Evidence: What it means
The term evidence is a bit ambiguous one. It refers to what is adduced by a party in a court in order to establish a fact or its truth.
Evidence essentially refers to those things that make the truth of a disputed matter quite evident or convincing to a court.
About Indian Evidence Act, 1872
Indian Evidence Act, 1872 is a procedural law. It governs the use of evidence in the judicial proceeding in a court of law. It covers the relevance, admissibility, burden of proof, mode of proof, weight and sufficiency of evidence, procedure for taking testimony, etc in a legal proceeding.
The act consists of three parts
Indian evidence act has three major parts.
The first one describes the relevancy and admissibility of evidence. The second part focuses mostly on the types of evidence. The third part deals with the burden of providing evidence.
Basic concepts & the Concepts of relevancy & admissibility
The Part I of the act - Sections 1 to 55 - describes the definition of some terms, and the concepts of relevancy and admissibility of evidence in a judicial proceeding.
Basic concepts relating to evidence
The act stipulates that evidence in a court must be given of facts in issue and relevant facts alone.
The term fact in issue is a fact about which any right is asserted or denied in a suit in the proceeding of a court, by the contesting parties. That means a fact in issue is a fact about which a dispute exists.
The term relevant fact refers to the connection of a fact with the fact in issue which is being disputed in the court. When one says one fact is relevant to some other fact, it means that the former fact is somehow connected to the latter.
Evidence is adduced in the form of either oral statement (deposition of a witness) or as a document (a sale deed). A third kind of evidence is the material objects such as a knife or gun or rod used as a tool in a criminal action.
The term document includes a range of things. It differs from a sale deed to a statement of an expert to some inscriptions on stone to an electronic text. It is a piece of recorded information. It expresses some meaning.
Oral evidence includes the vocal statements made by a witness or an expert during the trial before a court.
The term proved means the court believes in the existence of the fact. The term disproved means the court does not believe its existence. The term not proved means the existence of a fact is neither proved nor disproved. Whenever such a term is used one should understand its meaning in that way.
Therefore the term proving a fact means persuading a court to believe a fact in a dispute which is being contested in a suit or court proceeding.
Similarly, whenever the term may presume appears in a statute or any other legal document, it means that the court either may believe or may not believe it. The term shall presume, when it occurs, means the court definitely believes it.
Concept of relevancy in the Act
During a trial or proceeding in a court, no evidence is required on any fact which is not related to the fact in issue.
However, if a fact is an integral part of a transaction closely connected with a fact in issue, the court can consider it as relevant fact, even if it is not related to the fact in issue at all. That means the unrelated fact will become relevant in some cases.
Concepts of relevance & admissibility
The concept of relevance governs the admission and use of evidence. If the evidence does not relate directly or indirectly to the issue at hand, it should not be admitted as proof.
The term relevance\ in this context means that the evidence in question is closely connected or logically related to the matter at hand. Relevant evidence is the evidence that is logically connected to the fact that is being established.
The term relevance refers to the degree of connection between a fact that is given in evidence and the issue to be proved. A fact is relevant only when it is closely related to the fact in issue.
The term admissibility refers to the process whereby the court determines whether the law of evidence permits that relevant evidence, to be received by the court or not.
An irrelevant fact is normally not admissible in the court. However, in certain cases, evidence, which is not relevant, may still be admissible. The evidence act delineates a distinct line between relevant & irrelevant facts, and admissible & inadmissible facts.
All the facts which provide some sort of evidence to the circumstance (occasion), cause and effect of the fact in issue can be taken as relevant in a case.
Circumstantial evidence is the type of evidence which tends to prove a fact by proving the circumstances or events from which the fact basically evolved. The term refers to the surrounding facts.
If a motive or preparation is present in any fact relating to a fact in issue, that fact can be taken as relevant. Any fact such as a motive or preparation for a crime which is necessary to explain any fact in issue is relevant in a proceeding. Similarly, anything said or done as part of a conspiracy in reference to a common design is also a relevant fact.
On the other hand, any fact that remains inconsistent with a fact in issue is also a relevant fact even if it is irrelevant otherwise. An irrelevant fact will become a relevant one if it makes the existence or nonexistence of any fact in issue a reality. In deciding a compensatory claim for damages, any fact including the irrelevant one which is helpful in arriving at the damage, becomes relevant. When a right or custom is being contested in a case, the related things that created such a right or custom become relevant.
