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UNIT – I
NATURE AND SCOPE

The Evidence Act is divided into three parts comprising eleven chapters:-

1. Part I consists of two chapters (I and II) dealing with definitions and relevancy of facts.

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2. Part-II comprises chapters II to V which provide for proof of facts by oral or documentary evidence.

3. Part III embodies Chapters VI to XI which contains rules for the production of evidence in Court, the
effect of presumptions and the duties of the Court in dealing with the evidence produced before it.

a.

b.
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There are two cardinal principles of the law of evidence. What is relevant may be proved; but everything that
is relevant may not be admissible as evidence. This admissibility of evidence is tested on the basis of the
'truth value' of the relevant facts. For example, certain facts, though relevant, are excluded under Evidence
Act, viz. -

Hearsay evidence, that is, the assertion regarding the existence of any fact by any person who is not
called as a witness, is generally excluded.

Evidence of the opinion of others regarding tt1e existence or non-existence of a fact is generally

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excluded, though in some exceptional cases, it may be admitted.

c. The fact that any person's character is such as to tender certain conduct imputed to him probable or
importable is also excluded.

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Thus, it should be noted that the law does not admit every fact which is logically relevant.

The fundamental principle of the law of evidence, namely that evidence must be confined to the matters in
issue, is qualified by the following two fundamental principle:-

i)

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ii)
Hearsay evidence is not to be admitted.
In all cases, the best evidence must be given.

The Act makes an attempt to define positively and enumerate the relevant facts. The concept of relevancy
is laid down in Section 11 of the Act; facts which are inconsistent with facts in issue or relevant facts, or those
which render highly probable or improbable the facts in issue, are themselves relevant. This is the gist of the
relevancy of facts. A fact is relevant only when it has a tendency of making the existence or non-.existence
of the facts in issue highly probable in the opinion of the Court.

In English law, the law of evidence generally states what facts cannot be adduced as evidence, the
inference being that the rest of them can be adduced as evidence. The Evidence Act, on the other hand,
makes an attempt to state positively what facts are relevant,

In brief, the questions which the law of evidence attempts to answer are the following:
1. What kind of facts may be proved in order to establish the existence or non-existence of a fact in

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issue?
2. What kind of proof is to given of those facts?
3. Who is to give that proof?
4. How is that proof to be given?

1. What kind of facts may be proved? : Sanctions 6 to 16 of the Evidence Act state that facts which
are logically connected with the facts in issue, and which make the existence or the non existence of the
facts in issue probable or improbable, can be proved. For example, in a trial for murder, the fact that the
accused had a motive for committing the murder makes the inference of the murder possible. Similarly,
the fact that he purchases some poison just before the murder, when the death is suspected to have
been caused by such poison, makes his having committed the murder probable. Further, the fact that

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after the victim drank the contents of the glass, the accused cleaned the glass might make the inference
of his having committed the murder possible, as by this subsequent conduct, the accused might have
attempted to destroy the evidence. In the same way, the fact that the accused had opportunities to offer
a drink to the victim just before the victim died may make the inference of the accused having committed
the murder possible as it afforded an opportunity for committing the offence.

2.
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Thus, the gist of the contents of Sections 6 to 16 is that whenever a fact, either by itself, or in connection
with other facts, makes the legal inference of the existence or the non-existence of the facts in issue,
such facts, become relevant, and may be proved. But this rule of relevancy is determined by the second

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question that the law of evidence has to answer.

What kind of proof is to be given of those facts?: The general principle is that the best evidence
must be given in all cases. But this maxim (as most "maxims are) is a half truth. What is meant by best
evidence is the evidence of facts which have the maximum truth value. In a sense, this question is
answered mostly in a negative way by the Evidence Act. Hearsay evidence cannot be given. The

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contents of a document cannot normally be proved by oral evidence, when the law requires a
transaction to be contained in a document. This rule is contained in the statement that primary evidence
must be given, unless secondary evidence is permitted to be given.

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3. Who is to give that proof?: The third question deals with the burden of proof. There are certain
facts which need to be proved because the court takes notice of them. There are certain facts which
must be proved by one of the parties to the dispute.

The party who has responsibility of proving a certain fact is said to have the burden (or onus) of proof on

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him.

