First Edition 2012 Reprint 2013 Reprint 2014 Second Edition : 2016 Reprint 2017 Reprint 22018 ‘Third Edition —: 2019 (Fully Revised and Updated) Reprint +2020 © All rights reserved T 330. Published by ‘Singhal Law Publications Law Book Sellers & Publishers A-2/157, Bhagat Colony, Sant Nagar, Dethi-110 084 Mobile : 9810486750, 9910188323 Sole Distributors : Mis Universal Book Traders 80, Gokhale Market, Opp. Tis Hazari Court, Delhi-110054 Ph, 011-23911966, 23961288, 23991487 [No part of this publication can be reproduced or transmitted in any form or By any means, ‘without prior permission ofthe publishers Disclaimer: This boot is being sold onthe condition that the information contained herein ‘s merely for guidance and reference and not be taken as an authority or being binding in ‘any way on the author editors), publishers and sellers, who do not we any responsibilty oF liability whatsoever for any ots, damage or distress caused to any person for taking or ‘not king at ction onthe basis of information contained in the book. Readers are advised to verify the correctness of answers oF information fram the relevant books on the subject. Despite reasonable care being taken, evtors or omissions may have inadvertently crept in the book. The publishers shall be obliged if they are brought to their notice for corrections in {Future editions. The publisher's lability is limited 10 replacement ofthe book incase of binding defects. misprint or missing pages, et. within a month of the purchase of the book. Any slspute shall be subject to the friedietion of competent courts in Dell Primed at : Sharma Printer, Delhi- 110 032 CONTENTS eee IA. An Introduction to the Law of Evidence 1B. Interpretation Clause (Sections 3 and 4) 2A, Relevancy of Facts — 1 Sections 5, 6, 7, 8, and 9) 2B. Relevancy of Facts — 1 (Conspiracy ; Alibi ; Damages ; Right / Custom ; Psychological Facts ; Similar Occurrences ; Course of Business) ~ (Sections 10, 11, 12, 13, 14, 15 and 16) 3A, Admissions (Sections 17 t9 23 and 31) 3B. Confession (Sections 24 to 30) (Stated Type Relevant Facts) 4. Dying Declarations (DD) [Section 32(1)] 5A. Expert Evidence (Opinion of Experts) (Relevancy of opinion of third persons) (Sections 45, 454, 46, 47, 47A, 48, 49, 50, 51) SB. Relevancy of Character (Sections 52, 53, 53A, 54 &°55) 6. Facts which need not be Proved (Sections 56, 57 & 58) (Pacts of which evidence need not be given) 7A. Means / Modes of Proof : Oral Evidence (Sections 59 and 60) 7B. Means / Modes uf Proof : Documentary Evidence (Sections 61 t0 78) (iit)9a. 5B. 10. u. 2. 13, 4, @) Exclusion of Oral Evidence by Documentary (The Best Evidence Rule) «Sections 91 10 100) Burden of Proof (Who has the burden of bringing / adducing facts (evidence) before the Court] (Sections 3, 101 to 111) Presumptions (Rules limiting judicial freedom of drawing inference) [Sections 4, 41, 79-904, 111A to 114) Doctrine of Estoppel (Seotions 115, 116 and 117) (Facts which the Parties are Prohibited from Proving) (Roles Limiting Judicial Freedom of Drawing Inference) Privileged Communications (Sections 121 to 132) Accomplice / Approver Evidence {Sections 133 and 114(b)] Competency and Sufficiency (Number) of Witnesses (Seotions 118, 119, 120 & 134) Examination of Witnesses (Sections 135-136, 137-138, 139-140, 154, 155) DETAILED CONTENTS —— ee Chapters Page No, 1A. AN INTRODUCTION TO THE LAW OF EVIDENCE Law and Legal System svrene a we TAL Law of evidence : A piece of adjective / procedural law 1A2 Law of evidence is the 16% fOr sem ~1A2 Nature of the Law of Evidence... seve LAB Province of the Law of Evidence. 1A3 Necessity of Law of Evidence smemmuesnn 1A ‘Systems of Trial / Justice and Law of Evidence IAS (Inquisitorial Process v. Adversarial Process) Scheme of the Evidence Act wm on IAB. Part L: Relevancy of Facis: Sections | to 5$ wn AB Part It: Proof : Sections $6 to 100... sane AD Part Ill : Production and Effect of Evidence : Sections 101 to 167... 1.9 ‘Tabular Scheme of the Act. smenmnnnne TAGEL Value of Codification of the Law of Evidence... TALL Consolidating Act i seven VAI2, Not Exhaustive of the rules of Bvidene sorenonnnnieie PAZ Principles / Postulates of Law of Evidence .. 1A.13 Evidence must be confined to the matters in issue 1A13 In all cases the best evidence must be given. oe 1013 Hearsay evidence is not 10 be admitted onsennnnnn 1A Application of the Evidence Act (Section 1) me WAAS Judicial Proceedings 1Als Non-judicial Proceedings tals Domestic Tribunals eet TAs Disciplinary Proceedings oem 7 IAs Proceedings before an arbitrator ecu. : 1816 Affidavits i a 1A6 ‘Scanner (Previous Years’ Questions) se 1A.16 ©wi) Chapters AB, INTERPRETATION CLAUSE (Sections 3 and 4) “Fact” 2a. External / Physical Fact Internal / Mental / Psychological facts Postive / Affirmative and Negative £218. vent and states of things. ‘Marie of fact and ratte 1aW “Fact in Issue”. Meaning Determination Fact in issue and Issue of fact “Relevant Facts” List of Relevant Facts. 