LAW OF EVIDENCE LECTURE NOTES

INTRODUCTION
Evidence refers to anything that is necessary to prove a certain fact. Thus, Evidence is a means of proof. Facts have to be proved
before the relevant laws and its provisions can be applied. It is evidence that leads to authentication of facts and in the process,
helps in rationalizing an opinion of the judicial authorities. Further, the law of evidence helps prevent long drawn inquiries and
prevents admission of excess evidence than needed.

The functions of Court of Justice are two-fold:-

i) To ascertain the existence or non-existence of certain facts, and

ii) To apply the substantive law to the ascertained facts and to declare the rights and liabilities of the parties.

For this the court has to collect, peruse, analyse and sift the evidential material brought before it. The means whereby the court
informs itself of the existence of these facts is called EVIDENCE. In other words, the object of every judicial investigation is the
enforcement of a right or liability that depends on certain facts. The law of evidence can be called the system of rules whereby
the questions of fact in a particular case can be ascertained. It is basically a procedural law but it has shades of substantive law.
For example, the law of estoppel can defeat a man’s right. Law of Evidence is one of the fundamental subjects of law and
therefore we must study it in detail and depth. The term ‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ that
mean ‘to show clearly, to discover, to ascertain or to prove.’

TYPES OF EVIDENCE
1. Direct

2. Circumstantial

3.Hearsay

4. Documentary

5. Oral

6. Scientific

7. Real

8. Digital

Law related to evidence and proof is nothing but rules that must be observed in particular situations before certain forums. If the
other party in a legal proceeding admits guilt, all is well. The other party can also deny the allegations in the plaint and the
existence of certain facts may be called into question. Then the parties or their witnesses have to give evidence in the court of
law so that the court may decide whether the facts exist or not. Interpretation of agreed facts is a rarity and in most cases the
existence or non-existence of facts as to be shown and therefore, the law of evidence plays a very important role.

Illustration: X has entered into a contract with Y to sell his house for an amount of INR 10,000. In case of a breach of contract by
either X or Y, a Court of Law cannot decide the rights and liabilities unless the existence of such a contract is proved. In Indian
Evidence Act, we will study who is a competent witness, on whom does the burden of proof lie and other things.

INTRODUCTION TO IEA
The Indian Evidence Act, 1872 is largely based on the English law of Evidence. The Act does not claim to be exhaustive. Courts
may look at the relevant English Common Law for interpretation as long as it is not inconsistent with the Act. The Act
consolidates, defines and amends the laws of evidence. It is a special law and hence, will not be affected by any other enactment
containing provisions on matter of evidence unless and until it is expressly stated in such enactment or it has been repealed or
annulled by another statute. Parties cannot contract to exclude the provisions of the Act. Courts cannot exclude relevant
evidence made relevant under the Act. Similarly, evidence excluded by the Act will be inadmissible even if essential to ascertain
the truth.

THE LAW OF EVIDENCE IS THE LEX FORI

Law of evidence is part of the law of procedure. That why it is called the lex fori or the law of the court or forum. It means that
Indian courts know and apply only the Indian law of evidence. Thus, the competency of a witness, whether a fact is proved or
not is determined by the law of the country where the question arose, where the remedy is sought to be enforced and where
the court sits to enforce it. For example, if a legal proceeding is going on in Sri Lanka and evidence is taken in India for the said
proceeding whether by commission or by assistance of courts in India, the law which will be applied during such recording of
evidence will Sri Lankan Law of Evidence.

THE LAW OF EVIDENCE IS THE SAME IN CIVIL AND CRIMINAL PROCEEDINGS

A civil case of will and murder will have the same law of evidence. For example, the date of death has to be clarified or confirmed
for the will to come into existence and a murder date has to be set for proceeding further with the criminal investigations too.
There are, however, certain sections that apply exclusively to civil matters and others that apply exclusively to criminal cases. In
civil cases, mere preponderance of evidence may be enough but in criminal cases the prosecution must prove its case beyond
reasonable doubt and leave the other alternatives presented very unlikely and highly suspect.

BASIC PRINCIPLES OF EVIDENCE

The Act deals with Relevancy of Facts, Mode of Proof, and Production and Effect of Evidence.

The following principles are called the basic principles.