The facts relating to the state of bodily feeling - such as a state of mind like mental ill-health or animosity - are relevant ones. Similarly, in order to know whether something done is quite accidental or intentional, or done with a particular intention or knowledge, it must be examined whether it forms part of a natural series of closely connected or related events. If any act forms part of a natural transaction of events, one cannot attribute a particular intention in its occurrence. Likewise, the course of a business, such as an instance of sale or an act of mortgage, is relevant if a fact in issue forms part of such a natural or unnatural course in a business.
Concepts of admission & confession
The concept of admission is quite important in law of evidence. The term admission refers to a statement made by a party or his agent who has admitted some sort of liability in a matter in issue, in a court during its proceedings.
Admission is a voluntary acceptance of some liability. Oral admission in regard to a matter that is heard or seen is relevant. But in regard to the contents of a document including electronic document, oral admission has no relevance at all. That means oral admission regarding the contents of a document cannot be made admissible as evidence to the court. Therefore in order to prove the contents of a document, the document itself need to be produced as evidence.
Confession is yet another term in the law of evidence. An instance of confession made under any sort of coercion, threat or promise is not relevant. But when the threat or promise is removed, the confession then made is relevant.
Extra judicial confession made before a Police Officer or when the accused is in custody is not relevant in a judicial proceeding. A case of confession made by a person under a fair trial for some offence is applicable to all other accused persons involved in the case.
Admission itself is not considered a conclusive proof. But it may operate as estoppel.
Statement of a person who is dead is relevant. Likewise, evidence in one judicial proceeding is relevant to another judicial proceeding.
The entries naturally made in a book of account in the natural course of a business are relevant. The statements in legislative acts or notifications are relevant. The statement that contains in an authoritative book is relevant. Only the statements that are relevant to a fact in issue are relevant when they form part of a series of transactions.
Any previous judgment is relevant to a subsequent suit. Judgments on a matter of public importance are relevant but on probate, insolvency etc., they are not relevant.
However, when a judgment is not related to a fact in issue, it is not relevant to the case. And a collusive judgment is also not relevant if the collusion is proved by the other party.
Relevance of expert opinion
Expert opinion is relevant in a judicial proceeding. But irrelevant facts become relevant, if they are consistent with the expert opinion. Opinion on handwriting is relevant when the court has to find out whether any person has written or signed in a disputed document produced in a case.
Opinion of a person knowing the custom is relevant if the disputed issue is the existence or non-existence of a custom. Opinion of a person knowing the relation is relevant when such a relation is a fact in issue.
The ground of an opinion in an expert opinion is relevant in a proceeding. In civil cases, character is wholly irrelevant except when in deciding damages. In criminal cases, previous good character is relevant but previous bad character is not.
Whether a fact is relevant or not is more or less a question of fact to be decided by the judge based on his/her discretion. But whether it is admissible or not is a question of law, mostly dependent on the statute in force.
All relevant facts may not be admissible, but all admissible facts are relevant. Relevancy is based on logic, but admissibility relies on the laws in force then. A fact may be logically relevant to a particular case. But that fact must be legally admissible if it has to be admitted as evidence in a court. So the items of evidence that would come before the court must be both logically relevant and legally admissible.
On proving facts by oral & documentary evidence
The Part II of the Indian Evidence Act (Sections 56 to 100) deals with proving facts by oral and documentary methods in a judicial proceeding.
When a fact is proved
A fact, being contested in a case before a court, is considered to be proved only when the judge tends to believe its existence. If the judge disbelieves its existence, it remains disproved.
However, when the fact is either proved or disproved then it means that the fact is not proved at all. In other words, the term not proved means neither proved nor disproved.
Whose responsibility is to provide evidence?
The existence of a fact should be proved in a court by the party who wants the court to believe that it exists.
However such proving of facts is unnecessary when:
the fact is admitted, even in an implied manner, by the other party
the court can take judicial notice of the fact
there is some judicial presumption regarding the fact
Admitted facts need not be proved
Admitted facts need not be proved. The admission of facts is done by admitting it either in the written pleadings or in oral statements during the hearing, by the parties.
An admission is a statement (either in oral form or documentary form) made by any party to a proceeding. It refers to the admissibility of any fact in issue or a relevant fact in a case. Any admission is a substantive piece of evidence. But it is not a conclusive proof.
No proof needed for judicially noticeable facts
Any fact, which a court can take judicial notice of, need not be proved. Judicial notice is the cognizance the court itself can take on matters, which are well established or publicly known, without any particular proof. A thing, which is repeatedly recognized by the court and formed part of the law of the land, requires no specific proof.