7 Relevancy implies relationship... . Difference between “facts in issue’ and relevant facts Collateral facts “Evidence” (Section 3). Evidence is the means of proof. Meaning of evidence. Evidence in the generic sense [Appreciation of evidence (Separating the grain from chaff) “Batsus uno, Falsus in omnibus” Classification of Evidence ral, Documentary and Real Evidence Primary (Onginal) and Secondary (Unoriginal) Evidence Direct and Indirect Evidence Hearsay evidence Cireumstantial evidence “proved”, “Disprovea", “Not Proved” (Section 3). Presumptions (Section 4). Scanner (Previous Years’ Questions) RELEVANCY OF FACTS -1 Gections 5, 6, 7, 8 and 9) ‘Section 5: Facts of which evidence cam be given ~ Principle Scope Page No. 1B2 12 12 182 1B3 (viiy Chapters such other facts as are hereinafter declared tobe relevant ‘And of no others” Logical relevancy and Legal relevancy Relevancy and Admissibitity z Section 6 : Facts forming part of same transaction Principle (Doctrine of Res gestae) Uulty ofthe Doctrine of res gestae ‘AS to form part of the same transaction” Criticism of doctrine of tes gestze ‘Actslomission as tes gesta, (Physical acts forming part of the same transaction) Statements as ros gestae (Psychological acts forming part of the same transaction) Res gestae: an exception to hearsay FIR when res gesize Statement by Bystanders ‘Section 7 : Occasion, Cause or Fffect Principle Scope/Application, Occasion Cause Elect Opportunity State of things Section 8: Motive, Preparation and Conduct Principle and Scope Motive: First Principal Fact Preparation: Second Principal Pact Conduct : Third Principal Pact ‘Tape Recorded Conversation. (Case: 1985: SC: Ram Singh v. Col. Ramm Singh Case: 1973: SC: RM, Malkani v, State of Mabarashira Evidence recorded by video-conferencing. (Case: 2000: SC: Basuvaraj Patil v. State of Karnataka ‘Case: 2003: SC: State of Maharashtra v, Praful B. Desai Section 9 : Introductory and Explanatory Facts Principle/Rationale Page No. 24 2a5 2a 2A6 save BAT DAS 28 249 269 2a 2A 2a3 2A13 2A13 PALS DAIS Daas 2A.16 2016 2A.16 2A6 2Ai7 28.7 2AIs 2ALe 2A10 a2 TA 2A PAIS sm DADA 28.00 2A28 24.32 2A33(itd) @ Chaprers Page No. Chapters eae inoductory facts : senna 2A33 3A. ADMISSIONS (Sections 17 to 23 and 31) Explanatory Facts : : oe 2A34 ‘Admission and burden/waiver of prO00f encom PEE eeea a acts which support or rebut nferenes : nn BA 34 Imonasce/ Value of admission i oa Fac which ix ime or place of happening 2038 Reasons for receiving admission in evideace ene 3A3 Fics sowing relation of panies ooo 2a3s Seaiory scheme regarding admiston al Facts establishing the identity of eating o eon 2A38 Meaning / Definition of Admission (Section 17) venom 3A.4 ‘Test Identification Parade (TIP) sinner 2A37 Meaning ne Scanner (Previous Years’ Questions) 2040 Staiutry Definition (Section 17) gaa 28, RELEVANCY OF FACTS - Pinay ae Was Nope Soar eas (Conspiracy; Alibi; Damages; Right / Custom; Psychological Adie tuavaay eH : ae Facts; Similar Occurrences; Course of Business) Forms / modes of admission 3A6 (Sections 10, 11, 12, 13, 14, 15 and’ 16) Admissions in pleadings in earlier proceedings. BAT Section 10: Relevant facts to prove conspiracy 28.2 Prerequisites!Conditions for the admissibility of admission... 3A7 Principles Rationle 22 Admission by conduet BOE MORES Meaning of Conspiracy... 2B.2 ‘Admission by silence: BAS Conditions of Relevancy. = 2B3 Persons whose statements are ‘admissions Reasonable ground to believe, " 2B (Sections 18, 19, 20) ....s..escsssssserseseren 3A Limitation regarding content Z 2BA Relevancy / Proof of Admission (Section 21) seveersmonse SAL Litton regarding me 24 First part of Section 21: General Rule: Main Principle =. 3A Difference between English Law and Indian Law ~2BS (Who can prove the admission and against whom it may be proved) { Case: 1940: PC: Mirea Akbar v. King Emperor. : 28 Second part of Section 21: Exceptions othe general rule 3a ‘Case: 1988; $C: Bari Rav. Stato of Bikor 239 (hen can admissions be proved in favour of a person?) Case: 2002: SCs Mohd. Khali. Ste of WB on 28.10 Firat Exception : Statements relevant under Sec08 32 AN. venkateshv. State of Karstaka ‘Table of Cases —_—_ 2A22 Abdul Rach v, State of Bikar 38.17 Asal Saar v. Sate of Mysore 49 Abul v. Avesta 93.22 ‘Afb Alun v. State of Utarachal ie Aghnoo Nagesiav. State of Bhar 38.6, 38.19, 38.25, ‘Alay Kumar Parmar v, State of Rajasthan ran Alamgir. State of Assam 9p.35 Alauddin. Shishir Kumar Data vn S20 ‘Amar Nath v. Kevla Devi 1022 ‘ail Rishi v. Gurbaksh Singh 9am Ashaba , State of Makarasra 416 AShok Ke. Maheshwari Sate of UP wos Atbirv. Govt (NCT of Delhi), ais 2B. Jaylakshiv. University of Vijayawada 1027 BLL Sreedhar. KM. Muindreddy 104 Babu Khan v, Sate of Rajasthan. ‘SAAS Bad Rav. Stat of Bar. 22.285, 289 Badrudin v. Stat of Mahusasra 2A12 Bal Kishan v. State of Maharashtra 3B.17 sant Singh v, Janaki Singh, aaa 3A7, Basanta Kumar Mohanty v. Uikal Univesity oor Basan v. State of HP 7 cn aA Bessel. Stem sven a : 3A9 Bhabani Prasad. Orissa State Commission fr Woman isan oo omas Bhagwan Pail v. Sate of Maharashrs : tB0 Bharati v. State of UP 7 se 25 Bhuboo! Sabu v. Th King. 127.1210, 1213, 124 1216 Bilas Kunwar v, Desryj at 1031 Binay Kumar v, State of Bihar 1428 Bishi v. State oF WB woos 2a Bishwanath Prasad Singh v. Rajendra Praca 3A.16, 817 Boda v. State of 2K : i 1B.13, 38.30, 38.32 Brij Lal Prasad Sinhav. Sate of Bihar = 2B. ‘inj Mohan v. Amar Nath 3A9 Brjpalv. State SAS CR. Mehia. State of Maharasha 2423 CBlv.V.C. Shukla 34.13, 34,7 Century Mite. Co. Municipal Counc Century Mfg Co. v.Ulhasaagar Manicipaity Chander Kala , Ram Kishan CChilukur Venkateshwarluv. Venkatanaryana Chinnaswaai Stat of AP Cyril