The exact application has been set out very clearly in the Act: Evidence must be confined to the matters in issue. Hearsay
evidence may not be admitted. The best evidence must be given in all cases. All facts having rational probative value are
admissible in evidence, unless excluded by a positive rule of paramount importance.

HISTORY OF THE LAW OF EVIDENCE

The law of evidence in India traces back its root to Vedic period. It was recognized by Dharma Shastra in order to ascertain the
truth. It was also an important and integral part of Muslim rule of law in order to ascertain the truth of facts pertaining to judicial
proceedings. Subsequently, in the modern times, it all superseded by the modern English evidence law what we no call as Indian
Evidence Act, 1872. But it was a long-drawn process over a span of several centuries.

1. Ancient Period
2. Medieval Period- Muslim Rule
By the end of the Mameluke dynasty, the first Muslim dynasty in India, Muslim rule was well established in India. The
administration of justice was also largely administered by the Muslim rulers. The Islamic thinking and state were influenced by
Iranian & Byzantine philosophies but Islamic principles remained integral throughout in the administration of justice. Men of
affairs laid out a great stress on justice and equity in conformity within the limits of Islam. Contrary to Hindu laws, king was the
supreme authority of rule in Muslim India.

The Judicial setting and the features of the evidence of Mughal period are as follows:

• Representatives, modern day wakils, were allowed to represent and argue on behalf of clients and they were paid by
the state and could be promoted as Kazis.

• There was bifurcation in civil and criminal proceedings. In civil cases, the plaintiff had to file a claim and if defendant
denies then plaintiff had to adduce evidence in substantiating his claim and defendant had to adduce evidence in rebuttal of
those claims. Then the kazi had to decide the matter based on the proceedings in such a manner. In criminal matters, the Kazi
would summon any of the accused-defendant and hear the complainant and witnesses. Then the judgment was pronounced in
open court. [5]There was also an element of extra-judicial inquiry as rightly inherent in the evidence of Mahmud of Ghazni that
he made such an attempt upon a complaint of a subject.[6]

• According to Hanafi law, which was prevalent in Muslim India, evidence is; (a) Tawatur or fully corroborating (b) Ehad or
testimony of one., (c) Iqrar which means acceptance or confession.

• Trial by ordeal was not known in Islamic law.

• Oral evidence was to be direct.

• Hearsay evidence was also preferred but under strict scrutiny and conditions. e.g.- 4 witnesses required in order to
prove adultery in Muslim law.

• Evidence produced in a court was to be in support of one's cause, so relevancy can be inferred.

• There was not any hard-fast rule regarding putting the onus of Burden of Proof and the Kazi had the complete authority
to put it.

Win wood Reade puts:

Whatever laws he made respecting women and slaves were made with the view of improving their condition. Instead of repining
that Mohammad (PBUH) did no more, we have reason to be astonished that he did so much. His career is the best example that
can be given of the influence of the individual in human history[7]

3. British Period (East India Co. & Crown Rule)

The East India Co. came in India in the year 1601 after which it got trading rights in Surat by the Emperor Jahangir then in Bengal
by Emperor Shah Jahan. They had trading rights and a little number of administrative powers which subsequently, after the
decisive Battle of Buxar in 1764, significantly grew in all realms of political administration of its provinces.

The Muslim penal law was prevalent in Bihar, Bengal and Orissa and after Britishers came they didn't alter it over 100 yrs and
never they touched upon Personal Law ever much. But gradually after gaining much power and sovereignty they took upon
themselves the task of judicial administration of India and superseding the existing Muslim law, importing the modern English
laws through a cohort of enactments.

Let's look up briefly about the developments and culmination of what we today know as Indian Evidence Act, 1872:

• Many of the principles of Muslim law were discarded by Western thoughts long ago. Warren Hasting was one of the
main critics of Muslim law who termed it as 'barbarous construction

• In 1723, Royal courts were established in the three presidency towns but Indian subjects were not subjected to their
jurisdiction.

• The act of Regulation, 1773 made a substantial change in the judicial system of India by establishing courts outside
Bengal and establishing Supreme Court of Judicature in Calcutta.

• After that there was a dual system of justice in presidencies and mofussil through the acts of 1781, 1801 and 1823

• Now it was felt necessary to assimilate the procedural laws first than the substantive laws of this dual system.

