Indian Evidence Act.pdf

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
Semester: Fifth Semester
Name of the Subject:
Indian Evidence Act 1872
Subject Code:-LLB303
Unit:- 1
Unit:- 1
Meaning and Kind of
evidence

Meaning of evidence
‘Evidence’ is derived from the Latin term “Evidere”
which means – “to show clearly, to make plainly
certain, to ascertain, to prove” Taylor says –
(functional description of court process) “The
word ‘evidence’ includes all legal means,
exclusive of mere arguments, which tend to prove
or disprove any matter of fact, the truth of which
is submitted to judicial investigation.”

• Classical exposition of Bentham – “Any matter of
fact, the effect or tendency of which is to produce
in the mind a persuasion, affirmative or
disaffirmative of the existence of some other matter
of fact.” (comprehends both physical and
psychological facts)
• Evidence may bear two meanings or refer to – i)
MEANS – that tend to create a belief in the mind of
judge; and ii) FINAL BELIEF – actually created in
his mind, known as PROOF. PROOF IS THE END
AND EVIDENCE IS THE MEANS TO PROOF.
In the Indian Evidence Act,1872, the word
‘Evidence’ is used in the sense of “Means”.

Statuary Interpretation
• Sec-3 of the Indian Evidence Act, 1872 reads: 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 facts under
inquiry – such statements are calledORAL EVIDENCE.
(2) All documents produced for the inspection of the court –
called DOCUMENTARY EVIDENCE. This interpretation is
not exhaustive. It did not cover ‘Material Objects’ like, photos,
weapon used in murder, bloodstained clothes etc. which are
admitted in practice.

• Court need not concern itself with the method
by which such evidence is obtained. (Pushpa
Devi M. Jatia vs. M.L.Wadhwan)
• Tape recorded conversation is held as
documentary evidence. (Rama Reddy vs.
V.V.Giri)
• Dock tracking evidence is held to be scientific
evidence. (Abdul vs. State)

Object of Law of Evidence
• Ascertaining controverted questions of fact in judicial
proceedings. Evidence is to a judicial investigation what
Logic is to reasoning.
• To prevent laxity in the admissibility of evidence.
CARDINAL PRINCIPLES OF LAW OF EVIDENCE: i)
Evidence must be confined to the matter in issue. ii)
Hearsay evidence must not be admitted. iii) Best evidence
must be given in all cases. iv) Facts judicially noticeable
need not be proved.(S-56) v) Facts admitted need not be
proved. (S-58)

Classification of Evidence
Evidence may be divided into –
i. Direct Evidence and
ii.Circumstantial Evidence.
iii. Oral Evidence (S-60)
iv. Documentary Evidence. (Ss-61 to 65)
v.Primary Evidence (Ss-62/64)
vi.Secondary Evidence. (Ss-63/65

Classification of Evidence Act
1872
 The Indian Evidence Act, 1872 is divided into 3 parts, 11
chapters and comprises of 167 sections.
 Part-I answers the question ‘what facts may or may not be
proved?’ (Ch.I & II – Ss-1 to 55)
 Part-II deals with ‘what sort of evidence is to be given of
these facts?’ (Ch.III – VI Ss-56 to100)
 Part-III covers ‘by whom and in what manner the facts are to
be proved?’ (Ch-VII to XI; Ss-101 to 167)
 Sec-5 to 55 deal with RELEVANCY and
 Sec-56 to 167 deal with the ADMISSIBILITY.

Extent and Application of Indian
Evidence Act
• Sec-1 The Indian Evidence Act,1872 came into force on 1st. September, 1872.
• It applies to the whole of India except J & K.
• It applies to all JUDICIAL PROCEEDINGS in or before a court, including court
martials under the Army Act,1950, The Navy Act, 1957 and the Air Force Act,
1950. Not applicable to –
• i) proceedings under The Army Act, The Naval Discipline Act, 1934 and the Air
Force Act passed by the British Parliament.
• Ii) Affidavits
• Iii) Arbitration proceedings.
• The provisions of this Act are not applicable to Departmental Inquiries / Domestic
Inquiries/Commissions of Inquiries / Administrative Tribunals.
• Refer to Court – Judicial Proceedings – Taking of evidence on oath.