Waugh v. King, Gav) | | | | | | | | | |BY THE SAME AUTHOR D:(Dinkar/Ey-2018/EV-ChiA.pm CHAPTER 1A (ist Semester) AN INTRODUCTION TO THE 1. Jurisprudence-t LAW OF EVIDENCE (Legal Method, Indian Legal System and Basic Theory of Law) SYNOPSIS 2. Criminal Law-I (Emportaut Points / Issues & Case Laws) (Law of Crimes) (1) Law and Legal System, (2) Law of Evidence : A piece of adjective / procedural law. ic is lex fori. 3. Law of Torts (8) Law of Evidence is the Genere ‘ples ani Torts) (4) Nature of the Law of Evidence. (General Fonc it Specific Torts) (5) Province of the Law of. ‘Evidence. (6) Necessity of the Law of Evidence, 4. Family Law @% ar ial (soe and Law of bear w of Marriage, Divorce and Maintenance) inquisitorial process v. ersarial process) CUR ltseceeetiaatoh (8) Scheme of the Evidence Act. (a) Part: Ralvancy of Facts» Secon 1 t 55: () Patt: ProtSactors $6 100; (2nd Semester) (6) Patt: Producten of erterce: Secon 1011 167 1. Criminal Law-T (8) Value of Cositication of the law of evidence: }. Criminal it, (@) Consolidating Act; (Criminal Procedure) (1) Not exhaustive of the rules of evidence, ase: 1961: $C: State of Punjab. sa (9) Principles / Postulates of Law of Evidence. 2. Family Law-Il i 7 (*) Cran ae fined to the rate Inissue; ition, Inheritance, n, Wills, Gifts ete inal cass th best evdonce must be ven (Law of Partition, Inheritc Succession ifts (ch Heateay evionoe le sate beanie (10) Section 1: Application of the Evidence Act. 3. Property Law (0) ss scars (The Transfer of Property Act, 1882) (6) _Procaadings befare an Araitvator Law and Legal System 4, Public International Law (Human Righis) (Law of Peace) Every legal system connotes a systematic activity involving diverse institutions and varied stakeholders. Essentially it compris. Components like legislations, laws, courts, law-enforcement, legal officers and legal practitioners. The underlying objective of a legal system is to ensure and promote protection of private as well as public interests. Legal system Performs this tasks through law and legal institutions. Law in every leval Aa es of different Law of Evidence (The Indian Evidence Act, 1872) exif)1A2 Law of Evidence ety plays a very significant role in the maintenance of order, peace and justice, Since law and its concomitant effects influence every ‘walks of life, it has of late acquired a domineering and universal role. Law of evidence: A piece of adjective / procedural law Law, depending upon the nature and purpose it serves, has been categorized into substantive law and proceduraV/adjective law. The substantive law defines the rights, privileges, duties, immunities and liabilities, the ascertainment of ‘which isthe purpose of every judicial proceeding. Substantive law is concerned with the ends which the administration of justice seeks. The Indian Constitution, Indian Penal Code (IPC), Indian Contract Act, Personal laws are ‘examples of substantive laws. The adjective'procedural law defines the pleading, procedure and proof iy which the substantive law is applied in practice. Tt is the machinery by which the law is set and kept in motion, Procedural law deals with the means and instruments by which the ultimate ends are to be attained, The adjective law includesalt the laws which provide for functioning of the judicial system whether they have had their origin under the Constitution, legislation or Court decisions. The adjective law embraces the rules of procedure i.e. the laws which have fixed the practice in the courts of methods of carrying on the work by the judge: the rules of pleadings ie. the laws prescribing the manner in which litigants might seek. relief and carry on their cases; the rules of evidence ie. rules which relate to sorting out and selecting the materials which are applied 0 it. The last mentioned rules make up the law of evidence. ‘The rules relating to procedure and pleading are contained in the Civil Procedure Code (CPC) and Criminal Procedure Code (CrPC). The mules of procedure regulate the general conduct of litigation; the object of pleading is to ascertain for the guidance of the parties and the court the material facts in issue in each case; the rules relating to evidence/proof concerns with the establishment of facis in issue by proper legal means to the satisfaction of the court, The law of evidence (as contained in the Indian Evidence Act, 1872) determines how the parties are to convince the court of the existence of that state of facts which, according to the provisions of the substantive law, would establish the existence of the rightliability which they allege to exist. The Evidence Act provides for the methodology by which the cases, have to be conducted in the matter of production of relevant, oral, documentary and material evidence and the examination of witnesses etc. Law of evidence is applied by courts of law in the process of enquiring into the truth as to disputed questions of fact. Law of evidence is the ler fori ‘The law of evidence is lex fori i. the law of the place/country of action i.e the law of the forum of the nation. The evidence, being a procedure has (0 An Introduction to the Law of Evidence A, bbe governed by the law of the nation where the proceedings are t Evidence is one of those matters which are governed by the law of where the proceedings take place and not by the law of