

the degree of persuasiveness it exhibits (its proximity to the fact in issue). The credibility of evidence refers to the

question whether it is worthy of belief, e.g. if it comes from a trustworthy source. Thus, credibility has to be distinguished from weight of evidence. 3/29/12