Professional Documents
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Law-of-Evidence Project
Law-of-Evidence Project
OF FACTS
AND
EVIDENCE
LAW OF EVIDENCE
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TABLE OF CONTENTS
ACKNOWLEDGEMENT....................................................................................2
INTRODUCTION................................................................................................3
Relevancy of Facts...........................................................................................6
Admissibility of Fact....................................................................................... 6
ADMISSIBILITY OF EVIDENCE..................................................................... 9
CONCLUSION.................................................................................................. 14
BIBLIOGRAPHY.............................................................................................. 15
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ACKNOWLEDGEMENT
In preparation of my assignment, I had to take the help and guidance of some respected
persons, who deserve my deepest gratitude. As the completion of this assignment gave me
much pleasure, I would like to show my gratitude to Mr. Gaurav Gupta, for giving me
guidelines for assignment throughout numerous consultations. I would also like to expand my
gratitude to all those who have directly and indirectly guided me in writing this assignment.
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OVERVIEW
The law in most of the democratic countries is based on the principle, “Innocent until proven
guilty”. It is the duty of the prosecution to prove beyond any reasonable doubt that the
accused has committed the offence. Circumstantial evidence, even though it is allowed in
certain cases, it is not enough to prove a case beyond any reasonable doubt. The prosecution
has to rely on the material evidence to get a conviction. The material evidence must also be a
one which is legally obtained to be considered as an admissible evidence. Section 101 to 166
of the Indian Evidence Act,1872 explains about the production of evidence and the burden of
proof. It applies to material Documentary and evidence and also witnesses. There are some
evidences which are inadmissible such as the hearsay evidence except in few circumstances.
It is the duty of both the parties to provide the best evidence possible to win the case.
Evidences obtained through improper means are inadmissible and has hindered many
criminal investigations throughout the years. Thus, it is important to know the Collection and
The Court is under the bounden duty and obligation to deal with the evidence as it is. No
Admissibility means that only the facts which are relevant are admissible in the court of Law.
Section 136 of the Indian Evidence Act,1872 explains which all evidence are admissible.
“When either party proposes to give evidence of any fact, the Judge may ask the party
proposing to give the evidence in what manner the alleged fact, if proved, would be relevant;
and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant,
and not otherwise. If the fact proposed to be proved is one of which evidence is admissible
only upon proof of some other fact, such last- mentioned fact must be proved before evidence
1 Dhanpal v. State by Public Prosecutor, Madras, 2009 CrLJ 4647 (4650) : (2009) 10 SCC 401
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is given of the fact first- mentioned, unless the party undertakes to give proof of such fact, and
the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon
another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of
the first fact to be given before the second fact is proved, or require evidence to be given of the
second fact before evidence is given of the first fact.” The above section states that the it is the
discretion of the Judge to decide whether an evidence is admissible or not. The presiding officer
may ask the party to clarify how the particular fact or evidence is relevant under the provisions
Section 6 to 55 of the Indian Evidence Act, 1872. if he is not convinced of its relevance. So,
technically the question of relevance comes first and then the question of admissibility. The
presiding officer has the full power in deciding whether an evidence is admissible or not in a
particular case. So, with this power comes ultimate responsibility to the Judge to make sure that
every relevant evidence which is obtained legally is made admissible, so that the parties can
obtain justice without undue advantages to one side.The main aim of the study is to analyse
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the trial of ordeal would be alien to the present methods followed today. 2 Nothing which is
not relevant may be adduced as evidence as per the law Evidence helps in establishing guilt
or innocence of a person(Ho). The evidence law has evolved recently, and even scientific
evidences are being made admissible in courts The challenges faced by evidence law are
timeless. No matter what the evidence is, the common method of discovering the truth plays
The Indian Evidence Act is unique. It has not been amended for a long time. India follows the
Due Process Model, which is contrary to the crime control model where the police and other
authorities play an active role in solving the crimes. 4 In the Due Process, the burden of proof lies
on the parties to prove their case. Thus, having a guideline for admissibility of evidence is
important. The Act not only lays down procedure for admissibility of evidence but also explains
which evidence is relevant and which is not. The discretion of the Judge is very high in the due
process model. Some set of guidelines for relevancy and admissibility are put in place to make
sure that the Judge does not use his power arbitrarily since corruption has taken a new shape all
over the world. The two important terms in the Indian Evidence Act are admissibility and
relevancy. The word admissibility is not defined but relevancy is defined in the Act. relevancy is
based on the section 5 and section 7 of the Indian Evidence Act. No matter what the evidence
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system is, the common method of discovering the truth plays an important role in
modernisation of evidence.5
RELEVANCY OF FACTS
Fact has been explained in section 3 of the Indian Evidence Act. fact means a thing that exists.