the cor the contract sued upon was made or any other way the cause of ‘The law of the place of action determines all question rel ot rejection of evidence. If foreigners come before an In insist upon their law of evidence being followed. Th only the Indian law of evidence and follow it. E on commission or otherwise from abros the Jaw of evidence of the count “whether a witness is competent taken pi the country wuntry where action arose, ating to the admission dian Court, they cannot fe Indian Courts know ven where evidence is taken ad, its admissibility is determined by ity where the action is being tried. Thus or not, whether a certain fact be proved by ‘writing or not, whether a certain evidence proves a certain fact or not, thet isto be ascertained by the law of country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it,” Nature of the Law of Evidence The Law of Evidence occupies the most important place in adjective law is for the courts to ascertain the existence or non-existence of certain facts ‘and to apply the substantive law to the ascertained facts und to declare the ‘rights and liabilities of parties in so far as they are affected by such facts, The means by which the courts inform themselves of the existence of these facts is temred evidence. The first and the most important step to adjudicate rightly is to ascertain the correct fects, 7 in the words of Sir Stephen : The law of Evidence is that part of the law ‘of procedure which, with u view to ascertain individual rights and liabilities in particular cases decides :(a) what facts may, and what faets may not, be proved in a given case, (b) what sort of evidence must be given of a fact which may be proved, (¢) by whom and in what manner the evidence must be produced by which any fact is to be proved, Province of the Law of Evidence Law as an instrument of regulation, outlines the framework within which it provides for the kind of evidence to be adduced before particular fora, The precise aim is to facititate the judge to form a rational conclusion as to the Existence or non-existence of the disputed facts, The law of evidence is to ‘be applied only where there is a contest as to existence or non-existence of fee ‘oF facis, The province of the law of evidence is twofold viz., 0 lay down files as to what matter is or is not admissible for the purpose of establishinyy facts in iste and ast the manne in which such mater ny Fe before the cour, ‘The law of evidence determines : (a) the relevancy of facts or what son of facts may be proved in order to establish th liability, (b) the proof of facts, i.e, what sort those facts, (c) the production of proof of: existence of the sight, duty or Of proof is to be given to establish vant facts ie., who is t0 give itIAs Law of Evidence and low itis to be given; and the effect of the improper admission or rejection of evidence, Rules governing the province of judicial evidence (Which is a species of genus ‘evidence’) may be generally divided into those relating to the quid robandum or thing to be proved and those relating to the modus probandi or mode of proving, NECESSITY OF LAW OF EVIDENCE {n every proceeding before a court, rights, duties and liabilities of parties fre involved. One party makes a claim of right and the otier denies the existence (of such rights or that he is subject to a duty. For example, a claim as to existence of eontract reflects an agreement (consideration, offer and acceptance) between ‘he partes. A person claiming something out of it has to prove the existence of 4 valid contract. Similarly a claim as to possession of expert knowledge in a given field requires objective evidence reflecting either qualification of ‘expertise, without which people or institutions cannot subscribe to that claim, Evidence is therefore necessary to facilitate objective verifiability and lay relating to evidence is applicable to all judicial proceedings. ‘The first task of a Judge being to ascertain facts, the rules by which the inguity before him is regulated should no, in theis Fundamentals diver from those by which any other seeker after truth regulates his inquiries. The Physicist who ascertains the properties of matter or the Historian who is concerned with finding what happened in the past is as much a seeker after truth as the Judge who is concerned with ascertaining whether a man has encroached on his neighbour's land or stolen another man’s watch. Again, in the ordinary affairs of life we are constantly reasoning from the known to the unknown and forming Judgment as to facts, Why then should there be a Code of Evidence for the judicial investigation of truth differing in detail or principle from the rules ‘which a scientific inquirer employs in his investigations or a man employs in the ordinary affairs of life? Why should there be any legal rules of evidence 4s distinguished from the ordinary rules of reasoning ? The question is 8 fundamental one and confronts the legislator atthe very outset of his task. The absence of what we call a “Law of Evidence” in the jadicature of all nglish-speaking countries, whether ancient or modern, is referable to this reason. What, then, is the explanation for the evolution of that elaborate and difficult doctrine which is known by the name of “Law of Evidence” and which is a peculiarity of the legal system