Certain items which the court is bound to take judicial notice are listed in the act, under its Section 57, in an indicative manner. It is not an exhaustive list.
As per the Section 57, the laws or rules in force, the proceedings in the legislative bodies, names, functions & signs of public officers, the geographical distinction of territories, the specialized knowledge in history, art or science, the name & address of judicial functionaries, etc which can be taken notice of by the court itself, need not be proved by the parties. The court can use appropriate books or documents to take notice of them.
Manner of proving facts
Two methods of proving facts are by oral evidence and by documentary evidence. A third method is production of material objects such as knife, gun or iron rod used in a criminal action.
Oral evidence can be used to prove any fact, except the contents of a document. The contents of a document must be proved by producing the document itself.
The oral evidence adduced must be direct evidence from persons with firsthand knowledge of the fact. Hearsay evidence obtainable from persons with second hand knowledge must be excluded.
Direct oral evidence means the evidence that is provided by the person who has seen it, heard it or perceived it though the senses, in a judicial proceeding.
If any oral statement refers to the existence or condition of a material object the court may require the production of the object itself.
Documentary evidence is the type of evidence in which a matter is expressed on any substance in the form of letters, figures or marks which constitutes some inference or meaning.
The contents of a document may be proved either by primary evidence or secondary evidence during the court proceedings.
Admitting a document during a proceeding means admission of its contents but not the truth of its contents. The truth of the contents of a document needs to be established during the trial proceedings.
Primary evidence means the original document itself is produced before the court. When multiple copies of a document are brought out using a uniform printing process each copy of such a document is primary evidence in regard to the contents of each one. But a copy thus produced is not a primary evidence of the contents of the master copy of the document.
As far as possible, the contents of the document must be proved by primary evidence. But the act specifically permits proving of some other types of document by secondary evidence as well.
Secondary evidence is any derivative proof such as copies, extracts etc of a primary document. The Secondary evidence includes:
Certified copies of the document
Copies made from the original
Counter parts of documents
Oral accounts of contents of documents by some persons who have seen it
A certified copy is a copy of the original document signed and certified as correct by the official who has the custody of the original. The contents of a document cannot be proved by secondary evidence unless there is reason for receiving it. If a piece of secondary evidence is admitted in a proceeding with no objection in the trial court, then any objection regarding its admissibility cannot be raised by that party in the appellate court. However, irrelevance of a piece of evidence already admitted at the trial, can be raised at the appellate stage
If any original document itself is inadmissible due to deficiencies like non-registration or insufficiency of stamping, then its copy cannot be admitted as secondary evidence. Existence of relevant primary evidence is a pre-requisite for admitting any piece of secondary evidence in regard to it. In other words, any secondary evidence relating to inadmissible primary evidence is not admissible.
Secondary evidence cannot be admitted except on the ground mentioned in Section 65 of the act. The law does not make any distinction between the classes of secondary evidence in regard to validity.
Public and private documents
The documents are of two types - public documents and private documents.
A public document is a document generated by a public authority or public officer during the course of some public duties. It includes public records relating to private documents kept by any authority or body of the State.
A private document which is kept by a public officer is not a public document. But entries relating to private documents made in the records kept by the public office are public records.
Registration of a document does not make the registered document a public document. A registered sale deed is not a public document. Its execution, contents etc have to be proved in the manner a private document is proved.
Admission of any document amounts to admission of its contents, but not the truth of its contents. The truth needs to be proved separately.
Certified copies of documents
When a document is a public document and it can be inspected by a person then he is entitled to obtain a certified copy of it on paying a required fee.
When the law prescribes that the terms and conditions of a contract, grant or other disposition of property have to be in written form, then written document alone can be given in evidence in regard to such execution. When a set of oral transactions has been reduced to writing the set of transactions itself will become a piece of documentary evidence. In such a case, no oral evidence can be admitted to contradict such transcripts.
Law presumes that every certified copy of public document is a genuine document.
Attesting witness must give evidence
When a document, except a Will, is registered it is not necessary to call an attesting witness unless there is denial of execution by the person who had executed it. In the case of a registered Will, the attesting witnesses need to be called for giving evidence.
When there is an allegation that a document is signed or has been written by a particular person, the person’s sign or hand writing need to be proved.
If a document is to be attested as per law, such a document cannot be used as evidence unless one attesting witness has been called for. The endorsement made by a Sub-Registrar before a court that the executants of the document had admitted the execution of the document while registering it before him amounts to attestation. If a document is attested, then the attesting witness must be called for testimony as to the validity of the signature in it.
