lY1.. (a) 'Write history, object and i~troduction of Indian Evidence Act.

vZ.~. Introduction · ·
The entire body of law ~orpus juris) may be broadly categorised
under two heads namely; . ·
1) Substantive Law and
2) Procedural Law or Adjective Law. .
Substantiv~ Law defines rights, duties and liabilit~es of the party,
e.g. Law of 'inheritance, marriage, s·uccession and Indiaµ Penal Code.
Procedural Law deals with proceedings in Court_, that i_s plea~in&s,
procedure and proof of facts to which the substanllve law 1s apphe4 m
pr_actice, e.g. Civil Procedure Code, Criminal Proce<riure Code and the
Indian Evidence Act. ·
The substantive portion or' the criminal law of our land is found
largely in the Indian Penal Code. The civil law of our land has not been
completely codified. Still greater portion of our substantive civil law
relating to contracts and property is found in the Indian Contract Act and
Tr~nsfer of Property Act respectively. The personal law of Hindus and
Mohammedans also form part of their substantive civil law.
The Substantive Law defines what facts are to constitute a right
or a liability. Adjective law is one by which substantive law is applied to
particular cases. It is also known as the law of procedure. The Law of
Evidence is one of the significant branches of proc~dural law. Adjective
law in general, may be defined as that branch of the law which govern
the process of litigation.
In India, the law relating lo the principles of evidence is governed
by the Indian Evidence Act, .1872.
History of the Indian Evidence Act
Before enactment of the Indian Evidence Act, 1872, the courts in
India used to follow the Mohammedan Law which was not codified. When
the British established courts in the Presidency towns of Bombay, Calcutta
and Madras by Royal Charter, these courts started following British Law
till 1853. The first Act dealing with the Evidence was enacted .in i853.
This Act was made applicable to all courts in British India. It was followed
by eleven enactments during a period of almost 20 years·. In 1868, Sir
Henry Maine drafted the Bill on Law of Evidence, which was not suitable
to Indian conditions.
Subsequently, Sir James Fitzjames Stephen prepared the draft Bill
which was passed as the Indian Evidence Act, 1872. When Stephen drafted
the Indian Evidence Bill at the request of the Governor General of India,
he did not get any help from the Hindu or the Mohammedan Law of
Evidence, because both had become inoperative during the East India
Company rule. In the three Presidency towns of Calcutta, Bombay and
Madras, English Law had been introduced but the Moffusal Courts were
guided by a few cryptic regulations and they were mainly the courts of
"justice, equity and good conscience". Practically speaking, these attractive
 6 / LL. B. Fifth Semester (Bhopal)
-an~-an20~
words . meant little more tha~ .imperfect ~nderstanding of i
collection of not very recent ed1llons ?f Enghsh Text_ books. lllperfect
Stephen himself was an authority C?n the English Law of E: .
In English Law of Evidence, having published 14 volumes of th~id~nce.
of that Law, he, however, took care to see that the defects in En r Digest
did not enter his Bill. g 1sh law
No major changes took place in the Evidence Act dur·
than one hundred and thirty years, except so~e changes in 20oig lll~re
changes to the Evidence Act have taken place m 2002, because of· Mcl)or
of Information Technology Act, 2002. Passmg
Extent and Application of the Evidence Act
The Indian Evidence Act, 1872 which owes its origin frolll t
English Law of Eviden~e c~rnc into force from 1st September, 187 _\e
extends_ to the w~ol~ ?f India, ex~ept !he State of Jammu and ;Kashlllitt 2
It applies to all JUd1c1al proceedmgs m or before any Court 1ncludin ·
Co_urt-Martial cons~ituted under Army. Act. (some . times). Law \
Evidence 1s not applicable to the procecdmgs before tribunal, arbitrator 0
and any departmental enquiries and affidavits. ·
Section 1 of the Evidence Act specifically lays down that the Act
applies .to all judicial proceedings in or before any Court and a Court
Martial under the Indian Army Act.' The Act does not apply to affidavit
and p~oceedings. before arbitrator. Affidavits are not i~cluded in the
defimhon of Section 3 and are expressly excluded by section 1. They can
be used as evidence only if for sufficie,nt reasons the court passes an order