of the English-speaking countries ‘The answer is not far to seek, It is furnished partly by the history of the judicial organization of these countries and partly by the differences that underlie judicial inquiries and scientific investigations, notwithstanding apparent resemblance between the two. ‘An Introduction to the Law of Evidence JAS Historically the Law of Evidence may be described as the child ofthe jury system, Tt was bom, and has developed, with this ancient Anglo-Saxon issttution and remains today as characteristic feature of the legal system of English-speaking countries as, until quite recently, the jury system of theit judicial organization. It is not proposed here to trace the history of the rules of ‘vidence and to show how the system of trial by jury brought these rules into being or helped to develop them. Iis sufficient to notice here that most of the {ules relating to admissibility, to presumptions, and to impeachment and fonfirmation of the credit of witnesses have been influenced in thet history 2, if not have had their origin in, the system of associating with the Judge “\velve men” in the administration of justice. The real origin of rules of lence, however, lies in the circumstances that distinguish scientific {bvestigation from judicial inquiries. “In dealing with litigation” says Professor Thayer, “Courts are not engaged in an academic exercise. With them the search for truth is not the main matter ; their dese to know this, and their ability ase it are limited by the requirements oftheir main business, nanely, that of awarding justice, ie., awarding it so far as they may under the rules of law and according to established usages and forms” ‘The process of reasoning is primarily an affair of logic, but in law, there ize various-important qualifications restraining the freedom of operation of this process, These qualifications have their origin in the circumstance that time for judicial inquiries being very much limited, some decision ‘must be arrived at within this limited time even at the risk of error. This ‘secounts for the exclusion of much data which, though perfectly relevant to the issue inthe popular sense. affords only a slender basis for inference, owing {0 the remoteness of its connection with the issue. Again, the principal instrument for the discovery of truth in a judicial inquiry being testimony, ich relevant data is excluded on the grounds of public policy, expediency 6F convenience. Thus, whereas, on the one hand, it is an error to suppose that legal reasoning, as compared with reasoning. in general, calls into play any Gifferent faculties or involves any different method or principle. it would be Wrong to say that the Judge, in ascertaining facts in a judicial inquiry, is not fetered by certain artificial rules which are not rules of pure argumentation ‘These limitations on the free process of reasoning constitute the Lav of Evidence, and if they can be reduced to certain principles, itis possible to classify and arrange them into a system. SYSTEMS OF TRIALJUSTICE AND LAW OF EVIDENCE nguisitorial Process V. Adversarial Process) ‘The ultimate aim of judicial inquiry is to arrive at the truth of contested fects. And the process of judicial inquiry followed by the adjudicators depends1A6 Law of Evidence on the legal system as judicial inquiry is an integral part ofthe legal system. Broadly speaking, there are two widely known processes of judicial inquiries, namely, adversarial / accusatorial process and inquisitorial process. Inquisitoriat process : This system/process is widely used in civil legal systems. In inquisitorial system of tril, the court is actively involved in dotermining the facts of the case. Here the contest is normally not considered, as a dispute, but as an official inquiry. The position ofthe parties is weaker in this model; they cannot timicicibunal’s field of enquiry through pleadings or by consent. The court itself will purse facts, and avail itself of any sources, including the interrogation of the parties. The increased importance of the judicial role correspondingly diminishes the power and function of the advocate Here. power to investigate offences rests primarily with the judicial police officers. They investigate and draw the documents on the basis of their investigation and thereafter submit he dossier to the concemed prosecutor. If the prosecutor finds that no case is mace out, he can close the case. If, however, he feels that further investigation is called for, he can insiruet the judicial police to undertake further investigation, The judicial police are required to gather evidence for and against the accused in a neutral and objective manner as it is their duty to assist the investigation and the prosecution in discovering truth. Exchusionary rules of evidence hardly exist. Hearsay rules are unknown in this system. If the prosecutor feels thatthe case involves serious offences or offences of complex nature or politically sensitive matters, he can move the judge of instruetions? to take over the responsibility of supervising the investigation of such cases. In respect of serious and complex offences, investigation is done under the supervision of an independent judicial officer (the judge of instructions) who for the purpose of discovering truth collects evidence for and against