Fact
• Sec-3: Interpretation. FACT means and
includes –
• i) Any thing, state of things or relation of
things capable of being perceived by the
senses ….. Called as Physical Facts.
• ii) Any mental condition of which any person
is conscious …….called as Psychological
facts.

Fact may be divided into –
i)Fact in issue (FACTUM PROBANDUM) and
ii)Relevant Fact (FACTUM
PROBANS)/Evidentiary fact Facts are the
subjects of judicial inquiry and form the fulcrum
of adjudication. A fact may be not only the object
of perception by any one of the five senses, but
also the subject of consciousness.

Unit:- 2
Unit:- 2
Dying Declaration

Importance of Dying Declaration
• Dying declaration is very important documentary evidence.
• It is hearsay evidence but even then it is given a lot of
weightage in the court proceedings.
• Recording of dying declaration is very important.
• If it is recorded properly by the proper person keeping in mind
the essential ingredients of the dying declaration it retains its
full value.
• Missing any single ingredients of dying declaration makes it
suspicious and offenders are likely to get the benefits of its
shortcomings

• Dying declaration is based on the maxim
• “Nemo moriturus praesumitur mentire” i.e. a man
will not meet his maker with a lie in his mouth.
• Hearsay evidences are not given any weightage in
the courts because the person who is giving this
evidence is not telling his experiences but that of
another person and who cannot be cross examined to
verify the facts.

Evidence of Dying Declaration
• Dying declaration is an exception to this rule because
if this evidence is not considered very purpose of the
justice will be forfeited in certain situations when
there may not be any other witness to the crime
except the person who has since died.
• Sometimes it is the best evidence in such situations.
• Its admissibility is explained in the section 32 (1) of
Indian Evidence Act.

• According to this section when the statement
is made by a person as to the cause of his/her
death, or any of the circumstances of the
transaction which resulted in his/her death, in
cases in which the cause of that person’s death
comes into question.
• Such statements are relevant whether the
person who made this was expecting death or
not .

Declaration when valid ?
• In English law he/she must be under
expectation of death only then this declaration
is valid.
• This declaration is valid both in civil and
criminal cases whenever the cause of death
comes into question.

Important ingredients
• Most important point of consideration is that
victim was in a fit condition of mind to give
the statement when recording was started and
remained in fit condition of mind till the
recording of the statement finished.
• Merely stating that patient was fit will not
serve the purpose.

Important Ingredients
• Second most important point to be considered is that
it should not be under the influence of any body or
prepared by prompting, tutoring or imagination.
• Even if any one of these points is proved then dying
declaration is not considered valid.
• If it becomes suspicious & then it will need
corroboration.

More than one Declaration
• If a person has made more than one dying
declarations and if these are not at variance
with each other in essence they retain their full
value.
• If these declarations are contradictory than
these lose value.

Form of Dying Declaration
• Best form of dying declaration is in the form of questions and
answers.
• If it is in the form of narrations it is still good because nothing is
being prompted and every thing is coming as such from the mind of
the person making it.
• If a person is not capable of speaking or writing he can make a
gesture in the form of yes or no by nodding and even such type of
declaration is valid.
• Whenever this is being recorded in the form of questions and
answers precaution should be taken that exactly what questions are
asked and what answers are given by the patient those should be
written.

•It is preferred that it should be written in the vernacular which the
patient understands and speaks
•It is best that it is recorded by the magistrate but if there is no
time to call the magistrate due to the deteriorating condition of the
victim, it can be recorded by anybody e.g. public servant like
doctor or any other person.
•Courts discourage the recording of dying declaration by the
police officers but if there is no body else to record it dying
declarations written by the police officers are also considered by
the courts.
•If these are not recorded by the magistrate it is better that
signatures of the witnesses are taken who are present at the time of
recording it.