Clearing the ambiguities in documents
In general, it is not possible to prove the contents of a document by external oral testimony. But if the intention expressed in a document is basically clear but leaves some confusion due to lack of specificity or ambiguous use of language, external oral testimony is admissible. If the ambiguity is apparent, then the contents cannot be proved by oral testimony.
That means extrinsic oral evidence may be admitted to bring in clarity in a document which leaves some confusion due to equivocation - use of vague or ambiguous language. However when the language of a written instrument is perfectly plain, no construction is permissible to contradict the writing.
Burden of Providing Evidence
The part III of the evidence act - Section 101 to 167 - deals with burden of proof and witness examination.
Which contesting party in a judicial proceeding has the duty to provide evidence is determined on the basis of some judicial principles. They are laid down in Part III of the evidence act itself.
Who holds the burden of providing evidence?
First of all, the burden of providing evidence rests on the person who asserts anything in the court. It is not on the party who denies it. This burden remains constant and never shifts to the other party.
Then the burden of providing evidence in a suit or proceeding lies on the person who would fail if no evidence is given on both sides. This burden shifts from one side to another at every instance in the course of the proceedings.
Then the burden of providing evidence lies on the person who wants the court to believe something, unless law has prescribed something different.
In order to make some evidence admissible, it is quite necessary to prove beforehand that the person providing evidence is entitled to give that evidence.
The burden of proving an exceptional circumstance in an offence, such as unsoundness of mind of the accused or grave and sudden provocation, rests upon the accused.
Whenever any fact is within the knowledge of a person, the burden of proving the fact rests upon that person.
If a person is shown to be alive within 30 years, the burden of proving that he is not alive is on the person who affirms it.
On the other hand, if a person has not been heard of for seven years, by those who would naturally have heard of him, the burden of proving that he is alive is on the person who affirms that he is alive.
Judicial presumptions become prima facie proof
If some relationship like that of partners in a partnership, landlord and tenant in a tenancy relation, principal and agent in a contractual relation etc is in question, then there is a judicial presumption that such a relationship continues to exist, till the contrary is proved by the person who affirms it.
When a person is in possession of a property, the burden of proving that he is not the owner of it is on the person who affirms that the possessor is not its owner.
The good faith in a transaction, such as a sale, between parties has to be proved by the person who stands to the other in a position of active confidence in a bonafide transaction.
If a child is born within 280 days after the divorce of the spouses, it is a conclusive proof that it is a legitimate child. But this presumption will not hold good if it can be proved that the husband and wife had no access to each other in those days.
In the case of some offences like terrorists attack, abetment of suicide by a married woman, dowry death of a woman, and absence of consent in a rape case, coming under sections 111A, 113A, 113B & 114A of the Indian Evidence Act respectively, the burden of proving lies on the accused.
Estoppel not acceptable
Estoppel means barring a party to take a stand about a thing at one time and just its opposite at another time.
That means a party in a judicial proceeding shall not be allowed to say one thing at a time and the opposite of it at a later time. Therefore when a person makes others believe one thing in a proceeding, he cannot deny it at a later stage.
Different types of estoppels
When a matter is settled by consent in a competent court, the parties are precluded from re-agitating it afresh, by taking a new stand. This is called res judicata or estoppel by record.
Therefore a person who stated something in a deed cannot deny it later and assert something else. This is called estoppel by deed.
A person who claims as a tenant cannot later deny that the landlord had no title at the time of the tenant’s entry when a tenancy related licence is in question.
Similarly, the acceptor of a bill of exchange cannot say later that the drawer had no authority either to draw the bill or endorse it.
Competency of a witness
In general, any person is legally competent to give evidence. But in the case of a child or a lunatic person the court will conduct a precursor test to identify whether the witness has competency to give evidence. The preliminary enquiry is called voire dire test. In this test, the judge will put some general questions to the individual so as to test the witness’s competency.
Compelling a witness to provide evidence
Any person is competent to testify as a witness, unless he/she, being so young or quite old in age, or unsoundness of mind, suffers from problems like inability to understand the questions.
Any witness can be compelled by the court to answer any question put to him. However a witness cannot be compelled to answer some questions which are privileged. For example a husband and wife are generally competent witnesses. But they cannot be asked to disclose the communication in a matrimonial relation between them, which is privileged, except in any suit or proceeding between them. No communication of whatsoever nature made between them shall be compelled to be disclosed without consent of the concerned party in any other kind of suit or proceeding. This privilege exists even after divorce.