the accused. The accuised is presumed to be innocent and it isthe responsibility of the judge to discover the truth. Adversarial process : This system/process is widely used in Common {Law counties, In this process, the proceedings would be structured asa dispute between two sides who are considered equal before a court. The disputants are expected to adduce evidence with a view to convince the judge as to the existence or non-existence of the fact. The judge is considered to be an impartial referee between parties, whose role is to ensure that the parties abide by the rules. Parties carry on a contest with each other before the watchful eye ofthe judge, inviting him to hold in their favour, somewhat in the manner of an umpire who is appealed to for a decision, The judge is expected to intervene in case of necessity during the: proceeding. Truth is supposed to emerge from the respective versions of the facts presented by the opposing An Introduction to the Law of Evidence IA? parties before a neutral judge. In this model, the partes themselves have an interest in the initiation of the proceedings, in their subject-matter or in “he outcome. The parties are bound by fairly strict rules of formal procedure. It becomes the court's duty to decide which facts it will accept as proved according to law, In this process, rules of procedure and evidence will play a pivotal part. In this system, cases are often resolved by plew bargain end Settlement. Advantages ofthe adversarial system include the facts that it respects individual automony, it hamesses the power of self-interest on each side W0 unearth the best evidence and that truth is best discovered by powerful statements on both sides of the question, Drawbacks of the adversarial system : The adversarial system lacks ‘dynamism because it has no lofty ideal to inspire. Tt has not been entrusted with a positive duty to discover truth as in the inquisttorial system, The judges, in his anxiety to demonstrate his neutrality opts to remain passive ind truth often becomes a casualty. Failure o ascertain truth may be on acount oF ecror/omission on the part of the investigation agency, the prosecution or ihe faulty attitude of the parties, the witnesses or inadequacies in the principles laws regulating the system. There is no provision in the law which expressly imposes a duty on the court to search for the truth. The aim, ultimately, is to do justice according to law based on the evidence adduced irrespective o truth, When the investigation is perfunctory/ineffective, judges sekiors the any initiative to remedy the situation. Daring the trial, the judges do not botver if relevant evidence is not produced and plays a passive role as he has no day {o search fortrith. As the prosecution has to prove the case beyond reasonsile doubt, the system appears to be skewed in favour of the accused. Position in India :In india adversarial process is being followed in judicial inguicies. Contest, the epitome of the adversarial process, is conducted accorting tothe mules ofthe game, namely, law of evidence. The judge cannot step intothe shoes of an investigating officer, in the sense that he cannot either directo” interfere with the investigative process. Where the investigation of offences is done by the police or other investigating agencies, the investigation being free from judicial supervision or control. However, this is not to be misconstrued in such a way fo negate the statutory powers recognized by Section 311, CrPC and Section 165, TEA, respectively. Both these provisions clearly empower the tral judge to be an active participant striving for a just decisicn, In Ramchander v. State of Haryana, AIR 1981 SC 1036 Justice Chinnappa Reddy observed: Every criminal trial is a voyage of discovery jn which truth is the quest. It is the duty of a presiding judge to explore every avenue of justice. For that purpose, he is expressly invested by Section 165, TEA with the right to put questions to witnesses. Indecd, the right given to 4 judge is so wide that he may ask any question he pleases, in any form, at any’JAS Law of Evidence time, of any witness, or of the parties about any fact, relevant or irrelevant. With such wide powers, the court must actively participate inthe trial to elicit the truth and to protect the weak and the innocent. But it must not assume the role of a prosecutor in putting questions.” In State of Haryana y. Bhajan Lal, AIR 1992 SC 604, the SC observed: “Section 311 CrPC enjoins a duty con the part ofthe court to summon and examine or re-call and re-examine any such person, if his evidence appears to be essential to the just decision of the cease. But he is not authorized to interfere with the actual investigations or to rect the potice how that investigation is to be conducted.” These decisions clearly indicate that in certain respects, the Indian system of prosecution seems to be a harmonious blend of both the models. he Committee on Reforms of Criminal Justice System (Malimath Committee) in its report submitted in March, 2003 felt that fair tial and in particular fairness to the accused, are better protected in the Adversaral system but i also felt that some of the good features of inquisitorial system as prevalent in France, Germany and other Continental countries could be adopted in India, {o strengthen