As a measure of safety original dying declaration should be sent to the
court like FIR and its Photostat should be kept in the case file
•It does not matter that the person has put a thumb impression or signed
it if this is duly witnessed.
•But in the court question does arise if a person who can sign puts a
thumb impression.
•If a literate person putting the thumb impression is in such a condition
that he cannot sign e.g. he was lying in the bed and could not get up to
sign it or it was inconvenient for him to put thumb impression due to his
condition (intravenous drip on the back of hand) or injury e.g. injury on
the right hand in a right handed person.

A suicidal note written found in the clothes of the deceased it is in
the nature of dying declaration and is admissible in evidence under
section 32 of Indian Evidence Act
Whenever dying declaration is to be recorded it should be
recorded very carefully keeping in mind the sanctity which the
courts attach to this piece of evidence.
It retains its full value if it can justify that victim could identify
the assailant, version narrated by victim is intrinsically sound and
accords with probabilities and any material evidence is not proved
wrong by any other reliable evidence.

1. It is for the court to see that dying declaration inspires
full confidence as the maker of the dying declaration
is not available for cross examination
2. Court should satisfy that there was no possibility of
tutoring or prompting.
3. Certificate of the doctor should mention that victim
was in a fit state of mind.
4. Magistrate recording his own satisfaction about the
fit
acceptable especially if the doctor was available.

5. Dying declaration should be recorded by the
executive magistrate and or police officer to record the
dying declaration only if condition of the deceased was
so precarious that no other alternative is left.
6. Dying declaration may be in the form of questions
and answers and answers being written in the words of
the person making the declaration.
7. But court need not be too technical.

Unit:- 3
Unit:- 3
BURDEN OF PROOF

Facts in Issue
• These are the issues that the prosecution are required
to prove (or disprove) in order to prove the guilt of
the accused and the issues that the defence are
required to prove in order to prove a defence they
have raised.
• The defence do not raise a fact in issue where a
defence merely amounts to a denial of the prosecution
case

• Subject to exceptions (considered below) the
legal burden of proving (and disproving) all
facts in issue in criminal proceedings is borne
by the prosecution (Woolmington principle)
• Thus, the general rule is that the prosecution
must prove the elements of the offence (actus
reus and mens rea) and must disprove the facts
in issue raised by the accused’s defences

Standard of Proof
(legal burden on prosecution)
• The standard of proof which the prosecution must reach in
order to discharge the legal burden is the criminal standard of
proof, namely, “proof beyond reasonable doubt”
• In practice, juries are often directed that they must be “satisfied
so you feel sure”, this direction does convey the appropriate
standard of proof
• Whilst absolute certainty is not required, the jury should not
convict if there is more than a remote or fanciful possibility that
the accused is not guilty, and judges must avoid misdirections
that convey too low a standard, such as “satisfied” or
“reasonably sure”

• Where the accused is charged with murder
and the defence of provocation is in issu
• prosecution must prove elements of murder
beyond reasonable doubt and
• prosecution must disprove defence of
provocation beyond reasonable doubt

Woolmington exceptions
• Insanity (the only common law defence which imposes a legal
burden of proof on the accused); or
• express statutory exceptions (i.e. where a statute expressly
imposes the legal burden of proving an defence on the accused)
(e.g. diminished responsibility, under s.2(2) HA 1957); or
• implied statutory exceptions (i.e., where a statute implicitly
imposes the legal burden of proving a defence on the accused),
governed (Magistrates) by s.101 MCA 1980 or (Crown Court)
by equivalent common law principle (e.g. selling liquor without
a licence)

Implied statutory exceptions
• Essentially, implied statutory exceptions will exist where a
statute prohibits a type of conduct but permits it in specified
circumstances, or by a specified class of person or by a person
with specified qualifications or by a person granted a licence
or permission by a specified body but in determining whether
a statute imposes a legal burden of proof on the accused by
implication the court must construe the provision to determine
the intention of Parliament, should not be too ready to
construe a statute as having this effect and factor such as the
difficulty of defence in proving or prosecution in disproving
the issue may be relevant.