under Order 19, Rules 1 and 2 of C.P.C. Matters to which affidavits shall
be confined are regulated by section 130 of CPC and Order 9 rules 1 to
3. Similarly sections 296 and 297 of the Cr.P.C provide for the filling of
affidavits in criminal cases.
Again the rules of Evidence Act do not apply to proceedings
before an Arbitrator. Improper rejection of evidence is not a sufficient
ground for setting aside an award. The arbitrator should decide questions
in accordance with the principles of natural justice. ·
Object of the Evidence Act
The main object of Evidence Act is to prevent laxity in the
admissibility of evidence, and to introduce a more correct and uniform
rule of practice. In other words, its main object is to help the Courts to
ascertain the truth, and to avoid confusion. So the object 1s to produce in
the mind of the judge, a belief to the existence or non-existence of certain
facts on which the rights and liabilities of the parties are decided.
Evaluation of the Act
The Indian Evidence Act provides adequate guidance for not only
the disposal of judicial proceedings but also in conducting quasi-judicial
or administrative proceedings. For this purpose, every such endeavour is
to establish certain facts from which under the various laws of the land
governing human conduct, the right, liability or disability of a person is
infe rred. The mind first directs itself to the selection of facts which will
be allowed to be placed on record and then determines the nature of the
evidence which should be adduced in proof of thpse facts. That evidence
aft t1:f aft' 20 m Law of Evidence/ L
is then tested by t~c rules of credibility. The evidence ~n record a ong · -
with other matters 1s then considered to sec if it is possible to believe in
the existence of the facts selected for the proceedings. The d_ecision of
the case as a _whole_ rests on the proof, non proof or disproof of several
facts. The Indian Evidence Act rains the mind in separating the chaff from
the. grain and in finding suitable, strong and clean containers to carry the
gram.
The Indian Evidence Act fosters clear thinking and an objective
outlook in deciding problems relating to human behaviour and it goes to
its c~edit that though it is more than a 130 years old not a single
amendment of any consequence has been made in it. The major
amendment to the Act was in the year of 2000 by virtue of the Information
Technology Act, which came into effect from 17th Oct, 2000.
. The comment sometimes made against the Act that because of
its stnct rules of relevancy and admissibility, it is often difficult to prove
the guilt of the accused and hence many persons get underserved acquittal,
is not justified. The acquittals are not due to the provisions of the Act,
but to the indifference and apathy of general public towards
administration of justice and above all the faculty investigation. .
In a democracy the freedom and the dignity of the individual are
of primal importance. The Act is in tune with this feature of democracy
in as much as it places the burden of establishing a case on the party
which seeks a judgment against an individuaJ. .
(b) What do you understand by the Law of Evidence? State the
cardinal principles of the Law of Evidence.
Ans. Law of Evidence- Chief Justice M Monir has defined the law of
evidence "as a system of rules for ascertaining controversial questions of
fact in judicial inquiries . .It bears the same relationship to a judicial
investigation as logic to reasoning."
Sir James Fitz-James Stephen defined the law of evidence as
under:
"The Law of Evidence is that part of the law of procedure which,
with a view to ascertain individual rights and liabilities in individual case,
decides
(i) What facts may, and what may not be proved in such cases;
(ii) What sort of evidence must be given to a fact which may ·be
proved; and .
(iii) by whom and in what manner the evidence must be given by
which any fact is to be proved."
According to California Civil Procedure Code - "the Law cif
Evidence is a collection of general rules established by law
(i) For declaring what is to be taken without proof; .
(ii) For declaring the presumption of law, both those which are
disputable and those which are conclusive;
(iii) For the production of legal evidence;
(iv) For determining, in certain cases "the value and effect of
evidence".
The Law of Evidence determines:
 Stat - ••