In the Evidence Act, it is not restricted to the tangible nature, even the feelings, state of
mind and personal preferences come under the broad term fact. Section 5 to 55 deal with the
relevancy of fact. The main question arises as to which fact is legally relevant and also logical
in nature. A logically relevant fact may not necessarily be legally relevant in court. All facts
that are to be produced in court must be logically relevant as well as legally admissible. In State
of UP v. Raj Narain6 where it was shown that not all relevant facts are admissible. In Ram
Bihari Yadav v. State of Bihar7 , the difference between relevancy and admissibility is
explained. Section 6 of the India. Evidence Act is very important as it explains about the facts
ADMISSIBILITY OF FACT:
The admissibility of facts helps in deciding whether a particular piece of evidence will help in
concluding a case. The admissibility of evidence is a question of Law and it is decided by the
Judge as per section 136 of the evidence act. Admissibility is based on Law and not Logic.
Facts which may have no logical relevance may sometimes be admissible in courts. After an
evidence has been declared logically relevant and legally admissible, how it was obtained
becomes irrelevant. In situations where it is practically impossible to differentiate between an
admissible evidence and non admissible one, If the admissible and non admissible evidence
5 Recent trends in evidence law in China and the new evidence.....Retrieved May 31,
2018, from https://ieeexplore.ieee.org/document/8158126/
6 AIR 1975 SC 865
7 AIR 1998 SC 1850
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are given together to the point they cannot be segregated, then the whole evidence becomes
inadmissible. The rules for admissibility of evidence is same for both Civil and Criminal trials. 8
Strictly speaking, ‘Relevancy’ and ‘Admissibility’ are not the same thing. In general, relevancy is
determined by logic and human experience. Generally speaking, facts which directly tend to prove or
disprove a fact in issue are relevant and also within certain limits, other facts closely connected with the
fact in issue which indirectly or inferentially tend to prove or disprove any fact in issue. The limits are
described in s. 6 and the sections that follow. Originally, Stephen, when comparing scientific and judicial
enquiries explained the four methods of induction employed by J S Mill and adopted the theory of
causation as a test of relevancy. His view was that reasoning from cause to effect or from effect to cause is
the basis of the nature of relevancy in judicial enquiries. This view was afterwards modified and in his
‘Digest’ Art. 1, ‘relevant’ is defined thus: "Any two facts to which it is applied are so related to each other
that, according to the common course of events, one, either taken by itself or in conjunction with other
facts, proves or renders probable the past, present, or future existence, or non-existence of the other". By
this definition, ‘relevant’ has been meant to be that which is logically probative.
Admissibility of facts is no doubt mainly determined by their logical relevancy to the matters in issue, or
that relation between the two which renders the latter probable from the existence or the non-existence of
the former. But everything that is logically probative is not legally admissible in evidence. Admissibility is
founded on law and not on logic. Admissibility presupposes relevancy. Thus many facts having no logical
bearing on the issue are admissible, eg, the proof of some preliminary facts which are necessary for the
admissibility of other evidence are also admissible. The admissibility of these facts is mainly based on
rules of law. For instance, the admissibility of all circumstances showing that a confession is voluntary, or
facts and incidents showing whether they are a part of the res gestae. On the other hand, facts which are
logically probative, i.e., relevant, may not be admissible as being too remotely
8 Facts, Evidence and Legal Proof - Scholarly Commons - Case.....Retrieved May 31,
2018, from http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?
article=3731&context=caselrev
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connected. Thus, the moral disposition of a person may be of much value in determining the probability of
his doing or not doing a particular act; but, it is generally excluded on account of its tendency to create
considerable prejudice against the accused. In proving a case of theft, other instances of theft by the
accused may be logically relevant and in some cases of high probative value, but they are not admissible on
the ground of policy and fairness, since they would raise a number of collateral issues and create prejudice
and surprise with the result that the main fact in issue would be lost sight of. Other logically relevant facts
are excluded by positive rules of law, eg, the rule in s. 126 prohibiting the disclosure of communication
made to legal adviser in confidence or, the rule in s. 122 forbidding disclosure of communications between
husbands and wives during marriage, or the rules in s s. 123 and 124 forbidding disclosure of affairs of
logically probative or not. For all practical purposes ‘relevant’ means what is legally admissible in
evidence. Evidence which is legally admissible should be received by the court, unless there is any legal
reason for its rejection. Again, if the evidence is admissible on one ground, it will not be
rejected because on some other ground it would be inadmissible. 9 According to Wigmore, the two axioms
of admissibility are: (1) None but facts having rational probative value are admissible;
(2) All facts having rational probative value are admissible unless some specific rule forbids. This
point has been thus stated by a Newzealand Court: "The starting point of every inquiry into the
admissibility of evidence must be relevancy. In assessing the relevance of contested evidence, it is first
necessary to identify the fact sought to be established. Credibility aside, that fact will be
relevant if its existence will make one of the facts in issue more likely or less likely.10
ADMISSIBILITY OF EVIDENCE
Admissibility means that only the facts which are relevant are admissible in the court of Law.