Adversarial System which includes the duty of the court to search for truth, to assign a particular role to the Judges to give directions to the [Investigating Officers and Prosecution agencies in the matter of investigation and leading evidence with the object of seeking the Truth and focusing on justice ‘o vietims. The Committee has made recommendations on five points in thisregard. SCHEME OF THE EVIDENCE ACT ‘This Act has three parts divided into 11 Chapters and 167 Sections. Part-t : Relevancy of Facts : Sections 1 to 85 (1) Chapter-I ; Preliminary: Sections 1 to 4 : The short ttle, extent, ‘commencement and interpretation clause giving definitions to various words. like evidence, fact, proved, ete; which are of frequent reference in the Act, are dealt in the Chapter one. (2) Chapter-II : Relevaney of Facts: Sections 5 to 55 : What facts may you prove? Chapter-II deals with ‘What facts may and may not be proved.” Relevaney of the concerned fact is 2 prerequisite for deciding whether the fact is admissible as evidence. Every relevant fact is admissible, unless explicitly made inadmissible by a particular provision, Similarly, every irrelevant fact is inadmissible, unless it is expressly stated that itis relevant. The Evidence Act quite elaborately lays pertinent principles under which the facts become relevant, Chapter Il on relevancy of facts takes within its fold five categories ‘of relevant facts: (i) facts connected with the fect to be proved (Sections 6 to 16): (i statements about the fact to be proved (Sections 17 to 39); (li) decisions about the fact to be proved (Sections 40 t0 44); (iv) Opinions about the fact 10 be proved (Sections 45 to 51); and (¥) character of the persons who are concerned with the fact to be proved (Sections 52 to 55). An Introduction to the Law of Evidence Ad Part-IL : Proof : Sections $6 to 100 (3) Chapter-II : Facts need not be proved: Sections 56 to 58: Chapter II having decided what facts are relevant, the Act proceeds to show how a relevant fact is to be proved in Part I. In the first place, the fact to be proved may be one ‘of so much notoriety that the court will take judicial notice of itor it may be admitted by the pares. In either of those cases, no evidence of its existence need be given. Chapter Il which relates to judicial notice, disposes of this subject. (4) Chapter-1V : Oral evidence: Sections 59 and 60: If evidence has to be given of any fact, that evidence must be either oral, documentary, or material ‘The Act proceeds in the following Chapters to deal with the peculiarities of cach of these thrce kinds of evidence. With regard to oral evidence, the Act provides thatit must in all cases be direct, i, it must consist ofa declaration by the witness thathe perceived by his own senses the fact to which hetestfies. (5) Chapter-V : Documentary evidence: Sections 61 to 9A: With regard ‘to documentary evidence, Sections 61 to 66 deal with the question as to how the contents of a document are to be proved. Sections 67 to 73 deal with the question of gensineness of @ document i, whether a document is that which it purports to be. Sections 74 to 78 deal with the nature of public documents and also with the proof which isto be given of them, Sections 76 to 78 explain le exceptional mode of proof which is needed in their case. Private documents asdefincd by Section 75 are subject to the general provisions of Sections 61 to 73 for their proof. Sections 79 to 90A deal with the presumptions as to genuineness of documents. All these Sections are illustrations of, and founded ‘pon, the principle that ‘all acts are presumed to be rightly done” (6) Chapter-VI ; Exclusion of oral by documentary evidence : Sections 91 fo 100 t Sections 91 and 92 are based on the best evidence rule and in effect supplement each other. The best evidence about the contents of a document is the document itself and itis the production of the document that is required by Section 91 in proof of its contents. Section 92 excludes the ‘timission of oral evidence for the purpose of contradicting, varying, adding tor subtracting from the terms of te document properly proved under Section 91. If the language employed in a document is ainbiguous, the question of the admissibility or otherwise of extraneous evidence would be regulated by the Provisions of Sections 93 to 98, Sections 93 and 94 deal with patent ambiguity, while Sections 95, 96 and 97 deal with latent ambiguity. In case of patent ambiguity no exizinsic evidence is permissible whereas in case of latent ambiguity extrinsic evidence may be given, Part-II : Production and Effect of Evidence : Sections 101 to 167 (1 Chapter-VII : Burden of proof: Sections 101 to L14A : Part-IIl deals with the production and effect of evidence in Chapters VII to XI. Chapter ‘Vil deals with burden of proof as well as presumptions. Fist itlays down the ‘encral principles which regulate the burden of proof (Sections 101 to 106), | | |Taial Law of Evidence. and then enumerates the cases in which the burden of proof is determined in a particular case, aot by the relation ofthe parties to the cause but by presumptions (Sections 107 to 111). It notices two cases of conclusive presumptions, first the presumptions of legitimacy from birth during marriage (Section 112), and second the presumption of a valid cession of teritory from