• First Law Commission Report, under Sir Macaulay, came in 1833 with several enactments. In 1835, first enactment
regarding law of evidence was part as Act 10 of 1835 of Governor-General-in-council which was applied in all courts; provincial
and mofussil.

• Act 19 of 1837, Act 5 of 1840, Act 7 of 1844, Act 15 of 1852, Act 19 of 1853, Act 10 of 1855, Act 8 of 1859, Act 25 of
1861, Act 15 of 1869 were among some of the important Acts pertaining to evidence in British India prior to the enactments of
Indian Evidence Act, 1872.[8]

• The English judges in India were following English law on matters that were not mentioned in the Acts in place of Islamic
Law.

• Zamindar of Karvetinugar v. Venkatadri[9], Narappa v. Gupayya[10], Kazi Gulam Ali v. H.H. Aga Khan[11] were some of
the leading cases pertaining to the development of Evidence Law in India prior to the enactment of Indian Evidence Act, 1872.
• The Third Law Commission of India assigned Sir Henry Maine with task to draft the Indian Evidence Act and it was
rejected after being introduced by Sir Henry owing to the fact that it was not suitable for India.

4. Indian Evidence Act, 1872

Now the task of drafting a suitable code for Evidence Law came upon the shoulders of Sir James Fitz James Stephens, which he
completed and culminated into what we know today as Indian Evidence Act, 1872. In 1868, a commission was setup to frame a
draft code and 39 sections were included in the code.

The code was termed as irrelevant to India and was dropped out. In the year of 1870, a new bill containing 163 sections in a form
different for the present Evidence Act of 1872 was prepared by James Stephen which he recasted and ultimately Indian Evidence
Act, 1872 was passed. After the partition, the act applied to both the nation, India and Pakistan except the territory of Jammu &
Kashmir.

It has 11 Chapters and 167 sections and came into force on 1st September 1872and applies to all over India except the state of
Jammu & Kashmir.

Evidence, under the said act has been classified into different categories such as:

• Oral Evidence

• Documentary Evidence

• Primary Evidence

• Secondary Evidence

• Real Evidence

• Hearsay Evidence

• Direct Evidence

• Circumstantial Evidence

• Judicial and Non-Judicial Evidence

• Prima Facie Evidence

The Law of Evidence in India has been created with a long-drawn process of over hundreds of years. Though it was existent since
the inception of Early Vedic civilizations and also in the middle age of Indian history, the Muslim rule, but it was drafted as a
complete code of Evidence Law in the British period in the year 1872 by Sir James Flitzjames. Indian Evidence Act is little or more
an attempt to reduce the English law of evidence which was necessary for the peculiar circumstances of India.[12]According to
Sir James, the Law of evidence is composed of two elements:

1. An enormous number of cases which have been decided over a course of 100-150 years.

2. Acts & Regulations of the parliament which have been passed over past thirty to forty years before the enactment of
Indian Evidence Act, 1872.[13]

The Evidence law of Hindu law was much more elaborate and Evidence law under Muslim rule or law was much more concrete
and freer from superstitions and discriminatory injunctions. The Evidence law under the British period was consisted of
progressive regulations, influenced by English system and sometimes was far more progressive from its inspiration; English laws.

Indian Evidence Act – Amendments

Several sections of the Indian Evidence Act have been amended over the years. One of the significant amendments was the
2013 Act, which amended Section 146. After this amendment to the Indian Evidence Act of 1872, a rape survivor cannot be
asked questions about her character or prior sexual experience to prove consent. Here are more details about the 2013 Criminal
(Amendment) Act:

• Section 53A of the Indian Evidence Act restricts courts from considering on evidence based on the victim’s character.
Their prior sexual experience with any person is also not a fairground to question their consent in sexual assault cases.
 • Section 146 was amended through the 2013 amendment to ensure that no questions will be asked of rape survivors
about their character or sexual experience to prove their consent.
• The 2013 amendment to the Indian Evidence Act also introduced a minimum sentence of 7 years imprisonment in cases
of rape.

List of Amendments to Indian Evidence Act, 1872

Here, we have listed some latest amendments to the Indian Evidence Act 1872:

• The Criminal Law (Amendment) Act, 1983.

• The Dowry Prohibition (Amendment) Act, 1986.
• The Information Technology Act, 2000.
• The Indian Evidence (Amendment) Act, 2002.
• The Criminal Law (Amendment) Act, 2013.
• The Criminal Law (Amendment) Act, 2018.

