Report No. 69
100.11. What can be proved.-
If one bears these aspects in mind, one immediately perceives the limitations flowing therefrom.
Within these limitations, a well designed law of evidence always sets before itself certain objectives which it seeks to achieve, namely, limiting the range of inquiry, avoidance of delay, and the ascertainment of truth in the best possible manner. Let us see how the Act secures the beneficial purposes which it seeks to achieve. The Act, in the first place, seeks to limit the range of evidence by defining the facts to which evidence can relate. One paramount principle controls the giving of evidence. Under section 5, evidence must be confined to facts in issue and relevant facts. This also saves time-an aspect which is not often realised.
100.12. How much can be proved.-
In general, the volume of evidence on relevant facts depends on the importance which the parties attach to proof of the particular facts, and the law does not restrict the volume. However, section 39 lays down the limits of evidence which is to be tendered when the statement forms part of a conversation, documents, books, or series of letters or papers. Only that much portion is admissible as is necessary for the full understanding of the nature and effect of the statement concerned.
Then, there are rules as to the quality of evidence. Evidence, it oral, must be direct. If it is documentary, the contents of the document must be proved by primary evidence (sections 61 to 64), i.e. by production of the original document, except as permitted by section 65. The superiority of documentary evidence over extrinsic evidence is recognised in section 91 and section 92 (the Parole Evidence Rules), which exclude extrinsic evidence in competition with documentary evidence, except under certain circumstances.
100.14. The underlying principle is that documentary proof is always regarded the better type of testimony. The Privy Council has observed1-
"It is a cardinal rule of evidence, not one of technicality, but of substance, which it is dangerous to depart from, that where written documents exist, they shall be produced as being the best evidence of their own contents."
Sections 56 to 58 of the Act, which dispense with proof of facts of which the court can take judicial notice or of facts which are admitted, also promote the purpose of avoiding delay.
1. Dinomovi v. Roy, 1879 LR 7 IA 8 (PC).
100.15. Rules in substantive law.-
We may also note that certain rules of evidence are intended to carry out, in the field of evidence, rules existing in the substantive law. For example, section 92 prevents the parties from substituting a new contract for that recorded in writing, and is, in that sense, ancillary to the substantive law. In short, rules of evidence are intended ultimately to ensure that truth shall come before the Court in a manner which secures justice and which is in conformity with the general principles of jurisprudence and the content and spirit of the legal system.
100.16. The Act recognises that truth need not be pursued at too high a cost. Wider considerations of public policy may, for example, justify the creation of exceptions to the ordinary rule that a witness must answer every question on a relevant fact. It is elementary that the trial must be fair. The right to a fair trial is, in particular, promoted by a group of sections seeking to protect the legitimate interests of the accused-sections 24 to 26, 30 and 54-as also by the provisions relating to confrontation of witnesses with their prior contradictory statements. Finally, procedure is a handmade of justice, and not an end in itself. On this principle, section 167 forbids a new trial or reversal of a judgment on the sole ground of improper reception or rejection of evidence.
100.17. Excellence of the present Act.-
Bearing that these are the principal considerations underlying the Act, we have, in the preceding Chapters, gone through the Act, section by section, and have, wherever necessary, recommended amendments in the light of the experience gained in the working of the Act during the last one hundred years, and also in the light of the changed social conditions as well as conflict of judicial decisions and recent thinking on the subject. These amendments should not, however, be construed as detracting from the high quality of the content of the present Act as a legislative measure. They only show that no legislative measure can be so perfect as to retain its utility for a century without modifications rendered desirable by the passage of time.
In fact, we would like to pay a tribute to the excellence of the Act which, drafted as it was by Stephen-an eminent lawyer and one who is perhaps the most respected name in the field of criminal law-has stood the test of time. If-to borrow a phrase from Gilbert-the law is an embodiment of all that is truly excellent the Act does not fall much short of that ideal.
100.18. Role of the Judge.-
We would, at this stage, point out that the Act gives enough indication of the importance which it attaches to the role of the judge in the process of trial. It is no accident that two of the important sections dealing with the role of the judge-sections 165 and 167-appear at the end of the Act. Their placing, as well as their content, indicates that the principle underlying them should pervade the entire process and that this principle is to be read in each and every of the preceding sections, thus imbuing the trial at every stage.
The role of the Judge, as the Act conceives it, is not a static one, that role is dynamic enough to enable the judge to maintain his grip over the proceedings so that vexation is minimised, delay is avoided, the proceedings are conducted with fairness as well as with expedition and justice is done in its procedural aspect. A Judge ought not to forget the heavy burden cast upon him by these two sections in particular, and by the scheme of the Act in general.
In this context, reference may be made to an important feature of trials,-the cross-examination of witnesses. Although cross-examination on relevant questions cannot be interfered with by the Judge, yet it must be noted that under section 151 of the Act, the Court has a power to forbid indecent and scandalous questions or inquiries and under section 152, it has a duty to forbid insulting or annoying questions or questions needlessly offensive in form. These two sections give sufficient indication of the legislative attitude as regards the proper sphere of cross-examination.
They contemplate that the witness is not to be treated as a mere tool to be played with, or as a toy to be tossed from one counsel to another. He has a dignity of his own, and the fact that he is a witness cannot affect that dignity. The power of the judge to control the course of the trial is particularly expected to be utilised in regard to questions which violate the provisions of these two sections.
We would like to point out that these sections are very rarely invoked, so that injustice often results and the witness leaves the Court with an unfavourable impression about the quality of the machinery of justice. If the judge uses his powers wisely and efficiently, justice will be done and the trial will be expedited. It will also preserve and improve public confidence in the administration of justice. Unless the question be relevant, it is one of the important functions of the court to see that scandalous matter is not introduced. In this sense, "the trial judge is not a mere automat".1
1. Sultan Begum, AIR 1936 Lah 183 (185).
100.20. Primarily, it is the duty of counsel to avoid scandalous questions. Counsel should not overlook the fact that while they owe a duty to the witness, they have a duty to the Court. If, however, in a particular case, counsel overlook that duty, the Judge should not regard himself as powerless. In trial Courts, appearing as a witness is sometimes an agonising experience. Witnesses often have a fear of proceedings in courts. The Judge should therefore exercise the powers referred to above widely and effectively, in order that such apprehensions of witnesses may be allayed and citizens can come forward to render aid in the administration of justice without hesitation.