The law of evidence generally lays down that who wants the court to believe certain things must, prove
them. But this general rule is modified by the law of presumptions. In certain cases, the law says that the
court may believe in the truth of a thing, unless it is disproved. In such cases, the law prescribes that the-
court must believe in the existence of certain things, unless they are disproved. There are cases where
the Evidence Act lays down that a court shall presume a particular thing. There are certain
circumstances when the law will say that the court must believe in the existence of a thing, and should
not allow any evidence to disprove such a thing. Thus, one thing may be declared to be conclusive proof
of another. In some other cases, the law might also prevent a party from leading evidence contrary to his
prior statement or conduct, by applying the doctrine of estoppel.

4. How is that proof to be given?: In this part of the law of evidence, questions relating to the
competency of the witness, as also the method of examining them and testing their veracity, are
discussed. Here, the rule is that all persons who are capable of understanding the nature of the
questions put to them, and who can answer those questions, can be witnesses. This general rule is,
however, qualified by what is known as the rule of privileged communications. In some circumstances,

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the law prescribes that one person shall not give evidence of certain communication which he received
under particular circumstances. For example, a wife or a husband cannot give evidence of the
communication which he or she received from the other party to the marriage during the period of the
marriage.

DEFINITION
Facts: “Facts” means and includes: "

1) Any thing, state of things or relation of things, capable of being perceived by senses;
2) Any mental condition of which any person is conscious.
Illustrations

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a) That there are certain things arranged in a certain order in a certain place, is a fact.
b) and c) That a man heard or saw or said something, is a fact.
d) That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses

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a particular word in a particular sense, or is or was at a specified time conscious of a particular
sensation, is a fact.
e) That a man has a certain reputation is a fact.

The fact may be physical [illustrations (a), (b) and (c) or psychological [illustration (d) and (e)]. It has been

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said that "a state of man's mind is as much a fact as the state of his digestion". The state of a person's health
is a fad. The psychological facts can only be proved by circumstantial evidence.

The facts may be positive or negative. The existence of a certain state of things is a positive fact. the non-
existence of it is a negative fact.

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Facts in Issue: "Facts in issue" means and includes - (1) any act from which either by itself or in connection
with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or
denied in any suit or proceeding, necessarily follows, (2) any fact asserted or denied in answer to an issue
of fact recorded under the Civil Procedure Code.

A fact in issue is called the 'principal' fact or factum probandum. It is the fact which is sought to be proved.
Facts, which are in dispute, are facts in issue. Evidence becomes necessary only in reference to such facts.
Further, these are the facts which constitute the right or liability. The following illustration makes clear the

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point:
"A is accused of the murder of B. At his trial, the following facts may be in issue - that A caused B's death, that
A intended to cause B's death; that A had received gave and sudden provocation from B; that A at the time of
doing that act which caused B's death, was, by reason of unsoundness of mind incapable of knowing its
nature.

Thus, every fact which a plaintiff must prove in order to get an adjudication in his favour, or which a
defendant may prove to defeat the suit, becomes a fact in issue. Facts in issue will depend upon the
provisions of the substantive law applicable to the offence. If, for example, the action is for the tort of
negligence, such of the ingredients of liability for negligence, which are in dispute, shall be the facts in issue.
Thus, facts in issue depend upon the ingredients of the offence and the state of the parties' pleadings.

In criminal matters, the allegations in the charge sheet constitute the facts in issue. In civil matter, the
process of ascertaining facts in issue is known as 'framing' issues. The 'issue of fact' under CPC is equal to
the 'fact in issue' under CPC is equal to the 'fact in issue' of the Evidence Act.

Relevant facts: "One fact is said to be relevant to another when the one is connected with the other in any

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of the ways referred to in the provision of this Act relating to the relevancy of facts". viz.

I. Facts logically connected with facts in issue (Sections 5-16),

II. Admissions and confessions (Sections 17-31),
III. Statements by non-witnesses (Section 32-33)
IV. Statements under special circumstances (Section 34-37)
V. Judgment in other cases (Section 340-44),
VI. Opinions of third persons (Section 45-51) and,
VII. Evidence as to character (Section 52-55)

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It is to be noted that the section does not define the term "relevant". Rather, it simply indicates when one fact
becomes relevant to another. Normally, facts relevant to an issue are those facts which are necessary for
proof or disproof of a fact in issue. Thus, relevant facts (or evidentiary facts) or factum probans are those
which have a certain degree of probative force. Relevant facts are not themselves in issue, but are
foundations of inferences regarding them.

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For example, "when A is accused of the murder of B", the 'relevant facts' are - A had a motive and
opportunity to kill B, he had made preparations by buying a knife, etc. or after the murder he was seen
funning with blood-stained knife in hand.

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Relevancy implies relationship i.e. any two facts to which it is applied are so related to each other that
according to the common course of events one taken by itself or in connection with other facts proves or
renders probable the existence or non-existence of the other. Thus, circumstantial evidence is evidence
that relates to facts, other than those in issue, which by human experience, have been found to be so
associated with the fact in issue that the latter may be reasonably inferred therefrom. The word 'relevant'

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has been held to be 'admissible' (Lakshmi vs. Heider, 3 CWN 268).

Different Kinds of Evidence: According to Stephen, the word “evidence” is used in three senses:

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a. words uttered and things exhibited in Court,
b. facts proved by those words or things, which are regarded as ground words of inference as
to other facts not so proved, and
c. relevancy of a particular fact to matter under inquiry.

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Bentham defines evidence as ":any matter of fact, the effect, tendency or design of which when presented
to the mind, is to produce in the mind a persuasion concerning ~he existence of some other matter of fact - a
persuasion either affirmative or disaffirmative of its existence. Of the two facts so connected, the latter may
be distinguished as the principal fact and the former as the evidentiary fact."

Taylor uses the word "evidence" to mean all the legal means exclusive of mere argument which tend to
prove or disprove any fact the truth of which is submitted to judicial investigation.

The fundamental rules of English Law of evidence are -

i) Evidence mustbe confin'ed tathe' matters in issue
ii) Hearsay evidence is notto be admitted.
iii) In all cases, the best evidence must be given.
Indian Law: Two fundamental rules on which the law of evidence is based are:

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i) no facts other than those having rational probative value should be admitted in evidence,
and
ii) all facts having rational probative value are admissible in evidence, unless excluded by a
positive rule of paramount importance.

The above two ideas are expressed. in Section 5 of the Act, which says:

"OF the relevancy of facts (section 5):' Evidence may be given of facts in issue and relevant facts":
Evidence maybe'91yen in any suit of proceedings of the existence or non-existence of every fact in issue
and of such other facts as are hereinafter declared to be relevant, and of no others.

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Explanation: This section shall not enable any person to given evidence of a fact which he is disentitled to
prove by any provision of the law for the time being in force relating to civil procedure.

What is Evidence: It is defined in Section3 as:

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1) all statements which the Court permits or requires to be made before it by witnesses, in relation to
matters of fact under inquiry; such statements are called oral evidence;

2) all documents including electronic records produced for the inspection of the Court; such
documents are called documentary evidence.

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Different kinds of Evidence: In the broader way, there are many kinds of evidence - Best evidence,
Circumstantial evidence, Corroborative evidence and Substantive evidence, Direct evidence, Indirect
evidence, Hearsay evidence, Oral evidence and Documentary evidence, Primary evidence and Secondary
evidence, Original evidence, Real evidence and Personal evidence, Presumptive evidence, Derivative
evidence, Testimonial evidence and Conclusive evidence.

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All these types of evidences are dealt with by the Act-either explicitly or by implication, though in the
definition of the word we find only and documentary evidence.

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1) Best Evidence: The best evidence or the original evidence means the primary evidence.
Relevant Case: Murarka Properties vs. Beharilal (1978) 1 SCC 109

2) Circumstantial Evidence: Circumstantial evidence means the evidence of circumstances and is

sometimes referred to as presumptive evidence. Suppose A is charged with the murder of B. At the trial

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a witness C, on behalf of the prosecution, gives evidence that he saw A stab B. Or, C may make the
statement that he saw A running away from the place where B's corpse was found, with a blood-stained
knife in his hand. In the fist case the evidence given by C is usually referred to as direct evidence and in
the second, as circumstantial evidence. because, C makes a statement about a circumstance, a
relevant fact which if believed, may convince the court of the guilt of A. Therefore, we might say that
when evidence is given of the very fact in issue, that is, of the matter in controversy, it is called direct
evidence and when evidence is given of circumstances, or relevant facts, from which an inference may
be drawn about the fact in issue, then it is called circumstantial evidence.