Human Rights
• Article 6(2) of the European Convention on Human
Rights provides that “everyone charged with a criminal
offence shall be presumed innocent until proven guilty
according to law”.
• The imposition of a legal burden of proof upon the
accused does not necessarily give rise to a violation of
Article 6(2)
• The question is essentially whether the requirement falls
within reasonable limits which take into account the
importance of what is at stake and maintain the accused’s
rights

Human Rights Continued
• Derogation from Article 6(2) does not violate Article
6(2) if it is justified and is reasonably proportionate to
Parliament’s legitimate aim (i.e. is there a reasonable
balance between the public interest and the accused’s
interests)
• There must be a compelling reason for imposing a
legal burden of proof on the accused, and the greater
the penalty the more compelling it must be

Human Rights Continued
• In determining whether imposing a legal burden of proof on D
( the accused) would violate Article 6(2), relevant factors appear
to include: whether the requirement relates to an essential
element of the offence; its purpose; whether the offence is merely
“regulatory”; how difficult it is likely to be for D to satisfy the
legal burden; the difficulty for the prosecution if D was not
required to satisfy the legal burden; what D has at stake; the
presumption of innocence; Parliament’s view as to what is in the
public interest; whether the requirement infringes the principle of
proportionality by interfering more than is necessary with the
presumption of innocence

If imposing a legal burden of proof upon the
accused expressly or by implication would violate
Article 6 the court may be required to read the
relevant statutory provision down under section
3(1) of the HRA 1998 as merely imposing an
evidential burden thereupon.

(i) The prosecution must disprove the defence beyond
reasonable doubt.
(ii) The prosecution must prove the actus reus of the
offence beyond reasonable doubt.
(iii) The prosecution must prove the mens rea of the
offence beyond reasonable doubt.
(iv) The defence must prove the defence on the balance
of probabilities.

•Is there a case to answer? Prosecution
evidence must raise a prima facie case of the
accused’s guilt
•(Galbraith test, i.e. no case to answer if no
evidence on a fact in issue or if properly
directed jury could not convict on the
evidence)

Ayesha is charged with the theft of a diamond
necklace. The prosecution fail to adduce evidence to
prove that the necklace belonged to someone other than
Ayesha. Which one is true?
[a] The defence have a case to answer.
[b] There is no case to answer.

•Prosecution must prove elements of
murder beyond reasonable doubt
•Prosecution must disprove provocation (if
there is evidence of provocation before the
court to raise the defence, regardless of
which party adduced the evidence) beyond
reasonable doubt

Unit:- 4
Unit:- 4
Examination of Witness

Witnesses
• It is not necessary for the prosecution to call every person with
knowledge about facts of the case.
– but enough witnesses to prove the defendant guilty beyond
a reasonable doubt
• It is difficult to determine how many witnesses this will take,
but a prosecutor will call all witnesses necessary to establish
that a crime was committed.
– known as establishing the corpus delicti
• The prosecutor will decide the sequence of how best to present
the facts in a logical, understandable manner.

• Persons are officially notified to appear in court as
witnesses by a legal document known as a subpoena.
– issued for attendance of prosecution & defense
witnesses
• A subpoena may be issued by a judge, prosecuting
attorney, clerk of the court, or public defender.
• Occasionally, a witness will be commanded to bring
books, documents, or other physical evidence to court.
– if so, a “subpoena duces tecum” will be issued to the
witness, including a description of material the witness
is to produce & statement of relevance of the requested
evidence

Excluding Witnesses
• Prior to the time any witnesses testify, the judge must decide if
witnesses may remain in the courtroom or should be excluded
until after they have testified.
• The primary purpose for excluding witnesses is to prevent them
from trying to corroborate the testimony of other witnesses.
– not always done with an intent to falsify, it may be done
because one witness may be uncertain of some of the facts
• Although excluded, it is almost impossible to keep them from
conversing about their testimony.
– even though the judge admonishes them against such action

• Before being testifying, an oath must be administered in which
the witness promises to tell the truth.
• In the past, these involved a call to deity to assist the oath
giver in substantiating truthfulness of statements.
– as well as a call for assistance in telling the truth
• It was the general belief that, after such an oath, should one
falsely testify, divine punishment would result.
– and if one did not believe in God, one was considered
incompetent to testify
• Although most jurisdictions presently do not prescribe
wording generally a call to deity is still included.

