Post default

Law of Evidence in India

By Srija Choudhury July 29, 2016

Evidence is the material on the basis of which the Court can decide the case. Such evidence must be produced before the Court so that it can establish or disprove the point of contention between the parties. The Law of evidence is a very crucial piece of legislation which helps and guides the court in arriving at a conclusion with regard to the existence or non-existence of facts. The rules of evidence are necessary to bring out the truth in every case and the Court should stick to such rules. Basically, the rules of evidence are required to draw a line between relevant and irrelevant facts. There will be great uncertainty with regard to relevant matters, if the court started depending upon the discretion of the Judge in such matters in every case.

In contrast to the substantive laws, which deal with rights and liabilities, law of evidence is a procedural law which provides rules with regard to introduction of evidence to support the case and covers the fundamental principles of proof of facts, its type, quality and quantum etc in a legal proceeding. The Law of evidence is said to be the law of the forum or the lex fori.

The concept of burden of proof is also essential in the law of evidence. The concept is differently applied in civil and criminal cases. Burden of proof broadly means that whoever wants the Court to give a judgement as to any right or liability which is dependent on certain facts must prove existence of such facts. When a person is bound to prove certain existence of facts, it is said that “the burden of proof lies on that person”.

For deciding a civil case, preponderance of probability is sufficient. Preponderance of probability means existence of a greater weight of evidence which is valuable to determine the offence and sufficient enough to incline a fair and impartial mind to one side of the issue. The Judge generally takes into consideration that evidence which is persuasive and outweighs the other side. On the other hand in a criminal case, the burden of proof is on the prosecution which should be proven beyond reasonable doubt. The highest standard of proof which must be met in a trial court is that of beyond reasonable doubt. This means that the judge has no doubt of the defendant’s guilt.

Section 3 of The Indian Evidence Act, 1872 defines oral evidence and documentary evidence. The Act says that all those documents which are presented in the court for inspection are documentary evidence.

 Section 60 of the Act provides for the recording of oral evidence. The most fundamental principle of oral evidence is that it must be direct. All facts except the contents of documents or electronic records may be proved by oral evidence.

Evidence can also be classified into primary and secondary evidence. Primary evidence means that the document itself is produced for inspection. It is the best form of evidence. The evidence which is produced in the absence of primary evidence is known as secondary evidence. Secondary evidence is not admissible unless the primary evidence is proved to be lost or destroyed. Existence of facts needs to be proved by primary or secondary evidence, if there is no such evidence then the document cannot be said to be proved.

Primary evidence speaks for itself and it does not need corroboration. In case of secondary evidence, supplementary evidence needs to be provided so as to strengthen and confirm existence of facts. The Supreme Court has given a vivid description of corroborative evidence in the case of Rameshwar v/s State of Rajasthan (AIR 1952 SC 54). Corroborative evidence refers to an additional evidence from an independent source  which connects the accused with the crime and confirms/substantiates the complainant’s testimony. The corroboration need not be direct evidence.

Direct evidence of a fact means which can be perceived by the senses and it is always primary in nature. It is the strongest form of evidence. On the other hand, hearsay evidence is no evidence.

Hearsay evidence is that evidence which is based on information given by a third person. Hearsay evidence is inadmissible in Court because information given by a third person cannot be trusted upon. In the case of Saktar Singh v/s State of Haryana (AIR 2004 SC 2570), The Supreme Court held that hearsay evidence means the statement of a witness not based on his personal knowledge but on what he heard from others and such evidence is not admissible.

However, there are few exceptionional circumstances under which hearsay evidence is admissible. Statement of a person may be proved by a witness if the fact stated by such person surrounds the relevant facts. This is called doctrine of res-gestae (section 6). An admission of liability or a confession of guilt which is outside the Court can be proved by the testimony of the person to whom such confession was made. Statement in public documents, such as official books and registers, Acts of Parliament are not needed to be proved by the draftsman of such document. Evidence given by a witness in proceeding can be used in a subsequent proceeding between the same parties, provided that, the witness has died or is unavailable for some other reason. Hearsay evidence is also admissible in case of dying declaration. Statement of a dead person becomes relevant when it relates to his cause of death. Expert evidence of a third person is required when the Court has to form an opinion about some foreign law, science, art, and identification of handwriting or hand impression. An expert must have special training and experience on the subject matter upon which his opinion is asked for.

Evidence needs to be proved before the court admits such documents. Once the evidence is admitted, it cannot be further challenged. The general notion is that, any dispute regarding the admissibility of any document should be made by the opposite party at the trial level only. In contrast, there are various landmark judgments where admissibility of evidence has been challenged at an appellate level. In the case of R.V.E Venkatachala Gounder v/s Arulmigu Viswesaraswami and V.P. Temple and Anr(2003 8 SCC 752), the admissibility of document was challenged at the appellate level. As per the case, the objection as to admissibility of evidence can be classified in two ways - (i) an objection that, the document which is to be proved was inadmissible; and (ii) an objection to the insufficient mode of proof of that document. In the first case, even if a document has been marked as 'an exhibit', an objection as to its admissibility can be raised even at a later stage or even in appeal or revision. In the second case, when the objection is regarding mode of proof of the document, it should be raised before the evidence is admitted. Once a document is admitted, objection to its mode of proof can’t be raised at a subsequent stage. It is fair play rule.