the publication of notification to that effect (Seetion 113). The legislative intent in inserting Sections 113A and 113B is to curb the menace of dowry death etc. with a firm hand. The legislature tried to strengthen the prosecution hand by permitting 4 presumption to be raiscd'if certain foundational facts are established. The ‘Act declares in Section 114 that the court may in all cases, draw from the facts before it. whatever inferences ir thinks just. Seetion 114 raises a presumption of non-consensual intercourse. (8) Chapter-VIIE : Estoppels: Sections 115, 116 ond 117 : is a personal disqualification laid upon a person peculiarly circumstanced from proving peculiar facts. While Section 115 deals with estoppels by mistepresentation, Sections 116 and 117 dee! with estoppels by agreement, (9) Chapter-IX : Witnesses: Sections 118 to 134 : Chapter IX speaks of ‘witnesses who are competent to testify. Sections 118 to 120 deal with competency of witnesses while Sections 121 to 132 deal with the issue of compeltability, Competency is to be distinguished from compellability Exemptions from being compelled as witnesses and from disclosure are provided for under Sections 121 to 132 with regard to different categories of persons and documents ete, Sections 121 to 132 form exceptions to the yenesal tule that 2 witness is under the obligation to disclose the whole truth, and (0 produce any document which is in his possession or power relevant to the ‘matter in issue. Section 133 deals with competency and reliability of an accomplice as a witness. Section 134 enshrined the well-recognised maxim that “evidence has to be weighed and not counted." It emphasizes that it is the quality and not the quantity of testimonial evidence that is important. (10) Chapter X : Examination of witnesses: Sections 135 to 166: Sections 135 to 166 deat with the dynamics of court room where the rival parties attempt to present their cases and unravel their forensic strategies. Sections 135 to 166 lay down rules for examination of witnesses. A Judgment of the court must be based upon facts declared by this Act to be relevant (Sections 5 to 55) and duly proved by oral or documentary evidences ‘(Sections 56 to 100) testified by the competent witnesses (Sections 118 t0 134) by doing proper examination of them (Sections 135 to 166). (11) Chapter XI; Improper admission/rejection of evidence : Section 167: Section 167 incorporated the principle that the court of appeal/revision should not disturb a decision on the ground of improper admissiow/rejection of evidence it in spite of such evidence, there are sufficient materials in the case to justify the decision, Technical objections will not be allowed to prevail, where substantial justice appears to have been done, An Introduction to the Law of Evidence Tabular Scheme of the Act connected with the issue, S admissions, Sections 17-3 Facts in issue relevant to the [> Statement by persons who canoi be eetions 5-16. issue which j Called us witnesses, Sections 32-33, may be |? Statement under special circumstances Ae Sections 34-39. J jndgementin othe cases, Sections 40-44 ‘opinions, Sections 45-51 They may be character, Sections 52-55 Tt __pirimary of secondary, Sections 61-66 judicially proved by proved by [tested or unattested, Sections 67-73 noticed oral dacumenary|-sPUblic or private Sections 74-78 (Ch.ii) evidence evidence [+ Sometimes presumed to be yenuire. (Ch.iv) (Chivy | Sections 79-90. which is-+2exelusive or not of oral evidence, (Ch, vi) This proof must be presiuced by the party on! whom the burden of proof rests (Cha, vii), unless he is estopped (ch. vill) Irgiven by witnesses (ch. ix) they must testify, subject 10 rules as to ‘examination (ch. x). Consequence of mistakes defined (ch, xi). Value of Codification of the Law of Evidence : Codification hus been of immense value to those who are concerned with the administration of justive in India. The codified law of evidence is of peculiar value to the judge which furnished him with materials to ascertain the truth of the facts presented ta hhim by the parties ard enables to form his opinion and belief on them. ft gives the legal practitioner an immense advantage, Even if he applies it as a rule of thumb, the chances are that he will go right, though he may not understand Why the rules should be so, but simply decides upon and follows the law Though the Legislature has smoothed the path of the legal practitioner ty codifying the Law of Evidence, the same necessity lies upon the student of ‘mastering the principles which underlie the several propositions into which many of the rules ofthat law have now boen cast. Consolidating Aet : The preatnble shows that the Indien Evidence Acts ot merely a fragmentary enactment, but a consolidating one, The reas object of consolidation are to see that differences in practice edopted by different Courts while admitting evidence are avoided and certan gu are given for admitting the evidence relating to different issues in a case. Secondly, if such consolidation is done by a codified enactment, such Jaw alone should be sought for interpreting the language therein. According!y 2 Judge cannot allow evidence which is inadmissible under the provisions of this Act, even if he feels that such inadmissible evidence throws some i sons and tilt then felines ight on