THE OATH
• Oaths administered to witnesses today are substantially as
follows:
– “Do you hereby solemnly swear to tell the truth, and
nothing but the truth, in the matter now pending before this
court, so help you God?”
• While this oath was once with a hand on a Bible, most
jurisdictions have dispensed with the Bible.
– but the witness is still required to raise his/her right hand

The Oath
• Some consider it objectionable to “swear to God”.
– in accommodation, courts permit affirmation to tell the truth
• The court officer will require the witness to raise the right hand,
and will state words to this effect:
– “Do you hereby solemnly affirm to tell the truth and nothing
but the truth in the matter now pending before this court?”
• Whether a witness swears or affirms to tell the truth, both
procedures are technically known as the “oath.”
• A few legal scholars argue the oath is a waste of time.
– since it does not guarantee a witness will testify truthfully

Examination of Witnesses
• As stated in the Federal Rules of Criminal Procedure, the
wording of the oath may be of any nature that will awaken the
witness to the necessity of telling the truth.
• The witness may be prosecuted for perjury if testimony is
intentionally falsified after the oath is administered.
• Exceptions to administration of oath are small children and
mentally retarded persons
– who may not understand the meaning of the oath
• If a witness refuses to be sworn, a contempt of court charge
can be filed against the witness.

Examination of Witnesses
• After the oath, the witness will begin testimony.
– facts will be related in the witness’s knowledge of the case
• Prior to any statements about the case, the witness will be
required to state his/her name and correct spelling.
• After the identification the prosecuting attorney will start the
examination.
• Questioning of the witness by the side that calls him/her is
known as direct examination.

Direct Examination - Narrative
• The prosecuting attorney may request the witness to relate in
his/her own words the facts about the case.
– referred to as the narrative approach
• This permits the witness to tell the story in a logical form so
the jury may be better follow the testimony.
• Unless the witness is familiar with the rules of evidence,
irrelevant material & hearsay evidence
may be included.
– or facts related the prosecuting attorney wishes to avoid

•During direct examination, the attorney may generally not ask the
witness leading questions, one that indicates the desired answer to
the witness.
•For example, the attorney may ask the witness…
•“You did see the defendant threaten the victim with a knife,
didn’t you?”
•clearly, the attorney wants a yes answer
•By rephrasing, the witness may be asked…
•“Did you see the defendant threaten the victim with a knife?”
•while the attorney may still desire a yes answer, that wish has
not been indicated to the witness, and may answer yes or no

Leading questions are not generally permitted
because the witness is usually favorable to the
side that calls
him/her. Thus there may be a tendency to assist
that side irrespective of the truth if a desired
answer is indicated
Limited use of leading questions is permitted in
the examination of children, senior citizens, and
mentally retarded persons in order to assist them
in telling their stories.

Occasionally, a witness called by the prosecution will
display hostility toward the prosecution, making the
expected testimony difficult to obtain.the prosecuting
attorney may request the judge to declare for the record
that the witness is a hostile witness If the witness is
declared to be hostile, the prosecuting attorney may then
ask leading questions. it is assumed that the witness will
answer truthfully, because of the hostility, even though a
desired answer is indicated To be declared a hostile
witness, a person must display hostility and
uncooperativeness.

During direct examination by the prosecution, the
defense may object to some of the questions
asked.indicated to the judge, who must rule upon the
objection the witness should not answer until the judge
has ruled.
If the judge believes the objection well founded, he/she
will sustain the objection, meaning the witness may not
answer the question.
If the judge does not agree with the objection, he/she
will overrule the objection & the witness must answer.

Thank You

Indian Evidence Act.pdf

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