Section 136 of the Evidence Act explains which all evidence are admissible.11
“When either party proposes to give evidence of any fact, the Judge may ask the party
proposing to give the evidence in what manner the alleged fact, if proved, would be relevant;
and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant,
and not otherwise. If the fact, which is proposed to be proved is among one of which
evidence is admissible only upon further proof of some other fact, such last- mentioned fact
must be proved before evidence is given of the fact first- mentioned, unless the party
undertakes to give proof of such fact, and the Court is satisfied with such undertaking. When
the relevancy of an alleged fact entirely depends upon another alleged fact being proved first,
the Judge may, in his discretion, either permit evidence of the first fact to be given before the
second fact is proved, or require evidence to be given of the second fact before evidence is
The above section states that the it is the discretion of the Judge to decide whether an evidence is
admissible or not. The presiding officer may ask the party to clarify how the particular fact or
evidence is relevant under the provisions Section 6 to 55 of the Indian Evidence Act, 1872. if he
is not convinced of its relevance.12 So, technically the question of relevance comes first and then
the question of admissibility. The discretion that is given to the judge can be misused and it is
important that certain guidelines are made to stop the arbitrary use of power by the judge. Only
relevant evidence is admissible in a court of law but not all relevant evidence
11 (2012, December 1). Principles of Evidence in Criminal Cases – Thomson Reuters New.....Retrieved
May 31, 2018, from https://www.thomsonreuters.co.nz/landingpages/pdfs/Chapter-Extracts-
Reviews/Extract- PrinciplesCriminal-Evidence.pdf
12 "Digging into the Foundations of Evidence Law" by David H. Kaye. Retrieved May 31,
2018, from http://repository.law.umich.edu/mlr/vol115/iss6/8/
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is(Hamer).In Ram Bihari Yadav v. State of Bihar 13, the Supreme Court observed that. The
probative value of the evidence is the weight to be given to it which has to be judged having
Section 9 of the Evidence Act, 1872, lays down some facts which can be treated as relevant.
In the case of Lakshman Das Chagan lal Bhatia v. State 14, the court laid down the following
to be “relevant facts:
Facts, which are necessary to explain or introduce a fact, which is in issue or relevant, facts
which support or rebut an inference suggested by a fact in issue or a relevant fact, Facts
which establish the identity of anything or person whose identity is relevant, Facts which fix
the time and place at which any fact in issue or relevant fact happened, Facts which show the
relation of parties by whom any fact in issue or relevant fact was transacted(Thomson).
In Bibi Khaver v. Bibi Rukha(Gurnani) 15 the court held that “in order that a collateral fact can be
admitted as relevant under this section, the prerequisites of the law are that The collateral fact
must itself be established by conclusive evidence; and It must, when established, afford a
Law: Contemporary Development).16 All facts that are considered to be evidence may not be
evidence in the eyes of law. The burden of proof is on the opposition to disprove the evidence
provided by the other party as inadmissible. However, the burden of proof may be reversed for
some reasons (Kaplow).17 The discretion is solely in the hands of the judge to
13 Supra note 7.
14 AIR 1968 Bom 400, (1967) 69 BOMLR 808, 1968 CriLJ 1584
15 [1904] 6 AIR 983 (BLR)
16 (2016, April 23). Evidence Law: Contemporary Development - Galgotias University. Retrieved
May 31, 2018, from http://law.galgotiasuniversity.edu.in/pdf/hyperlink.pdf
17 (2011, November 4). Burden of Proof by Louis Kaplow :: SSRN. Retrieved May
31, 2018, from https://www.yalelawjournal.org/article/burden-of-proof
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decide whether a evidence is admissible or not. Improper admission of evidence is not a ground
for retrial and also a decision cannot merely be reversed on the grounds of improper evidence.