8 / LL. B. Fifth Semester (Bhopal)

(i) What sort of facts "!ay _be p~oved in order to est_ab/ish .the
existence or that wluch ,s defined by the substanllve /a,.,
,v as
coercion? 'J ·

(ii) ,What sort of proof is to be given of those facts?'

(iii) Who is to give it?·
(iv) How it is to be given? .
Therefore before the law of evidence can he understood or
applied to any particular easel it is nccessa_ry to know so much of lhc
substantive law as determines what, under given state of facts, Would be
the rights of the parties and so ~uch of the law of procedure as is
sufficient to determine what question it is open to them raise the particular
proceeding. · . . ..
Thus in general terms the law of evidence consists of prov1s1ons
upon the following subjects:
(i) The relevancy of facts
(ii) The proof offacts .
(iii) The production of proof of relevant facts . .
Cardinal Principles of Law of Evidence · The cardmal principles
of Law of Evidence are~ ·
(i) Evidence must be confined to the matters in issue.
(ii) Hearsay evidence is not to be admitted. .
(iii) In all cases the best evidence must be given.
Q. 1. . (c) "The Law of Evidence is the "Lex fori" which governs the
Court. " Comment. ·
Ans. The law of evidence applicable in every case is that of the "L~x
fori". This phrase means ''The law of the place of the action." The law of
evidence in the "Lex fori" m~ans that the evidence shall be governed by
the law of the place of action. All questions relating to competency of a
\ \
witness, admission or rejection of evidence arc determined by the law of
the country where the question arises, where the proceedings take place,
'I where the remedy is sought to be enforced and where the court sits to
enforce it.
Thus, where the question is one of the proper methods in India
of proviqg an event which occurred in England, the law applicable is the
Indian, and pot the English Law of'Evidcnce.
Example - A entered into a contract with B in England according
to English law. Later on, A brings an action against B in a Court in India.
A tenders evidence to prove the contract which is admissible under the
law of India but which is inadmissible under the law of England. The
evidence tendered by A is admissible and can be adduced because all
questions relating to admission or rejection of evidence are determined
by the law of country where the remedy is sought to be enforced and
where the court sits to enforce it. In this illustration. A sought remedy in
India and the evidence tendered by him is admissible under the law of
India, though not under the law of England; hence the evidence tendered
by A in India is admissible.
Lord Brougham's Principle - Lord Brougham laid down the
following principle:
 Law of Evidence / 9
aft 'Cf-f 20 m
''The law of Evidence is the Lex f ori which governs the court.
Whether a witness is competent or not; whether a certain matter requires
to be proved by writing or not; whether a certain evidence proves acertain
fact or not; that is to be detem1ined by the law of the country where the
question arises, where the remedy is sought to be enforced and where the
court sits }O enforce it." . . ..
Q. 2. (a) The rules of Evidence are ID general the same ID CIVIi and
criminal proceedings." Comment and state if there are any
exceptions to this rule. . . . . .
Ans. The Indian evidence Act applies to all Judicial proceedmgs 1~ or
before any court, including court-martial, other . th_an_ , court-marll~!s
conve~ed undcr-(i) the Army Act, (ii) {he Naval D1~c1pl~ne Act, or (m)
the Au Foret Act, but the Act shall not apply to afft~aVJts presented to
any court of officer, nor to proceedings before an arbitrator. .
The term "Judicial Proceedings" as defined under Sect10n 4 (m)
· of the Criminal Procedure Codc--"includes any proceeding in the course
of which evidence is or may be legally taken on oath." . . .
Spankle J. defined judicial proceedings" as any•proce~dmg m
the course of which evidence is or may be taken, or in which any
judgement, sentence or final order is passed on recorded evidence." . .
Mayne in his beak, 'Criminal Law in India," defined jud1c1al
proceedings as "any step in the lawful administration of justice, in which
evidence may be legally recorded for the decision of the matter in issue
in the case, or of any question necessary for the decision or final disposal
of such matter."
The Law of Evidence determines the way of convincing the court 1J<
by the parties of the existence of that state of facts which according to 1
the provisions of substantive law would establish the existence of the right
or liability which they allege to exists.
The rules of evidence in general are the same in civil and criminal
proceedings. In both the proceedings, as a rule, hearsay evidence is
excluded and best evidence must be given. In both, the evidence must be
confined to matters in issue. Lord Reading observed - "it has been
sokmnly decid~d that there is no difference between the rules of evidence
in civil and criminal cases. If the rules prescribed the best course -to get
at the truth, they must be and are the same in all cases and in all civilized
countries."
Exceptions to the rule-- There are however, some exceptions to
this general rule. For example, the doctrine of estoppel applies to civil
proceedings only. Similarly, a confession made to a police officer by an
accused is not admissible as evidence in a criminal trial, but it may be
proved in civil proceedings as an admission. Also in civil cases the fact
that the character of any person concerned is such as to render probable
or improbable any conduct imputed to him is irrelevant, except insofar as
such character appears from facts otherwise relevant. In criminal
proceedings, on the other hand, the fact that the person accused of is a
good character is relevant.
, Points of distinction between civil and criminal evidence. The
rules of evidence arc in general the same in civil and criminal proceedings.