Cases that led to Amendments to the Indian Evidence Act

• Aparna Bhat and Ors. Vs State of Madhya Pradesh case – During this case, the Supreme Court warned against
typecasting rape survivors. The SC asked courts not to question a woman’s testament on the grounds of her being
sexually active.
• Tukaram vs. Maharashtra, 1979 – Section 114-A of the Indian Evidence Act was introduced after this verdict.
The Supreme Court released two policemen accused of raping a 14-year-old Adivasi girl at a police station.
• In 2013, the JS Verma Committee recommended that judging a woman based on her past relationship with the accused
should be considered inapt in deciding whether she consented or not. This led to another amendment to the Indian
Evidence Act.

5. The Evolution of Bharatiya Sakshya Adhiniyam, 2023 from Indian Evidence Act 1872
The Bharatiya Sakshya Adhiniyam, 2023 (BSA) is a significant evolution of the Indian Evidence Act, 1872 (IEA). While the BSA
retains most of the core principles of the IEA, it introduces several key changes to reflect the changing landscape of evidence in
the digital age.

Key Changes in the Bharatiya Sakshya Adhiniyam, 2023:

1. Admissibility of Electronic Evidence:

• The BSA explicitly recognizes electronic records as primary evidence, removing the need for them to be first established
as secondary evidence.
• This aligns with the growing reliance on digital evidence in legal proceedings.

2. Expanded Scope of Dying Declarations:

• The BSA expands the admissibility of dying declarations to include statements made through electronic means, such as
video recordings or emails.
• This ensures that crucial evidence is not lost due to limitations of traditional methods of recording dying declarations.

3. Protection of Witnesses:

• The BSA introduces enhanced measures for the protection of witnesses, including provisions for in-camera
examinations and the use of pseudonyms.
• This aims to encourage witnesses to come forward without fear of intimidation or reprisal.
4. Forensic Evidence:

• The BSA strengthens the admissibility of forensic evidence, including DNA profiling and other scientific techniques.
• This reflects the increasing importance of such evidence in criminal investigations.

5. Business Records:

• The BSA streamlines the process of admitting business records as evidence, reducing the burden of proof on
businesses.
• This aims to facilitate the efficient resolution of commercial disputes.

Overall, the Bharatiya Sakshya Adhiniyam, 2023 represents a modernization of India's evidence law, adapting it to the
realities of the 21st century. The BSA's emphasis on electronic evidence, witness protection, and scientific evidence aligns
with international best practices and is expected to contribute to fairer and more efficient legal proceedings.

It is important to note that the Bharatiya Sakshya Adhiniyam, 2023 is still a relatively new law, and its implementation and
interpretation are evolving. As courts continue to apply the BSA, we can expect further refinements and clarifications in the
years to come.

BREAKDOWN OF THE SECTIONS OF BSA

Section 3 of BSA – Interpretation-clause.

In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the
context:--

"Court."-- "Court" includes all Judges and Magistrates and all persons, except arbitrators, legally authorized to take evidence.
1 2

"Fact."-- "Fact" means and includes-- (1) anything, 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.
(e) That a man has a certain reputation, is a fact.

"Relevant".-- One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to
in the provisions of this Act relating to the relevancy of facts.

"Facts in issue."--The expression facts in issue means and includes--

any fact 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.

Explanation.-- Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records
3

an issue of fact, the fact to be asserted or denied in the answer to such issue is a fact in issue.
Illustrations
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 grave and sudden provocation from B; That A, at the time of doing the act which caused B's death,
was, by reason of unsoundness of mind, incapable of knowing its nature.

"Document."-- "Document" means any matter expressed or described upon any substance by means of letters, figures or marks,
4

or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

Illustrations
A writing is a document; Words printed lithographed or photographed are documents; map or plan is a document;
5 5

An inscription on a metal plate or stone is a document; A caricature is a document.

"Evidence."-- "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
6

documentary evidence.

"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.

7
["India".-- "India" means the territory of India excluding the State of Jammu and Kashmir.]
8
[the expressions "Certifying Authority", "[electronic signature]", [(Electronic Signature Certificate,] "electronic form",
9 10

"electronic records", "information", "secure electronic record", "secure digital signature" and "subscriber" shall have the
meanings respectively assigned to them in the Information Technology Act, 2000 (21 of 2000).]