The power vested on a judge by section 136 is vast and It must be handled properly. Thus, it is
important that certain guidelines are given for a presiding officer to decide whether an evidence
is admissible or not(Swift). Increasing the discretion of the trial judge to accept or throw
evidence
may result in harm.18 The Judges, like all other Human beings are fallible and discretionary
powers should not be given to them to decide whether an evidence is admissible or not. Ted
Bundy, one of the most notorious killers of our time managed to do more crimes and evaded the
eyes of law as he was let out on inadmissible evidence(Rule). The Law or the Judge, both should
not be given the power to decide whether an evidence is admissible or inadmissible. Every piece
of Evidence which concerns the case must be mad admissible whether it is found through illegal
search or any other means. There are many people among us who evade the eyes of Law forever
because of inadmissible evidences. Thus, a new mechanism must be developed to admit or not
Criminal cases cannot be put in a straight jacket. Decided cases can be of help if there is a
question of law like the admissibility of evidence or about the applicability of some general
rule of evidence. This apart, reference to decided cases is hardly apposite when the question
18 "One Hundred Years of Evidence Law Reform: Thayer's Triumph" by....Retrieved May 31, 2018,
from https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1481&context=californialawreview /
19 Charan Singh v. S, A 1975 SC 246
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Admissibility of scientific evidence has attracted a serious debate in India especially post
Selvi v. State of Karnataka20 case wherein hon’ble Supreme Court has held that Narco-
analysis, Brain-mapping and polygraph tests cannot be conducted without the consent of
relating to basic rights that are available to accused under various provisions of law in India.
Major problem in India is that we always look at a provisions of law through the view-point
of accused and we totally forget the pain, misery and trauma of a victim and victim’s family.
There are various provisions if given interpretation keeping in mind at changed scenario
would make scientific evidence admissible in court of law without any amendment.
Also, the first principle interpretation is that the words of an enactment should be given their
ordinary and natural meaning because whatever was the intention of legislature, has been
expressed by it through words. If the language of a statute is plain, the only duty of court is to
given effect of to it.21 In this regard legal maxim, ut res magis valeat quam pereat, is also
worth mentioning. According to this maxim where alternate constructions are possible the
court must give effect to that interpretation which will help in smooth working of the system
rather than that construction which will be responsible for putting unnecessary hindrances in
the way of statute for which it has been exacted. As for as possible all the words used in the
statute must be given meaning as legislature is not expected to use unnecessary words.
It has been specifically held by the Supreme Court in Shreenath v. Rajesh,23 that where two
views are possible, especially while interpreting a procedural law, the one which curtails the
procedure without eluding justice should be adopted because procedural law is always
subservient to and is in aid to justice. Noscitur a sociis, also provide similar provision. When
two or more words are put together, they are to be understood in their cognate sense.
Associated words explain and limit each other. 24 As in Alamgir v. State of Bihar,25 where
section 498 of the Indian Penal Code, 1860 was involved specifically words “conceal or
detains” were in question Supreme Court resolved controversy by saying that word ‘detains’
is to be interpreted with reference to the words takes, entices and conceals, therefore, here
word detain means without the consent of husband and not its ordinary meaning which means
Therefore, various provisions of Indian statutes should be interpreted keeping mind the
technology etc. Accused persons should not get benefit for the simple reason that Indian laws
are centuries old and latest crimes have not been specifically mentioned therein. No doubt,
statutory laws have been amended ‘n’ number of times but researcher humbly submits that
despite the amendments, courts give decision based on benefit of doubt in favour of accused.
This practice of courts is creating dissatisfaction among masses and is emboldening the
criminals. In view of researcher courts should permit use of latest technology by concerned
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CONCLUSION
The Law relating to evidence has evolved over the years as one of the most important in deciding
cases. The power vested on the presiding officer in deciding whether an evidence is admissible or
not is huge and must be restricted through guidelines. The law relating to evidence is not suitable
for the present age and it must be amended for the better functioning of the legal system. A clear
line must be drawn between the power of the judge and the power of the judge as such a huge
power vested on a human being would only result in corruption of power. The law is supreme
and no man should be given the discretionary power to bend it to his wish. Thus, a clear
distinction must be drawn between the law and discretionary power of the judge. Thus, the law is
in dire need of an amendment. The Judges, like all other Human beings are fallible and
discretionary powers should not be given to them to decide whether an evidence is admissible or
not. Ted Bundy, one of the most notorious killers of our time managed to do more crimes and
evaded the eyes of law as he was let out on inadmissible evidence. The Law or the Judge, both
should not be given the power to decide whether an evidence is admissible or inadmissible. Every
piece of Evidence which concerns the case must be mad admissible whether it is found through
illegal search or any other means. There are many people among us who evade the eyes of Law
forever because of inadmissible evidences. Thus, a new mechanism must be developed to admit
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BIBLIOGRAPHY
1. Statutes Referred
The Indian Evidence Act, 1872
2. Books Referred
Batuk Lal, The Law of Evidence
3. Websites Referred
Manupatra.com
Jstor.com
Lexisadvance.com
Scconline.com
Aironline.com
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