Similarly, a judge cannot be compelled to answer any question regarding anything which came to his knowledge as a judge, without an order of a superior court to which he is subordinate. But he can be questioned about something he witnessed while he was acting as a judge.
Ban on disclosing official records
No officer is allowed to give evidence regarding unpublished official records relating to any affairs of the State, without obtaining permission of the Head of the Department.
An officer shall not be compelled to disclose any communication made to him in official confidence, if he considers such disclosure would go against public interest.
A magistrate or officer shall not be compelled to answer the source of his information regarding the commission of any offence. Similarly, a revenue officer should not be asked to disclose the source of information regarding the offence against public revenue.
Professional communication between the lawyer and the client is insulated from disclosure. But any communication pertaining to any illegal action between them is not precluded from disclosure. Information on any crime committed by the legal counsel during his engagement as an advocate is not protected.
Examination of witnesses
The party on whom the burden of proof lies should begin examination of witnesses by calling his witnesses - this is called Examination-in-Chief.
Then, the opposite party should examine the witness - this is called Cross Examination.
Thereafter, the party who called him for Examination-in-Chief can re-examine the witness on answers given in Cross Examination.
In Examination-in-Chief, a witness may be asked questions relating to relevant facts and facts in issue. Leading questions are not usually allowed in Examination-in-Chief. Questions that are irrelevant can also be asked if they are useful in corroborating the testimony of the witness.
When the witness gives answer on any fact, he can be questioned as to any circumstance which occurred around such time or place of occurrence of the fact. This is permitted only when the court is of the opinion that such circumstances would help in corroborating the testimony of the witness to the fact in issue. However, a statement of witness made to a police officer shall not be used for such corroboration.
No leading question is allowed in Examination-in-Chief if the other party objects to it. But it can be asked when the court permits it. The court usually permits leading questions in matters of introductory nature or of already proved facts. But in re-examination, no leading question is allowed.
A party calling a witness can cross examine him when he turns hostile. A witness can be allowed to refresh his memory by looking at the records made by him at the time of the transaction in question. The other party should be shown the record if the other party demands.
Cross Examination is the most fruitful test to discover the truth. But relevant facts alone must be enquired into, in the process.
In cross examination, a witness can be asked questions regarding his previous statements in writing, by showing or without showing the record. The scope of cross examination is limited generally to relevant facts alone, but some other facts may also be asked to test his credibility.
Harassing the witness
The court can direct the witness not to answer any question asked by the counsel exclusively to harass him or injure his character. The court can forbid any question which is needlessly offensive, even if the question is a proper one.
However the credibility of any witness can be impeached by proving that the witness is bribed or his statement is inconsistent with the former.
The purpose of re-examination is to afford the party an opportunity to explain the inconsistencies made in the cross examination.
If any new matter is asked in re-examination, the adverse party has a right to cross examine him again on that particular point.
Judge’s power to ask questions
At any stage of the proceeding, the judge has the power to ask any question on relevant or irrelevant facts to the party about anything, in any form so as to obtain proof of any relevant fact.
He can also order the production of any document or thing. The parties can neither object nor cross examine the witness, on such questions. However, the judge cannot compel a party to answer a particular question or produce a particular document which he refuses to answer or produce, when it is a privileged one.
A trial judge is not a mute or blind spectator, nor is he a dynamic functionary. He asks questions so as to get evidence in a detached and dispassionate manner with the object of ascertaining truth of the disputed matter. It is an extraordinary power, but the judge should not usurp the power of a counsel.
Every trial is a voyage in search of truth. If prosecution fails to do its duty, the trial court should be vigilant enough to put such questions to discharge its duty.
No criminal action on witness
No criminal action can be taken on any witness for any answer he gave in a witness deposition, except for the offence of giving false evidence. Therefore, a witness cannot be excused from answering any relevant question, fearing incrimination for telling anything during witness examination.
A person, who is not a party to suit, cannot be compelled to produce any document that would incriminate him, unless he has agreed to produce it.
Improper admission & rejection of evidence
A court of appeal or revision should not disturb a decision of the lower court on the sole ground that there was improper admission or rejection of proper evidence at the trial stage, if there are sufficient other independent materials to prove the decision in the judgment.
That means, improper admission or rejection of evidence alone is not a sufficient ground to allow a new trial or reversal of any judgment by the appeal court.
The law of evidence plays a great role in administration of justice. For that it is essential to provide reliable, relevant and admissible evidence to establish the substantive rights of the contesting parties in a court of law. The law makes the job of providing and proving evidence foolproof.