Section 4 of BSA – res gestae

The concept of res gestae is covered under Section 4 of the Bharatiya Sakshya Adhiniyam, 2023. This section deals
with the admissibility of statements made during the course of a transaction or event.

Key Points of Section 4:

• Statements made by a person as part of a transaction or event can be admitted as evidence even if the
person who made the statement cannot be called as a witness.
• The statements must be spontaneous and unreflective, meaning they were made without time for
fabrication or concoction.
• The statements must be relevant to the case and made in the presence of the events being described.

Purpose of Section 4:
The purpose of Section 4 is to allow for the admission of reliable and trustworthy evidence that may not be available
through other means. Statements made in the heat of the moment are often considered to be more truthful than
statements that are made after reflection or under the influence of pressure.

Examples of Res Gestae Statements:

• Statements made by a victim of a crime immediately after the crime has been committed
• Statements made by a bystander to a crime scene
• Statements made by a person who is experiencing a sudden and unexpected event, such as a car accident or
a natural disaster

Importance of Res Gestae in Indian Law:

Res gestae is an important concept in Indian law, and it has been applied in numerous court cases. The courts have
recognized that res gestae statements can be valuable evidence in helping to determine the truth of a matter.

Section 5 of BSA- Relevancy of Facts

This section deals with the concept of relevant facts in legal proceedings. It states that facts which are:

• Cause, occasion, or effect of the facts in issue (the main disputed facts of the case)
• Relevant to the facts in issue themselves
• Part of the surrounding circumstances in which the events happened
• Provide an opportunity for the events to occur

Are considered relevant facts in the case.

In simpler terms, Section 5 helps determine which evidence is admissible in court. It allows the presentation of facts
that are connected to the main points of the case, helping the court understand the complete picture.

Section 6 of BSA- Motive, Preparation and Previous or Subsequent Conduct in criminal cases.

It essentially states that certain facts can be considered relevant evidence in a court case, even if they don't directly
prove the crime itself. These facts can be:

• Motive: Anything that shows why someone might have committed the crime.
• Preparation: Actions taken by the accused beforehand that suggest they were planning the crime.
• Previous Conduct: Past actions of the accused that might be relevant to the current case.
• Subsequent Conduct: Actions taken by the accused after the alleged crime that could be seen as attempts to
cover it up, like destroying evidence or influencing witnesses.

For instance, if someone is accused of theft, the fact that they were recently struggling financially could be
considered a motive. Similarly, if they were seen casing the store beforehand, that could be seen as preparation.

This section is important because it allows prosecutors to build a stronger case by presenting a more complete
picture of the circumstances surrounding the crime. It's important to note that evidence of motive or opportunity
alone is not enough to convict someone, but it can be a helpful piece of the puzzle.

Section 7 of BSA- facts relevant to explain or introduce other facts in a legal case.

In simpler terms, it allows the court to consider evidence that might not directly address the main issue, but helps
explain or provide context for something that does.
Here's a breakdown of the key points:

• Explanatory Facts: This section allows the court to consider facts that are necessary to understand or
introduce a fact that is directly relevant to the case.
• Illustrations: The BSA provides some examples to illustrate this principle. For instance:
o In a case involving a will, the financial situation of the person who wrote the will (and their family) at
the time it was written can be relevant to understanding their intentions.
o If someone is arguing they left a job because of a better offer, the details of that offer (from another
employer) might be relevant to show the urgency or suddenness of their decision.
• Limits: The explanatory facts must be necessary to understand the main fact. They can't be entirely
tangential to the case.

In essence, Section 7 helps ensure the court has a complete picture of the situation by allowing them to consider
relevant background details.

Section 8 of BSA – Conspiracy - Things said or done by conspirator in reference to common design.
Where there is reasonable ground to believe that two or more persons have conspired together to commit an
offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their
common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as
against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such person was a party to it.

Illustration: -
Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the State.
The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Kolkata for a like
object, D persuaded persons to join the conspiracy in Mumbai, E published writings advocating the object in view at
Agra, and F transmitted from Delhi to G at Singapore the money which C had collected at Kolkata, and the contents
of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the
conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the
persons by whom they were done were strangers to him, and although they may have taken place before he joined
the conspiracy or after he left it.