LAW OF EVIDENCE

An introduction
 INTRODUCTION

• Nature of law of evidence

• Why did this law needed?
• First draft
• Basis of law evidence
• Nature of law of evidence (procedural or substantive law)
• Meaning of the term “Evidence”
• Evidence law and adversarial trial system
 BASIC PRINCIPLES

• Best evidence rule

• Falsus in uno falsus in omnibus
• Criticism of law of evidence
• The rules of evidence are artificial and based on experience.
• The best guide of presiding officer of the court on a question is his own common sense and experience
of human nature.
• Whether evidence as to relevant fact should be believed or not and if believed..what kind of inference
to be drawn from it as to principal fact. (especially evidence by witness)
• This is not exhaustive code.
 RELEVANCY AND ADMISIBILITY

• What is relevant?
• What is admissible?
• Scheme of the Indian Evidence Act, 1872.
• This Act contains 3 Parts, 11 Chapters and 167 Sections
• Part –I
• Chapter-1: Nature and Functions of Law of Evidence (Ss.1-4)
• Chapter- 2: Relevancy of Facts (Ss. 5-55)
• Part-II On Proof
• Chapter-3: Facts which need not be proved (Ss. 56-58)
• Chapter-4: Modes of Proof (Ss. 59-60)
• Chapter-5: Documentary Evidence (Ss. 61-90A)
• Chapter-5: Exclusion of Oral by Documentary Evidence (Ss. 91-100)

• Part-III Production and Effect of Evidence

• Chapter-7: Burden of Proof (Ss. 101-114A)
• Chapter-8: Estoppel (Ss. 115-117)
• Chapter-9: Witnesses (Ss. 118-133)
• Chapter-10: Examination of witnesses (Ss. 134-166)
• Chapter-11: Improper Admissions (Ss. 167)
• Few important points
• factum probandum (Principal fact) and factum probans (evidentiary fact)
The fact sought to be proved is called principal fact. For example: ‘A killed B’ is sought to be
proved and is a principal fact.
The fact which tends to establish principal fact is called evidentiary fact. Or facts which are capable
of offering a reasonable presumption as to either the fact in issue or principal matter in issue.
• Fact in issue and issues of fact
In criminal matters, the allegations in the charge sheet constitute the fact in issue. In civil matters,
the process of asserting fact in issue is known as ‘framing issues’. Issue of fact under C.P.C. is equal
to the fact in issue of the Indian Evidence Act.
• Evidence and proof
The word evidence includes all the legal means, exclusive of mere argument by lawyers and
parties, which tends to prove or disprove any matter or fact.
Proof is the establishment of fact in issue by proper legal means to the satisfaction of the court.
Proof is the result of evidence while evidence is only the medium of proof.
• Appreciation of evidence
The court has to examine the reliability of the evidence produced and that is called appreciation of
evidence. Whether such evidence had been produced through the mouth of a witness or by means of
document. The object of the appreciation of evidence is to find out what part of it represents the true
and correct state of things. Appreciation of evidence is the function of separating the grain from the
chaff.
There is no explicit guidelines which direct a judge to decide the basis on which appreciation is
to take place. The process of appreciation is left to the judge’s wisdom and experience. It is very
difficult to encapsulate and wrap appreciation of evidence in statutory form.
• Oath and perjury
• If witness is theist: A witness has to take an oath in the witness box before he gives his evidence.
He should take oath as follows ‘ I do swear in the name of God that what I shall state be truth
and nothing but truth’.
• If witness is atheist
• Section 4 (1)(c) of Oaths Act, 1969
• 4. Oaths or affirmations to be made by witnesses, interpreters and jurors.—

(1) Oaths or affirmations shall be made by the following persons, namely:—

(a) all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give,
evidence by or before any court or person having by law or consent of parties authority to examine such
persons or to receive evidence;
(b) interpreters of questions put to, and evidence given by, witnesses; and
 (c) jurors: Provided that where the witness is a child under twelve years of age, and the court or person
having authority to examine such witness is of opinion that, though the witness understands the duty of
speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions
of this section and the provisions of section 5 shall not apply to such witness; but in any such case the
absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor
affect the obligation of the witness to state the truth.