The Indian evidence Act, 1872 is dynamic in nature and has evolved with time.  Two of the recent developments in the Act came with the Information Technology Act, 2000 and Criminal Law (Amendment) Act, 2013.

 The Information Technology Act, 2000 broadened the definition of “evidence” by substituting the words "all documents produced for the inspection of the Court", with “all document including electronic records produced for the inspection of the Court". After section 65, sections 65A & 65B were inserted. Section 65A has special provisions as to evidence relating to electronic records such as telephone conversation, CCTV footage, computer output etc. and section 65B deals with the admissibility of such electronic records. The Information Technology Act basically enhanced the Evidence Act by elaborating the scope of evidence (electronic records, digital signature etc.)

The most recent development in Evidence Act was in 2013 after the infamous Delhi rape case. Section 53A was inserted which says that evidence of character of the victim or any person with prior sexual experience is not relevant on the issue of consent or the quality of consent . Quality of consent means likelihood or probability of the victim to give consent. It is a scale of character where a woman is judged based on her sexual experience. If the woman is a virgin then it is very unlikely of her to give consent and as it is often generalized, women with prior sexual experience with different partners are more likely to give consent to any subsequent sexual act. Section 114A when the sexual intercourse of the victim is proved and the question is whether the victim consented or not, if she states in her statement that she did not consent, the court shall presume that she did not consent.  The Amendment to section 146 made it clear that it is not permissible to introduce evidence or put questions in the cross examination of the victim as to her immoral character or her prior sexual experience for proving consent or quality of consent.

The procedural laws are as important as the substantive laws. Sometimes simple procedures are neglected which cause problem in the later stages of the trial or also in the appellate stage. Small loopholes can change the entire scenario of the case. In conclusion, procedural law is required for carving the path for proper functioning of the substantive laws. The law of evidence establishes a working structure for the courts from the grass root level.  In some cases it is just a set of technical hurdles to buy time for the parties and delay justice but these laws are framed for the sole purpose of filtering out the truth and serving justice to the people of the country.


TAG: Law of Evidence , Evidence , Rameshwar v/s State of Rajasthan , Section 3 of The Indian Evidence Act , 1872 , Indian Evidence Act , Saktar Singh v/s State of Haryana , R.V.E Venkatachala Gounder v/s Arulmigu Viswesaraswami and V.P. Temple and Anr

Default avatar
By Srija Choudhury
Licensed for 0 years

Comments 0

Please Login or Register to Submit Comment

You may also want to read

Post default

Prevention of Sexual Harassment at Workplace ,   Sexual Harassment at Workplace ,   Sexual Harassment ,   Vishaka and others v. State of Rajasthan ,   Sexual Harassment of Women at Workplace (Prevention ,   Indian Penal Code ,   IPC ,   Internal Complaints Committee ,   Interim Reliefs ,   Prohibition and Redressal) Act ,   2013 ,   1860 ,   Obligation of Employers ,   Penalties

By Shinjini Kharbanda,

Associate, Phoenix Legal, New Delhi

The recent sexual harassment case of Tarun Tejpal (editor of investigative journalism magazine, Tehelka) has brought to the fore the inept redressal of sexual harassment complaints within the Indian companies. The Supreme Court of...

By Shinjini Kharbanda July 27, 2016
Post default

Protection of Juveniles from Sexual Offences ,   Protection of Children from Sexual Offences Act ,   2012 ,   POCSO ,   child sexual abuse ,   Juvenile Justice (Care and Protection of Children) Act ,   Section 23

By Nilabha Sharma Advocate, New Delhi

Movies whether good or bad always leave an impression on the viewer. The scene from the film “Highway” which portrayed the actress’s outburst about being sexually abused as a child by her uncle kept haunting me for days. I tried imagining the trauma and the...

By Nilabha Sharma July 27, 2016
Post default

Crimes Against Women ,   The Protection of Women from Domestic Violence Bill ,   Protection of Women from Domestic Violence Act ,   Dowry Prohibition Act ,   Criminal Laws Amendment Act ,   2000 ,   2005 ,   1961 ,   1983 ,   IPC

A 2nd year student of W.B.N.U.J.S, Kolkata

Reported Crimes Against Women”[1] – Year 1999-2000: 1,55,553[2]; Year 2005: 1,41,373[3]; Year 2010: 2,13,585[4]; Year 2013: 2,95,930.[5]On perusing the above data it can be seen that, crimes which are committed within the four walls of a woman’s house...

By Pragya Sharma July 29, 2016
Do you have a Will?
Why not create one now for free in under 10 minutes!

Get started now