Tests: It is well settled that when a case rests on circumstantial evidence, such evidence must satisfy
three tests:

a) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and
firmly established;

b) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the
accused;

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c) the circumstances, taken cumulatively, should form a chain so complete that there is no escape
from the conclusion that within all human probability the crime was committed by the accused and
none else.

3) Corroborative Evidence and Substantive Evidence: Corroborative evidence must be taken

along with substantive evidence, when evidence is given of the fact in issue or of a relevant fact that is
called substantive evidence. There are, however, several statements oral and documentary, which are
not substantive evidence. They are not admissible by themselves, but become. admissible to
corroborate, or support, substantive evidence already given. Evidence to corroborate substantive
evidence is permitted under Sections 156 and 157.

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Section 156 says: "Questions tending to corroborate evidence of relevant fact, admissible', when a
witness whom it is intended to corroborate gives evidence of any relevance, he may be questioned as to
any other circumstances which he observed at or near the time or place at which such relevant fact
occurred. If the Court is of opinion that such circumstances, if proved, would corroborate testimony of
the witness as to the relevant fact which he testifies".

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Section 157 says: "Former statements of witness may be proved to corroborate later testimony as to
same fact', - In order to corroborate the testimony of a witness, any former statement made by such
witness relating to the same fact at or about the time when the fact took place, or before any authority
legally competent to investigate the fact, may be proved".

4)

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Direct Evidence: The word 'direct' evidence is used in two senses (a) as opposed to Hearsay
evidence (b) as opposed to circumstantial evidence. In the first sense direct evidence is the evidence of
a fact actually perceived by a witness with his own senses or an opinion held by him. And in the second
sense direct evidence is that which goes expressly to the very point in question and proves it, if

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believed, without aid from inference or deductive reasoning, e.g. eye-witness to a murder is direct
evidence.

In jurisprudence, however, direct evidence is commonly used in a secondary sense, viz. as limited to
cases where the principal fact, or factum probandum, is attested directly by witnesses things or

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documents.

5) Indirect Evidence: Known in forensic procedure by the name of circumstantial evidence, is either
conclusive or presumptive: Conclusive, where the connection between the principal and evidentiary

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facts-the factus probandum and the factum probans - is a necessary consequence of the laws of Nature
presumptive, where it only rests on a greater or less degree of probability.

Suppose A is charged with the muder of B by stabbing him. C, D, E, F, G and H are witnesses called by
the prosecution; C says he saw A stab B. D says he heard B cry out that A was stabbing him. E says that
he saw A running away with a blood-stained knife and blood-stained .clothes. F says that he saw A
washing his blood-stained clothes. G is a doctor who says that the knife found in ~s possession might
have caused the wounds found on Band H says that he heard from C, that C saw A stabbing B. If we use
the phrases direct evidence and circumstantial evidence, the evidence given by C is direct evidence
and that given by the others, circumstantial evidence, because C gives evidence of the very matter in
controversy, whereas D to H give evidence of circumstances which, if believed, would assist the court in
drawing an inference about the matter in controversy. But, if we use direct evidence as used in Section
60, then the evidence of C to G is direct evidence and that of H is indirect evidence, because each of
them, C to G, is giving evidence about a fact which was perceived by him by the particular sense by
which it was capable of being perceived; whereas, H alone is talking about A stabbing B - a fact capable
of being seen, but without seeing it. He has heard about it. The evidence sought to be given by H is also
called hearsay evidence and in general, is not admissible in a court of law.

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6) Hearsay Evidence: Stephen says, "the word 'hearsay' is used in various senses, Sometimes, it
means wherever a person is heard to say; sometimes it means whatever a person declares on
information given by some one else; sometimes it is treated as nearly synonymous with 'irrelevant' ."

It is the fundamental rule of the English law of Evidence that hearsay is not admissible. The reasons why
hearsay evidence is not received as relevant evidence are:

a) the person giving such evidence does not feel any responsibility. If he cornered, he has a line of
escape by saying" I do not know, but so and so told me",

b) truth is diluted and diminished with each repetition: and

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c) if permitted, gives ample scope for playing fraud by saying "someone told me that…..”. It would be
attaching importance to a false rumour flying from one foul lip to another.

Hearsay evidence when admissible:

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R.V. Raoji, 6 Born. L.R. 34: Where the object of the legislature is simply to provide preventive measures,
evidence of repute though hearsay, is admissible.

Ganauri V.R., 16 C 210: Certain communications though hearsay, were held admissible in cross
examination in so far as they relate to the question of the credibility of the witness.

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Muni Lal Gupta vs. State 1988 Cr. L.J. 627, 630: The witness was aroused on hearing the cries of two
other prosecution witnesses that the accused had killed the children. His evidence of what he heard is
admissible.

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7) Oral Evidence and Documentary Evidence: Definition is given in Section 3(1). If it is a case of oral
evidence, the Act requires that only that person who has actually perceived something by that sense by
which it is capable of perception should make the statement about it and no one else.

If it is documentary evidence, the Act requires that ordinarily the original should be produced, because a

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copy may contain omission or mistakes of a deliberate or accidental nature. These ideas are expressed
in Sections 60 and 64.

Documentary evidence is defined in the Act as: All documents produced for the inspection of the court.

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The purpose of producing documents, is to rely upon the truth of the statement contained therein. This
involves, when a document is produced in court, the examination of three questions; (1) is the
document genuine, (ii) what are its contents and (Hi) are the statements in the document true?

*** By real evidence is meant evidence of which any object belonging to the class of things, is the
source, person also being included in respect of such properties as belong to them in common with
things. This sort of evidence may be either immediate, where the thing comes under the cognizance of
our senses: or reported, where its evidence is related to us by others. Personal evidence is that which is
afforded by a human agent, either by way of discourse or by voluntary signs.”

Suppose a letter is produced. as having been written by A and it contains a statement that B murdered
C. The three questions are: (i) is the letter written by A? (ii) what does letter contain? and (iii) is the
statement that B murdered C true?

8) Primary and Secondary Evidence: We can easily understc.md it by way of above given example.
In the above example, the first and third questions can be answered by calling A as a witness. But the
second can normally be answered only by providing the letter. When the original letter is produced, it is

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said that primary .evidence of the contents is given. When a copy is permitted and such copy is
produced to prove the contents of a document, secondary evidence is said to be given of the contents.
The. definition of primary and secondary evidence is given in Sections 62 and 63 as under:

Primary Evidence: Primary evidence means the document itself produced for the inspection of the
Court.

Explanation 1: When a document is executed in several parts, each part is primary evidence of the
document; where a document is executed in counterpart, each counterpart being executed by one or
some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2: Where a number of documents are all made by one uniform process, as in the case of
printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where

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they are all copies of a common original, they are not primary evidence of the contents of the original.

Illustration: A person is shown to have been in possession of a number of playcards, all printed at one
time from one original. Anyone of the playcards is primary evidence of the contents of any other, but no
one of them is primary evidence of the contents of the original.

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Secondary Evidence: Secondary evidence means and includes :

a) Certified copies given under the provisions hereinafter contained;

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b) Copies made from the original by mechanical processes which in themselves insure the-
accuracy of the copy, and copies compared with such copies.
c) Copies made from or compared with the original;
d) Counterparts of documents as against the parties who did not execute them;

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e) Oral accounts of the contents of a document given by some person who has himself seen it.
The genuineness of a document or the truth of its contents are proved either by primary or by secondary
evidence. (Section 61)

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9) Original Evidence: The original is that which a witness reports himself to have seen or heard
through the. medium of his own senses.

10) Real and Personal Evidence: It refers to any matter which the court perceives itself e.g. that a man
standing before a judge has got a scar on his face, objects like murder weapon, blood- stained clothes,

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photographs etc.

11) Conclusive Evidence: Where the connection between the principal and evidentiary fact is a
necessary conclusion.

IMPORTANT QUESTIONS

Q.1. Define 'Proved', 'Court; ;-'D59ument', 'May Presume', 'Shall Presume' & 'Conclusive Proof'.

Q.2. Does the India", Evidence Act apply to the State of Jammu and Kashmir?

Q.3. Define 'India' as under Evidence Act.

Q.4. What is meant by 'Substantive Law' and 'Adjective Law'? What kind of law is, law of
evidence?

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Discuss the aims and objects of the Indian Evidence Act?

Q.5. Define and illustrate 'fact'?

Q.6. Define 'Evidence'. Discuss briefly the structure and contents of the Indian. Evidence Act.

Q. 7. What are the kinds of Evidence?

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