(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or
affirmation to the accused person, unless he is examined as a witness for the defence, or necessary
to administer to the official interpreter of any court, after he has entered on the execution of the
duties of his office, an oath or affirmation that he will faithfully discharge those duties.
Section 5. Affirmation by person desiring to affirm.—A witness, interpreter or juror may, instead
of making an oath, make an affirmation.
• Section 7. Proceedings and evidence not invalidated by omission of oath or irregularity.— No
omission to take any oath or make any affirmation, no substitution of any one for any other of
them, and no irregularity whatever in the administration of any oath or affirmation or in the form
in which it is administered, shall invalidate any proceeding or render inadmissible any evidence
whatever, in or in respect of which such omission, substitution or irregularity took place, or shall
affect the obligation of a witness to state the truth.
• Oath to interpreter
• Evidence obtained by unlawful means
Relevant evidence remains relevant even if it was obtained by improper or unlawful means.
• Meaning and definition of evidence
• Section 3 of the Indian Evidence Act, 1872
Evidence means and includes-
(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.
• Inclusive part of the definition
• Oral statements by witnesses
• Documents produced before the court for inspection
• Electronic evidence
• Exclusion part of the definition
• Oral evidence stated outside the court
• Silent about nature of witness (witness of fact and witness by fiction of law)
• Silent about indirect oral evidence
• Silent about evidence given through gesture and sign
 • Difference between oral and verbal evidence
• It does not include admission made in another proceedings
• It does not include real evidence
• Whether definition is exhaustive
• Evidence by non-human being (like sniffer dogs and parrot, alien etc.)
• Identification modes like body mark, surgery mark, animated face, body
language etc.
• Types of evidence
• Oral evidence
• Direct evidence
• Indirect evidence (hearsay)
• Documentary evidence (including electronic evidence)
• Primary evidence
• Secondary evidence
• Real evidence
• Expert opinion
 • Presumption
1. Presumption of fact or Natural presumption
• They are always permissive and rebuttable. They are indicated in the Act by the expression ‘may
presume.’ Example- Sections 86 to 88, 90, 114 etc.

2. Presumption of law
• They are always obligatory and may be rebuttable or irrebuttable.
I. Rebuttable presumption of law
• They are indicated in the Act by the expression ‘shall presume.’ Example- Section 70 to 85, 89 and 105.
II. Irrebuttable presumption of law
• They are indicated in the Act by the expression ‘conclusive proof.’ Example- Sections 41, 112, 113.
• Fact (Section 3 of IEA)
• “Fact” means and includes—
(1) any thing, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.
Illustrations
(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good faith, or
fraudulently, or uses a particular word in a particular sense, or is or was at a specified time
conscious of a particular sensation, is a fact
• Example:
• Suppose A is charged for the murder of B.
• Evidence produced in the case
• C (eye witness) says “he saw A killing B” (Direct)
• H (witness) says “he saw A holding blood stained knife coming out of the room where B’s dead body
was found” (Circumstantial)
• R says- C told him that A killed B. (hearsay)
• P says- H told him that A killed B. (hearsay)
• X (an expert) tells that B’s death was caused due to excessive bleeding and dead body contains cut
marks which were likely to be caused by sharp edged metallic weapon. (expert opinion)
• Proved—A fact is said to be proved when, after considering the matters before it, the
Court either believes it to exist, or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the supposition that it
exists.
• Disproved — A fact is said to be disproved when, after considering the matters before it,
the Court either believes that it does not exist, or considers its non-existence so probable
that a prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it does not exist.
• Not proved— A fact is said not to be proved when it is neither proved nor disproved.
 DEGREE OF PROVING A FACT

• In Civil Cases- Preponderance of probability

• Plaintiff
• Defendant

• In Criminal Cases-
• Prosecution
• Defense

• Presumption of innocence
• General or special exception defense taken by the accused
 BEYOND REASONABLE DOUBT
• Introduction:
• Meaning of the phrase “Reasonable doubt”
• Degree of proof in beyond reasonable doubt:
• Presumption of innocence and beyond reasonable doubt:
• Contours of the phrase “beyond reasonable doubt”:
• Conclusion: