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Report No. 69

Indian Evidence Act, 1872

Chapter 1


1.1. Introductory.-

This Report deals with the Indian Evidence Act, 1872. The Law Commission has taken up the subject suo motu; but, it may be noted, that numerous suggestions for amending the Act1 have also been received by the Commission from diverse sources, from time to time.

1. The Act will hereafter be referred to as the Act.

1.2. Experience of adjective law.-

For the proper working of any legal system, adjective law is as important as the substantive law and in the field of adjective law, the law of evidence is as important as the law of civil and criminal proCedure. The Commission has, having concluded the examination of the chief procedural codes, considered it appropriate to devote its attention to the law of evidence which regulates the enquiry into facts by judicial tribunals. The law is principally contained in the Act with which we are concerned in this Report. Society governs the conduct of its citizens by principles and rules prescribed by statutes, regulations and rules of court.

The machinery of trials in our law is designed to ensure the fair conduct of a case before the courts of the land. This has been achieved progressively over the years by rules ultimately derived from common sense and prudence. These rules must change with the passage of time, not only in order that they may improve their efficiency, but also in order to secure harmony.

Law is classified as substantive or adjective. Substantive law1 is that which has an independent standing, and determines the rights and obligations of persons in particular circumstances. Adjective law is dependent or subsidiary, and prescribes the procedure for obtaining a decision according to substantive law. Procedural law is often regarded as including both procedure proper and evidence, for evidence is concerned with establishing the facts to which substantive law is applied. Though procedure is only a means, in practice, it often assumes as great an importance as questions of substantive law.

1. Nokes Introduction to Evidence, (1967), p. 30.

1.3. Interest in reform of the law.-

Over the last half a century or so, increasing interest has been shown in the reform of the law of Evidence. In those countries where the law was not codified, many of the topics belonging to the Law of Evidence were regarded as complex and confused, and sometimes even considered to be "absurdly technical".1 In the United States, for example, two leading writers commented in 1937 that "a picture of the hearsay rule with its exceptions would resemble an old fashioned crazy quilt, made of patches out from a group of paintings by cubists, futurists and surrealists.2"

The movement for reform has now led to a number of official and unofficial codifications. Elsewhere in the Commonwealth, until very recently, attempts to secure a comprehensive code of evidence3 were not successful, owing to considerable prejudice against codes that is natural to persons who are unfamiliar with their operation. This is not the position now. In India, there never prevailed any such prejudice.

The codification in the Act has avoided, in India, many of the problems which were experienced elsewhere. Fortunately, some of the provisions of the Act, one can now say, were ahead of the times. But this does not dispense with the necessity of examining its provisions with a view to checking up whether they are complicated, obscure, irrational or unjust in operation and as such, need to be revised.

1. Myers v. Director of Public Prosecutions, 1965 AC 1001 (1019) (per Lord Reid).

2. Morgan v. Maguire, (1937) 50 Harvard Law Review 909 (921)-"Looking backward and forward at evidence."

3. See Keeton and Lloyd The United Kingdom, (1955) i, 343; Nokes Codification of the Law of Evidence in Common Law Jurisdictions, (1956) 5 ICLQ 347; Cross Some Proposals for Reform in the Law of Evidence, (1961) 24 MLR 32 (60).

1.4. Two postulates.-

Any statute relating to evidence is based on two fundamental postulates. The first is that in the judicial process, facts come up for determination. The second is that in such determination of facts, certain rules are required. It is obvious that the Evidence Act deals with a vital part of the judicial process-the determination of facts. The necessity for determination of facts arises in a judicial proceeding because1-

"In order that the Judge may decide upon a question in litigation, it is necessary that the parties to the action should satisfy him of the truth of the facts submitted for his decision. But they must not only satisfy the Judge; they must also prove the facts adduced. Facts that must be proved, and such as affect and are relevant to the decision to be given, are uncertain facts, that, such as are disputed by the other party."

This process of proving the facts, if it is to be carried on efficiently and impartially, must need rules. The actual content of the rules may vary. But there have to be some rules.

1. Tomkin and Jenckin Modern Roman Law, p. 92, cited by Field Introduction to the Evidence Act, p. xi.

1.5. Need for guidelines.-

Archbishop Whateley, in his Rhetoric,1 has made certain observations as to the need for guidelines in certain intellectual processes, which apply with equal force to rules of evidence:-

"It has been truly observed that genius begins where rules end. But, to infer from this, as some seem disposed to do, that in any department wherein genius can be displayed, rules must be useless, or useless to those who possess genius, is a very rash conclusion. What I have observed elsewhere concerning Logic, that 'a knowledge of it serves to save a waste of ingenuity', holds in many other departments also.

In travelling through a country partially settled and explored, it is wise to make use. of charts, and of high roads with direction posts, as far as these will serve our purpose, and to reserve the guidance of the compass or the stars for places where we have no other helps. In like manner we should avail ourselves of rules as far as we can receive assistance from them, knowing that there will always be sufficient scope for genius in points for which no rules can be given."

The definition of "evidence" that was contained in some of the American Codes-"evidence is the means sanctioned by the law of ascertaining in a judicial proceeding the truth respecting a question of fact"-aptly brings out this aspect.2-3

1. Whateley Rhetoric, Preface, p. vi.

2. Section 1823, California Code of Civil Procedure, cited in Bouvier Law Dictionary (1914), p. 1091.

3. New Jersey Rules of Evidence.

1.6. Substantive and adjective law.-

While substantive law, as already stated,1 defines the rights, duties and liabilities, adjective law regulates the pleadings, procedure and proof by which the substantive law is applied in practice. In India, pleadings and procedure are dealt with in the two procedural Codes; the subject of limitation of suits is dealt with in the Limitation Act; and the remaining part of the adjective law-proof-is dealt with in the Evidence Act. As an abstract proposition, one could state that there is but one general rule of evidence, namely, that that evidence should be the best which the nature of the case can admit.

However, circumstances in real life are so complex that it is often not easy to discover what is the best evidence; and, even if one could determine what is the best evidence, necessity might demand the substitution of the second best evidence in its place, in a particular case. One of the objects of the law of evidence, then, is to "restrict the investigations made by courts within the bounds prescribed by general convenience.2"

1. Para. 1.2, supra.

2. R. v. Prabhulal, (1874) 11 Born HC Reports 91.

1.7. Every fact need not be proved.-

Of course, the law of evidence does not command that every fact must be proved. The object of restricting the scope of inquiry is achieved also1 by "the doctrine that certain classes of facts are already within the 'judicial notice' of the Courts, and by 'presumptions' by which certain propositions are to be assumed to be sufficiently proved when certain other propositions have been established."

1. Holland Jurisprudence, (1910), referring to Thayer's A Preliminary Treatise on Evidence at the Common Law (1898).

1.8. Negative rules forming the part of the law of evidence.-

Since, principally, the law of evidence restricts the scope of inquiry, a part of the law of evidence consists of negative rules declaring what "is not evidence". Of this negative aspect, a striking illustration is found in section 5 of the Act, which provides that "evidence may be given of all facts in issue and all such other facts as are hereinafter declared to be relevant and of no others."1 Evidence tendered must be shown to be admissible under one or other of the sections of the Act2-or the provisions of some other Act previously passed and not repealed, or an Act enacted subsequent to the Act.3

1. Cf. Lord Mansfield's observations in the Berkley Pearage Case, 4 Camp 414.

2. See Collector v. Palakhdhari, 1899 ILR 12 All 1 (43).

3. Lekhraj v. Mahipal, 7 IA 70, explained in Abinash v. Parash, 9 CWN 402 (406).

1.9. The nature and basis of the particular restriction laid down in the law of evidence may vary. But, broadly speaking, the law excludes "certain kinds of evidence as having too remote a bearing on the issue, or as incapable of being satisfactorily tested or as coming from a suspicious quarter1.

1. Holland Jurisprudence, (1910), referring to Thayer's A Preliminary Treatise on Evidence at the Common Law, (1898).

1.10. History.-

After this discussion of the essential nature of the law of evidence, it will be convenient to give a brief history of the law of evidence in India since the commencement of the British rule. For this purpose, it would be desirable to deal separately with the position in the Presidency towns and the position elsewhere.

Indian Evidence Act, 1872 Back

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